author: ALMON, Justice.

text:
    In re William PITCHFORD, alias v. STATE. Ex parte William Pitchford.
    SC 2108.
    Supreme Court of Alabama.
    Nov. 24, 1976.
    J. Wilson Dinsmore, Birmingham, for petitioner.
    None for the State.
   ALMON, Justice.

Petition of William Pitchford for Certio-rari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Hill (and William Pitchford, alias) v. State, Ala.Cr.App., 339 So.2d 601.

WRIT DENIED.

HEFLIN, C. J., and BLOODWORTH, JONES and EMBRY, JJ., concur.


source: Caselaw Access Project

author: DeCARLO, Judge.

license: Public Domain

text:
    Clarence WASHINGTON v. STATE.
    3 Div. 446.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Nov. 2, 1976.

      Elno A. Smith, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

The grand jury of Montgomery County charged that Clarence Washington: “ . unlawfully and with malice aforethought, killed Jessie Price by shooting him with a pistol. . . ” Trial was held and a jury found him guilty of murder in the second degree and fixed his punishment at ten years in the penitentiary.

Richard A. Roper was employed by the Alabama Department of Toxicology and Criminal Investigation as a toxicologist and the director of the Montgomery laboratory. After September 12, 1975, he conducted a post mortem examination of the body of the victim, Jessie Price. His examination revealed two circular penetrating wounds oh the body; one located in the upper chest and the other in the right hip. Based on that examination, his conclusion was that death resulted from hemorrhage and shock associated with a gunshot wound to the chest.

On cross-examination, Dr. Roper stated that the victim was approximately six feet, two inches tall and weighed about two-hundred pounds. In Roper’s opinion he was not obese and had a normal muscular development. Roper stated that while he was at the funeral home, Herman Singleton, the mortician, gave him a sample of blood from the deceased. He said the analysis of the blood indicated that ethyl alcohol was not present.

Charles Wesley Smith, a criminalist with the Alabama Department of Toxicology in Montgomery, testified that he made a firearms comparison test with the alleged murder weapon which he received from the Montgomery detective’s office. He compared the bullet retrieved during the test with that found in the victim’s body and it was his opinion that they were fired from the same gun.

During cross-examination, Smith stated that on October 8, 1975, he received the pistol used in the test from Detective Bran-non and that the weapon had the officer’s initials scratched on it.

Mattie Evans lived at 155 Phillips Street in Montgomery, Alabama, and the appellant, Clarence Washington, was her nephew. She testified that she had reared Jessie Price and that on the night in question, Price had asked her to buy some juice “for the little girl” who lived across the street. He also asked her to buy some cigarettes and beer. At that time he gave her what she thought was a twenty-dollar bill. She placed the bill in the bottom of her pocketbook and went to the store. Upon returning, Mrs. Evans learned that Price had gone “up the street.” She then asked Price’s cousin, Roy Edwards, to take her to church and on her return, “heard” Price across the street. Mrs. Evans called to him and was told to leave the cigarettes with her son, Albert, and that Price would get his change and beer later. Subsequently Price came to her house and while he was sitting on the front porch, she gave him the change. About that time, Price asked her to give Houston Hardy and Jesse Lige a beer. When she reached the kitchen, Price called her back to the porch and said: “my change ain’t’right.” She started to explain about the cost of the items and Price said: “no, I don’t mean that ... I mean I gave you a fifty-dollar bill instead of a twenty.” At that point a discussion concerning the money began and Price telephoned his sister, to whom he had also given money.

Mrs. Evans testified that at the close of Price’s telephone conversation with his sister, he began to “cuss and stomp.” About that time, the appellant, Clarence Washington, came into the house and he and her son, Albert, began to argue with Price. They went onto the front porch and when Albert was pushed back into the house, the appellant turned and walked off the porch. When the appellant reached the corner of the porch he came back to the front of the house and shot Price. Mrs. Evans stated that she did not see the victim with a weapon at the time and that she had just helped him to his feet when he was shot. After the second shot she stepped in front of Price and the appellant stopped shooting. According to Mrs. Evans, she had never known Price to carry a gun or a knife.

Roy Edwards, the victim’s first cousin, testified that on the night in question, he saw the victim drinking beer on the front porch of the house across the street from where the Evans’ house was located. He recalled that when Mattie Evans came home from church, she came over and asked Price if he wanted his money. Price told her that he would come over and get it and she went home. After Edwards saw Price go to the Evans’ house, he heard some loud talking coming from the Evans’ front porch. He was about fifty feet away at the time when he saw the appellant grab Price. They began pushing one another and Price went down. Edwards testified that when he went over, the appellant had Price down beating him. According to Edwards, he broke up the fight and was talking to Price when the appellant stepped up, pulled a gun from his back pocket, cocked it and shot twice. He said that Price was not moving toward the defendant and did not have any kind of weapon.

Jesse Lige lived at 148 Phillips Street, which was across from Mattie Evans’ house. On the night of September 12,1975, he was sitting on his front porch with Houston Hardy when Jessie Price came to his house. Lige recalled that Price had asked Hardy and him to go over to Mattie Evans’ house. He said that after they walked in the back door, Price asked Mrs. Evans for his change and she said: “I don’t owe you no change.” Price claimed he had given Mattie Evans a fifty-dollar bill but she insisted it was a twenty-dollar bill. Lige said an argument developed and Albert Evans awoke and started arguing with Price. A fight ensued and subsequently they moved to the front porch. According to Lige, Clarence Washington, the appellant, came over and he and Albert started “double teaming” Price on the front porch. When Albert was pulled away, the appellant and Price continued to fight but Roy Edwards came over and pulled the appellant off of Price. At that point, the appellant went around the side of the house and then came back to the front steps and started shooting.

During cross-examination, Lige stated that he was sober that night and that he did not see Price or appellant drinking. He admitted being invited over to the Evans’ house to have a beer but said that Price did not drink any while he was there. Lige said he did not hear Price or the appellant “cuss” but did hear Albert use some profanity. On further questioning, he stated that when the appellant pointed the gun at Price, Price “put his hands up.”

On the evening of Friday, September 12th, Houston Hardy was visiting in the home of Jesse Lige and sometime after 5:00 P.M. they walked across the street to Mattie Evans’ house. About the same time she came home from church and when Hardy and Lige went in the back door of the Evans’ house, he heard Price and Mrs. Evans arguing about a fifty-dollar bill. After Hardy and Lige went into the front room, they saw Albert, Mattie Evans’ son, shaking money in Price’s face and arguing that he did not get Price’s money. Hardy testified that after Price had made a telephone call to his mother, he asked Price to go outside. When they went outside the door, Washington pushed Price and then Albert got involved. According to Hardy, he pulled Albert away from Price and the appellant pushed Price over a porch chair. At that point, Price grabbed Washington and they came up from the porch floor together. When Price went down the second time, Edwards who was across the street came over and he and Mattie Evans broke up the fight. After Washington got off the side of the porch he walked around to the front steps of the house. Hardy testified that the appellant “ . . . came out of his pocket with a pistol and he shot once.” Price did not move after the first shot but after the second shot, fell backwards toward the door of the house. According to Hardy, the appellant put the gun in his pocket and said he was going inside the house to telephone the police.

During cross-examination, Hardy said he did not see anybody drinking alcoholic beverages that night but said he heard Price “cussing” when he accused Mattie Evans of taking his money.

Jack Stewart was an officer of the Montgomery Police Department and on September 12, 1975, he went to the scene of the shooting. On his arrival he observed the deceased lying on the front porch and after-wards removed a .25 caliber automatic pistol from the appellant's pocket. Stewart testified that he gave the pistol to Corporal Spiers, who unloaded the weapon and gave it back to him. According to Stewart he kept the weapon in his possession until the detectives arrived; he then turned it over to Officer Brannon.

Corporal R. L. Spiers of the Montgomery Police Department testified he went to the scene of the shooting. While there Spiers unloaded the alleged murder weapon and returned it to Officer Stewart.

C. H. Brannon was a detective of the Montgomery Police Department and on the night in question he went to the scene of the shooting. He identified a .25 caliber automatic pistol which he had inscribed with his initials and the date, “9/12/75.” He testified that Officer Stewart had taken the pistol from the appellant and had turned it over to him. According to Bran-non he placed the pistol in his pocket and on return to the police headquarters, he turned it in to the supply office. Brannon said he subsequently took it from the supply office to the State Department of Toxicology.

The State completed its case at the end of Officer Brannon’s testimony and the appellant was the only defense witness.

Washington testified that he went to his aunt Mattie Evans’ house at 4 or 5:00 P.M. on September 12, 1975 and that Price and Albert Evans were on the porch drinking. They had been drinking beer and gin and in a short time Albert went to bed. Washington and Price stayed on the porch talking until his aunt returned. It was after he and Price helped bring in the groceries that she came out and give him Price’s change. When appellant gave Price the change, he said: “ ‘Clarence, that ain’t right’ . T gave Mattie Lilla a fifty-dollar bill’ . ” At that point Washington went in the house and called his aunt. When she came to the front porch they began to argue. She claimed that Price did not give her a fifty-dollar bill. According to appellant, Price and his aunt continued arguing and subsequently Price said, “Let’s go wake Albert up. Albert knows what I gave her.” At that time appellant left and went next door where he remained until he heard what he thought was “something like a fight.” He returned to the Evans’ house and saw Albert Evans and Price fighting. He attempted to stop the fight and he and Price started tussling. Appellant testified that it was about that time that Roy Edwards came over and held him, while Price hit him. Washington maintained that during the struggle he fell off the porch and when he returned to the porch steps, he heard Edwards say: “Don’t worry man, we’ll get him.” Appellant testified that Price and Edwards were coming towards him and that Price had his hand in his pocket. Washington said: “. I didn’t know what he had, so I shot. I shot once, and that’s the only shot that I remembered, and I call myself just shooting to scare him, to scare him back. And then after I had seen I had hit him, I went and called the police.”

