author: BERANEK, Judge. KAPNER, LEWIS, Associate Judge,

text:
    Clifford HALL, Appellant, v. STATE of Florida, Appellee.
    No. 77-2150.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.
    Rehearing Denied March 14, 1979.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff and Wilbert Stevenson, Jr., Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Charles A. Stampelos and Mary E. Marsden, Asst. Attys. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

In this case the defendant contends the trial court erroneously denied a motion to suppress tangible evidence found in an automobile. Police officers received a call from a retail store manager to the effect that two black males were in a retail clothing establishment acting in a “suspicious manner.” Two separate police officers responded to this call and arrived simultaneously. At this point the two suspects were leaving the store. The store manager came out and briefly conversed with the officers. The manager told the officers the two black males had visited the store on several occasions that day, that they had not appeared interested in buying anything and that their conduct was suspicious.

On the basis of this information one of the police officers followed the two suspects who had entered a car and driven away. The suspects did nothing out of the ordinary in the presence of the police officer. There were no suspicious circumstances or actions. The officer followed the car and eventually turned on his blinking light and siren. In response to this appellant peered back nervously at the officer and reached toward the floor of the vehicle. Other than this, the stop was effected without incident. After approaching the car, the officer, using a light, peered into the back seat and discovered certain stolen merchandise. We need not reach the issue of whether this constituted a search in view of our ruling as to the initial stop of the suspects.

It is our conclusion that the detention of these suspects was not authorized by the Stop and Frisk Law, § 901.151 Fla.Stat., or by the Retail Theft Detention and Arrest Law, § 901.34 Fla.Stat. The officers here did not have probable cause for believing that goods held for sale in a retail establishment had been unlawfully taken as is required by § 901.34. Further, the officers were not presented with circumstances reasonably indicating that the two suspects had or were about to commit a violation of the criminal laws of this State as required by § 901.151. Under these circumstances the officers had only a bare suspicion which did not authorize detention of the appellant. Coleman v. State, 333 So.2d 503 (Fla.4th DCA 1976).

The officers had the right to act upon the report of the store manager but here this report was simply insufficient to create the necessary “founded suspicion” based on any objective standard. Coladonato v. State, 348 So.2d 326 (Fla.1977). There was no report of or evidence of stolen goods. The trial court erred in denying the motion. Judgment below is reversed and the cause remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

LETTS, J., concurs.

KAPNER, LEWIS, Associate Judge, dissents with opinion.

KAPNER, LEWIS, Associate Judge,

dissenting.

I would affirm the trial judge’s denial of appellant’s motion to suppress.

The issue before the trial judge was a factual one: Did the arresting officers encounter appellants under circumstances which reasonably indicated that they (appellants) had committed a crime. § 901.151 Fla.Stat. Put another way, did the officers have a “founded suspicion” of criminal behavior. Lewis v. State, 337 So.2d 1031 (Fla.2d DCA 1976).

A “founded suspicion” has been defined as “a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge. ‘Mere’ or ‘bare’ suspicion, on the other hand, cannot support detention. (Citation omitted). Mere suspicion is no better than random selection, sheer guess work, or hunch, and has no objective justification.” State v. Stevens, 354 So.2d 1244, 1247 (Fla.4th DCA 1978). It is sufficient if the circumstances “reasonably suggested the suspect’s possible commission, existing or imminent, of a crime.” State v. Stevens, supra. (Emphasis added). See, also, State v. Othen, 300 So.2d 732 (Fla.2d DCA 1974).

That was the issue before the trial court. The issue before this court is not whether the store manager’s opinions and observations were correct, or whether the officer was compelled to accept them, or whether it was more likely that the suspects were engaged in lawful behavior rather than criminal behavior, but, rather, whether the trial judge abused his discretion in finding, from the evidence before him, that the circumstances reasonably indicated or suggested criminal conduct.

The judgment of a trial judge in cases such as this comes to this court clothed with a presumption of correctness and should be affirmed unless there is a lack of substantial evidence to sustain it. While reasonable persons might differ, I believe there is sufficient evidence to support the trial judge’s determination of the factual issue presented to him. I cannot say, as a matter of law, that the police officers operated on “random selection, sheer guess work, or hunch, and without objective justification.” The officer on the scene had a choice between relying on the store manager’s assessment and description of the situation and, consequently, stopping appellants for further inquiry, or examining the manager’s conclusions more penetratingly, thereby running the risk that appellants might escape.

It is well to keep in mind the purpose of a “stop” as opposed to an “arrest.” Under circumstances reasonably indicating criminal conduct, a police officer may make a reasonable detention for the purpose of ascertaining identity and inquiring into the circumstances justifiably arousing suspicion. § 901.151 Fla.Stat.; State v. Othen, supra. If, on the other hand, the officer has probable cause to believe in fact a crime has been committed, he may “arrest” the offender, that is, take him in custody.

When the stop is challenged in court, the trial judge must determine whether the stop was the result of careful police work or careless harassment. State v. Othen, supra. That the officers, on hindsight, might have been more cautious offers no basis for reversing the trial judge’s determination that the stop and subsequent arrest was valid. Therefore, I would affirm.


source: Caselaw Access Project

author: BERANEK, Judge.

license: Public Domain

text:
    FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant, v. Diane FICHERA, Appellee.
    No. 77-1847.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.
    John P. Widerhold of Pomeroy, Betts & Wiederhold, Fort Lauderdale, for appellant.
    Philip M. Warren of Sullivan, Cochran, Ranaghan, Bailey & Gleason, P. A., Pompano Beach, for appellee.
   BERANEK, Judge.

This is an appeal from a final judgment relating to insurance coverage. The defendant, Florida Farm Bureau Casualty Insurance Company, appeals and presents three points. We -affirm in part and reverse in part.

Appellant initially questions the trial court’s stacking of medical payment provisions in the various policies. The policies in question were initially issued in 1968 and amended thereafter to comply with the automobile no fault law. The accident occurred December 23, 1973. The ruling of the trial court regarding stacking is in accord with existing authorities on the subject and is affirmed. See, Dyer v. Nationwide Mutual Insurance Company, 276 So.2d 6 (Fla.1973), and Government Employees Insurance Company v. Sweet, 186 So.2d 95 (Fla. 4th DCA 1966).

Appellant next questions the trial court’s finding that the one-year limitation contained in the medical payment provision of the policy was unconscionable. The insurance policy here contained personal injury protection benefits (PIP) as required by the no fault statute, Florida Automobile Reparations Reform Act, and also contained Medical Payments Coverage which was additional coverage not required by statute. The Medical Payments Provision of the policy provided as follows:

“II. Medical Payments — Coverage C
To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services to or for [the insured].” (Emphasis added.)

The appellant carrier paid the insured’s medical expenses under PIP and after the PIP benefits were exhausted, refused to pay medical expenses incurred more than one year after the date of the accident. The trial court found the one-year limitation to be unconscionable and required appellant to pay medical expenses incurred more than one year post accident and which were in excess of PIP limits.

This Court’s decision in Moylan v. State Farm Mutual Automobile Insurance Company, 343 So.2d 56 (Fla. 4th DCA 1977), is applicable. Therein a similar problem was discussed and in a special concurring opinion mention was made o.f the possibility of an unconscionable argument in the same circumstances now presented. We now reject the reasoning of the trial court in finding this one-year limitation to be unconscionable and totally void. It may well be that this problem should be addressed by the Legislature; but it also appears that the insured could not have been misled into thinking that Medical Payments coverage existed beyond the one-year period.

If the insured has been treated unfairly in any manner, it is in paying premiums for PIP coverage and Medical Payments coverage where an over-lap or duplication of coverage may exist. Still, when faced with the limits of the PIP coverage an insured may well decide to pay extra for the somewhat duplicitous coverage provided under Medical Payments.

The Legislature has dictated that the PIP benefits shall be primary in Sec. 627.736(4) and since Medical Payments protection is optional coverage, the insured is free to purchase or not purchase it. The policy in question also provides:

“Excess Insurance Provision
“Any automobile medical payments insurance and any protection against uninsured motorists insurance afforded by the policy shall be excess over any benefits available; or which would be available but for the application óf a deductible, under the Florida Automobile Reparations Reform Act.” (Emphasis supplied.).

Thus by statute and by contract the Medical Payments coverage here was excess and the PIP coverage primary.

Obviously, the better solution would be to require carriers to provide Medical Payments coverage for a period of one year after exhaustion of the PIP benefit limits. However, the fact that Medical Payments coverage does not benefit the insured here does not mean the coverage would not be of great benefit under appropriate circumstances. To simply hold the one-year limitation unconscionable has the effect of abrogating it entirely and subjecting the carrier to liability for medical expenses without limitation. This would come as a great surprise even to the insured when faced with the unambiguous policy provisions stated above.

In view of the above, we reverse the finding of unconscionability by the trial court.

The third point on appeal relates to attorneys’ fees. These fees were dependent in part on the insured’s successful attack on the one-year policy provision. Therefore, the attorneys’ fees are also reversed.

The cause is affirmed in part and reversed in part and is remanded for further proceedings in the trial court.

AFFIRMED IN PART AND REVERSED IN PART. REMANDED WITH DIRECTIONS.

ANSTEAD and LETTS, JJ., concur.


author: PER CURIAM.

text:
    William O. BEVAN, Appellant, v. Margaret E. BEVAN, Appellee.
    No. 77-2549.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.
    John D. McElheny, of Johnson, Motsinger, Trismen & Sharp, P. A., Winter Park, for appellant.
    No appearance for appellee.
   PER CURIAM.

