text:
    Joseph CARMOUCHE and Enola Bruno v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, and Viola Angelle, Willie Angelle, State Farm Mutual Automobile Insurance Company, Morris Bruno, Jr.
    No. 63043.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Joseph Carmouche and Enola Bruno, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 360 So.2d 1374.

Writ denied.

CALOGERO, J., would grant the writ.


source: Caselaw Access Project

license: Public Domain

text:
    Byron GRABERT et al. v. JAMES C. NOEL FLYING SERVICE, INC., et al.
    No. 63044.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: James C. Noel Flying Service, Inc., and Ranger Ins. Co. applying for writ of certiorari to the Third Circuit Court of Appeal. Parish of Vermilion. 360 So.2d 1363.

Writ denied.


text:
    Ernest Roy SNELL, Sr., et al. v. Phyllis Rose Tuminello SNELL.
    No. 63050.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Betty Kellett applying for writ of certiorari to the Second Circuit Court of Appeal. Parish of Caddo. 361 So.2d 936.

Writ denied.


text:
    Mrs. Evelyn CASEY v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA.
    No. 63054.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: The Prudential Insurance Co. of America applying for writ of certiorari to the Third Circuit Court of Appeal. Parish of Calcasieu. 360 So.2d 1386.

Writ denied.


text:
    C. P. WALKER v. WESTERN-SOUTHERN LIFE INSURANCE CO.
    No. 63055.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   In re: Western-Southern Life Insurance Co. applying for writ of certiorari to the Second Circuit Court of Appeal. Parish of Caddo. 361 So.2d 892.

Writ denied.


author: GULOTTA, Judge. LEMMON, Judge,

text:
    Anthony GOMEZ, Jr. v. FARMERS EXPORT COMPANY et al.
    No. 9316.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Jackson & Hess, Leonard A. Washofsky, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Claude D. Vasser, New Orleans, for defendants-appellees, Farmers Export Co. and Travelers Ins. Co.
    Michael W. Fontenot, Jefferson, for in-tervenor, THE Hartford Ins. Group.
    Before LEMMON, GULOTTA, STOUL-IG, BEER and GARRISON, JJ.
   GULOTTA, Judge.

Plaintiff, a sheet metal worker, appealing contends the trial judge erred in dismissing, on an exception of no right of action, his tort suit against defendant, the operator of a grain elevator, for damages sustained while installing antipollution sheet metal dustcovers.

The basis of the trial judge’s action is that defendant is a statutory employer under LSA-R.S. 23:1061 and plaintiff’s exclusive remedy is in workmen’s compensation. In written reasons, apparently based on affidavits filed by plaintiff and defendant in connection with a motion for summary judgment, the trial judge stated:

“Action for damages met by exceptions. Plaintiff was doing work that was part of Farmers Export Company’s trade business and occupation. Farmers Export is a statutory employer, and, as such, is liable to plaintiff for workmen’s compensation only.”

Although the trial judge dismissed plaintiff’s suit on an exception of no right of action, he specifically denied defendant’s motion for summary judgment. An exception of no cause of action was not passed upon because no necessity existed for the trial court to do so in view of his action dismissing plaintiff’s suit on no right of action.

Raised in this appeal is the propriety of the trial court’s judgment maintaining the exception of no right of action. Although the exception of no cause of action was not passed upon, our examination of the petition leads to a conclusion that a cause of action is alleged. In paragraph III. of the petition, plaintiff alleges:

“Petitioner further shows that said work which was contradicted to Carter-Day, did not form a part of the usual trade, business or occupation of defendant Farmers Export Company.”

See American Bank & Trust Company v. French, 226 So.2d 580 (La.App. 1st Cir. 1969).

Furthermore, based upon the affidavit attached to the motion for summary judgment and the contradictory countervailing affidavit attached to the opposition to the motion, the trial judge properly denied the motion for summary judgment because of the existence of a genuine issue of material fact.

Now turning to the central issue, we recognize the well settled rule that evidence may be considered on an exception of no right of action for the purpose of showing that plaintiff does not possess the right or legal interest he claims or that his right or capacity to assert the claim does not exist. See Roy O. Martin Lumber Co. v. Saint Denis Securities Co., 225 La. 51, 72 So.2d 257 (1954); Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972); Bartholomew v. Impastato, 12 So.2d 700 (La.App.Orl.1943); American Bank & Trust Company v. French, supra.

Whether or not plaintiff possesses the right or legal interest to assert a claim against this defendant is integrally related to the factual question whether or not the work in which plaintiff was engaged at the time of the injury is part of defendant’s business, trade or occupation. This question is to be determined after presentation and development of the conflicting evidence. See Doss v. American Ventures, Inc., 261 La. 920, 261 So.2d 615 (1972); Meche v. Farmers Drier & Storage Company, 193 So.2d 807 (La.App.3d Cir. 1967), writ refused, 250 La. 369, 195 So.2d 644 (1967).

The sum and substance of the evidence before the trial judge was an affidavit of defendant’s plant manager attached to the motion for summary judgment and plaintiff’s countervailing affidavit. In defendant’s affidavit, the plant manager states that plaintiff was an employee of a subcontractor of the general contractor who had contracted with defendant to construct a new barge unloading facility as an addition to the plant; that plaintiff was installing dustcovers to provide air pollution control at the junction of old conveyors and the newly-installed conveyors; that after installation of the dustcovers and while the conveyors were being operated, the accident occurred; and that the work being performed and the equipment being installed was work forming part of the trade, business and occupation of defendant.

In plaintiff’s countervailing affidavit, Gomez states that he was involved in installing air pollution control devices throughout the plant, manufactured by his (plaintiff’s) employer; that defendant did not have the facility or ability to manufacture or install this equipment and that the work in which he was engaged was not a part of the trade, business or occupation of the defendant.

A judgment maintaining or dismissing an exception of no right of action, based on affidavits offered in connection with a motion for summary judgment, absent an opportunity to be afforded to the litigants to present and develop additional evidence in connection with the hearing on the exception of no right of action, is, in our opinion, premature. Plaintiff and defendant are entitled to offer additional evidence in connection with the exception of no right of action. Summary judgment procedure is not a substitute for trial of issues of material fact which must resolved. Laufer v. Touro Infirmary, 334 So.2d 541 (La.App. 4th Cir. 1976); Keen v. Pel State Oil Co., Inc., 332 So.2d 286 (La.App. 2d Cir. 1976), writ denied, 333 So.2d 234 (La.1976); George & George, Ltd. v. Bennett, 329 So.2d 793 (La.App. 1st Cir. 1976), writ denied, 332 So.2d 861, 863 (La.1976).

Under the circumstances, we find it necessary to remand the matter to the trial court to afford the parties an opportunity to present any additional evidence in connection with the exception of no right of action and any further proceedings required. Accordingly, the judgment maintaining the exception of no right of action is reversed and set aside. The matter is not remanded to the trial court for further proceedings consistent with the views herein expressed.

REVERSED AND REMANDED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurring.

I concur in the reversal of the trial court’s judgment, but I disagree that the exception of no right of action properly raises the issue of whether Carter-Day’s work was part of Farmers Export’s business.

The exception of no right of action questions the interests of the particular plaintiff to bring the suit. C.C.P. art. 927(5). This exception assumes that a cause of action exists in favor of someone and questions whether the particular plaintiff is the right party to assert the cause of action. Therefore, if a cause of action exists to recover Anthony Gomez’s tort damages, Anthony Gomez is certainly the person who has the right and requisite interest to seek recovery of those damages. The exception of no right of action is without merit.

The exception of no cause of action is decided solely by reference to the petition, and no evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. C.C.P. art. 931. Since the facts of the petition, taken alone, state a cause of action to recover tort damages, the exception of no cause of action must be overruled.

The issue of whether a party is a principal within the contemplation of R.S. 23:1061 may be raised by a motion for summary judgment, but the motion must be supported by sufficient undisputed material facts to entitle the mover to judgment as a matter of law. C.C.P. art. 966. The affidavits in this case present some evidence that favors a conclusion that Carter-Day’s work was part of Farmers Export’s business and some evidence which supports a contrary conclusion. Since the evidence does not compel the conclusion that Carter-Day’s work was part of Farmers Export’s business, the latter is not entitled to a summary judgment, and the issue must be determined after all facts are presented at a trial on the merits, rather than as a matter of law at a pre-trial motion. McMoris v. Sheppard, 315 So.2d 342 (La. App. 4th Cir. 1975).

      . Plaintiff has been paid workmen’s compensation benefits and the insurer has intervened seeking reimbursement by preference from any judgment rendered in favor of plaintiff.

      . For example, if plaintiff had been killed and a cause of action existed for wrongful death, and he left a surviving spouse, his parents would have no right to action, since they do not belong to the class of persons to whom a remedy extends to assert the cause of action.

      . Since this issue is a combined fact-law question (which in a jury trial is to be decided by the jury), it is seldom appropriate for summary judgment.

      .Indeed, the affidavits indicate that Carter-Day’s work was in the category of a new construction or reconstruction, which is generally held not to be a part of the principal’s business. Moak v. Link-Belt Co., 229 So.2d 395 (La.App. 4th Cir. 1969).


author: PRICE, Judge.

text:
    Walter ADAMS, Plaintiff-Appellant, v. KAST METALS CORPORATION et al., Defendants-Appellees.
    No. 13615.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 1978.
    Joel M. Sermons, Shreveport, for plaintiff-appellant.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for East Metals — defendant-appellee.
    Mayer, Smith & Roberts by Walter 0. Hunter, Jr., Shreveport, for Highlands Ins. Co., et al. — defendants-appellees.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

Plaintiff, a security guard employed by Southern Research, Inc., brought this tort action against his employer, its insurer, and Mid-Continent Steel Casting for damages for personal injuries sustained while performing security services on the premises of Mid-Continent. Southern Research and its insurer were dismissed from these proceedings on an exception of no cause of action based on plaintiff’s sole remedy being under the workmen’s compensation statute. Plaintiff’s suit against Mid-Continent was also dismissed on a motion for summary judgment based on a finding that Mid-Continent was a statutory employer of plaintiff on the date of the accident, thereby relegating him to the exclusive remedy of benefits under the workmen’s compensation statute. Plaintiff appealed from the judgment dismissing his demands against Mid-Continent.

