author: MILLER, Judge.

text:
    Alberta J. DORTLON, Plaintiff-Appellee, v. UNION FIDELITY LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 5301.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Ronald E. Corkern, Jr., of Watson, Murchison, Crews & Arthur, Natchitoches, for defendant-appellant.
    Kelly, Seaman & Ware by Richard N. Ware, Natchitoches, for plaintiff-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Defendant Union Fidelity Life Insurance Company appeals the judgment awarding plaintiff Alberta Dortlon hospitalization benefits due under her insurance policy together with penalties and attorney fees. We affirm.

Union Fidelity contends the Hanna Clinic and Hospital where Dortlon was confined was not a -“hospital” under the policy definition stating:—

“Hospital” means a legally operated institution which: maintains and regularly uses on its premises a laboratory, X-ray equipment and operating room where major surgical operations may be performed; maintains permanent and full-time facilities for the care of overnight resident bed patients under the supervision of a licensed Physician; provides 24-hour-a-day nursing service by graduate Registered Nurses; and maintains on the premises the patient’s written history and. medical records. The word “hospital” shall not include any institution for whose services payment would not be legally required in the absence of insurance, or any facility contracted for or operated by the United States Government for the treatment of members or ex-members of the armed forces; and shall not include any institution or part thereof used, other than incidentally, as a place for rehabilitation, rest, the aged, drug addicts or alcoholics, a mental institution, sanitarium, nursing or convalescent home, a long term nursing unit or geriatrics ward, or as an extended care facility for the care of convalescent, rehabilitative or ambulatory petients.

The facts are not in dispute. Dortlon was admitted to Hanna Clinic and Hospital in Coushatta, Louisiana subsequent to an injury and was hospitalized for twenty days. At that time her policy with Union Fidelity provided up to $40 per day benefits for hospitalization.

Union Fidelity contends the policy definition of “hospital” was not met in that 1) surgery had not been performed at the Hanna Clinic and Hospital within the past ten years, and 2) the clinic and hospital does not have a graduate Registered Nurse on the floor during all of the three daily shifts.

The testimony established all other policy requirements were met, and the hospital is licensed by the State of Louisiana. The operating room in the clinic and hospital was maintained and it, together with the equipment and supplies needed to administer anesthetics, was always available for surgical procedures. The operating room had not been used for. ten years because the doctor preferred, as- a medical judgment in the patient’s interest, to use readily available superior facilities in the nearby Shreveport area.

In McKinney v. American Security Life Insurance Co., 76 So.2d 630 (La.App. 2 Cir. 1954) the court considered a similar definition of the hospital facilities covered by the policy. Although that policy required the facility to have X-ray equipment, the court found coverage where the equipment was not on the hospital premises. X-ray was available elsewhere under contract. While Hanna Clinic & Hospital does not strictly comply with the requirement that the operating room be regularly used, the operating room is maintained in a state of readiness in accordance with licensing requirements.

The insurance company’s interest served by restricting the type hospitals to which their policy applies is to provide a superior standard of care to the end that their insured may have a speedier recovery and lower hospital costs. See the annotation under “hospitals” as defined in hospitalization'policies, 46 A.L.R.3d 1244, § 2. As applied to cases where the operating room was not needed, the clause is an exclusion applying only to the unwary. This interpretation is inconsistent with the apparent object and intent of the parties, and is rejected.

Hanna Clinic and Hospital’s nursing staff consisted of two graduate Registered Nurses and four Licensed Practical Nurses. One RN was director of nursing arid was on duty during daylight hours and “on call” the remainder of the time. The other RN was on duty during one of the three shifts each day. When either of the RNs was on vacation, or unavailable, the doctor is always available.

With respect to the requirement that “hospitals” provide “24 hour-a-day nursing service by graduate Registered Nurses,” McKinney, supra, held that having RNs “on call” was substantial compliance with the requirement. If the policy definition was taken literally, hospitals would not be allowed to furnish routine care by LPNs under RN supervision — a result incompatible with ordinary practice. The RN services provided at this clinic and hospital meets the “hospital” standards prescribed by the state licensing agency. There is no manifest error in the trial court’s finding Hanna Clinic and Hospital complies with the policy’s nursing requirement.

To apply a strict interpretation of the policy provisions would place an unreasonable burden on the insured. Before seeking treatment the insured would have to ascertain not only whether a facility had RNs, X-ray equipment, a laboratory and operating room on the premises, but also the extent to which they are used. The result would be different if there was a total lack of one of these features, but a reasonable compliance with these terms is adequate to further the insurance company’s interest without unreasonably burdening the insured.

We distinguish Herring v. American Bankers Insurance Company, 216 So.2d 137 (La.App. 2 Cir. 1968) on which defendant relies. The restriction there pertains not to features of the institution, but to its membership in one or more of three organizations. The criterion is not susceptible of substantial compliance. The institution either is or is not a member of the requisite organizations. Compliance by the institution can be readily determined.

Finally Union Fidelity contends it had reasonable grounds for refusing to pay benefits, and therefore penalties and attorney fees should not be assessed. Under LSA-R.S. 22:657 plaintiff is entitled to recover a penalty of double the amount of the claim plus attorney’s fees unless “just and reasonable” grounds such as would put a reasonable and prudent businessman ■ on his guard are shown to have existed.

Where the issue is res nova, refusal to pay until the issue is litigated has been allowed without penalties attaching. Negem v. National Central Life Insurance Company, 245 So.2d 469 (La.App. 4 Cir. 1974). But that is not the case here, for the McKinney case interpreted virtually identical clauses and denied both defenses. In McKinney, supra, the trial court refused to award penalties and attorney fees, and the appellate court affirmed. This appellant has failed to show manifest error in the trial court finding that justification was not established and the policyholder was entitled to penalties and attorney fees.

Union Federal finally contends the $1,000 attorney fee was excessive because it exceeds the $800 claim. The fee is intended to be a reasonable compensation for the services required to successfully conclude the claim. To limit the fee to the amount of the claim would effectively deny persons with claims amounting to less than reasonable compensation for minimum services the benefit intended by the statute. We find no manifest error in the trial court’s refusal to apply such an arbitrary limitation.

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

Affirmed.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    Milton VIDRINE, Plaintiff-Appellee, v. LOUISIANA DIVISION OF EMPLOYMENT SECURITY (VANCOUVER PLYWOOD COMPANY, INC.), Defendant-Appellant.
    No. 5327.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.

      Smitherman, Smitherman, Lunn, Hussey & Chastain by Merritt B. Chastain, Jr., Shreveport, for defendant-appellant.
    John P. Navarre, Oakdale, for plaintiff-appellee.
    Before HOOD, GUIDRY and PETERS, JJ-
   GUIDRY, Judge.

This is an appeal from a judgment of the 33rd Judicial District Court which reversed a decision of the Board of Review of the Division of Employment Security of the Department of Labor, State of Louisiana, and awarded plaintiff unemployment compensation benefits. The Appeals Referee and the Board of Review after hearings both reached the. conclusion that plaintiff was not entitled to unemployment compensation benefits for having left his employment without good cause connected with his employment. This conclusion is the premise or basis for this appeal by the Administrator.

In cases of this nature the scope of judicial review is confined to question of law, the findings of the Board of Review as to facts, if supported by sufficient evidence and in the absence of fraud, being conclusive. LSA-R.S. 23:1634; Southern Bell Telephone and Telegraph Company v. Administrator, Division of Employment Security of Department of Labor, State of Louisiana et al, 200 So.2d 761, (La.App. 3rd Cir. 1967); and Barber v. Lake Charles Pipe & Supply Company and Administrator, Division of Employment Security of Department of Labor, State of Louisiana, 148 So.2d 326 (La.App. 3rd Cir. 1963).

There is no dispute as to the material facts involved. Plaintiff, Milton Vidrine was employed by Vancouver Plywood Company for nearly thirty-six (36) years. Having attained the age of sixty-two (62) in December of 1973 he became eligible and applied for social security benefits. When making his application Vidrine was advised that he could earn a maximum of $2400.00 a year without forfeiting any of his social security benefits. The plaintiff, continuing to work for Vancouver Plywood, began receiving his social security retirement benefits in January of 1974. By July 19, 1974 Vidrine had earned from his employment with Vancouver Plywood Company Inc. the sum of $2400.00 and in order to avoid the loss or forfeiture of any social security benefits for the year 1974 he on said date voluntarily terminated his employment with that Company. Subsequently he filed a claim for unemployment insurance benefits but was denied benefits by the Department, the Appeals Referee and the Board of Review for the reason hereinbefore stated. At all times prior to and after the plaintiff’s departure from Vancouver Plywood he was physically able to work.

We disagree with the trial court's holding that the instant matter is almost identical with, and therefore controlled by the case of Southern Bell Telephone and Telegraph Co. v. Administrator, Division of Employment Security, Department of Labor, (supra). There the employer, who no longer desired the services of an employee, tendered to her a letter of resignation and offered seventeen (17) weeks of severance pay should the employee sign the letter of resignation. It is clear that in the ’ cited case the employee did not voluntarily terminate her employment rather the employer actively sought her resignation and actually induced the employee to resign because of her poor attendance record.

Such is not the circumstances In the case at bar. The plaintiff was offered nothing by his employer, Vancouver Plywood, to induce his resignation. The plaintiff had been employed there for thirty-six (36) years. The record clearly reflects that the plaintiff, who worked as a fork lift operator, and the employer enjoyed the best of relations. Vidrine simply left his employment on July 19, 1974 in order not to have to forfeit any of the social security benefits which he would receive in the calendar year 1974. The plaintiff’s resignation was completely voluntary, the record disclosing no evidence to the contrary. In fact plaintiff testified that it was his intention to resume his employment with Vancouver Plywood in the year 1975 and continue therein until he had again earned $2400.00.

The law is clear that under LSA-RS £3:1601 an employee is not entitled to benefits if he has left his employment without good cause connected with his employment. Under the circumstances of this case we find that the plaintiff quit his job voluntarily and solely to avoid the forfeiture of social security benefits which he was then receiving, a reason purely personal to him and clearly one not for good cause connected with his employment. See Sheffield v. Heard, 92 So.2d 295 (La.App. 2d Cir. 1957). Hargrove v. Administrator, 247 La. 689, 174 So.2d 120 (1965).

