author: HALL, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Paul M. BOUNDS, Defendant-Appellee.
    No. 12669.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 3, 1975.
    En Banc.
    Rehearing Denied Oct. 1, 1975.
    Writ Refused Nov. 18, 1975.

      D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Robert L. Ledoux, Johnie E. Branch, Jr., Baton Rouge, and Jack C. Frugé, Sr. by Jack C. Frugé Sr., Ville Platte, for plaintiff-appellant.
    Holloway, Baker, Culpepper & Brunson by William H. Baker and Herman A. Cas-tete, Jonesboro, for defendant-appellee.
    Before PRICE, HALL and DENNIS, JJ-
   HALL, Judge.

In this expropriation suit arising out of the widening and improving of Highway No. 167, known as the Jonesboro-Hodge Highway, the district court awarded the defendant-owner the total sum of $26,996.-50 as just compensation.

The Highway Department appealed specifying that the trial court erred (1) in awarding any severance damages and particularly in awarding more severance damages than were testified to by any of the expert witnesses and (2) in awarding excessive expert witness fees. The defendant answered the appeal assigning as error the award by the trial court of an inadequate amount for the value of the land taken.

The district court’s award is itemized as follows:

Land taken $ 5,746.50
Improvements taken 18,750.00
Severance damages 2,500.00
Total $ 26,996.50

The property owned by defendant at the time of the taking was a lot containing 7,497.35 square feet located at the corner of Highway No. 167 and Harrison Street in Jonesboro, Louisiana, together with the improvements thereon consisting of a one-story frame residence in good condition in which the defendant resided. The land taken consisted of a strip across the entire front of the property ranging in depth from 59.68 feet to 57.51 feet and containing 4,597.2 square feet, leaving a remainder after the taking of 2,900.15 square feet. The exact size of defendant’s property was disputed at the trial but the trial court’s conclusion as to the size of the tract as set forth above is not disputed on appeal.

The trial court concluded the highest and best use of the property is commercial and this conclusion is not disputed on appeal, although at the trial three of defendant’s four appraisers based their appraisals on a commercial front use and residential rear use of the property.

Value of the Land Taken

Defendant urges that the evidence supports an award for the value of the land taken based on a valuation of at least $2 per square foot rather than $1,25 per square foot as found by the district court.

The subject property is lower than highway grade and all witnesses were of the opinion the property would have to be filled in order to be put to its highest commercial use. The cost of filling the property was taken into consideration by the several witnesses to varying extents. Estimates of value of the land taken, after giving consideration to the cost of filling, ranged from $.95 per square foot by plaintiff’s witness, Linwood J. Roy, to $2.50 per square foot by defendant’s witness, O. L. Jordan. On the basis of the evidence, the trial court quite reasonably concluded the value of the land if filled and up to highway grade would be $2 per square foot. The court deducted the cost of filling in arriving at a value at the time of taking of $1.25 per square foot. Our review of all the evidence convinces us this conclusion was reasonable and correct. We find no error as to the award for the value of the land taken.

Severance Damages

The Highway Department’s principal argument that the severance damages are excessive is based on the fact that the amount of $2,500 awarded is more than the amount testified to by any of the expert witnesses. The highest estimate of severance damages was made by plaintiff’s witness, Linwood J. Roy, who estimated such damages at $2,239. Plaintiff’s witness, Daniel G. Oarlock, Jr., and defendant’s witnesses, H. L. Bass and Darrel V. Wil-let, testified there were no severance damages. Defendant’s witnesses, Habeeb Mon-sour, Jr. and O. L. Jordan, estimated severance damages at $1,590 and $1,286 respectively.

The award of $2,500 for severance damages does exceed the highest estimate of any of the expert witnesses and to this extent must be considered erroneous. The evidence discloses the remaining tract has commercial value but the value is diminished by reason of its small size and irregular shape. Roy estimated the diminution in value at 25%, Monsour at 50%, and Jordan at 90%. The 50% figure seems most reasonable. The 2,900.15 square foot remaining tract had a before value of $3,625.18 based on $1.25 per square foot. Our conclusion is that the value of this tract was reduced by 50% because of the taking, resulting in severance damages of $1,812.59. The judgment should be amended by reducing the award for severance damages from $2,500 to $1,812.59 or a reduction of $687.41.

Defendant argues that plaintiff judicially admitted severance damages of at least $2,239 because that amount is shown on the certificate of value signed by two appraisers and attached to plaintiff’s original petition. However, prior to trial, plaintiff filed a supplemental petition in which the certificate was amended to show no severance damages. Plaintiff is not bound by the figure shown on the first certificate.

Expert Witness Fees

The district court awarded the following expert witness fees:

Lavelle Nunn (a photographer who identified photographs filed into evidence) A. Ray Bond (a contractor whose testimony as to reproduction costs was stipulated) Habeeb Monsour (defendant's appraiser) H. L. Bass (defendant's appraiser) Darrel V. Willet (defendant's appraiser) 0. L. Jordan (defendant's appraiser) Total $ 7,324.56 $ 374.56 300.00 1,700.00 1,800.00 1,700.00 1,450.00

In recent expropriation cases involving the same highway project and most of the same witnesses, this court found similar fees to be excessive. See State of Louisiana, Through Department of Highways v. Malcolm D. Whitman, 313 So.2d 918 (La. App.2d Cir. 1975); State of Louisiana, Through Department of Highways v. United Pentecostal Church of Hodge, Louisiana, 313 So.2d 886 (La.App.2d Cir. 1975). In line with these cases and for the same reasons expressed therein, we disallow the fees for Lavelle Nunn and A. Ray Bond and fix the expert witnesses’ fees as follows :

Habeeb Monsour $ 650.00
H. L. Bass 650.00
Darrel V. Willet 650.00
0. L. Jordan 650.00

Motion To Dismiss Appeal

Defendant filed a motion to dismiss the appeal on the grounds that the Highway Department failed to deposit the excess amount awarded by the trial court prior to taking the appeal and that the attorney for the Highway Department was not authorized to take and perfect an appeal on behalf of the State. A similar motion was overruled in State of Louisiana, Through Department of Highways v. Malcolm D. Whitman, supra; State of Louisiana, Through Department of Highways v. United Pentecostal Church of Hodge, Louisiana, supra. The motion in the present case is overruled for the same reasons as expressed in the previous cases.

For the reasons assigned, the judgment of the district court is amended to reduce the amount awarded by $687.41 and to fix the expert witnesses’ fees as set forth above. As amended, the judgment of the district court is affirmed.

Amended, and as amended, affirmed.


source: Caselaw Access Project

author: LEMMON, Judge.

license: Public Domain

text:
    Willie MITCHELL v. EQUITABLE EQUIPMENT COMPANY and Continental Assurance Company.
    No. 6571.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 1975.
    Rehearing Denied Oct. 9, 1975.
    Writ Granted Nov. 21, 1975.

      Badeaux, Discon, Cumberland & Bar-bier, J. Michael Cumberland, New Orleans, for plaintiff-appellant/appellee.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Robert E. Winn, New Orleans, for defendant-appellant, Equitable Equipment Co.

      Deutsch, Kerrigan & Stiles, Francis G. Weller and Russell L. Dornier, New Orleans, for defendant-appellee, Continental Assurance Co.
    Before LEMMON, STOULIG and MORIAL, JJ.
   LEMMON, Judge.

Equitable Equipment Company has appealed from a judgment awarding plaintiff long-term disability benefits under the provisions of a group insurance policy issued by Continental Assurance Company.

Plaintiff was employed by Equitable as a welder from May, 1967 until February 10, 1971, when plaintiff entered the hospital suffering from a perforated ulcer. He has not worked since that date.

Continental paid plaintiff short-term disability benefits for the maximum period of 26 weeks. In this suit asserting entitlement to long-term benefits, Equitable raised several issues, including the question as to whether plaintiff was continuously disabled within the terms of the policy. We decide the case, however, solely on the basis that the policy did not cover plaintiff’s disability caused by a sickness which commenced before the policy was in force.

I

While in the service in 1945, plaintiff developed hoarseness and was treated for several weeks. Later, the skin on his hands, elbows, forearms and buttocks broke out in blisters, which resulted in thickening, scarring and depigmentation. These infections occurred over the subsequent years at irregular intervals.

After his discharge from the service plaintiff maintained consistent employment until 1957, when he sought medical attention for persistent hoarseness. After numerous referrals to various medical specialists, extensive testing, and a ten-month stay in Charity Hospital, plaintiff was determined to be suffering from lipoid pro-teinosis, an extremely rare disease which affects the skin and mucous membrane, particularly of the throat, larynx and tongue. The disease, a progressive one with periods of remittance and recurrence, causes thickening, swelling, and sometimes ulceration, and it is difficult to determine in specific cases whether ulcerations result from this disease or from secondary infections.

After the extensive hospitalization plaintiff continued treatment as an outpatient and received benefits from the Veterans Administration for non-service connected disability. He ultimately gave up the treatments, because he “wasn’t getting along any better”, and in 1966 began employment at a shipyard as a welder. After working there for almost a year, he left because of a shortage of work and obtained similar employment at Equitable.

Plaintiff did not miss any appreciable periods of work because of illness or injury during his tenure at Equitable except for hernia surgery in July, 1970.

After being hospitalized in February, 1971 by the stomach ulcer for 18 days, plaintiff continued under regular treatment by Dr. Hollis Stafford for that condition through August. Thereafter, Dr. Stafford treated him periodically for epigastric pain, generally by prescribing medication and special diet. Dr. Stafford also occasionally administered antibiotics for relief of the lip-oid proteinosis.

Dr. Stafford opined that plaintiff was disabled from the two conditions, but admitted that the ulcer was not alone disabling and that opinions about the results of lipoid proteinosis were not within the field of his competence. He particularly recommended that plaintiff not return to employment as a welder, because of throat irritation from dust and smoke.

In January, 1972 plaintiff was examined by Dr. Adrian Cairns, an otolaryngologist. Dr. Cairns found plaintiff disabled for any work involving physical labor, because the disease causes difficulty in swallowing, talking and breathing which is worsened by physical exertion.