On cross-examination, appellant said that he had never had any trouble with Price before and never knew him to carry a pistol. Washington said that he had never seen Price in a fight and did not know whether or not he carried a knife.

I

The appellant contends that the State failed to trace the chain of custody of the alleged murder weapon with sufficient completeness so as to render it improbable that it had either been exchanged or altered. He argues that the State did not show that the pistol was under “lock and key” and did not rule out the possibility that the gun barrel could have been changed. Counsel insists that without such proof, a complete chain of evidence was not shown for the introduction of the weapon and that its admission was improper.

Before a physical object connected with a commission of a crime may properly be admitted in evidence there must be a showing that such object is not only the same one, but is in substantially the same condition as when the crime was committed. In making this determination, the trial judge should consider the nature of the article and the circumstances surrounding its preservation and custody. If, upon the consideration of such factors, the trial judge is satisfied that identification and continuity of possession were sufficiently established to afford ample assurance of the authenticity of the article, then he may permit its introduction. Powell v. State, 47 Ala.App. 582, 258 So.2d 923; Oury v. State, 53 Ala.App. 240, 298 So.2d 661.

In our review of the record in the instant case, and the evidence recited above, we found:

1) Officer Stewart took the murder weapon from the appellant and then handed it to Corporal Spiers to unload.

2) Spiers removed the clip and then returned the clip and the weapon to Stewart.

3) Stewart kept the weapon in his possession until the detectives arrived and then turned it over to Officer Brannon.

4) After taking the weapon from Stewart, Brannon inscribed his initials and the date on it and then placed it in his pocket. On his arrival at police headquarters, the weapon was turned in to the supply office and subsequently removed from the supply office by him and taken to the office of the State Department of Toxicology.

5) Officer Spiers identified the weapon and testified that it was in the same condition as it was when he returned it to Officer Stewart.

6) Detective Brannon also identified the weapon as the one he received on the night of the offense and pointed out the inscriptions he had made on it. Further, he testified it was in the same condition as it was at the time that Officer Stewart gave it to him.

Aside from the above, there seems to be no factual controversy as to the fact that the appellant did the shooting with the pistol introduced into evidence.

In our judgment, the evidence as to custody and possession was sufficient to afford ample assurance that the weapon received in the evidence was the one taken from the appellant.

II

Finally, the appellant argues that his evidence made out a case of self defense and in his motion for a new trial, maintained that the verdict was contrary to the great preponderance of the evidence. Under the evidence presented, it was a question for the jury to determine whether the defendant was in imminent peril, used all reasonable avenues of escape, and shot to protect himself. Cooley v. State, 233 Ala. 407, 171 So. 725; Ray v. State, 253 Ala. 329, 45 So.2d 4.

In determining this question, the jury was entitled to look at all the testimony offered by the State and the appellant. Even though the evidence of the appellant with regard to self defense may have been without dispute, which was not the case here, his credibility was for the jury. They may, in their discretion, have accepted it as true or rejected it. Cooley v. State, supra; Kemp v. State, 278 Ala. 637, 179 So.2d 762.

The trial judge set out the applicable rules of law pertaining to self defense in his oral charge to the jury, and the issue was resolved against the defendant. The evidence was sufficient to support the verdict and there was no error in overruling the motion for a new trial.

We examined the record and found no error.

AFFIRMED.

TYSON, HARRIS and BOOKOUT, JJ., concur.


author: FAULKNER, Justice.

text:
    In re Clarence WASHINGTON v. STATE of Alabama. Ex parte Clarence Washington.
    SC 2153.
    Supreme Court of Alabama.
    Dec. 3, 1976.
    Elno A. Smith, Jr., and Frank L. Thiem-onge, III, Montgomery, for petitioner.
    None for the State.
   FAULKNER, Justice.

Petition of Clarence Washington for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Washington v. State, 339 So.2d 611.

WRIT DENIED.

HEFLIN, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: TYSON, Judge.

text:
    Paul Craig ARNOLD, alias v. STATE.
    4 Div. 404.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 1976.
    Carlton & Carlton, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for the embezzlement of $2,684.62, the personal property of R. D. Easters, by virtue of his employment by Easters. The jury found the appellant guilty as charged and the trial court then entered judgment, setting sentence at three years imprisonment.

R. D. (Doug) Easters testified that he was the owner and operator of Elba Paint and Body Shop during 1973 and 1974 in Elba, Alabama. He stated that he entered into a contract of employment with Paul Craig Arnold, the appellant, which contract commenced on January 2, 1973, and was to run for one year. Under the terms of this contract, the appellant was to be paid a salary of $850.00 per month, and if there were profits after a three-month interval, that there would at that time under the contract, the parties were to divide the profits after paying Mr. Easters’ $500.00 as monthly rental on the property. The contract also provided that the appellant was to receive one-half the net profits from the sale of any parts over and above the terms as stated. Mr. Easters testified that during 1973 the company showed gross receipts of $69,231.00; a cost of operations of $21,-964.00; depreciation of $3,713.00; repairs of $35.00; salaries and wages, excluding anything payable to himself, of $39,251.00; insurance, $718.00; utilities, $968.00; advertising, $720.00; service truck expenses, $981.00; interest $5,919.00; and miscellaneous expenses of $2,693.00; supplies, $361.00; laundry, $225.00; showing a net loss for the year of $9,371.00. Mr. Easters also testified that at no time during the year 1973 did the company make sufficient monies to enable him to be paid his monthly rental as set out in the contract. Mr. Easters testified that commencing with January, 1974, the parties did not enter into a new agreement, but that he simply continued to pay Mr. Arnold his monthly salary of $850.00, and that all payrolls were under Mr. Arnold’s supervision, and that Mr. Arnold prepared the checks for the company and made most of the deposits for the company. Mr. Easters then identified a number of records of the company which indicated from the period February, 1974, until the first part of July, 1974, that a number of items were shown wherein on work orders the appellant would indicate that the proceeds had been received on a company work order, and the statement would be marked, “paid,” but then an examination of the company’s bank deposits for the corresponding period failed to reveal the deposit for the item marked “paid” on the work sheets. Also during this same period there were several instances in which the checks were issued on the company, payable to the paint and body shop, such as payments to the power company, in one instance to a veterinarian, in other instances to grocery stores, which indicated that these were checks for personal items of expense of the appellant and were not for the benefit of the company. Mr. Easters further testified that he was a candidate for public office during part of this time, and that during the spring of 1974 had turned over all the company’s books and records to Mr. Arnold for handling. He stated that in June he began to examine the company records and after noticing the discrepancies with reference to work orders and which failed to show deposits and checks issued for payment of bills for the benefit of Mr. Arnold which appeared to be personal expenses for Mr. Arnold, he notified his attorney, Mr. Kenneth Fuller, and his accountant and had them examine these same records. Mr. Arnold was called in and had a conversation in the office with Mr. Fuller, the attorney, and Mr. Easters, wherein these matters were called to his attention. At this time Mr. Fuller indicated to Mr. Arnold that there were some $4500 or $4600 discrepancy, and that Mr. Easters was owed this much by Mr. Arnold, the appellant.

Mr. Kenneth T. Fuller, an attorney of Enterprise, Alabama, testified that he had been asked by Mr. Doug Easters to examine his company’s records and that he did so. He further stated that at Mr. Easters’ request he made arrangements to meet with the appellant, Mr. Arnold, and Mr. Easters early one Monday morning in July, 1974, at the company office.

He stated that Mr. Arnold came into the office and that he talked with him alone and pointed out to him that through examination of the work orders for which were marked in his handwriting, “paid,” and which showed no bank deposit, and the several checks which had been written by him on company funds for his personal expenses, that it appeared that some $4400.00 to $4500.00 was owed to Mr. Easters by Mr. Arnold. He stated that Mr. Arnold told him he wanted to talk with Mr. Easters about it and wanted to see if it was something that could be worked out. Mr. Fuller stated that he advised Mr. Arnold that his services were terminated and that this was the end of his employment for the Elba Paint and Body Shop. He stated that Mr. Arnold then asked if he could speak with Mr. Easters, and he told him that he could. He stated in a few minutes that the two men came into the room together and that he told Mr. Easters that it would probably be all right for Mr. Arnold to use the pickup truck to go to his home. He stated that Mr. Arnold then left and that subsequently he had some conversations with members of Mr. Arnold’s family and possibly his attorney.