Accordingly, for the foregoing reasons the judgment of the district court is reversed and judgment is rendered hereby affirming the decision óf the Board of Review for the Division of Employment Security of the Department of Labor, State of Louisiana, Docket No. 2078 Br 74 (A518-AT-74), denying unemployment compensation benefits to the plaintiff-ap-pellee. The appellee is to bear all costs of this appeal.

Reversed and rendered.


text:
    J. D. LeDOUX, Plaintiff-Appellee, v. CALCASIEU PARISH POLICE JURY, and United States Fidelity & Guaranty Company, Defendants-Appellants.
    No. 5293.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.

      Raggio, Farrar, Cappel & Chozen by Richard B. Cappel, Lake Charles, for defendants-appellants.
    Thomas W. Sanders, Lake Charles, for plainti f f-appellee.
    Before CULPEPPER, MILLER and DOMENGEAUX JJ.
   MILLER, Judge.

Defendants Calcasieu Parish Police Jury and its insurer U.S.F. & G. appeal the judgment awarding workmen’s compensation benefits for total and permanent disability to plaintiff J. D. LeDoux. LeDoux answered the appeal seeking to reverse the trial court’s denial of his claim for penalties and attorney fees. We affirm.

LeDoux’s ruptured disc at the L-3 L-4 level was diagnosed by myelogram and treated by Chymonucleolisis, a chemical method of repairing a ruptured disc. Although defendants contested LeDoux’s claim of total and permanent disability at trial, that has been conceded for purposes of this appeal. Appellants contend the trial court was manifestly wrong in finding LeDoux sustained an accident in the course and scope of his employment.

LeDoux was 35 years of age, married, and supporting his wife and four children at the time of the alleged accident. He had worked for the parish as a mechanic for two years and eight months and was a valued employee. One of his superiors had recommended him for promotion to foreman. LeDoux also had a good work record prior to his employment with the parish.

Some eight years before this accident, LeDoux received a workmen’s compensation settlement for a back injury. While employed by the parish LeDoux reported several minor accidents all of which required immediate medical attention. Some eighteen months before the alleged accident which is the subject of this suit, Le-Doux suffered a back injury. He was off work for about two months and was unable to obtain payment of his medical expenses and weekly benefits until he employed an attorney. Although there was no suit or settlement, these benefits were eventually paid and LeDoux returned to work.

The alleged accident which is the subject of this claim occurred August 26, 1974, but LeDoux did not report the accident while at work. He testified he was lying on a creeper beneath the truck removing the “rear end.” It suddenly came out, and in attempting to hold its weight of 200-350 pounds, LeDoux says he injured his back. He testified he rested under the truck for a few minutes to allow the pain to pass and then continued his attempt to complete the day’s work. He punched out thirty minutes early and testified he went home to go to bed. About 10 p.m. he was unable to walk to the bathroom and was taken to the hospital. He was admitted to the emergency room shortly after 11 p.m. the night of the alleged accident. He told his. wife to telephone his employer the next ■morning to report his hospitalization. She did, but defendants contend LeDoux’s wife inferred that LeDoux was in the hospital as a result of an accident which occurred while LeDoux was working on his own car at home. This argument was rejected by the trial court. LeDoux’s hospital admission record shows his admission to be related to workmen’s compensation. Defendants admitted Mrs. LeDoux’s telephone call did not state her husband was injured at home. They arrived at this conclusion because of Mrs. LeDoux’s statement that her husband was supposed to work on their car that afternoon. There is no evidence indicating LeDoux worked on their car- that day.

Testimony by several witnesses indicates the parish learned on the day following the alleged accident that LeDoux was claiming workmen’s compensation benefits. The parish promptly notified the hospital of their position that LeDoux did not suffer a compensable accident and they refused to authorize payment of the hospital bills. The hospital notified LeDoux of his pend- ■ ing removal to Charity Hospital and Le-Doux then employed his attorney. His attorney made demand on the parish some three days after the accident and detailed the manner in which the accident occurred. The parish maintained its position and still contends LeDoux did not sustain an on the job accident.

Defendants contend they have assumed the burden and proved LeDoux did not sustain an accident while in the course and scope of the parish’s employment. Defendants rely on these facts: — 1) LeDoux did not report the accident, nor did he tell anyone on the job about it when he left work early. 2) When LeDoux’s wife telephoned the foreman the next morning to report LeDoux’s hospitalization with a back injury, she gratuitously added that he had come home to work on her car but had not actually worked on the car. 3) LeDoux’s co-employee and good friend, Steve Dug-gan, testified that several days after the accident LeDoux told him a different version, i. e., that LeDoux had removed the rear end from the truck and it was sitting on a drum used as a workbench. When the rear end started to fall LeDoux reached and grabbed it and hurt his back.

Suit was filed within a month and the protracted four day trial was concluded and the case decided within three months of the alleged accident.

A careful study of the 5 volume 950+ page record does not establish manifest error in the trial court’s conclusions. As the trial court noted, “(T)o state that the testimony is conflicting in this case is to put it mildly.” After reviewing several differences and considering the discrepancies, including hospital records, testimony of doctors, the trial court concluded Le-Doux proved he sustained an injury on the job. The trial court reached this conclusion “by weighing the pros and cons of all the testimony, and finds that the weight of the evidence tips the scales in favor of the plaintiff, however slight that may be.”

The parties have written detailed and well documented briefs pointing up testimony which supports their version of the facts. We have carefully considered the evidence and their arguments and fail to find manifest error.

The issue on appeal is whether LeDoux’s version that he was injured in the course and scope of his employment is to be accepted or rejected. In making his determination the trial court evaluated the conflicting testimony and weighed the accepted testimony. It is a fundamental rule of appellate review that the trial judge’s factual determination will not be disturbed absent manifest error. And this rule is particularly applicable where the testimony is conflicting and the trial court must evaluate the credibility of the witnesses. Breaux v. Great Atlantic & Pacific Tea Co. Inc., 302 So.2d 672 (La.App. 3 Cir. 1974); Comeaux v. D & A Construction, Inc., 220 So.2d 129 (La.App. 3 Cir. 1969); Richard v. National U. P. F. Ins. Co. of Pittsburgh, Pa., 189 So.2d 460 (La.App. 3 Cir. 1966).

In rejecting LeDoux’s claim for penalties and attorney’s fees, the trial court found defendants had “more than ample evidence to question whether the plaintiff was entitled to compensation or not.”

Plaintiff ultimately prevailed by persuading the court defendants were mistaken, not that they had no reasonable argument. Defendants were not therefore arbitrary and capricious. They had relevant information. This was not the unreasonable denial without basis which the penalty statute sanctions.

■' The trial court judgment is affirmed at appellants’ costs.

Affirmed.


text:
    Linzie M. MORSE et ux., Plaintiffs and Appellants, v. HARTFORD CASUALTY INSURANCE COMPANY et al., Defendants and Appellees.
    No. 5324.
    Court of Appeal of Louisiana. Third Circuit.
    Feb. 4, 1976.

      Stockwell, Sievert & Viccellio, by Robert W. Clements, and John S. Bradford, Lake Charles, for defendants and appellants.
    Jones, Kimball, Patin, Harper, Tete & Wetherill by Gregory P. Massey, and Kenneth Spears, Lake Charles, for third party defendant and appellee.
    Before HOOD, GUIDRY and PETERS, JJ.
   GUIDRY, Judge.

Third party plaintiff, State Farm Mutual Insurance Company, appeals the dismissal °f its third party demand against Hartford Casualty Insurance Company on a filed exception of jurisdiction which was changed by the the trial court to an exception of nu . right of action.

The instant proceeding stems from an automobile accident that occurred in the State of Texas on or about December 12, 1972. In this suit Edna D. Morse joined by her husband, Linzie M. Morse, seeks to recover damages for personal injury sustained by the said Edna Morse in the aforesaid accident. Both plaintiffs are residents of Louisiana. At the time-of the accident, Edna Morse was a guest passenger in a vehicle being driven by Geraldine L. Keever, and owned by Steve Keever, both residents of the State of Louisiana. State Farm Mutual Insurance Company was the insurer of the Keever vehicle. The other vehicle involved in the accident was a truck owned by Craig & Waters, Inc., a Texas corporation, not authorized to do nor doing business in the State of Louisiana. The truck was being operated by one, Jessie Farmer, a resident of the State of Texas. Hartford Casualty Insurance Company is the insurer of the Craig & Waters vehicle under a policy of liability insurance issued in the State of Texas. Plaintiff joined as defendants State Farm Mutual Insurance Company and Hartford Casualty Insurance Company.

Hartford Casualty Insurance Company (hereafter referred to as Hartford) excepted to the jurisdiction of the trial court based on the provisions of LSA-RS 22:655. The exception was maintained by the trial court on March 20, 1974 and a judgment was rendered dismissing Hartford as a party to the action. This decision was appealed to this court and on March 16, 1974, this court affirmed the dismissal of Hartford, not on the exception of jurisdiction but on this basis that the plaintiffs had no right of action against Hartford under LSA-RS 22:655 determining that:

“The Direct Action Statute, LSA-RS 22:655, does not grant a right of action to a Louisiana resident against an insurance company doing business in Louisiana when (1) the accident occurs in another state, and (2) the insurance policy sued upon was issued in another state.” (Morse v. Hartford Casualty Insurance Company, 301 So.2d 741, La.App.3d Cir., 1974).

Hartford was brought back into the suit by State Farm Automobile Insurance Company (hereafter referred to as State Farm) on a third party demand for contribution. In its third party demand State Farm alleges that if it is liable to plaintiff in the main, then Hartford is solidarily liable with State Farm and the latter is entitled to contribution from the former.

Once again, Hartford excepted to the jurisdiction of the court but the trial court, on this occasion, changed the exception from one lack of jurisdiction to an exception of no right of action and dismissed the third party action on June 30, 1975. The trial court gave no reasons for sustaining the exception of no right of action. State Farm is now appealing the ruling of the trial court.

State Farm complains that the trial court erred in changing the filed exception of jurisdiction to one of no right of action and then dismissing its third party demand.

