author:
PER CURIAM.
      ADKINS, J.,

text:
    THE FLORIDA BAR, Complainant, v. Donald J. SHEMWELL, Respondent.
    No. 53615.
    Supreme Court of Florida.
    July 27, 1978.
    Petition for Review Dismissed Nov. 8, 1978.
    Jackson Brownlee, Bar Counsel, Bushnell, and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
   PER CURIAM.

This cause is before us on complaints of The Florida Bar, reports of the referee and petition for review of the recommended discipline filed by The Florida Bar. Respondent Donald J. Shemwell, a member of The Florida Bar, has filed no petition for review.

The complaints charged respondent with mishandling a bankruptcy case, mishandling trust funds, misadvising clients, misrepresenting matters, engaging in improper multiple-representations, failing to execute and forward an agreement to an assignment in a property transaction after promising to do so, and improperly accepting double monthly payments for several months from both the assignor and assign-ee.

Respondent made no appearance at the hearing before the referee. The referee made the following findings of fact as to respondent’s misconduct.

Count I (05A77004)
A. Respondent was a member of The Florida Bar, at the time pertinent to the matters alleged in the Complaint filed in this proceeding.
B. The Respondent was employed by the law firm of Trovillo and Shemwell, P.A., and by its predeceasor [sic], Phil Trovillo, P.A. between January 1974 and March 5, 1976. . . .
C. Respondent overdrew his trust account in the approximate amount of $1,700.00 in 1975. ... He replaced the overdrawn amount, upon demand.
D. All funds in the Law offices were to be deposited in the trust accounts, as an office policy. .
E. Respondent overdrew particular client’s trust accounts. .
F. Respondent paid personal bills out of client trust accounts. .
G. Respondent (while working for the firm) receipted for fees in the amount of $13,795.94 that he failed to deposit to the Firm account, or to otherwise account for. .
H. Respondent represented both parties to certain cases involving dissolutions of marriages. .
I. Respondent mishandled a suit in Bankruptcy. .
J. Respondent accepted, handled and failed to keep proper accounts of client’s funds and employer’s fees collected from client, “Billie Parker”. .
Count II (05A77003)
A. Respondent represented Jim and Claudia Kain in a Bankruptcy matter, for a set fee. .
B. Certain promissory notes, unsecured by any collateral, were sought to be collected by the Barnett Bank, the holder of a note and mortgage emcumbering [sic] the Kain homestead, by refusing to satisfy the mortgage by payment in full based upon prepayment of the outstanding mortgage note (without reference to the unsecured notes).
C. Respondent made several attempts to conclude the matter with Barnett Bank but to no avail. .
D. A complaint was made by the Kains to Respondent’s associate. The associate concluded the matter for an additional fee.
05A77006
A. Respondent, was a member of The Florida Bar at all times pertinent to the matters alleged in this proceeding.
B. Respondent and his wife executed an agreement for deed in favor of LAKCO Citrus, Inc. (later to become Double Eight Land Corporation) agreeing to sell certain lands located in Alachua County, Florida to the Buyer under the terms and conditions contained therein. .
C. Due to the questionable meaning of paragraph 7 of the agreement for deed, the buyer (LAKCO) by and through its attorneys, requested written consent of Sellers to assign the Buyer’s interest to an individual. .
D. Respondent agreed to execute the consent. .
E. The assignment with the consent agreement was furnished to the Respondent, but he (although repeatedly agreeing verbally to executed [sic] the consent) never did so. .
F. Respondent took advantage of the circumstances, partially created by him, to collect and retain double monthly payments by allowing both the assignor and assignee to make payments.
G. When it was discovered by the assignor and assignee that double payments had been made, Respondent did nothing to correct the matter. .
H. Respondent failed to notify either the assignor or assignee of the agreement for deed that he had received such double payments but kept the same and used the funds as his own. .

Relative to Count I, the referee recommends that respondent be found guilty of violating Disciplinary Rules 1-102(A)(4),1-102(A)(6), 5-105(B), 9-102(B)(2), 9-102(B)(3), Code of Professional Responsibility, and Rule 11.02(4), Integration Rule of the Florida Bar relating to trust funds and fees. As to Count II, the referee recommends that he be found guilty of violating Disciplinary Rules 6 — 101(A)(2), 6-101(A)(3), and 7-101(A)(l). In Case No. 05A77006, the referee recommends that respondent be found guilty of violating DR 1-102(A)(4) of the Code of Professional Responsibility and Rule 11.02(3)(a) of the Integration Rule pertaining to standards for moral conduct.

In Cases No. 05A77003 and No. 05A77004, the referee recommends that respondent be suspended from the practice of law for a period of thirty-seven months and thereafter until he shall prove his rehabilitation as provided in Rule 11.10(3), Integration Rule of The Florida Bar. The referee recommends, in Case No. 05A77006, that respondent be suspended for thirty-seven months and thereafter until he proves rehabilitation.

After review of the record and reports of the referee, we hereby approve the findings and recommendation of the referee as to guilt.

The Bar, in its petition for review of the recommended disciplinary measure, requests disbarment of respondent. The referee recommends a thirty-seven month suspension, but such a suspension is not permissible under Rule 11.10 of the Integration Rule, which provides:

[N]o suspension shall be ordered for a specific period of time in excess of three years. .

We find respondent’s misconduct of such magnitude as warrants disbarment rather than suspension.

Accordingly, Donald J. Shemwell is hereby disbarred. The disbarment shall be effective on August 28, 1978, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. The filing of a petition for rehearing shall not alter the effective date of this disbarment. Execution is directed to issue for the costs of these proceedings against the respondent in the amount of $433.50.

It is so ordered.

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

ADKINS, J., dissents with an opinion, with which BOYD and HATCHETT, JJ., concur.

ADKINS, J.,

dissenting.

I would suspend respondent for three years. Under the circumstances disbarment is too harsh.

BOYD and HATCHETT, JJ., concur.

On Motion to Dismiss Petition for Review

On consideration of the motion to dismiss petition for review filed by Complainant,

IT IS ORDERED by the Court that said . motion is granted and the petition for review is hereby dismissed.

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

      . (A) A lawyer shall not:
      (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

      . (A) A lawyer shall not:
      (6) Engage in any other conduct that adversely reflects on his fitness to practice law.

      . (B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).

      . (B) A lawyer shall:
      (2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.

      . (B) A lawyer shall:
      (3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.

      . A lawyer shall not:
      (2) Handle a legal matter without preparation adequate in the circumstances.

      . A lawyer shall not:
      (3) Neglect a legal matter entrusted to him.

      . (A) A lawyer shall not intentionally:
      (1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re FLORIDA BOARD OF BAR EXAMINERS. In re CERTIFIED QUESTION—FELONY CONVICTIONS—FEDERAL YOUTH CORRECTIONS ACT.
    No. 54080.
    Supreme Court of Florida.
    July 27, 1978.
    Jerry B. Crockett, Chairman, Miami, and C. Graham Carothers, Tallahassee, for Florida Board of Bar Examiners.
   PER CURIAM.