In February, 1973 plaintiff was examined at Equitable’s request by Dr. Ronald Martz, an internist who frequently performed disability evaluations. Dr. Martz diagnosed lipoid proteinosis, chronic peptic ulcer and peripheral arteriosclerosis with intermittent claudication. Because all these conditions were progressive, he did not believe plaintiff “would be fit for any other type of work.” He also stated that plaintiff’s claim he was not disabled until the ulcer attack was not inconsistent with his findings.

II

Under the long-term disability policy the insurer contracted to pay benefits when the insured became totally disabled because of injury or sickness. The policy further defined sickness and injury, sickness being defined as:

“ ‘Sickness’ wherever used in the policy means sickness or disease commencing while the policy is in force as to the Insured whose sickness is the basis of claim.”

Thus, the insuring clause obliges the insurer to pay for certain losses resulting from injury or sickness, and the policy’s definitions of injury and sickness define the scope of that coverage. Since only those sicknesses which fall within the definition are covered under the insuring clause, the policy is apparently not intended to cover a disability resulting from a preexistent condition.

The evidence established that plaintiff’s disability resulted from lipoid protein-osis, a sickness which commenced in 1945. While plaintiff did not become totally disabled until 1971, the causative sickness commenced years before, and we conclude that the policy by its express terms simply does not provide coverage for disability resulting from such sickness.

Plaintiff argues, however, that when an insurer issues a group policy, it must accept coverage on all of that cross section of employed people. The insurer did accept plaintiff for group coverage; it agreed, however, (as do the insurers under all policies) to cover only those losses caused while the policy is in force. We do not find the provisions of this particular group policy, requiring by its precise terms that the sickness which causes the disability also commence while the policy is in force, to be repugnant to group insurance principles.

Plaintiff points out, however, that Section (c) of the “Limitations” provides that no insurance is afforded:

“as to a disability commencing during the first twelve months that insurance is in force with respect to the Insured if the disability is caused or contributed to by, or as a consequence of, a disease or injury for which the Insured received medical treatment or services, or took prescribed drugs or medicines, during the three month period prior to the effective date of such insurance . . .

Further pointing out the lack of any evidence as to treatment or medication during the applicable three-month period, plaintiff argues that Equitable is attempting to use the definition of sickness as an additional limitation upon the limits set forth in the “Limitations” section. In effect plaintiff argues that the two “limitations” are irreconcilable, and that the conflict must be resolved by applying that provision which affords coverage rather than that which excludes coverage.

We find no such irreconcilable conflict. The policy was not intended to cover disabilities resulting from a pre-existing sickness or disease, regardless of how much time elapsed between the date the sickness or disease commenced and the effective date of the policy. We view the purpose of Section, (c) as establishing a presumption as to the commencement date of the sickness or disease under certain conditions.

The determination of the commencement point of a sickness or disease has caused considerable litigation. The general rule places the time of inception as the time that the sickness or disease first manifests itself or becomes active, although prior to that time the germs or infection may have been present in the body in a latent or inactive condition. Meyer, Life and Health Insurance Law § 15.9 (1972); 53 A.L.R.2d 686; 10 Couch, Cyclopedia of Insurance Law § 41:809, 810 (2nd ed. 1962).

What constitutes manifestation is a more difficult question. Particularly troublesome problems arise when symptoms occur just before coverage attaches, although the sickness or disease is not diagnosed until after the crucial date, and the insured thus was not aware he had the particular sickness or disease before the effective date of the policy.

To handle this perplexing proof problem, Section (c) establishes a rule that the sickness or disease has manifested itself before the effective date of the policy if the insured received medical- treatment for the sickness or disease or for symptoms of the sickness or disease within three months prior to the effective date of the policy. Section (c) in actuality establishes a conclusive presumption under the particular circumstances (providing disability also occurs within the first 12 months of policy coverage). However, if treatment for the sickness or disease, or for the symptoms thereof, was more than three months before the effective date, Section (c) leaves the finder of fact free to determine from the preponderance of the evidence whether or not that treatment constituted a manifestation of the ultimately disabling sickness or disease. Of course, the finder of fact may find, depending on the evidence, that the insured had recovered from the prior condition or that the disabling disease was different from the preexistent one.

In the present case the presumption established by Section (c) is inapplicable, and the determination of preexistent condition depends on the evidence. We conclude that this record can only support a conclusion that lipoid proteinosis antedated the policy.

Plaintiff further argues that Equitable’s interpretation of coverage conflicts with the policy provision entitled “Time Limit on Certain Defenses”, which proscribes denial of claims on the ground that the disease existed prior to the effective date of coverage, if the disability com-menees after two years from the effective date of coverage.

This type of provision, which may be likened to a statute of limitations, protects an insured who has held the policy for a prescribed minimum period of time from denial of a claim based on preexistent conditions. The intent is to provide certainty of coverage to an insured who maintains his policy in force for the minimum period, on the theory that an insured should be covered if he does not suffer a loss from the preexistent disease during the minimum period.

We hold that the policy, under its unambiguous terms, did not provide coverage for plaintiff’s disability.

Accordingly, the judgment of the trial court is reversed, and it is now ordered that plaintiff’s suit be dismissed, with each party to bear its own costs.

Reversed and rendered.

      . Continental’s group policy, which went into effect on April 1, 1970, originally provided life, hospitalization, and long and short-term disability insurance. On December 1, 1970, however, Equitable cancelled the long-term disability coverage and undertook to provide the identical protection itself. Counsel for Equitable conceded that the policy terms governed Equitable’s liability for long-term disability benefits.

      . Treatment with steroids has a tendency to predispose the patient to other infections.
      One physician, a specialist in internal medicine, researched the 200 reported cases of the disease and found stomach problems involved in some cases, but expressed his belief that plaintiff’s stomach problem in 1971 resulted from a peptic ulcer and was not secondary to lipoid proteinosis.

      . The pertinent provision as to benefits under the insuring clause read:

        “If the Insured while insured under the Policy, and while under the age of sixty-four years and six months, becomes totally disabled solely because of injury or sickness from performing each and every duty pertaining to his occupation and remains continuously so disabled during and beyond the elimination period, and if proof of loss is furnished as hereinafter set forth, the Corn-pony will pay a benefit at the rate determined in accordance with the terms of the Policy. * * * ” (Emphasis supplied)

      . R.S. 22:213, subd. A (13) (b) requires this type of provision as to claims for disability commencing after three years from the effective date of coverage.


author: STOULIG, Judge. BOUTALL, Judge

text:
    Jim GARRISON v. HOTEL DIEU and Pacific Employers Insurance Company.
    No. 6930.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1975.
    Rehearing Denied Oct. 9, 1975.
    Writ Refused Nov. 21, 1975.

      Tucker, Schonekas & Garrison, Jim Garrison, New Orleans, in pro per.
    Lemle, Kelleher, Kohlmeyer & Matthews, H. Martin Hunley, Jr., New Orleans, for defendants-appellants.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Plaintiff, Jim Garrison, was awarded a judgment of $109,400, based upon a jury verdict in this amount, for a back infection he allegedly incurred because hospital personnel negligently “impelled” him to take a shower the day following surgery which allegedly resulted in a staphylococcal infection. Defendants, the Hotel Dieu Hospital and its insurer, Pacific Employers Insurance Company, have appealed suspensively.

We reverse. The record does not sustain either a finding that the hospital staff breached the duty of care it owed plaintiff as an inpatient or that the back infection was in fact caused by the shower.

To establish malpractice, it is necessary for plaintiff to prove one or more Hotel Dieu employees performed in a substandard way — what is customarily accepted and provided by hospitals throughout the community as competent care of patients having the same known medical condition as plaintiff. It must be shown that the hospital personnel negligently departed from the recognized standard of care afforded by the hospitals in the area for the particular type of illness involved. The measure of skill, care and diligence each hospital employee owes to the patient is that established by other institutions throughout the area as adequate and acceptable medical care the patient’s known condition may require. It therefore follows that the plaintiff must first establish the criterion of what constitutes acceptable medical care in hospitals in the Greater New Orleans area so that the alleged act or acts of malpractice may be measured against this norm to determin'e if there is merit in the plaintiff’s malpractice claim. There is no evidence in the record to reflect what hospital care is considered standard and acceptable in the area of nursing care from which plaintiff’s complaints emanate.

This omission in itself is sufficient reason for reversal; however, we think it is appropriate to include an analysis of the evidence presented to the jury when the result reached is different from that of the trial court. A jury verdict should be maintained unless the record reflects its conclusions of fact are not supported by the evidence and/or its application of law is clearly erroneous.

The facts as Mr. Garrison states them are as follows: In September 1969, plaintiff was admitted to Hotel Dieu for traction to alleviate complaints of back pain. During this stay he took a shower without assistance when hospital personnel inquired if he had had a bath. After a short stay, he was discharged but it soon became apparent the traction treatment gave only temporary relief. Within the next few months his condition deteriorated; therefore he was re-hospitalized for surgery. On December 18, 1969, Dr. Donald Richardson, a neurosurgeon, removed bilaterally the disc at the L-4 interspace of the lumbar spine. Pre-operative and postoperative narcotic drugs were administered to alleviate the pain, leaving plaintiff in what his physician described as a “confused and disoriented state.” At 6 p. m. on December 19, 1969, while still under the influence of drugs, Mr. Garrison, without the knowledge of any hospital personnel and with the assistance of one of the police officers (assigned to Mr. Garrison because he was the Orleans Parish District Attorney), got out of bed and took a shower. Although Officer Lynn Loisel attempted to cover the dressing with a towel as Mr. Garrison showered, it nonetheless became wet. After plaintiff returned to his bed, Loisel advised one of the hospital staff he had taken the shower. The nurse in charge summoned Dr. Richardson, who in turn came to the hospital, checked the patient and told him to take no more showers until he was given permission. Mr. Garrison explained he was driven to this ill-advised action (and this is his theory of what constitutes the malpractice) “ * * * so soon after the operation * * * [because] I had repeatedly and repeatedly been asked by different nurses and hospital employees as they came through, had I had my bath yet.”