If the record discloses no right of action or interest in the third party plaintiff to institute the third party demand the trial .court may make such determination on its own motion. LSA-CCP. Art. 927.

A more difficult issue is whether third party plaintiff does in fact have a right of action under the circumstances of this case. State Farm admits that its right of action is not based on the direct action statute (LSA-RS 22:655) but asserts that it has a right of action against Hartford for contribution in the event it is found liable to the plaintiffs under Louisiana Civil Code Articles 2092, 2094, 2103 and 2324. State Farm asserts that since Hartford is subject to Louisiana jurisdiction, if it can be established that the parties insured by both State Farm and Hartford are joint tort feasors then the insurers being solidary obligors State Farm may enforce contribution from Hartford without joinder of is non-resident insured. Shaw v. New York Fire & Marine Underwriters Inc., 252 La. 653, 212 So.2d 416, (1968); Wilks v. Allstate Insurance Company, 195 So.2d 390 (La.App. 3rd Cir. 1967).

For the reasons more fully hereinafter set forth we hold that absent the applicability of the Direct Action Statute the right of an injured party or his subrogee to maintain an action against the tort fea-sor’s insurer may be conditioned upon, as prerequisite, the final determination by judgment or written agreement of its insured’s liability to the injured party, and if so conditioned no right of action will lie against the insurer for damages or contribution until such determination is made.

We agree that under the holdings of the cited cases, and Hidaglo v. Dupuy, 122 So. 2d 639 (La.App. 1st Cir. 1960) the issuance of a policy of insurance which obligates the insurer to pay the damages for which the insured may be cast creates a solidary obligation. We must also agree that in Shaw v. New York Fire and Marine Underwriters Inc., supra, the court allowed the insurer of an alleged joint tort-feasor to' seek contribution against the insurer of the other alleged joint tortfeasor, without joining as a party to the suit the alleged joint tortfeasors.

The court stated as follows in Shaw:

“Under the Direct Action Statute, the insurer is liable to the claimant in solido with its insured. LSA-R.S. 22:655. When the insurer is sued alone, it stands in the shoes of its insured for purposes of contribution. Thus, the insurer of a tort feasor may by third party demand enforce contribution against a joint tort feasor. LSA-C.C.P. Art. 1111; LSA-C. C. Art. 2103; Smith v. Southern Farm Bureau Casualty Ins. Co., supra. By the same token, the insurer may also demand contribution of the insurer of a joint tort feasor.”

The essence of the court’s ruling in Shaw is that “things equal to the same thing are equal to each other”. It is important to remember that in Shaw the Louisiana Direct Action Statute (LSA-R.S. 22:655) was applicable. Although we agree with the holdings in the cited cases we conclude that absent the applicability of the Direct Action Statute in order for an insurer of one joint tortfeasor to enforce contribution from the insurer of another joint or tortfea-sor, it must be established that the insurer from whom contribution is sought is bound unconditionally with its insured in solido.

In the case of Hidalgo v. Dupuy, supra, the court in speaking to the purpose and effect of the Louisiana Direct Action Statute stated as follows :

“In our view, the Direct Action Statute does not convert into a solidary liability the obligation of the insurer to pay the damages for which the insured may be cast, for by virtue of the contract it is already such. The statute simply voids any policy clause which conditions the right of the injured person to enforce against the insurer its contractual obligation to pay the insured’s debt upon, as prerequisite, the obtaining by the injured person of a judgment against the insured. That the insurer’s obligation is so conditioned does not, as previously stated, prevent its being solidary. LSA-C.C. Art. 2092.” (Emphasis supplied).

As aforesaid, we agree that under Hildago v. Dupuy, supra, a solidary obligation between the insured and its insurer exists as a result of an insurance contract even though it contain a “no action” clause. However, we point out that in Hidalgo it was also dearly recognized that an obligation, although solidary, could be conditioned on the happening of some contingency (LSA-C.C. Art. 2092) and that if so conditioned, as in the case of an insurance contract containing a “no action” clause, absent the application of LSA-R.S. 22:655, the clause must be given effect.

In speaking to the effect of a “no action” clause in a policy of liability insurance the following is found in 44 American Jurisprudence 2nd, Sec. 1585:

“As definitive of the rights and liabilities created thereunder, liability policies frequently contain a clause commonly known as a ‘no action’ clause, the purpose of which, generally speaking, is to withhold any liability on the part of the insurer until the happening of a certain contingency. The form of ‘no action’ clause now in common use provides that no action shall be brought against the insurer until after the determination of the liability of the insured by a final judgment or by an agreement entered into between the insurer, the insured, and the claimant. Where a liability policy contains this type of clause, the courts in numerous cases have denied to the injured person the right to maintain an action against the insurer, either severally or jointly with the insured, before the recovery of a judgment against the insured, or a determination of the liability of the insured by an agreement between the insurer, the insured, and the injured person. This rule has been applied even in cases where no judgment could be obtained against the insured, as where by reason of his absence from the jurisdiction he could not be served with process, or where by reason of being a governmental agency or the like, it could not be held legally liable to the injured person.”

In the instant matter it has been admitted that Hartford did issue a policy of liability insurance to Craig & Waters. The issuance of this policy of insurance created a solidary obligation between Hartford and . Craig & Waters, however the enforcement of Hartford’s obligation may be conditioned upon the insured’s obligation to pay being finally determined by judgment or written agreement entered into between the insurer, the insured, and the claimant, a condition which would be viable and enforceable under the circumstances of this case. We presume that the policy does contain such a clause for otherwise plaintiffs (The Mors-es) would have a right of direct action against Hartford even though the Direct Action Statute be inapplicable. The policy of insurance issued by Hartford to Craig & Waters not being part of the record we are unable to determine whether State Farm has a right of action to demand contribution.

For the foregoing reasons the judgment of the District Court sustaining the supplied exception of no right of action is reversed and this matter is remanded to that court for the introduction in evidence of the policy of insurance issued by Hartford to Craig & Waters with directions that the exception be reconsidered in light of this additional evidence and consistent with the views herein expressed. All costs of thiá appeal to be borne by Hartford, third party defendant, costs of the trial court to await a final determination of this matter.

Reversed and remanded.

      . In Morse we held that since Hartford was qualified to do business in Louisiana such constituted sufficient “minimum contact” to confer jurisdiction on Louisiana Courts over it.


author: CULPEPPER, Judge.

text:
    Kenneth B. COBB, Plaintiff and Appellant, v. Frances COBB, Defendant and Appellee.
    No. 5336.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Edwin Dunahoe, Natchitoches, for defendant and appellant.
    Watson, Murchison, Crews & Arthur, by Daniel T. Murchison, Natchitoches, for plaintiff and appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   CULPEPPER, Judge.

The plaintiff-husband appeals that protion of a judgment of divorce which orders him to pay to the defendant-wife the sum of $350 per month as child support.

The record shows that the parties were divorced on September 11, 1975. The judgment grants to the plaintiff, Kenneth B. Cobb, the custody of their oldest daughter, who is 16 years of age. The mother received the custody of the other three children whose ages are respectively 15 years, 9 years and 6 years. The father was ordered to pay to the mother the sum of $350 per month for the support of the three children in the mother’s custody.

The evidence shows that the father is employed by the United States Forest Service and has a net, take-home pay of $417 per month. At the time of the trial, the mother was employed as a legal secretary earning a net wage of $340 per month, but that employment was to terminate one week after the trial. The mother testified she had applied for other employment but as yet had no commitments.

To prove her need for child support, the mother filed an itemized statement of her living expenses which total $692 per month. The plaintiff-husband filed an itemized statement showing his monthly living expenses, including an item of $400 for child support, totals $991.02.

As regards the ability of the plaintiff-father to pay child support, there is no evidence to show that he has any income other than the $417 per month. He owns no income-producing property, nor does he own any property which he can sell to obtain funds with which to comply with the court’s decree. Thus, insofar as the evidence shows, the plaintiff-father will have only $67 per month left for the support of himself and his 16-year old daughter, if he is forced to pay $350 per month for child support to his wife.

The defendant-wife argues that despite Mr. Cobb explained that although he had actually is living “high on the hog”, since he drives a 1974 Ford automobile, lives in a fine apartment, purchased new furniture' for his apartment, and maintains a riding horse and trailer.

Mr. Cobb explained that although he had been living fairly well while he was operating a service station in addition to his job with the Forest Service, the service station had failed. Cobb testified that he had been borrowing money from his father for living expenses, and that his father had paid for the automobile. But Cobb testified that he could not continue to “live off” of his parents.

There is no dispute as to the law. Both parents have the duty to support and maintain their minor children. We recognize the dilemma of the trial judge in this situation where the father simply does not have sufficient income or means to support his four daughters. However, we think the case must be decided on the basis of the evidence which is in the record and not on speculation that the father has other income or other property or that he will continue to receive additional funds from his parents. If we are to indulge in speculation, it is equally as possible that Mrs. Cobb will be able to find employment enabling her to bear at least a portion of her duty to support these children.

Based on the evidence in the record, the father’s income is only $417 per month. If he has to pay $350 per month child support to the wife, this will leave only $67 per month for the support and maintenance of himself and his oldest daughter. This is obviously impossible.

Under the circumstances, we think the judgment appealed must be amended so as to reduce the child support by the husband from the sum of $350 per month to the sum of $200 per month.

For the reasons assigned, the judgment appealed is amended so as to reduce the amount of child support, which the plaintiff, Kenneth B. Cobb, has been ordered to pay, from the sum of $350 per month to the sum of $200 per month. Otherwise, the judgment appealed is affirmed. The costs of this appeal are assessed equally against the plaintiff and the defendant.

Affirmed, as amended.


author: BARNETTE, Judge.

text:
    Samuel G. HENSON v. Porfirio GONZALEZ.
    No. 10568.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.

      Donald L. Beckner, Gill, Lindsay, Seago & Beckner, Baton Rouge, for defendant-appellant.
    Bruce K. Turner, Baton Rouge, for plaintiff-appellee.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   BARNETTE, Judge.