This is an appeal from a final judgment finding the appellant-husband in arrears as to previously established obligations to the appellee-wife. In one of its findings the trial court concluded that the husband was in arrearage for unpaid medical expenses in the amount of $879.63. The husband contends and this court agrees that the evidence was uncontradicted that the husband had paid $390.00 of that amount directly to the physicians involved. The appellant has failed to demonstrate that the numerous other findings of the trial court are in error. Accordingly, the judgment is reversed and remanded with directions that it be reduced by the sum of $390.00.

ANSTEAD, DAUKSCH and MOORE, JJ., concur.


author: DAUKSCH, Judge.

text:
    BROWARD COUNTY, Florida, Appellant, v. James T. GRIFFEY and Shirley M. Griffey, Appellees.
    No. 77-1262.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.
    Harry A. Stewart, Fort Lauderdale, Gen. Counsel for Broward County, Alexander Cocalis and Dennis E. Lyles, Asst. Gen. Counsels, Fort Lauderdale, for appellant.

      Henry A. Fricke, of Spear, Deuschle & Curran, P.A., Fort Lauderdale, for appel-lees.
   DAUKSCH, Judge.

This is an appeal from a judgment requiring Broward County to reconvey certain real property to appellees. The court found that appellees were involuntary participants in an illegal and void contract with the County by which the land was initially transferred. The basic facts are that the Broward County Zoning Board was approached by appellees requesting rezoning of their land. The Zoning Board recommended the petition be denied. The County Commission then held an advertised public hearing at which appellees, their attorney and architect presented a plan to build a 1700 unit apartment complex with attendant parking, water and sewer facilities. The minutes of this meeting reflect:

After considerable discussion, and on motion of Commissioner Whalen, seconded by Commissioner Moss and unanimously carried, the Board closed the hearing and deferred action pending the following stipulations: (1) three parking spaces per unit, two to be paved, other for green area which also can be used for parking; (2) twenty-five feet on the east side of the petitioned property for right-of-way, to be paved by petitioner; (3) golf courses to be S-2, water and recreational area to be zoned; (4) petitioner to build a fifty foot access road on State Road # 84, and to be paved in the B-3 area; (5) County has the option to purchase the northwest corner; as required by Department of Transportation, as today’s price, less taxes, plus debt service, within two or three years.

Pursuant to these stipulations the County accepted a deed of land for road purposes, and a deed of land for right-of-way from appellees, along with various other agreements not necessary to determination of this appeal. The County granted the zoning change which would have enabled the Griffeys to build the apartment complex. This complex was never built and the Grif-feys eventually sued the County to get the deeded property reconveyed to them. The trial court granted the relief sought and the County appeals. We reverse.

In the period of time following the rezoning the appellees were apparently unable to come to terms with their contractor. The building was not started and there was no other action in reliance shown. Eventually the County implemented a master land use plan which necessitated rezoning the subject property, along with much other land. This rezoning occurred approximately two years after the initial rezoning. The zoning under the master plan was more restrictive than the rezoned use but more liberal than the initial zoning. At public hearings on adoption of the plan appellees objected to the changes and also demanded the County return the previously conveyed land. These objections and demands were unsuccessful and appellees filed suit.

The trial court determined the original conveyance of the property was an illegal contract in which appellees were involuntary participants. The County was ordered to return the property. The zoning under the master land use plan was left unchanged.

The finding of illegality is unsupported by the facts or the law.

The apartment complex was to be a very high density area requiring additional public access and many other County services. In recognition of these public requirements and as an inducement for the zoning change, the Griffeys deeded the land for roads and right-of-way.

When the County determined it best to develop and implement its county-wide land use plan, it was necessary for various tracts, including appellees’, to be rezoned. If any landowner felt this rezoning was improper, redress in court could have been sought. The Griffeys did not formally challenge the change of zoning. They only requested the County return the land.

The trial of this matter was upon the complaint of the Griffeys which alleged “the condition forced upon plaintiffs by the Zoning Board and the County Commission as a condition of rezoning from T-l to R-4A were (sic) illegally imposed.” The answer included a denial of the alleged illegality and an affirmative defense of laches.

We have searched the record and find no evidence of any illegality on the part of either party. It was the Griffeys who wanted a change in order to build their 1700 unit apartment complex. It is unre-butted that the County needed the deeded land for road and right-of-way purposes if such a high density plan was to be carried through. On appeal appellees assert “conditional zoning” was forced upon them. “A zoning amendment which permits a use of particular property in a zoning district subject to restrictions other than those applicable to all land similarly classified is sometimes referred to as conditional zoning.” 2 R. Anderson, American Law of Zoning § 9.20 (2d ed. 1976). The record reflects the Griffeys and their attorney “stipulated” they would deed the land. There was no hint of over-reaching or illegality or “conditional zoning” at this point. Rather, it was apparently two parties coming to a mutually satisfactory agreement. It has never been urged the County did anything to delay the Griffeys in building after they obtained the zoning classification.

The case of Hartnett v. Austin, 93 So.2d 86 (Fla.1956) is cited by appellees in support of the trial court. In that case Burdine’s Department Store wanted to buy Austin’s land and build a shopping center. The city through the mayor refused to change the zoning classification unless Burdine’s (1) built a wall; (2) maintained a 40' setback; (3) the setback was landscaped; (4) the neighbors were protected against glare and disturbance; and (5) Burdine’s paid for additional police protection. The ordinance required reference to extraneous contracts between the city and the developer. Our Supreme Court said this bargaining away of police power was illegal and the city had no authority to enter into private contracts with property owners to attach conditions on the use of land under the zoning ordinance. In the case at bar there were no private contracts negotiated and certainly no bargaining away of the police power occurred. The County’s requirement of adequate traffic flow to and through the land was a reasonable requirement without which the land was unsuitable for a high density apartment complex. There was no showing the County exacted anything from the Griffeys other than would be required of any R-4A zoning classification. The case of Hartnett v. Austin, supra, thus has no application.

We, therefore, conclude the trial court erred when it found an illegal contract. The judgment below is reversed and the cause remanded with directions to enter judgment for the defendant County.

REVERSED and REMANDED.

MOORE and BERANEK, JJ., concur.


text:
    Wilbert KIRKLAND, Appellant, v. STATE of Florida, Appellee.
    No. 77-2478.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.

      Richard L. Jorandby, Public Defender, and Kenneth R. Barba and Jerry L. Schwarz, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment of conviction for burglary of a structure. By information it was alleged that the appellant had burglarized a structure owned by the City of Fort Pierce. At trial no evidence was offered to establish ownership of the structure involved. Neither was there any evidence offered to show what entity operated or possessed the structure involved. Hence, the proof at trial was insufficient to sustain appellant’s conviction for burglary. Covington v. State, 359 So.2d 563 (Fla. 4th DCA 1978). Accordingly, the judgment of conviction is reversed with directions that the appellant, Wilbert Kirkland, be discharged.

ANSTEAD and BERANEK, JJ., and SIEGENDORF, ARDEN M., Associate Judge, concur.


text:
    Noble WILLIAMS, Appellant, v. Edward J. STACK, as Sheriff for Broward County, Florida, and John Doe, as unknown Trustee and agent of Broward County Sheriffs Department, Appellees.
    No. 78-1508.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.
    James A. Brown, Fort Lauderdale, for appellant.
    David T. Price of Price & Byrne, Fort Lauderdale, for appellees.
   PER CURIAM.

This is an appeal from an order setting aside a default. The motion to set aside the default did not allege the existence of a meritorious defense, and no proof was ever submitted, other than representations of counsel, concerning any legal excuse for the failure to respond to the complaint. As such the motion and proof were insufficient to justify setting aside the default. Clark v. Roberto's, Inc., 320 So.2d 870 (Fla. 4th DCA 1975); Winter Park Arms, Inc. v. Ak- erman, 199 So.2d 107 (Fla. 4th DCA 1967); Thomason v. Jernigan, 146 So.2d 905 (Fla. 1st DCA 1962). Accordingly, the order is reversed.

DOWNEY, C. J., and ANSTEAD and BERANEK, JJ., concur.


author: RIVKIND, LEONARD, Associate Judge.

text:
    Mary Frances BAKER, Appellant, v. Lawrence James BAKER, Appellee.
    No. 78-1019.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.
    David R. Schwartz, West Palm Beach, for appellant.
    No appearance for appellee.
   RIVKIND, LEONARD, Associate Judge.

This is an appeal from a final judgment of dissolution of marriage. The sole relief requested by appellant in the trial court, in the suit for dissolution commenced by appellee, was visitation rights concerning their twelve year old daughter. The final judgment is silent concerning visitation. The failure to provide for visitation is the sole error claimed on appeal. Apparently no report of the proceedings was made and appellant thereafter filed a “proposed statement of facts” mailing a copy to counsel who was then representing appel-lee. No objection or amendment was filed by appellee. However, it does not appear from the record that the statement was ever submitted to the trial court for approval. See Rule 9.200(b)(3) Fla.R.App.P. Ergo, it cannot be considered. Visitation rights concerning minor children should not be denied either parent so long as he or she conducts himself or herself, while in the presence of such children, in a manner which will not adversely affect their morals or welfare. Yandell v. Yandell, 39 So.2d 554 (Fla.1949).

