author: LOTTINGER, Judge.

text:
    Clyde WATSON et ux. v. ILLINOIS CENTRAL GULF RAILROAD, State of Louisiana through the Department of Highways, Gulf States Utilities Company, W. D. Petty, Sr., J. C. Massey, and G. Richards.
    No. 11825.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Writ Refused May 5, 1978.
    See also La.App., 327 So.2d 518.

      Paul Due, Baton Rouge, for plaintiff.
    Boris Navratil, Baton Rouge, for defendant.
    Wm. Whatley, Baton Rouge, for Dept, of Hwys.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit by Clyde Watson and wife for the death of their minor daughter, Brenda, as a result of an automobile-train collision. Plaintiffs sued Illinois Central Gulf Railroad Company, (I.C.G.R.), W. D. Petty, Sr. (engineer), James C. Massey (apprentice engineer), Thomas G. Richards (brakeman), Gulf States Utilities (G.S.U.), and the State of Louisiana through the Department of Highways (Highway Department). The Trial Judge held I.C.G.R. and James Massey liable in solido for the damages sustained by the plaintiffs, but found in favor of the remaining defendants. I.C.G.R. and Massey have appealed that portion of the decision holding them liable, and the plaintiffs have appealed the portion of the decision in favor of the defendants G.S.U. and the Highway Department.

The record points out that on the morning of October 23, 1972, the deceased was proceeding in a southeasterly direction along La. 1026 (Lockhart Road), and the train was approaching from an easterly direction towards the Lockhart Crossing. Lockhart Road and the railroad tracks intersect at an angle of approximately 45 degrees, however, since the deceased was traveling southeast and the train was approaching from the east, they were meeting frontally. I.C.G.R. owns a 50 foot right of way on either side of the center line of the railroad tracks, with G.S.U. owning a 50 foot servitude parallel and adjacent to the northern side of the I.C.G.R. right of way, and the Highway Department maintaining an 80 foot right of way intersecting with the I.C.G.R. right of way.

The location of the crossing is not in an incorporated municipality, but the area is relatively populated. Though the crossing lacked electrical control lights, bells, cross-arm devices, or a stop sign, it was marked by a railroad “crossbuck” sign, a yellow disc indicating a crossing, and a white painted mark on the highway surface.

At approximately 8:30 A.M. the automobile and the train collided as the deceased attempted to traverse the tracks. The causation of this collision as found by the Trial Judge was the failure of I.C.G.R. to maintain an unobstructed intersection and the failure of James Massey to sound the train warning signals beginning at a statutory distance of 900 feet from the crossing. On appeal, defendants I.C.G.R. and Massey contend that the Trial Judge erred (1) in finding that warning signals were not given by the train crew until the train was 400 feet from the crossing and alternatively in concluding that failure to give signals before the train came to within 400 feet from the crossing was a proximate cause of the accident; (2) in concluding that the crossing at which the accident occurred was dangerously obscured and constituted a dangerous trap; (3) in finding that decedent was not obliged to stop at the crossing and look for approaching trains; (4) in concluding that LSA-R.S. 45:563 has been impliedly repealed by LSA-R.S. 32:171; (5) in holding that LSA-R.S. 45:324 and 841 were applicable in this case or that LSA-R.S. 48:382 imposed on the railroad, rather than the Highway Department, the obligation to maintain the crossing; and (6) in holding that the decedent’s parents could recover damages for her death despite any contributory negligence on her part.

Plaintiffs in appealing contend that the Trial Judge erred in failing to find liability on the part of the defendants Gulf States Utilities and the Highway Department. This specification of error will be concurrently discussed in defendants’ error number 5.

ERROR NO. 1

The duty of the railroad company operating in the state of Louisiana is to sound a warning whistle or bell not less than 300 yards from a crossing. LSA-R.S. 45:561. Failure to make an audible signal meeting statutory requirements is negligence per se. Bertrand v. Missouri Pacific Railroad Co., 160 So.2d 19 (La.App. 3rd Cir. 1964), writ refused, 245 La. 1075, 162 So.2d 571 (1964). In the Trial Judge’s written reasons for judgment he reviewed the testimony of all the witnesses as to the giving of the proper signal at the required distance and relied on the testimony of one of the members of the train crew as to the distance being 400 feet at the time of the commencement of the warning signals.

Although the testimony of the engineer conflicts with the other members of the train crew it is the Trial Judge’s function to weigh the credibility of these witnesses and absent a showing of manifest error, his decision as to the reliability of the witnesses and the weight to be given to their testimony will not be reversed. Canter v. Koehr-ing Company, 283 So.2d 716 (La.1973). We find no error in the Trial Judge’s finding that the train failed to give the proper signal within the statutorily required distance.

It is clear that the requirement under LSA-R.S. 45:561 is designed to protect motorists who are traversing train crossings. Miss Watson was the intended beneficiary of the warning signal and thus the failure to give that signal is a proximate cause of the accident. The finding by the Trial Judge that the duty was owed to Miss Watson and that I.C.G.R. and James Massey breached this duty is conclusively established in the record, and thus we find no error.

ERROR NO. 2

It is the finding of the Trial Judge that the failure of the railroad company to keep the northeast quadrant clear of trees and other vegetation obscuring the approaching motorist’s visibility of an oncoming train “rendered the crossing unsafe for ordinary and reasonable use and was a proximate cause of the accident.” After a careful review of the record including the state police report of the incident, this Court can only formulate the same conclusion that the trees and bushes in that quadrant sufficiently obscured the motorist’s view of approaching trains, rendering the crossing unsafe.

ERROR NO. 3 & 4

Defendants-appellants argue that the deceased was contributorily negligent in failing to stop at the crossing in violation of LSA-R.S. 45:563.

It is well settled that he who pleads contributory negligence must prove by a preponderance of the evidence that the injured party failed to act as a reasonable and prudent man and that his negligent conduct was a contributing cause of the accident. There is of course the presumption that the deceased acted in response to the natural instincts of self preservation and would not seek to commit suicide by exposing himself to unnecessary risks of death.

The Trial Judge concluded that LSA-R.S. 45:563 had been superceded by LSA-R.S. 32:171 and 172. LSA-R.S. 45:563 was originally enacted as Act 12 of 1924, whereas, LSA-R.S. 32:171 and 172 were enacted as Act 310 of 1962. In Louisiana Civil Service League v. Forbes, 258 La. 390, 246 So.2d 800, 809 (1971) Mr. Justice Hamlin said:

“It is a well established rule of statutory construction that the Legislature is presumed to have enacted a statute in the light of preceding statutes involving the same subject matter and decisions construing such statutes, and, where the new statute is worded differently from the preceding statute, the Legislature is presumed to have intended to change the law.”

Therefore, when LSA-R.S. 45:563 mandates that vehicles stop at railroad crossings and the legislature later enacts LSA-R.S. 32:171 and 172 which particularize the conditions under which a vehicle must stop at railroad crossings, we must conclude as did the Trial Judge that the latest expression of the legislature, LSA-R.S, 32:171 and 172, controls.

Therefore, considering that the Trial Judge found that the decedent’s view of the approaching train was impaired by trees and vegetation; that Ms. Watson was only traveling approximately 25 to 30 miles per hour; that the train crew first saw her vehicle when the train was only 60 to 75 feet from the intersection, thus indicating that Ms. Watson would have first seen the train at the same time; that she momentarily applied her brakes, thus indicating that she apparently started to stop, but realizing the impossibility of stopping, attempted to beat the train across the intersection, we must conclude as did the Trial Judge that she was not contributorily negligent.

ERROR NO. 5

The Trial Judge in considering whether the sole duty to maintain an unobstructed view of Lockhart Crossing fell upon I.C. G.R. found:

“LSA-R.S. 48:382 to be an exception to the statutory and non-statutory duty to maintain safe and convenient crossings with highways, and as such, it should not be construed so as to relieve the railroad of the responsibility to keep the crossing clear of dangerous obstructions which are in the crossing but not within the Highway Department right of way, nor should it be construed to make the Highway Department an additional obligor in this respect. Had the obstruction been within both the crossing and the Highway Department right of way, there is a question of whether the Highway Department alone or both I.C.G.R. and the Highway Department together would have been responsible for clearing the dangerous obstruction. This question, however, is not before the Court, and the Court finds the Highway Department free of any fault.
“The Court does not feel that R.S. 48:382 extends the obligation to the area beyond the facility last constructed and the right of way on which it was constructed. It appears from the testimony that the trees and vegetation at the crossing which blocked the motorists’ visibility was not on the Highway Department right of way. The Court is not convinced that the Highway Department should be held responsible for obstruction not even on its right of way although within the ‘crossing’.”

We find no error in the Trial Judge’s holding that the Highway Department is not liable to the deceased, they having no duty to maintain an area beyond their right of way. As to the defendant G.S.U., we find no liability incurred in that their servitude did not place a duty upon them to maintain I.C.G.R.’s right of way clear of trees or underbrush, nor was it obligated anymore than a landowner to clear brush and trees from its own right of way.

ERROR NO. 6

Based on the holding that there is no error as to the finding that the deceased was not contributorily negligent, we find no need to discuss this specification of error.

Therefore for the above and foregoing reasons the judgment of the Trial Court is affirmed; defendants-appellants, to pay all costs.

AFFIRMED.

      . LSA-R.S. 45:563 provides:
      “No person shall drive or propel any automobile or other motor driven vehicle upon the intersection of a railroad track and a public highway or municipal street at grade crossing without first stopping at a distance of not less than ten feet nor more than fifty feet from the nearest track and looking for approaching trains.
      “In the trial of all actions to recover personal injury or property damages sustained by any driver of such motor driven vehicle by collision of his vehicle and a train in which action it may appear that the driver violated this Section, the question of whether the violation was the sole or proximate cause of the accident and injury is for the jury to determine regardless of the penalizing feature of R.S. 45:564. That the violation of this Section shall not affect recovery for damages and the question of negligence or violation shall be left to the jury. Furthermore, the contributory negligence statutes of Louisiana shall apply in these cases as in other cases of negligence.
      “This Section shall not apply to automobiles or other motor driven vehicles of any municipality, when responding to fire alarm, or to the automobiles or other motor driven vehicles of the police department of any municipality when responding to an emergency call, or to motor driven ambulances when responding to an emergency call. Nor shall this Section apply where crossings are provided with a flagman, and the signal to proceed has been given by the flagman, or where gates are provided and the gates are open.”