Plaintiff contends the question of whether he was a statutory employee of Mid-Continent should have been determined by a trial on the merits and not on a motion for summary judgment supported solely by the affidavit of a Mid-Continent official purporting to show the essential relationship of security service to the company’s business. Plaintiff also contends this affidavit is a self-serving declaration and does not sustain the burden of proving an affirmative defense by a preponderance of the evidence.

We find no error in the granting of summary judgment in this instance.

Security service is considered an es-sentia] to the operation of a manufacturing plant and is an integral part of the business. Gant v. Jackson Brewing Company, 112 So.2d 767 (La.App.Orl.Cir.1959).

The contract between Southern Research and Mid-Continent attached to the motion along with the aforementioned affidavit shows that plant security is an integral part of this defendant’s business; that Southern Research has contracted to furnish this service; and that plaintiff was engaged in the performance of duties related to the contract at the time of his alleged injury.

These factors bring plaintiff within the classification of a statutory employee as defined in La.R.S. 23:1061.

The counter affidavit filed by plaintiff merely recites he was unaware of any contractual relationship between Southern Research and Mid-Continent. It does not contradict the facts set forth in the supporting affidavit. Under these circumstances there is no genuine issue of fact, and summary judgment was properly granted. See Pullig v. Shreveport Packing Company, Inc. of Kansas, 342 So.2d 1217 (La.App.2d Cir. 1977).

The judgment is affirmed at appellant’s cost.


text:
    Richard D. FRAZIER, Plaintiff-Appellant, v. Tev D. ALLEN et al., Defendants-Appellees.
    No. 13619.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 1978.

      James B. Wells & Associates by A. R. Snell, Bossier City, for plaintiff-appellant.
    Harvey P. Delaune, Bossier City, for defendants-appellees Tev D. Allen and Walter Lee Cook.
    Charles E. Welsh, Bossier City, for defendant-appellee — Counsel for Civil Service Bd.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

The plaintiff, who had appealed his discharge as a Bossier City policeman to the Bossier City Municipal Fire and Police Civil Service Board, challenged in these proceedings the qualifications of a recent appointee, Walter Cook, as a member of the board because he had not been a Bossier City resident for five years preceding his appointment as required by La.R.S. 33:2476(B).

The issue before this court is whether Cook continued to be a resident of Bossier City during his absence on military service during the five-year period preceding his February 1978 appointment to the Civil Service Board as the statute directs. The trial judge found Cook to be a resident and rendered judgment dismissing plaintiff’s demand to have him removed from the board. We affirm the judgment.

The record indicates that defendant, a retired Air Force Master Sergeant, began his residence in Bossier City while stationed at Barksdale Air Force Base during the late 1950’s and early 1960’s. He purchased a home there on two occasions. He has continued to own the second home purchased in 1966 through the date of this proceeding. In June 1968 the Air Force sent defendant to 'Karut, Thailand, on military duty. His family remained at the Bossier City residence until his return in April 1969, whereupon he was ordered to Edwards Air Force Base, California. During his five and one-half year tour at Edwards Air Force Base, Sgt. Cook leased his Bossier City home to third parties. Upon his retirement on September 1,1974, Cook returned to his Bossier City home.

The plaintiff argues that Cook’s absence from February 1973 until September 1974 precluded his having the required five-year residence in Bossier City preceding his appointment to the board and renders his appointment invalid.

The question of whether one is a bona fide resident must be determined by the honest intention of that person, and the quality of these intentions must be tested in each of his expressions thereof, at times not suspicious, considered in connection with his activities and the circumstances thereof. Caufield v. Cravens, 138 La. 283, 70 So. 226 (1915), Robinson v. Atkins, 275 So.2d 444 (La.App. 2d Cir. 1973). The evidence shows that after Cook established his residency in Bossier City during the 1960’s, he at all times intended to make it his permanent home and to return following his temporary military induced absences from June 1968 to September 1974. This intention was manifested by the following expressions: the continuous ownership of his residence in Bossier City; the exercise of absentee voting privilege in Bossier while stationed at Edwards Air Forcé Base; the filing of Louisiana Income Tax returns while stationed in California; the use of his Bossier City address on his official military records all during the time in question. These factors amply support the trial judge’s conclusion that Cook was a legal resident of Bossier City during the time he was away on military duty at Edwards Air Force Base. This conclusion is also supported by the provisions of La.R.S. 1:54, reading as follows:

Residence once acquired shall not be forfeited by absence on business of the state or of the United States. Voluntary absence from the state of two years, or the acquisition of residence elsewhere, shall forfeit a residence within this state.

The cases of Fielding v. Casualty Reciprocal Exchange, 331 So.2d 186 (La.App. 3rd Cir. 1976) and Hall v. Godchaux, 149 La. 733, 90 So. 145 (1921) relied on by plaintiff are inapplicable to this situation. The claims of residence in Fielding and Hall presented factual situations where the evidence did not establish that the parties intended to reside in the locations which they asserted as their respective residences, nor were military absences under consideration in either case.

Summarizing, it is the holding of this court that Cook was a resident of Bossier City for the requisite five years preceding his February 1978 appointment to the Bossier City Municipal Fire and Police Civil Service Board, and for the reasons assigned, the judgment of the district court is affirmed at appellant’s cost.

      . Plaintiff initially challenged the eligibility of another, Tev Allen. The trial court dismissed this challenge as of non-suit because Allen’s term had expired and he was replaced.

      . La.R.S. 33:2476(B) provides in pertinent part:
      To be eligible for appointment or to serve as a member of a board, a person shall be a citizen of the United States of America, a resident of the municipality in which he is to serve for at least five years next preceding his appointment and, at the time of his appointment, shall be a qualified voter of the municipality; . . .


author: GULOTTA, Judge.

text:
    Albert MARTIN, Sr. v. HOLZER SHEET METAL WORKS, INC., and Argonaut Insurance Companies.
    No. 9946.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 23, 1978.
    Writ Refused Dec. 15, 1978.
    John P. Campbell, III, Baton Rouge, for plaintiff-appellee.
    Carlos E. Lazarus, Jr., Houma, for defendants-appellants.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   GULOTTA, Judge.

Plaintiff moves to dismiss defendants’ appeal in this Workmen’s Compensation suit on the grounds that defendants acquiesced in a judgment rendered against them. See C.C.P. 2085. We deny the motion.

Defendants, in answer to the motion, deny that they agreed on or acquiesced in a judgment providing for a lump sum settlement. The record, in pertinent part, reflects:

“THE COURT:
Judgment is hereby entered into declaring the Petitioner, Albert Martin, Sr., to be totally and permanently disabled under the Workmen’s Compensation Law which was applicable at the time of this injury. The injury was on September 23, 1974 and the 1973 Amendment, which is sixty-five dollars a week for a period of five hundred weeks subject to the amount paid to the plaintiff.
Let the record refleet that Carlos E. Lazarus, Counsel for Argonaut Insurance Company, checked and telephoned his company and they hereby agree to pay the Petitioner a lump sum amount for his having been declared permanently and totally disabled. The lump sum discounted amount to be paid to the Petitioner will be in the vicinity of sixteen thousand dollars, give or take, the exact figure to be computed. And it is to be noted that the Defendants have thus far paid $6,696.00 in workmen’s compensation benefits and $4,372.48 in medical. Is that correct, gentlemen?
MR. LAZARUS:
Yes, sir.”
And again:
“THE COURT:
Let the record reflect that future medical expenses, if any are necessary, will be granted by the Court at a future hearing. The judgment is going to read, and you will prepare the judgment, Mr. Campbell, showing appearances, reasons dictated into the record granting him full permanent and total disability at the amount of sixty-five dollars a week from the date of the injury for five hundred weeks and credit for the above amount mentioned, the amount the Petitioner has already received, which amount the Court is to understand the Defendant hereby agrees to pay in the above-mentioned lump sum discounted value.
It is further ordered that future medical expenses if this Court feels necessary are also to be paid by the Defendant. The above is the stipulated judgment that is being entered herein, is that correct, Mr. Lazarus?
MR. LAZARUS:
Yes, sir.”

It is evident that defendants’ affirmative response to the trial judge in the transcript was given to a lengthy and complex question and it is not clear whether there was agreement to all or only portions of the questions.

Furthermore, while this judgment was dictated into the record by the trial judge and later drawn up into a written document by the plaintiff and signed by the trial judge, it was not signed by defendants. In Parkerson v. R-5, Inc., et al., La.App., 4 Cir., 305 So.2d 592, writs denied, La., 309 So.2d 679, we held that a consent judgment is one based on the consent or compromise agreement between the parties. We stated then that a compromise or consent judgment is a bilateral contract wherein the parties adjust their differences by mutual consent. In our opinion we also referred to Civil Code Article 3071 which requires that a compromise is an agreement which must be reduced to writing.

Because doubt exists whether or not defendants acquiesced in the lump sum payment (also realizing defendants did not acquiesce in writing), we deny the motion to dismiss the appeal.

MOTION DENIED.

      . L.S.A. C.C. art. 3071.
      Article 3071. Transaction or compromise definition.
      A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner in which they agree on, and which everyone of them prefers to the hope of gaining, balanced by the danger of losing.
      This contract must be reduced into writing.

      . See Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594; Succession of Tullier, 216 La. 821, 44 So.2d 880; Police Jury of Parish of St. James v. Borne, 192 La. 1041, 190 So. 124; Mares v. La. Wildlife and Fisheries Commission, 228 So.2d 694 (La.App., 4th Cir. 1969).


author: LEMMON, Judge.

text:
    KOERNER & LAMBERT, A PROFESSIONAL LAW CORP. v. ALLSTATE INSURANCE COMPANY, Burnell D. Robinson, and Percy Robinson, Jr. (Consolidated with Koerner & Lambert, a Professional Law Corp. v. Allstate Insurance Company).
    No. 9925.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 25, 1978.
    Louis R. Koerner, Jr., New Orleans, for plaintiff-appellee.
    Porteous, Toledano, Hainkel & Johnson, Robert F. Lakey, New Orleans, for defendants-appellants.
    Before LEMMON, BOUTALL and SCHOTT, JJ.
   LEMMON, Judge.