In his condition he claims the oft-repeated inquiries about the bath were construed by him to be harassment to take a shower. He explained the term “bath” did not mean bed bath to him but “shower.” He gave two reasons for construing both to mean he was required to shower: (1) His long experience in the Army (5 years) trained him to think bath meant shower; and (2) during his previous stay at Hotel Dieu, it was his custom in response to the inquiry if he had had his bath to take a shower (in this instance of hospitalization no surgery was involved).

On December 24, 1969, plaintiff left without notifying the hospital or complying with its procedures for the release of patients, because, as he put it, it was Christmas Eve. Admittedly, at that time plaintiff had been discharged by Dr. Richardson. .

During the next seven months, despite extensive physical therapy treatments at the New Orleans Saints football training camp, the back pain persisted. In mid-July 1970, plaintiff collapsed at his home with severe muscle spasm and obvious excruciating pain. He was taken to Hotel Dieu where a back infection at the L-4 inter-space — the site of the December surgery— was diagnosed by X ray. Treatment with antibiotics required three months’ hospitalization and he apparently suffered back pain for almost a year after his discharge in October 1970. Mr. Garrison claims the July 1970 flareup was diagnosed as a staphylococcal infection (staph infection) that was introduced into his system by bacteria forming on the surgical dressing, dampened in the shower of December 19.

After all the evidence was adduced, the summarized assertions of plaintiff remained unproven allegations. He failed to prove: (1) he was harassed into taking a shower by hospital personnel before it was safe to do so; (2) that in his mind the term “bath” always meant shower; and (3) that the back infection of July 1970 was in any way caused by or related to the shower incident.

The first charge that the nurses and aides had “repeatedly and repeatedly” bothered him about a bath could only have been substantiated by plaintiff and the three police officers who attended him during his hospital stay. The officers, then employed by the City of New Orleans and in no way affiliated with or paid by the hospital, were the only persons he would allow to remain in his room. They divided the 24-hour day into three shifts, Officer Louis Bordelon had the day shift; Officer Lynn Loisel, the afternoon and evening shift; and Sergeant Louis Ivon, the night shift. As Mr. Garrison described it, the inquiries about the bath were incessant. Officer Bordelon could recall hospital personnel asking frequently about a bath on December 19, but when closely questioned as to the exact number of times, he indulged in this hyperbole:

“EXAMINATION BY MR. GARRISON:
Q As near as you can recall, when did these instances, what you described where I was asked if I had taken my bath occur on the 19th, the second day?
A Yeah, the 19th, I take it the day after the operation, on several occasions —and I say several — I’d say close to a dozen times, in my mind; different people would walk in and ask you if you had taken your bath yet. And sometimes I was in the room with you, sometimes I wasn’t.” (Emphasis added.)

Loisel’s testimony reflects the same tendency to exaggerate because he intimates the recurrence of the bath question reached “bugging” point and yet he finally conceded that on the afternoon-evening shifts of December 18 and 19 he only heard one inquiry about a bath each day. The third witness, Sergeant Ivon, did testify he heard Mrs. Margaret Cretini, a private duty nurse hired by the Garrison family for the 11 p. m. to 7 a. m. shift of the night of December 18-19, offer to give Mr. Garrison a bed bath at approximately 6 a. m. before she went off duty.

This evidence is corroborated by a note entered by Mrs. Cretini on the nurses chart of the Garrison hospital record and it is this entry that cast doubt on Mr. Garrison’s assertion that to him “bath” always menat “shower.” The nurse’s entry reflects Mr. Garrison declined her offer of a bed bath and said his wife would bathe him later in the day when she came to the hospital.

The third unproven allegation we comment on is the contention the shower incident caused a staph infection. Dr. Richardson, who did diagnose the July 1970 condition as staphylococcal infection, was asked to relate the infection to the shower incident, in this colloquy:

“Q What was your conclusion at the time you diagnosed the infection in July of 1970? What was your conclusion as to the probable cause of that infection ?
A I really can’t say what caused it with any specificity.
Q Do you connect it or do you disconnect it with your previous concern about the shower ?
* * * * * * THE WITNESS:
Well, I can’t disconnect it, but I can’t specifically say that that is what caused it.”

While Mr. Garrison’s medical expert could not say the shower was connected with the infection, defendants’ medical experts stated unequivocally the infection was blood borne and had nothing to do with the premature shower after surgery. They were Dr. J. Ralph Meier, a pathologist; Dr. Walter Brent, an orthopedic surgeon who assisted Dr. Richardson in performing the operation on plaintiff; and Dr. John Seabury, a specialist in infection and pulmonary diseases on the staff of Louisiana State University Medical School. Their opinions may be summarized as follows : The infection did not enter the body from the outer skin at the operative site because there was no evidence of redness, swelling or drainage from the wound. The infection rather was blood borne, i. e. it started somewhere else in the body and moved to the spinal column.

We comment at this point that even had Mr. Garrison proven every assertion he made about being harassed into showering prematurely and contracting an infection, we do not think that repeated inquiries by nurses or aides to patients as to whether they have had a bath would constitute malpractice. However, if we assume arguendo it would, we would nonetheless reject this claim because plaintiff failed to prove he was repeatedly harassed and that the shower had any connection whatsoever with the infection.

In the alternative, plaintiff invokes the doctrine of res ipsa loquitur. This is an evidentiary principle the applicability of which may only be determined at the conclusion of the trial. In this case it is not applicable because the facts do not suggest the negligence of the hospital is the more plausible explanation of the infection. The quoted language from Boudreaux v. American Insurance Company clearly excludes this case from the res ipsa loquitur doctrine:

“In this respect, the principle of ‘res ipsa loquitur’ (the thing speaks for itself) sometimes comes into play as a rule of circumstantial evidence, whereby negligence is inferred on the part of a defendant because the facts indicate this to be the more probable cause of injury in the absence of other as-plausible explanation by witnesses found credible. Pilie v. National Food Stores of Louisiana, 245 La. 276, 158 So.2d 162 (1963); Larkin v. State Farm Mutual Auto. Ins. Co., 233 La. 544, 97 So.2d 389 (1957); Malone, Res Ipsa Loquitur and Proof by Inference, 4 La.L.Rev. 70 (1941); Comment, 25 La.L.Rev. 748 (1965). Thus, by this principle where properly applied, the circumstantial evidence indicates that the injury was caused by some negligence on the part of the defendant, without necessarily proving just what negligent act caused the injury.
“We noted in Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389, 391 (1957): ‘ * * * the maxim [res ipsa loquitur] means only that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference . . . The application of the rule does not, therefore, dispense with the necessity that the plaintiff prove negligence, but is simply a step in the process of such proof, permitting the plaintiff, in a proper case, to place in the scales, along with proof of the accident and enough of the attending circumstances to invoke the rule, an inference of negligence . . . When all the evidence is in, the question is still whether the preponderance is with the plaintiff.’
“Nevertheless, when all the evidence is in and the question is whether, by reason of the res ipsa loquitur rule, the plaintiff has preponderantly proved that the defendant is responsible in tort for his injury, we have in our most recent decision on the issue noted that the real test of applying res ipsa loquitur to be as follows: ‘Do the facts of the controversy suggest negligence of the defendant, rather than some other factors, as the most plausible explanation of the accident?’ Pilie v. National Food Store, 245 La. 276, 158 So.2d 162, 165 (1963). (Italics ours.) On the other hand, application of the principle is defeated if ‘an inference that the accident was due to a cause other than defendant’s negligence could be drawn as reasonably as one that it was due to his negligence.’ 158 So.2d 165 (Italics ours.) See also Comment, 25 La.L.Rev. 748, 764 (1965). This is simply another formulation of the burden of a plaintiff in a tort action to prove that, more probably than not, his injury was caused by the negligence of the defendant.” (Emphasis theirs.)

In this case it is more reasonable to conclude the infection plaintiff suffered was blood borne and not introduced externally at the operation site due to some act of negligence of the hospital staff. Prior to this hospitalization, plaintiff suffered respiratory infections. Medical evidence establishes it is possible bacteria from this area traveled through the blood stream to the operative site and caused the infection.

In view of our findings it is unnecessary to pass upon the issue of plaintiff’s contributory negligence in taking a shower on the day following major surgery without the knowledge and approval of his treating physician. However, it is interesting to note that Dr. Richardson testified that in all of his experience gained from 1,500 to 2,500 major surgical operations he never had a patient get up the following day and take a shower without his express approval —in fact he has never heard of a patient taking a shower on the second day after a bilateral disc operation.

For the reasons assigned the judgment appealed from is reversed. Plaintiff is to pay all costs of this litigation.

Reversed.

BOUTALL, concurs with written reasons.

BOUTALL, Judge

(concurring).

I concur. I find nothing in the record which establishes a standard of care such that the activities of the hospital personnel, even if determined to be as testified to by plaintiff-appellee on a credibility call, constituted a breach of the duty owed the patient.

      . Lauro v. Travelers Insurance Company, 261 So.2d 261 (La.App. 4th Cir. 1972); Killgore v. Argonant-Southwest Insurance Co., 216 So.2d 108 (La.App. 2d Oir. 1968).

      . George v. Travelers Insurance Company, 215 F.Supp. 340 (E.D.La.1963).

      . Mayes v. MeKeithen, 213 So.2d 340 (La. App. 1st Cir. 1968); Duray v. Continental Insurance Company, 311 So.2d 491 (La.App. 4th Cir. 1975).

      .However, under cross-examination Dr. Richardson stated he did not say and did not think that the drugs given to plaintiff on the day following surgery rendered him unable to understand what was going on.

      . According to Dr. Richardson, at the time the sutures had been removed and the wound had healed well with no physical signs of infection or drainage. Plaintiff was discharged and sent home without a bandage, and no trouble was anticipated beyond normal disabilities. Even upon readmission seven months later, the skin incision at the operative site was well healed with no external evidence of infection or drainage.

      . Unquestionably plaintiff did suffer agonizing and disabling pain for approximately two years.

      . This condition of the operative site was corroborated by plaintiff’s own treating physician and neurosurgeon, Dr. Donald Richardson (see n. 5).