The appellant, Paul Craig Arnold, testified that during 1973 and 1974 he was employed as manager of the Elba Paint and Body Shop in Elba, Alabama. He stated that Mr. Easters was to pay him a monthly salary of $850.00 per month for the first three months, and thereafter they would share fifty per cent of the net profits. He stated that he never received any funds as net profits on the parts, but continued during the year 1973 to receive a salary of $850.00 per month. He stated that at Christmas time he got a bonus. He stated that in 1974 he was handling the company’s records and that on several instances he wrote checks to different companies wherein he would go and pick up various items for the company, such as at a Junior Food Store he would have to pay cash in order to obtain the items, such as cleaning materials and towels for the body shop. He also testified that on several instances he wrote checks which were cashed, and that he paid cash on receipt of certain items which had been ordered in behalf of the company, such as supplies of different types. He testified that he was in charge of the payroll and the checkbook, and he did recall having a conversation with Mr. Easters and Mr. Fuller in early July on a Monday morning at the company office. He stated that he told Mr. Fuller he did not believe that he owed the company $4500.00 or $4600.00, and that he wanted to see if he could work something out, and he asked permission to go talk with his family, and he said that Mr. Easters and Mr. Fuller told him he could take the pickup truck and go talk with his family. He testified that he was indebted to the Elba Exchange Bank for $2000.00 for monies which he had previously borrowed.

On cross-examination the appellant admitted writing two checks to the Alabama Power Company that were personal and also two to the IGA Grocery Store, and in one instance to a veterinarian. However, he stated that it was his understanding that he would be able to be repaid for monies due him for his salary and that these were in the nature of an advance.

The appellant presented the testimony of his wife, Mrs. Paul Arnold, and she endeavored to testify that during early 1974 on a Saturday afternoon, she was present at the company office with Mr. Arnold, her husband, Mr. Easters, and another employee by the name of Charles Cooper. The appellant sought through his wife to present testimony in the nature of a conversation which would have impeached the testimony of Mr. Easters, the essence of this being by Mr. Easters to the appellant, “If you need anymore extra money, just write yourself some checks and then we will settle up at the end of the year.”

The State objected to the introduction of this testimony and the trial court sustained this objection, indicating that the appellant had failed to lay a predicate to impeach the testimony of Mr. Easters.

I

The sole issue presented by this appeal is whether or not the trial court erred in sustaining the State’s objection to the appellant’s tender of his wife’s testimony with reference to the conversation in early January, 1974 at the company office between Mr. Easters, her husband, Mr. Arnold, and at that time she was present, and a fellow employee by the name of George Cooper [R. pp. 96-98].

The basis of the trial court’s sustaining the State’s objection was that the appellant had failed to lay a proper predicate in order to impeach Mr. Easters.

On cross-examination, Mr. Easters, in response to questioning by the appellant’s attorney, stated the following [R. p. 73]:

“Q. Mr. Easters, do you recall in the early part of January, 1974, having a conversation with the defendant, Mr. Arnold here, on a Saturday afternoon with his wife and a fellow employee named George Cooper, with reference to his salary payments?
“A. No, sir. I don’t, Mr. Stokes. It could very well have happened, but I don’t recall it.
“Q. George Cooper was an employee of yours, was he not?
“A. Yes, sir.”

The rule covering the laying of a proper predicate prior to the introduction of impeachment testimony is well set forth in the opinion of the Supreme Court of Alabama in Bridges v. State, 225 Ala. 81, 142 So. 56:

“There is possibly no rule governing the production and introduction of evidence in any case better understood or more rigidly enforced, than is the rule which requires that a party, who wishes to impeach the testimony of an opposing witness by showing contradictory statements, shall lay a proper predicate therefor. The rule requires ‘that the attention of the witness, who is attempted to be discredited, should be called to the time, place and person involved in the supposed contradiction, in order that the faculties of the mind may be put in motion, and the memory aided by the train of ideas which such circumstances would be likely to suggest with reference to the subject-matter of inquiry. 4 Phil.Ev. 761. The rule, however, is satisfied, when the attention of the witness is called with reasonable certainty to the subject of the previous declarations.’ Nelson v. Iverson, 24 Ala. 9, 60 Am.Dec. 442.
“In the case of Walker v. State, 220 Ala. 544, 126 So. 848, 853, it is said: ‘We observe, however, that the rule of the cases is that where a witness is sought to be impeached by a contradictory statement, the attention of the witness sought to be impeached should be directed “with reasonable certainty to the time, place and person involved and the supposed contradiction.” Nelson v. Iverson, 24 Ala. 9, 60 Am.Dec. 442; Southern Ry. Co. v. Williams, 113 Ala. 620, 21 So. 328. If the predicate is as to an exact specific contradictory statement, and does not embrace one “of like import” or “in substance,” it is error to allow such question. * * * Murph v. State, 153 Ala. 67, 45 So. 208; McClellan v. Lyle-Taylor Grain Co., 205 Ala. 59, 87 So. 596. The reason for this is, if the question put to the impeaching witness had been put to the witness to be impeached, it might have provoked a different answer, or a reasonable explanation.’ ”

As may be seen in examining the testimony of Mr. Easters, while it is true that the appellant notes the time of the alleged conversation and the parties who were presumably present, that is, in addition to himself and his wife, the fellow employee George Cooper, but the nature of the question is “with reference to his salary payments.” At no point does this conversation relate to the need of any extra money or the authority to write some additional checks or that there will be a settlement with reference this arrangement at the end of the year. Bridges, supra, points out the absolute requirement that the testimony sought to be impeached shall be set forth with reasonable certainty in order that the witness may be called upon to give his version or to give an appropriate explanation or answer.

Since it is clear that there was no proper predicate laid, the ruling of the trial court is correct. Murph v. State, 153 Ala. 67, 45 So. 208; Edwards v. State, 279 Ala. 371, 185 So.2d 393; McClellan v. Lyle-Taylor Grain Co., 205 Ala. 59, 87 So. 596.

We have carefully examined this record as required by law, and find no error therein. The judgment of the trial court is due to be and the same is hereby

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ., and SIMMONS, Supernumerary Circuit Judge, concur.

CATES, P. J., not sitting.


author: HARRIS, Judge.

text:
    Edward ROHME v. STATE.
    3 Div. 601.
    Court of Criminal Appeals of Alabama.
    Nov. 16, 1976.
    Crenshaw & Minor and Gregory A. Carr, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Evans, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of the crime of false pretense and the Court sentenced him to five years imprisonment in the penitentiary. At arraignment and trial appellant was represented by court-appointed counsel. Appellant is in this Court with a free transcript and trial counsel was appointed to represent him on this appeal.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charge that, before the finding of this indictment, EDWARD W. ROHME, whose name is to the Grand Jury otherwise unknown, did falsely pretend to Charles Morgan the agent, servant or employee of Far South Movement, Inc., a corporation with intent to defraud, that he had on deposit at First Alabama Bank of Montgomery, N. A., Montgomery Alabama $954.74 and, by means of such false pretense, obtained from the said Charles Morgan money or merchandise, or money and merchandise, of the value of $954.74, against the peace and dignity of the State of Alabama.”

Appellant filed a demurrer to the indictment which was overruled by the trial court. The indictment substantially follows the language of the form prescribed by the Legislature for false pretense and the demurrer was properly overruled. Carpenter v. State, 24 Ala.App. 468, 136 So. 491; Couch v. State, 31 Ala.App. 586, 20 So.2d 57.

The evidence presented by the State is undisputed. Appellant did not testify nor did he offer any testimony in his behalf.

Charles R. Morgan testified that he was a salesman for Far South Movement, Inc., a corporation, and that on August 2, 1975, a man by the name of Edward Rohme came in to buy a Vespa motorcycle from his employer. He identified Rohme in Court as the man who bought the motorcycle from him. Rohme asked Morgan if he would take a check and Morgan replied he would take a check if it was a good one. Rohme then stated he would not write it if it was not a good check. The price of the motorcycle was $895.00 plus tax and appellant wanted two helmets. The total price came to $954.74 and appellant drew a check in that amount payable to Far South Movement, Inc., and signed the name of “Edward W. Rohme” as the drawer of the check on “First Alabama Bank of Montgomery.” Morgan asked Rohme for some identification and he gave Morgan a receipt for an Alabama driver’s license. Morgan took the check and the driver’s license receipt to his immediate supervisor who approved the check for the sale and purchase of the motorcycle. This transaction occurred on a Saturday afternoon when the bank was closed. The check was deposited the following Tuesday. A few days later the check was returned to Far South Movement, Inc., a corporation, with a notation that “We do not appear to have a checking account in this name.”

Danny Lewis, Assistant Cashier and Custodian of Records of First Alabama Bank, testified that the check was kicked out of the normal payment procedure because there were not enough funds in checking account number 1086707 to pay the check to Far South Movement, Inc.

Lewis further stated that since the account number and the signature on the check did not match, there was an attempt made to find an account number for the signature, but the bank had no account in the name of “Edward W. Rohme.” Lewis searched the business records of the First Alabama Bank for account number 1086707 and found the account to be in the name of one “Edward A. Wells,” but could not locate an account in the name of Edward W. Rohme. Lewis further stated that account number 1086707 was opened on August 1, 1975, and on August 2, 1975, had a balance of only $2.82. That when the check drawn by appellant on the account of Edward A. Wells in the amount of $954.74 payable to Far South Movement, Inc., reached the bank on August 6, 1975, the account was $9.28 overdrawn. Mr. Lewis stated there was a total of $50.00 in deposits made in this account from August 1, to August 6, 1975.

Jeff Barnes testified that he was employed at Far South Movement, Inc., which had a Vespa motor scooter dealership in Montgomery, Alabama, and that he was manager of the company. He stated that he did not know appellant and had never had any business dealings with him. He said he had the responsibility of approving sales agreements and that he approved Rohme’s check for the purchase of the motorcycle and the other items after assuring himself that Morgan had taken the necessary precautions as to the identity of Rohme. He further stated that if he had not approved the check, the sale would not have gone through.