The Florida Board of Bar Examiners (the Board) has petitioned this Court for guidance in determining whether persons convicted of a felony under federal law, whose conviction is set aside pursuant to the provisions of the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq. are eligible to apply for admission into the Florida Bar Examination or for admission into The Florida Bar. We have jurisdiction to entertain this petition pursuant to Article V, Section 15, Florida Constitution.

In its petition, the Board notes that it has under consideration an application for admission to The Florida Bar submitted by a person who acknowledges having been convicted of embezzlement of United States mail which is a federal felony. The applicant alleged that he was thereafter placed on probation for one year pursuant to Title 18 U.S.C., § 5010(a), and that his conviction was subsequently set aside under the provisions of Title 18, U.S.C., § 5021(b), otherwise known as the Federal Youth Corrections Act.

The Federal Youth Corrections Act is a congressional enactment which gives the court discretionary power to unconditionally discharge a youthful offender from probation prior to the expiration of the maximum period of probation, thus setting aside the conviction. Federal Youth Corrections Act, 18 U.S.C. § 5021. While the authorities which have entertained the effect of the Act appear disunited on whether it expunges the record of convictions, all authorities seem to concur that the statute provides for the restoration of civil rights. Such conclusion is undoubtedly predicated upon the announced purpose of the bill which is

to make available for the discretionary use of the Federal judges a system for the sentencing and treatment of persons under the age of 22 years who have been convicted of crime in the United States courts that will promote the rehabilitation of those who in the opinion of the sentencing judge show promise of becoming useful citizens and so will avoid the degenerative and needless transformation of many of these young persons into habitual criminals. . . . The underlying theory of the bill is to substitute for retributive punishment methods of training and treatment designed to correct and prevent antisocial tendencies. It departs from the mere punitive idea of dealing with criminals and looks primarily to the objective idea of rehabilitation.

1950 U.S.Code Cong. Service p. 3983.

By this Court’s answers to certified questions in In re Florida Board of Bar Examiners, 350 So.2d 1072 (Fla.1977), we stated that an applicant who is convicted of a crime under the laws of a sister state which results in the deprivation of his civil rights is ineligible for admission into The Florida Bar. We found, however, that such individual shall become eligible for admission into The Florida Bar upon restoration of those civil rights either by the state in which the conviction occurred or by the State of Florida. Elaborating upon this holding we asserted:

Since we have concluded that it is the deprivation of civil rights by the sister state which is determinative of ineligibility, it logically follows that the restoration of civil rights by a sister state by whatever procedure obtains in that state should likewise remove the ineligibility which results from the original deprivation.

350 So.2d at 1073.

We now find this rationale equally apposite where one is divested of his civil rights because he has been convicted of a felony under a federal statute. The applicant who is convicted of a federal offense constituting a felony is ineligible for admission to The Florida Bar unless his civil rights are restored by the federal government by whatever procedure obtains in the federal system or by the Governor of this State and three members of the cabinet pursuant to Article IV, Section 8, Florida Constitution. Because Title 18, U.S.C. § 5021(b) is designed at a minimum to set aside the youth offender’s conviction and to restore his civil rights, we find the order of the United States District Court setting aside the applicant’s conviction sufficient as a matter of law to render the applicant eligible to file an application with the Board for admission into The Florida Bar.

Responding, then, to the question propounded by the Florida Board of Bar Examiners:

A PERSON CONVICTED OF A FELONY UNDER FEDERAL LAW, WHOSE CONVICTION IS SET ASIDE PURSUANT TO THE PROVISIONS OF THE FEDERAL YOUTH CORRECTIONS ACT, 18 U.S.C. § 5006 ET SEQ. IS ELIGIBLE TO APPLY FOR ADMISSION INTO THE FLORIDA BAR EXAMINATION OR FOR ADMISSION INTO THE FLORIDA BAR.

Nothing herein is to be construed as proscribing the Florida Board of Bar Examiners from considering the commission of any crime by an applicant in the overall measurement of character and fitness and weighing it in connection with other evidence of character.

It is so ordered.

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

      . Title 18 U.S.C., § 5021 states:
      “(a) Upon the unconditional discharge by the division of a committed youth offender before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside and the division shall issue to the youth offender a certificate to that effect.
      “(b) Where a youth offender has been placed on probation by the court, the court may thereafter, in its discretion, unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, which discharge shall automatically set aside the conviction, and the court shall issue to the youth offender a certifícate to that effect.”

      . The leading cases suggesting that the record of conviction should be expunged are Tatum v. United States, 114 U.S.App.D.C. 49, 310 F.2d 854 (1962); Mestre Morera v. United States Immigration, 462 F.2d 1030 (1st Cir. 1972). In contrast are United States v. McMains, 540 F.2d 387 (8th Cir. 1976); United States v. Doe, 556 F.2d 391 (6th Cir. 1977); United States v. Heller, 435 F.Supp. 955 (N.D.Ohio 1976).

      . See a communication by this Court dated November 25, 1970, responding to inquiry made by the Florida Board of Bar Examiners and questions posed thereby.


text:
    DUVAL COUNTY SCHOOL BOARD, Appellant, v. Bernardina ARNOLD, Appellee.
    No. HH-126.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1977.
    Dawson A. McQuaig, William Lee Allen and Donald R. Hazouri, Jacksonville, for appellant.
    William H. Maness, Jacksonville, for ap-pellee.
   PER CURIAM.

Upon the reasoning recited in a “Per Curiam” opinion filed in this cause on November 21, 1977, the order here appealed, being an order to show cause issued by a Circuit Court dated August 22, 1977 directing appellant to show cause why it should not be adjudged in contempt of court, is hereby reversed and remanded for further proceedings consistent with the views expressed in said per curiam opinion which has been filed in this case and a copy of which has been furnished to the attorneys for the respective parties, but which will not be published.

BOYER, Acting C. J., and MILLS and ERVIN, JJ., concur.


text:
    Russell Lloyd SMOCK, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-1544 and 77-1957.
    District Court of Appeal of Florida, Second District.
    April 14, 1978.
    Rehearing Denied Aug. 11, 1978.
    Jack 0. Johnson, Public Defender, and Susan G. Sexton, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate reversible error; therefore, the judgment appealed is affirmed.

The only point which merits discussion is the propriety of the appellant’s sentence to confinement “at hard labor.” To be imprisoned “at hard labor” is improper because no existing statute provides for its imposition as a sentence for any offense. Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974).

Remanded for the purpose of striking the language “at hard labor” from the sentencing order; otherwise, affirmed. Appellant need not be present for this purpose.