The final judgment should specifically provide when visitation rights are granted or denied. When visitation rights are denied it would assist this court upon review . of such denial if the trial judge would set forth the basis for his ruling. We remand this case to the trial judge so that the final judgment may be amended to grant or deny visitation rights to appellant. The amended judgment would be subject to appeal.

REMANDED.

DAUKSCH and LETTS, JJ., concur.


author: DOWNEY, Chief Judge. LETTS, Judge,

text:
    Donna K. KINZER, Appellant, v. STATE of Florida, Appellee.
    No. 77-1618.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.
    Richard L. Jorandby, Public Defender, West Palm Beach, and Martin H. Colin, Lake Worth, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

Appellant contends the trial court erred in admitting illegally obtained evidence during her probation revocation hearing.

It appears that Officer Purcell, while on routine patrol in plain clothes, observed appellant, a female, exit a vehicle which was parked in a field, saw a black male approach her, saw appellant assume a crouching position and saw appellant and the black male walk toward an adjacent street. On the basis of this observation Officer Purcell stopped and detained appellant and her male companion in order to run a routine identification and records check on them.

The records check on appellant revealed there was an outstanding warrant for her arrest for grand larceny. Appellant was thereupon arrested. Next, Purcell conducted an inventory search of appellant’s car, even though the car was not obstructing traffic, was locked and appellant testified the car belonged to her mother and she requested her mother be allowed to come and get the car. . This search produced a bag of marijuana located behind the driver’s seat.

Appellant was on probation and the above described occurrence gave rise to the probation revocation proceeding in question. Appellant moved to suppress the marijuana found in the car, but the court denied said motion and admitted it in evidence at the revocation hearing.

On appeal appellant contends that the initial stop by Officer Purcell and the ensuing search of the car were improper and thus the marijuana should have been suppressed.

In our opinion Officer Purcell did not have a right to stop appellant because the observations recounted were not sufficient to give the officer a “well founded suspicion” that criminal activity was afoot. In addition, we believe the inventory search was pretextual. None of the alternatives suggested in Jenkins v. State, 319 So.2d 91 (Fla. 4th DCA 1975), and Chuze v. State, 330 So.2d 166 (Fla. 4th DCA 1976) were followed. There were no circumstances shown which necessitated the inventory search. Nonetheless, the evidence was admissible in the probation revocation proceeding, which is administrative in nature, because the exclusionary rule may not be invoked in probation proceedings.

In Croteau v. State, 334 So.2d 577 (Fla.1976), the Supreme Court of Florida made it quite clear that evidence obtained by the unlawful search and seizure of a probationer is not admissible to support a new criminal charge, but the evidence is admissible in a revocation of probation hearing. Accordingly, the illegally obtained evidence was admissible against appellant in the proceeding to revoke her probation. We have considered appellant’s other points and find them to be without merit.

The judgment appealed from is affirmed.

MOORE, J., concurs.

LETTS, J., concurring specially with opinion.

LETTS, Judge,

concurring specially:

In State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978), Justice Alderman set forth several criteria to be considered when the legality of an initial stop is considered. In the case at bar, we have a single female late at night, in a high crime neighborhood. The car was parked in a field which is not the normal place to park one. This late-night rendezvous was observed by police, it was of short duration, and included a crouching down of the defendant. Thereafter, the two separated and walked off in opposite directions. Any officer would have his or her suspicions aroused by such a chain of unusual circumstances and in my view it would be “founded.” Section 901.-151, Florida Statute (1977) does not require probable cause, it speaks of circumstances which reasonably indicate a present or impending violation of the criminal laws. It is my view, therefore, that the initial stop was lawful.

      . That this is the appropriate test was recently reaffirmed in Mullins v. State, 366 So.2d 1162 (Fla.1978).

      . Croteau v. State, 334 So.2d 577 (Fla.1976).

      . Id.; accord, United States v. Hill, 447 F.2d 817 (7th Cir. 1971); U. S. ex rel. Lombardino v. Heyd, 318 F.Supp. 648 (E.D.La.1970); People v. Dowery, 20 Ill.App.3d 738, 312 N.E.2d 682 (1st Dist.Ill.1974).


text:
    Lowell WARD, Appellant, v. STATE of Florida, Appellee.
    No. 78-172.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.
    Richard L. Jorandby, Public Defender, West Palm Beach, and Martin H. Colin, Lake Worth, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This cause is affirmed except for that portion of the sentence directing the defendant to be confined “at hard labor” which three quoted words are hereby deleted from the Judgment of Conviction and Imposition of Sentence. McKnight v. State, 325 So.2d 79 (Fla. 4th DCA 1976) and Lemley v. State, 362 So.2d 691 (Fla. 4th DCA 1978).

AFFIRMED AS MODIFIED.

DOWNEY, C. J., and LETTS and BERA-NEK, JJ., concur.


author: SMITH, Acting Chief Judge.

text:
    SILVER SPRINGS, INC., Appellant, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY and Walter L. Cunningham, Appellees.
    No. KK-454.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1979.
    Willard Ayres of Ayres, Cluster, Curry, McCall & Briggs, P. A., Ocala, for appellant.
    Alex D. Littlefield, Jr., State of Florida Dept, of Labor and Employment Security, Tallahassee, for appellees.
   SMITH, Acting Chief Judge.

Appellant/employer appeals a final order of the Board of Review, Division of Unemployment Compensation, affirming the grant of unemployment benefits to appel-lee/employee Cunningham. The primary issue is whether Cunningham was discharged from his employment for “misconduct connected with his work.” Section 443.06(1), Florida Statutes (1977). Aware as we are of the limited scope of appellate review in the case, we conclude nonetheless that appellant was guilty of work-related misconduct and is not entitled to unemployment benefits under the statute.

The record reveals that Cunningham had been involved in at least three disruptive incidents with female employees at the time of his discharge, and had been warned after the second episode, a particularly flagrant one, that another incident would result in his release. It is well established that repeated instances of misbehavior, contrary to the interest of the employer, constitute “misconduct” precluding unemployment compensation. Varig Brazilian Airlines v. Florida Department of Commerce, 354 So.2d 921 (Fla. 3d DCA 1978); Castillo v. Florida Department of Commerce, 253 So.2d 162 (Fla. 2d DCA 1971). Here it is clear that appellant not only disregarded the standards of employment which the employer had plainly set down, but also disregarded warnings about his conduct and continued in the same disruptive course.

On this record, we cannot countenance the Board’s grant of benefits to Cunningham; the order is therefore reversed with directions to disqualify him from benefits and relieve appellant’s account of any charges in connection with the claim.

REVERSED.

MELVIN, J., and MITCHELL, HENRY CLAY, Associate Judge, concur.


text:
    G & B OF JACKSONVILLE, INC., d/b/a Out of Sight, Petitioner, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF BEVERAGE, Respondent.
    No. GG-304.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1979.
    Harry Katz, Jr., of Katz & Katz, Jacksonville, for petitioner.
    Dennis E. LaRosa and David M. Hudson, Tallahassee, for respondent.
   MASON, (Circuit Judge, Retired) Associate Judge:

We reverse. In so doing we hold that the order of the respondent agency is not supported by competent substantial evidence. Especially is this true as to knowledge on the part of the licensee. We find that the record herein is completely void as to any knowledge on the part of the licensee or of any responsible officer or employee thereof as to the employee’s alleged violation of the law by offering to commit or engage in prostitution with a patron as charged. Before a beverage license may be suspended or revoked it must be found by competent substantial evidence that the licensee was culpably responsible for the alleged violation as a result of its own negligence, intentional wrongdoing or lack of diligence. There is no competent substantial evidence in this case proving that the alleged violation occurred as a result of such fault on the part of the licensee. See Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969). We note that the licensee was charged with but one single violation by an employee. There is no evidence that such activity was persistent or recurring. See Pauline v. Lee, 147 So.2d 359, at p. 364 (Fla. 2d DCA 1962).

Reversed, and the order of the agency herein suspending the licensee’s license is set aside and revoked.

MILLS, Acting C. J., and MELVIN, J., concur.


text:
    Dale McCLAIN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-486.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Bennett H. Brummer, Public Defender, and Karen Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and BARKDULL, JJ.

       Judge Havertield participated in the Order on Mandate in this cause but not in the decision.

   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on February 8,1977 (341 So.2d 1075) affirming the judgment and sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed December 21, 1978 and mandate now lodged in this court, quashed this court’s judgment with directions.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on February 24, 1977 is withdrawn the judgment of this court filed in this cause on February 8, 1977 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The judgment and sentence appealed from herein is reversed and the cause is remanded to the trial court to vacate the sentence for display of a firearm during commission of a felony. Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Rules of Appellate Procedure).


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Donald LEONARD.
    No. 63785.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Donald Leonard applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans.

Writ granted. It is ordered that the defendant’s case be tried on January 23,1979.

SUMMERS, J.,

dissents, being of the opinion that the state is proceeding with reasonable speed to bring this case to trial, considering the facts and circumstances. This Court should not deny the trial judge and District Attorney the discretion to which they are entitled in the conduct of this case.


text:
    STATE of Louisiana ex rel. Donald JACKSON v. Matthew BRANIFF, Judge, Section “B”, Criminal District Court.
    No. 63580.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Donald Jackson applying for writ of mandamus. Parish of Orleans.