      . LSA-R.S. 32:171 provides:
      “A. Whenever any person driving a motor vehicle approaches a railroad grade crossing under any of the circumstances stated in this Section, the driver of such vehicle shall stop within fifty feet but not less than fifteen feet from the nearest rail of such railroad, and shall not proceed until he can do so safely. The foregoing requirements shall apply when:
      “(1) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a railroad train;
      “(2) A crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a railroad train;
      “(3) A railroad train approaching within approximately nine hundred feet of the highway crossing emits a signal in accordance with R.S. 45:561, and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard;
      “(4) An approaching railroad train is plainly visible and is in hazardous proximity to such crossing.
      “B. No person shall drive any vehicle through, around or under any crossing gate or barrier at a railroad crossing while such gate or barrier is closed or is being opened or closed.”

      . LSA-R.S. 32:172 provides:
      “The department may designate particularly dangerous highway grade crossings of railroads and erect stop signs thereat. When such stop signs are erected, the driver of any vehicle shall stop within fifty feet, but not less than fifteen feet, from the nearest rail of such railroad and shall proceed only upon exercising due care.”


source: Caselaw Access Project

author: JOHNSON, Judge.

license: Public Domain

text:
    Malcolm Allen ROBERTSON, Plaintiff-Appellant, v. CUMIS INSURANCE COMPANY, Defendant-Appellee.
    No. 6331.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.

      Kramer & Davis, James D. Davis, Alexandria, for plaintiff-appellant.
    Stafford, Randow, O’Neal & Smith, H. Dillon Murchison, III, Alexandria, for defendant-appellee.
    Before GUIDRY, FORET and JOHNSON, JJ.
   JOHNSON, Judge.

This appeal is from a dismissal by the trial court of plaintiff’s lawsuit. The trial judge sustained a motion for summary judgment by the defendant. The case involves a question of insurance coverage. We consider that this is a proper case in which to consider a motion for summary judgment. There is no dispute about the facts. They are:

1) Malcolm Allen Robertson, Sr., father of the plaintiff, is domiciled and has his residence in Pineville, Rapides Parish, Louisiana. He owns two automobiles. Each of them is insured with the defendant, Cumis Insurance Company. Each has $10,000.00 in uninsured motorists coverage making an aggregate of $20,000.00.
2) Malcolm Allen Robertson, Jr., son of Malcolm Allen Robertson, Sr., was twenty years of age. He was stationed in Minot, North Dakota at the air force base and had been for a period of about a year and a half when the accident occurred. He was not married.
3) On July 30,1976, yoüng Robertson was a guest passenger in the car owned and being driven by his friend, one William Nasiatka, in or near Minot, North Dakota. Nasiatka, through his fault alone, rear ended another vehicle causing extensive injuries to young Robertson. Robertson’s injuries, for which he is entitled to recover, cannot be adequately compensated for by the $10,000.00 liability policy on Nasiatka’s automobile,
4) Young Robertson filed suit in Rapides Parish for recovery under his father’s uninsured (underinsured) motorist coverage on the two policies insuring his father’s automobiles.
5) Young Robertson owned an automobile which he kept with him in North Dakota. Apparently, though the evidence does not make clear, it was not insured.
6) The facts show that young Robertson maintained his domicile with his father in Rapides Parish; that he was only away because of the fact that he was in the service. He always returned to his father’s residence. There was a place for him there.

The trial court held that young Robertson was not an insured under his father’s insurance policies because, although a resident of his father’s household, he was the owner of a private passenger automobile. The district judge held that the purchase by young Robertson of his own automobile took him out of the classification of an “insured”. This resulted in young Robertson not being an “insured” under the father’s policies. A dismissal of his lawsuit by the trial court on the motion for a summary judgment resulted. The court held that one had to be an insured to be covered by uninsured motorist coverage.

The portions of the policies we are concerned with are:

“PERSONS INSURED: Under the liability and Medical Expense Coverages, the following are insureds:
(a) . . .
(1) . . .
(2) • . .
(3) . . .
(b) with respect to non-owned automobile,
(1) . . .
(2) a relative, but only with respect to a private passenger automobile or utility trailer, provided his actual operation or (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission, and . . . ” (Emphasis by this Court)
“ ‘relative’ means a person related to the named insured by blood, marriage, or adoption who is a resident of the same household, provided neither such relative nor his spouse owns a private passenger automobile.” (Emphasis by this Court)

To begin with, we note that in order for one to be insured under the “uninsured” and “underinsured” provisions he must first be insured under the liability provisions. This seems to be so well established that we do not feel it requires further comment. See: Seaton v. Kelly, 339 So.2d 731 (La. 1976).

From the above policy language, we see that the first requirement for young Robertson to be covered by his father’s policies is that he be a “resident of the same household”, or of his father’s household, since his father is the named insured under the two policies. Our courts have uniformly held that a person can have more than one residence. There are a number of cases so holding most of which are reviewed in the fairly recent case by this Court, Hobbs v. Fireman’s Fund American Insurance Companies, 339 So.2d 28 (La.App. 3 Cir. 1976). Also, see Fielding v. Casualty Reciprocal Exchange, 331 So.2d 186 (La.App. 3 Cir. 1976); LaFleur v. Seaboard Fire & Marine Insurance Company, 296 So.2d 860 (La.App. 3 Cir. 1974); and Manuel v. American Emp. Insurance Company, 228 So.2d 321 (La.App. 3 Cir. 1969).

From the foregoing jurisprudence we see that, in some respects at least, one, such as young Robertson here, can have a residence in two or more places. We find that he has a residence in North Dakota. We also find that he has a residence in his father’s household. There is a place there for him. He always comes back there every time he gets leaves from the service. He spends his leave time with his parents. In accordance with the cases cited hereinabove, and the evidence herein, we find that he has a residence with his father.

We note again that the clause we are speaking of in the definitions in the insurance policy not only uses the word “resident” but in its complete sense is shown as “who is a resident of the same household”.

We find that at times our Appellate Courts have made a distinction in the terminology, “resident” and “who is a resident of the same household”. Our Louisiana Supreme Court dealt with this terminology in 1965, in the case of Taylor v. State Farm Mutual Automobile Insurance Co., 248 La. 246, 178 So.2d 238 (1965). This case involved a minor whose father’s home was in Arkansas. The minor left his father’s home in Arkansas and came to live with an uncle in Alexandria, Louisiana. The uncle in Alexandria secured employment for the minor. Sometime later the minor was involved in an automobile accident as the driver of his uncle’s car. The policy involved, that is the policy on the father’s car in Arkansas, with respect to the definition of relative, read as follows:

“Relative — means a relative of the named insured who is a resident of the same household.”

The Supreme Court held that the coverage of the automobile liability insurance policy of the minor’s father, written on the father’s car in Arkansas, covered this minor driving his uncle’s car in Alexandria, Louisiana. The Court found the minor to be “a resident of the same household” as the father in Arkansas.

We find an opposite result in the case of Tingstrom and Ehrhard v. State Farm Mutual Automobile Insurance Company, 274 So.2d 911 (La.App. 1 Cir. 1973). In that case, the minor was on active duty as a member of the U. S. Navy. He had completed one and a half years on a three year enlistment. He was living in Atlanta, Georgia. He had been stationed there for a period of six months. The minor was temporarily at home with his father in Louisiana. The minor owned an automobile which was insured with State Farm. The father owned an automobile which was insured with State Farm. The minor had an accident in which he and his passenger were both killed. He was driving his father’s vehicle at the time. The Court was required to interpret the question as to whether or not the minor “was a member of the same household” as his father. This was for the purpose of determining if the policy of the minor’s car would cover him, under the circumstances. The Court held that the minor, under these circumstances, was not a resident of the same household as his father. This ruling resulted in the minor’s insurance coverage following him in his father’s automobile and covering his liability in this accident. The Supreme Court denied writs. Tingstrom and Ehrhard v. State Farm Mutual Automobile Insurance Company, et al., 279 So.2d 202 (La.1973). This holding seems directly opposite to the holding in Taylor, supra.

To the same effect as the Tingstrom case is a recent case, Branam v. Traders and General Insurance Company, 344 So.2d 1073 (La.App. 3 Cir. 1977). This case points out the problems arising with respect to interpretations of these definitions, “resident of the same household” in these insurance policies. This problem is present in the instant case but it is not necessary that we categorically decide this question since we agree with the trial judge on the other issue presented herein.

The district judge found that young Robertson would be excluded from coverage under his father’s policy. Young Robertson was not a “named insured” on the policy so the only way he could qualify would be as an “omnibus insured”.

As previously shown, the trial court found that he was a “resident of the same household” and we have pretermitted a finding on that question. However, for the purpose of considering whether or not he is an insured we must assume, arguendo, in order to consider his status as a relative, that he was a resident of the father’s household. The trial judge held that young Robertson’s purchase of his own automobile, under the clear language of the policy, eliminated him as a “relative” and therefore he was not an insured.

We find that this holding, too, is not free from difficulty. Rushing v. Allstate Insurance Company, 216 So.2d 875 (La.App. 1 Cir. 1968), is a case where the Court was faced with the problem of deciding whether (in a situation where a person owned two automobiles one of "which was insured and one of which was not insured) the liability insurance covered the owner when he was driving the uninsured vehicle. The case held that there was no liability insurance covering the driver. It also held that without liability coverage there could be no uninsured motorist coverage.