This is a motion to dismiss defendants’ devolutive appeal which was taken after defendants paid the amounts of the judgments in these two consolidated cases without expressly reserving the right to appeal.

On May 12, 1978 judgment was rendered by the trial court. On June 6,1978 defendants’ former counsel wrote a letter to his clients, informing them of the judgment and recommending an appeal. On June 12 defendants’ counsel wrote to plaintiff’s counsel, requesting a statement of interest and costs necessary to pay off the judgment. Plaintiff’s counsel furnished the information in a June 21 letter, and on June 30 the checks were delivered by defendants to their counsel, who transmitted the checks to plaintiff’s counsel. The petition for appeal was filed on July 11, 1978.

In an affidavit defendants’ former counsel stated that prior to delivery of the checks he verbally notified plaintiff’s counsel of his intention to appeal, having received authority before June 30. Plaintiff’s counsel, in brief, admits defendants’ counsel had earlier advised that an appeal had been recommended, but denies any mention of appeal in a subsequent conversation in which execution by plaintiff was threatened.

C.C.P. art. 2085 provides that an appeal cannot be taken by a party who has voluntarily and unconditionally acquiesced in a judgment rendered against him. The issue before us is whether defendants’ payment of the judgments under these circumstances constituted voluntary and unconditional acquiescence.

Payment of a judgment, even payment without express reservation of the right to appeal, does not necessarily constitute voluntary and unconditional acquiescence which forfeits a party’s right to appeal under C.C.P. art. 2085. Charles C. Cloy Gen. Contractors, Inc. v. DiVincenti Bros., Inc., 308 So.2d 493 (La.App. 1st Cir. 1974). Acquiescence in a judgment is never presumed, and the party alleging abandonment must establish by direct or circumstantial evidence that the party now appealing intended to acquiesce and to abandon his right to appeal. Major v. Louisiana Dept. of Highways, 327 So.2d 515 (La.App. 1st Cir. 1976). Furthermore, appeals are favored in law, and forfeiture of a party’s right to an appeal through acquiescence should be decreed only when the party’s intention to acquiesce and to abandon his right of appeal is clearly demonstrated. Kendrick v. Garrene, 231 La. 462, 91 So.2d 603 (1956).

In the present case the facts stated in plaintiff’s brief indicate that defendants did not intend to abandon their right to appeal. Their former counsel notified plaintiff’s counsel of his recommendation for an appeal prior to payment of the judgments, and the judgments were paid under threat of execution after the delay for a suspensive appeal had elapsed.

The motion is denied.

MOTION DENIED.


author: LEE, Justice, for the Court:

text:
    Orin VISE, Jr., Administrator of the Estate of Paul N. Vise v. Rebecca Elizabeth VISE; Orin VISE, Jr. v. Leilani F. GUSTA, a minor, By and Through Mrs. Yvonne Harris, mother and next friend.
    Nos. 50702, 50858.
    Supreme Court of Mississippi.
    Oct. 25, 1978.

      Bryan, Nelson, Allen & Schroeder, John W. Chapman, Pascagoula, for appellant.
    Hurt & Dickerson, Gerald A. Dickerson, Lucedale, Guy C. Faggard, Pascagoula, Sidney A. Barnett, Lucedale, for appellee.
    Before SMITH, LEE and COFER, JJ.
   LEE, Justice, for the Court:

Rebecca Elizabeth Vise and Leilani F. Gusta filed separate suits against Orin Vise, Jr., Administrator of the Estate of Paul Vise, Deceased, and Jed Dixon in the Circuit Court of George County for personal injuries sustained in an automobile collision. The cases arose out of the same collision but were tried separately. Judgments were entered on jury verdicts in favor of Rebecca Elizabeth Vise in the amount of five thousand dollars ($5,000) and in favor of Leilani F. Gusta in the amount of ten thousand dollars ($10,000) and Vise appeals here.

The cases have been consolidated on appeal, and, although Dixon has not appealed and is not a party to this appeal, he filed a brief contending that the judgments should be affirmed against both defendants. That brief has been stricken on Motion of the appellant.

On July 4, 1976, appellees, Leilani (Lonnie) Gusta, age 13, and Rebecca Elizabeth Vise, age 12, along with two other children, were riding in the back seat of a Nova automobile driven by their friend and cousin, Paul Vise, along a rural road in George County. Paul Vise was the only occupant of the front seat. The vehicle proceeded in a southerly direction on the dirt road and entered a “blind curve” which turned to the right. He met a Chrysler automobile in the curve and a head-on collision occurred between the two vehicles. Paul Vise died as a result of injuries sustained and appellees received injuries.

I.

Did the trial court err in declining to grant a directed verdict in favor of appellant?

Appellant contends that the testimony of appellees exonerated Vise from any negligence and that the court should have sustained his motion for a directed verdict. He cites Bradshaw v. Stieffel, 230 Miss. 361, 92 So.2d 565 (1957). Bradshaw held that where the plaintiff testified that a defendant was driving on her proper side of the road and did not speed up or twist in any way and did nothing to cause the accident, and where the physical evidence did not reveal the point of impact, the plaintiff was bound by such testimony and could not complain, if the court directed a verdict against her.

In Callender v. Cockrell, 217 So.2d 643 (Miss.1969), quoting from Bradshaw, the Court stated:

“Ordinarily, a plaintiff is bound by his own testimony as to facts of which he professes direct knowledge, and may not recover upon the basis of evidence of another witness or other witnesses who give directly opposing evidence. Bradshaw v. Stieffel, 230 Miss. 361, 92 So.2d 565 (1957).” . (Emphasis added) 217 So.2d at 647.

However, in the Callender case, this Court stated: “There is not a scintilla of evidence capable of supporting a finding that Mrs. Callender’s negligence in failing to give a signal of her ultimate intention to turn right was a proximate contributing cause of the collision.” 217 So.2d at 647. The Cockrell car, in which appellee there was riding, had followed the Callender vehicle for quite a distance at speeds from twenty (20) to thirty-five (35) miles per hour and ran into its rear. The facts of Callender and Bradshaw distinguish those cases from the case at bar.

In the present case, appellant contends that appellees testified the Vise automobile never crossed the center of the dirt road, that it remained completely in the Vise part of the road, that the speed of the vehicle was from twenty (20) to twenty-five (25) miles per hour and from thirty (30) to thirty-five (35) miles per hour, and that such testimony completely exonerated Vise from negligence.

An investigating officer testified that tire marks from the Vise automobile crossed the center of the road approximately eighteen (18) inches into the lane traveled by the Dixon automobile. Dixon testified that the two vehicles collided in the middle of the road, and that the Vise vehicle suddenly appeared before him. On motion for directed verdict, all testimony and evidence favorable to the party against whom the directed verdict is requested, together with all reasonable inferences flowing therefrom, are taken as true, while evidence favorable to the party requesting the directed verdict is disregarded, if in conflict. Paymaster Oil Mill Company v. Mitchell, 319 So.2d 652 (Miss.1975). Applying the principle announced in Paymaster, we are of the opinion that the facts, together with all inferences, in both cases, presented a question of liability and damages for the jury. See also Shearron v. Shearron, 219 Miss. 27, 68 So.2d 71 (1953) and Smith v. Illinois Central R. R. Co., 214 Miss. 293, 58 So.2d 812 (1952).

The appellant next contends under this assignment that appellees’ proof did not conform to the pleadings in that the amended declarations did not charge appellant crossed the center of the dirt road and that the collision occurred in the Dixon lane of travel. No objection was made to such testimony and evidence when offered, and since appellees could have amended the declarations to conform with the proof had objection been made, we hold that the point was waived. Furthermore, appellant requested, and was granted, Instruction D-2— 10 in Cause # 50,858, which told the jury that the plaintiff must establish by a preponderance of the evidence that Vise’s vehicle was across the imaginary center line of the road in the lane of traffic occupied by Dixon before it could return a verdict for appellee Gusta. Having submitted that issue to the jury, appellant cannot now complain here.

II.

Did the trial court err in granting Instruction P — 14 requested by appellee over appellant’s objection and in sustaining ap-pellee’s objection to Instruction D-2-5 requested by appellant, both in Cause # 50,-702 and # 50,858?

Instruction P-14 told the jury that, if it believed Vise was guilty of negligence by operating his vehicle at an excessive rate of speed under the conditions then and there existing, and by failure to have proper and easy control over said automobile, at the time and place in question, and that said negligence, if any, proximately caused or contributed to plaintiff’s injuries, then the jury should find against Vise.

Appellant objected to the instruction on the ground there was no testimony that he was operating the vehicle at an excessive speed. The photographs of the scene indicate a dangerous blind curve, the testimony of Dixon was to the effect that the Vise vehicle suddenly appeared before him and the testimony of appellees was that the Vise vehicle was being driven from 20 to 25 miles per hour and from 30 to 35 miles per hour. Although testimony of an investigating officer indicated that the curve could be safely negotiated at those speeds, the speed factor was a question for the jury to determine and Instruction P-14 was properly granted.

Instruction D-2-5, refused by the court, set forth that the plaintiff must establish by a preponderance of the evidence that Vise’s vehicle was across the imaginary center line of the road, in the lane of traffic occupied by Dixon and, if the jury was unable to determine such fact, except by conjecture, surmise and speculation, then a verdict should be returned for defendant Vise.

Assuming arguendo that the phrase “conjecture, surmise and speculation” did not render the instruction erroneous, since there was direct evidence to the contrary, Instruction P-3 and all other instructions read together, properly submitted the issue to the jury.

III.

Did the trial court err in granting appellees’ requested Instructions P-3, P-5, P-12 and P-13?

Instruction P-3 told the jury that if it believed from a preponderance of the evidence Vise was operating his automobile over the “centerline of the road at the time of the accident and that such negligence, if any, together with negligence of Jed Dixon, if any, caused or contributed to the injuries of plaintiff, then the verdict should be for plaintiff against both defendants.” Appellant objected to the instruction on the ground that there was not sufficient evidence that Paul Vise crossed the center line. Evidence relating to this issue has been stated supra and the instruction was properly granted.