      . Day v. National U. S. Radiator Corporation, 241 La. 288, 128 So.2d 660 (1961).

      . King v. King, 253 La. 270, 217 So.2d 395 (1968).

      . 262 La. 721, 264 So.2d 621, 636 (1972).


author: SAMUEL, Judge.

text:
    Edward V. WHITE v. FREEPORT CHEMICAL COMPANY and Liberty Mutual Insurance Company.
    No. 6929.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1975.
    Rehearing Denied Oct. 9, 1975.
    Writ Refused Nov. 21, 1975.
    Joseph A. Gladney, Baton Rouge, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John C. Combe, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against his employer, Freeport Chemical Company, and the latter’s workmen’s compensation insurer, Liberty Mutual Insurance Company, to recover workmen’s compensation benefits for total and permanent disability resulting from a ruptured intervertebral disc. He also seeks medical expenses as well as penalties and attorney’s fees for alleged arbitrary refusal to pay benefits. Defendants answered, denying plaintiff had received an injury compensable under the Louisiana Workmen’s Compensation Statute. Subsequently, they filed an exception of prescription, which the trial judge referred to the merits.

After a trial on the merits, the defendants’ exception of prescription was preter-mitted and judgment was rendered in favor of defendants dismissing the suit. Plaintiff has appealed from that judgment.

The record leaves little doubt plaintiff sustained a ruptured intervertebral disc and was disabled thereby. The primary issue is whether that injury was sustained during the course and scope of his employment with Freeport. Since we are in accord with the trial court’s holding that plaintiff did not meet his burden of proving this element of his case, we also pre-termit the issue of prescription.

Plaintiff claims he injured his back by lifting a sack of cement while performing services for his employer. Admitting the injury was not incurred in the presence of anyone, he invokes the jurisprudential rule in workmen’s compensation cases, that the plaintiff’s testimony alone is sufficient to establish the occurrence of the accident if his testimony is supported by the surrounding circumstances and if there is no evidence to discredit his testimony on the point.

Plaintiff testified: While working on the defendant’s premises on June 3, 1969, he felt a sharp pain in his lower back on lifting a 100 pound sack of cement. He reported the accident that day to Kermit Craemer, his supervisor at the time, who instructed him to notify his regular supervisor, A. W. Grille. Unable to find Grille, he made no further complaint that day. He again reported the accident to Craemer on the following day, June 4, 1969, and indicated the pain was worse. Later that day he was unable to work and, in the absence of Grille, reported the accident to K. M. Shannon and Earnel Terry, both of whom were supervisory employees. These men made arrangements for him to be driven by Donald Forsythe, a fellow employee, to the office of Dr. Carl J. Poche, who had agreed to treat defendant’s employees while the company’s regular doctor was on vacation. He also reported the accident to Gainer Gremillion and K. M. Shannon when they visited his home on June 19 or 20. Plaintiff further states that while Donald Forsythe was driving him to Dr. Poche’s office he told Forsythe he had been injured on the job, and likewise related to Dr. Poche on his first visit on June 4 that he had sustained an injury on the job.

The testimony of these witnesses failed to substantiate plaintiff’s testimony except to confirm he was complaining of pain in his back on June 4. Craemer, the foreman on June 4, testified plaintiff had worked for him the previous Friday, May 30, with no complaint of pain; that on Monday, June 2, he complained of pain in his leg before beginning work; and upon being asked if he had hurt his leg on the job, plaintiff replied he did not know. Crae-mer denied plaintiff ever complained of back pain to him on either June 3 or June 4.

Earnel Terry, general maintenance foreman for defendant, testified that on June 4 he was met by plaintiff who was complaining of pain in his back and requested permission to go home. However, Terry specifically denied plaintiff told him he had injured his back while moving a sack of cement.

Donald Forsythe, the defendant’s employee who drove plaintiff to Dr. Poche’s office on June 4, was questioned with regard to any statements made by plaintiff on the way to the doctor’s office. For-sythe unequivocally stated plaintiff did not relate his pain to any injury on the job but instead stated he simply woke up during the night with his leg hurting him.

Both Gremillion and Grille testified that at no time did plaintiff make any report to them of having injured his back while lifting a sack of cement during the course of his employment with the defendant.

Plaintiff’s testimony at the trial is also contradicted by the medical history given by him to Dr. Poche on June 4, 1969. Dr. Poche testified he questioned him on that day and at that time plaintiff “stated he had no definite history of an injury and lifting with pain . . .”

Plaintiff relies heavily on a document identified as a first report of an injury. The report was prepared by Elizabeth Alexander, a company nurse. It indicated plaintiff was injured while lifting a sack of cement. However, Mrs. Alexander testified she was on vacation on, and for sometime subsequent to, June 3, 1969 and therefore she had no personal knowledge of the incident about which she prepared the report. She was told to make the report, for company and insurance purposes, by Dr. Poche, who told her plaintiff had made such a claim on a subsequent visit to him after plaintiff had received an examination at Charity Hospital in New Orleans indicating the existence of a ruptured disc. As the trial judge points out in his Reasons for Judgment, the initial medical history recorded by Dr. Poche at an unsuspi-cious time is the reliable evidence and that part of the first report by the company nurse which indicates plaintiff was injured by lifting a sack of cement only reflects information given by plaintiff to Dr. Poche subsequent to plaintiff’s first visit to that physician.

The evidence also shows the plaintiff operated a bar prior to June 3, 1969, and performed all duties incident thereto, including stocking shelves, packing boxes, and lifting cases. In addition, he performed such manual tasks as automobile repair for family and friends and yard maintenance for his brother. There is no evidence to show a specific accident or injury in connection with any of these activities. However, plaintiff admitted he had back and leg pains while working for defendant before June 3, 1969 but related these complaints to a prostate condition.

In his Reasons for Judgment the trial judge stated he was unable to find plaintiff had met the burden of proving he sustained an injury during the course of his employment with the defendant. The primary basis for that conclusion was the medical history given by plaintiff to Dr. Poche at his initial examination on June 4, 1969, combined with the complete absence of testimony corroborating plaintiff’s subsequent version of the incident by which he ascribed his injury to the lifting of a sack of cement.

While the courts construe procedural rules liberally in favor of workmen’s compensation claimants, they do not relax the burden of proof, placed equally on such claimants and on claimants in other civil matters, that they must prove their cases by a preponderance of the evidence. Consequently, the testimony as a whole must show more probably than not that an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fall if the evidence shows only the possibility of an accident or leaves it to speculation or conjecture.

In view of the inconsistencies in plaintiff’s own testimony, the lack of corroboration of his account of the alleged accident, and the conflicting testimony given by at least eight other persons, even considering the matter in the light most favorable to the plaintiff, the evidence in its entirety leaves the probability of an injury on the job either equally balanced with, or less than, the probability that the injury in suit did not occur on the job. We agree with the trial judge’s conclusion that the plaintiff failed to carry his burden of proving his case by a preponderance of the evidence.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

      . Montgomery v. Delta Conerete Products Co., Inc., La.App., 290 So.2d 769; Clement v. Fidelity & Casualty Co. of New York, La. App., 220 So.2d 675; Hayes v. Louisiana Irrigation & Mill Company, La.App., 168 So.2d 396; Cray v. Southern Farm Burean Casualty Ins. Co., La.App., 134 So.2d 588.

      . Prim v. City of Shreveport, 297 So.2d 421 (S.Ct.1974); Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151; Hebert v. Your Food Processing & Warehouse, Inc., 248 La. 197, 177 So.2d 286; Hogan v. T. J. Moss Tie Co., 210 La. 362, 27 So.2d 131.


author: GULOTTA, Judge.

text:
    Charles Noel PHILLIPS v. Gretchen Thompson PHILLIPS, his wife.
    No. 6923.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1975.
    Rehearings Denied Oct. 9, 1975.

      McDonough & McDonough, Birch P. McDonough, New Orleans, for plaintiff-appellee.
    Reed, Reed & D’Antonio, Floyd J. Reed, Metairie, for defendant-appellant.
    Before LEMMON, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

This is an appeal by the wife, in which she seeks a further increase in the amount of support payments awarded for two minor children, ages 9 and 10.

Mrs. Gretchen Phillips filed a rule seeking an increase from a judgment ordering support in the sum of $350.00 per month. The trial judge increased the amount of the monthly award from $350.00 to $400.00.

On appeal, plaintiff wife complains of the inadequacy of the amount of the increase and suggests a proper amount of support in the sum of $800.00 per month. The father, defendant in rule, seeks, by separate appeal, to have the amount of the increase set aside and to have the judgment reinstated in the amount of $350.00 per month.

The parties were divorced- on April 7, 1971, and at that time Mrs. Phillips was granted the custody and control of the two minor children, who were then ages 5 and 6. Support for the minor children was set in the divorce judgment in the sum of $100.00 per month to be increased, commencing July 15, 1971, to the sum of $250.-00 per month. Thereafter, in June, 1973, the amount of the support for the children was increased to the sum of $350.00 per month. The judgment from which both parties appeal, setting the amount of the award in the sum of $400.00 per month, was rendered on October 11, 1974.

It is the wife’s position that at the time the trial judge granted the inadequate increase, Phillips was earning approximately $20,000.00 per year plus an annual bonus from his job as president of Wetzel Printing Company and that his second wife, with whom he is residing, was earning $9,600.00 per year. Mover complains that the sum of $348.00 which she receives from her earnings, together with the $400.-00 per month support payments, is insufficient to allow the children to maintain a standard of living comparable to that which was maintained prior to the separation of the parents and maintained presently by their father.

Defendant in rule Phillips complains that his net increase in income from June, 1973 (when support was set in the sum of $350.-00 per month) to October, 1974 (when support was increased to $400.00 per month) totals the sum of $369.06. According to the father, his monthly debts including support for the children exceeds his monthly income by the sum of $132.02. Phillips claims, therefore, the trial judge erred when he increased the amount of the support for the minor children. We are not in agreement with the contentions advanced by defendant in rule.