In Elledge v. Warren, 263 So.2d 912 (La.App. 3 Cir. 1972), writ refused because the judgment was not final, 262 La. 1096, 266 So.2d 223 (La.1972) we rejected the result of Rushing cited hereinabove with respect to uninsured motorist coverage in instances where an insured is occupying an uninsured automobile owned by the named insured. We did not in that case, however, purport to alter or abrogate the well settled principle that in order for one to be insured under the “uninsured” or “underinsured” provisions, he must first be an insured under the liability provisions of the policy.

A recent case by the First Circuit Court of Appeal touches on the problem involved herein. The case is Chateau v. Smith, 297 So.2d 268 (La.App. 4 Cir. 1974), and we quote from page 270:

“[1,2] Assuming the insurer might lawfully exclude coverage of a named insured on an owned but uninsured motorcycle, the present policy does not do so. It excludes the insured in an owned but uninsured “automobile”. The term “automobile” does not ordinarily include a motorcycle; Laporte v. North American Acc. Ins. Co., 1926, 161 La. 933, 109 So. 767; Guillory v. Deshotel, La.App.1971, 251 So.2d 91, writ refused, 259 La. 810, 253 So.2d 67.”

A case very similar to our case was decided by the Louisiana Supreme Court in 1972: Graham v. American Casualty Co. of Reading, Pa., 261 La. 85, 259 So.2d 22 (1972). The father in this case had two automobiles both of which were covered with liability insurance. His minor daughter, who apparently resided with him, had a vehicle in her name also with a policy of liability insurance covering her automobile. Each of the three policies had the amount of $5,000.00 in uninsured motorist coverage. The minor was a passenger in a car belonging to a friend. This car was uninsured. The friend had a collision with a stranger. That ear was uninsured. The minor received injuries. Her father filed suit on the minor’s behalf alleging liability under the uninsured motorist coverage of his two policies and under uninsured motorist coverage on his-daughter’s policy on her car. The Supreme Court allowed recovery of the full $15,-000.00. The decision was concerned mostly with pro rata provisions of the policies and with the question of “stacking”. The record in the Supreme Court and in the Court of Appeal, 244 So.2d 372 (La.App. 1st Cir. 1970), does not indicate whether the issue as to the minor being an insured under her father’s two policies was ever questioned in either court. It is believed that the exclusion we are concerned with here is, and has been for some time, a standard provision of automobile liability insurance policies. We find this exclusion in the Rushing v. Allstate Insurance Company case, supra, a 1968 ease.

The Graham case and our instant situation, we believe, are almost identical in facts which have bearing on the decision. The only differences (and we do not believe these differences would call for any divergence in the interpretation of the clauses we are concerned with in the insurance policies) are that in Graham, we have a minor while in our case the boy is of age. In Graham, the girl’s car was insured. In our case, the car is uninsured. But in each case, we have the situation of a relative of the same household being the owner of his or her own automobile. This situation, under the exclusion we are dealing with here, clearly mandates that this boy or this girl not be an insured under the automobile liability insurance of the parent. In Graham the daughter’s status as an insured under her father’s insurance policies was not questioned. In Graham, this exclusion was possibly not in the policy. In our case, it is the only question before us for decision.

In Elledge v. Warren, supra, the party seeking uninsured motorist protection was an insured, albeit, driving an uninsured motor vehicle owned by him. In the cited case, we refused to allow an exclusion in the policy because it was contrary to our statutory scheme on uninsured motorist protection and stated:

“The purpose of the statute is to protect completely, those willing to accept its protection, from all harm, whatever their status — passenger, driver, pedestrian — at the time of injury, produced by uninsured motorists. The only restrictions are that the plaintiff must be an insured, the defendant motorist uninsured, and that plaintiff be legally entitled to recover. We will not enlarge upon these qualifications and restrict the coverage of such a socially desirable policy by allowing insurance companies to pursue alleged “business interests.” (Emphasis ours).

In the instant case, plaintiff is not the named insured. Under the plain provisions of the policy an omnibus insured with respect to a non-owned automobile is a relative of the named insured, who is a resident of the same household, provided such relative is not the owner of a private passenger automobile. These terms are clear and unambiguous and lead to no absurd consequences and must be given effect as written since a contract of insurance like any other contract, is the law between the parties. LSA-C.C. Art. 1901; Vidrine v. Southern Farm Bureau Casualty Insurance Company, 247 So.2d 660 (La.App. 3rd Cir. 1971); Taylor v. State Farm Mutual Automobile Insurance Company, 248 La. 246, 178 So.2d 238 (1965).

Considering the plain language of the policy, the evidence, and the jurisprudence, we hold that young Robertson, upon the acquisition of his own automobile, was no longer an insured on his father’s two automobile liability policies. Since we so find, and particularly in line with Seaton v. Kelly, supra, which holds that one has to be an insured under the liability policy before having coverage under the uninsured provisions, we hold that young Malcolm Robertson is not covered by the uninsured motorist provisions of his father’s policy.

We therefore affirm the trial court’s judgment herein dismissing this suit at plaintiff-appellant’s costs.

AFFIRMED.


author: SUGG, Justice, for the Court.

text:
    William S. RIDDELL v. RESPIRATORY CARE SERVICES.
    No. 49904.
    Supreme Court of Mississippi.
    March 8, 1978.
    Michael J. McCormick, Gary R. Parvin, Starkville, for appellant.
    Beach, Beach, Luckett & Ross, Stephen L. Beach, Jackson, for appellee.
   SUGG, Justice, for the Court.

Respiratory Care Services filed its bill of complaint in the Chancery Court of Oktib-beha County seeking enforcement of the non-competition terms of a contract with its employee William Riddell. The court enjoined Riddell from working as a respiratory therapist at the Oktibbeha County Hospital or at any other place in Oktibbeha County for a period of two years.

Respiratory is in the business of providing respiratory therapy in hospitals which do not have respiratory therapy departments. It provides the personnel and equipment necessary to perform respiratory therapy services for fifteen hospitals in Mississippi. In addition to Respiratory, there are at least three other companies providing similar services for hospitals in the state.

The Oktibbeha County Hospital first initiated an agreement for respiratory therapy services in August, 1974 with Pulmonary Care Services. Pulmonary was purchased by Respiratory which merged the operations of Pulmonary into its own operations. Riddell was an employee of Pulmonary and worked at the Oktibbeha County Hospital as respiratory therapist beginning in August, 1974. On May 27, 1975, the Board of Trustees of the hospital gave the hospital administrator authority to discontinue the contract with Pulmonary at his discretion, looking toward establishing their own respiratory therapy department. Pulmonary was notified that the hospital intended to terminate the contract on August 15, 1975. Between May and August, 1975 Respiratory purchased Pulmonary and knew, when it purchased Pulmonary, that the hospital intended to establish its own respiratory therapy department. In August, 1975, the hospital administrator and Respiratory entered into an oral agreement whereby Respiratory would continue to furnish services to the hospital on a cost plus basis with the understanding that the contract would be terminated when the hospital established its own respiratory therapy department.

On December 9, 1975 Riddell signed an employment contract with Respiratory which contained the following restrictive covenants:

Riddell further agrees that during the term of this Contract of Employment and for a period of twenty-four (24) months after the termination of this Contract, he shall not, directly or indirectly, participate in any manner with a competitive business to that of RESPIRATORY, and for a period of twenty-four (24) months after the termination of this Contract, shall not be employed in any manner, by any firm, association, corporation or partnership, which is in any manner competitive with the business conducted with RESPIRATORY. These restrictions shall apply within the entire State of Mississippi hereby recognizing that RESPIRATORY now serves hospitals and other institutions throughout the entire State of Mississippi.

The hospital established its own respiration therapy department on May 1, 1976 and employed Riddell as its respiratory therapist. The restrictive covenant prohibited Riddell from participating directly or indirectly in any manner with a business in competition with Respiratory. The question for decision is whether the hospital is a business in competition with Respiratory.

Respiratory and its predecessor rendered services to patients of the hospital, but billed the hospital instead of the patient for such services. Respiratory was paid by the hospital regardless of whether the hospital collected from the patient. The effect of this was that the hospital served as a conduit through which Respiratory rendered services only to the patients of the hospital. When the hospital established its own respiratory therapy department, it performed the services for its patients formerly rendered by Respiratory. Respiratory contends that both it and the hospital are seeking the same patient dollar for respiratory therapy services, and therefore concludes that the hospital is in competition with it.

Under these facts we fail to see where the hospital is in competition with Respiratory because Respiratory’s competitors are not hospitals, but are other companies engaged in the same business as Respiratory rendering services to the patients of such hospitals. The hospital renders respiratory services only to its own patients and not to patients of other hospitals. If the hospital performed respiratory therapy services for other hospitals it would be in competition with Respiratory.

We therefore hold that the chancellor erred in holding that the hospital was in competition with Respiratory. When Rid-dell accepted employment with the hospital, he was not employed by a competing business with Respiratory and should not have been enjoined from performing such employment.

REVERSED AND RENDERED.

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


text:
    Valerie D. PETTIS v. STATE of Mississippi.
    No. 49780.
    Supreme Court of Mississippi.
    March 8, 1978.
    Robert Joseph LaBine, Gulfport, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   REVERSED AND APPELLANT DISCHARGED.

PATTERSON, C. J., and ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.


author: BROOM, Justice, for the Court:

text:
    Carolyn POWELL v. STATE of Mississippi.
    No. 49949.
    Supreme Court of Mississippi.
    March 8, 1978.
    Richard W. Wise, Starkville, for appellant.
    A. F. Summer, Atty. Gen., by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, BROOM and BOWLING, JJ.
   BROOM, Justice, for the Court:

Marijuana possession is the offense for which Carolyn Powell (appellant) was convicted in the Circuit Court of Lowndes County, Mississippi. She appeals from a sentence of two years at the Mississippi Department of Corrections and a $500 fine. Her appeal is grounded on the assertions that (1) the evidence was insufficient to connect her with the contraband so as to support the jury verdict, and (2) the search warrant was invalid and not amendable because the affidavit for search warrant lacked a signature of the issuing authority. We affirm.