Instruction P-5 set forth that, if Dixon and Vise were guilty of negligence which proximately caused or contributed to plaintiff’s injuries, then it was the jury’s duty to return a verdict for plaintiff against both defendants. The objection to P-5 was the same as to P-3, that there was no evidence to submit to the jury negligence of Vise, and the instruction was properly given.

Instruction P-12 stated that the driver of a motor vehicle must decrease speed when approaching and going around a curve and when traveling upon any narrow or winding roadway and that, if the defendant' did not do so, and that such failure to decrease speed was a direct proximate cause of the accident, then a verdict should be returned for the plaintiff. Appellant objected to P-12 on the ground that it did not charge that Paul Vise was violating the law by driving at a reckless speed. The objection did not state a proper ground, and there was no error in granting such instruction.

Instruction P-13 told the jury that, if it believed Vise was guilty of negligence by driving his automobile at an excessive speed under the conditions then and there existing, and by failure to have proper and easy control over his automobile at the time and place in question, and that such negligence, if any, proximately caused or contributed to plaintiff’s injuries, then the jury should return a verdict for plaintiff against Vise. The objection to P — 13 was that no evidence indicated Vise was operating his vehicle at an excessive rate of speed or failed to have his vehicle under control. As stated supra, the facts presented such a question for the jury.

There being no reversible errors in the trials, the judgments are affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, BOWLING and COFER, JJ., concur.

SUGG, J., took no part.


author: SUNDBERG, Justice.

text:
    Ronald L. PRUITT, Appellant, v. STATE of Florida, Appellee.
    No. 53075.
    Supreme Court of Florida.
    Sept. 28, 1978.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   SUNDBERG, Justice.

Appellant has prosecuted an appeal in this Court following an order of the trial judge denying his motion to dismiss the information. Because that order upheld the validity of Section 784.07, Florida Statutes (1977), in the face of appellant’s constitutional challenge to the statute, this Court has jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.

Responding to a call from appellant’s girlfriend that appellant had attempted to slash his wrists, two police officers rushed to the scene of the suicide attempt. Upon arriving, one officer saw appellant bleeding on the floor whereupon he forced his way inside. When appellant’s girl friend told him to leave and the officer refused, a scuffle ensued between them. Appellant then engaged in another scuffle with the other officer who had responded to the call. Shortly thereafter, duly authorized fire fighters arrived to perform paramedical functions. They also became involved in the scuffle. Appellant was then arrested and had to be subdued before he could be given aid.

Appellant was charged by information with Counts I and II, Battery on a Law Enforcement Officer; and Counts III and IV, Battery on a Fire Fighter, pursuant to Section 784.07, Florida Statutes (1977). The State entered a nolle prosequi to Counts I, II and IV. By motion to dismiss, appellant challenged the constitutionality of the aforementioned statute. At the hearing on appellant’s motion, defense counsel argued, inter alia, (1) that the statute is vague and overbroad in that the definition of “fire fighter” provided therein is inadequate to inform the average citizen as to the prohibited conduct; (2) that the statute violates the equal protection clause because it punishes more stringently those who commit assault or battery upon law enforcement officers or fire fighters than those who commit the same act upon any other person, without there being any rational basis to support such disparity of treatment; and (3) that Counts III and IV are defective in that the victims were acting in the role of paramedics and not as fire fighters.

Following the denial of his motion to dismiss, appellant pleaded nolo contendere to Count III, reserving his right to appeal the denial of the motion to dismiss. Adjudication was withheld and appellant was placed on probation for three years. Notice of appeal was filed by appellant in the District Court of Appeal, Fourth District, which court transferred the cause to this Court.

Appellant now reiterates the arguments which he espoused at the hearing on his motion to dismiss and additionally asserts that the statute is unconstitutional because its title fails to express the subject of the enactment.

The gravamen of appellant’s contention that the statute is vague is that a literal reading of the term fire fighter would bring any public employee of the state whose duty it was “to protect life or property” within the statute’s purview. Appellant asserts that as so read, the statute cannot convey a sufficiently definite warning of the proscribed conduct when measured by common understanding and practice. State v. Dye, 346 So.2d 538 (Fla.1977); State v. Wershow, 343 So.2d 605 (Fla.1977). He hypothesizes that the statute might cover “a fireman shopping for groceries for his shift’s meals,” “a janitor or secretary employed at the fire department,” or “a municipal lifeguard testing the water of a pool.” (Appellant’s brief, p. 8)

The reason for the supplemental protection provided by the statute is clear. The public welfare is served uniquely by a fire fighter who jeopardizes his personal well-being by performing the hazardous job of extinguishing, preventing, or controlling fires for the altruistic function of defending the community. Accordingly, the legislature in its wisdom has chosen to grant greater protection to one who performs these indispensable services. See Soverino v. State, 356 So.2d 269 (Fla.1978). While a janitor who is employed by a public employer has a duty to “protect property,” he does not shield the lives and property of members of the general public from the dangers of fires. Likewise, the fireman who shops for groceries or the lifeguard who tests the water of a pool cannot claim the greater protection accorded by the statute because they are not performing the indispensable and precarious public service of guarding against fires. It is clear then that the legislature did not intend the phrase “protects property” to have the broad application which appellant imputes to it. What the legislature did intend was to protect the person who protects the public’s life and property by risking his life in fighting fires. To further the legislative intent, therefore, Section 784.07(1)(b) should be read so that “fire fighter” is defined, inter alia, as “any person employed by any public employer of this state whose duty it is to extinguish fires” AND “to protect life or property . .” As so construed the statute provides the individual of common intelligence with sufficient warning to satisfy constitutional standards of due process.

In the case sub judice, appellant committed a battery upon a fireman who was employed by the fire department of the City of Hollywood, Florida, and who was performing an act for the protection of life. Consequently, he is within the class of people which the legislature sought to protect.

Appellant suggests alternatively that the statute is overbroad because it could be applied to punish legal as well as illegal conduct. He substantiates this argument by suggesting that in the instant case he acted legally in resisting the proffered medical help because he was under no legal obligation to accept that help. We cannot agree that appellant acted legally in committing a battery, whether it be upon a fire fighter or anyone else.

With regard to appellant’s contention that Section 784.07, Florida Statutes (1977), is unconstitutional as a violation of equal protection, this Court’s opinion in Soverino v. State, supra, has recently decided this point adversely to his position.

Finally, appellant posits that Section 784.07, Florida Statutes (1977), is unconstitutional because its title fails to express the subject of the enactment. Article III, Section 6, Florida Constitution. He asserts that the definitions of law enforcement officers and fire fighters within the body of the Act range far beyond the statement of the subject in the title. We find this contention to be without merit. The title of an act is sufficient if it fairly gives such notice as will reasonably lead to inquiry into the body of the act. The title of an act need not be an index to its contents and it is not necessary that it delineate in detail the substance of the statute. Rouleau v. Avrach, 233 So.2d 1 (Fla.1970). The title to the act here under review gives fair notice of its contents for purposes of Article III, Section 6, Florida Constitution.

Accordingly, the order of the trial judge is affirmed.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, HATCHETT and ALDERMAN, JJ., concur.

      . § 784.07, Fla.Stat. (1977), reads:
      “Assault or battery of law enforcement officers or firefighters; reclassification of offenses.—
      (l)(a) As used in this section, the term ‘law enforcement officer’ includes, but shall not be limited to, any sheriff, deputy sheriff, municipal police officer, highway patrol officer, beverage enforcement agent, county probation officer, officer of the Parole and Probation Commission, and law enforcement personnel of the Game and Fresh Water Fish Commission and the Departments of Natural Resources and Criminal Law Enforcement.
      (b) ‘Firefighter’ as used in this section shall mean any person employed by any public employer of this state whose duty it is to extinguish fires, to protect life or property, or to enforce municipal, county, and state fire prevention codes, as well as any law pertaining to the prevention and control of fires.
      (2) Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer or firefighter while the officer or firefighter is engaged in the lawful performance of his duties, the offense for which the person is charged shall be reclassified as follows:
      (a) In the case of assault, from a misdemean- 'or of the second degree to a misdemeanor of the first degree.
      (b) In the case of battery, from a misdemean- or of the first degree to a felony of the third degree.”

      . It is conceded by appellant that the victim of the battery was a duly authorized fire fighter for the City of Hollywood (App.Brief p. 6). It is a well-known fact that numerous public fire departments train numbers of their employees to perform paramedical and rescue functions. Because a duly authorized fire fighter is performing paramedical functions as an adjunct to his responsibility to prevent and extinguish fires, he is not removed from the class of persons sought to be protected by the statute.


author: BOYD, Justice.

text:
    CITY OF MIAMI BEACH, Florida, Appellant, v. E. J. FRANKEL et al., Appellees.
    No. 52006.
    Supreme Court of Florida.
    Oct. 5, 1978.

      Joseph A. Wanick, City Atty., and John A. Ritter and Richard Kanner of Ritter & Ritter, Coral Gables, for appellant.
    John K. Aurell, Earl B. Hadlow and William D. King of Mahoney, Hadlow & Adams, Miami, for appellees.
    Alan S. Becker of Becker, Poliakoff & Sachs, Miami Beach, for The Tenants’ Association of Florida, Inc., intervenor.
   BOYD, Justice.

The City of Miami Beach appeals a judgment of the Circuit Court for Dade County, and invokes our jurisdiction to hear direct appeals under Article V, Section 3(b)(1), Florida Constitution. The circuit court directly passed upon the constitutionality of Chapter 77 — 50, Laws of Florida.

A rent control ordinance of the City of Miami Beach expired on December 31,1976. Thereafter, at the behest of some citizens' groups, the City Council adopted Resolution No. 77-15314, which provided that a new general rent control measure, proposed Ordinance No. 77-2093, be placed before the electorate of the City in a referendum. The referendum was scheduled to be held on June 7, 1977. Meanwhile, on May 21, 1977, an Act of the Legislature, Chapter 77-50, Laws of Florida, went into effect. It conditions and restricts the power of cities and counties to enact rent control legislation. The proposed ordinance was out of harmony with Chapter 77-50 in several respects, and to that extent would have been a void enactment.