Mrs. Ester Pappanastos testified that she and her father owned Capitol City Homes, a rooming house located at 469 South Court Street in Montgomery. She stated she had a tenant by the name of Edward Wells; that Mr. Wells moved into one of her rooms on July 4,1975, and lived there for three or four weeks. She stated he moved out at night some time before August 1, 1975. She said appellant looked like Mr. Wells but she could not tell for certain if they were one and the same person.

Sergeant L. E. Neuman, a State Trooper and Assistant Chief Review Officer of the Driver’s License Division of the Department of Public Safety, testified. He identified State’s Exhibit 8 as an application for a renewal or duplicate driver’s license and that it came from Edward Rohme. He further identified a temporary permit that was issued to Rohme and the number was 79937. This is the same number that Morgan wrote on the back of the check that appellant gave him on August 2, 1975, in the amount of $954.74, for the purchase of the motorcycle and two helmets.

At the conclusion of the State’s case appellant made a motion to exclude the evidence presented by the State because there was a fatal variance in the allegations laid in the indictment and the proof offered in support thereof. The motion was denied. Appellant requested the affirmative charge which was refused. He made a motion for a new trial which motion was also denied.

Where the evidence raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain the conviction, the denial of a motion to exclude the State’s evidence, the refusal to give the affirmative charge and the overruling of a motion for a new trial, do not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843.

A corporation is a legal entity and must conduct business by and through an agent, servant or employee. In this case the misrepresentation was made to Morgan, the agent, servant or employee of Far South Movement, Inc., who relied upon the misrepresentation of appellant that the check he gave in payment of the motorcycle and two helmets was good and would be honored when presented to the bank. Appellant did not have an account in the bank on which the check was drawn and the check was dishonored. This made out a clear case of false pretense.

Appellant’s contentions are answered in Lambert v. State, 55 Ala.App. 242, 314 So.2d 318, wherein this Court said:

“The evidence establishes that Mary Jones was an agent of West Brothers Corporation, exercising control over the merchandise and responsible for its sale. Appellant contends, however, that since the fishing reels were owned and possessed by West Brothers Corporation, the charge of false pretense cannot be proved by showing that an agent of the Corporation relied upon the misrepresentation. If appellant’s contention is correct, it would be virtually impossible to commit the offense of false pretense against a corporation unless the misrepresentation was made to the president or board of directors. Such is not the law. In Couch v. State, 38 Ala.App. 134, 78 So.2d 817 (1955), Judge Harwood of the Court of Appeals said:
‘It is well settled that the false pretense, an essential element of the offense charged in this case, may be made to an agent of the person from whom the property is obtained. Bazzell v. State, 16 Ala.App. 663, 81 So. 183; Young v. State, 22 Ala.App. 443, 116 So. 709; Bosworth v. State, 28 Ala.App. 538, 189 So. 794.’
“See also: Bailey v. State, 159 Ala. 4, 48 So. 791 (1909).”

The judgment of conviction is affirmed.

AFFIRMED.

All the judges concur.


author: ENGLAND, Justice. ADKINS, Justice

text:
    Jay H. ADAMS, Petitioner, v. The AUCHTER COMPANY, a corporation, and State of Florida Department of Commerce, Industrial Relations Commission, Respondents.
    No. 47027.
    Supreme Court of Florida.
    Aug. 25, 1976.
    Rehearing Denied Dec. 13, 1976.
    Joseph Egan, Jr., of Hamilton, Douglas & Bennett, Orlando, for petitioner.
    Robert C. Lanquist and William H. Andrews, of Hamilton & Bowden, Jacksonville, for respondents.
   ENGLAND, Justice.

This case was certified to us by the First District Court of Appeal after it had rendered the decision reported at 304 So.2d 487. The certification recites that the decision passes upon a question of great public interest as contemplated by Article V, Section 3(b)(3) of the Florida Constitution. We agree and accept jurisdiction.

The undisputed facts are set forth in the district court’s opinion. The sole question for our review is whether unemployment compensation benefits are payable under Chapter 443, Florida Statutes, to a claimant union member who refuses to accept work of the same type that he normally performs, at wages substantially similar to those he normally receives, because the proposed work is to be performed on a non-union job. Cast in the language of our statute, the question is whether a claimant in that position “is able to work and is available to work”, or whether he “has failed without good cause ... to accept suitable work when offered to him.” We hold that unemployment benefits are not available under these circumstances, thus answering the certified question in the negative. We can add little to the analysis, reasoning and authorities set forth in the district court’s opinion. The decision below is in accord with the view of virtually every state which has considered the same question. It comports with the philosophy of our unemployment compensation law, as expressed in the legislature’s declaration of public policy, that funds under the act shall be “used for the benefit of persons unemployed through no fault of their own.” For these reasons, we affirm the decision below.

ROBERTS, Acting C. J., and HENSLEY and MELVIN, Circuit Judges, concur.

ADKINS, J., dissents with opinion.

ADKINS, Justice

(dissenting).

Petitioner is a carpenter and a member of Carpenter’s Local 627. When petitioner became unemployed in 1973, he did not rely solely on his union’s work referral service. Rather, he sought employment on his own initiative, and was offered nonunion employment at the rate of $7.00 per hour. He refused the offer.

The union wage scale was $7.56 per hour. If petitioner performed union work and received the union wage, he would “net” $6.65 per hour; the union would keep $.91 per hour to fund its benefit program, which provides union members such benefits as hospitalization plans, vacations, and retirement plans. To remain qualified for the program’s benefits, a union member must accumulate a minimum number of hours of union work each year.

Petitioner refused to accept the nonunion employment because it offered no benefits other than an hourly wage, because of his potential loss of all union benefits for that year, and because of possible disciplinary action by his union.

Petitioner had previously applied for unemployment compensation; but because he refused the nonunion employment, his claim was denied by a Department of Commerce claims examiner. Petitioner appealed, and the decision of the claims examiner was affirmed by an appeals referee. Petitioner then appealed to the Industrial Relations Commission, which reversed the administrative decisions below and found petitioner eligible to receive unemployment compensation.

On certiorari, the District Court of Appeal, First District, quashed the order of the Industrial Relations Commission, holding that petitioner was “ ‘able to work and . available for work’ as required by Section 443.05(3), Florida Statutes [1973]” and that petitioner “ ‘failed without good cause ... to accept suitable work when offered to him’ within the meaning of Section 443.06(2), Florida Statutes [1973].”

The majority of this Court agrees with the decision of the District Court. The majority opines that the District Court’s decision comports with the philosophy of Florida’s unemployment compensation law as expressed in the legislative declaration of policy. But a fundamental and more meaningful declaration of policy is embodied in the Declaration of Rights of the Florida Constitution: “The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged.” This constitutional guarantee is a supervening statement of policy which overrides any legislative declaration. To deny petitioner unemployment compensation is to deny him the right to bargain collectively as a union member. The decision of the District Court penalizes petitioner for exercising a constitutionally protected right. The State cannot ignore this right by compelling petitioner to choose between unemployment benefits and union membership.

While the decision of the District Court may be in accord with the view of other states which have considered the issue now before this Court, decisions of other jurisdictions are not binding on the courts of this state. None of the decisions cited by the District Court are influenced by a constitutional declaration of policy identical to Fla.Const. art. I, § 6, F.S.A. Only two of those jurisdictions, Arkansas and Mississippi, have constitutional provisions dealing with the rights of labor or with the right to work. The Arkansas Constitution provides:

“No person shall be denied employment because of membership in or affiliation with or resignation from a labor union, or because of refusal to join or affiliate with a labor union; nor shall any corporation or individual or association of any kind enter into any contract, written or oral, to exclude from employment members of a labor union or persons who refuse to join a labor union, or because of resignation from a labor union; nor shall any person against his will be compelled to pay dues to any labor organization as a prerequisite to or condition of employment.”

The Mississippi Constitution provides: “It is hereby declared to be the public policy of Mississippi that the right of a person or persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization.” These narrowly drafted provisions, guaranteeing the right of employment regardless of union membership or nonmembership, are not comparable to the Florida Constitution’s broadly-stated right to bargain collectively.

It is interesting to note, however, that one jurisdiction, New York, has expressed a view opposite that of the District Court. The New York Constitution’s Bill of Rights provides: “Employees shall have the right to organize and to bargain collectively through representatives of their own choosing.” The similarity to Florida’s constitutional guarantee is immediately apparent.

Florida’s policy to protect rights of union membership is declared legislatively as well as constitutionally. Fla.Stat. § 447.03, F.S.A. (1973) provides:

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.”

The decision of the District Court is also contrary to a Congressional declaration of policy:

“It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”

The decision of the District Court penalizes petitioner for exercising his “full freedom of association,” a practice which Congress plainly desired to protect. And the Florida courts were once before chastised by the United States Supreme Court for thwarting this Congressional intent:

“The National Labor Relations Act is a comprehensive code passed by Congress to regulate labor relations in activities affecting interstate and foreign commerce. As such it is of course the law of the land which no state law can modify or repeal.
. . Florida should not be permitted to defeat or handicap a valid national objective by threatening to withdraw state benefits from persons simply because they cooperate with the Government’s constitutional plan.”

The decision of the District Court should be quashed. It is contrary to a congressional statement of national policy. It is contrary to a legislative statement of Florida policy. And it is an unconstitutional application of Florida’s unemployment compensation law in that it abrogates petitioner’s right to union membership as guaranteed by Fla.Const. art. I, § 6, F.S.A.