Search of the house for which appellant paid rent was made by authority of a search warrant issued on the night of January 20, 1976. Officer Billy Pickens of the Columbus Police Department obtained a search warrant for appellant’s residence (rented from P. A. Yelverton, owner), and other officers assisted Pickens with the search at 5:55 a. m. on January 21, 1976. One plastic bag of marijuana was taken from the living room coffee table; other marijuana was taken from a small military ammunition box situated in the living room in front of the fireplace, and another quantity was taken from a larger ammunition box found in the closet of appellant’s bedroom.

The aggregate quantity of the marijuana was about fourteen ounces. Felix Owens, a man who lived with appellant in the house, and the appellant herself were arrested and charged with marijuana possession. The warrant authorizing the search was obtained from Justice Court Judge Ellis S. Dale who failed to affix his signature to the affidavit. Testimony shows that Officer Pickens signed the affidavit after being placed under oath by Judge Dale, after which Dale wrote the date and signed “Justice Court Judge” on the affidavit (inadvertently failing to affix his signature).

First argument made in behalf of the appellant is that the state did not establish its case against the appellant for failure to show, in addition to appellant’s physical proximity to the contraband substance, additional incriminating facts which connected appellant with the contraband. The correct rule in this jurisdiction is that one in possession of premises upon which contraband is found is presumed to be in constructive possession of the articles, but the presumption is rebuttable. We have held that where contraband is found upon premises not in the exclusive control and possession of the accused, additional incriminating facts must connect the accused with the contraband. Where the premises upon which contraband is found is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband. Sisk v. State, 290 So.2d 608 (Miss.1974).

Several cases involving possession of contraband found upon premises to which others have access have come before us and there is no rigid rule that can be stated to govern every conceivable case, but each case must be decided upon its peculiar facts. Although this case is close upon the facts, our judgment is that the evidence was sufficient to raise a jury issue. The record leaves no doubt that the house in which the contraband was found was rented by the appellant, who paid at least part of the rent. Marijuana was found in the closet of the bedroom which she claimed as her bedroom, and was also found in the living room. Appellant was present when the search and seizure was made and she accompanied narcotics agent Temple to her bedroom where she remained while he searched. No marijuana was found in the bedroom which the other adults (who were said to also live in the house) used as their bedroom. Although three other people were in the living room (where part of the substance was found) with appellant at the time of the search and seizure, the evidence was sufficient to raise the rebuttable presumption. The jury had the prerogative to pass upon the weight and worth of all of the testimony. Although the appellant herself did not testify, she presented a Ms. Starr who testified that she (Starr) had been to the house on different occasions. Witness Starr stated that a band practiced there at times and that none of the rooms were locked. Another defense witness, Gerald Berry, Jr., testified that the house was not kept locked and that the inside doors would permit people to go from room to room. According to Berry, he lived with the appellant there and paid one-third of the rent. He also stated that a “rock-n-roll” band practiced there and that its members had free access to all parts of the house. We hold that the case, upon the record, was properly allowed to go to the jury.

The other proposition argued is that the search warrant was fatally defective because the Justice Court Judge failed to sign the jurat of the affidavit. We find no merit in this argument. Undisputed testimony shows that the affiant appeared before Judge Dale, who put him under oath and obtained the information contained in the underlying facts and circumstances of the affidavit. After giving that information to the judge under oath, Pickens signed the affidavit and Dale wrote the date and his title at the bottom. Pursuant to the affidavit, Dale then issued the search warrant for the residence rented by appellant. The search warrant bears Dale’s signature, which by reference incorporates the content of the affidavit.

The Fourth Amendment to the United States Constitution provides that people shall be secure against unreasonable searches and seizures. Article 3, § 23, of the Mississippi Constitution has a similar provision. Of course, the purpose of a search warrant is to authorize a reasonable search after a neutral magistrate determines that probable cause for the search exists. An affidavit for a search warrant is a means of presenting to the issuing officer a basis upon which he may determine whether in fact probable cause exists. O’Bean v. State, 184 So.2d 635 (Miss.1966); 68 Am.Jur.2d Searches and Seizures, § 63 (1973). It follows that the sworn statement of the affiant is the most critical aspect of the validity of the affidavit rather than the placing thereon of the signature of the issuing authority. In Huff v. Commonwealth, 213 Va. 710, 194 S.E.2d 690 (1973), the affiant did not sign the affidavit for a search warrant until the search was made, whereas the issuing officer did sign the jurat. The Virginia High Court stated:

It is the oath that solemnizes and verifies. If the affiant is sufficiently identified in the body of the affidavit or in the jurat, his signature is not essential.
The magistrate’s “certification” that the affidavit was subscribed by the affi-ant, when it was not, does not taint the verity of the affidavit. The jurat is not a part of the affidavit; it is simply written evidence that probable cause was supported by oath. 3 Am.Jur.2d Affidavits, § 16 (1962). (Emphasis added.) Id., 194 S.E.2d at 692-693.

In appellant’s brief, he makes no argument as to the finding of probable cause for the issuance of a search warrant. Undisputed evidence shows that the affiant (Officer Pickens) was placed under oath by Judge Dale; - then while still under oath, Pickens stated to Dale the facts which Dale found constituted probable cause as a basis for his issuance of the search warrant. Upon this evidence, and absent any argument or authority that there was no probable cause, we are unable to say that there was any breach of the constitutional rights of appellant. As shown in the briefs of appellant and appellee, there is a split of authority as to whether a magistrate’s failure to sign the jurat of an affidavit will vitiate the warrant. In Prueitt v. State, 261 So.2d 119 (Miss.1972), we approved the action of a magistrate in considering unrecorded oral testimony to support the validity of a search warrant. We now hold that the lower court did not err by allowing the state (upon proper motion) to physically amend the affidavit for search warrant by adding “ELLIS S. DALE.” Further, the search warrant, as amended, was properly upheld by the trial judge upon the facts, and we find no reversible error in this close but well tried case.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and ROBERTSON, SUGG, WALKER, LEE and BOWLING, JJ., concur.


text:
    Randy WILLCUTT, a minor, by and through his father and next friend, Bruce L. Willcutt v. Larry T. BROWN.
    No. 50163.
    Supreme Court of Mississippi.
    March 15, 1978.
    Pritchard, Myers & Gordon, Robert A. Pritchard, Pascagoula, Hurt & Dickerson, Darryl A. Hurt, Lucedale, for appellant.
    W. S. Murphy, Lucedale, for appellee.
    Before SMITH, P. J., and WALKER and LEE, JJ.
   REVERSED AND REMANDED FOR A NEW TRIAL ON THE ISSUE OF DAMAGES ONLY.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, BROOM and BOWLING, JJ., concur.


author: WALKER, Justice,

text:
    John Howard ODOM v. STATE of Mississippi.
    No. 50296.
    Supreme Court of Mississippi.
    March 15, 1978.

      Buckley & Ford, Travis Buckley, Laurel, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   WALKER, Justice,

for the Court:

This is an appeal from a conviction of burglary returned after a jury trial in the Circuit Court of Noxubee County, Mississippi. Appellant was sentenced to five years in the custody of the Mississippi Department of Corrections.

The evidence in this case was conflicting, but because appellant concedes that there was sufficient evidence upon which the jury could have based its verdict, it is not necessary for us to detail the facts of the case.

Appellant’s first assignment of error, that the trial court should have excluded the evidence offered by the state to show the identity of the victim of the burglary and should not have allowed the indictment to be amended, is totally without merit. See Hilbun v. State, 167 Miss. 725, 148 So. 365 (1933).

Appellant next contends that the trial court erred in overruling his motion for a new trial which was based upon the failure of a juror to respond to a question asked during the voir dire examination of the panel. Counsel for appellant asked the panel whether any of them had a close relative who was involved in law enforcement, and the juror, John B. Freshour, did not raise his hand. The evidence adduced at the hearing on the motion for a new trial established that Mr. Freshour’s brother, Pete Freshour, was one of the police officers who was involved in the investigation of the crime with which appellant was charged. In addition, John B. Freshour failed to respond to the inquiry by counsel for appellant whether there was any reason why any member of the panel could not render a fair and impartial verdict in the case.

Counsel for appellant stated at the hearing on the motion for a new trial that if Mr. Freshour had responded to either of these questions, he (counsel) would have used a peremptory challenge to have Mr. Freshour removed from the panel. Appellant argues that Mr. Freshour’s lack of candor made it impossible for him to intelligently exercise his peremptory challenge all in violation of Mississippi Code Annotated section 13-5-69 (1972).

The materiality of the question by appellant’s counsel is emphasized by the record which reveals that upon trial of the cause there was testimony to the effect that Pete Freshour (this juror’s brother) participated in the investigation of this case. Mississippi Code Annotated section 13-5-69 (1972) grants appellant the right to question jurors with reference to peremptory challenges. The failure of John Freshour to respond to the inquiry on voir dire clearly had an adverse effect on appellant’s right to challenge John Freshour peremptorily.

The question with which we are presented here is whether appellant must demonstrate prejudice resulting from such impairment before he is entitled to a new trial.

In Jones v. State, 133 Miss. 684, 98 So. 150 (1923), we held that counsel must have latitude in searching the minds and consciences of jurors in order to be able to exercise their peremptory challenges intelligently. Although that case dealt with the denial of the statutory right of a defendant to question prospective jurors directly and not have to propound questions through the presiding judge, the principle announced is applicable in the case sub judice. The failure of a juror to respond to a relevant, direct, and unambiguous question leaves the examining attorney uninformed and unable to ask any follow-up questions to elicit the necessary facts to intelligently reach a decision to exercise a peremptory challenge or to challenge a juror for cause. Therefore, we hold that where, as here, a prospective juror in a criminal case fails to respond to a relevant, direct, and unambiguous question presented by defense counsel on voir dire, although having knowledge of the information sought to be elicited, the trial court should, upon motion for a new trial, determine whether the question propounded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited. If the trial court’s determination of these inquiries is in the affirmative, the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror’s failure to respond. If prejudice reasonably could be inferred, then a new trial should be ordered. It is, of course, a judicial question as to whether a jury is fair and impartial and the court’s judgment will not be disturbed unless it appears clearly that it is wrong. (Jones v. State, 133 Miss, at 711-13, 98 So. 150).