Writ granted. Motion transferred to the district court for action.


text:
    STATE of Louisiana v. Gerard EDWARDS.
    No. 63615.
    Supreme Court of Louisiana.
    Jan. 19, 1979.
   In re Gerard Edwards applying for remedial writs. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana v. John Norman KENT.
    No. 63723.
    Supreme Court of Louisiana.
    Jan. 22, 1979.
   In re State of Louisiana applying for supervisory writs. Parish of East Baton Rouge.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Frank Foil, Judge of the Nineteenth Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 5th day of March, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Charles X. BURKINS, Jr. v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, SECTION “B”.
    No. 63495.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Charles X. Burkins, Jr. applying for writ of mandamus. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana ex rel. Henry DOTSON and Sidney Payne v. Frank BLACKBURN, Warden, La. State Penitentiary.
    No. 63741.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Henry Dotson and Sidney Payne applying for writs of habeas corpus, certio-rari and mandamus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Larry Joe PHILLIPS v. Charles FOTI, Sheriff.
    No. 63740.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Larry Joe Phillips applying for writ of habeas corpus. Parish of Orleans.

Writ denied.

DIXON, J., would grant the writ.


text:
    Robert CREADEUR v. DEPARTMENT OF PUBLIC SAFETY, DIVISION OF STATE POLICE.
    No. 63674.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Robert Creadeur applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge.

Writ denied.

DIXON, CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Murphy JENKINS, Jr. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63730.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Murphy Jenkins, Jr. applying for writ of habeas corpus. Caddo Parish.

Writ denied.

DIXON, J., would grant and order an evidentiary hearing as the law requires.


text:
    STATE of Louisiana v. Lucius E. JONES.
    No. 63737.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Lucius E. Jones, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of DeSoto.

Writ denied.


text:
    STATE of Louisiana ex rel. Autry Lee JONES v. JUDGE OF THE 13TH JUDICIAL DISTRICT COURT, PARISH OF EVANGELINE.
    No. 63728.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Autry Lee Jones applying for writ of mandamus. Evangeline Parish.

Writ denied. Moot.


text:
    STATE of Louisiana v. David BROWN, Jr.
    No. 63721.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re David Brown, Jr. applying for writ of certiorari, review and mandamus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Joseph SIEGEL v. Roger AUCOIN.
    No. 63720.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Joseph Siegel applying for remedial writ. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana ex rel. Bobby Ray JONES v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63719.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Bobby Ray Jones applying for writ of habeas corpus. Parish of Caddo.

Writ denied.


text:
    STATE of Louisiana ex rel. Lawton OWENS v. Frank BLACKBURN, Warden Louisiana State Penitentiary.
    No. 63713.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Lawton Owens applying for writ of habeas corpus. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana ex rel. Edward L. SMITH v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63712.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Edward L. Smith applying for writ of habeas corpus. Parish of Richland.

Denied.


text:
    STATE of Louisiana ex rel. Robin L. HUSBAND v. Charles R. WARD, Judge, Criminal District Court.
    No. 63711.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Robin L. Husband applying for writs of certiorari, prohibition and mandamus. Parish of Orleans.

Writ denied.

DIXON and CALOGERO, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Willie ROUTE, Jr. v. 18TH JUDICIAL DISTRICT COURT, PARISH OF POINTE COUPEE, State of Louisiana.
    No. 63708.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Willie Route, Jr. applying for writ of mandamus. Parish of Pointe Coupee,

Writ denied.


text:
    Clarence LE BLANC v. AMERICAN EMPLOYERS INS. CO. et al.
    No. 63700.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re American Employers Ins. Co., et al. applying for writ of certiorari, Third Circuit Court of Appeal, 364 So.2d 263. Parish of Vermilion.

Writ denied.

DENNIS, J., would grant the writ,


text:
    STATE of Louisiana ex rel. Willie THOMAS v. Nestor L. CURRAULT, Jr., Judge, 24th Judicial District Court.
    No. 63576.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Willie Thomas applying for writ of mandamus. Parish of Jefferson.

This application is moot.


text:
    STATE of Louisiana ex rel. Napoleon MOORE v. STATE of Louisiana.
    No. 63531.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Napoleon Moore applying for writ of mandamus. Parish of East Baton Rouge.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Joseph SMITH v. Frank BLACKBURN, Warden, La. State Penitentiary.
    No. 63428.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Joseph Smith applying for writs of habeas corpus and certiorari. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. James BULLOCK v. CRIMINAL DISTRICT COURT SECTION “H”, PARISH OF ORLEANS.
    No. 63412.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In-re James Bullock applying for writ of mandamus. Parish of Orleans.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Larry PERKINS v. Hayden J. DEES, Warden, Dixon Correctional Institute, et al.
    No. 63378.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Larry Perkins applying for writ of habeas corpus. Parish of Red River.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. John F. CHAMBERS v. CRIMINAL LAW CLERK, 24TH JUDICIAL DISTRICT COURT, JEFFERSON PARISH, State of Louisiana.
    No. 63370.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re John F. Chambers applying for remedial writs. Parish of Jefferson.

In view of the advice received from the •district court that relator has been permitted and will continue to be permitted to proceed in forma pauperis, this application is moot.


text:
    STATE of Louisiana v. O’Dowl WATSON.
    No. 63718.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re O’Dowl Watson applying for writ of mandamus. Parish of Orleans.

Writ granted. Trial Court is ordered to act on relator’s application forthwith.


text:
    STATE of Louisiana ex rel. Emmitt HILLS v. PRESIDING JUDGE, 19TH JUDICIAL DISTRICT COURT.
    No. 63715.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Emmitt Hills applying for writ of mandamus. Parish of East Baton Rouge.

Writ granted. An evidentiary hearing is ordered forthwith if one has not yet been held.


text:
    Delma WEST v. BAYOU VISTA MANOR, INC., et al.
    No. 63587.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Delma West applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Evangeline.

Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Robert HAMILTON and Philip Franklin.
    No. 63823.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Robert Hamilton applying for writ of certiorari, prohibition, mandamus and review. Parish of Jefferson.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Alvin Rudy Eason, Judge of the Twenty-Fourth Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 9th day of February, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be set by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Paul KEY.
    No. 63717.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Paul Key, applying for writs of certiorari, review, prohibition, mandamus and for a stay order. Jefferson Parish.

Granted.

The petition of the relator.in'the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Alvin Rudy Eason, Judge of the Twenty-Fourth Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 9th day of February, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent Through Counsel shall show cause, in this court, on a date to be fixed by this court, why the relief prayed for in the petition of the relator should not be granted.


text:
    Joel T. CHAISSON v. Lanny THOMAS, Charles A. Ferguson, Walter G. Cowan, Ashton Phelps, and the Times-Picayune Publishing Corp.
    No. 63513.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Joel T. Chaisson, applying for reconsideration. Parish of Orleans.

Denied. The application for rehearing as to a writ denial will not be considered. Rule 9, Section 6, La. Supreme Court Rules (1976).


text:
    John C. HAMILTON, III v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    No. 63676.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re John C. Hamilton, III applying for writ of certiorari, Third Circuit Court of Appeal, No. 6638. Parish of Lafayette. 364 So.2d 215.

Writ denied,

TATE, CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Joseph W. BEARDEN v. Leon C. BREAUX, Towing Co., Inc., et al.
    No. 63735.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Joseph W. Bearden, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vernon. 365 So.2d 1192.

Writ denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    BOARD OF TRUSTEES OF the FIRE FIGHTERS’ PENSION AND RELIEF FUND FOR the CITY OF NEW ORLEANS and Donald P. Landry v. CITY OF NEW ORLEANS, Moon Landrieu, Mayor, Dept. of Fire, City of New Orleans, and William J. McCrossen, Superintendent of Fire.
    No. 63722.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re City of New Orleans and William J. McCrossen, Superintendent of Department of Fire applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 365 So.2d 889.

Writ denied.


text:
    SADIE’S INC. v. Sandi HITCHCOCK and Kris Cleveland d/b/a Sexy Sadie’s.
    No. 63647.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Sadie’s Inc. applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Jefferson. 363 So.2d 1306.

Writ denied.

TATE, DIXON and CALOGERO, JJ., would grant the writ.


text:
    ENTERPRISE PRODUCTS COMPANY v. Arvis E. WHITMAN, Sheriff and Ex Officio Tax Collector of the Parish of Bienville.
    No. 63508.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Enterprise Products Co. applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Bienville. 364 So.2d 634.

Writ denied.


text:
    STATE of Louisiana ex rel. Peter SCHWANDER v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, State of Louisiana, et al.
    No. 63424.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Peter Schwander applying for writs of certiorari and habeas corpus. Parish of Jefferson.

Writ denied.


text:
    Clarence LE BLANC v. AMERICAN EMPLOYERS INSURANCE COMPANY, et al.
    No. 63739.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Clarence LeBlanc applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Vermilion. 364 So.2d 263.

Writ denied.

DENNIS, J., would grant the writ.


text:
    Edgar CRIPPS, Jr. v. Robert Lee KENNEDY et al.
    No. 63702.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Edgar Cripps, Jr. applying for writ of certiorari to the Third Circuit Court of Appeal. Parish of Rapides. 364 So.2d 243.

Denied.

SUMMERS, C. J., and TATE, J., would grant the writ.


text:
    Wilmore J. LAMBERT v. Dr. Richard Roy MICHEL and St. Paul Fire & Marine Insurance Company.
    No. 63703.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Wilmore J. Lambert applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Avoyelles. 364 So.2d 248.