Rehearing denied; ENGLAND, J., and ROBERTS, Ret. J. and HENSLEY and MELVIN, Circuit Judges, concur.

ADKINS, Acting C. J., dissents.

      .Numerous incidental issues raised in this proceeding have been reviewed and resolved in the district court’s opinion. We have considered and approve of their disposition below. A number of other arguments presented here for the first time have also been considered, and found to be without merit.

      . Section 443.05(l)(c)(l), Fla.Stat. (1973).

      . Section 443.06(2), Fla.Stat. (1973).

      . See e. g., Norman v. Employment Security Agency, 83 Idaho 1, 356 P.2d-913 (Idaho 1960); 56 A.L.R.2d 1015.

      . Section 443.02, Fla.Stat. (1973).

      .It is generally recognized that an unemployment compensation claimant must actively look for work in order to be qualified for benefits. See Florida Indus. Comm’n v. Ciarlante, 84 So.2d 1, 4 (Fla.1955); Dawkins v. Florida Indus. Comm’n, 155 So.2d 153, 154-55 (Fla.App.2d 1963); Teague v. Florida Indus. Comm’n, 104 So.2d 612, 614 (Fla.App.2d 1958). To that extent, at least, petitioner’s actions were wholly consistent with the intent of Florida’s unemployment compensation law.

      . Auchter Co. v. Florida Dep’t of Commerce, Indus. Relations Comm’n, 304 So.2d 487, 488 (Fla.App.1st 1974).

      . See Fla.Stat. § 443.02 (1973).

      . Fla.Const. art. I, § 6.

      . See Thornbrough v. Stewart, 232 Ark. 53, 334 S.W.2d 699 (1960); Lemelin v. Adm’r, Unemployment Compensation Act, 27 Conn.Sup. 446, 242 A.2d 786 (1968); Bigger v. Unemployment Compensation Comm’n, 53 A.2d 761 (Del.1947); Norman v. Employment Security Agency, 83 Idaho 1, 356 P.2d 913 (Idaho 1960); Miville v. Maine Employment Security Comm’n, 219 A.2d 752 (Me.1966); Mississippi Employment Security Comm’n v. Mixon, 159 So.2d 181 (Miss.1964); Chambers v. Owen-Ames-Kimball Co., 146 Ohio St. 559, 67 N.E.2d 439 (1946); Barclay White Co. v. Unemployment Compensation Bd. of Review, 356 Pa. 43, 50 A.2d 336 cert. denied, 332 U.S. 761, 68 S.Ct. 63, 92 L.Ed. 347 (1947).

      . See Thornbrough v. Stewart, supra note 4.

      . See Mississippi Employment Security Comm’n v. Mixon, supra note 4.

      . Amend. 34, § 1, Ark.Const., Ark.Stat.Ann. (1947).

      . Art. 7, § 198-A, Miss.Const., Miss.Code Ann. (1972).

      . In re Grandin’s Claim, 19 A.D.2d 448, 243 N.Y.S.2d 902 (1963), concerned a union member who refused an offer of nonunion employment because acceptance might have resulted in the loss of valuable union benefits. The New York court held that he should not have been denied unemployment compensation benefits because he refused the offer.

      . Art. 1, § 17, N.Y.Const., 2 N.Y.Consol.Laws Ann. (McKinney 1969).

      . National Labor Relations Act § 1, 29 U.S. C.A. § 151 (1973).

      . Nash v. Florida Indus. Comm’n, 389 U.S. 235, 238-39, 88 S.Ct. 362, 19 L.Ed.2d 438 (1967).


author: PER CURIAM.

text:
    In re THE FLORIDA BAR, RULES OF CIVIL PROCEDURE.
    No. 49249.
    Supreme Court of Florida.
    Aug. 25, 1976.
    On Rehearing Nov. 5, 1976.
    As Modified Dec. 13, 1976.
    Edward J. Atkins, President, for The Florida Bar, Miami, Theodore J. Babbitt, Chairman, West Palm Beach and Robert C. Scott, Immediate-Past Chairman, Fort Lauderdale, for the Civil Procedure Rules Committee, petitioner.
    Henry P. Trawick, Jr., Sarasota.
   PER CURIAM.

Appended to this order are amended and new rules which govern all proceedings within their scope after 12:01 a. m., January 1, 1977.

All conflicting rules and statutes are hereby superseded, and any statute not superseded shall remain in effect as a rule promulgated by the Supreme Court.

The committee notes are not adopted by the Court.

It is so ordered.

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

APPENDIX

RULE 1.020. COURT ADMINISTRATION.

(f) Duty to rule within a reasonable time. It shall be the duty of every judge to rule upon and announce his order or judgment on every matter submitted to him within a reasonable time. Each judge shall maintain a log of cases he holds under advisement and advise the chief judge of his circuit at the end of each calendar month of each case which he has held under advisement for more than sixty days.

(g) Neglect of duty. The failure of any judge, clerk, prosecutor, public defender, court reporter, or other officer of the court to comply with an order or directive of the chief judge shall be considered neglect of duty and shall be reported to the chief justice of the supreme court. The chief justice may report such neglect of duty by a judge to the Judicial Qualifications Commission or such neglect of duty by other officials to the Governor of Florida, as may be appropriate.

RULE 1.030. ATTORNEYS.

(a) Pleadings to be signed by attorney. Every pleading and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name whose address and telephone number (including area code) shall be stated and who shall be duly licensed to practice law in Florida. He may be required by order of court to vouch for his authority to represent and to give the address of such party. Except when otherwise specifically provided by these rules or an applicable statute, pleadings as such need not be verified or accompanied by affidavit. The signature of an attorney shall constitute a certificate by him that he has read the pleading or other paper; that to the best of his knowledge, information and belief there is good ground to support it and that it is not interposed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken and the action may proceed as though the pleading or other paper had not been served.

(b) Party not represented by attorney to sign. A party who has no attorney but represents himself shall sign his pleading or other paper and state his address and telephone number (including area code).

Committee Note: Subdivisions (a)-(b) have been amended to require the addition of the filing party’s telephone number on all pleadings and papers filed.

RULE 1.080. SERVICE OF PLEADINGS AND PAPERS.

(a) Service; When Required. Unless the court otherwise orders, every pleading subsequent to the initial pleading and every other paper filed in the action, except applications for witness subpoena, shall be served on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them shall be served in the manner provided for service of summons.

(h)Service of orders.

(1) A copy of all orders or judgments shall be transmitted by the court or under its direction to all parties at the time of entry of the order or judgment. No service need be made on parties against whom a default has been entered except orders setting a cause for trial as prescribed in Rule 1.440(c) and final judgments that shall be prepared and served as provided in subdivision (h)(2). The court may require that orders or judgments be prepared by a party and may require that proposed orders or judgments be furnished to all parties before entry by the court of the order or judgment.

Committee Note: The amendment made to this rule on July 26, 1972 [See In re The Florida Bar: Rules of Civil Procedure, 265 So.2d 21 (Fla.1972)], was intended according to the Committee Notes “[t]o assure that all parties had an opportunity to see the proposed form [of order] before entry by the court.” [Id. at 23]. This change followed on the heels of the 1971 amendment, which the Committee felt had been confusing.

Two changes have been made to subdivision (h)(1), which have resulted in a wholesale redrafting of the rule. First, the provision requiring the submission of proposed orders to all counsel prior to entry by the court has been deleted, any inaccuracies in an order submitted to the court being remediable either by the court’s own vigilance or later application by an interested party. Secondly, the rule now requires that conformed copies of any order entered by the court must be mailed to all parties of record in all instances (and to defaulted parties in two specified instances), for purposes of advising them of the date of the court’s action as well as the substance of such action. Nothing in this new rule is meant to limit the power of the court to delegate the ministerial function of preparing orders.

RULE 1.310. DEPOSITIONS UPON ORAL EXAMINATION.

(b) Notice of Examination. General Requirements; Special Notice; Non-Stenographic Recording; Production of Documents and Things; Deposition of Organization.

(4) Upon motion, the court shall, subject to the provisions of Rule 1.280(c), order that the testimony at a deposition be recorded on video tape and may order that the testimony at a deposition be recorded by other than stenographic means at the initial cost of the movant. The order shall designate the manner of recording, preserving and filing the deposition and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. A party may nevertheless arrange for a stenographic transcription at his own initial expense. The court may adopt a standard order governing the use of video tape depositions which may be automatically applicable upon the giving of notice of taking any video tape deposition unless modified upon the application of any party.

Committee Note: Subdivision (b)(4) has been amended to allow the taking of a video tape deposition as a matter of right. Provisions for the taxation of costs and the entry of a standard order are included as well. This new amendment allows the contemporaneous stenographic transcription of a video tape deposition.

RULE 1.340. INTERROGATORIES TO PARTIES.

(e) Form. The interrogatories shall be so arranged that a blank space shall be provided after each separately numbered interrogatory. The space shall be reasonably calculated to enable the answering party to insert the answer within the space. If sufficient space is not provided, the answering party may attach additional papers with answers and refer to them in the space provided in the interrogatories. The original of the interrogatories and a copy shall be served on the party to whom the interrogatories are directed and copies on all other parties as provided in Rule 1.080. There shall be filed with the court as provided in Rule 1.080(d) only an executed certificate of service or an attached notice that the interrogatories have been served, giving date of service, the number of interrogatories served, and the name of the party to whom they were directed. When the original interrogatories have been completed by the answering party, they shall be filed and copies served as provided in Rule 1.080.