It is readily evident that no firm, unbending rule can be laid down that would control every situation that might arise on the voir dire of prospective jurors. Therefore, each case must be decided on an ad hoc basis considering the facts then before the court. On the facts presented in this case, there is a strong inference of prejudice to defendant in his selection of a jury as any astute lawyer would have examined the juror closely with reference to the juror being the brother of a police officer and his feelings in that regard. Such examination in this case would have, in all probability, established that the juror’s brother was in fact a policeman in the area where the crime for which appellant was being tried occurred, thus giving him a rational basis upon which to challenge the juror peremptorily, if not for cause.

The appellant having established facts from which prejudice to him in selecting the jury might reasonably be inferred, the judgment and sentence are reversed and the cause remanded for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE and BOWLING, JJ., concur.

      . We do not suggest how this may be proved as that question was not raised or briefed. However, the general rule is that a juror may not testify to impeach a verdict rendered by them. Ratliff v. Nail, 231 So.2d 798 (Miss. 1970).


author: ROBERTSON, Justice, for the Court:

text:
    Carol Sue BUNCH, mother and next friend of Dell Ann Robinson v. Arthur SHAW, d/b/a Vicksburg Lanes, and Thomas Golding.
    No. 50013.
    Supreme Court of Mississippi.
    March 15, 1978.

      Ward, Martin, Terry & Way, W. C. Way, Vicksburg, for appellant.
    Nutt & Hancock, David H. Nutt, Jackson, W. B. Duggins, Vicksburg, Shell, Buford, Bufkin, Callicutt & Perry, Richard S. Bush, Jackson, for appellees.
    Before SMITH, ROBERTSON and LEE, JJ.
   ROBERTSON, Justice, for the Court:

Dell Ann Robinson, a 6-year-old girl, was injured when lockers at Vicksburg Lanes, a public bowling facility in Vicksburg, Mississippi, fell on her. The minor, by Carol Sue Bunch, her mother and next friend, brought suit in the Circuit Court of Warren County against Arthur Shaw, the lessee of Vicksburg Lanes, and Thomas Golding, the lessor of the building containing the public bowling facility.

At the close of the evidence, the court granted a peremptory instruction for the defendant, Thomas Golding, the owner and lessor of the building containing the bowling alleys. The jury returned a verdict for defendant Shaw, the lessee.

Appellant contends on appeal that:

1. The court erred in granting a peremptory instruction to Golding, and
2. The court erred in granting an abstract instruction to defendant Shaw whereby negligence, if any, of the parents could be imputed to a minor child.

Dell Ann Robinson, a 6-year-old child, accompanied her parents and two brothers to Vicksburg Lanes, a 16-lane bowling alley, on the night of January 30, 1970. The bowling alley was crowded that night. Children were not allowed in the bowling pits with their parents, so while her parents bowled she and her two brothers played with other children in other parts of the building, including the locker area. These lockers were provided for the convenience of the bowlers. A few minutes before the accident, two young boys were walking on the tops of the lockers and were ordered to get away from the locker area by Ed Goodman, the maintenance man. The boys were asked to leave, and they left. A few minutes later a section of the lockers toppled over on Dell Ann Robinson, injuring her.

We are of the opinion that the peremptory instruction was properly granted to defendant Thomas Golding, the owner and lessor of the bowling facility.

The testimony was that these were standard AMF lockers for bowlers, were properly installed in 1963, and were found to be in good condition by Golding and Shaw when they entered into an oral lease on July 1, 1969. Under the terms of the lease, the lessor was responsible for the roof and outside of the building, and the lessee, Shaw, was responsible for the inside of the building including the bowling alleys and lockers.

As was said in 52 C.J.S. Landlord & Tenant § 422(2)a, page 155 (1968):

“The existence of the defects at the time of the letting, however, must be shown, and there is no presumption when a long time had elapsed from the letting that the defects existed at the commencement of the term, but the inference is to the contrary.”

The appellant contends that the granting of the following instruction was error:

“You are instructed by the Court that the parents of an infant, or those standing in a relationship of parents, have the duty of exercising parental restraint and control over children of young and tender years, which includes the duty to exercise reasonable care to supervise their activities and conduct in order to prevent activities or conduct which may result in accident or injury to such child or children; and if you should find from the evidence in this case that Plaintiffs parents failed to exercise such care and that, as the sole, direct and proximate result of such failure, the plaintiff was injured, then your verdict must be for the Defendant, Arthur Shaw.”

While there is some evidence that the parents of Dell Ann Robinson were negligent and did not properly supervise her activities, this evidence is not incorporated in this instruction. It is an abstract instruction.

In Freeze v. Taylor, 257 So.2d 509 (Miss.1972), this Court said:

“The granting of an abstract instruction is not ordinarily considered to be a reversible error unless it tends to confuse and mislead the jury. Johns-Manville Products Corp. v. McClure, 46 So.2d 539 (Miss.1950); 88 C.J.S. Trial § 379, p. 962 (1955).” 257.So.2d at 511.

We think that this instruction would tend to confuse and mislead the jury, and for that reason alone would be reversible error.

The granting of this instruction constitutes fatal error for another reason. It allows the jury to impute the parents’ negligence to a six-year-old child. In Westbrook v. Mobile and Ohio R.R. Co., 66 Miss. 560, 6 So. 321 (1889), this Court said:

“But when the action is brought, as in the case at bar, by the infant, or for his benefit, the better rule is that the negligence or misconduct of the parent or custodian of the child shall not be imputed to the child. Beach on Con. Neg., § 43, and authorities there cited. To charge the child with the negligence of the parent or custodian, in such case, would be, as said by the supreme court of New York, in Lannen v. Albany Gas-Light Co., 46 Barb. 264, to visit ‘the sins of the fathers upon the children, to an extent not contemplated by the Decalogue, or in the more imperfect digests of human law.’ ” 66 Miss. at 568-69, 6 So. at 322.

The same conclusion was reached in the later case of Louisville, N. O. and T. Ry. Co. v. Hirsch, 69 Miss. 126, 13 So. 244 (1891).

In St. Louis & S.F.R. Co. v. Underwood, 194 F. 363 (5th Cir. 1912), a six-year-old girl was badly injured when a pile of lumber, around which she was playing, toppled over on her. In affirming a verdict for the minor child, the Circuit Court of Appeals, Fifth Circuit, said:

“But it is insisted by counsel that if the father, who had charge of the lumber as section foreman of the defendant, was negligent, either in failing to keep the pile of lumber in a safe condition, or in permitting the child to play on it, that his negligence was imputable to the child. It should be borne in mind that this suit is brought, not for the benefit of the parents, but in behalf of the child, for injuries by her sustained. In such case the better rule, which is supported by the decided weight of authority, is that the negligence of the parents should not be imputed to the child. 1 Thompson’s Com. Law.Neg. §§ 292, 293, 294; Westbrook v. Railroad Company, 66 Miss. 560, 6 So. 321, 14 Am.St.Rep. 587; Railway Company v. Hirsch, 69 Miss. 126, 13 So. 244.” 194 F. at 365. [Emphasis added].

For these reasons, the judgment of the trial court is affirmed as to defendant Golding, but reversed and remanded for a new trial as to defendant Shaw.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: PATTERSON, Chief Justice,

text:
    Tommy McDOUGLE v. STATE of Mississippi.
    No. 50293.
    Supreme Court of Mississippi.
    March 15, 1978.

      Alford, Mars & Thomas, Herman Alford, Philadelphia, for appellant.
    A. F. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, BROOM and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

Tommy McDougle appeals from a conviction of murder and life sentence by the Circuit Court of Nashoba County.

On September 4, 1976, Theodore Lyons and Tommy McDougle were playing a card game called “tunk” in a booth of the KickOff Club in Neshoba County. Lyons won the first two hands and McDougle the third hand. In the fourth hand the appellant dealt himself one too many cards and declared a misdeal. Lyons and McDougle both seized the two dollars upon the gaming table, engendering an argument which precipitated the fatal shots.

According to Robert Jones, an eyewitness, McDougle was standing by the booth when he threw other money on the table which was seized by Lyons who was seated in the booth. This money was in Lyons’ left hand at the time McDougle fired several shots. Immediately after the shooting, Lyons arose, walked two steps and fell on his back. Jones testified he observed no weapon on the deceased.

Garland Moore, who was on the front porch when the shooting occurred, testified that the appellant exited from the front door with a gun in his hand. Moore entered the club and found the deceased lying three or four feet from the booth with money in his hand. He checked his pulse, but did not remove anything from Lyons’ pocket nor see any weapon.

McDougle claimed the shooting was in self-defense. He testified they were standing face to face outside of the booth and as he turned to leave, Lyons began pulling a .25 automatic out of his front pocket. McDougle stated he pulled his gun and hesitated before firing to be certain what Lyons had. After leaving the club, he threw the gun away and later surrendered to the authorities.

The sheriff and his deputy arrested McDougle at his brother’s house later that night. After arriving at the jail the sheriff read the appellant his Miranda rights from a card. When McDougle indicated he wanted to talk to the officers alone, he was escorted to the sheriff’s office approximately 150 yards from the jail. Once there he stated he did not have anything to say and it is disputed whether he said he would not talk without an attorney. After being returned to his cell, the sheriff and deputy stood on the outside. According to the sheriff, he continued questioning appellant and asked him how many times he shot Lyons, to which McDougle replied that he shot him five or six times over a two dollar misunderstanding and that he thought Lyons was reaching into his pocket.

The appellant denied making any statement to the sheriff on the night he was arrested and contended he requested a lawyer before talking. However, he admitted that several days later when he and the sheriff searched for the missing gun in a field, the sheriff asked him why he did it and he replied that Lyons “was coming out of his pocket with a .25 automatic.” An attorney was not appointed for the appellant until September 23, when he was indicted.