OTT, Acting C. J., and RYDER and DANAHY, JJ., concur.


text:
    Alberta DANIELS, Petitioner, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF SOCIAL AND ECONOMIC SERVICES, Respondent.
    No. 77-1525.
    District Court of Appeal of Florida, Fourth District.
    June 21, 1978.
    Rehearing Denied Sept. 6, 1978.
    Charles R. Colbrunn of Greater Orlando Area Legal Services, Inc., and Rick A. Culbertson, Orange County Legal Aid, Orlando, for petitioner.
    No appearance for respondent.
   PER CURIAM.

Petition for Writ of Certiorari is hereby DENIED.

CROSS, LETTS and MOORE, JJ., concur.


author: LETTS, Judge.

text:
    Alfred M. KELLY, Appellant, v. Marjorie KELLY, Appellee.
    No. 77-2677.
    District Court of Appeal of Florida, Fourth District.
    June 21, 1978.
    Rehearing Denied Sept. 6, 1978.

      Edna L. Caruso of Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellant.
    Frederick W. Daily, III, West Palm Beach, for appellee.
   LETTS, Judge.

In a 1969 final judgment of divorce, the wife was awarded, custody of the minor children, child support, periodic alimony and “exclusive possession of the home premises for the use of herself and the minor children.” The husband was also required to make all mortgage, tax and insurance payments thereon “during said occupancy.” This judgment, which did not retain jurisdiction to modify the alimony, was never appealed, but the husband, years later, sought modification thereof to: (1) eliminate the periodic alimony and the child support, (2) provide for “equal right to possession of the home” and (3) a reduction of his mortgage, tax and insurance payments by one-half to reflect his one-half ownership as a tenant in common. The court granted the first of these three requests, but denied the other two. We affirm.

We first hold that the court had jurisdiction to modify the alimony award notwithstanding that the final judgment did not so reserve it. This jurisdiction is derived from our reading of Section 61.14(1) of the Florida Statutes, (1977) although this particular statutory provision consists of one long tortuous sentence of over 200 words which is by no means clear. Our conclusion is bolstered by the Second District which has similarly construed the same statute. Cantor v. Cantor, 306 So.2d 596 (Fla. 2d DCA 1975). However, we are not unaware of the Supreme Court ruling in Shaw v. Shaw, 334 So.2d 13 (Fla.1976) which might inferentially hold to the contrary. We would certainly refrain from any ruling contra to the law espoused by our Supreme Court, but are of the opinion that the Shaw case was addressing itself to another issue and never once alluded to the statute cited above.

We next address ourselves to the husband’s argument that “in order for the wife to be entitled to exclusive possession of the marital home there must either be the presence of minor children, a finding of some special equity or an award of lump sum alimony.” We find this statement to be correct with the addition of a fourth criteria recently set forth by Judge Aider-man, namely the presence of some special circumstance, Lange v. Lange, 357 So.2d 1035 (Fla. 4th DCA, opinion filed April 4, 1978). See also Richardson v. Richardson, 315 So.2d 513 (Fla. 4th DCA 1975), Coalla v. Coalla, 330 So.2d 802 (Fla. 2d DCA 1976) and Hazelwood v. Hazelwood, 345 So.2d 819 (Fla. 4th DCA 1977). Notwithstanding that none of the foregoing requirements appear to be present in the case at bar, the exclusive possession in question here was granted by a 1969 judgment which was never appealed. Accordingly, while the trial judge would have the power to modify the judgment under the cited statute and case law, (which he did in part) he is not required to strike down all the contents of the unap-pealed 1969 ruling because it does not comport with more recent decisions.

It is noted that the wording of that original judgment granted the “exclusive possession . . . for the use of herself and the minor children.” True, the children are no longer minors, but the possession was not granted until majority, or for any time certain. Accordingly, we see no reason to read into those words that the wife’s right to possession ceases just Because the children reach majority.

We are next confronted with the argument that it was error for the court to continue to require the husband to make all the mortgage, tax and insurance payments on the house occupied by the wife, yet leave it in the wife’s exclusive possession. However, we cannot find it to be an abuse of discretion. These alimony payments on the house total $136.50 per month out of the husband’s total monthly take-home pay of $584.00, some 23 percent of his income received. The wife, 63 years old, is employed as a secretary in the Legal Aid Society and has a take-home monthly income of $516.00. This, coupled with the house payments, seemingly places her in a better position than her husband; but on the other hand according to the record, when she retires, or has to quit, she will have no pension and her social security at 65 will be no more than $60 per week. Thus, although the award is generous, we cannot find it to be error that the judge did not extinguish all alimony forever.

The husband finally argues that the Court erred in requiring him to make the mortgage payments because they are a form of alimony, a result totally inconsistent with the Court’s finding that he “shall no longer be obligated to make alimony payments to the wife and all alimony payments are henceforth terminated.” We agree that the wording of the order is inartful, but it is obvious that the judge was referring to the CASH alimony payments direct to the wife which he did extinguish. How else could it be interpreted when the very next paragraph of the judgment requires that the mortgage payment be continued? For us to hold otherwise would be to ignore obvious intent and lose sight of common sense.

The remaining point in appeal is found to be without merit.

AFFIRMED.

CROSS and MOORE, JJ., concur.

      . The final judgment did reserve the right to modify the child support.

      . (The lack of clarity centers around the problem of whether the jurisdiction is conferred or whether the ability to modify is contingent on jurisdiction being present.

      . He has no tax to pay because $423 per month is social security and the remaining $161 is from a pension with a zero tax basis.


author: DOWNEY Chief Judge.

text:
    Paul CHAYKA, Sr., Appellant, v. Verna G. CHAYKA, Appellee.
    No. 77-405.
    District Court of Appeal of Florida, Fourth District.
    July 12, 1978.
    Rehearing Denied Aug. 31, 1978.

      S. Joseph Davis, Jr., of Stenstrom, Davis & McIntosh, Sanford, for appellant.
    J. Russell Hornsby of the Law Offices of J. Russell Hornsby, Orlando, for appellee.
   DOWNEY Chief Judge.

The trial court entered a final judgment of dissolution in which, among other things, the wife was awarded the marital home “in recognition of said special equity and or lump sum alimony.” In addition, the court reserved jurisdiction to consider an award of future child support and permanent alimony. The foregoing judicial acts constitute the basis of the appeal by the husband.

The evidence reflects that the parties have two adult daughters who are deaf and retarded. The girls live at Sunland in Gainesville, a State institution; the parents presently are not required to make any contribution for their support. The evidence further shows that the husband is a stockbroker whose present income is $95 per week and the wife is employed as a sales clerk with an income of $110 per week. However, the husband has in other times earned substantially more as a stockbroker and anticipates doing so again.

On this record we believe the trial court did not abuse its discretion in reserving jurisdiction to award child support in the future. We are also of the view that the trial court had authority to reserve jurisdiction to award permanent periodic alimony in the future if the circumstances of the parties should warrant such an allowance. Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Hyatt v. Hyatt, 315 So.2d 11 (Fla. 3rd DCA 1975); Elkins v. Elkins, 287 So.2d 119 (Fla. 3rd DCA 1973).