This is an appeal from a judgment rendered in the City Court of Baton Rouge for $600.00 plus legal interest and costs for the failure of the defendant-appellant to pay for three jewelry display cases. The defendant alleges that his refusal to pay is justified in that the showcases were poorly constructed and were unfit and unsafe for the installation of the glass front and top. In rendering judgment for the plaintiff, it was the trial court’s finding that the plaintiff substantially complied with the contract to build the type of showcases requested.

The contract between the parties is completely oral. The record reflects that on November 7, 1973, defendant-appellant, Porfirio Gonzalez, a jeweler, approached the plaintiff-appellee, Samuel G. Henson, to build the three above mentioned cases. Henson, a cabinet maker by trade, had no prior experience with display cases. However, he saw no problem with construction and agreed to build the cases for the undisputed amount of $200 each.

During the initial negotiations, a sketch of a counter design taken from a magazine by Gonzalez was shown to Henson with verbal instructions that he wanted “ . . .a showcase built like this.” It was also agreed initially that Gonzalez would arrange for the glass to be put on after the cases were delivered.

The magazine sketch is labeled as follows :

“Sit Down Type Showcase”
“Plastic laminate covered or wood veneer on closed base or on tubular steel legs with storage drawers under in back and display drawers inside case.”

To the left there is a profile view of the side that is cut away to show the general method of construction. This drawing is labeled with basic exterior width and height measurements in inches. Just to the right there is a three dimensional drawing of the showcase- as it would look when completed. It is clear from the drawing that the case is of typical rectangular construction with a small overhang extending about six inches to the front or customer side. There is a glass counter top and a vertical piece of glass full length across the front and extending down about six inches to cover the front face of the overhang.

One of plaintiff’s allegations is that he “ . . . built the jewelry cases in accordance with the plans submitted by the defendant . . .” and thus being, for this reason, in compliance with their contract. An examination of the sketch entered into evidence by the plaintiff will reveal that it is at most a guide to construction. By no stretch of the definition could it be considered a plan or blueprint. Only a few general external dimensions are given. There are no details of the construction shown, no methods of joining the various pieces where they come together, and no specifications for fasteners, such as nails, screws, dowels, clips, glue, etc. The cutaway profile view is only of one side, and it is vague and lacks detail. There is neither a requirement for the type of material to be used in construction nor is a thickness or grade of quality specified in the sketch. The construction of a showcase using the drawings and specifications in the exhibited sketch would require the craftsman to significantly enlarge upon the detail of design using his own skill and improvisation, and it is the opinion of this court that the sketch was meant for illustrative purposes only.

Since the trial court found that there was substantial compliance on the part of the plaintiff and rendered judgment accordingly, it must be assumed that it was the opinion of the trial court that this was a construction contract rather than a contract of sale. It is our opinion that the trial court was correct in this respect and that the contract between Gonzalez and Henson is a building contract within the meaning of Article 2756 of the Civil Code. That article is found under the section headed “Of Constructing Buildings According to Plots, and Other Works by the Job, and of Furnishing Materials” reads as follows:

“Building by plot and work by job, definitions”
“To build by a plot, or to work by the job, is to undertake a building or a work for a certain stipulated price.”

The above section and article are in Title IX of the Code entitled “Of Lease.” Building or Construction contracts involve primarily the furnishing of labor and the contractor’s skill in the performance of the job, rather than the mere sale of materials. Papa v. Louisiana Metal Awning Company, 131 So.2d 114 (La.App. 2d Cir. 1961); Mangin v. Jorgens, 24 So. 2d 384 (La.App.Orl.1946).

In the instant case, the contract involved the hiring or “letting out” of the labor and skill of the plaintiff, a craftsman, in the construction of a work for a certain stipulated price, rather than the sale of an existing thing. See also Hermeling v. Whitmore, 140 So.2d 257 (La.App. 1st Cir. 1961). In Hermeling, a contractor purchased a lot and using his own plans constructed a house as a speculation. It was completed and then put on the market. The court distinguished the facts from the earlier case of Matthews v. Rudy, 4 La. App. 226 (1926), that was factually similar except that there was an agreement made with the prospective purchaser for an agreed price prior to the construction of the house. The court in Hermeling declared that “under these [Hermeling] facts we find that the building was not ‘undertaken to make by the job’ ” and that “ . . . the builder is treated as a vendor . . ..” Thus, in Hermeling, although of necessity the house had to be constructed, it was a sale of a finished house as it sat on the lot. The house was already in existence at the time negotiations were entered into.

It is not the purpose of this opinion to determine the cut off point in the negotiation of a contract which distinguishes the contract for construction from one of sale, that is, whether the contract is negotiated before or during the construction process. It is clear from our jurisprudence and the pertinent articles of the Civil Code, supra, that where, as in this case, negotiations are completed prior to the commencement of construction, that the obligation is governed by the articles on building contracts rather than sales.

The defendant has argued in Papa and Mangin, supra, and in Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961), that the determinative factor in finding a construction contract rather than a sale is the installation of the product (patio cover, floor furnaces and air conditioner, respectively) on the premises as a necessary antecedent to use of the object. This argument is without merit. The codal articles governing building contracts contemplate a letting out of services. These.articles do not condition themselves on a requirement of installation. In many cases, including those cited by the defendant, the contract calls for the installation of some object built into or attached to a building or other structure. Installation, however, is not an essential condition to a contract for construction, to distinguish it from one of sale. We therefore hold that the codal articles applicable to the issues in this case are those relative to building contracts or more particularly those relating to the letting out of services,' rather than those relative to sales.

It is necessary to make this distinction to determine the defenses and remedies available to the defendant and if he has met the burden of proof which those defenses require.

In building or construction contracts, substantial performance is the standard rule for determining if the contractor is entitled to recover the contract price. Airco Refrigeration Service, Inc. v. Fink, supra, and citations listed therein; Neel v. O’Quinn, 313 So.2d 286 (La.App. 3d Cir. 1975), writ refused 319 So.2d 440 (La.1975); Jim Walter Corporation v. Laperouse, 196 So.2d 539 (La.App. 3d Cir. 1967). Aireo further stated that it is a question of fact whether or not there has been substantial performance so as to permit recovery on the contract. Since this is a question of fact, the court on appeal is bound by the directive of the manifest error rule.

The Supreme Court in Aireo listed several factors to be considered in determining whether there has been substantial performance.

“Among the factors to be considered are the extent of the defect or nonperformance, the degree to which the. purpose of the contract is defeated, the ease of correction, and the use or benefit to the defendant of the work performed.” 134 So.2d at p. 882.

We cannot say that the trial court was manifestly wrong in- its finding of substantial performance by the plaintiff contractor.

Once substantial performance has been proven by the plaintiff, he is entitled to recover the contract price less whatever damages the owner may prove attributable to the breach. Aireo, supra, and citations listed therein, Cortiza v. Rosenblat, 291 So.2d 425 (La.App. 4th Cir. 1974). Subsequent cases have held that:

“An owner seeking to recover from the contractor has the burden of proving both the existence and nature of the defects, that the defects are due to faulty materials or workmanship and the cost of repairing the defects. LSA-C.C. Arts. 2762 and 2769. See Rathe v. Maher, 184 So.2d 256 (La.App. 1st Cir. 1966) writ refused 249 La. 201, 186 So.2d 159 (1966).”

Nichols Ford Company, Inc. v. Hughes, 292 So.2d 345 (La.App. 2d Cir. 1974).

The defendant has alleged three defects in the jewelry cases as they were delivered: (1) that the cases are “weak all over” and unsafe for the installation of glass, (2) that the cases were poorly made, and (3) that the cases were not constructed properly to facilitate the installation of glass without modification.

The defendant has failed to establish allegations numbers one and two above. One of the showcases was introduced into evidence and examined by the trial court judge. The court did not comment on its observation nor is the showcase or any other evidence in the record before us on appeal that would tend to establish that that the cases were unsafe or that they were constructed in an unworkmanlike manner.

However, the record is replete with testimony and it is abundantly clear that the showcases as made would not accommodate the glass counter top or the glass front. There is no question that the agreement between Henson and Gonzalez required that Gonzalez was to arrange to have the glass put on. It is implicit from this, and also the illustrative drawing, that Henson knew that the showcases would eventually have glass fitted to them in some manner. When completed, however, the installation of the glass presented some problems which might have been avoided by some modification of the design.

The defendant under Aireo and Cortiza, supra, upon proof could deduct this amount from the original contract price, upon proof of the cost of the modification or correction necessary to enable the glass to be installed properly. However, he has failed to allege or prove any dollar amount for the cost of such modification. The most desirable evidence would be a firm competitive bid for the necessary remedial work. Rathe v. Maher, 184 So.2d 256 (La.App. 1st Cir. 1966), writ refused 249 La. 201, 186 So.2d 159 (1966). Lacking this, an estimate by an expert witness at trial based on firm computation of the work undertaken would suffice in establishing the cost.

There is testimony from a witness from each side qualified as an expert in glass installation. Of the two experts, the witness offered by Gonzalez speculated on a remedial cost figure. He testified that for an estimated $150 to $200 he could install a minimum of quarter inch glass in a professional manner. This is not a certain estimate, nor is it broken down to itemize the cost of remedial work, as distinguished from the cost of the glass and the glaziers labor, which had been contemplated as an expense to be borne by the defendant, Gonzalez. The defendant has failed to discharge this essential element of proof and no consideration can be given to a reduction in the contract price.

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

Affirmed.

      . LSA-C.O. articles 2673, 2745 and 2756, et seq. See also 7 La.L.Rev. 564.

      . Where there is no substantial compliance, the contractor’s sole recovery -would be under quantum meruit. See Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So. 2d 880 (1961).

      . These allegations constitute an affirmative defense. The defendant’s answer contained only a blanket denial of the plaintiff’s claim and it did not set this matter forth as an affirmative defense as required by C.C.P. art. 1005. However, these allegations in the testimony were not objected to at trial, and therefore they have the effect of amending the pleadings by virtue of C.C.P. art. 1154.


author: BEER, Judge. PER CURIAM. BEER, Judge.

text:
    Arby J. VINCENT, Jr. v. CITY OF NEW ORLEANS.
    No. 7042.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Limited Rehearing Granted, Dec. 9, 1975.
    Original Opinion Affirmed On Limited Rehearing, Feb. 6, 1976.
    Writ Refused April 9, 1976.