Writ denied. The result is correct.

DENNIS, J., would grant the writ.


text:
    Clarence LE BLANC v. AMERICAN EMPLOYERS INSURANCE COMPANY et al.
    No. 63687.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re Pierre Hebert, Aline Hebert and Genella Hebert Norsworthy applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Vermilion. 364 So.2d 263.

Writ denied.

DENNIS, J., would grant the writ.


author: BLANCHE, Judge.

text:
    Dick STANSBURY, Individually and as Administrator of the Estate of his minor son, David Stansbury, Plaintiff and Appellee, v. Donald HOVER and National American Insurance Co., Edmay Prosser Patterson, Berwick Bay Oil Co. & Peninsular Fire Insurance Co. (Amended 2-28-77 Edith Mae Patterson Hover, Edmay Prosser Patterson, Individually and as Executrix of the Estate of Edward J. Patterson, Sr., Edward J. Patterson, Jr. and Brenda Patterson) (Amended 6-9-77 Chicago Insurance Co.), Defendants and Appellants.
    No. 12211.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Rehearing Denied Jan. 16, 1979.

      Kim P. Stansbury, Morgan City, for plaintiff and appellee.
    William 0. Bonin, New Iberia, for Ber-wick Bay Oil Co.
    Paul B. Deal, New Orleans, for Edmay Patterson and Nat. American Ins. Co.
    Eldon T. Harvey, III, New Orleans, for Chicago Ins. Co.
    John J. Cooper, New Orleans, for Donald Hover, Peninsular Fire Ins. Co. and Edith Mae Patterson Hover.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Defendants appeal a judgment in a maritime personal injury action in favor of plaintiffs in the amount of $225,000 plus $12,878.75 medical expenses. Plaintiffs have answered the appeal, seeking an increase in the award of damages.

On May 25, 1975, David Stansbury, age 14, was injured when he went overboard from a moving 1972 Ranger fiberglass bass boat while on a pleasure outing with three friends, Jeff Hover, Eddie Wasson and Paul Delaune. David’s injury resulted when the ski rope he was winding at the time tightened on his arm after he fell out of the boat and into the water. As a result of the injury, David’s left arm was amputated just above the elbow.

The action was originally brought on April 29, 1976, against Donald Hover, the father of Jeff Hover, the boy operating the boat, and National American Insurance Company (hereinafter designated as “National American”), as having in force a policy of insurance covering the ownership, use and operation of the bass boat. Plaintiffs alleged acts of negligence of both Donald Hover, for failure to properly instruct and caution the boys, and Jeff Hover, for acts surrounding his operation of the boat.

Plaintiff filed an amended and supplemental petition on May 25, 1976, joining as defendants, Edmay Prosser Patterson in her capacity as executrix of the estate of Edward J. Patterson, Sr., the owner of the boat prior to his death in 1974; Peninsular Fire Insurance Company (hereinafter designated as “Peninsular”), the issuer of a homeowner’s policy in the name of Donald Hover; and Berwick Bay Oil Company as owner of the boat. Berwick Bay Oil Company was dismissed on motion for summary judgment and is not before this Court. Plaintiffs alleged various acts of negligence on the part of Edmay Patterson, inter alia, failure to maintain the vessel in proper condition and to warn of the defective condition of the boat. All defendants entered a general denial. We note that a judgment of possession terminating the succession proceedings was rendered on June 14, 1976.

On February 28, 1977, plaintiffs filed a second supplemental and amending petition joining as additional defendants Edward J. Patterson, Jr., Brenda Patterson, Edith Mae Patterson, Hover and Edmay Prosser Patterson, individually. Plaintiffs sought recovery against these defendants under L8A-R.S. 34:850.24 alleging that they were all co-owners of the boat at the time of the accident and that the vessel was being used by the Hovers with their express or implied permission when Jeff Hover negligently injured David Stansbury. No-answer was ever filed by Edward J. Patterson, Jr., nor a default judgment ever taken, and consequently, no judgment has or could have been rendered against him. Edmay Prosser Patterson, Edith Mae Patterson Hover and Brenda Patterson filed general denials and pled prescription of one year as a bar to the suit.

In answer to the second supplemental and amending petition, Donald Hover and Peninsular filed a general denial and a third party demand against National American and Chicago Insurance Company (hereinafter designated as “Chicago”), alleging the third party defendants to be issuers of two policies providing coverage for the incident. The National American policy in the face amount of $100,000 insured persons operating the boat with the permission of the owner, and the Chicago policy in the amount of $1,000,000 was issued to the estate of Edward J. Patterson, Sr., and Ed-may Prosser Patterson providing coverage for persons operating the boat with the permission of the owner. Third party plaintiffs sought indemnity on the ground that Peninsular’s coverage was “excess” to the other two policies in force.

National American answered the third party petition denying that it provided coverage for Donald Hover. National American also filed a separate third party demand against Chicago and Peninsular averring that should it be found that Edmay and Brenda Patterson would be vicariously liable under R.S. 34:850.24, then it would be entitled to judgment of indemnity against the third party defendants as primary and excess insurers of the Hovers.

Finally, plaintiffs filed a third supplemental and amending petition joining as an additional defendant Chicago as the insurer of a $1,000,000 insurance policy in force at the time of the accident and covering the risk encountered as an excess insurer above and beyond the coverage provided by Peninsular to the Hovers.

For the purposes of “clarification,” Peninsular was the homeowner’s insurer of Donald Hover under a policy providing coverage in the sum of $100,000. National American was the homeowner’s insurer of Edward J. Patterson, Sr., which policy included a special rider providing coverage for the boat in the sum of $100,000. Finally, Chicago was the excess insurer of Edward J. Patterson, Sr., under a policy providing general liability coverage in the sum of $1,000,000.

FACTS

On May 25, 1975, Jeff Hover, David Stansbury, Eddie Wasson and Paul Delaune were on a boating outing on Lake Palourde near Morgan City, Louisiana. All four boys were approximately fifteen years old. The craft was formerly owned by Edward J. Patterson, Sr., who died in 1974. At the time of the accident, the boat was used primarily by Edward J. Patterson, Jr., or Donald Hover and his family. Hover came to use the boat since his wife Edith Mae was the daughter of Edward J. Patterson, Sr. Donald Hover had accompanied the boys to the camp near Lake Palourde.

On this particular day, Jeff Hover, son of Donald Hover, was operating the boat. David Stansbury was an inexperienced skier who had only skied once before and was unable to get up that day. At the time of the accident, Paul Delaune was on the bank a short distance away visiting a girlfriend. Eddie Wasson was skiing while Jeff drove the boat and David set up front as lookout.

When Eddie finished skiing, Jeff stopped to pick him up from the water, turning off the engine after coming to a stop. David helped Eddie put the skis in the boat and moved to the rear as Eddie climbed into the front.

At this point David asked Jeff if the ski rope should be pulled into the boat. Jeff replied in the affirmative and also informed the group that they were going to pick up Paul, who was waiting on the bank. The rope was attached to the boat by means of a “ski bridle” and David reached over the motor and placed the bridle in the boat. Both Jeff and Eddie watched David as he pulled the bridle into the boat and watched him sit down. Jeff and Eddie continued to discuss Eddie’s skiing as Jeff started the engine. Jeff, with the intention of picking up Paul, then accelerated the boat forward.

David had begun winding the rope around his arm and between a “V” made between his thumb and forefinger when Jeff accelerated the boat. The rope, which was nylon, not polypropelene, had sunk beneath the water, although the handle remained floating via a large float. When the boat was accelerated, the rope pulled on David’s arm with considerable intensity. This, combined with the force of the acceleration of the boat which tended to move the boat out from under David, caused David to conclude that he would be pulled out of the boat and over the propeller. In order to avoid this imagined danger, he jumped over the side of the boat.

Eddie looked back in time to see David go out of the boat and immediately screamed for Jeff to stop. Jeff reacted instantly by throttling the boat to neutral. Either immediately before or immediately after the motor was turned off, the rope tightened on David’s arm, the slack ran out and David’s arm was jerked with considerable force.

David was rescued from the water and brought by ambulance to a hospital in Morgan City. Several hours later he was transported to the Ochsner Foundation Hospital in New Orleans where he underwent four operations and vessel transplants over the next two or three weeks in an effort to save the arm. On about the 10th of Juné, 1975, David’s arm was amputated midway between his shoulder and elbow.

FINDINGS OF THE TRIAL COURT

The trial court found that Jeff Hover suddenly, without' signal or warning, accelerated the boat forward. The court concluded that the sudden acceleration, combined with the drag of the rope in the water, caused David to jump out of the boat. The trial judge determined that Jeff Hover was grossly negligent for his conduct in moving the boat without fully alerting the passengers that he intended to accelerate suddenly forward, that he was negligent in moving the boat without determining that the ski rope was completely inside the boat after directing the inexperienced David to bring in the rope, that he was negligent in accelerating the boat at a rapid rate of speed when he knew he had a passenger who was not looking at him but had his attention directed toward the rear of the boat and who was at the time pulling an object out of the water into the boat; and finally that Jeff negligently failed to keep a proper lookout.