RULE 1.410. SUBPOENA.

(c) Service. A subpoena may be served by any person authorized by law to serve process or by any other person who is not a party and who is not less than éighteen years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to him the fee for one day’s attendance and the mileage allowed by law. Proof of such service shall be made by affidavit of the person making service if not served by an officer authorized by law to do so.

RULE 1.420. DISMISSAL OF ACTIONS.

(e)Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing, at least five days before the hearing on the motion, why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute. Committee Note: Subdivision (e) has been amended to prevent the dismissal of an action for inactivity alone unless one year has elapsed since the occurrence of activity of record. Non-record activity will not toll the one year time period.

RULE 1.431. TRIAL JURY.

(e) Exercise of challenges. All challenges shall be addressed to the court outside the hearing of the jury in a manner selected by the court so that the jury panel is not aware of the nature of the challenge, the party making the challenge, or the basis of the court’s ruling on the challenge, if for cause.

(f) Alternate jurors.

(1) The court may direct that one or two jurors be impaneled to sit as alternate jurors in addition to the regular panel. Alternate jurors in the order in which they are called shall replace jurors who have become unable or disqualified to perform their duties before the jury retires to consider its verdict. Alternate jurors shall be drawn in the same manner, have the same qualifications, be subject to the same examination, take the same oath, and have the same functions, powers, facilities and privileges as principal jurors. An alternate juror who does not replace a principal juror shall be discharged when the jury retires to consider the verdict.

(2) If alternate jurors are called, each party is entitled to one peremptory challenge for each alternate juror in addition to those otherwise allowed. The additional peremptory challenge may be used only against the alternate jurors and the other peremptory challenges allowed shall not be used against the alternate jurors.

(g)If a party believes that grounds for legal challenge to a verdict exists, he may move for an order permitting an interview of a juror or jurors to determine whether the verdict is subject to the challenge. The motion shall be served within ten days after rendition of the verdict unless good cause is shown for the failure to make the motion within that time. The motion shall state the name and address of each juror to be interviewed and the grounds for challenge that the party believes may exist. After notice and hearing, the trial judge shall enter an order denying the motion or permitting the interview. If the interview is permitted, the court may prescribe the place, manner, conditions, and scope of the interview.

Committee Note: Subdivision (e) has been added to establish a procedure for challenging jurors without members of the panel knowing the source of the challenge to avoid prejudice. Subdivision (f) is a renumbering of the previously-enacted rule regarding “Alternate jurors.”

Subdivision (g) has been added to establish a procedure for interviewing jurors. See also Canons of Professional Responsibility DR 7-108.

RULE 1.440. SETTING CASE FOR TRIAL.

(c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than thirty days from the service of the notice specified in subdivision (b). By giving the same notice, the court may set an action for trial on its own motion. In law actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with Rule 1.080(a).

RULE 1.510. SUMMARY JUDGMENT.

(c) Motion and proceedings thereon. The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall be served at least twenty days before the time fixed for the hearing. The adverse party may serve opposing affidavits prior to the day of hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

Committee Note: Subdivision (c) has been amended to require a movant to state with particularity the grounds and legal authority which he will rely upon in seeking summary judgment. This amendment will eliminate surprise and bring the summary judgment provision in conformity with the identical provision in Rule 1.140(b) with respect to motions to dismiss.

RULE-1.630. SCIRE FACIAS.

This rule is hereby deleted.

FORM 1.917. NE EXEAT.

WRIT OF NE EXEAT

THE STATE OF FLORIDA:

To All and Singular the Sheriffs of the State:

YOU ARE COMMANDED TO detain the defendant-and require him to give bond in the sum of $_payable to the Governor of Florida and his successors in office conditioned that the defendant will answer plaintiff’s pleading in this action and will not depart from the state without leave of court and will comply with the lawful orders of this court, with sureties to be approved by the clerk of this court. If the defendant does not give the bond, he shall be taken into custody and be confined in the_County jail until he gives the bond or until further order of this court. If the defendant does not give the bond, he shall be brought before a judge of this court within twenty-four hours of his confinement.

WITNESS my hand and the seal of this Court on _:_, 19_

(Name of Clerk)

As Clerk of the Court

By-

As Deputy Clerk

Committee Note: See Attorney General’s Opinion 076-13.


author: OVERTON, Chief Justice.

text:
    William C. HARTLEY, Petitioner, v. FLORIDA EAST COAST RAILWAY COMPANY, Respondent.
    No. 46314.
    Supreme Court of Florida.
    Oct. 28, 1976.
    Rehearing Denied Dec. 16, 1976.

      H. C. Feige, of Patterson, Maloney & Shankweiler, Fort Lauderdale, for petitioner.
    Kenneth L. Ryskamp, of Bolles, Goodwin, Ryskamp & Welcher, Miami, for respondent.
   OVERTON, Chief Justice.

This is a petition for writ of certiorari to review a decision of the Fourth District Court of Appeal reported at 299 So.2d 108. The decision conflicts with Fitzsimmons v. City of Pensacola, 297 So.2d 107 (Fla.App. 1st 1974). We have jurisdiction.

In the instant case, the Fourth District held the initial assertion of the doctrine of comparative negligence in plaintiff’s appellate brief was not sufficient to allow a new trial upon the new doctrine. The District Court concluded that this action did not constitute raising the issue during some stage of the litigation, nor properly making it a question for appellate review, citing Hoffman v. Jones, 280 So.2d 431 (Fla.1973). We agree.

Our recent decision in CNA Insurance v. Minton, 334 So.2d 257 (Fla.1976), is controlling. We disapprove the holding on this point in Fitzsimmons v. City of Pensacola, supra.

The opinion of the District Court is approved and the writ is discharged.

It is so ordered.

ADKINS, BOYD, ENGLAND and SUNDBERG, JJ., concur.

      . Fla.Const., Art. V, § 3(b)(3).


text:
    FLORIDA MEDICAL CENTER, INC. d/b/a Lauderdale Lakes General Hospital, and Melvin Smoley, M. D., Appellants, v. Josephine VILLA, Appellee.
    No. 48701.
    Supreme Court of Florida.
    Nov. 4, 1976.
    Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for Florida Medical Center, Inc., d/b/a Lauderdale Lakes General Hospital; Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for Melvin Smoley, M. D., appellants.
   PER CURIAM.

Reversed and remanded under the authority of Carter v. Sparkman, 335 So.2d 802 (Fla.1976), for further proceedings consistent with that opinion.

It is so ordered.

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


author: PER CURIAM. ENGLAND, Justice BOYD, Justice

text:
    The CITY OF JACKSONVILLE, Florida, etc., et al., Petitioners, v. FLORIDA FIRST NATIONAL BANK OF JACKSONVILLE, etc., Respondent.
    Nos. 47392, 47393.
    Supreme Court of Florida.
    Nov. 12, 1976.
    Marion R. Shepard of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for petitioners.
    William C. Gentry and John A. Devault, III, of Bedell, Bedell, Dittmar & Zehmer, Jacksonville, for respondent.
   PER CURIAM.

The Writ of Certiorari having issued and the Court having examined the record and heard argument of counsel, it is now of the opinion that it is without jurisdiction and that the writ was improvidently issued. Therefore, the writ must be and is hereby discharged, and the Petition for Writ of Certiorari is dismissed.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS and SUNDBERG, JJ., concur.

ENGLAND, J., concurs in judgment discharging writ of certiorari with an opinion, with which OVERTON, C. J., and SUND-BERG, J., concur.

BOYD, J., dissents with an opinion.

ENGLAND, Justice

(concurring).

The Florida First National Bank of Jacksonville, in its capacity as guardian of Ernest John Dobbert, III and Honoré Elizabeth Dobbert, filed separate suits against the City of Jacksonville for damages resulting from the City’s alleged negligence in failing to take measures which would have protected the children from abuse at the hands of their father. After the suits were consolidated, the trial court dismissed both for failure to state a cause of action. On appeal the First District Court of Appeal reversed that judgment, concluding that the allegations of the amended complaints state a cause of action, after which a petition for a writ of certiorari was filed here.

The issue in the cause is whether the City of Jacksonville may be held liable for the torts of its employees as alleged in the amended complaints of the Bank. These complaints alleged that on several occasions the Jacksonville police received and responded to reports that Ernest Dobbert, the children’s father, was abusing and neglecting his children, and that the Jacksonville police failed to use reasonable care in the special duty undertaken in the children’s behalf:

“a. in failing to heed or give credence to the numerous reliable reports that Dob-bert had been abusing . . . the children;
“b. in failing to make a proper investigation and examination of . the . children;
“c. in failing to take appropriate measures to determine whether the reported abuses had, in fact, occurred;
“d. in failing to make a report of each investigation;
“e. in failing to file a report of each investigation with the juvenile court pri- or to July 1, 1971, and with the State of Florida Department of Health and Rehabilitative Services pursuant to Florida Statutes § 828.041 subsequent to July 1, 1971;
“f. in failing to protect [the children] from further abuse by taking [them] into immediate custody as established procedure required when a proper examination would have revealed that [they] had been abused and mistreated; and
“g. in failing to make appropriate inquiry into Dobbert’s prior criminal record, which record was readily available to investigating officers and which would have disclosed Dobbert’s established propensities for engaging in child abuse.”