It is well settled that the earnings of a second wife are to be considered in determining the amount of the award for children born of a prior marriage. Finley v. Finley, 305 So.2d 654 (La.App., 1st Cir. 1974); Vaughan v. Vaughan, 286 So.2d 416 (La.App., 4th Cir. 1973); Fazzio v. Krieger, 226 La. 511, 76 So.2d 713 (1954). Also well entrenched in our jurisprudence is the rule that the amount of child support is within the sound discretion of the trial judge. However, our responsibility in reviewing fact and law is to revise the judgment whenever we find there has been an abuse of discretion and that the award is either excessive or inadequate. Ballard v. National Indemnity Company of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Micheli v. Toye Brothers Yellow Cab Company, 174 So.2d 168 (La.App., 4th Cir. 1965); Lewis v. Fidelity & Casualty Company of New York, 230 So.2d 636 (La.App., 2d Cir. 1970). In this connection, we are mindful of the precept that a remarried parent has the continuing primary responsibility for the support of his minor children. Laiche v. Laiche, 237 La. 298, 111 So.2d 120 (1959). Moreover, a child victim of divorced parents is entitled to be maintained in a standard of living commensurate with that of the father when the financial circumstances of the father permit. Lamothe v. Lamothe, 262 So.2d 87 (La.App., 4th Cir. 1972).

Applying the above jurisprudence to the instant case, we conclude that the income of Phillips and the second wife warrants a greater increase than was awarded by the trial judge. According to Phillips’ testimony, his adjusted gross income in 1973, including the annual earnings of the second wife, totalled the sum of $24,600.00. Phillips testified that his gross salary in 1974 was $384.62 per week. On this basis, we compute his 1974 earnings in the sum of approximately $20,000.00. When this amount is added to the $9,600.00 earnings of the second wife, the combined gross earned income is the sum of $29,600.-00. Of significance also is the fact that Phillips is residing in separate property of the second wife (though encumbered by a mortgage); that Ijhe second marriage is childless; and that the second community owns non-income producing mortgaged property in Waveland, Mississippi.

We might point out that the exaggerated itemized list of monthly expenses claimed by Phillips, which exceeds his monthly income by $200.00, and those needs claimed by Mrs. Phillips in the sum of $2,085.00 per month are of no assistance to this court in arriving at an appropriate child support award.

Contrasted with the earnings of the father are those of Mrs. Gretchen Phillips, mover in rule. She testified that her gross earnings are $348.00 per month. This amount, together with the $400.00 support award, affords an income for the support of herself and the two minor children in the sum of $748.00. Computed on an annual basis, available gross income for support of the mother and two children is $8,976.00. Under the circumstances, we deem a substantial increase is warranted. An appropriate monthly amount for support of the two minor children is the sum of $300.00 each or a total of $600.00 per month.

Accordingly, the judgment of October 24, 1974, increasing the amount of the support for the two minor children from $350.00 per month to $400.00 per month is amended and increased.

It is now ordered that defendant in rule, Charles N. Phillips, pay to his former wife, Mrs. Gretchen Phillips, plaintiff in rule, the sum of $600.00 per month for the support of the two minor children, effective September 1, 1975. Costs are to be paid by defendant in rule.

Amended and affirmed.


author: SAMUEL, Judge. PER CURIAM.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. NEW ORLEANS TERMINAL COMPANY.
    No. 6591.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 16, 1975.
    Rehearing Denied Oct. 9, 1975.

      Johnie E. Branch, Jr., D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis and Alva J. Jones, Baton Rouge, for plaintiff-appellee.
    Monroe & Lemann, Malcolm L. Monroe, Benj. R. Slater, Jr., Walter J. Suthon, III, and Herman C. Hoffmann, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, GULOTTA and SCHOTT, JJ.
   SAMUEL, Judge.

Acting under the provisions of LSA-R. S. 48:441-460, the Department of Highways instituted this suit expropriating for highway purposes certain property belonging to the defendant New Orleans Terminal Company. At the time suit was filed the Department deposited $59,518.50 in the Registry of Court as its estimate of just compensation for the property. Nothing was deposited for severance damages. Appellant answered, contesting the value of the land taken and averring its true value, including severance damages, was $235,000.

After trial there was judgment placing the value of the expropriated land at $92,138.90 and rejecting the claim for severance damages. Defendant has appealed.

The property expropriated consists of five parcels of land. With the exception of Parcel 8-15 (zoned RD-2, two family residential), which runs along St. Bernard Avenue, all of the property taken lies within the defendant’s railroad right of way which traverses City Park in an east-west direction between Bayou St. John and Marconi Drive in the City of New Orleans and is zoned P-Park (dedicated park and recreational). Prior to the taking, the right of way measured 100 feet in width, the major portion of which contained defendant’s two main line tracks and the embankment on which they are constructed. A strip measuring approximately 30 feet in width was taken from the northern side of the tracks. Parcel 4 — 3, measuring 2,900 feet in length and containing 70,784 square feet, and Parcel 8-15, a triangular plot containing 682 square feet, were acquired in full ownership. In addition, a permanent drainage servitude was acquired over Parcel 4-3-D-l (1,360 square feet) and temporary (3 year) construction servitudes were acquired over Parcels 4-3-C-l (900 square feet) and 4-3-C-2 (1,313 square feet). The taking of Parcel 4-3 reduced the right of way from 100 feet to 70 feet and would prevent the railroad from constructing a third, or siding, track (also known as a spur track) in that area. The communications system, consisting of wires strung between poles, remained intact following the taking, but three of the poles encroached over the expropriated right of way. There are no buildings or other improvements situated wholly or partially on the property. The expropriation was made subject to the reservation in perpetuity in favor of defendant of all oil, gas or other mineral rights or royalties therefrom in accordance with LSA-R.S. 9:5860. The purpose of the taking was in connection with the construction of State Highway Route 1-610, known as the New Orleans By-Pass, a part of the Interstate System of Highways.

The appellant contends, in accordance with the testimony of its experts: (1) the compensation for the property taken should be increased; and (2) severance damages should be allowed. Each litigant produced two expert appraisers; Omer F. Kuebel and John M. Parker, III testified on behalf of the defendant, and Charles L. O’Brien and Lennis X. Lamulle testified on behalf of the plaintiff.

Mr. Kuebel testified: The highest and best use of the property was for industrial purposes. He felt this type of appraisal was unusually difficult because a railroad ordinarily does not sell its right of way. He considered nine industrial sales, giving most weight to four sales covering spots on both the north and south sides of the railroad right of way east of Bayou St. John because of their closeness to the expropriated property. Relying on the economic principle of substitution (i. e., the value of the property tends to be set by the cost of acquiring an equally desirable substitute property), he was of the opinion that if used for industrial purposes the land, other than Parcel 8-15, would range in value between $1.70 and $1.80 per square foot. Thus, he arrived at a fair market value of $1.75 per square foot for that property. He appraised Parcel 8-15 at $2.45 per square foot. He appraised the permanent servitude over Parcel 4-3-D-l at 90% of full ownership and the temporary servi-tudes over Parcels 4-3-C-l and 4-3-C-2 at 8% per year for three years as a rental value. His total estimate of the value of all the land taken was $128,607.24.

Mr. Kuebel was of the further opinion that severance damages were due for the cost of relocating communications lines and also for the loss of utility of the remainder of the tract by the taking of 30 feet of the original 100 foot strip because the amount of land expropriated would prevent the future construction of a third, or spur track. Thus, the value of the remainder would drop $0.10 per square foot. He concluded the total valuation of the expropriated property, including severance damages, was $191,414.05.

The testimony of Mr. Parker, defendant’s other expert, was generally in accord with that of Mr. Kuebel, although there was a variance in the square foot evaluation, in the appraisal of the permanent servitude (Mr. Kuebel gave that servitude 90% of the value of the parcel and Mr. Parker gave full value) and in the ap-praisements of the temporary servitudes which Mr. Parker set at 10%, as opposed to Mr. Kuebel’s 8%, per year for three years. While Mr. Parker concurred that the highest and best use was for industrial purposes, based on six industrial compara-bles, he valued all parcels at $1.90 per square foot. He concluded the value of the property (exclusive of severance damages) was $139,629.

Mr. Parker also was of the opinion that the remaining portion of the property after the taking suffered an overall loss of 10% and consequently he allowed $72,079 for this portion, and $23,000 severance damages for the cost of removing signal lines in the communications system, making a total overall valuation of $234,708.

Mr. O’Brien, a Department appraiser, testified: The highest and best use of the property was its continued use as a railroad right of way considered as if vacant and valued as part of the adjoining acreage. He considered the problem in the light of how much the railroad would have to pay for the land if they were going through City Park under their expropriation authority. Since the surrounding property was residential, its replacement was valued as residential property. He estimated the value of the property at $35,000 per acre. Translating this to $0.-803 per square foot and subtracting the allowances for servitudes (he used the full value of Parcel 4-3-D-l, over which there is the permanent servitude, and 10% per year, or a total of 30%, of the value of Parcels 4-3-C-l and 4-3-C-2 for the temporary servitudes over those parcels), his total valuation of the property taken was $59,056.

Mr. O’Brien found no severance damages due because the land had no utility other than its legal nonconforming use as a railroad right of way. The taking in no place touched any of the ballast, crossties, signal poles or anything else that would contribute to the utility of the property as a railroad right of way. He likewise found no damage to the present communications system and concluded that if the poles were straightened to perpendicular there would he no encroachment. He allowed no severance damages for lack of ability to construct a third track since the railroad had not utilized its right to build the third track during the seventy years it had been in existence and the present zoning ordinance (P-Park), he felt, would prohibit such construction.

Regarding claimed severance damages, Mr. O’Brien concluded the only thing taken from defendant was the 30 foot strip of flat land which was not being used and which was not contributing in any way to the use or maintenance of the railroad right of way or the main line, and defendant had been paid for the land taken. After the taking they still had two main lines, one running in an easterly and one running in a westerly direction, a signal communications system and whatever other appurtenances were necessary such as battery boxes for the operation of the railroad.