However, error was committed by the trial court in awarding the marital home to the wife as a special equity and as lump sum alimony. The record is devoid of any evidence to support the award as a special equity. Nor can the award by sustained as lump sum alimony because of the circumstances of the parties. The wife has a demonstrated need, but the husband does not have the present ability to fulfill her needs. The cash which the husband has acquired is necessary to be retained in his brokerage business under his contract with a cooperating brokerage house. Except for the cash used in the husband’s business, the assets of the parties are about equal and the wife’s income is slightly more than the husband’s. Thus, this does not appear to be an appropriate case for an award of lump sum alimony. Rather, the court should have left the parties as tenants in common as to this property.

Accordingly, the provision of the final judgment awarding the wife the marital home as a special equity and as lump sum alimony is reversed and the cause is remanded with directions to leave the parties as tenants in common. In view of this change in the monetary disposition of the case, on remand the trial court may further consider the rights of the parties with reference to the wife’s need for alimony, including the taking of further testimony if the court deems it necessary.

REVERSED AND REMANDED with directions.

DAUKSCH and MOORE, JJ., concur.


author: BLACK, SUSAN H., Associate Judge.

text:
    NATIONAL LIFE INSURANCE COMPANY, Appellant, v. SOUTHEAST FIRST NATIONAL BANK OF MIAMI, Tom W. Conely, III, LaNae McArthur, a minor and Nadean McArthur Huff, Appellees.
    Nos. 77-723 and 77-724.
    District Court of Appeal of Florida, Fourth District.
    July 12, 1978.
    Rehearing Denied Sept. 6, 1978.
    Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellant.
    John A. Gentry, III of Moyle, Gentry, Jones, Flanigan & Groner, West Palm Beach, for appellee-Nadean Huff.
    Tom W. Conely, III, Okeechobee, for ap-pellee-LaNae McArthur.
    Woodrow M. Melvin, Jr., Miami, for ap-pellee-Southeast Bank.
   BLACK, SUSAN H., Associate Judge.

Appellant, National Life Insurance Company, takes its appeal from an interlocutory order denying a motion for attorneys’ fees and costs.

The record reflects that appellant issued a life insurance policy on the life of Charles M. McArthur on August 26, 1964, in the face amount of $100,000 with an additional $100,000 accidental death benefits provision. The appellee, Nadean McArthur, now Nade-an McArthur Huff, owned the policy and was the named beneficiary. The appellee was indicted for the June 10,1973, shooting of her husband, Charles M. McArthur, and to this date there has been no final disposition of the charges.

After the death of Mr. McArthur the appellee, through her attorneys, filed a claim for the benefits under the insurance policy. Whether the claim had been filed was disputed by the appellee, but in the original complaint for interpleader the appellant alleged the filing of the claim, which allegation was admitted in the answer of the appellee.

The appellant, knowing that a beneficiary who murders an insured may not take the proceeds under the insurance policy, filed a complaint for interpleader February 25, 1975, naming as defendants all those who might have a claim to the policy proceeds. All parties answered, with the Defendant-Southeast First National Bank of Miami filing a counter claim and cross claim, Defendant-Nadean McArthur Huff filing a counter claim and/or cross claim and the defendant/guardian of LaNae McArthur filing a cross claim.

The appellant filed a motion for partial summary judgment which was granted with the court ordering the appellant to deposit with the registry of the court the total sum of its liability under the life insurance policy in the amount of $216,800.12. The subsequent motion for determination of attorneys’ fees and costs and entry of a final judgment based thereon was denied, the order denying being the order from which this appeal is taken.

The appellant admitted liability under the double indemnity clause of the policy, filed a complaint for interpleader which was granted, had total disinterest in the disbursement of the policy proceeds other than the desire to have conflicting claims judicially determined, and did nothing to cause the conflicting claims; therefore, on the authority of Miller v. Gulf Life Ins. Co., 148 Fla. 1, 3 So.2d 519 (1941) and Ellison v. Riddle, 166 So.2d 840 (Fla.2d DCA 1964), the order denying attorneys’ fees is hereby reversed and remanded to the trial court with directions for the entry of an award of attorneys’ fees and costs, in a reasonable amount.

REVERSED AND REMANDED with directions.

DAUKSCH and LETTS, JJ., concur.


text:
    Robert BROWNE, Appellant, v. MONUMENTAL PROPERTIES OF FLORIDA, INC., a Florida Corporation d/b/a Society Partk, N. E., Maryland Casualty Company, a Foreign Corporation and James Russell, Appellees.
    No. 77-779.
    District Court of Appeal of Florida, Fourth District.
    July 12, 1978.
    Rehearing Denied Sept. 6, 1978.
    Eric A. Lanigan of Maher & Overchuck, Orlando, for appellant.
    J. Scott Kirk and John W. Bussey, III, of Smalbein, Eubank, Johnson, Rosier & Bus-sey, Orlando, for appellees.
   BLACK, SUSAN H., Associate Judge.

Appellant, Robert Browne, takes his appeal from a Final Summary Judgment.

The court erred in granting the summary judgment as there was a substantial question of fact raised by the affidavit of Curtis Lee Elder, Jr. The affidavit raised a factual question of the appellee’s knowledge of the violent propensities of it’s employee as discussed in Mallory v. O’Neil, 69 So.2d 313 (Fla.1954).

REVERSED AND REMANDED.

DAUKSCH and LETTS, JJ., concur.


author: MILLS, Judge. ERVIN, Judge,

text:
    Eugene PEGUES, Appellant, v. STATE of Florida, Appellee.
    No. FF-396.
    District Court of Appeal of Florida, First District.
    July 14, 1978.
    Rehearing Denied Aug. 31, 1978.

      Joseph D. Lorenz of Lorenz, Lungstrum & Heflin, Fort Walton Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   MILLS, Judge.

A jury convicted Pegues of grand larceny of a motorcycle as charged and he was sentenced to three years imprisonment. He appeals contending there was a fatal variance between the allegations of the information and the proof at trial, the removal of the motor from the frame of the motorcycle by the police the day after impoundment prejudiced his defense, the evidence was insufficient to support the verdict, the court erred in giving the standard criminal jury instruction appearing on page 179 of Florida Standard Jury Instructions In Criminal Cases, Second Edition, fundamental error was committed when the State’s witnesses commented that after his arrest he made no further statement after advising he wished to call an attorney, and when the court, prior to the start of the State’s case, asked his counsel if he wished to swear his client, and the court erred in sentencing him, a first felony offender, without first obtaining a presentence investigation report.

Hagler borrowed a motorcycle from Pe-gues on which the side cover to the engine was black. He had no trouble starting it and drove it to school, stopping and starting it several times. A motorcycle belonging to Gurley had been stolen several days before. Herbert saw Hagler drive up to the school on Pegues’ motorcycle and recognized the headlights as those of Gurley’s stolen motorcycle. Herbert notified Gurley and together they reported the matter to the principal who notified the police.