On appeal he cites among the errors of the lower court the following:

1. Admitting custodial statements of appellant after he declined to make a statement and requested an attorney;

2. Denying admission of previous inconsistent statements made by a witness; and

3. Denying introduction of evidence that the deceased had a pistol in his possession the previous day.

Appellant first contends that the trial court erred in admitting into evidence the custodial statements of appellant. It is undisputed that McDougle told the interrogating officers that he did not have anything to say and that after returning him to his cell, the sheriff by his own admission, persisted in questioning him.

BY MR. ALFORD, DEFENSE COUNSEL.
Q. Well, now, you continued to talk to him after he told you he didn’t want to talk to you, didn’t you? Didn’t he tell you that in the Sheriff’s office?
A. He said he didn’t want to make a statement at that time.
Q. He said that in the cell and he said that in the Sheriff’s office, too, didn’t he?
A. He did.
Q. That was twice, wasn’t it?
A. He told me that twice.
Q. And then you took him back over there and locked him up and you heard Mr. Griffin testify here that you asked him what happened, didn’t you?
A. That’s true.
Q. Did you ask him that over there?
A. Did I ask him what?
Q. What Mr. Griffin said you did?
A. What, if he shot the boy?
Q. Asked you what happened. Did you ask him that question?
A. I did.
Q. And that was after he had asked you not to question him, too, wasn’t it?
A. He didn’t ask me not to question him.
Q. He told you he didn’t want to make a statement, didn’t he?
A. He did when he was in the Sheriff’s office.

The record does not disclose any renewal of the Miranda warnings or any waiver by the appellant after he stated he had nothing to say.

Whether he requested an attorney before making a statement is inconclusive although possible as the sheriff on direct examination and in the presence of the jury testified that appellant said he wanted an attorney before talking any more and on cross-examination contradicted himself testifying that appellant never requested an attorney.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), clarified the scope of custodial interrogation and stated in that regard:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. . . . (384 U.S. at 473-474, 86 S.Ct. at 1627-1628, 16 L.Ed.2d at 723.)

It further provided that where the custodial interrogation proceeds without the presence of counsel and yields a statement, the government bears a heavy burden to demonstrate that the suspect’s constitutional rights have been respected.

The vast majority of federal and state courts has concluded the Miranda opinion does not create a per se proscription of further interrogation once the person being questioned has expressed a desire to remain silent. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). What Miranda apparently requires is cessation of interrogation when requested and if subsequently there is a reasonable basis for inferring that a suspect has voluntarily changed his mind, new and adequate warnings must be given. U. S. v. Collins, 462 F.2d 792 (2d Cir. 1972) (en banc); cert. den., 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 254 (1972); U. S. v. Jakakas, 423 F.Supp. 564 (E.D.N.Y.1976).

However, we are of the opinion the state did not meet its burden of proof in this case where there was no evidence or inference of the appellant’s desire to make a statement but rather the interrogation continued closely on the heels of the first (less than a ten-minute lapse) despite his express desire not to make a statement. Compare U. S. v. Bensinger, 463 F.2d 576 (7th Cir. 1972), and U. S. v. Barnes, 432 F.2d 89 (9th Cir. 1970). Therefore, we hold the statements of the appellant to be inadmissible and prejudicial, necessitating a new trial.

Appellant’s second assignment of error is that the proffered testimony of Charles Coleman was admissible for impeachment of Willie Brown’s testimony. Coleman testified out of the presence of the jury that about a month after the shooting Brown told him he saw Garland Moore and another trying to take some money from Lyons’ body. However, defense counsel failed to lay the proper predicate for impeachment when Brown was previously on the stand. At that time he asked Brown if on or about the Tuesday after the shooting he told someone that he made Moore move because he thought Moore had taken a gun out of Lyons’ pocket, which Brown denied. It is established law that in absence of a proper predicate being laid, a witness cannot be impeached. Scott v. State, 274 So.2d 376 (Miss.1973); Nichols v. State, 220 Miss. 244, 70 So.2d 515 (1954). Therefore, we think this assignment of error is of no merit.

Another contention of appellant is that the lower court improperly sustained an objection to the proffered testimony of witness Roosevelt Peyton that Lyons was armed with a .22 automatic pistol in his right front pocket on the night before the shooting. Peyton testified that he and Lyons had been together the night before but did not place the defendant with them. Defense counsel maintained that the purpose of this testimony was to show that Lyons habitually carried a gun. However, one incident does not make an action habitual, although in homicide prosecutions it is permissible to demonstrate that the deceased as an aggressor had a reputation for habitually being armed and a bad reputation for peace and that the defendant knew these facts. Sprinkle v. State, 137 Miss. 731, 102 So. 844 (1925).

Further, when the defendant later testified on his own behalf, defense counsel did not develop the facts of Lyons’ being previously armed. On cross-examination by the district attorney, the defendant stated that he saw the gun at Shaky Ground, but it was not clear when this occurred. Defense counsel did not pursue this questioning on redirect examination. Thus, we think that the trial court did not err in its ruling.

We are of the opinion the other assignments of error are without merit. We reverse and remand for a new trial because the admonitions of Miranda, supra, were violated.

REVERSED AND REMANDED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: LEE, Justice,

text:
    Walter McVEAY v. STATE of Mississippi.
    No. 50388.
    Supreme Court of Mississippi.
    March 15, 1978.

      A. Vincent Blackwell, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen., by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court:

Walter McVeay was indicted, convicted and sentenced to ten (10) years by the Circuit Court of Jackson County for the sale of fourteen (14) grams of marijuana. He complains of the following errors in the trial below:

(1) The trial court erred in failing to sustain appellant’s motion for judgment n. o. v. (a peremptory instruction of not guilty was requested and refused and we treat this assignment as such).

(2) The trial court erred in admitting hearsay testimony from the State’s witness.

The only witness testifying for the State about the sale was Terry R. Warden, an undercover narcotics agent with three (3) months’ experience in the Jackson County' Sheriff’s Office. He testified that on August 27, 1976, he met one Gerald Moore in the Wet Dock Lounge at 1:30 a. m. and asked him whether or not he had any dope. Approximately one hour later, Moore came back to the Wet Dock Lounge accompanied by appellant and handed Warden one bag of marijuana. Warden gave Moore fifteen dollars ($15.00) and Moore handed the money to McVeay with the statement, “Here is your money.”

Warden did not testify what kind of container the marijuana was in, no conversation was related between him and Moore, and nothing was indicated as to whether or not McVeay knew that marijuana had been delivered to Warden. The delivery occurred at 2:30 a. m., alongside Warden’s car, which was parked in front of the lounge. His testimony does not set forth the lighting conditions at that place, or whether or not appellant could observe the object being delivered to Warden.

Warden had known appellant for six (6) to eight (8) years. He talked with appellant on the occasion, but the conversation did not relate to the marijuana or any involvement of appellant in the transaction.

The burden of proof never shifts from the State in a criminal case. The State not only must prove all elements of the crime, but it must also prove the accused’s connection with same. Talbert v. State, 347 So.2d 352 (Miss.1977); Boyd v. State, 204 So.2d 165 (Miss.1967); Pryor v. State, 239 So.2d 911 (Miss.1970).

An essential element of the offense for which appellant was convicted requires that he have knowledge of the sale and delivery of a controlled substance.' Ap-plegate v. State, 301 So.2d 853 (Miss.1974). In passing upon the request for peremptory instruction, all evidence favorable to the State must be assumed as true, together with all reasonable inferences that may be drawn from that evidence, and, if there is enough in the record to support a verdict, the request for peremptory instruction should be denied. Warn v. State, 349 So.2d 1055 (Miss.1977).

We are of the opinion that the evidence and reasonable inferences flowing therefrom are not sufficient to support a verdict of guilty and that the lower court committed error in refusing to grant the requested peremptory instruction.

The second assignment of error relates to the admission of hearsay evidence when Warden testified, over objection, that, “I asked Gerald Moore if he had any dope to sell, if he had any marijuana. Gerald said he did not have any with him fight then, but Walter McVeay had some over at his apartment.” That testimony was incompetent, highly prejudicial, and should have been excluded. Lee v. State, 338 So.2d 395 (Miss.1976); Ratcliff v. State, 308 So.2d 225 (Miss.1975); Roberson v. State, 185 So.2d 667 (Miss.1966).

In view of the result reached herein-above, it is not necessary to discuss the second assignment further.

REVERSED AND APPELLANT DISCHARGED.

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


author: McCORD, Judge.

text:
    Willie Lee CARTER, Appellant, v. STATE of Florida, Appellee.
    No. DD-268.
    District Court of Appeal of Florida, First District.
    May 27, 1977.
    Richard W. Ervin, III, Public Defender, and Michael M. Corin, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant was charged in four separate two-count informations with (1) grand larceny and receiving and concealing stolen property, (2) burglary of a conveyance and grand larceny, (3) burglary of a conveyance and grand larceny (4) burglary of a structure and grand larceny. He entered not guilty pleas to all of the foregoing charges, but subsequently appeared before the court with counsel and by agreement with the state pled guilty to “receiving and concealing stolen property, four Counts.” The state and the defendant’s counsel stipulated that receiving and concealing stolen property is a lesser included offense of the offense of grand larceny charged in three of the informations. The state agreed to nol pros all counts to which the defendant did not plead guilty. No factual basis for the guilty pleas was stated or shown on the record.

On a later date when defendant appeared before the court for sentencing, he stated that he was not guilty of the crime; that the man who turned the property over to him was broken down on the side of the road and told him to take the “stuff” down to the pawn shop; that he “didn’t know the stuff was stolen.” In response to the Court’s question, the state attorney indicated that one of the offenses was perhaps one for which another defendant had been tried, and that Carter had testified fully about the transaction in that trial. The judge then asked defendant if he had lied at that trial and the defendant replied that he wasn’t in that trial; but upon being asked by the state attorney if he testified in that trial, the defendant answered, “Yes, sir.” The judge indicated that he remembered the trial and he then adjudged defendant guilty and sentenced him. There is no indication in the record that defendant’s counsel discussed with him possible defenses to the crimes to which he pled guilty.