The'trial judge rejected defendants’ pleas of contributory negligence on the part of young David. He concluded the suggestion that the accident was caused by David’s standing up to wind the rope, losing his balance and falling overboard was unreasonable, noting the implausibility of the proposition that one would stand up in a boat which was being accelerated at such a fast rate of speed. He also rejected the claim ’ that it was negligent for David to wind the rope in the manner that he did. The trial judge concluded that the method was reasonably safe under the circumstances since at the time David began, the boat was immobile and David could not reasonably have foreseen that Jeff would suddenly accelerate the boat in the manner in which he did.

The trial judge also found Donald Hover guilty of independent acts of negligence resulting in the injury of David, consisting of failure to give proper. instructions or training to Jeff . Hover in the procedures used in water skiing. Such failure consisted of not instructing the boys of the dangers of sudden acceleration or the necessity of keeping a proper lookout.

The trial court rendered judgment against all defendants, in solido, for the full amount hereinabove stated.

ASSIGNMENTS OF ERROR

All defendants appealed the liability issue of Jeff and Donald Hover and the trial judge’s determination of negligence. Also, all defendants urged on appeal that even if this Court should affirm a finding of negligence on the Hovers’ part, the trial judge, nevertheless, erred in not finding that David Stansbury was negligent for using the method of winding the rope which he employed and for standing up in a moving boat.

Edith Patterson Hover, Edmay and Brenda Patterson, Peninsular and National American all appealed the court’s determination that LSA-R.S. 34:850.24 was applicable to a maritime personal injury case and the finding that the heirs were liable in solido with Donald Hover thereunder. Ed-may and Brenda Patterson also appealed the denial of their plea of prescription. National American assigned as error the court’s finding that they provided coverage in favor of the Hovers and the court’s denial of its third party demand for indemnity against Peninsular and Chicago as primary and excess insurers of the Hovers.

Finally, all defendants appealed the damage award claiming it to be excessive.

NEGLIGENCE OF JEFF HOVER

Jeff Hover owed a duty of ordinary and reasonable care not to expose his passengers to an unreasonable risk of harm. We believe this duty would require that he not move the boat forward after instructing David to pull the rope in from the rear of the boat until David was safely seated and the rope safely secure within the boat. To do so would create a risk that David could become entangled in the rope and fall or be pulled overboard by the rope and suffer serious injury. While the record reflects that Jeff watched David sit down after retrieving the bridle, it is clear from that point Jeff never looked back to determine if the rope was in the boat. Although we have doubts as to whether, in this particular case, the ski rope would have actually pulled David out of the boat, we do agree that the inexperienced David could have reasonably believed that he was being pulled from the boat because of the drag placed on the ski rope by the acceleration of the boat.

We, therefore, find that the risk of harm which David encountered fell within the scope of Jeff’s duty and conclude that his failure in this regard amounted to actionable negligence.

NEGLIGENCE OF DONALD HOVER

Assigned as error is the trial judge’s finding of individual negligence on Mr. Hover’s part for failure to properly instruct the four boys on safety procedure for water skiing and operation of the boat.

We find it unnecessary to consider this assignment of error in view of LSA-C.C. art. 2318 which provides for the vicarious liability of the father for damages occasioned by his minor son.

CONTRIBUTORY NEGLIGENCE OF DAVID STANSBURY

All appellants have assigned as error the trial court’s failure to find that David’s conduct was negligent and contributed to his own injury.

Considering David’s inexperience, we regard his belief that he was being pulled over the boat motor by the drag of the ski rope as reasonable. His immediate concern was that he would be drawn into the propeller of the boat’s motor, and being faced with this emergency, he jumped overboard. While a calm, cool and experienced skier would have attempted to remove the rope from his arm or perhaps disregarded the drag of the ski rope as a danger, David was only fourteen years of age and inexperienced in water skiing to such an extent that he was unsuccessful in his attempts to get up on the skis. We are of the opinion that his election to jump overboard was occasioned by the sudden emergency with which he was faced and that he acted reasonably under the circumstances.

“One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence. * * * ”

Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385, 389 (1972).

We, therefore, affirm the finding of the trial court rejecting the claims that David’s own negligence contributed to his injury.

APPLICABILITY OF LSA-R.S. 34:850.24

The trial judge found Edmay and Brenda Patterson, Edith Mae Patterson Hover and National American liable under LSA-R.S. 34:850.24:

“The owner of a watercraft shall be liable for any injury or damage occasioned by the negligent operation of such watercraft, whether such negligence consists of a violation of the provisions of the statutes of this state, or in the failure to observe such ordinary care in such operation as the rules of the common law require. The owner shall not be liable, however, unless such watercraft is being used with his or her express or implied consent. It shall be presumed that such watercraft is being operated with the knowledge and consent of the owner if, at the time of the injury or damage, it is under the control of his or her husband, wife, father, mother, brother, sister, son, daughter or other immediate member of the family. * * * ”

Appellants claim that the trial court erred in finding the statute applicable to a maritime personal injury case. It is true that in a maritime personal injury case brought in state court, the state court must apply the federal substantive law. Hess v. United States, 361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305 (1960); St. Hilaire Moye v. Henderson, 496 F.2d 973 (8th Cir. 1974); Beavers v. Butler, 188 So.2d 725 (La.App. 2nd Cir. 1966), writ refused, 249 La. 739, 190 So.2d 242 (1966). Regarding state laws which are supplemental to, and not inconsistent with, the federal substantive maritime law, the Eighth Circuit Court of Appeals, in the often-quoted case of St. Hilaire Moye v. Henderson, observed:

“ * * * However, a federal court sitting in admiralty need not ‘invariably refuse to recognize and enforce a liability which the State has established in dealing with a maritime subject. On the contrary, there are numerous instances in which the general maritime law has been modified or supplemented by state action . ’ Just v. Chambers, 312 U.S. 383, 387-388, 61 S.Ct. 687, 691, 85 L.Ed. 903 (1941). * * * The Supreme Court has sustained the application of state laws which broaden the scope of liability beyond the general maritime standard. * * * ” (496 F.2d at 980)

R.S. 34:850.24 is found in Louisiana’s “Uniform Pleasure Boating Act.” As noted in Ratcliff v. United Services Automobile Association, 180 So.2d 58 (La.App. 2nd Cir. 1965), writ refused, 248 La. 528, 180 So.2d 541 (1965), the purpose of the statute is to “provide for the protection and promotion of safety in the operation of motorcraft engaged in recreational boating.” (180 So.2d at 60) The statute’s purpose is also to provide a financially responsible party to respond in damages for negligent operation of the boat by anyone using a boat with permission of the owner. The concept of vicarious liability is common to our law. [See e. g. LSA-C.C. arts. 2318 (liability of father for damage caused by minor children) and 2320 (liability of master for negligence of his servant).]

We do not believe R.S. 34:850.24 contravenes in any way the maritime law applicable to this case. It is supplementary to that law and merely establishes a rule of financial responsibility in order to encourage more careful supervision of boats by boat owners.

Appellants also claim that Edmay and Brenda Patterson did not consent to the use of the boat by Donald Hover and, therefore, are not liable. The trial judge found that all parties knew that the boat was used by Donald Hover and Edward J. Patterson, Jr. The consent required by R.S. 34:850.24 may be either express or implied. We believe that Donald and Jeff Hover were operating the boat with at least the implied consent of all the co-owners at the time of the accident. Testimony of both Edmay and Brenda Patterson indicated they knew and consented to the use by the Hovers. The trial court’s finding in this regard is, therefore, correct.

Appellants also claim R.S. 34:850.24 should not be applied in this case because the statute was not intended to apply to a situation where a boat was in a succession and was fractionally owned by a number of individuals. We disagree. The statute is applicable here since all of the fractional owners expressly or impliedly consented to the use of the boat by the Hover family.

Appellants, Edmay and Brenda Patterson, further resist the statute’s application to them, alleging that to do so would violate the benefit of inventory provisions of succession law which are in favor of minor children and widows. Brenda was seventeen at the time of the accident. We reject this argument since both Edmay and Brenda subsequently unconditionally accepted the succession of Edward J. Patterson, Sr., and were sent into possession of the estate. We believe that neither party may now be heard to complain of a debt created while the succession was pending now that they have accepted the succession.

PRESCRIPTION

Edmay and Brenda Patterson, Edith Mae Patterson Hover and National American all urge the prescription of one year as barring the R.S. 34:850.24 claim since the heirs were not joined until February of 1977, over a year and a half after the accident of May 25, 1975.

Counsel for Peninsular suggested in passing that the doctrine of laches should apply to determine whether the claim may still be brought. We find it unnecessary to decide this issue because of our finding that prescription was interrupted as to all heirs by filing of suit against National American on April 29, 1976, and also by filing of suit against Edmay Prosser Patterson as executrix of the estate of Edward J. Patterson, Sr., on May 25, 1976, all as will appear hereinafter.

On May 25, 1976, Edmay Prosser Patterson was joined in her capacity as executrix of the estate of Edward J. Patterson, Sr. In that supplemental and amending petition, plaintiffs averred that the boat was part of the estate of Edward J. Patterson, Sr., and that Edmay Patterson, as executrix, was responsible at all times pertinent for the maintenance, upkeep and supervision of said vessel. We believe that since no judgment of possession had been signed at the time this petition was filed, Edmay Patterson, as executrix of the estate of which the boat was a part, was a proper party defendant. While the heirs may have seizin from the moment of the death of the de cujus, the executrix is the proper party defendant for suits against the estate until a judgment of possession has been signed. LSA-C.C.P. arts. 734, 3249; Gibbs v. Succession of Scott, 265 So.2d 249 (La.App. 3rd Cir. 1972). The judgment of possession was signed on June 14, 1976. We, therefore, find that prescription was interrupted on May 25, 1976, as to all heirs who subsequently unconditionally accepted the succession.