The appellees are a group that includes owners of a rental apartment building in the City and taxpayers of the City. They brought an action to have the proposed ordinance declared illegal and the referendum enjoined. A pre-judgment injunction was upheld by the District Court of Appeal, Third District, on interlocutory appeal. Subsequently the Circuit Court granted summary judgment in favor of the appel-lees and made the injunction permanent.

The action brought by the appellees raised not only the matter of the incompatibility of the proposed ordinance with Chapter 77—50, but also challenged it on a number of other grounds under the City Charter and the Florida and United States Constitutions. The judgment of the Circuit Court sustained them all, finding the proposed ordinance and the manner proposed for its adoption to contain numerous legal infirmities. We need not approve or review all of the court’s stated grounds in order to affirm its judgment. But for the following reasons we hold that the appellant has failed to establish reversible error below.

Sections 2 and 5(b) of the Act require that a local government, in enacting a rent control measure, must make findings and recite them in the enactment, of a housing emergency so grave as to constitute a serious menace to the general public. As the Circuit Court held, proposed Ordinance No. 77-2093 did not meet this general law requirement.

Section 4 of the Act prohibits local government rent controls on dwelling units located in luxury apartment buildings, as defined in the Act. The Circuit Court correctly held that the proposed ordinance illegally purported to regulate such rents.

Section 5(a) of the Act contemplates that a rent control measure be adopted by the governing body of the local government in question. Section 5(c) provides for such a measure to be approved by the voters in a referendum. The court held that the proposed ordinance was not “duly adopted” by the City Council. This holding was correct, as the record indicates that the City Council provided by resolution to have the proposed ordinance placed on the ballot but did not itself adopt the ordinance.

After finding that the proposed ordinance would violate state law in these and other respects, the court upheld the constitutionality of Chapter 77-50 against challenges by the City. The City contended that the Act amends the City Charter in violation of the Florida Constitution, that it is a general law of local application on a prohibited subject, that its title is defective, that it contains improper secondary subject matter, and that it denies the citizens of Miami Beach the equal protection of the laws.

In support of its contention that Section 5(c) of the Act violates the Constitution by amending the City Charter, the City points to Article VIII, Section 11 of the 1885 Constitution, which authorized the Dade County Home Rule Charter. This provision is incorporated into the 1968 Constitution by reference in Article VIII, Section 6 thereof. Subsection (l)(g) of the incorporated constitutional provision states: “Upon adoption of this home rule charter by the electors the Legislature shall have no power to amend or repeal the charter of any municipal corporation in Dade County.” The appellant’s argument ignores the fact that subsection (6) bf the very same incorporated provision provides:

(6) Nothing in this section shall be construed to limit or restrict the power of the Legislature to enact general laws which shall relate to Dade County and any other one or more counties of the State of Florida or to any municipality in Dade County and any other one or more municipalities of the State of Florida relating to county or municipal affairs and all such general laws shall apply to Dade County and to all municipalities therein to the same extent as if this section had not been adopted and such general laws shall supersede any part or portion of the home rule charter provided for herein in conflict therewith and shall supersede any provision of any ordinance enacted pursuant to said charter and in conflict therewith, and shall supersede any provision of any charter of any municipality in Dade County in conflict therewith.

Furthermore, by conditioning the power of municipalities to enact rent control, the Act did not amend the City’s Charter. Any authority the City had to control rents prior to the effective date of the Act was not derived from its Charter. It was not until the passage of the Municipal Home Rule Powers Act, Chapter 73-129, Laws of Florida, that municipal governments had this power. City of Miami Beach v. Forte Towers, 305 So.2d 764 (Fla. 1974); City of Miami Beach v. Fleetwood Hotel, Inc., 261 So.2d 801 (Fla.1972). Au thority thus granted by general law can of course be restricted by general law.

As stated above, the appellant contended that the Act is a general law of local application on a subject prohibited by Article III, Section 11 of the Florida Constitution. It argues here that the resolution of its contention depended upon factual findings and thus the question should not have been decided in a judgment on the pleadings.

A general law of local application is a law that uses a classification scheme— based on population or some other criterion — so that its application is restricted to particular localities. See, e. g., Lewis v. Mathis, 345 So.2d 1066 (Fla.1977); Vance v. Ruppel, 215 So.2d 309 (Fla.1968); County of Dade v. City of North Miami Beach, 109 So.2d 362 (Fla.1959). It is clear on the face of this statute that it is a general law applicable statewide. It contains no classification scheme. No factual inquiry was needed to determine this. The fact, if established, that Miami Beach is the only City in the State to have enacted a rent control ordinance, would be immaterial. The fact, if established, that after the City Council of Miami Beach allowed its rent control ordinance to expire, citizens’ groups there, and not elsewhere, sought the enactment of an ordinance violative of the Act, would be immaterial.

Appellant contends that the title to Chapter 77-50 does not adequately give notice of the import of Section 6 thereof, which pertains to the burden of proof when a local government rent control ordinance is challenged in a court action. It contends further that Section 6 is not of the same subject matter as the rest of the Act. For these two reasons the City argues that Chapter 77-50 violates Article III, Section 6 of the Constitution, requiring that acts of the Legislature embrace but one subject and matter properly connected therewith, and that the subject be briefly expressed in the title.

The Constitution does not require that the title of a law contain a synopsis of all the means by which the object of the law is to be accomplished. Commissioners of Duval County v. City of Jacksonville, 36 Fla. 196, 224, 18 So. 339, 344 (1895). The title to Chapter 77-50 contains notice of its provisions sufficient to prompt further inquiry. Smith v. Chase, 91 Fla. 1044, 1049, 109 So. 94, 96 (1925); State ex rel. Buford v. Daniel, 87 Fla. 270, 280, 99 So. 804, 807 (1924). Nor is Section 6 of the Act so unrelated as to constitute a different sub ject from the essential subject of the Act. It is relevant to the purposes of the Act, and has a necessary and proper connection with it. State ex rel. Gonzalez v. Palmes, 23 Fla. 620, 629, 3 So. 171, 175 (1887).

In the proceedings below, the appellant challenged the requirement of the Act that local government rent control measures exempt luxury apartments. It contends that the definition of luxury apartments contained in the Act has no reasonable relationship to conditions in Miami Beach, that therefore the statute denies its citizens equal protection, and that the court was wrong to grant summary judgment since this challenge depended on factual inquiry for its proper resolution. The City’s argument might be stated to be that the statute, by classifying dwelling units in apartment buildings whose units average $250 or more per month in rent as “luxury” units, discriminates against the renters of Miami Beach because this figure does not bear as reasonable a relationship to a realistic definition of “luxury” there as it might in other localities of the state.

Even if we were to allow that a municipality has standing to assert against the state an equal protection claim of some of its citizens, Shelby v. City of Pensacola, 112 Fla. 584, 151 So.2d 53 (1933), this argument would still be without merit. Assuming for purposes of discussion that the statute classifies citizens, surely it cannot be said to establish a suspect class. Therefore it is not subject to strict scrutiny. The Legislature is allowed wide discretion in classifying on such matters. Hiers v. Mitchell, 95 Fla. 345, 116 So. 81 (1928). Of course, rental values vary from place to place around the state. But the Legislature is not required to classify with mathematical preciseness, as long as it is not arbitrary. “If the courts can conceive of any conditions which will warrant the classification made, they will not interfere to strike down the legislation as a denial of the equal protection of the laws.” Riley v. Lawson, 106 Fla. 521, 529, 143 So. 619, 622 (1932). Therefore, summary judgment was proper.

The City presents additional arguments finding fault with still other grounds for the court’s decision, which have not been discussed. But as indicated previously, we do not find it necessary to discuss them.

Judgment affirmed.

ENGLAND, C. J., and OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

      . The Act is now codified as § 125.0103, and by duplicate assignment and publication, § 166.-043, Fla.Stat. (1977).

      . The court held further that because the ordinance did not satisfy this provision, it violated a long list of constitutional provisions. See the final judgment, Conclusions of Law Q(8), (a)(f). Record-on-Appeal, pp. 213, 218-19.

      . The municipal corporation known as the City of Miami Beach was chartered by Ch. 7672, Laws of Florida (1917).

      . Now codified in Chapter 166, Florida Statutes (1977).

      .Since Chapter 77-50 is not a general law of local application, we need not examine it to determine whether the necessary second component of the City’s contention — that it deals with a prohibited subject under Art. Ill, § 11— is correct.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Petitioner, v. Richard S. SAVITT and Stroock & Stroock & Lavan, Respondents.
    No. 54658.
    Supreme Court of Florida.
    Oct. 12, 1978.
    Bernard H. Dempsey, Jr., Chairman of Standing Committee on Unauthorized Practice of Law, Orlando, and H. Glenn Boggs, II, Asst. Staff Counsel-UPL, Tallahassee, for petitioner.
    William H. McBride, Jr., of Holland & Knight, Tampa, for respondents.
   PER CURIAM.

This action was initially brought by The Florida Bar pursuant to Article XVI of the Integration Rule, to obtain an injunction restraining respondents from engaging in the unauthorized practice of law in Florida. The petition alleged that respondent Stroock & Stroock & Lavan (“the firm”), an interstate law firm having its principal office in New York, opened an office in Miami on or about April 1, 1977, and that respondent Savitt, a partner of the firm not admitted to the practice of law in Florida, was assigned to supervise the operation of the Miami office. It was further alleged that respondent Savitt, in the course of his supervisory activities, engaged in conduct which constituted the unauthorized practice of law in this state.