      Dodd, Barker, Boudreaux, Lamy & Gardner, Harold J. Lamy, New Orleans, for plaintiff-appellee.
    Blake G. Arata, Philip S. Brooks, City Attys., Jackson P. McNeely, Thomas P. Anzelmo, Sr., Asst. City Attys., New Orleans, for defendants-appellants.
    Before STOULIG, BOUTALL and BEER, JJ.
   BEER, Judge.

Plaintiff-appellee, Arby J. Vincent, claims workmen’s compensation benefits for permanent and total disability alleging that his duties as a firefighter caused, aggravated or accelerated the cardio-vascular disease and angina pectoris which now prevents him from performing his duties. His unrefuted testimony indicates that he was originally employed by the New Orleans Fire Department on March 2, 1958 and was assigned to Engine House No. 9 located in the French Quarter. He remained at that assignment for approximately seven and one half years before being assigned to less arduous duties at New Orleans International Airport. His testimony and that of Lester F. Curreau, a co-employee, indicates that Engine House No. 9 was an extremely busy station with frequent alarms. Both men testified that they were usually called to at least one fire per day and that they were often involved in the extinguishing of mattress fires which, by their nature, subjected the firefighters to the probability of some smoke inhalation. These instances sometimes required the administration of oxygen to the affected firefighter. The duties associated with assignment to Engine House No. 9 were described by plaintiff as extremely physical and strenuous.

Apparently the first possible sign of any heart ailment suffered by plaintiff occurred about 1965, approximately seven years after the commencement of Vincent’s service as a firefighter. This was originally diagnosed as chest congestion. The first diagnosis of angina pectoris was made in December, 1972.

The matter before us primarily concerns the extent of the protection afforded by Act 337 of 1968 before its amendment by Act 30 of 1975. It provides:

“Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the State of Louisiana shall be classified as a disease or infirmity connected with the employment. The employee affected, or his survivors, shall be entitled to all rights and benefits to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman i,s on duty at the time he is stricken with the disease or infirmity. Such disease or infirmity shall be presumed, prima facie, to have developed during the employment whenever same is manifested at any time after the first five years of employment.”

In construing this provision, the trial court found that a fireman who experiences disabling heart disease after five years service as a firefighter, was, on these findings alone, entitled to be compensated under the Act. The trial court expressed disagreement with the interpretation placed upon the Act in Bates v. Bituminous Gas Corp., 266 So.2d 556 (La.App. 3rd Cir. 1972).

Act 337 of 1968 classifies any heart or lung disease that develops five years subsequent to commencement of employment as an occupational disease and expressly provides for presumption of development of the disease during employment. As noted in Bates, supra, this Act is consistent with a trend to provide occupational disease coverage to firemen for respiratory and heart diseases. We conclude, nevertheless, that the legislative intent was not to extend the protection created by the Act to the degree reached by the trial court.

We take note of those cases interpreting the occupational disease statute which provide that a workman suing under R.S. 23:1031.1 does not have to prove an accident, but only that the disease he suffers resulted from the nature of the work performed. LaCoste v. J. Ray McDermott, 250 La. 43, 193 So.2d 779 (1967); Rawls v. Dixie Drilling Co., 161 So.2d 417 (La.App. 2nd Cir. 1964), writs refused, 246 La. 78, 163 So.2d 357.

However, when it enacted Act 337 of 1968, the legislature apparently chose not to track the pertinent language of R.S. 23:0131.1, but instead stated that heart disease “shall be classified as a disease or infirmity connected with the employment.” We conclude, therefore, that the jurisprudence interpreting R.S. 23:1031.1 is not directly applicable.

By providing that the “disease is presumed prima facie, to have developed during the employment,” the legislature did, we believe, effectively shift the burden of proof to the employer who became obliged to prove the lack of causation between the disease and the employment. This shifting of the burden of proof obviously imposes an onerous task upon the employer, but this was, we believe, intended by the legislature. Our reading of the statute convinces us that a rebuttable presumption exists that the nature of the work caused the disease. Accordingly, the employer bears the difficult burden of proving otherwise and unless affirmative proof is adduced to prove a lack of causation which is, admittedly, very difficult, then the presumption requires that the disabled fireman be entitled to coverage under the Act.

Dr. Jack P. Ruli testified that the work performed by plaintiff could have been an aggravating factor with respect to the heart disease that Vincent now suffers. He stated that there is a direct correlation between the physical and emotional stress of plaintiff’s job and his acknowledged disability. Dr. Ruli was the only physician called to testify in this matter. The City of New Orleans did not produce any evidence to refute the conclusions of Dr. Ruli. His testimony is clear and undisputed.

We conclude that defendant-appellant has failed to overcome the presumption of causal relationship between Vincent’s job and the heart disease he now suffers from. Appellant’s contention that Vincent’s concurrent employment in the often tense real estate business does not impress us as sufficient evidence to overcome the presumption.

Although the trial court’s interpretation is somewhat in conflict with our own, we conclude that the language of the Act does not, on the facts of this case, grant the City of New Orleans the protection extended to the employer in Bates, supra.

The trial judge was correct in overruling defendant-appellant’s plea of prescription under R.S. 23:1031.1(d). The City of New Orleans commenced payment of compensation benefits to plaintiff-appellee from the time he suffered a heart attack until his retirement on December 9, 1973. By filing suit for benefits on April 2, 1974, plaintiff-appellee was within the time allocated for the assertion of a claim for a work related injury.

Additionally, we believe the factual circumstances presented on appeal are governed by the dictates of the Supreme Court in LaCoste, supra, wherein the court declared :

“It is important to note, in construing the statute, that the four month period of peremption operates as a bar only to claims for ‘disablement.’ An employee who is not disabled, although he knows he has contracted an occupational disease, is not required under a proper interpretation of the peremption provision to file his claim within four months of the date he was aware he contracted the disease. On the contrary, it is only when he becomes disabled that the disease manifests itself and the four month period runs from that time because, unless he is disabled, 'he has no cause of action for recovery of compensation. See Carlino v. United States Fidelity & Guaranty Company, 196 La. 400, 199 So. 228. If the peremptive provision is construed otherwise it leads to an absurdity as no claim for workmen’s compensation is cognizable (save in the two cases to which we have hereinabove referred) unless and until the workman is disabled.”

Vincent’s disability effectively commenced on the date of his retirement. Under LaCoste, supra, he timely prosecuted his demand for benefits.

The judgment is affirmed at appellant’s cost.

Affirmed.

PER CURIAM.

ON APPLICATION FOR REHEARING

Defendant-appellant, seeking a rehearing, urges various grounds for the unconstitutionality and/or inapplicability of LSA-R.S. 33:2581 which statute had formed the basis for this court’s ruling in favor of plaintiff-appellee, Arby J. Vincent, Jr.

Defendant-appellant first contends that the statute applies only to employees of the “Classified Fire Service” as provided in Article XIV, Section 15.1 of the Constitution of 1921 and Article 10, Section 16 through 20 of the Constitution of 1974 although New Orleans firemen are covered by “City Civil Service” established by Article XIV, Section 15 of the Constitution of 1921 and Article 10, Section 1(B) of the Constitution of 1974. Thus, the issue of unconstitutionality of the statute sounding in a denial of equal protection is clearly raised. The statute indicates specific legislative determination of a direct correlation between heart and lung diseases and employment in the “Classified Fire Service.” Under the argument advanced by applicant, firefighting by firemen in cities over a designated population would be statutorily protected against heart and lung diseases on a different basis than those who fight fires in cities under a designated population.

Appellant’s second contention is concerned with the distinction between the terms “development” as used in the statutes and “causation” as adopted by this court in its original opinion. They contend that our interpretation of “development” appears to include “causation” thus, creating a virtually irrebuttable presumption which effectively takes the scope of the act outside the narrower limitation provided for in the title of same under “development.”

Applicant sets forth several additional contentions in support of its application which lack merit and are rejected. Therefore, our consideration is narrowed to the two contentions noted in the preceding paragraphs; specifically, the issue of “Classified Fire Service” versus “City Civil Service” and the issue of “development” versus “causation.”

We believe that these two issues merit reconsideration and, accordingly, grant a rehearing limited to those issues.

Counsel for all parties shall have until December 20, 1975 to file supplemental-briefs and the matter will, thereafter, either be set down for argument (if the court should determine that same is necessary) or decided on the present record, original briefs and those submitted in response to this ruling.

Limited rehearing granted.

ON LIMITED REHEARING GRANTED

Original judgment affirmed.

BEER, Judge.

We granted a limited rehearing on December 9, 1975 following our original affirmation on November 11, 1975. We now affirm our original judgment.

Appellant’s contentions with respect to the issue of the constitutionality and/or inapplicability of LSA-R.S. 33:2581 has had our close scrutiny and we find those contentions to be without merit.

We adhere to our original determination regarding the failure of the defendant-appellant to overcome the rebuttable presumption of causal relationship between Vincent’s employment as a firefighter and the heart disease which has disabled him.

Our reconsideration of this facet of the case was, essentially, prompted by our reaction to the weight of the burden that is cast upon the City by the force of the presumption in Vincent’s favor. Though it is termed rebuttable it is, in fact, almost impossible to rebut. The City is placed in the difficult position of being obliged to prove a negative — i. e., Vincent’s heart disability could not have resulted from his service as a firefighter.

When we considered this burden coupled with the City’s obvious pension obligations to Vincent because of his heart condition we became concerned that we might have misconstrued the applicable provisions of the statute since the overall effect placed the City in such a totally unsatisfactory position. But, upon painstaking re-examination, we must conclude that the statute cannot fairly be construed in any way other than as adhered to in our original opinion.

Affirmed.

      . The enactment of Act 30 of 1975 renders moot the effect of our decision in this matter as to those cases filed after its effective date by specifically providing that manifestation of a heart or lung disease after five years employment is presumed not only to have developed during employment, but also is presumed to have been caused by or to have resulted from the nature of the work performed.