The decision of the district court is alleged to be in conflict with a number of other Florida appellate decisions dealing with the scope and nature of municipal tort liability, principal among which are Wong v. City of Miami, 237 So.2d 132 (Fla. 1970); Modlin v. City of Miami Beach, 201 So.2d 70 (Fla. 1967), and Evett v. City of Inverness, 224 So.2d 365 (Fla.2d DCA 1969). Were the conflict “direct”, of course, we would have jurisdiction. It is not, however, and for that reason we are compelled to discharge the writ we tentatively issued.

Years ago this Court identified two basic forms of decisional conflict which properly trigger the exercise of our jurisdiction under what is now Article V, Section 3(b)(3) of the Florida Constitution. In Nielsen v. City of Sarasota, 117 So.2d 731, 734 (Fla.1960), the court unanimously held that alleged conflict may exist either (1) where an announced rule of law conflicts with other appellate expressions of law, or (2) where a rule of law is applied to produce a different result in a case which involves “substantially the same controlling facts as a prior case.” In this case petitioners do not suggest that the district court announced a different rule of law in holding for the respondent-Bank. They suggest, rather, that the appropriate rules governing municipal liability were applied to produce a result different from prior decisions on substantially the same controlling facts.

As the district court’s careful opinion shows, however, the facts in this case are so disparate from any other case which has ever considered the scope of municipal liability that the requisite factual similarity is wholly absent. Merely to mention some of the controlling facts here (as alleged in the complaint) is to highlight the differences:

(1) In this case a state statute directed procedures for the detection and prevention of child abuse. The Jacksonville police failed or refused to comply with them, with the consequence that the appropriate state agency never had the opportunity to know that the Dobbert children were in need of its services. No similar procedural default, resulting in injuries to the very persons the statute was designed to protect, occurred-in the decisions cited for conflict jurisdiction.

(2) Jacksonville policemen actually contacted and superficially examined the Dob-bert children on the basis of child abuse complaints. No such direct and personal contact with the persons injured was involved in the Wong, Modlin, and Evett cases.

(3) Mrs. Dobbert was in a Jacksonville jail and prison farm, and obviously unable to protect her children from abuse. She told responsible Jacksonville officials of her concerns, but the Jacksonville bureaucracy proved ineffective to deal with the problem. As a consequence, the very injuries of which she (and also her neighbors) warned were in fact inflicted. Nothing in Wong, Modlin or Evett approaches this factual setting.

(4) The Jacksonville police and its investigators failed or refused to make written reports to their superiors, although internal procedures required that they do so. The injuries suffered were precisely those which might have been prevented had there been reports on file as to the particular individuals who suffered repetitive and cumulative injuries. Again the decisions cited for “conflict” bear no factual resemblance to this case.

The absence of a jurisdictional foundation for our review in this case is not a mere technicality. It is a matter of constitutional significance. In this case, the First District Court of Appeal did a thorough and thoughtful job of analyzing Florida case law in order to apply it to the facts of a particular controversy before it. This is precisely what the framers of Article V and the people of Florida expect district court judges to do. A very strong showing of Nielsen -type error is required before we find authority to supplant the judgment of those constitutional officers with ours. Whatever the current view of the members of this Court on the scope of municipal liability, we may not arbitrarily jump the jurisdictional requirements of the Constitution in order to decide this case on its merits. We must, therefore, discharge the writ as having been improvidently granted.

OVERTON, C. J., and SUNDBERG, J., concur.

BOYD, Justice

(dissenting).

I must dissent because it is my opinion that the majority fails to follow the case law of this State as it has existed until now.

The landmark Florida decision which first lifted the veil of municipal immunity from liability for the torts of its employees is Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla. 1957). Suit was brought by a widow whose complaint alleged that her husband, while a prisoner in the municipal jail, died from smoke inhalation when the jail caught fire and was negligently left unattended by municipal employees. Her complaint was dismissed and this Court reversed. While the municipality remained immune from liability for the torts of its employees committed through a judicial or legislative function, this Court imposed liability when the tort of the municipal employee was committed through an executive function and the injured party suffered direct and personal injury proximately caused by the negligence of the municipal employee within the scope of his duty, provided that the damage suffered was special, personal damage not common to the Community-

Municipal immunity from tort liability for the negligence of employees was further explained in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla. 1967). A woman was killed while shopping in a retail store when a mezzanine collapsed. An action for wrongful death was instituted by her spouse alleging that a municipal building inspector negligently failed to discover the defect which caused the mezzanine’s collapse. The trial judge assumed there were sufficient facts to establish negligence, but nevertheless granted summary judgment in favor of the City. The District Court of Appeal affirmed on the basis that enforcement of building regulations is a legislative, judicial, quasi-legislative, or quasi-judicial function and, as such, falls within the Har-grove caveat which continued municipal immunity from tort liability for such functions. The question was certified to this Court which affirmed for reasons different from those of the District Court. Executive, legislative, judicial, quasi-legislative and quasi-judicial functions were defined and it was determined that, since enforcement is typically an executive task, it did not fall within municipal immunity from tort liability reserved by the Hargrove caveat. Stating the fundamental principle that an element of negligence is the existence of a duty owed by the person charged with negligence to the person injured, and citing the doctrine that in order to find a public officer negligent the duty must be something more than the duty that a public officer owes to the public generally, this Court found that the building inspector could not have been liable for damages resulting from the decedent’s death, since the duty owed her was not different from the duty he owed the public generally. Since defenses available to employees are available to employers when sued on the theory of respondeat superior, this Court held that cities are immune from liability for negligence of their employees unless the duty owed is a special one owed to the injured party as opposed to a duty owed to the public generally. The duty owed by the building inspector was to the public generally, rather than to the decedent specially. Consequently the District Court’s affirmance of the summary judgment was affirmed. This Court left open the question of whether public officers are immune from tort liability for injury resulting from their discretionary acts.

That question was answered in Wong v. City of Miami, 237 So.2d 132 (Fla.1970). A rally was scheduled in Miami on August 7, 1968 while the Republican National Convention was being held at Miami Beach. Merchants bordering the rally area requested police protection. Police officers were stationed in the vicinity, but were removed by direct order of the Mayor, and the removal was confirmed by an order issued by the County Sheriff. Civil disorder ensued and by the time police gained control the merchants had sustained damages which were alleged to exceed $100,000. Suit was brought against the City and the County. By order of the Circuit Court, the suit was dismissed against the City for failure to state a cause of action. The Circuit Court’s order was affirmed by the District Court of Appeal, Third District, and the question certified to this Court. In agreeing with the decision of the District Court majority, this Court recognized that the duty of police protection in the case was one owed to the public generally, even though the City, at the request of the merchants, had stationed the police in the vicinity, and then with knowledge that the assembly might have developed into a riot, withdrew police protection. Despite the fact that police had been dispatched to the scene to protect those in the vicinity of the rally, this Court held the duty to be a general one owed to the public rather than a special one owed to the injured parties. This Court went further to discuss whether the exercise of discretion in matters of police protection should be considered “negligence.”

. . But we are somewhat disturbed with what we perceived to be inferences appearing in the majority opinion and in the brief of the County that the removal of the officers was a negligent act and that respondents are shielded from liability merely because sovereign immunity has not been relaxed sufficiently by prior decisions.
* * * * * *
“. . . The sovereign authorities ought to be left free to exercize their discretion and choose the tactics deemed appropriate without worry over possible allegations of negligence.” Wong, supra, 237 So.2d 132, 134.

In Evett v. City of Inverness, 224 So.2d 365 (Fla.2d DCA 1969), the District Court of Appeal, Second District, seemed to anticipate Wong by affirming the dismissal of a complaint against a police officer for negligence committed through a discretionary judgment, although the court based its af-firmance on the lack of a special duty owed the injured party rather than because of the officer’s exercise of discretion. Just as in Evett, I believe complaints against police officers for negligence committed through an exercise of discretion are properly dismissed under the decisions of this Court.

I would adhere to our holding in Wong. Local governments must be free from negligence suits brought because of a municipal employees’ mistaken discretionary judgment. Were it otherwise, we might be faced with a rash of municipal government bankruptcies, and in order to stave off local bankruptcy of epidemic proportions, we would be forced to close the door to all municipal tort liability, including the limited liability of municipalities for the torts of employees which the law of this State now permits.

The majority demonstrates compassion but fails to follow Florida law. Governments cannot right all wrongs, prevent all injustice, or solve all the problems of mankind. The courthouse doors are now open to suits for countless claims by those who feel they suffer by failure of the governments to prevent their injuries.

This could lead to bankruptcy of local governments and cause more harm than good.

I must dissent.

      . Florida First Nat’l Bank v. Jacksonville, 310 So.2d 19 (Fla. 1st DCA 1975).

      . Art. V, § 3(b)(3), Fla.Const.

      .See also, among other cases adhering to this formulation, Kyle v. Kyle, 139 So.2d 885 (Fla. 1962), and Adams v. Seaboard Coast Line RR, 296 So.2d 1 (Fla. 1974).


author: ADKINS, Justice.

text:
    Louis DOMUTZ, Petitioner, v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY, Self-Insured, and the Florida Industrial Relations Commission, Respondents.
    No. 47932.
    Supreme Court of Florida.
    Nov. 12, 1976.
    Stephen Marc Slepin of Kaplan, Schwartz & Slepin, Tallahassee, and Gerald E. Vick, Miami, for petitioner.
    Richard J. Thornton of Walton, Lantaff, Schroeder, Carson & Wahl, Miami, for respondents.
   ADKINS, Justice.