Pegues arrived at the school to pick up his motorcycle at about the time the police arrived. The motorcycle appeared to be his but upon close examination of the motorcycle, he realized the engine was all silver, whereas the motor on his motorcycle had a black side cover. He also noticed that about four bolts were missing and was of the opinion that if the engine had been started in this condition, it would have done a complete flip. The registration certificate on the stolen Gurley motorcycle showed a frame serial number different from that which was on the Pegues motorcycle, however, the engine number on the Pegues motorcycle matched the engine number shown on the bill of sale on the stolen Gurley motorcycle. The police informed Pegues that the motor was stolen and impounded the motorcycle. The motor was removed the next day for dusting for fingerprints.

At the trial, witness Revira stated that Pegues worked on the motorcycle at his home and during this time Pegues told him that he had stolen the parts he was putting on the motorcycle. Witnesses identified the motor, seat, headlight, front wheel and handle bars as being from Gurley’s motorcycle.

Pegues argues that the evidence presented by the State concerned only motorcycle parts and that the State failed to present evidence that he either stole or was in possession of the motorcycle which the information charged was stolen by him. Thus, there was a fatal variance between the charge and the proof.

Not so. Pegues was charged with stealing a motorcycle and the evidence shows that he was found in possession of the motor, seat, headlight, front wheel and handle bars. Possession of these stolen parts is sufficient evidence that he stole the motorcycle. Lasher v. State, 80 Fla. 712, 86 So. 689 (1920). Even if there was a variance between" the charge and the proof, the vari-anee was not fatal because Pegues was not misled or embarrassed in preparing and presenting his defense.

Pegues contends that the motor found on the motorcycle was placed there after it was loaned to Hagler and that it was poorly done, therefore, it would not start, but this vital evidence was denied him because the police removed the motor the day after impounding the motorcycle.

Although the motor was removed, it was not destroyed and Pegues was not denied access to the motor and the frame. The motor was removed for the purpose of dusting for prints. This was a legitimate purpose and proper police action. It could have benefited Pegues. Pegues was not precluded from submitting his testimony concerning this defense and he did. The jury rejected it.

The jury chose to believe the evidence adduced by the State and chose to reject the evidence adduced by Pegues. This the jury had the right to do. The evidence which is fully discussed in this opinion is sufficient to support the verdict. Further discussion on this point is deemed unnecessary.

The court did not err in giving the standard criminal jury instruction appearing on page 179 of Florida Standard Jury Instruction In Criminal Cases, Second Edition. If a jury believes that property in the possession of a defendant is the same as that with which the defendant was charged with stealing, the verdict of guilty may be based upon the unexplained possession of the stolen property. The possession of stolen parts may support a conviction for stealing the entire vehicle. In this case, the inference is that Pegues stole the motorcycle because he possessed a substantial portion of the motorcycle. Possession of recently stolen property was proved by Pe-gues who testified that all of the impounded motorcycle except the motor was his.

Two officers stated that after Pe-gues was given the Miranda warning, he informed them he wished to. call his attorney and made no further statements. Pe-gues made no objection to this interrogation by the State. Pegues now contends this constitutes fundamental, harmful error of constitutional dimension which requires reversal. We do not agree. We decline to follow the decision in Collins v. State, 340 So.2d 516 (Fla. 4th DCA 1976). A defendant should not be allowed to take a chance on a not guilty verdict by not objecting, then if he is found guilty, to raise constitutional claims on appeal. We adopt the logic and reasoning set forth in Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976). An objection should have been made in this case to preserve the point on appeal. Pe-gues not only failed to object but he otherwise received a fair trial. Under these circumstances, a reversal is not in order.

Pegues likewise contends the remark by the trial court prior to the start of the case, “do you want to swear your client,” was fundamental error. Once again, Pegues failed to object. We are of the view that an objection is necessary to preserve the point here. Where no objection is made and a fair trial received, reversal is unnecessary.

The trial court erred in sentencing Pegues, a first felony offender, without first obtaining a presentence investigation report. Fla.R.Crim.Proc. 3.710. Under the facts of this case, the court was required to receive and consider a presentence investigation report prior to sentencing. Beverly v. State, 330 So.2d 527 (Fla. 1st DCA 1976).

We affirm in part and reverse in part. We vacate the sentence and remand this case to the trial court with instructions to obtain and consider a presentence investigation report on Pegues and then to resen-tence him.

BOYER, Acting C. J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

I dissent from that portion of the opinion of this court as applied to Point VII. It has been held many times that comment upon an accused’s exercise of his right to remain silent is reversible error without regard to the harmless error doctrine. Bennett v. State, 316 So.2d 41 (Fla. 1975); Shannon v. State, 335 So.2d 5 (Fla. 1976); Lucas v. State, 335 So.2d 566 (Fla. 1st DCA 1976); Collins v. State, 340 So.2d 516 (Fla. 4th DCA 1976). I would reverse and remand for new trial.


author: GRIMES, Chief Judge.

text:
    Vincent CARONE, Appellant, v. STATE of Florida, Appellee.
    No. 78-432.
    District Court of Appeal of Florida, Second District.
    July 14, 1978.
    Rehearing Denied Aug. 10, 1978.
    John M. Edman, of Meros, Coit, Edman, Meros & Smith, P.A., St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Chief Judge.

The appellant was charged with conspiracy to possess more than 100 pounds of marijuana. He filed several motions to dismiss which were denied. He then pled nolo contendere and reserved the right to appeal the denial of his motions.

For purposes of the motions to dismiss, the appellant conspired with others in Florida to obtain a large quantity of marijuana from Colombia which would be brought to the United States. The appellant gave one of his confidantes $150,000 with which to make an initial payment in Colombia. The appellant made an additional payment for the marijuana to an undercover agent in Pinellas County. The marijuana was transported to Michigan where it was seized. The marijuana was never within the State of Florida, nor was there any evidence that the appellant intended to bring any of the marijuana into the State of Florida.

Appellant contends that since he could not be convicted in Florida of the crime of possession of marijuana, he could not be convicted in Florida of conspiracy to possess the marijuana. Appellant’s contention is laid to rest by the provisions of Section 910.005(l)(d), Florida Statutes (1977), which states:

910.005 State criminal jurisdiction.—
(1) A person is subject to prosecution in this state for an offense that he commits, while either within or outside the state, by his own conduct or that of another for which he is legally accountable, if:
(d) The conduct within the state constitutes an attempt or conspiracy to commit in another jurisdiction an offense under the laws of both this state and the other jurisdiction.

The same result has been reached by other states without the benefit of a statute because the gravamen of the offense of conspiracy is deemed to be the combination and agreement. State v. Pooler, 141 Me. 274, 43 A.2d 353 (1945); State v. Davis, 203 N.C. 13, 164 S.E. 737 (1932). See W. LaFave & A. Scott, Criminal Law, Sec. 17, p. 121 (1972).