Mr. Lamulle, who also testified for plaintiff, stated: Insofar as the trackage area was concerned, its present use as a railroad was its highest and best use with an alternate use for recreational purposes. This appraisal was based on the fact that the right of way which traverses City Park is a legal nonconforming use and if the property was not used for railroad purposes it would come under P-Park classification and it could not be used for anything else. Thus, inasmuch as the property was the equivalent of vacant or unimproved land, he used comparable residential sales as a guide to estimate the market value, arriving at a valuation of $0.778 per square foot. He placed a value of $1.50 per square foot on Parcel 8-15, gave the full value for the permanent servitude over Parcel 4-3-D-l, and gave a total of three years 10% annual return (or 30%) of their total values for the temporary servitudes over Parcels 4-3-C-l and 4 — 3-C-2. He concluded the total award due for the property taken was $58,397.

Mr. Lamulle found no severance damages due because the part taken did not affect the operation of the main track of the railroad and defendant had all of the uses of the property subject to the zoning classification which they had prior to the taking.

In his reasons for judgment the trial judge evaluated the property at $1.25 per square foot for all of the parcels with the exception of Parcel 8-15 which he evaluated at $1.90 per square foot. As we have said, he rejected the claim for severance damages. The total compensation he allowed was the sum of $92,138.90, as follows :

Parcel 4-3—
70,784 sq. ft. at $1.25 per sq. ft. or $88,480.00
Parcel 4-3-D-l—
1,360 sq. ft. at $1.25 per sq. ft. or 1,700.00
Parcel 4-3-C-l—
900 sq. ft. at $1.25 per sq. ft. at 8% for three years rental or 270.00
Parcel 4-3-C-2—
1,313 sq. ft. at $1.25 per sq. ft. at 8% for three years rental or 393.90
Parcel 8-15—
682 sq. ft. at $1.90 per sq. ft. or 1,295.00
TOTAL COMPENSATION $92,138.90.

We first address ourselves to the value of the property expropriated. The trier of fact in an expropriation proceeding is not required to accept in toto the testimony of any one witness or any one group of witnesses; he may accept and give greater weight to those portions of the testimony of each witness which in his opinion are more reasonable and logical, such being a necessary correlative of a trial judge’s right to evaluate the testimony. In essence, the determination as to the value of expropriated property is a factual one and should not be disturbed on appeal unless the reviewing court is convinced such findings are clearly erroneous.

One of defendant’s two expert witnesses appraised Parcel 8-15 at $2.45 per square foot, while its other expert witness was of the opinion that parcel had a value of $1.90 per square foot. The plaintiff’s expert witnesses, respectively, arrived at a valuation of $0,803 and $0,778 per square foot for all of the property, including Parcel 8-15. The trial judge evaluated that parcel at 1.90 per square foot and awarded compensation accordingly. Thus, the court’s evaluation was higher than those of the two plaintiff witnesses, lower than the appraisal made by one of the defendant’s witnesses and exactly the same amount as the appraisal of the other defendant witness. Under these circumstances we cannot say the compensation awarded for Parcel 8-15 was inadequate.

Insofar as the balance of the property taken is concerned, the basic difference between the amounts claimed by the defendant and the amounts awarded in the judgment appealed from is the difference in values of property which is industrial, residential, or other. Industrial has a greater value than does residential. Plaintiff’s witnesses used residential comparables, while defendant’s witnesses used industrial comparables.

There are, understandably, no available comparable sales for railroad rights of way or dedicated park or recreational lands and the trial judge was of the opinion the railroad right of way (i. e., the lands taken other than Parcel 8-15), which runs through the park, could not be classified as either industrial or residential. He therefore refused to accept any of the appraisals given by the expert witnesses. While the four witnesses respectively appraised the right of way at $1.75, $1.90, $0,778 and $0,803 per square foot, the court evaluated that property at $1.25 per square foot. We agree with his reasoning and we cannot say that $1.25 per square foot is inadequate.

This basic difference in the valuation placed on the right of way applies not only to the parcel taken in full ownership, but also to those parcels over which servi-tudes were taken. Regarding the two temporary (three year) servitudes, the trial judge accepted the formula of 8% for three years (or 24%) rental or return as suggested by Mr. Kuebel, defendant’s appraiser. However, he applied this formula to the full amount determined by him to be the value of the parcels, rather than the 90% of full value as used by Mr. Kuebel. The other three appraisers used 10% of full value. We cannot hold that the small amount of difference, 2% or less, between the court’s conclusion and the opinions of the expert witnesses constitutes error.

We now consider the remaining question, severance damages. As stated above, plaintiff’s expert witnesses were of the opinion the defendant was not entitled to any severance damages. Contrarily, defendant’s witnesses felt the remainder of the property had been damaged, basing their opinions on the following factors: (1) damages to the communications system; and (2) as a result of taking 30 feet of a strip 100 feet in width, the railroad no longer can add a third, or spur, track.

Testimony relative to severance damages was given by Mr. Gary Skeen, a civil engineer, Mr. Sam Sherard, defendant senior signal engineer, Mr. Arthur Flotte, the Department’s project engineer, and Mr. Wallace Mack, the Department’s utility engineer. The present communications system consists of poles, cross arms, and wires extending along the track. Although the evidence is confusing and unclear on this particular point, it appears that, due to the fact that they leaned, the cross arms and wires of four of the poles extend over into the highway right of way as taken. The encroachment could be eliminated at a cost of $60,000 if a coded track system were installed, thus requiring no poles. The same thing could be accomplished by underground cables at a cost of $23,000. There is also testimony to the effect that it would cost $300 to relocate each of the poles which encroach, and further testimony that it would cost only $30 per pole to straighten the encroaching poles upright and thus eliminate any encroachment. Mr. Mack testified that after the encroachment was discovered he contacted the federal highway administration and it was agreed that the defendant would not be required to relocate its poles.

Insofar as the communications system is concerned, the trial court held the minimal encroachment could have been cured had the defendant seen fit to straighten its poles to an upright position and, of greater importance, as there was and would be no objection to the overhang encroachment, the system remained intact as it was prior to the taking. Accordingly, he held no severance damages were due. We cannot agree with this relatively small portion of the judgment.

The defendant is entitled to have its poles, and the cross arms and wires thereon, located within the boundaries of its own property despite the agreement by some officials in the state and federal highway administrations that the defendant would not be required to relocate the poles in question. Such an agreement certainly does not constitute a servitude. Thus, as we are satisfied from the record before us that two of the offending poles must be relocated in order to eliminate encroachment by them, we will increase the award by the sum of $600, the proven cost of relocation. We are also satisfied from the record that the encroachment of the other two poles can be eliminated by straightening those poles and we will further amend the judgment by adding thereto the sum of an additional $60, the proven cost of straightening.

Although the reduction of land width is a factor to be considered in determining severance damages, we also find no such damages were due as a result of the 30 foot reduction of the 100 foot right of way. While there was considerable argument in this court and in the trial court regarding whether or not a third track could be constructed on the original right of way in view of the P-Park zoning, the testimony reflects that at the time of the taking and for sometime thereafter there was no intention on the part of the railroad to construct a third track. In addition, there is no showing of any defendant need, now or in the future, for a spur track on the property taken; in fact, the evidence offered by the defendant is to the contrary. Accordingly, we agree with the trial judge’s conclusion that the effect of the P-Park zoning need not be considered because, regardless of the conclusion on that question, no severance damages are due as a result of the reduction, in the width of the right of way. In his Reasons for Judgment, he said:

“Notwithstanding the argument as to whether, because of its right of way passing through City Park, the railroad could or could not construct a third track in the land taken from it (that is to say, pretermitting the argument of zoning regulations allowing or disallowing such construction), the Court is of the opinion that the railroad has suffered no proven severance damages. The evidence is, if ever and whenever this railroad’s operations in the New Orleans area become such that it may have need for a third track, they would like to avail themselves of the right to construct it here in the land being taken. As of trial date, that need does not exist, there is no third track and no definite plans for same. The claimed severance damages as they relate to third track construction are too speculative and too remote to constitute a basis upon which to award damages. The vice president of the defendant railroad company under questioning from the Court, admitted that three years prior to the taking, and for as much as three years after the taking, his company had no plans for an additional or third track in the City Park area, nor had his company appropriated any funds for such construction, nor was it anticipated in the forseeable future that a third track would be installed. As of the date of the trial, the defendant railroad company had only speculative, conjectural and very remote notions, let alone plans for additional tracks, in this area. . . . The defendant railroad has not carried the burden of proving its severance damages . . . The two main lines of the railroad company are still in operation, as they have been for over 70 years.”

For the reasons assigned, the judgment appealed from is amended so as to increase the award by the sum of $660. As thus amended, and in all other respects, the judgment appealed from is affirmed. Each litigant shall pay its own costs of this appeal, if any.

Amended and affirmed.

PER CURIAM.

In its application for rehearing defendant contends that we were in error in refusing to allow severance damages to the remainder of defendant’s property by virtue of the 30 foot reduction of its 100 foot right of way. We held that defendant’s claim for such damages based upon the property’s lost potential for the construction of a third track was too speculative and too remote to support an award for damages. Defendant relies on State, Dept. of Hwys. v. Denham Springs-Dev. Co., Inc., La., 307 So.2d 304; S.Ct. (1975).

In that Case the Court allowed severance damages based upon the loss of potential for future development of a shopping center as a result of a decrease in parking area. The Court said:

“After careful review of the record, we are convinced that defendant has adequately proven severance damages by a preponderance of the evidence. Defendant, by this taking, was deprived of the full potential of future development of this shopping center due to the loss of parking area. Defendant is entitled to recover for this damage to the remainder. Accordingly, we conclude that the trial judge was correct in the award of severance damages, and the court of appeal erred in reducing this amount.”

The proof offered by the defendant in the instant case does not support an award for such damages for loss of potential as it did in the cited case. H. C. Mau-ney, Vice President of defendant, testified that before the taking there was room for the construction of a third track for passing or siding and that after the taking this potential was lost, but when asked whether there were other portions of the railroad right of way in Orleans Parish which would be suitable for such a passing or siding track of the size that could have been constructed on the property taken he stated that there were two other areas where a suitable passing track could be constructed if defendant acquired some additional property in these areas. Defendant was paid adequate compensation for the property taken and it can easily use these funds to acquire such additional property. By the testimony of its own vice president, after the acquisition of such additional property it will be in the same position it was in with respect to the potential for the construction of such a passing or siding track as it was before the taking except that the location would not be in the same identical place.