We issued a Rule to Show Cause on July 25, 1978, commanding respondents to answer why the requested injunction should not be entered against them. In the meantime, the parties conducted negotiations on the matter, resulting in an agreement which has now been submitted to us for approval. Upon consideration of the parties’ Joint Motion and Stipulation of Settlement, it is hereby ordered that the following terms are adopted and approved for the resolution of this controversy:

1. The following activities constitute the unauthorized practice of law and may not be carried out in Florida by Stroock & Strooek & Lavan, its partners and associates, and Richard S. Savitt and such firm and Richard S. Savitt are perpetually restrained and enjoined from:
(a) allowing any of its members, associates or employees who are not admitted to The Florida Bar to engage in any professional activities in Florida (other than those hereinafter set forth) subject to the following limitations: participation as co-counsel in litigation before state and federal courts in Florida only to the extent permitted by applicable rules of temporary admission; transitory professional activities “incidental” [See, e. g., Appell v. Reiner, 43 N.J. 313, 204 A.2d 146 (1964)] to essentially out-of-state transactions; and professional activities that constitute “coordinating-supervisory” activities in essentially multi-state transactions in which matters of Florida law are being'handled by members of The Florida Bar [See, e. g., In re The Estate of Waring, 47 N.J. 367, 221 A.2d 193 (1966)];
(b) operating as an interstate law firm in the State of Florida unless it continues to remain a full, bona fide partnership that operates according to a partnership agreement which does not provide that profits and losses are shared among its members solely on the basis of the proportionate business either generated or handled by its Florida office;
(c) operating the Florida office without a partner or partners of the firm, each of whom is a .member of The Florida Bar, assuming on a continuing basis responsibility for the supervision of the operations of the Florida office;
(d) allowing any of its members, associates or employees who are not members of The Florida Bar to exercise supervisory control over any associate operating on a permanent basis out of the Florida office who is a member of The Florida Bar with respect to matters essentially involving Florida law for persons residing in Florida or business enterprises having their principal place of business in Florida;
(e) allowing any applicant for admission to The Florida Bar in any way affiliated with the firm to operate in the Florida office on a permanent basis in any manner other than the traditional “law clerk” role under the direct supervision and control of a member of The Florida Bar; and
(f) engaging in such other professional activities and in such manner as may be prohibited hereafter by reason of any court decision, or rule or regulation of the Florida Supreme Court or custom or practice which may hereafter be promulgated or accepted by this Court in respect to the unauthorized practice of law in the State of Florida.
2. Pursuant to the foregoing provisions of this order, the above named firm and its members, associates or employees properly may conduct the following activities, which shall not constitute the unauthorized practice of law:
(a) communicate, consult and deal with the personnel in the Florida office in all respects, including discussion of, and advice upon, legal matters, preparation and review of legal documents, and any other act which may constitute the practice of law, so long as such activities merely constitute assistance to a member of The Florida Bar and, if the result of such activities is utilized, it is the product of, or is merged into the product of, a member of The Florida Bar for which the Florida Bar member takes professional responsibility;
(b) communicate with clients and others (including attorneys) provided it is initially and immediately confirmed in writing and at all times made clear to such clients and others, in a manner which avoids confusion, that the person (if not a member of The Florida Bar) so communicating is not a member of The Florida Bar and that such communication (if it deals with Florida law) is made either in the presence of, or with the written approval of, a member of The Florida Bar who assumes professional responsibility for any such communication and retains the direct relationship with the client;
(c) give legal advice concerning a right or obligation governed by federal law, as permitted in Spanos v. Skouras Theatres Corp., 364 F.2d 161 (2d Cir. 1966) cert. den. 385 U.S. 987 [87 S.Ct. 597, 17 L.Ed.2d 448] (1966); and provided that, if the lawyer giving the legal advice is not a member of The Florida Bar, the lawyer is in Florida on a transitory basis and it has initially been made clear to the client and immediately confirmed in writing, that the lawyer is not a member of The Florida Bar;
(d) give legal advice in regard to matters related primarily to federal administrative agency practice, and provided that if the lawyer giving the legal advice is not a member of The Florida Bar, the lawyer is in Florida on a transitory basis and it has initially been made clear to the client and immediately confirmed in writing that the lawyer is not a member of The Florida Bar;
(e) give legal advice on the law of jurisdictions other than Florida to non-Florida clients in transactions with persons residing in Florida or with business enterprises having their principal place of business in Florida; provided that matters of Florida law, if any, are handled by members of The Florida Bar and provided that, if the lawyer giving the legal advice is not a member of The Florida Bar, the lawyer is in Florida on a transitory basis;
(f) engage in such other professional activities and in such manner as may be permitted, recognized or accepted hereafter by reason of any court decision, or rule or regulation of the Florida Supreme Court or custom or practice which may hereafter be promulgated or accepted by this Court in respect to the practice of law in the State of Florida.
3. In operating its Florida office, the above named firm and each of its attorneys will abide by the following:
(a)The Florida Code of Professional Responsibility;
(b) The firm may use its existing firm name in Florida although no lawyer in the firm name is a member of The Florida Bar [See, The Florida Bar, 330 So.2d 9 (Fla.1976)];
(c) law lists and legal directories of the Florida office will list thereon only individual lawyers admitted to practice in Florida unless an express statement appears thereon indicating which lawyers are members of The Florida Bar or, in the alternative, those who are not members of The Florida Bar;
(d) professional announcements emanating solely from the Florida office will be made only as to matters involving members of The Florida Bar;
(e) letterheads used by the Florida office will list its partners admitted in Florida and may list its associates admitted in Florida; if names of non-Florida lawyers are listed, the letterhead must contain an express statement indicating those individual lawyers who are members of The Florida Bar, or, in the alternative, those who are not admitted to practice in Florida; no mention may be made, however, as to attorney membership in any bar association other than Florida; the Florida office letterhead may not include the name of a lawyer who is not admitted in Florida, even with disclosure of the non-admittance status, when the arrangement between the lawyer and the firm does not constitute a true interstate partnership;
(f) in any telephone directory published and used in Florida, the firm shall list only its lawyers who are admitted to practice in Florida;
(g) all correspondence from the Florida office which is on the stationery of the firm shall be signed by an individual who is either a member or associate of the firm admitted to The Florida Bar or, when otherwise proper, by an individual whose status is otherwise clearly indicated (e. g., “attorney not admitted in Florida,” “legal assistant,” “law clerk,” or the like);
(h) a professional card of a lawyer identifying him by name and as a lawyer, giving his address, may not contain a Florida address, if he is not a member of The Florida Bar.

The firm and Richard S. Savitt have cooperated in seeking the determinations made herein.

No proceedings for contempt or violation of this decree shall be instituted by The Florida Bar unless the firm shall have been given five days’ written notice by The Florida Bar of its intention to institute such proceedings.

It is so ordered.

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


author: PEARSON, Judge.

text:
    Nicholas PAUL, and the State of Florida, Department of Health and Rehabilitative Services, Appellants, v. HERITAGE INSURANCE COMPANY OF AMERICA, a Foreign Corporation, and Michelle Hines, Appellees.
    No. 77-2539.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.
    Horton, Perse & Ginsberg, Brumer, Moss, Cohen & Rodgers, Miami, Vernis & Bowling and Stephen N. Montalto, Coconut Grove, for appellants.
    Jay H. Hernberg, Fort Lauderdale, for appellees.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PEARSON, Judge.

Nicholas Paul is the plaintiff in the trial court. The State of Florida, Department of Health and Rehabilitative Services, is a third party defendant to a third party complaint brought by Heritage Insurance Company of America and Michelle Hines, who were defendants in the original action. This appeal was brought by the plaintiff, Nicholas Paul, from a summary final judgment entered for the defendants Heritage Insurance Company and Michelle Hines. It was not until after the entry of the summary judgment which is appealed that the State of Florida was brought into the case as a third party defendant. After having been brought into the case upon the third party complaint, the State joined in this appeal to review the same summary judgment. The judgment entered by the trial court is sharply limited as to its grounds, and in order to limit the holding of the court in this appeal, the order is set forth:

“THIS CAUSE came on to be heard before me on Defendants’ Motion for Summary Judgment and the Court having considered and having been specifically advised concerning Dade County vs. [v.] Kelly, 348 So.2d 49 (Fla.App. 1st, 1977) and having heard argument of counsel and being otherwise fully advised in the premises, this Court finds the Defendants’ Motion for Summary Judgment should be granted. This Court further finds the Defendants’ Motion to Join as a Third Party Defendant, the State of Florida, Department of Health and Rehabilitative Services should be granted. Any defensive pleadings and Motions which the State of Florida may be required to file pursuant to the Florida Tort Claims Acts are hereby stayed pending resolution of the appeal to be taken by the Plaintiffs from this Order. It is hereupon
“ORDERED AND ADJUDGED that the Defendants’ Motion for Summary Judgment be and the same is hereby granted and Summary Final Judgment is hereby entered in Defendants’ favor. This Court determines that MICHELLE HINES and HERITAGE INSURANCE COMPANY OF AMERICA may not be sued pursuant to the holding in Dade County vs. [v.] Kelly, supra. This Court specifically makes no finding as to any other issues which may have arisen.”

Since the publication of Metropolitan Dade Cty. v. Kelly, 348 So.2d 49 (Fla. 1st DCA 1977), upon which the trial court relied, the District Court of Appeal, Second District, State of Florida, has directly considered the question of whether a state employee is a proper party defendant in an action for personal injuries allegedly occasioned by the negligence of the state employee while acting within the course and scope of state employment. That case is Talmadge v. District School Board of Lake County, 355 So.2d 502 (Fla. 2d DCA 1978). Each of these cases purported to interpret Section 768.28(9), Florida Statutes (1977), which is, in relevant part, as follows:

* * * * * *
“No officer, employee, or agent of the state or its subdivisions shall be held personally liable in tort for any injuries or damages suffered as a result of any act, event, or omission of action in the scope of his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Subject to the monetary limitations set forth in subsection (5), the state shall pay any monetary judgment which is rendered in a civil action personally against an officer, employee, or agent of the state which arises as a result of any act, event, or omission of action within the scope of his employment or function.”

Without reiterating the reasoning followed by the court in Talmadge v. District School Board of Lake County, supra, it is sufficient for us to state that we find the reasons set out therein for its holding to be compelling and we, therefore, adopt that decision as the decision of this court in the instant case.