This is not a case in which one cannot be convicted of conspiracy to commit a substantive offense because the substantive offense is not a crime. See State v. Coleman, 131 Fla. 892, 180 So. 357 (1938). Possession of marijuana is a crime both in Florida and in Michigan.

AFFIRMED.

SCHEB and RYDER, JJ., concur.

      . Appellant was also charged with possession of more than 100 pounds of marijuana, but this charge was later dismissed.


author: RYDER, Judge.

text:
    Leroy RITCHEY and Dorothy Ritchey, Appellants, v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., a Delaware Corporation, Appellee.
    No. 78-40.
    District Court of Appeal of Florida, Second District.
    July 19, 1978.
    Rehearing Denied Aug. 10, 1978.
    William H. Shields and Michael A. Gen-naro, of Pavese, Shields, Garner, Haverfield & Kluttz, Fort Myers, for appellants.
    Gerald W. Pierce, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appel-lee.
   RYDER, Judge.

Appellants Leroy and Dorothy Ritchey decided to sell 500 shares of United Utilities of Kentucky common stock owned by Mr. Ritchey to pay medical expenses. As they were uncertain of the exact value of the stock, Mrs. Ritchey telephoned an employee of appellee, Merrill Lynch, a stock brokerage firm, and inquired whether Merrill Lynch could arrange a sale of the stock. Mrs. Ritchey described the shares to be sold and read the name and type of stock from the certificates to the employee. The employee informed the Ritcheys he would call back the next day on the stock, which he did, and quoted to the Ritcheys the selling price. After a short conference, the Rit-cheys agreed to sell at the quoted price and were told by the employee to deliver the certificate to the Merrill Lynch office.

Three days later Mr. Ritchey delivered the certificate to the employee who handed it over to a secretary who, in turn, executed a receipt for the certificate and gave that to Mr. Ritchey. Shortly thereáfter, he received a check in the amount of $11,229.74, representing the proceeds of the sale less a broker’s commission and tax.

A little over a month passed and the Ritcheys were contacted by a representative of Merrill Lynch seeking a refund of the sale proceeds and offering to return the Ritcheys’ stock. Merrill Lynch had contemplated a transaction in Kentucky Utilities common stock instead of one involving the United Utilities of Kentucky common stock delivered by the Ritcheys. The Ritcheys refused.

Thereafter, Merrill Lynch filed suit seeking rescission of the transaction. After answer and affirmative defenses by the Rit-cheys, Merrill Lynch moved for a summary judgment. The court granted the motion and ordered rescission of the transaction involved, less an amount in favor of the Ritcheys to offset their expenses.

The Ritcheys appeal contending that a genuine issue of material fact remains to be resolved: viz. whether the mistake was unilateral and a result of lack of due care by Merrill Lynch’s employees, thus precluding rescission.

We find that the appellants’ contention has merit. Where the existence of a genuine issue of material fact appears in the record, the case must be referred for a proper determination of issues of fact and credibility. Williams v. Caterpillar Tractor Co., 149 So.2d 898 (Fla.2d DCA 1963). A finding that the Ritcheys were not aware of the error and that the mistake was fully due to the inexcusable negligence of Merrill Lynch may preclude the equitable remedy of repayment. Maryland Casualty Co. v. Krasnek, 174 So.2d 541 (Fla.1965).

The Ritcheys are entitled to an opportunity to present evidence on this issue. Accordingly, the summary judgment is reversed and the case is remanded to the trial court for further proceedings consistent herewith.

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


text:
    Joseph Anthony SOUTHCOTT, Appellant, v. STATE of Florida, Appellee.
    Nos. II-108, II-163.
    District Court of Appeal of Florida, First District.
    Aug. 1, 1978.
    Rehearing Denied Sept. 6, 1978.
    Charles B. Lembcke of Datz, Jacobson & Lembcke, P. A., Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant, defendant in the trial court, appeals in Case No. 11-163 from his conviction of aggravated assault and in Case No. 11-108 from an order revoking his probation on a prior conviction of larceny. Having heard oral argument following consideration of the briefs and record, we find that appellant has failed to demonstrate error. Accordingly, the judgment and sentence entered after the plea of nolo contendere to the crime of aggravated assault, with right reserved to appeal, in Case No. 11-163 is affirmed. Likewise, the order revoking probation in Case No. 11-108 is affirmed.

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


text:
    BREEZY BAY, INC., Appellant, v. INDUSTRIA MAQUILADORA MEXICANA, S. A., Appellee.
    No. 77-2041.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 1978.
    Bass & Stillman, Fort Lauderdale, for appellant.

      Arango & Galarraga, and Jorge Sanchez-Galarraga, Coral Gables, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Defendant, Breezy Bay, Inc., appeals a final judgment in favor of plaintiff, Indust-ria Maquiladora Mexicana, S.A. (IMM), in an action to recover on an account stated.

IMM and Breezy Bay had been engaged in a continuing business relationship whereby Breezy Bay would ship raw materials to IMM in Mexico in order to manufacture them into finished garments in styles chosen by Breezy Bay. IMM would provide the necessary labor and after the garments were completed, it would ship them to Breezy Bay. In August, 1975 IMM, alleging that Breezy Bay owed it $14,887.60 as reflected in five invoices for labor performed, filed the instant action to recover thereon. Included in this total was an invoice for $2,856 for garments which were destroyed by a fire at IMM’s place of business after they had been manufactured but before they were shipped. Breezy Bay filed an answer set off and counterclaim for the garments destroyed by the fire and for certain machinery it sold to IMM. The cause was tried non-jury and upon conclusion, the trial court entered judgment for IMM for $10,572.10. Breezy Bay appeals.

For the first point on appeal, Breezy Bay contends the court erred in admitting into evidence the five invoices for labor performed sent to Breezy Bay by IMM in that the conditions therefor as provided by Section 92.36(2), Florida Statutes (1977) were not met. We cannot agree.

First, two of the five invoices were stipulated to by Breezy Bay. Second, IMM’s representative testified that he had personal knowledge of the amount of garments that were shipped according to the invoices; that the invoices accurately reflected the amount of pieces that were sent to Breezy Bay; the original invoices were sent to Breezy Bay which never communicated that they were incorrect either in writing or orally. We, therefore, find that the trial court correctly found a proper foundation had been laid for the reception of the invoices. See Mastan Company v. American Custom Homes, Inc., 214 So.2d 103 (Fla. 2d DCA 1968). In addition, Breezy basically did not quarrel with the amount of the invoices; but instead argued it was entitled to a set off as a result of the garments destroyed by the fire and machinery sold to IMM. Thus, Breezy Bay impliedly admitted to the correctness of the amounts of the invoices. See Federated Dept. Stores, Inc. v. Antigo Indus., Inc., 297 So.2d 591 (Fla. 3d DCA 1974).