This cause is remanded to the trial court for the following purposes: (a) to make inquiry of the defendant and his counsel concerning their discussions relative to the defenses to the charges; (b) to receive evidence of a factual basis for the pleas in the light of the possible defense of lack of knowledge that the property was stolen; and (c) to allow the defendant an opportunity to present evidence on his own behalf to show how, if at all, manifest injustice occurred by the acceptance of his plea. See Williams v. State, 316 So.2d 267 (Fla.1975); State v. Lyles, 316 So.2d 277 (Fla.1975); State v. Kendrick, 336 So.2d 353 (Fla.1976); and Andrews v. State, 343 So.2d 844 (Fla. 1 DCA 1976). The trial court shall thereafter enter such order as it deems appropriate and should such order not vacate the judgments, sentences and guilty pleas, appellant shall, within 15 days thereafter, file with this court a supplemental transcript including the proceedings here directed and the order of the trial judge thereon. With the transcript, appellant shall file such further brief as he may desire, and appellee may, within 10 days thereafter, file its further brief.

RAWLS, Acting C. J„ and SMITH, J., concur.


author: PER CURIAM. DOWNEY, Judge,

text:
    Francis W. MOHME, Leon S. Lawrence, Bernard P. Pemberton, James E. Stone, William W. Azbill, Albert M. Hayes, Appellants, v. CITY OF COCOA, a Municipal Corporation, Appellee.
    No. 76-2398.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1977.
    On Rehearing Sept. 20, 1977.
    James R. Dressier, Cocoa Beach, for appellants.
    Leon C. Stromire of Stromire, Westman & Lintz, and William R. Clifton of Antoon & Clifton, Cocoa, for appellee.
   PER CURIAM.

Affirmed.

CROSS and ALDERMAN, JJ., concur.

DOWNEY, J., dissents, with opinion.

DOWNEY, Judge,

dissenting:

The appellants, Mohme, Lawrence, Pem-berton, Stone, Azbill, and Hayes, individually and on behalf of all other customers of the City of Cocoa water system residing in the unincorporated areas of Brevard County, Florida, filed suit for declaratory and other relief against appellee City of Cocoa, a municipal corporation. Appellants’ amended complaint alleged, among other things that: (1) the appellants were nonresident customers of the water system owned by the appellee City; (2) the appel-lee adopted a resolution adjusting the rates to be charged customers of its water system; (3) the rates to be charged customers living outside the city limits were unjust and inequitable and not based on the same factors used in fixing rates for city resident customers; (4) the new rates for non-city-resident customers bore no relationship to the cost of producing or distributing the water. The amended complaint also alleged that appellants were prosecuting the case for themselves and on behalf of all other water system customers of the appel-lee residing in the unincorporated areas of Brevard County. The allegations pertaining to their right to bring a class action were as follows:

“2. Each of the plaintiffs is a resident of the unincorporated area of Brevard County, Florida, and is the owner of real property either residential or commercial, and is a customer of the City of Cocoa water system.
* * * * * *
“.5. The issues in this action and the questions herein to be litigated are of common and general interest to all of the customers of the defendant’s water system residing in the unincorporated areas of Brevard County, Florida, and such customers exceed 5,000 individuals and are so numerous that it is impractical for them to join as plaintiffs, these plaintiffs filed this action for themselves and for the benefit of all other customers of the City of Cocoa water system residing in the unincorporated areas of Brevard County, Florida.
:}c if: * * *
“10. Defendant has charged plaintiffs and all others similarly situated, rates for water higher than those customers residing inside the municipal limits of the City of Cocoa simply and solely on an arbitrary and discriminatory basis because plaintiffs and all others similarly situated have no voice in the election of the City Councilman of the City of Cocoa, and the city council preferred to ‘take care of its own.’ ”

The trial court granted appellee’s motion to strike the portions of appellants’ complaint in which they sought to maintain this action as a class action. As grounds for striking the class action allegations the trial court stated:

“1. Plaintiffs are proceeding under Section 180.191, Florida Statutes, which provides a civil action, ‘may be instituted by the person or persons aggrieved’ and does not specifically provide for a class action. The complaint and amended complaint fail to set forth allegations sufficient to meet the criteria required for a class action suit as defined by Harrell v. Hess Oil and Chemical Corporation, 287 So.2d 291 (SC). Defendant’s motion to strike will be treated as if directed to the amended complaint and accordingly all class action allegations of the amended complaint are hereby stricken, . . . ”

In my judgment this is a classic case to be maintained as a class action, Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1977); Hunger v. City of Zephyrhills, 307 So.2d 487 (Fla. 2d DCA 1975); Clay Utility Company v. City of Jacksonville, 227 So.2d 516 (Fla. 1st DCA 1969). In addition, I think that the difficult circumstances which made it inappropriate to allow the maintenance of class actions in Federated Department Stores, Inc. v. Pasco, 275 So.2d 46 (Fla. 3d DCA 1973); Southern Bell Telephone & Telegraph Co. v. Wilson, 305 So.2d 302 (Fla. 2d DCA 304); and Watnick v. Florida Commercial Banks, Inc., 275 So.2d 278 (Fla. 3d DCA 1973), do not exist in the present case.

It appears the trial court had some doubt as to the propriety of maintaining this action as a class action because the cause of action arises under Section 180.191, Florida Statutes (1975). In a prior appeal in this case, Mohme v. City of Cocoa, 328 So.2d 422 (Fla.1976), the Supreme Court observed no proscription in Section 180.191 against class actions by dissatisfied consumers, although it did not rule on the propriety of the class action in this case because it found the question was not ripe for decision. The authority for bringing suit as a class action is set forth in Fla.R.Civ.P. 1.220, and I can conceive of no reason why that rule would not apply to a cause of action under Section 180.191. As I indicated above, this is a classic situation for a class action because of the large number of people involved, the common interest in the subject matter of the litigation, the preclusion of a multiplicity of suits, and the other various factors which warrant the maintenance of a class action.

Accordingly, I would reverse the order appealed from and remand the cause with directions that this suit proceed as a class action.

ON PETITION FOR REHEARING

PER CURIAM.

On Petition for Rehearing we have further considered this cause and conclude that the Order appealed from should be reversed and the dissent in our opinion filed July 1, 1977 should be adopted as the opinion of the Court.

Accordingly, the per curiam affirmance of this Court filed July 1, 1977 is vacated and the dissenting opinion of Judge Dow-ney contained therein is adopted as the opinion of the Court and the Order appealed from is reversed and the cause is remanded with directions that the class action features of the complaint be reinstated for further proceedings.

GRANTED.

ALDERMAN, C. J, and DOWNEY, J., concur.

CROSS, J., dissents without opinion.


author: ALDERMAN, Judge. ALDERMAN, Chief Judge.

text:
    Vera JONES, a/k/a Vera Jane Jones, Appellant, v. STATE of Florida, Appellee.
    No. 76-2355.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1977.
    Rehearing Denied Sept. 27, 1977.

      Sheldon M. Schapiro, Stone & Schapiro, Hollywood,, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Judge.

The defendant entered a plea of nolo contendere to the charge of manslaughter, reserving the right to appeal the denial of her motion to suppress confession, and the question whether a minimum three-year mandatory sentence pursuant to Section 775.087(2), Florida Statutes (1975), is required for the crime of manslaughter. The trial court adjudged the defendant guilty and sentenced her to serve seven years, but stayed four years of the sentence and placed the defendant on probation for the remainder of the term. The sentence included the words, “mandatory minimum 3 yr. sentence, F.S. 775.087(2)”. We affirm the conviction, but vacate the sentence and remand for resentencing.

We find no error in the trial court’s denial of defendant’s motion to suppress. She was adequately and fully informed of her rights, including her right to have an attorney present during questioning, even though these rights were not given verbatim as set forth in Miranda. State v. Craig, 237 So.2d 737 (Fla.1970); Alvord v. State, 322 So.2d 533 (Fla.1975).

The next issue is whether manslaughter is included under Section 775.-087(2), which prescribes a mandatory minimum three years’ imprisonment before the defendant is eligible for parole for certain enumerated crimes if the perpetrator had a firearm in his possession. We have previously held that if a defendant is not convicted of one of the crimes set forth in Section 775.087(2), he may not be sentenced under this statute. Brewer v. State, 343 So.2d 628 (Fla. 4th DCA 1977). The statute lists “any murder” but does not include manslaughter. The State argues it was the intent of the Legislature that manslaughter be included; it contends that since manslaughter is a lesser included crime of murder, it is included. We reject this contention. There is a logical reason not to include manslaughter within the category of “any murder”. Manslaughter includes killing by “culpable negligence”, which does not require intent. Section 782.02, Florida Statutes (1975). Although crimes with less serious consequences than death are included in Section 775.087(2), they are crimes which include the element of intent. Since manslaughter can be committed through negligence, without intent, the Legislature may have intended to exclude it from the term “any murder” and the other offenses enumerated in the statute.

At the very least it may be said that the statute is ambiguous. The rule is that such statutes must be strictly construed, and when the language is susceptible of different constructions it must be construed most favorably to the accused. Section 775.-021(1), Florida Statutes (1975); see also State v. Buchanan, 191 So.2d 33 (Fla.1966). We hold that manslaughter, the offense for which appellant was convicted, is not included in the enumerated offenses under Section 775.087(2).

In the present case, the split sentence imposed by the trial court is not excessive in that the maximum sentence for manslaughter is fifteen years. Nor did the sentence violate the terms of the negotiated plea, that the court sentence the defendant to a minimum of three years but no more than seven. The only error in the sentence is that the trial court erroneously invoked Section 775.087(2). Accordingly defendant’s conviction is affirmed, her sentence is vacated, and the case is remanded with instructions that the trial court resentence the defendant in a manner not inconsistent with this opinion.