In the case cited the potential for expansion of the remainder of the property was a characteristic peculiar to the property involved, whereas in the instant case the loss of potential for the construction of a third track in the particular area was of no consequence since the same potential exists in at least two other places not far away from the property taken.

Accordingly, the application for rehearing is denied.

      . State, Department of Highways v. Ourso, La.App., 294 So.2d 235; State Department of Highways v. Salassi, La.App., 244 So.2d 871.

      . State, Department of Highways v. Ourso, supra, footnote 1; State, Dept, of Highways v. Christ Baptist Church, La.App., 197 So. 2d 83.

      . See State, Department of Highways v. Ourso, supra, footnote 1.


author: MILLS, Judge. '

text:
    Joseph HOLLAND, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. X-291.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1975.
    George R. Dekle, Sr., Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   MILLS, Judge. '

Holland seeks reversal of a judgment of conviction and sentence based on a jury verdict finding him guilty of robbery. The controlling issue raised by this appeal is whether a count of an information charging robbery must describe the property taken with particularity.

The count with which we are involved alleges that Holland did unlawfully, by force and putting in fear, take from the victim certain personal property owned by the victim, citing Section 813.011, Florida Statutes. After the verdict, Holland moved for arrest of judgment on the ground that the property taken was not described in the count; therefore, the count was so defective that it would not support a judgment of conviction.

The crime of robbery does not depend upon, the kind or value of the property taken. The gist of the crime is the felonious taking by the accused of property of another by force and putting in fear. Stephens v. State, 92 Fla. 43, 109 So. 303 (1926). Therefore, the kind of property taken is not an essential element of the crime of robbery, and it is unnecessary to allege its description with particularity, although it is a better practice.

In addition, Rule 3.140 (0), Florida Rules of Criminal Procedure, provides that judgment on a count of an information shall not be arrested for any cause whatsoever, unless the trial court determines that the count is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction to substantial danger of a new prosecution for the same offense. Holland’s motion did not allege, and the trial court did not find that the count before us was so vague, indistinct and indefinite as to mislead or embarrass the accused in the preparation of his defense or expose him after conviction to substantial danger of a new prosecution for the same offense. Also, the record before us shows that prior to trial the State disclosed each specific item of personal property to Holland.

The trial court properly denied the motion for arrest of judgment.

The other points raised by Holland are without merit.

Affirmed.

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


author: HALL, VINCENT T., Associate Judge.

text:
    Roger BENJAMIN, Appellant, v. Morton BRAVERMAN and Deborah Braverman, his wife, Appellees.
    No. 75-408.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
    Wheeler & Evans, Miami, for appellant.
    David S. Wieder, Miami, for appellees.
    Morton Braverman, in pro per.
    Before HENDRY and NATHAN, JJ., and HALL, VINCENT T., Associate Judge.
   HALL, VINCENT T., Associate Judge.

This appeal seeks review of the granting of a summary judgment for the appellant, plaintiff in the trial court, on the issue of liability alone.

The cause of action was commenced in the trial court by the appellees’ [Morton Braverman and Deborah Braverman] filing a complaint alleging willful, wanton, and malicious assault upon Morton Brav-erman by the appellant-defendant, Roger Benjamin. Benjamin specifically denied the allegations of the complaint in his answer. In his answer to the request for admissions, he further stated that he had been accosted in the hallway by Braverman who accused him of lying before the judge, specifically restrained him, blocking his path with his briefcase; such action occurring prior to the alleged assault by Benjamin.

The court finds that by the specific denial of the allegations of the complaint by Benjamin and his answers to the request for admissions, a genuine issue of material fact was created, thereby requiring reversal. Therefore, for the reasons above stated, the order granting plaintiff’s motion for summary judgment on liability is hereby vacated and set aside, and the cause is remanded to the trial court with directions to grant the appellant, Roger Benjamin, a trial.

Reversed and remanded, with directions.


author: PER CURIAM.

text:
    Timmey Noel DONATHEN a/k/a Timmy Noel Donathan, Appellant, v. STATE of Florida, Appellee.
    No. 74-1486.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1975.
    James A. Gardner, Public Defender, Sarasota, and Harold H. Moore, Asst. Public Defender, and Richard J. Cole, II, Legal Intern, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The convictions are affirmed. However, the single sentence imposed for both charges must be vacated as an improper general sentence. Darden v. State, Fla. App.2d, 1975, 306 So.2d 581. The case is hereby remanded for resentencing.

McNULTY, C. J., and GRIMES and SCHEB, JJ., concur.


text:
    The ESTATE of Pearline THOMPSON by and through its Administratrix, Jodie Mae Thompson, Appellant, v. FLORIDA POWER & LIGHT COMPANY and Trustees of the Presbytery of the South Synod of Florida of the United Presbyterian Church in the United States of America, Inc., et al., Appellees.
    No. 75-104.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
    Hawkesworth & Schmick and Richard L. Wassenberg, Miami, for appellant.
    Steel, Hector & Davis and Norman A. Coll, Lane, French, Lane, Carrier & Nichols, Miami, for appellees.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. See: Newby v. West Palm Beach Water Co., Fla.1950, 47 So.2d 527; Lomas v. West Palm Beach Water Co., Fla. 1952, 57 So.2d 881; Banks v. Mason, Fla.App.1961, 132 So.2d 219; Switzer v. Dye, Fla.App. 1965, 177 So.2d 539; Hendershot v. Kapok Tree Inn, Inc., Fla.App. 1967, 203 So.2d 628; Concrete Construction, Inc., of Lake Worth v. Petterson, Fla.1968, 216 So.2d 221; Nunnally v. Miami Herald Publishing Company, Fla.App. 1972, 266 So.2d 76.


text:
    S. Morgan SLAUGHTER, Clerk of County Court, Appellant, v. John M. MAREES et al., etc., Appellees.
    No. X-403.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1975.
    Harry L. Shorstein and William Lee Allen, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and 'Thomas A. Harris, Asst. Atty. Gen., for appel-lees.
   PER CURIAM.

This is an appeal from a declaratory judgment entered pursuant to Chapter 86, F.S.1973, determining that the appellee county court judges have inherent authority to require or permit the installment payment of fines assessed in criminal cases and to require the clerk to accept payments made in that fashion. Since entry of the final judgment, § 775.083(2), F.S.1973 (1974 Supp.), became effective to permit payment of a fine in installments when the convicted defendant cannot otherwise pay. The appeal is therefore moot. See Pearson v. Conley, 158 So.2d 797 (Fla.App. 3rd, 1963) and Northeast Polk County Hospital Dist. v. Snively, 162 So.2d 657 (Fla.1964).

Because of the necessity to dismiss this appeal, we do not reach the substantial question of whether, in the absence of a direct order by one of the appellee county court judges to the appellant clerk to receive fines paid in installments, there was a justiciable controversy which might appropriately have been resolved by a declaratory judgment pursuant to Chapter 86, F. S. Neither do we regard it appropriate to retain jurisdiction of this appeal to consider and decide the more general question of whether judges have inherent power to order clerks to perform ministerial tasks which are neither prohibited nor compelled, by law, and to enforce compliance by contempt proceedings. The judgment below is not precedent for such a decision, and we will not anticipate such a controversy. The appeal is

Dismissed.

McCORD, Acting C. J., and MILLS and SMITH, JJ., concur.


author: PEARSON, Judge.

text:
    Emily KELLERMAN et al., Appellants, v. Harry SIEGEL and Billie Siegel et al., Appellees.
    No. 75-162.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
    Horton, Perse & Ginsberg, Gilbert & Sil-verstein and Maynard J. Heilman, Miami, for appellants.
    Louis Vernell, Miami, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PEARSON, Judge.

This is an appeal from a summary final judgment for the defendants in a mortgage foreclosure. The trial judge found “that the plaintiffs willfully and knowingly charged and otherwise exacted interest on the mortgages circumscribed by plaintiff’s amended complaint at a rate exceeding a lawful interest rate per annum . . .” We reverse upon a holding that there appears a genuine issue of material fact.

As stated in American National Growers Corporation v. Harris, Fla.App. 1960, 120 So.2d 212, the issue of usury is ordinarily one of fact to be determined at a trial. This is especially true where, as in the instant case and the cited case, the pleadings, affidavits, admissions and depositions show that the defendant signed notes for sums in excess of those lent him, but where there is a factual dispute as to the purpose for giving the additional notes and as to the extent of the payments made. Accordingly, the summary judgment is reversed.

Reversed.


text:
    STATE of Florida, Appellant, v. Julie DANIEL, Appellee.
    No. 75-784.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
    Philip S. Shailer, State’s Atty., and Jon H. Gutmacher, Asst. State’s Atty., Fort Lauderdale, for appellant.
    Warner S. Olds, Public Defender, and William W. Herring, Asst. Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

Appellant, State of Florida, takes this interlocutory appeal from an order entered by the trial court granting a motion to suppress evidence filed by appellee, Julie Daniel. We reverse.

On Februrary 6, 1975, Deputy Jorge Fonte of the Broward County Sheriff’s Office entered the Triangle Bar in Fort Lauderdale, Florida. The Triangle Bar was well known to law enforcement authorities in the Broward County area as a “shooting gallery”; a place where drug users inject illicit drugs into the bodies. Deputy Fonte’s purpose in the bar that evening was to investigate whether any illegal drug activities were taking place on the premises. While conducting his investigation, Deputy Fonte checked the men’s restroom. Nothing of an illegal nature was found therein. Deputy Fonte then proceeded to the women’s restroom. When a knock on the women’s restroom door produced no response, Deputy Fonte pushed open the door, entered the restroom, and observed appellee, Julie Daniel, in possession of narcotic paraphernalia. The appellee was arrested and the paraphernalia was seized.

Thereafter, appellee was charged by information with possession of narcotic paraphernalia. Prior to trial, appellee moved the trial court to suppress the narcotic paraphernalia seized as evidence by Deputy Fonte. After hearing argument on the motion, the court entered an order granting appellee’s motion to suppress. It is from said order that the state files this interlocutory appeal.