      . This is understandable since the statutory burden of proof imposed on the City in this instance essentially required it to prove a negative—an almost impossible evidentiary task.


author: PETERS, Judge Ad Hoc.

text:
    Camilla Doiron DOHERTY, Plaintiff-Appellee, v. Richard K. MERTENS, Defendant-Appellant.
    No. 5316.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.

      Ford & Nugent, by Howard N. Nugent, Jr., Alexandria, for defendant-appellant.
    Voltz & Ware, by Gus Voltz, Jr., Alexandria, for plaintiff-appellee.
    Before HOOD, GUIDRY, and PETERS, JJ.
   PETERS, Judge Ad Hoc.

This is an appeal from a judgment fixing visitation rights. Plaintiff, Mrs. Doh-erty, and defendant, Mr. Mertens, at one time were married to each other. They have a four year old son, Richard K. Mer-tens, Jr. Plaintiff and defendant were divorced in June, 1974, and defendant subsequently was awarded custody of the minor child. Because Mr. Mertens refused to allow Mrs. Doherty to visit the child, Mrs. Doherty filed suit to have her visitation rights fixed. After hearing, the trial court awarded Mrs. Doherty the right to visit the child two weekends per month from 9:00 A. M. Saturday to 6:00 P. M. Sunday and on alternate major holidays. In addition, Mrs. Doherty was given the right to have the child for two weeks during the year. All visitation was restricted to Rap-ides Parish. Defendant has appealed from this judgment. We find the trial judge was within the bounds of his discretion in his-award of visitation rights and therefore affirm the lower court judgment.

On the date this appeal was argued in this court, defendant filed a motion to remand for additional testimony. It was alleged in this motion that Mrs. Doherty had taken the child to an R-rated movie where he was subjected to scenes of crime, vulgarity and violence. Plaintiff wished to urge this as an additional ground for denying visitation and wanted additional evidence to be taken by the trial court on this matter. Plaintiff allegedly took the child to the R-rated movie on December 30, 1975, some four months after the trial court judgment was rendered in this case. Obviously, Mrs. Doherty’s actions of December 30, 1975, cannot be considered as a basis for denying visitation in the present suit as the suit was tried and judgment was rendered before the alleged incident. The motion to remand is therefore denied and we will restrict our consideration to the record as it now stands.

Defendant argues the trial court's award of visitation constituted an abuse of discretion. He argues first that the award was an abuse of discretion in light of the medical evidence. Dr. Joseph Villard, an ear, nose and throat specialist who had treated the child for rhinosinusitis, testified on behalf of defendant. Dr. Villard stated the child’s allergic condition would be aggravated if he were to visit his mother regularly at her home in Baton Rouge because the pollen count in Baton Rouge is very high. Dr. Villard said he would recommend the child be left in one home environment with that environment carefully controlled to reduce dust and mold. However, on cross-examination Dr. Villard said it would be permissible for the child to spend a night or two in a different home as often as once a week. In view of this testimony, it is clear the trial judge did not abuse his discretion in making the award. The visitation rights he awarded were carefully limited in accordance with the recommendations made by Dr. Villard.

Counsel for Mr. Mertens suggested to this court that the visits should be restricted to the home of Mr. Mertens’ parents, where the child now lives. This would eliminate the need for forcing any change of environment on the child. The evidence adduced in the trial court shows clearly that Mr. Mertens’ parents would consider Mrs. Doherty unwelcome in their home. It would therefore be unwise to restrict visitation to that home.

Defendant argues as an additional basis for reversal that the trial court judgment gives Mrs. Doherty the right to visitation for 64 days out of the year and this amounts to prohibited divided custody. In support of this contention, defendant cites several cases, particularly Ogden v. Ogden (La.App. 1st Cir., 1969), 220 So.2d 241, holding that periods of visitation similar to those awarded to Mrs. Doherty constituted divided custody. In Ogden, the children, who lived in Lafayette with their mother, visited their father in Baton Rouge on the first and third weekends of every month. The evidence, which included the deposition of the children’s pediatrician, clearly showed the frequency of visits was conducive to an unstable home atmosphere and was contributing to emotional problems in the children. In the instant case, there is little evidence that the frequency of visits awarded by the trial court will lead to any loss of authority of defendant over the child or any emotional instability; the only evidence on this issue is the assertion by defendant that plaintiff had attempted to turn the child away from him, which she denied. The trial judge clearly committed no manifest error in finding the evidence insufficient to justify curtailment of visitation. Visitation rights that constitute prohibited divided custody in one instance might not constitute such in another; the particular facts in each case must be considered. Vinet v. Vinet (La.App. 4th Cir., 1966), 184 So.2d 33. Considering the evidence presented in the instant case, we find the trial judge did not abuse his discretion in fixing Mrs. Doherty’s visitation rights.

All costs in this court and in the court below are to be paid by defendant-appellant.

Affirmed.


author: WATSON, Judge.

text:
    Linda H. THIBODEAUX, Plaintiff-Appellee, v. Leon Abby THIBODEAUX, Defendant-Appellant.
    No. 5292.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Harold L. Savoie, Lafayette, for defendant-appellant.
    Landry, Poteet & Landry, by Walter J. Landry, Lafayette for plaintiff-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   WATSON, Judge.

On our own motion we note that this appeal was not filed timely. Final judgment was signed granting divorce, custody and alimony on June 23, 1975. Since there was personal service, there was no requirement for notice of judgment. LSA-C.C.P. art. 1913. The delay for applying for a new trial expired seven days thereafter, excluding legal holidays. LSA-C.C.P. art. 1974. The motion for appeal was made and granted on August 8, 1975, long after the 30-day period for an appeal in a case involving a divorce, custody or alimony had expired. LSA-C.C.P. arts. 3942 and 3943.

Therefore, the appeal is dismissed as not being filed timely.

Although the appeal is dismissed, we direct the attention of counsel and the trial court to the provisions of LSA-C.C.P. art. 1703.

Costs, insofar as they are taxable in a pauper case, are assessed against appellant, Leon A. Thibodeaux.

Dismissed.


author: ROBERTS, Justice.

text:
    DEPARTMENT OF REVENUE of the State of Florida et al., Appellants, v. Harriet L. GOLDER, as Executrix of the Estate of Max Lavin, Deceased, Appellee.
    No. 47057.
    Supreme Court of Florida.
    Jan. 7, 1976.
    Robert L. Shevin, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., for appellants.
    Stuart W. Patton and Daniel G. La-Porte, Patton, Kanner, Nadeau, Segal, Zeller & LaPorte, Miami, for appellee.
    Robert E. Muraro and Henry H. Raatta-ma, Jr., Mershon, Sawyer, Johnston, Dun-wody & Cole, Miami, for The Florida Bar (Tax Section), amicus curiae.
   ROBERTS, Justice.

This cause is before us on direct appeal from a final judgment of the Circuit Court in and for Dade County directly passing upon the constitutionality of Section 198.-02, Florida Statutes. We have jurisdiction pursuant to Article V, Section 3(b)(1), Constitution of Florida.

On December 29, 1971, Max Lavin died a resident of Dade County, Florida. Ap-pellee, petitioner-below, Harriet Golder, is the duly qualified and acting executrix of the estate of Max Lavin. At the time of his death, Max Lavin owned certain properties (realty) situated in the State of Pennsylvania and other property (realty) situated in the State of New Jersey, in addition to the bulk of his estate with a situs in Florida. As finally determined for federal estate tax purposes, the gross estate was valued at $1,016,173.97, with the Pennsylvania and New Jersey properties being valued at $200,000.00 and $7,500.00 respectively. Petitioner paid an inheritance tax to the State of Pennsylvania in the amount of $9,088.15, paid an inheritance tax to the State of New Jersey in the amount of $527.60, and paid Florida Estate Taxes in the total amount of $10,301.08. The total federal credit allowable to this estate for death taxes actually paid to the several states is $19,692.20. The total of the state taxation of this estate by Pennsylvania, New Jersey, and Florida exceeds the credit allowable upon the federal taxes by $206.-43. By letter to the Department of Revenue, appellee requested a refund of this amount, pursuant to Section 198.29, Florida Statutes. By return letter, the Department of Revenue denied that any refund was due and asserted that a further tax was due in the amount of $5,370.03, together with interest at the rate of 6% per annum from September 29, 1972, until date of payment.

Section 198.02, Florida Statutes, enacted by the Legislature of Florida in 1971 (Chapter 71-202, Laws of Florida) specifically provides:

“Tax upon estates of resident decedents. — A tax is imposed upon the transfer of the estate of every person who, at the time of death, was a resident of this state, the amount of which shall be a sum equal to the amount by which the credit allowable under the applicable federal revenue act for estate, inheritance, legacy and succession taxes actually paid to the several states shall exceed the lesser of:
(1) The aggregate amount of all constitutionally valid estate, inheritance, legacy and succession taxes actually paid to the several states of the United States (other than this state) in respect of any property owned by such decedent or subject to such taxes as a part of or in connection with his estate, or:
(2) An amount equal to such proportion of such allowable credit as the value of properties taxable by other states bears to the value of the entire gross estate wherever situate.
All values shall be as finally determined for federal estate tax purposes.”

In essence, Section 198.02, Florida Statutes, provides that the estates of resident decedents shall be taxed in an amount equal to the greater of (1) the total federal credit less the amounts paid to the other states or (2) a proportionate part of the federal credit determined by the ratio of the estate’s property with a taxable situs in Florida to the total gross estate for federal tax purposes.

The appellant, Department of Revenue, contended that the total tax is the proportionate part of the federal credit. Appel-lee, however, urged that the maximum tax that can be levied under the constitution is the amount of the federal credit less the amounts paid to the other states.

Confronted with the question of whether or not the Florida Estate Tax Law can result in the levying upon an estate of a resident decedent of a tax which will make the tax burden upon that estate greater than it would otherwise be, the trial court held that under Section 5, Article VII, Florida Constitution, the Legislature is without power to levy or authorize the levy of an estate tax which has the effect of increasing the tax burden upon the estate of a resident of Florida, and held that to the extent that Section 198.02, Florida Statutes, purports to do so, it is illegal, invalid and unenforceable.