This case is before us on petition for writ of certiorari to review an order of the Industrial Relations Commission which reversed a compensation order of the Judge of Industrial Claims in favor of petitioner Domutz.

Petitioner had a service-connected 40 per cent permanent partial disability of the body as a whole upon his employment by respondent Southern Bell Telephone and Telegraph Company. During this period of employment petitioner suffered a compen-sable injury to his back in 1965, and while still recovering from this injury suffered an additional compensable injury to his back in 1967. The parties stipulated that petitioner was permanently and totally disabled as a result of his injuries. The Judge of Industrial Claims awarded petitioner permanent total disability, medical and hospital bills, costs and attorney’s fees and disallowed any setoff of disability compensation for pension benefits to which petitioner did not contribute. The Industrial Relations Commission reversed only that part of the award to petitioner wherein a setoff was disallowed for pension benefits paid to petitioner.

The sole question for our decision here is whether an employer is entitled to a credit against workmen’s compensation benefits in the amount of pension benefits which petitioner received, but to which he had not contributed, where the total award including the pension benefits did not exceed petitioner’s average weekly wage.

As we determined in the case of Brown v. S. S. Kresge Company, Inc., 305 So.2d 191, 194 (Fla.1974),

“[BJecause under a logical interpretation of the I.R.C. Rule 9 when an injured employee receives the equivalent of his full wages from whatever employer source that should be the limit of compensation to which he is entitled.”

There the issue was whether sick leave benefits provided by an employer should be credited against workmen’s compensation injury benefits, and we determined that the decisive factor was not who had contributed to the plan, but rather whether the combination of the benefits from the employer exceeded the claimant’s average weekly wage. It should be noted here that I.R.C. Rule 9 is now Rule 18, Workmen’s Compensation Rules of Procedure.

We are not faced here with a determination of whether pension benefits paid by the employer should be credited against workmen’s compensation benefits if, in fact, the total benefits awarded exceeded the average weekly wage.

Petitioner makes the point that his average weekly wage is $225.90, his corresponding workmen’s compensation rate is $42.00 per week, and his entitlement to pension benefits is $39.68 per week. It is patently obvious from these figures that his average weekly wage far exceeds the total benefits received from his employer. The compensation award, therefore, should not have been reversed in part on this basis under these circumstances.

Accordingly, the petition for writ of cer-tiorari is granted, the order of the Industrial Relations Commission is quashed, and the cause remanded with instructions to reinstate the order of the Judge of Industrial Claims.

It is so ordered.

OVERTON, C. J., and BOYD, SUND-BERG and HATCHETT, JJ., concur.


text:
    In re FLORIDA BOARD OF BAR EXAMINERS. In re Virgil Darnell HAWKINS.
    No. 48311.
    Supreme Court of Florida.
    Nov. 12, 1976.

      James A. Shook of the Law Offices of Victor J. Musleh, Ocala, for petitioner.
    Richard C. McFarlain, Tallahassee, for The Florida Bar, amicus curiae.
   PER CURIAM.

This cause is before us to review a petition for admission to The Florida Bar pursuant to the so-called “diploma privilege” which once was extant in this state. Mr. Hawkins’ request is opposed by The Florida Bar, which nonetheless commendably concedes his claim on this Court’s conscience and suggests that we waive certain bar admission requirements and allow him to take the Florida bar examination. The Florida Board of Bar Examiners takes no position in this matter. Oral argument has been requested, but our review of the entire record discloses no reason to grant the request.

It is unnecessary to recite in detail the historical chronology of Mr. Hawkins’ attempts to obtain admission to the practice of law in Florida. The entire episode is fully set out in the official reports of this Court and the United States Supreme Court.

We have carefully reviewed Mr. Hawkins’ petition, the record of prior proceedings in this Court in which he was a party, the totality of circumstances affecting his prior application for law school admission and his current application for bar admission, and all relevant decisions of the United States Supreme Court. Based on these materials, and under the power conferred on us in Article V, Section 15 of the Florida Constitution, we hold that the bar examination and the law school graduation requirements of our bar admission rules are waived for Mr. Hawkins. As with all bar applicants, however, we cannot and do not waive the requirement that Mr. Hawkins demonstrate good character and moral fitness. Moreover, we cannot ignore the interests of the public insofar as they may be affected by Mr. Hawkins’ absence from the practice of law or law-related activities.

To meet the character requirement we direct the Florida Board of Bar Examiners to inquire into Mr. Hawkins’ character and fitness and to file its report with the clerk of this Court on or before December 15, 1976, and in the absence of a showing that Mr. Hawkins does not meet the standards of character and fitness required for attorneys in this state he shall be admitted to The Florida Bar. Notwithstanding such admission, however, and so that the public is protected should Mr. Hawkins elect to engage in the active practice of law, we direct that he shall not appear in any court or otherwise engage in the practice of law as a member of The Florida Bar until he presents evidence satisfactory to this Court that he has (1) attended the pre-induction “Bridging the Gap” seminar for new lawyers presented periodically by the Young Lawyer’s Section of The Florida Bar and (2) successfully completed an internship period of at least six months under the supervision of an active member of The Florida Bar in good standing, devoting not less than twenty hours per week to the study of Florida law and procedure in this manner.

It is so ordered.

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

      . State ex rel. Hawkins v. Board of Control, 47 So.2d 608 (Fla.1950); State ex rel. Hawkins v. Board of Control, 53 So.2d 116 (Fla.), cert. denied, 342 U.S. 877, 72 S.Ct. 166, 96 L.Ed. 659 (1951); State ex rel. Hawkins v. Board of Control, 60 So.2d 162 (Fla.1952), vacated and remanded, 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112 (1954); relief upon mandate withheld, 83 So.2d 20 (Fla.1955), mandate recalled and modified, cert. denied, 350 U.S. 413, 76 S.Ct. 464, 100 L.Ed. 486 (1956), relief upon mandate withheld, 93 So.2d 354 (Fla.), cert. denied without prejudice, 355 U.S. 839, 78 S.Ct. 20, 2 L.Ed.2d 49 (1957).


author: ENGLAND, Justice.

text:
    John T. TATUM, Petitioner, v. LEON MOSS DAIRY et al., Respondents.
    No. 48321.
    Supreme Court of Florida.
    Nov. 12, 1976.
    Lester Jennings, Miami, and Larry Klein, West Palm Beach, for petitioner.
    Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for respondents.
   ENGLAND, Justice.

John Tatum alleges that his left leg was injured in a fall while working at Leon Moss Dairy. At a hearing he testified concerning the nature of the injury and eir-cumstances- surrounding the fall. There were no witnesses to the incident. Tatum, along with several members of his family, also testified concerning a motorcycle accident in which he was involved on the day prior to his alleged work injury. The witnesses uniformly testified that the injury which Tatum suffered from the motorcycle accident was to his right leg.

The Judge of Industrial Claims dismissed the claim, apparently concluding that Tatum and his supporting witnesses were lying. He found that the injury for which compensation was sought resulted from the motorcycle accident. The Industrial Relations Commission affirmed, and Tatum now seeks our review of that conclusion.

The question posed for our consideration is whether a Judge of Industrial Claims has the power to determine that an injury has not been sustained in the course of employment solely because (1) he disbelieves the testimony of a claimant and (2) there exists circumstantial evidence that the injury could have been attributable to an event which occurred on an earlier date. We dispense with oral argument and hold that he has that power.

In Sanford v. A. P. Clark Motors, 45 So.2d 185, 187 (Fla.1950), this Court held:

“In the absence of positive showing to the contrary the law indulges the presumption that the accident occurred while the person injured was in the course of his employment. When the employer denies this, the burden is on him to prove that the accident did not take place in the course of employment. He must establish his denial by direct and positive evidence, negative evidence will not suffice.”

In this case the employer offered no direct evidence as to the source of claimant’s injury, and Tatum argues that the Judge of Industrial Claims ignored the legal presumption established in Sanford. We disagree. Sanford simply was not germane.

Sanford involved an accident in which the employee was killed under ambiguous circumstances. The only alternative to his being injured in the course of his employment was that he had been performing personal business instead of his assigned task. On the facts of that case the suggested alternative necessarily involved questions concerning the employee’s state of mind. Since there was no factual basis to choose one alternative over the other, the policies underlying workmen’s compensation dictated the need for a presumption in favor of coverage.

There is a significant difference between Sanford and this case, although a common ground in both is the absence of witness testimony or other corroborative evidence as to the injury being employment-related. Here, unlike Sanford, there was testimonial evidence presented by the claimant as to the time, place and cause of the injury, and the Judge could observe his behavior and demeanor at the hearing. His credibility bore on the determinative fact-resolution function of the judge, whereas a legal presumption was the only available basis on which to resolve the alternative fact possibilities in Sanford. Since the judge was obviously free to believe or disbelieve what he heard, and the case hinged on his choice, there was an adequate record foundation to deny the compensation award without resort to policy-oriented legal presumptions. In this case, therefore, there was no occasion to raise (or require the employer to rebut) the Sanford presumption.

We must sustain the conclusions of the trier of fact in this case and deny petitioner’s request for a writ of certiorari.

OVERTON, C. J., and ROBERTS, BOYD, SUNDBERG and HATCHETT, JJ., concur.

ADKINS, J., dissents.