Breezy Bay also urges as error the denial of its motion for directed verdict. We find this point lacks merit because the record reflects stipulations as to the fact that the original invoices were sent to Breezy Bay and Breezy Bay received the garments shipped with the exception of those destroyed. Thus, IMM made out a prima facie case.

As another point on appeal, Breezy Bay argues that the trial court erred in finding that the risk of loss for the destroyed garments fell upon it.

Breezy Bay’s argument that IMM is liable for the loss of the garments destroyed under Section 677.204, Florida Statutes (1977) [warehouseman’s liability] or under Section 672.509, Florida Statutes (1977) [risk of loss between seller and buyer] is untenable because the relationship between Breezy Bay and IMM simply does not fall under either one of these categories. We conclude that the trial court was correct in holding Breezy Bay liable for the risk of loss under the law of common law bail-ments inasmuch as IMM presented evidence to the effect that it did not breach its duty of ordinary care. See Parker v. Miracle Strip Boat & Motors Hdqtrs., 341 So.2d 197 (Fla. 1st DCA 1977).

We also considered Breezy Bay’s remaining points on appeal and find no reversible error has been made to appear.

Affirmed.


text:
    Jerry FRANKLIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-1319.
    District Court of Appeal of Florida, Second District.
    Aug. 9, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate reversible error; therefore, the judgment appealed is affirmed.

The only point which merits discussion is the propriety of the appellant’s sentence to confinement “at hard labor.” To be imprisoned “at hard labor” is improper because no existing state statute provides for its imposition as a sentence for any offense. Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974).

Remanded for the purpose of striking the language “at hard labor” from the sentencing order; otherwise, affirmed. Appellant need not be present for this purpose.

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


text:
    Paul Hayward KOWALSKY, Appellant, v. STATE of Florida, Appellee.
    No. 78-423.
    District Court of Appeal of Florida, Second District.
    Aug. 9, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

In this case, the trial judge adjudicated appellant guilty of reckless driving, fleeing a police officer, and aggravated assault. He then imposed a sentence of three years imprisonment. We affirm the judgment, but we agree with appellant that his sentence contains two infirmities.

The three-year sentence is an illegal general sentence. Dorfman v. State, 351 So.2d 954 (Fla.1977); Darden v. State, 306 So.2d 581 (Fla. 2d DCA 1975). Also, the phrase “at hard labor” in the present sentence is improper. Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974). Therefore, we remand for resentencing and appellant need not be present for this purpose.

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


text:
    W. D. LITTLE, Jr., M.D., et al., Petitioners, v. Gail SMELTZER and Barry R. Smeltzer, her husband, Respondents.
    No. 78-1307.
    District Court of Appeal of Florida, Second District.
    Aug. 9, 1978.
    William D. Slicker of Lyle, Skipper, Wood & Anderson, St. Petersburg, for petitioner.
   PER CURIAM.

We deny the petition for writ of certiora-ri without prejudice to the right of petitioner to seek review of the matters contained therein by way of an appeal from the final judgment. Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); Wright v. Sterling Drugs, Inc., 287 So.2d 376 (Fla. 2d DCA 1973).

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


author: BOYER, Judge.

text:
    PERRY BUILDING SYSTEMS, INC., Appellant, v. HAYES & BATES, INC., Appellee.
    No. HH-257.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1978.

      Paul B. Erickson of Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, for appellant.
    A. W. Nichols, III, Palatka, for appellee.
   BOYER, Judge.

We here review by interlocutory appeal an order relating to venue. Few topics have been the subject of as much litigation.

F.S. 47.051 provides three venue alternatives when a domestic corporation is the defendant. It is the prerogative of the plaintiff to select the venue and so long as that selection is one of the alternatives provided by the statute the plaintiff’s selection will not be disturbed. The plaintiff should allege in the complaint a sufficient basis for the venue selected. But the burden is upon the party challenging venue to demonstrate by affidavit or sworn pleading that the plaintiff’s selection is contrary to the statutory privilege.

Appellee Hayes, plaintiff in the trial court, brought its action in Putnam County, the place of its business. Defendant Perry, appellant here, has its sole place of business in Palm Beach County. There is no property in litigation, therefore in order for venue to be properly laid in Putnam County it is necessary that the cause of action have accrued there. No liquidated debt is involved therefore the principle of law that the debtor must seek the creditor and that the cause of action accrues where the creditor resides is not applicable. The complaint alleges a breach of contract by which the defendant in Palm Beach County agreed to furnish to the plaintiff in Putnam County mobile homes which were to be sold by the plaintiff. The defendant wrote a letter in Palm Beach County and mailed it to the plaintiff in Putnam County informing the plaintiff that the defendant was “cancelling all Dealer Agreements”. The issue, then, is where was the contract breached because the place of breach is the place of accrual of the cause of action.

Appellee relies heavily on Coggin Pontiac, Inc. v. Putnam Auto Sales, Inc., supra, but that reliance is misplaced. The cause of action there was based upon tort rather than breach of contract as is the case sub judice. In tort actions the cause of action accrues where the tort occurs.

Normally, in actions ex contractu the cause of action accrues where the act of default occurs. When there is an express promise to pay a sum of money and no place of payment is stipulated the debtor should seek the creditor unless otherwise provided, and in such cases the default consists of the failure to pay the money at the creditor’s residence or place of business. Since the cause of action accrues in such cases where the default occurs venue is in the county where the creditor has its place of business. However that principle is applicable only to cases where the default consists simply of an omission to pay a certain sum of money which is due or already earned.

In the Mendez case, supra, the parties entered into a written construction contract for work to be performed in Collier County. The contract fixed no place for venue nor did it mention the place where payments were to be made. After a major part of the work had been done and payment had been received, the owner unilaterally renounced and repudiated the partially completed contract. Under those circumstances our sister court of the Fourth District held that the breach consisted of the act of the defendant (George Hunt, Inc.) in renouncing and refusing to further recognize the partially completed contract, and that the cause of action accrued where that breach occurred. The contract in the Mendez case was entered into in Collier County and the contract was to be performed in that county. The plaintiff (Mendez) was a resident of Seminole County and the defendant’s principal place of business was in Pinellas County. Holding that the trial court correctly ruled that the plaintiff improperly claimed venue in Seminole County, the plaintiff’s county of residence, the appellate court said:

“ * * * In the case at hand the gravamen — the breach — consists of the act of the defendant, George Hunt, Inc., in renouncing and refusing to further recognize the partially completed contract. This act occurred in Collier County and, thus, the cause of action accrued there.” (191 So.2d at page 481)

Likewise, in the case sub judice, the breach consisted of the act of Perry in renouncing and refusing to further honor its contract. That renunciation and refusal occurred when it wrote the letter in Palm Beach County cancelling the agreement.

Another analogous case is A1 Stone Plumbing, Inc. v. Colonial Leasing Company of New England. In that case a foreign corporate lessor of a machine leased the machine to a Florida corporation having its office and place of business in Pinellas County. Two days after the lease was entered into the lessee renounced the lease and so notified the lessor. The appellate court, reversing the trial court’s refusal to grant a motion to transfer venue to Pinellas County, tersely stated:

“ * * * The default, if there was a default, occurred when the Pinellas County defendant renounced the contract there * * * ”

The motion of the defendant for a transfer of venue should have been granted.