It clearly appears that the trial court’s summary judgment was based entirely upon the court’s interpretation of Section 768.28(9), Florida Statute (1977), and that no other ground was considered. Therefore, upon our determination that the holding of the District Court of Appeal, Second District, properly states the law and that the proper rule is that this statute acts only to indemnify an employee of the state having monetary judgment entered against him as a result of negligent acts occurring within the scope of his employment and does not bar a suit against the employee as a party defendant, we reverse the judgment appealed and remand the cause to the trial court for further proceedings in accordance with the views herein expressed.

Reversed and remanded.


author: HAVERFIELD, Chief Judge.

text:
    SAILBOAT APARTMENT CORP., a Florida Corporation, et al., Plaintiffs Counterdefendants, v. CHASE MANHATTAN MORTGAGE AND REALTY TRUST, Defendant Counterplaintiff.
    No. 78-416.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.
    Rehearing Denied Nov. 17, 1978.

      Arky, Freed, Stearns, Watson & Greer and Bruce W. Greer, Miami, for plaintiffs/counterdefendants.
    Smathers & Thompson and Linwood Anderson, Miami, for defendant/counterplain-tiff.
    Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.) Associate Judge.
   HAVERFIELD, Chief Judge.

This appeal is presented for determination by way of certified question pursuant to Fla.App.R. 4.6 (1962 Revision).

The undisputed facts are as follows:

On March 12, 1974 plaintiff, Sailboat Apartment Corporation (SAC), as borrower executed a loan agreement together with a promissory note in favor of defendant, Chase Manhattan Mortgage and Realty Trust (Chase Manhattan). The note provided for a floating interest rate of 4x/2% over the prime rate for the duration of the note which was to mature in March, 1979. The interest was collected or charged monthly.

At the time of the commencement of the transaction the prime rate was 8%% and, therefore, the effective interest rate on the loan was 13x/4% (83A% plus 4V2%). However, the prime rate commenced to move upward such that between August 1, 1974 and September 26, this rate reached a high of 12%. As a consequence, the interest on the loan for the first year (from March 12, 1974— March 12, 1975) exceeded 15% SAC paid approximately $140,000 of the interest through the summer of 1974; however, as the interest charges continued to soar (due to the rise in the prime rate), SAC refused to pay further interest and Chase Manhattan declared the loan in default. SAC filed suit in November, 1974 for usury. Chase Manhattan counterclaimed for foreclosure. Chase Manhattan argues that the variable interest charges are to be spread over the entire term of the loan under Section 687.-03, Florida Statutes. To the contrary SAC contends that this statute provides only for the spreading of advances and forbearanc-es. The trial judge has certified the following questions:

I.
WHETHER VARIABLE INTEREST CHARGES ARE TO BE “SPREAD” OVER THE LIFE OF A LOAN UNDER § 687.03(3), FLORIDA STATUTES.
II.
IF 687.03(3) PROVIDES ONLY FOR THE “SPREADING” OF ADVANCES AND FORBEARANCES, ARE VARIABLE INTEREST CHARGES TO BE SPREAD UNDER THE GENERAL RULE THAT THE ENTIRE TERM OF THE LOAN MUST BE CONSIDERED IN DETERMINING WHETHER A CONTRACT IS USURIOUS.

We first note that at the time of the execution of the loan transaction, the subject statute [Section 687.03, Florida Statutes (1973)] read as follows:

“ * 687.03 Unlawful rates of interest defined; proviso. — It shall be usury and unlawful for any person, or for any agent, officer or other representative of any person, to reserve, charge or take for any loan, or for any advance of money, or for forbearance to enforce the collection of any sum of money, except upon an obligation of a corporation, a rate of interest greater than ten per cent per an-num, either directly or indirectly, by way of commission for advances, discounts, exchange, or by any contract, contrivance or device whatever, whereby the debtor is required or obligated to pay a sum of money greater than the actual principal sum received, together with interest at the rate of ten per cent; and such transactions with a corporation shall, whereby the corporation pays interest, be usury and unlawful if for a rate of interest greater than fifteen percent per annum; however, if any loan, advance of money, forbearance to enforce the collection of any debt, or contract exceeds $500,000 in amount or value, it shall not be usury or unlawful to reserve, charge, or take interest thereon unless the rate of interest exceeds 15 percent per annum. The provisions of this section shall not apply to sales of bonds in excess of one hundred dollars and mortgages securing the same or money loaned on bonds. For the purpose of this section and § 687.02, the rate of interest on any loan of money shall be determined and computed upon the assumption that the debt will be paid according to the agreed terms, and in the event said loan is paid or collected by court action prior to the term of said loan, any payments charged, reserved, or taken as an advance or forbearance which are in the nature of, and taken into account in the calculation of, interest shall be spread over the stated term of the loan for the purpose of determining the rate of interest." [Emphasis Supplied]

On June 18, 1974 this statute was amended and reads:

“687.03 ‘Unlawful rates of interest’ defined; proviso.—
“(1) It shall be usury and unlawful for any person, or for any agent, officer or other representative of any person, to reserve, charge or take for any loan, or for any advance of money, or for forbearance to enforce the collection of any sum of money, except upon an obligation of a corporation, a rate of interest greater than ten percent per annum, either directly or indirectly, by way of commission for advances, discounts, exchange, or by any contract, contrivance or device whatever, whereby the debtor is required or obligated to pay a sum of money greater than the actual principal sum' received, together with interest at the rate of ten percent; and such transactions with a corporation shall, whereby the corporation pays interest, be usury and unlawful if for a rate of interest greater than fifteen percent per annum; however, if any loan, advance of money, forbearance to enforce the collection of any debt, or contract exceeds $500,000 in amount or value, it shall not be usury or unlawful to reserve, charge, or take interest thereon unless the rate of interest exceeds 15 per cent per annum. The provisions of this section shall not apply to sales of bonds in excess of $100 and mortgages securing the same, or money loaned on bonds.
“(2) For the purpose of this chapter, the rate of interest on any loan of money shall be determined and computed upon the assumption that the debt will be paid according to the agreed terms, whether or not said loan is paid or collected by court action prior to the term of said loan, and any payments or property charged, reserved, or taken as an advance or forbearance which are in the nature of, and taken into account in the calculation of, interest shall be valued as of the date received and shall be spread over the stated term of the loan for the purpose of determining the rate of interest. Moreover, for the purposes of this chapter, a loan shall be deemed a loan which exceeds $500,000 in amount or value if:
.” [Emphasis Supplied]

Again this statute was amended in 1977 as follows:

“687.03 ‘Unlawful rates of interest’ defined; proviso.—
“(3) For the purpose of this chapter, the rate of interest on any loan of money shall be determined and computed upon the assumption that the debt will be paid according to the agreed terms, whether or not said loan is paid or collected by court action prior to the term of said loan, and any payment or property charged, reserved, or taken as an advance or forbearance, which is in the nature of, and taken into account in the calculation of, interest shall be valued as of the date received and shall be spread over the stated term of the loan for the purpose of determining the rate of interest. The spreading of any such advance or forbearance for the purpose of computing [the rate of] interest shall be calculated by first computing the advance or forbearance as a percentage of the total stated amount of the loan. This percentage shall then be divided by the number of years, and fractions thereof, of the loan according to its stated maturity date, without regard to early maturity in the event of default. The resulting annual percentage rate shall then be added to the stated . . . ” [Emphasis Supplied]

Since an action predicated on remedies provided by the usury statutes creates no vested substantive right but only an enforceable penalty, such a penalty is not immune from statutory repeal or modification and the enactment of legislation to that effect abates such penalty even during the pending of an appeal from a final judgment predicated on such statutory penalty. Tel Service Co. v. General Capital Corp., 227 So.2d 667 (Fla.1969). While it appears then that Section 687.03, Florida Statutes (1977) is controlling, that statute provides that it is to operate prospectively. See Section 687.03(2)(b), Florida Statutes (1977). Therefore, under the holding in Tel Service Co., supra, Section 687.03(2), Florida Statutes (1975) is controlling. However, because of the similarity of language in all three versions, the disposition would be the same.

To determine the legislative intent, the court must look to the plain language of the statute which is to be taken, construed and applied in the form enacted. Thayer v. State, 335 So.2d 815 (Fla.1976). Further, the legislature is presumed to know the meaning of words and the rules of grammar and the court will give the generally accepted construction to both the phraseology of the act and the manner in which it is punctuated. Florida State Racing Commission v. Bourquardez, 42 So.2d 87 (Fla.1949).

Applying these rules of construction, we conclude that the plain meaning of the statute is that only an advance or forbearance may be spread over the loan and all three verbs “charged”, “reserved” or “taken” refer to a method by which an advance or forbearance is collected. Chase Manhattan’s argument that only the word “taken” is modified by the phrase “as an advance or forbearance” is contrary to the plain meaning of the statute.

Although Section 687.03, Florida Statutes (1977) is not controlling, nevertheless our conclusion above is reinforced by its title, Chapter 77-374, Laws of Florida (1977):

“CHAPTER 77-374
“Senate Bill No. 1437
“ACT relating to interest and usury; amending s. 687.03(3), Florida Statutes, 1976 Supplement; providing a method for spreading an advance or forbearance over the stated term of a loan in order to compute the effective rate of interest; providing an effective date.”

This title clearly demonstrates the legislative intent that only an advance or forbearance is to be spread over the stated term of a loan by providing a method therefor.

If the legislature had intended that any payments other than advance or for-bearances, such as variable or floating interest charges, be spread over the stated term of the loan, then it would have also provided a method for calculating such payments.

In addition, if Chase Manhattan’s interpretation was accepted, then we would have the absurd result of a borrower having to wait until the final maturity of a loan before he or she may have a cause of action for usury.

We, therefore, answer both certified questions in the negative.

      . 15.45% to be exact.

      . See Laws of Florida, Chapter 74-232 (1974).

      . See Laws of Florida, Chapter 77-374 (1977).


author: HUBBART, Judge.

text:
    The STATE of Florida, Petitioner, v. Michael DUMAS, Respondent.
    No. 78-83.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.

      Janet Reno, State’s Atty., and David M. Waksman, Asst. State’s Atty., for petitioner.
    Andrew H. Boros and Terrance J. McWil-liams, Miami, for respondent.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   HUBBART, Judge.