While the above finding is conclusive that prescription was interrupted, we further believe prescription was also interrupted as to all the heirs by filing of suit against National American. Edmay, Brenda and Edith Mae Patterson are solidarily liable as owners under R.S. 34:850.24 and LSA-C.C. art. 2091. It is well settled that an insured and his liability insurer are soli-darily liable. Pearson v. Hartford Accident & Indemnity Company, 281 So.2d 724 (La.1973); Hidalgo v. Dupuy, 122 So.2d 639 (La.App. 1st Cir. 1960). Since Edmay, Brenda and Edith Mae Patterson were all insureds under the National American policy, National American is solidarily bound with them. We believe that filing of suit against National American as a liability insurer with a policy of insurance covering the ownership, use and operation of the boat was sufficient to interrupt prescription as to the heirs. Suit against this one defendant interrupted prescription as to all defendants. LSA-R.S. 9:5801; LSA-C.C. art. 2097; compare Simmons v. Travelers Insurance Company, 295 So.2d 550 (La.App. 3rd Cir. 1974), writs refused, 299 So.2d 795, 796 (1974), with Trahan v. Liberty Mutual Insurance Company, 314 So.2d 350 (La.1975). See, also, Fontenot v. O’Brien, 361 So.2d 298 (La.App. 1st Cir. 1978).

INSURANCE COVERAGE

The trial court found Peninsular and National American to be co-insurers up to their limits of $100,000 each and Chicago to be the excess insurer for any amount over $200,000. The court also found that Edmay and Brenda Patterson, being only vicariously liable, if they had to pay any part of the judgment, would be entitled to indemnity against the Hovers and the three insurance companies. National American was not entitled to any indemnity against Donald Hover for monies paid out on the R.S. 34:850.24 claim since Hover is an insured under the National American policy.

National American cites as error the finding that Donald Hover was an insured under the omnibus clause. We disagree. The trial judge adopted a portion of counsel’s brief as his opinion, and we adopt as our own that part of the trial court’s opinion:

“Counsel for National American has contended, that upon the death of Mr. E. J. Patterson, Sr., the definition of insured was changed to delete what is normally referred to as the ‘omnibus insured’ clause, that is, the clause that provides that coverage to one using or responsible for the operation of watercraft insured under the policy. Examination of the language of the National American policy shows that this contention is without merit.. Mr. Patterson died after the. National American policy was issued but before the accident and date of May 25, 1975. Prior to his death, there is no question that Donald and Edith Mae Hover were covered under the National American policy when they used the watercraft in question with Mr. Patterson’s permission, which they had. The coverage derives from the following language of the policy:

‘8. DEFINITIONS: (Refer to Section II of the Form made a part of this policy for Additional Definitions).
‘When used in this policy the following. definitions apply:
‘a. “Insured” means
‘(3) under Coverage E — Personal Liability and Coverage F — Medical Payments to Others:
‘(a) with respect to . watercraft to which this insurance applies, owned by any Insured, any person or organization legally responsible therefor, except a person or organization using or having custody or possession of any such animal or watercraft in the course of his business or without the permission of the owner . . . .’
“Since Donald Hover was legally responsible for the acts of his minor son, Jeff Hover, the quoted language covers him, as well as Edith Mae, who plaintiff’s attorney contends is responsible under ‘owner’s responsibility’ section of Louisiana Uniform Pleasure Boating Act, La.Rev.Stat. 34:850.-24 (1958).
“Learned counsel for National American contends that once the named insured, E. J. Patterson, Sr., died then the foregoing provision was no longer part of the policy. I disagree.. The National American policy provides the following provision:
‘9. DEATH OF NAMED INSURED: In the event of death of the Named Insured the definition of “Insured” is modified as follows:
‘a. The Named Insured shall mean: ‘(1) the spouse, if a resident of the household at the time of such death; and
‘(2) the legal representative but only with respect to the premises and property of the deceased covered under this policy at the time of such death.
‘b. Insured shall also include:
‘(1) any member of the deceased’s household who was covered under his policy at the time of such death, but only while a resident of the insured premises; and
‘(2) with respect to the property, of the Named Insured, the person having proper temporary custody thereof, but only until the appointment and qualification of the legal representative.’

Undersigned counsel could find no cases construing the above quoted provisions that are effective upon the death of the named insured. It is thus up to the court to construe the meaning of the “DEATH OF THE NAMED INSURED” provisions. It is fundamental to insurance law that words in an insurance policy should be given their normal and usual meaning. Levy v. Duclaux, 324 So.2d 1 (La.App. 4th Cir. 1975); Atlas Lubricant Corp. v. Federal Ins. Co. of N. J., 293 So.2d 550 (La.App. 4th Cir. 1974). The introductory paragraph of those provisions says that ‘the definition of “insured” is modified . . . ’ [Emphasis added] Black’s Law Dictionary (4th Ed.) defines the word ‘modify’ as follows”

‘To alter; to change in incidental or subordinate features; enlarge, extend; limit, reduce. [Citations omitted]’

It is suggested that if the policy was intended to have the definition of insured changed in its entirety, a word other than ‘modified’ would have been chosen, such as ‘supersede,’ for instance. Then it is interesting to note that the introductory paragraph regarding the new definition of ‘Named Insured’ simply uses the words ‘shall mean,’ whereas the modification regarding insured uses the words ‘shall also include.’ [Emphasis added] Black’s Law Dictionary defines the word also as follows:

‘Besides; as well; in addition; likewise; in like manner; similarly; too; withal; some other thing; including; further; furthermore; in the same manner; moreover; nearly the same as the word “and” or “likewise.” [Citations omitted]’

Had it been intended to change the meaning of the definition of ‘Insured’ in its entirety as was apparently intended as respects ‘Named Insured,’ it is suggested that the introductory paragraph would merely have stated ‘insured shall mean’ rather than ‘insured shall also include.’ It is thus clear that the underwriter drafting the policy intended for the new definitions of insured contained in paragraphs 9b(l) and (2) to be in addition to the definitions given for insured in paragraph 8.a(3)(a) and (b). Note also that those definitions specifically refer to ‘Personal Liability,’ ‘watercraft’ and also ‘vehicle’ and they are the clauses of an insurance policy usually termed ‘omnibus insured’ clauses.

“It is therefore suggested, that the omnibus provisions relating to watercraft and which provide a coverage to the Hovers respecting their use of the boat before the death of Mr. Patterson, Sr., also provided coverage after his death when Mrs. Patterson became the new ‘Named Insured’ and owner or part owner of the boat under the community property and succession law of this State. This, I suggest is a ‘fair, reasonable and sensible construction compatible with the apparent object and plain intentions of the parties as expressed in the words of the [policy agreement.]’ Corkern v. Main Ins. Co., Chicago, Ill., 268 So.2d 138, 140 (La.App. 1st Cir. 1972). It is well settled that ‘limitations and exceptions to coverage of the policy must be clearly expressed.’ Thomas v. First National Life Ins. Co., 250 So.2d 42, 43 (La.App. 3d Cir. 1971). The Hovers and Peninsular thus contend that the National American policy covered them for any alleged negligence of Donald Hover, individually, and as the legal representative of his minor son, as well as Edith Mae Patterson Hover for any liability she may have under the boating statute, as respect the use of the Patterson boat on the date of the accident in suit.” (Record, pp. 439-443)

Likewise, we find no error in the trial court’s finding that Peninsular and National American were co-insurers as a result of mutually repugnant excess insurer clauses which were therefore ineffective.

Regarding third party claims, the trial judge in his opinion said:

“It is believed, that the foregoing disposes of all of the third party claims except the claims of Edmay Prosser Patterson and Brenda Patterson as the insureds of National American. They alleged in their third party petition that, if liable, they are only vicariously liable. They set forth that it is the primary, active negligence of Donald and Jeff Hover that caused the injuries and losses herein. They claim that they are entitled to indemnification. Since the Court finds that Donald Hover is insured under all three policies, their claim for indemnification, should they have to pay any amounts herein, would be against Donald Hover and the three insurance carriers. See APPALACHIAN CORPORATION v. BROOKLYN COOPERAGE COMPANY [151 La. 41], 91 So. 539 (La.1922), and WASHINGTON v. DEGELOS, 312 So.2d 918, (4 C.A. 1975). On page 922, of the latter case, we find the following language:
“ ‘As the doctrine exists in Louisiana, the right to indemnity from the person primarily negligent exists only in favor of one who is vicariously liable for the damages caused because of merely technical or constructive fault. Appalachian Corp. v. Brooklyn Cooperage Co., cited above; Stewart v. Roosevelt Hotel, La.App. 4 Cir., 170 So.2d 681; American Employers Insurance Co. v. Gulf States U. Co., La.App. 1 Cir., 4 So.2d 628. See also Williams v. Marionneaux, 240 La. 713, 124 So.2d 919. The right to indemnity does not exist in favor of a joint tortfeasor whose act or failure in the performance of a duty was a contributory cause of the accident, and there is no right to indemnity where the liability of the one seeking it cannot be regarded as secondary, vicarious, or derivative. Lee v. City of Baton Rouge, 243 La. 850, 147 So.2d 868; Second Church of Christ Scientist v. Spencer, 230 La. 432, 88 So.2d 810, discussed at 17 La.L.Rev. 348, 350 (1957); Travelers Insurance Co. v. Hardware Mutual Cas. Co., La.App. 3 Cir., 186 So.2d 185 (rendered April 27, 1966).’ [Hebert v. Blankenship] [La.App.] 187 So.2d [798] at 803” (Record, pp. 446, 447)

Based upon the above reasoning, the trial court ordered that Edmay and Brenda Patterson were entitled to indemnity against the Hovers and the three insurance companies who insured the Hovers should they have to pay any portion of the judgment. We find no error in the above finding.