Specifically, the trial court opined:

“The Court’s task in reaching this determination has been alleviated to a great degree by the prior decision of the Florida Supreme Court on substantially the same issue. Green v. State ex rel Phipps, [Fla.] 166 So.2d 585 (1964). The decision in the Green case involved whether the Legislature had authorized such a levy under Section 198.02, Florida Statutes, as then in effect and whether, under the provisions of Section 11, Article IX of the 1885 Constitution of Florida, it could. The Supreme Court held that the Legislature had not and could not levy such a tax, in a decision that traced the history of the constitutional proscription and implementing legislation from its inception.
“Since the Green case, the Constitution of Florida was amended in 1968 with the subject matter of the previous Section 11, Article IX now being contained in Section 5, Article VII of the Florida Constitution. Thereafter, the Legislature in 1971 amended Section 198.02, Florida Statutes, to provide for a tax which could have the effect of increasing the tax burden on the estate of a resident of Florida. Defendants concede that this is exactly what the Supreme Court in the Green case held was unauthorized under the prior provisions of the Constitution of Florida.
“The precise question for this Court’s determination is therefore whether the proscription of the prior constitutional provision was carried forward in the new provision in 1968. Having reviewed the available contemporaneous commentary on the provision and in view of the Supreme Court’s subsequent actions and decisions, the Court is of the opinion that the substance of the prior prohibition was carried forward unchanged. See e. g. ‘Commentary’ by Talbot D’Alemberte, Florida Statutes Annotated; Dickenson [Dickinson] v. Maurer, 229 So.2d 917 [247] (Fla.1969) ; In re Advisory Opinion to Governor, 243 So.2d 573 (Fla.1971).

The case sub judice is controlled by this Court’s earlier decision in Green v. State ex rel. Phipps, supra, and, therefore, the learned trial judge was correct in his judgment awarding a peremptory writ of mandamus.

As applied to the particular facts of this case, Section 198.02 would have the effect of increasing the tax burden upon the estate of a resident of Florida, and accordingly, we find that Section 198.02, Florida Statutes, as applied to the specific facts of this case produces an unconstitutional result. Therefore, it is not necessary to pass on the constitutionality vel non of the statute.

The other matters and things presented have been considered and found to be without harmful error, and so the judgment of the trial court is affirmed.

It is so ordered.

ADKINS, C. J., and BOYD, OVER-TON, SUNDBERG and HATCHETT, JJ., concur.

      “2. The subsequent amendment of Section 5, Article VII in 1971 to authorize corporate income taxes did not alter the pertinent language of the estate tax prohibition other than to alter its reference to ‘natural persons who are residents or citizens of this State’ and therefore the Court finds has no bearing on the issue here involved.”


author: OVERTON, Justice.

text:
    Van Lee HOLLEY, Petitioner, v. Louie L. WAINWRIGHT, Director, Florida Division of Corrections, Respondent.
    No. 45644.
    Supreme Court of Florida.
    Nov. 19, 1975.
    Rehearing Denied Feb. 16, 1976.

      Van Lee Holley, in pro per.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for respondent.
   OVERTON, Justice.

By petition for writ of mandamus, which we treat as an original petition for habeas corpus, petitioner alleges that the respondent, Louie L. Wainwright, has improperly computed his Release date. The chronological events of petitioner’s sentences for separate criminal actions and parole revocations are as follows.

(1) A six-month to one-year sentence entered by the Circuit Court, Volusia County, Florida, on February 18, 1965, for the crime of escape. There is no former sentence to which this sentence may be consecutive.

(2) A ten-year sentence entered by the Criminal Court of Record, Duval County, Florida, on June 3, 1965, for the crime of robbery.

(3) A one-year sentence entered by the Criminal Court of Record, Duval County, Florida, on January 19, 1967, for the crime of breaking and entering with intent to commit a misdemeanor, consecutive to the aforementioned sentence for escape.

(4) Petitioner was paroled on April 29, 1969, from the aforementioned sentences he was serving.

(5) A three-year sentence entered by the Criminal Court of Record, Orange County, Florida, on October 26, 1970, for the crime of attempted robbery. This sentence is consecutive to the sentences imposed for prior offenses, pursuant to Section 921.16, Florida Statutes (1969), which was then applicable.

(6) Petitioner’s parole was revoked on November 19, 1970, which revocation stated :

“This revocation is to be effective upon expiration of the sentence which parolee is now serving in the Florida State Prison under number B-014087; namely, a sentence of three years in the State Prison by the Criminal Court for Orange County, Florida, on October 26, 1970.”

(7) A five-year sentence consecutive to the sentences then being served by petitioner entered by the Criminal Court of Record, Duval County, on December 22, 1971, for the crime of breaking and entering with intent to commit a felony.

Our opinions in Brumit v. Wainwright, 290 So.2d 39 (Fla.1974), and Benyard v. Wainwright, 322 So.2d 473 (Fla.1975), are controlling. The petitioner’s total time to be served should be recalculated, making the Orange County sentence consecutive to prior sentences for which parole was revoked. The five-year sentence referred to in Item (7) imposed on December 22, 1971, is consecutive and must be calculated at the expiration of both the Orange County sentence and the sentence pursuant to the revocation of parole.

Respondent is directed to comply with the recalculation of the petitioner’s sentences in accordance with this opinion, and the writ is hereby discharged.

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


author: ROBERTS, Justice. ENGLAND, Justice ALDERMAN, JAMES E., Circuit Judge

text:
    Frank Douglas THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 46416.
    Supreme Court of Florida.
    Dec. 3, 1975.
    Rehearing Denied Feb. 17, 1976.
    Gerald Kogan and Stephen J. Kogan, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Lance R. Stelzer, Asst. Atty. Gen., for appellee.
   ROBERTS, Justice.

Having been transferred by the District Court of Appeal, Third District, this cause is before us on direct appeal from an order of the Circuit Court in and for Dade County upholding the constitutionality of Section 800.02, Florida Statutes, thus vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution (1973).

Appellant was charged by indictment with the crimes of extortion, assault and battery, conspiracy to commit an unnatural and lascivious act and committing an unnatural and lascivious act. The trial court denied appellant’s motion to dismiss the indictment which was based on the ground that Section 800.02, Florida Statutes, is unconstitutional, thereby upholding the validity of said statute. He was found guilty of the crimes charged and was adjudicated guilty by the trial court and sentenced to a term of six months to three years in the state prison.

Appellant contends that his right to a fair and impartial trial was violated by closing remarks of the prosecuting attorney, that Section 800.02, Florida Statutes, is unconstitutionally vagué and indefinite, and that the acts for which he was convicted do not constitute a violation of Section 800.02, Florida Statutes, and, therefore, the conviction should be reversed. Having carefully read and studied the record and briefs and having heard argument, we find that appellant’s points on appeal are without merit.

Although appellant argues that numerous prejudicial and inflammatory remarks were made by the prosecutor in his closing argument, the defense objected to only two of these remarks. This Court stated in State v. Jones, 204 So.2d 515 (Fla.1967), relative to the necessity that there be a timely objection to the challenged remarks, as follows :

“It has been suggested that some courts today seem to be preoccupied primarily in carefully assuring that the criminal has all his rights while at the same time giving little concern to the victim. Upon the shoulders of our courts rests the obligation to recognize and maintain a middle ground which will secure to the defendant on trial the rights afforded him by law without sacrificing protection of society. As Mr.

Justice Cardozo explained in Snyder v. Commonwealth of Mass., 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674, 687:

“ ‘But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.’
“The Court now recants the statement of the exception upon which respondent relies and henceforth will review challenged argument of prosecutors only when an objection is timely made.” (emphasis supplied)

Cf. Smith v. State, 243 So.2d 602 (Fla.App.1971); Hall v. State, 203 So.2d 202 (Fla.App.1967).

As to those remarks to which appellant failed to object, this Court will not consider appellant’s objections. The two remarks which were objected to by defense counsel, to-wit:

“The entire department suffers from this man’s actions and every other person—
“MR. GERALD KOGAN: Objection, Your Honor. That’s improper argument to the jury.
“THE COURT: I’ll sustain the objection. Proceed on.
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“I suggest to you it’s too bad there’s not a crime in the book called inhumanity to fellow human beings-
“MR. GERALD KOGAN: Objection, Your Honor, it is improper argument again.
“THE COURT: Proceed on, again.
“MR. GERALD KOGAN: We also move for a mistrial based on the comments by Mr. Carhart.
“THE COURT: I’ll deny the motion for Mistrial.
“Proceed on.
“Ask the jury to disregard that.”

were not so harmful or fundamentally tainted so as to require a new trial. Wide latitude in the argument to a jury is permitted. This Court in Spencer v. State, 133 So.2d 729, at 731 (Fla.1961), explained :

“The only other point urged for reversal is the contention that the remarks of the Assistant State Attorneys during the closing arguments were of such an inflammatory nature as to influence the jury unduly to the prejudice of the appellant. We think no useful purpose would be served by analyzing in detail the comments of the prosecuting officers. The rule is that considerable latitude is allowed in arguments on the merits of the case. Logical inferences from the evidence are permissible. Public prosecutors are allowed to advance to the jury all legitimate arguments within the limits of their forensic talents in order to effectuate their enforcement of the criminal laws. Their discussion of the evidence, so long as they remain within the limits of the record, is not to be condemned merely because they appeal to the jury to ‘perform their public duty’ by bringing in a verdict of guilty. The prosecutors in the instant case remained within the bounds of the evidence. Washington v. State, 86 Fla. 533, 98 So. 605. In actuality, there is probably very little that the prosecutors themselves could have advanced which would have been any more damning of the conduct of this appellant than the gruesome evidence which was presented from the witness stand.” (emphasis supplied)

Further, we announced in Paramore v. State, 229 So.2d 855 (Fla.1969), that it will not be presumed that jurors are led astray to wrongful verdicts by impassioned eloquence and that, “It is well settled that the comments of counsel in the progress of a trial before a jury are controllable in the judicial discretion of the trial court, and an appellate court will not interfere with the exejcise of such discretion unless a clear abuse thereof has been made to appear. See 6 F.L.P., Criminal Law, § 538. When an improper statement is made by counsel before it is practicable for the Court to prevent its utterance, the Court should visit upon such counsel prompt and fitting rebuke so as to impress on the jury the gross impropriety of being influenced thereby.” The prosecutional remarks made sub judice, to which the defense objected, do not warrant reversal of appellant’s conviction. Cf. Falcon v. State, 226 So.2d 399 (Fla.1969); Sherman v. State, 255 So.2d 263 (Fla.1971); Grant v. State, 194 So.2d 612 (Fla.1967). The comments made sub judice were not so prejudicial so that no cautionary instruction or retraction could destroy their harmful effect. The trial judge sustained the objections to both comments and specifically asked the jury to disregard the second comment. He acted properly within his discretion in not declaring a mistrial.