This is a petition for a writ of certiorari filed by the state seeking review of a pretrial discovery order entered by the trial court in a criminal case. The state and the defendant, as respondent herein, have filed briefs and presented oral argument to this court in the cause.

The primary issue presented for review centers around what types of police reports, if any, must be produced by the state on pre-trial discovery for the defendant in a criminal case. We hold that upon the filing of a proper written demand for discovery by the defendant under Fla.R. Crim.P. 3.220(a)(l)(i) and (ii), the state is only required to produce the following particular types of police reports: (1) those police reports which are written and signed or otherwise adopted or approved by a person whose name has been furnished by the prosecutor to the defendant upon demand under Fla.R.Crim.P. 3.220(a)(l)(i), and (2) those police reports which contain a substantially verbatim recital of an oral statement which is (a) made by a person whose name has been furnished by the prosecutor to the defendant upon demand under Fla.R. Crim.P. 3.220(a)(l)(i), and (b) made to an officer or agent of the state who recorded such statement contemporaneously with the making thereof. We accordingly quash the order under review as being overbroad.

The facts pertinent to the issue before the court are undisputed. On November 10, 1977, the defendant Michael Dumas and a co-defendant were charged by information with the crime of burglary of a structure before the Circuit Court for the Eleventh Judicial Circuit of Florida. On November 28, 1977, the defendant Dumas entered a plea of not guilty. On December 6, 1977, the defendant filed a lengthy written demand for discovery in which he requested inter alia: (1) the names and addresses of all persons known to the prosecutor to have information which may be relevant to the offense charged, and to any defense with respect thereto under Fla.R.Crim.P. 3.220(a)(l)(i), and (2) copies of all statements of any persons known to the prosecutor to have information relevant to the offense charged and to any defense thereto [including but not limited to police reports filed in the cause] under Fla.R.Crim.P. 3.220(a)(l)(ii). The state filed a response to this demand for discovery but withheld any police reports contending that they were not discoverable under Florida law. The defendant filed a motion for the production of all such police reports and, upon a hearing held on such motion, the trial court ordered the carte blanche production of all police reports filed in the cause “unless such reports contain material which should be protected.”

Fla.R.Crim.P. 3.220(a)(1) provides that “[a]fter the filing of the indictment or information, within fifteen days after written demand by the defendant, the prosecutor shall disclose to defense counsel . . (i) the names and addresses of all persons known to the prosecutor to have information which may be relevant to the offense charged, and to any defense with respect thereto; [and] (ii) the statement of any person whose name is furnished in compliance with the preceding paragraph [subsection (i)].” A “statement” is thereafter defined by the rule to mean one of two things: (1) “a written statement made by said person and signed or otherwise adopted or approved by him, or a stenographic, mechanical, electrical, or other recording, or a transcript thereof;” or (2) “a substantially verbatim recital of an oral statement made by said person to an officer or agent of the State and recorded contemporaneously with the making of such oral statement . .”. Finally, the rule in conjunction with Fla.R. Crim.P. 3.220(i) provides that upon the request of any person, the trial court may make an in camera inspection of any police reports supplied under this rule; and upon a finding that “any police report contains irrelevant, sensitive information or information interrelated with other crimes or criminal activities and [that] the disclosure of the contents of such police report may seriously impair law enforcement or jeopardize the investigation of such other crimes or activities, the court may prohibit or partially restrict such disclosure.”

This court in State v. Latimore, 284 So.2d 423 (Fla.3d DCA 1973), followed the above definition of “statement” under Fla.R. Crim.P. 3.220(a)(1)(ii) and quashed a trial court order requiring the state to make a carte blanche discovery to the defendant of all police reports filed in connection with the case. No demand for discovery had ever been filed by the defendant under Fla.R.Crim.P. 3.220(a)(1)(i), (ii); only a defense motion for the production of all police reports in the case was made. This court flatly held that “police and other investigative reports which [1] do not quote a person under CrPR 3.220(a)(l)(ii) directly and [2] never are signed or shown to that person are not statements within CrPR 3.220(a)(l)(ii) and thus are not subject to discovery thereunder.”

In Miller v. State, 360 So.2d 46 (Fla.2d DCA 1978) the court reversed a criminal conviction on the ground that the trial court had erred in denying discovery production to the defendant upon proper demand of certain police reports written and signed by persons [policemen] who witnessed or were victims of the crime for which the defendant was charged. The court held that such police reports were statements within the meaning of Fla.R. Crim.P. 3.220(a)(1)(ii).

In the instant case, it is clear that the defendant has filed a proper discovery demand upon the prosecutor under Fla.R. Crim.P. 3.220(a)(1)(i), (ii). It is also clear, as the state concedes, that the police reports in this case contains no irrelevant or sensitive material for which an in camera inspection would be necessary. Nonetheless, the trial court’s order under review is in error as being overbroad because it orders the carte blanche production of all police reports filed in the case [unless otherwise subject to protection] and such is clearly improper. The trial court should have ordered the production of only two types of police reports herein as defined in Fla.R.Crim.P. 3.220(a)(l)(ii) and interpreted in Latimore and Miller, to wit: (1) those police reports which are written and signed or otherwise adopted or approved by a person whose name has been furnished by the prosecutor to the defendant upon demand under Fla.R. Crim.P. 3.220(a)(l)(i) and (2) those police reports which contain a substantially verbatim recital of an oral statement (a) made by a person whose name has been furnished by the prosecutor to the defendant upon demand under Fla.R.Crim.P. 3.220(a)(l)(i), and (b) made to an officer or agent of the state who recorded such statement contemporaneously with the making thereof.

The order under review is quashed and the cause remanded to the trial court with directions to order the state to make pretrial discovery to the defendant of only those police reports as particularized above.

It is so ordered.

      . This holding is subject to the further limitation that upon the request of any person, the trial court may make an in camera inspection of any police report which contains irrelevant or sensitive information and thereafter prohibit or partially restrict the discovery of such police report under Fla.R.Crim.P. 3.220(a)(l)(ii), 3.220(i). Such a limitation, however, has no application to this case as the state has conceded at oral argument in this cause that the police reports herein contain no irrelevant or sensitive material.

      . “Third, CrPR 3.220(a)(l)(ii) itself makes it clear that the word ‘statement’ as used in the rule means a written statement signed by the person who made such statement or a substantial verbatim recital of an oral statement made by a person to an officer or an agent of the State and recorded contemporaneously with the making of such oral statement.” 284 So.2d at 425. [Emphasis omitted].


author: HOBSON, Acting Chief Judge.

text:
    Mary M. Cummins ANGELL, formerly Mary M. Cummins, as administratrix of the estate of Robert A. Cummins, Sr., Deceased, Appellant, v. F. AVANZINI LUMBER CO., a Florida Corporation and Donald Kabrich, an Individual, Appellees.
    No. 77-1643.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 1978.
    As Modified on Denial of Rehearing Oct. 25, 1978.
    Gregory L. Macy, of Hamilton, Douglas & Bennett, Tampa, for appellant.

      John H. Piccin, of Pattillo, MacKay & McKeever, Ocala, for appellees.
   HOBSON, Acting Chief Judge.

Appellant/plaintiff, Mary M. Cummins Angelí, as administratrix of the estate of Robert A. Cummins, Sr., deceased, appeals the dismissal of her second amended complaint for failure to state a cause of action. The complaint contained two counts: 1) common law negligence, and 2) negligence based upon appellees’ breach of Section 790.17, Florida Statutes, which forbids the sale of weapons to minors and persons of unsound mind. We reverse as to count one and affirm as to count two.

For the purposes of this opinion we accept the facts as alleged in appellant’s amended complaint. They present the following scenario: On October 20, 1975, Cynthia Rose Hartley entered the business of Avanzini Lumber Company, a dealer in firearms. Her eyes were glazed and she was laughing and giggling as she hugged and kissed one of the employees who was a total stranger to her. At her request, appellee Kabrich, an employee in the store, handed Ms. Hartley a .30 caliber rifle which she then repeatedly aimed at Kabrich’s head, pulling the trigger. After one such episode, she stated that since she had shot Kabrich she would have to bury him. Ms. Hartley then demanded ammunition and, despite numerous admonitions by appellee Kabrich, she repeatedly attempted to load the rifle. At this juncture, Kabrich called the Citrus County Sheriff’s Department and told the duty officer that a woman was at the store to buy a rifle and was acting strangely. The deputy advised Kabrich that he did not have to sell the rifle to Ms. Hartley. However, Kabrich decided to sell the rifle and ammunition to Ms. Hartley. Shortly thereafter, she used this rifle to shoot and kill appellant’s decedent who was not an employee of Avanzini Lumber Company.

No one disputes that in order for Count I of appellant’s complaint to withstand a motion to dismiss, it must contain three elements: 1) existence of a duty on the part of defendant to protect plaintiff from injury, 2) failure of the defendant to perform this duty, and 3) injury to the plaintiff resulting from such failure. Simon v. Tampa Electric Co., 202 So.2d 209 (Fla.2d DCA 1967). We believe the first two elements are clearly shown and appel-lees do not argue to the contrary. The issue here is whether the intervening criminal act of Ms. Hartley relieved appellees from their liability to appellant’s decedent. In other words, was the sale of the firearm and ammunition to Ms. Hartley a proximate cause of the injury? Our supreme court has held that the test for determining proximate cause is foreseeability. Nicholas v. Miami Burglar Alarm Co., Inc., 339 So.2d 175 (Fla.1976). The question then is, could appellee Kabrich have reasonably foreseen the consequences of the sale? In view of Ms. Hartley’s erratic behavior and appellee Kabrich’s subsequent phone call to the sheriff’s department, we believe that appellees could have foreseen that injury to someone was highly probable. Indeed, the facts which appellant alleged show that appellee Kabrich was even apprehensive of his own safety under the circumstances. We therefore hold that appellees’ liability to appellant’s decedent was not cut off by the intervening act of a third party and thus appellant has stated a cause of action in her complaint.

We affirm dismissal of Count II as the facts alleged were insufficient to state a cause of action under Section 790.17. We reverse dismissal of Count I and remand for further proceedings.

SCHEB and OTT, JJ., concur.