The question presented for our determination on this appeal is whether the narcotic paraphernalia seized by Deputy Fonte from the appellee was secured by virtue of an unreasonable search' and seizure.

Section 12 of the Declaration of Rights of the 1968 Florida Constitution, F.S.A., preserves the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. A search is generally accepted to be an inspection or examination of places closed from public or general view, and requires some measure of force or intrusion. State v. Ashby, 245 So.2d 225 (Fla.1971). However, observation by a police officer of an object in plain view when the officer has a legal right to be in the position to have that view is not a search and said object may be properly seized by the officer and introduced into evidence in a criminal proceeding. State v. Ashby, supra; State v. Parnell, 221 So.2d 129 (Fla.1969); Sheff v. State, 301 So.2d 13 (Fla.App.1974); Bailey v. State, 295 So.2d 133 (Fla.App.1974); State v. Coyle, 181 So.2d 671 (Fla.App.1966).

Turning to the instant case, the evidence is uncontroverted that the narcotic paraphernalia seized by Deputy Fonte from the appellee was not hidden but was in plain view of anyone using the women’s restroom in the Triangle Bar at the time in question. The question remains whether Deputy Fonte had a legal right to be in said women’s restroom to obtain the view of the narcotic paraphernalia. Public restrooms provided as a means for accommodation of the public for purposes intended are often selected by persons of depraved minds as favorable locales for perpetration of illegal acts. Without proper police vigilance criminals could turn more and more to such facilities as retreats for the commission of a crime. The restrooms in the Triangle Bar were open to the public. Deputy Fonte had reasonable grounds to believe that the restrooms were being used for illegal purposes. By using a public place for her illegal activities, the ap-pellee risked observation. She surely had no right to demand that such observation be made not by a male police officer, as was Deputy Fonte, but only by a female. Under the facts and circumstances of the instant case we conclude that Deputy Fonte had the legal right to be within the women’s restroom of the Triangle Bar. Therefore, the narcotic paraphernalia seized by Deputy Fonte from the appellee was not secured by reason of an unreasonable search and seizure and should not have been suppressed by the trial court.

Accordingly, the order of the trial court granting appellee’s motion to suppress is reversed, and the cause is remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.

CROSS, MAGER and DOWNEY, JJ., concur.


author: DOWNEY, Judge.

text:
    Alexander P. MAYBARDUK et al., Appellants, v. Alberto S. BUSTAMANTE et al., Appellees.
    No. 74-219.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.

      Bruce S. Bullock and Robert M. Sharp of Bullock, Sharp & Childs, P. A., Jacksonville, for appellants-Alexander P. May-barduk and The Employers’ Fire Ins. Co.
    Russell Troutman of Troutman & Parish, P. A., Winter Park, for appellants-Margie L. Ricks and Charles E. Ricks.
    Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellees-Bustamante, Mercy Hospital and INA.
   DOWNEY, Judge.

Appellant Doctor Alexander P. Maybar-duk performed an operation upon appellant Margie L. Ricks in appellee Mercy Hospital. Dr. Maybarduk was assisted in the operation by appellee Doctor Alberto S. Bustamante, an employee of appellee Mercy Hospital, who had been furnished by the hospital to assist in the operation. A second operation was necessitated to remove a hemostat or Kocher clamp which had inadvertently been left in Mrs. Rick’s abdomen during the first operation.

Mrs. Ricks and her husband sued Dr. Maybarduk, Dr. Bustamante, and Mercy Hospital (and their respective insurance carriers) for negligence in the performance of the first operation. Dr. Maybar-duk cross-claimed against Dr. Bustamante and Mercy Hospital alleging that, as to the negligence charged in the Ricks complaint, Dr. Bustamante was the active tortfeasor and Dr, Maybarduk simply a passive tort-feasor. The trial court dismissed said cross-claim and this court reversed and reinstated the cross-claim in Maybarduk v. Bustamante, Fla.App.1974, 294 So.2d 374.

Pending that appeal the Ricks case was tried upon the plaintiffs’ complaint and defendants’ answers. The trial court directed a verdict in favor of the defendants Dr. Bustamante and Mercy Hospital and their insurance carriers on plaintiffs’ complaint and directed a verdict for plaintiffs and against Dr. Maybarduk and his insurance carrier on the issue of liability. The jury returned a verdict for the plaintiffs and against Dr. Maybarduk and his insurance carrier for a total of $50,000.

All appellants contend that the trial court erred in directing the verdict for ap-pellees Bustamante and Mercy Hospital and in entering judgment thereon. Neither appellants Ricks nor appellant May-barduk have sought review of the $50,000 judgment for the appellants Ricks and against appellant Maybarduk based upon the jury verdict.

Our study of the record reveals sufficient evidence together with reasonable inferences therefrom which warranted submitting to the jury the issue of the negligence vel non of Dr. Bustamante and Mercy Hospital.

Accordingly, the judgment for appellees Bustamante, Mercy Hospital, and their respective carriers is reversed and the cause is remanded for a new trial on the issue vel non of the negligence of Bustamante and Mercy Hospital as raised by the Ricks complaint and the Maybarduk cross-claim.

Reversed and remanded.

OWEN, J., and SEAY, RUSSELL E„ Jr., Associate Judge, concur.


author: McNULTY, Chief Judge.

text:
    Dorothy C. WILKERSON et al., Appellants, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 74-733.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 1975.
    Rehearing Denied Oct. 28, 1975.
    H. Rex Owen, of Owen & McCrory, St. Petersburg, for appellants.
    Winifred Sheridan, Smallwood & Geoffrey B. Dobson, Tallahassee, for appellee.
   McNULTY, Chief Judge.

We consider this day the question of who has the burden of proof to establish value of land in a “quick taking” condemnation proceeding begun by the condemning authority. The trial judge charged the jury herein that such burden rests on the property owners. Our Supreme Court recently held to the contrary, however, in City of Fort Lauderdale v. Casino Realty, Inc. which, in fairness to the trial judge here, we point out was decided subsequent to the trial herein. We must hold, therefore, that it was error for the trial judge to have imposed the burden of proof as to the land value on the owners.

We discuss briefly, now, the reason why we think such error was prejudicial and thus reversible. The state’s evidence tended to establish that the value of appellants’ parcel was $171,500. Appellants’ evidence tended to establish that the land was worth $268,000. The jury’s verdict was for $175,000 and judgment was entered in this sum. At first blush, therefore, it may appear that we could not say as a matter of law that the jury verdict might have been higher had the court properly charged the jury. This would be so because, ordinarily, a verdict for a plaintiff cannot exceed that established by his evidence. Here, of course, the verdict did exceed it in the sum of $3,500; and it seems logical that the only basis for such additional amount would have to be found in the evidence presented by the landowners. Certainly, it would seem, appellants could fare no better on a retrial because the state isn’t going to establish their value for them.

But condemnation proceedings are sui generis and cannot be, in all respects, classed with the ordinary law suit. The only reasonable interpretation of the rationale in Casino Realty, supra, therefore, and we believe it indeed to be a sound rationale, is that, within the concept of eminent domain proceedings, a landowner has an absolute right to place whatever value he chooses on his own property; and upon his presentation of competent evidence in a condemnation suit tending to establish such value, a presumption arises that the property is in fact worth that much. Accordingly, the burden is upon the condemning authority to rebut that presumption and to establish by a preponderance of the evidence that the property is worth something less. Its failure to do so would authorize a verdict to the full extent of the value established by the landowner. The state wasn’t charged with that burden here and it should have been.

In view whereof, the judgment appealed from should be, and the same is hereby, reversed; and the cause is remanded for a new trial.

HOBSON and BOARDMAN, JJ., concur.

      . (Fla.1975), 313 So.2d 649.


author: PER CURIAM. McCORD, Judge.

text:
    Vivian H. HANNA, Appellant, v. STATE of Florida, Appellee.
    No. W-438.
    District Court of Appeal of Florida, First District.
    July 21, 1975.
    Rehearing Denied Sept. 19, 1975.

      Louis Ossinsky, Jr., Ossinsky & Krol, Daytona Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Affirmed.

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

ON PETITION FOR REHEARING

McCORD, Judge.

Upon consideration of appellant’s petition for rehearing, we consider that comment should be made on three points. Appellant was charged with second degree murder of her common-law husband and was convicted of manslaughter. The trial court charged the jury on second degree murder, attempt to commit second degree murder, assault with intent to commit second degree murder, third degree murder, manslaughter, aggravated assault, assault and battery, and bare assault. Appellant contends that the trial court erred in not giving her requested jury instructions on attempts to commit all of the above offenses below second degree murder. Rule 3.-510, F.R.Cr.P., provides as follows:

“Upon an indictment or information upon which the defendant is to be tried for any offense the jurors may convict the defendant of an attempt to commit such offense if such attempt is an offense, or may convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard.” (emphasis supplied)

In obedience to the foregoing rule, the trial judge charged on attempt to commit the crime charged (second degree murder). The evidence did not contain a factual basis for a charge on an attempt to commit a lesser included offense. The charge was that appellant killed the decedent, and the evidence clearly shows that decedent was killed by her. Appellant’s defense was that the killing was an accident. There was no basis in the evidence for giving additional attempt instructions as the evidence is susceptible of no other conclusion than that decedent was killed by appellant. Compare Gilford v. State, Fla., 313 So.2d 729.

In addition appellant contends that the trial court erred in permitting the state in its cross-examination of witness Jankowski, appellant’s son-in-law, to bring forth testimony from him that appellant had pulled a gun on him in a family quarrel about a year previously. Appellant objected on the ground that the question was not in cross of anything brought out on direct. Although this evidence was relevant on the question of whether or not this shooting was the result of accident, mistake, or inadvertence, Williams v. State, Fla., 110 So.2d 654; Norris v. State, Fla.App. (1st), 158 So.2d 803, it was not proper cross of the direct testimony of this witness. Although error, we find it to have been harmless error. See § 924.33, Florida Statutes. We find the evidence was sufficient to support the verdict.

Petition for rehearing denied.

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