Appellant next argues that the trial court erred in denying his motion to dismiss the indictment on the ground that Section 800.02, Florida Statutes, is unconstitutionally vague and indefinite because the language unnatural and lascivious is not sufficiently explicit as to define what conduct is prohibited. We adhere to recent decisions of this Court holding that the words “unnatural and lascivious” as used in Section 800.02, Florida Statutes, are not void for vagueness and that these words are of such a character that an ordinary citizen can easily determine what character or act is intended; and we are by no means persuaded that the position taken in these cases and the reasoning upon which it was based are no longer valid. Witherspoon v. State, 278 So.2d 611 (Fla.1973); State v. Fasano, 284 So.2d 683 (Fla.1973). Cf. Chesebrough v. State, 255 So.2d 675 (Fla.1971). See also: Murray v. State, 384 F.Supp. 574 (S.D.Fla.1974).

Further, we find that the act of forced oral copulation, sub judice constitutes an unnatural and lascivious act within the meaning of Section 800.02, Florida Statutes. We note that in Washington v. State, 302 So.2d 401 (Fla.1974), this Court cited with approval the following excerpt from the decision of the District Court of Appeal, First District, in Brinson v. State, 278 So.2d 317 (Fla.App.1973):

“ ‘In our view, the body and mind of a victim of a forcible sexual assault is no less outraged because the penetration by the assailant occurred in the anal orifice —as in the instant case — or in the oral orifice — as in the Parisi case [265 So.2d 699 (Fla.1972)] — rather than in the vaginal orifice. In either case, it is a gross invasion of the privacy of one’s body which cannot be tolerated by a civilized society.
“ ‘ . . . Accordingly, we hold that any forcible penetration by a man’s sexual organ into any bodily orifice of another against the latter’s will constitutes forcible carnal knowledge of the victim and upon conviction thereof is punishable under Section 794.01, Florida Statutes. F.S.A.’ ”

Relying on this Court’s decision in Franklin v. State, 257 So.2d 21 (Fla.1971), the District Court of Appeal, Second District, in Morris v. State, 261 So.2d 563 (Fla.App.1972), opined:

“At this point, however, we interpose that the supreme court in Franklin and Joyce, supra, considered that F.S. § 800.-02, F.S.A., which condemns as a misdemeanor any ‘unnatural and lascivious act with another person,’ is constitutional. It follows that that court must deem this statute, unlike § 800.01, supra, to be quite clear and certain, and it must further follow that it thinks it to be set forth in language which is relevant to today’s society.
“Furthermore, the court there held that an ‘unnatural and lascivious act with another person’ was, under the evidence in those cases, a lesser included offense within the ‘abominable and detestable crime against nature’ offense charged. Whereupon, the court reversed the judgments of guilty of the higher offenses and remanded the causes with instructions to enter judgments of guilty of the lesser offense and to impose sentence accordingly.
“We pursue the same course. A careful reading of the record discloses that not only did the evidence support a finding of guilty of the common law offense of copulation per anus, formerly thought condemned by the now voided F.S. § 800.01, F.S.A., but it is more than sufficient to support a finding of guilty to the unnatural and lascivious act now clearly and certainly condemned by F.S. § 800.02, F.S.A. Additionally, the defendant requested, and received a jury instruction of such lesser offense at trial.”

In summary, we find that the prosecu-torial closing remarks, objections to which were sustained by the trial court, do not warrant reversal of the convictions and a new trial, that Section 800.02, Florida Statutes, is constitutional, and that the acts committed by appellant fall within the language of Section 800.02, Florida Statutes.

Accordingly, the judgment of the trial court is affirmed.

It is so ordered.

ADKINS, C. J., and OVERTON, J., and MORPHONIOS and TENCH, Circuit Judges, concur.

ENGLAND, J., dissents with an opinion with which ALDERMAN, Circuit Judge, concurs.

ALDERMAN, Circuit Judge, concurs in part and dissents in part with an opinion.

ENGLAND, Justice

(dissenting).

I respectfully dissent from that portion of the majority opinion which holds Section 800.02 to be constitutional. The acts giving rise to appellant’s convictions took place while appellant was a member of the Miami police force. Testimony elicited at appellant’s trial showed that one Carol Sue Hall engaged in oral copulation with appellant and other police officer witnesses. The evidence was contradictory as to whether this activity was voluntary or was performed through defendant’s coercion of Miss Hall.

Section 800.02, Fla.Stat. provides:

“Whoever commits any unnatural and lascivious act with another' person shall be guilty of a misdemeanor of the second degree . . . .”

This Court recently held that the words “unnatural and lascivious”, as used in Section 800.02, were not void for vagueness. Witherspoon v. State, 278 So.2d 611 (Fla.1973). That decision was followed in State v. Fasano, 284 So.2d 683 (Fla.1973). The gist of appellant’s argument here is that we should recede from those decisions, and that we should liken the words in this statute to the words “abominable and de--testable crime against nature”, which we found fatally vague in Franklin v. State, 257 So.2d 21 (Fla.1971). That same argument was expressly rejected in Witherspoon. Nonetheless, I believe there exist compelling reasons to overrule With-erspoon and Fasano, and to hold that Section 800.02 is unconstitutional on its face.

When the Court decided Franklin in 1971, the language of a 100-year old sex offense law was scrutinized for constitutionality based on society’s changed, contemporary understandings of subjects, expressions and experiences. The Court there directed its analysis to the law’s current, rather than historic, responsiveness to societal standards, and under that analysis the phrase “abominable and detestable crime against nature” was found devoid of understandable meaning to today’s average citizen. In striking the law, the Court stated that other vintage sex offense statutes also warranted “immediate legislative review and action”, noting that until legislative study was complete society would be protected by the less harsh statute which we now have under review.

There has been no substantive change in this criminal sex offense law since 1971, and the question of its constitutional clarity has again been brought to us for review. I believe the time has come to relax the restraint which the Court exercised with respect to this law in Franklin, and to test Section 800.02 against the Franklin standards which we applied to Section 800.01.

Section 800.02 was enacted in 1917, and has remained unchanged in its description of the proscribed conduct since passage. The changes in society’s experiences, expressions and understanding as to sex activities and offenses have changed as dramatically in 58 years as they have in 100 years. For the purpose of analyzing this law against present day morality, Section 800.02’s reference to “unnatural” acts can be juxtaposed against the infirmity found in Section 800.01’s reference to crimes “against nature”. Parity is found in the fact that both require some notion of a contemporaneous standard for what is either natural or unnatural.

Three other considerations that impelled invalidation in Franklin also point in that direction here. First, if the Court now invalidates this law society will still be protected by the criminal statutes proscribing assault and battery. Second, if the legislature concludes that modern society requires additional laws directed at specific sex offenses not already proscribed, it is always free to outlaw such objectionable conduct in understandable language of the day. Third, although a possible 60-day jail sentence under Section 800.02 is obviously not as severe as a possible 20-year jail sentence under the law invalidated in Franklin, incarceration for even that lesser period will be no less devastating to one who thought, before his arrest, charge and conviction, that our enlightened society considered his conduct “natural”.

For these reasons, I would hold that Section 800.02 is invalid on its face.

ALDERMAN, JAMES E., Circuit Judge, concurs.

ALDERMAN, JAMES E., Circuit Judge

(concurring in part and dissenting in part):

I agree with that part of the majority opinion by Justice Roberts which holds that the prosecutor’s closing remarks did not warrant reversal of the conviction and a new trial. However, I believe Section 800.02 to be unconstitutional on its face, and I concur with the dissenting opinion by Justice England on this issue.

      . Prior to Witherspoon, Section 800.02 was impliedly upheld in Franklin and in Parisi v. State, 265 So.2d 699 (Fla.1972).

      . 257 So.2d at 22.

      . 257 So.2d at 24. Violations of Section 800.01 constituted a second degree felony, whereas violations of Section 800.02 consti-titute a second degree misdemeanor.

      .In Franklin, the Court noted that society’s views in these areas had changed in just the last decade. 257 So.2d at 23.

      . Appellant argues that oral copulation between consenting adults is “natural” in today’s society. In light of the conflicting testimony as to whether that conduct in this case was voluntary or coerced, it is unnecessary, and I would expressly decline, to consider that point.

      . In this ease, for example, appellant was convicted of assault and battery for the same events which gave rise to his indictment for sex offense crimes.

      . In Washington v. State, 302 So.2d 401 (Fla.1974), the Court upheld the validity of Section 794.01(2), Ela-Stat., a carnal knowledge statute, against a constitutional attack on vagueness.

      . Although the legislature may want to consider whether the criminal justice system should ever be utilized to protect society from the unusual sexual acts (whatever they may be) of consenting adults, I would not suggest that we invalidate this statute on the ground that the system should not be so employed. We do not have that situation before us. The evidence in this case warranted a jury determination that the conduct was coerced.

      .It is generally undesirable to overturn case law as current as Witherspoon and Fasano unless there are intervening events of compelling legal significance. The concepts of stare decisis and judicial restraint are too vital to our system of jurisprudence to accommodate simple changes of heart or court personnel. An invalidation of this statute so soon after a declaration of its validity would be justified only by the Court’s expression of constitutional concern in Franklin, by intervening legislative inattention, by the extensive use of this statute by law enforcement officials (as suggested by Witherspoon, Fasano and this case), and by the persuasive parallels between this law and the one we voided in Franklin. This last factor, especially, avoids any characterization of invalidation as a state-level “makeweight”, and it provides a foundation compatible with the policies behind “ordered liberty”. See Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960).