DAMAGES

All defendants appealed the award of $225,000 as being excessive. We note that much testimony was taken in this trial regarding the physical and emotional suffering which David has endured since the accident.

When David fell out of the boat, the rope pulled around his left arm with such force as to cut through the flesh and crush the nerve endings. Whatever muscle tissue may have remained was severed completely to the bone when the rope tightened around his arm after the slack ran out. The rope was extracted from David’s arm by the ambulance attendants who transported him to the hospital. There is no question that this young .man suffered an extremely painful injury.

Young David underwent four different operations in an attempt to save his arm before the decision was made to amputate. Following the operation and continuing up until the time of trial, David had phantom sensations and pains.

The trial judge found David’s emotional damage would be long term:

“David Stansbury has suffered tremendous emotional and mental shock and suffering as a result of this injury. It does not take an overactive imagination to realize the mental pain and suffering a young boy this age has in comparing himself to his able bodied and whole contemporaries. It is the age in one’s life in which activity is of great importance. Every single activity in which such a person engages brings home the disability which he has in comparison to his fellows. Perhaps he will adjust to some extent in the future, to this disability and this handicap. The Court feels, however, that throughout his life this feeling of inadequacy, when compared with his fellowmen, will always be an emotional and mental problem with him.” (Record, p. 451)

Dr. Lynn Hamilton, an orthopedic surgeon, testified that David has a 95 percent permanent partial physical impairment of the left upper extremity and the equivalent of 57 percent permanent partial disability for his entire person. The trial judge also took notice of the severe restrictions the physical impairment would place on David’s choice of career opportunities.

We conclude, after carefully examining the evidence of emotional and physical injury and considering future disability as well as future suffering and inconvenience, that an award of $225,000 was proper and not an abuse of the trial court’s much discretion in awarding damages. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court is affirmed, defendants-appellants to pay all costs.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Dr. I. I. ROSEN v. Leonard E. YOKUM et al. Dr. I. I. ROSEN v. Nancy Ann STOGNER et al.
    Nos. 12255, 12256.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Rehearings Denied Jan. 16, 1979.
    Writ Refused March 5, 1979.

      Charles B. W. Palmer and Michael T. Pawlus, Amite, counsel for Dr. Rosen, plaintiff-appellant.
    Harry H. Howard, Asst. Atty. Gen., Baton Rouge, counsel for Leonard E. Yokum, Joseph Simpson & Jesse P. Lagarde in No. 12255.
    Joseph Simpson, Amite, counsel for Harrell Griffin.
    Ben Lightfoot, Baton Rouge, counsel for Frank M. Edwards, Jr. and staff, Nancy Stogner and Chester Pritchett.
    Leonard E. Yokum, Joseph H. Simpson, William Quin, in pro. per. in No. 12256.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

These are suits for malicious prosecution. In suit number 12255 Dr. I. I. Rosen and Mildred Gill sued various defendants including Leonard E. Yokum, District Attorney for the Twenty-First Judicial District, Joseph H. Simpson, Assistant District Attorney, and Jesse P. Lagarde, Assistant District Attorney. Dr. Rosen in suit number 12256 sued various defendants again including Yokum, Simpson, and adding William Quin, an Assistant District Attorney.

The defendants, Yokum, Simpson, La-garde and Quin, filed motions for summary judgment in both cases claiming absolute prosecutorial immunity citing Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). These suits were consolidated for the purpose of disposing of the motions for summary judgment. Both suits will be handled in this opinion.

Judgment was rendered granting the motions and dismissing the suits as against Leonard E. Yokum, Joseph H. Simpson, and William M. Quin.

From this judgment, plaintiff has appealed. Appellant has assigned the following specifications of error in suit number 12255, to wit:

“1. It was error for the recused judge to act and attempt to reallot a case.
2. It was error for a recused judge to attempt to reallot a case assigned to another division.
3. It was error for a trial judge to act in a case that was, illegally before his court on a void allotment.
4. It was error, when writs were applied for and a request to stay further proceedings based upon the lack of venue and or jurisdiction of the court.
5. It was error for a court, to ignore a null ‘reallotment’ to participate in a case, until it was clear the case was in the proper forum, and any action, was null and void.
6. It was error for the trial court to fail to order the attorney general to withdraw as counsel of record.”

In suit number 12256 the following specifications of error have been assigned:

“1. It was error for a judge of Div. ‘A’ to stay scheduled depositions in Div. ‘B’, on a motion filed in a Div. ‘D’ case.
2. It was error for the trial judge of Div. ‘B’ to recuse himself and act or participate any further, in the case.
3. It was error, for the judge of Div. ‘D’ to . whom the case was alloted, to fail to act on a motion to recuse.
4. It was error for a recused judge to attempt to reallot a case after his recusal.
5. It was error for a trial judge whose allotment improvidently issued on the order of a recused judge, to act or participate, in the ease, until this question was resolved.
6. It was error, and an abuse of discretion for a trial judge, whose propriety to sit on a case was questioned, to refuse a stay order to apply for supervisory relief.
7. It was error, for a trial judge to dismiss a suit when he was improvidently and illegally sitting on the case, and appellate delays should not commence to run.
8. It was error, for the trial judge to fail to vacate an order allowing the attorney general to represent private interests.”

In appealing, appellant does not complain as to the merits of the granting of the motion for summary judgment, and thus, under Rule IX-A Uniform Rules-Courts of Appeal we limit ourselves to those specifications of error contained in the briefs. We do note in passing, however, that we are of the opinion that no error was made on the part of the trial judge in granting the summary judgments.

As we understand the above listed specifications of error, they form basically four issues: (1) recusal and reallotment, (2) authority of judge to whom a case is not assigned to stay depositions, (3) authority of the attorney general’s office to represent a district attorney and his assistants in a suit against them, and (4) propriety of a trial judge to refuse to stay the proceedings pending the application for writs.

ISSUE NO. 1

After a motion for new trial was filed in each suit, the plaintiff-appellant filed separate motions to recuse all judges in the Twenty-First Judicial District because they would be called as witnesses. This motion was filed in each suit on December 21,1977.

The trial judge to whom these cases had been assigned, and who had rendered the summary judgment, namely the Honorable Gordon E. Causey, ex proprio motu recused himself and ordered the cases reallotted. We gather from the record and briefs that these cases were reallotted to Division “D” of the Twenty-First Judicial District. However, on February 1, 1978, Judge Cau-sey reallotted each of these cases to Division “C”, then presided over by the Honorable Ben Miller, appointed by the Louisiana Supreme Court to temporarily fill a vacancy in that division. In the motion and order to reallot to Division “C”, it was pointed out that Judge Miller was from Baton Rouge and not the area of the Twenty-First Judicial District.

Under Rule VIII, of the Rules of the Twenty-First Judicial District, as well as La.C.C.P. art. 157, we find no error on the part of the trial judge in reallotting this case to Division “C” of the Twenty-First Judicial District. Conceding, however, for the sake of argument that the trial judge was in error in reallotting this case for the purpose of hearing the motion for a new trial, we find same to be harmless.

ISSUE NO. 2

Rule VIII of the Rules of the Twenty-First Judicial District provides:

“All ex parte orders in contested cases will be signed by the judge to whom the case is allotted or transferred unless unusual circumstances exist where in the interest of justice it is required that a judge of another division sign the order. Such orders may also be signed as provided by law.”

This rule specifically allows judges to whom a case has not been allotted to sign orders. Thus, we find no error.

ISSUE NO. 3

Plaintiff-appellant argues that it was error for the trial judge to refuse to remove the attorney general as counsel of record for the defendant district attorney and his assistants because they were sued in their individual capacities.

The district attorney and his assistants are provided for by the constitution. Article 5, § 26 La.Const. (1974).

Though the plaintiff-appellant contends that the district attorney and his assistants were sued in their individual capacities, the record points out that they were sued because of functions they performed in their official capacities, and thus, we see no error in the trial judge refusing to remove the attorney general’s office as counsel of record for these defendants.

ISSUE NO. 4

Rule XII, Section 2, Uniform Rules-Courts of Appeal in part provides that upon a trial judge being given notice of intention to apply for writs, “he shall fix a reasonable time within which the application shall be filed in this court [Court of Appeal], and he may, in his discretion, stay further proceedings, * * Thus, under the above Rule of the Uniform Rules-Courts of Appeal, the trial judge has within his discretion the authority to stay further proceedings. We find no abuse of that discretion.

Therefore, for the above and foregoing reasons, judgments in No. 12255 and No. 12256 are affirmed at appellant’s costs.

AFFIRMED.

      . We find no judgment in this record granting a summary judgment dismissing the suit as against Jesse P. Lagarde.