AFFIRMED and REMANDED with instructions.

CROSS and DAUKSCH, JJ., concur.

ON PETITION FOR REHEARING

ALDERMAN, Chief Judge.

Appellee submits that the court misconstrued its position when we said that “it contends that since manslaughter is a lesser included crime of murder, it is included.” The State says that it made no such contention and acknowledges that just because a crime is a lesser included offense of one of the crimes enumerated in Section 775.-087(2), does not and cannot raise the magnitude of that crime to the level of one that is included under that statute. The State concedes that a conviction of such lesser included offense would not require the minimum three-year mandatory sentence.

The State argues, however, if a crime enumerated in Section 775.087(2) is a lesser included offense of manslaughter, then manslaughter is included with the provisions of that statute. In the present case, the State contends that the defendant, having been adjudged guilty of manslaughter, is also guilty of aggravated assault, a necessarily included lesser offense of the crime of manslaughter. It concludes, since aggravated assault is one of the enumerated crimes in Section 775.087(2), that the minimum three-year mandatory sentence is applicable to a manslaughter conviction.

We reject this contention. If the legislature had intended to include manslaughter in Section 775.087(2), it would have been a simple matter for it to include this offense among those enumerated. As we previously stated, at the very least the statute is ambiguous and as such must be construed most favorably to the accused.

The Petition for Rehearing is Denied.

CROSS and DAUKSCH, JJ., concur.


author: PER CURIAM.

text:
    Dale OAKLEY, Robert L. Corcoran, Leonard Corcoran and Vivian Corcoran, Appellants, v. E. L. BALL, Herbert Ringe and Newport Jensen Development, Inc., Appellees.
    No. 76-2705.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1977.
    Rehearing Denied Sept. 13, 1977.
    Jeffrey G. Wood, of Icard, Merrill, Cullis, Timm & Furen, Sarasota, for appellants.
    Walter M. Meginniss of Crary, Buchanan & Meginniss, Chartered, Stuart, for appel-lees.
   PER CURIAM.

Our review of the briefs and appendix leads us to the conclusion that appellants have failed to demonstrate an abuse of discretion by the trial court. Accordingly, the order appealed from is

AFFIRMED.

MAGER, C. J., and DOWNEY and DAUKSCH, JJ., concur.

ON PETITION FOR REHEARING

On petition for rehearing appellants take an entirely new tack and suggest reversal of the order appealed from because although a hearing was held below on appel-lees’ motion to discharge the lis pendens no evidence was adduced. This is an entirely new contention not raised in appellants brief. This is the first notice to this court that appellants assert they were aggrieved by some procedural deficiency in the trial court and it comes too late. Fla.App. Rule 3.14(b); In re Certificate of N.Y. to Compel Atten. of Wit., 297 So.2d 865 (Fla.4th DCA 1974).

Accordingly, appellants petition for rehearing is DENIED.

ALDERMAN, C. J., and DOWNEY and DAUKSCH, JJ., concur.


text:
    STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. GRICE ELECTRONICS, INC., et al., Appellees.
    No. EE-279.
    District Court of Appeal of Florida, First District.
    Sept. 2, 1977.
    Rehearing Denied Sept. 23, 1977.
    Winifred Sheridan Smallwood, Tallahassee, for appellant.
    Thomas E. Johnson and Richard H. Merritt, Pensacola, for appellee.
   PER CURIAM.

This is an interlocutory appeal from an order awarding attorneys fee in a condemnation suit. We have considered the briefs, the record, and the oral arguments by attorneys for the respective parties and find no abuse of discretion by the trial judge.

The primary contention of appellant was that the trial court erred in allowing compensation to appellee’s attorneys for work performed before suit was filed but after condemnation was imminent. The trial judge did not err in so doing. See Dade County v. Brigham, 47 So.2d 602 (Fla.1950); Jacksonville Express. Auth. v. Henry G. DuPree Co., 108 So.2d 289 (Fla.1958), and Orange State Oil Co. v. Jacksonville Expressway Auth., 143 So.2d 892 (Fla. 1 DCA 1962).

Affirmed.

McCORD, C. J., and BOYER and MILLS, JJ., concur.


author: ANSTEAD,'Judge.

text:
    Derrick John LAWS, Appellant, v. STATE of Florida, Appellee.
    No. 76-1544.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 1977.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler, Chief, Appellate Division, and James K. Green, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON PETITION FOR REHEARING

ANSTEAD,'Judge.

Our opinion issued on July 22, 1977 is hereby withdrawn and the following substituted therefor.

The appellant, Derrick John Laws, convicted of robbery, claims in this appeal that the trial court erred in denying his motion for judgment of acquittal made'at the close of the state’s case in chief. It is well established that a motion for judgment of acquittal should not be granted unless it is apparent that no legally sufficient evidence has been submitted upon which a jury could find the defendant guilty. Garmise v. State, 311 So.2d 747 (Fla. 3d DCA 1975). Therefore, the issue on appeal is whether the state’s evidence as to the identification of Laws was sufficient to establish a prima facie case that he committed the robbery.

The victim testified that he was picked up and robbed by two men in a truck. When released he called the police and described the robbers and the truck. Later that evening, the defendant and his brother were spotted by the police in the truck near the scene of the robbery. The defendant was a passenger in the truck, which was owned by his brother. The truck was stopped; and when the victim’s billfold and ring were found in the truck, both the defendant and his brother were arrested. That same night, approximately an hour and a half after the robbery, the victim saw the defendant and his brother in custody and positively identified them as the two men who had robbed him.

The defendant and his brother were tried together. While the victim was able to make a positive in-court identification of defendant’s brother as one of the two men who robbed him, he was unable to so identify the defendant. However, he testified that he has absolutely no doubt that the two men he identified the night of the robbery were the two robbers. He also identified the truck and the stolen property. The other evidence as to identity of the robbers was the testimony of a police officer that the defendant and his brother were the same two persons arrested in the truck the night of the robbery and subsequently identified by the victim at the scene of the arrest. All of this evidence was received without objection.

Laws now claims that the testimony of the police officer that Laws was the same person positively identified by the victim shortly after the robbery was not admissible since the victim failed to make an in-court identification of Laws. We agree that, upon objection, such testimony would not have been admissible. See Willis v. State, 217 So.2d 106 (Fla.1968); Willis v. State, 208 So.2d 458 (Fla. 1st DCA 1968); and Johnson v. State, 249 So.2d 452 (Fla. 4th DCA 1971). However, the general rule is that otherwise inadmissible evidence, received without objection, may properly be considered in determining the facts in issue. Baker v. State, 336 So.2d 364 (Fla.1976); Annot., 79 A.L.R.2d 890 at 896 and 897 (1961); 29 Am.Jur.2d, Evidence, § 494 (1970). Here, the testimony received from the victim was that he had positively identified the two robbers shortly after the robbery and the testimony received from the police officer, without objection, was that Laws was one of those persons positively identified by the victim. Hence the trial court was correct in denying the motion for judgment of acquittal because there was evidence that could be properly considered, identifying Laws as one of the robbers.

The petition for rehearing is denied, and the judgment of the trial court is affirmed.

ALDERMAN, C. J., and DOWNEY, J., concur.


text:
    Thomas (NMN) LYNCH, Appellant, v. STATE of Florida, Appellee.
    No. 76-2104.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1977.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief, App. Div., Asst. Public Defender, and James K. Green, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS, ANSTEAD and LETTS, JJ., concur.


text:
    Keith Douglas WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. DD-436.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1977.
    Henry R. Barksdale, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Although via a separate appeal by a different appellant, the circumstances of this case have already been considered by a different panel of this court in Thomas v. State, 349 So.2d 743 (Fla. 1st DCA 1977). Our consideration of the record in this case convinces us that said decision is dispositive sub judice and requires the same holding for the same reasons. In Thomas v. State, supra, the appeal was from a judgment of conviction for only one charge, attempted armed robbery. However, during oral argument in the case sub judice the state with admirable candor conceded that if this court was correct in its holding in the Thomas case that upon retrial evidence of conversations between Thomas and the deceased informant tending to support the defense of entrapment should be admitted, then such reasoning and holding is equally applicable sub judice not only to the charge of attempted robbery but also the two other charges lodged against Williams, viz: Possession of a short-barrelled shotgun and possession of a gun by a convicted felon. We agree. Lest there be any misunderstanding of our holding, we do not here hold that entrapment in this case is a viable defense, but only that evidence in support of that defense should be admitted as to each of the charges lodged against Williams.

We reject appellant’s contention that the learned trial judge erred in denying Williams’ motion for judgment of acquittal made at the conclusion of the evidence presented by the state and renewed at the conclusion of all of the evidence. We also reject the contention that the court erred in failing to grant Williams’ motion for change of venue.

The other points raised by appellant we find to have become moot or are without merit.

As did our brothers, in Thomas v. State, we find that the ends of justice require a new trial rather than discharge.

Reversed and remanded for a new trial.

McCORD, C. J., and BOYER and MILLS, JJ., concur.


text:
    Richard A. PAYNE, Appellant, v. STATE of Florida, Appellee.
    No. 75-2167.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1977.
    Richard L. Jorandby, Public Defender, Craig S. Barnard and James K. Green Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on authority of Alvarez v. State, 349 So.2d 688 (Fla. 4th DCA 1977).

CROSS, DOWNEY and DAUKSCH, JJ., concur.


text:
    Frank F. MAJEWSKI and Florence J. Majewski, his wife, Petitioners, v. Al J. SCHECHTER, Trustee, Respondent.
    No. 77-1373.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.
    John A. Fitzsimmons, Fort Lauderdale, for petitioners.
    Maurice M. Garcia of Abrams, Anton, Robbins, Resnick & Schneider, P. A., Hollywood, for respondent.
   PER CURIAM.

Petition for Writ of Certiorari is DENIED.

CROSS, DAUKSCH and LETTS, JJ., concur.