Reversed and remanded for further proceedings consistent herewith.

McCORD, C. J., and MELVIN, J., concur.

      . We are not here concerned with F.S. 47.122 relating to convenience of the parties, nor F.S. 47.061 relating to suits on promissory notes. Neither is the state nor one of its boards, subdivisions or agencies involved. See Ringling Bros. etc. v. State of Florida, etc., 295 So.2d 314 (Fla. 1st DCA 1974) cert. den. 303 So.2d 644. It is also important to note that we are here concerned with venue, not jurisdiction. See Ringling Bros. etc. v. State of Florida, etc., supra.

      . See Mendez v. George Hunt, Inc., 191 So.2d 480 (Fla. 4th DCA 1966) and James A. Knowles, Inc. v. Imperial Lumber Co., 238 So.2d 487 (Fla. 2nd DCA 1970).

      . Permenter v. Bank of Green Cove Springs, 136 So.2d 377 (Fla. 1st DCA 1962) and Coggin Pontiac, Inc. v. Putnam Auto Sales, Inc., 278 So.2d 647 (Fla. 1st DCA 1973).

      . F.S. 47.051 provides in material part:
      “Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.”

      . Mendez v. George Hunt, Inc., supra.

      . Referred to as a “Dealer Agreement”.

      . Coggin Pontiac, Inc. v. Putnam Auto Sales, Inc., supra.

      . Mendez v. George Hunt, Inc., supra.

      . 254 So.2d 557 (Fla. 3rd DCA 1971).

      .See footnote 1. 254 So.2d at page 559.


author: HOBSON, Judge.

text:
    Ernest C. BOURNE, a/k/a Ernest C. Bourne, Jr., and Bourne & Co., a Florida Corporation, a/k/a Bourne and Company, Appellants, v. BARNETT NATIONAL BANK OF ST. PETERSBURG, N. A., a National Banking Corporation, Appellee.
    No. 77-80.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 1978.

      George N. Meros and John M. Edman of Meros, Coit, Wells, Edman & Meros, St. Petersburg, for appellants.
    Joseph W. Gaynor of Jacobs, Robbins & Gaynor, St. Petersburg, for appellee.
   HOBSON, Judge.

We have had this case under consideration for an unusual amount of time because we felt that there was a very close question as to whether or not there was a genuine issue of fact with respect to the appellants’ affirmative defense of novation. The trial court in this cause entered partial summary judgment on two counts of a three-count complaint filed by the appellee. In the same partial summary judgment it disposed of the appellants’ counterclaim and affirmative defenses.

On July 26, 1978, this court rendered its decision in Pena v. Tampa Federal Savings and Loan Association, et al., Case No. 77-1427, wherein it wa# held that the Florida Rules of Civil Procedure, unlike the Federal Rules of Civil Procedure, do not permit entry of a final summary judgment until the entire case is resolved.

In this case the third count of the complaint is still pending and, therefore, no final judgment has been entered. Under Pena, supra, when the entire case has been finally determined, the partial summary judgment herein sought to be reviewed shall be considered as interlocutory and will be subject to review upon any appeal from the final judgment. Under these circumstances we, therefore, find it necessary to reverse on the authority of Pena.

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


text:
    STATE of Florida ex rel. Larry MILTON, Petitioner, v. Honorable J. Tim STRICKLAND, as Circuit Judge of the Tenth Judicial Circuit, Respondent.
    No. 78-767.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 1978.
    Jack 0. Johnson, Public Defender, P. Douglas Brinkmeyer and Jon J. Hall, Asst. Public Defenders, Bartow, for petitioner.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for respondent.
   GRIMES, Chief Judge.

Larry Milton has filed a petition with this court seeking to prohibit the court below from trying him on a charge of manufacturing a controlled substance.

After the information was filed Milton moved to suppress certain evidence. The motion was denied. Pursuant to plea negotiations Milton then appeared before the court and entered a plea of nolo contendere. According to the bargain, Milton was to be placed on probation for a period of three years. The court would determine the extent of the costs to be imposed and whether Milton was to be adjudicated after receipt of a PSI. During the colloquy the court asked whether Milton intended to reserve the right to appeal the denial of the motion to suppress. Milton’s attorney indicated that he did wish to appeal this point, and the court made no further observation on that subject. After establishing a factual basis and determining that the plea was freely and voluntarily made, the judge stated that he would accept the plea “for PSI the disposition to be within the perimeters of the negotiation discussed.”

At a later sentencing hearing the judge indicated his dissatisfaction with the reservation of the right to appeal. The judge expressed the opinion that pursuing an appeal was inconsistent with acknowledgment of guilt which is a first step toward the rehabilitation implicit in the sentence of probation. At this point he rejected the plea bargain and gave Milton the option to either plead guilty (thereby waiving the right to appeal) and receive the sentence contemplated by the bargain or to withdraw his plea. Milton declined to plead guilty, so the case was set for trial. Upon the filing of this petition our court issued an order to show cause which had the effect of staying further proceedings.

No one suggests that the judge was obligated to accept the negotiated nolo conten-dere plea. Nevertheless, from a careful reading of the record of the first hearing, it seems clear that he did accept this plea, and it was conditioned on the reservation of the right to appeal. Evidently the judge’s desire that Milton forego his right of appeal resulted from a change of philosophy which occurred between the taking of the plea and the sentencing. The judge, himself; observed that the day he took the plea was only his fifth day on the felony criminal bench.

Our deliberations have been facilitated by the fact that our sister court has recently answered all of the questions posed in this case. In State ex rel. Wilhoit v. Wells, 356 So.2d 817 (Fla. 1st DCA 1978), the judge had also accepted certain nolo contendere pleas pursuant to a plea bargain. Later, because of dissatisfaction on the part of the defendant’s victims, the court entered an order rejecting the previously tendered pleas, reinstating the defendant’s previous not guilty pleas and setting the cases for trial. The defendant sought prohibition in the district court of appeal.

The court first held that once a plea has been accepted, the court no longer has the power to reject the plea over the defendant’s objections. However, the court also held that the sentencing function is so uniquely judicial that it cannot be bargained away even by the trial judge. Thus, even though a bargained plea has been accepted, the judge may still impose a greater sentence. Writing for the court Judge Smith said:

Until sentence is pronounced, the trial court maintains power to impose any sentence authorized by law; and, though the sentencing judge may be conscience-bound to perform his own prior agreements with counsel and the parties, the court is not in law bound to impose a sentence that once seemed, but no longer seems, just and appropriate. Where as here a nolo contendere or guilty plea is tendered in reliance on the court’s expression of sentencing intentions, and the plea is accepted, the sentencing judge must grant the defendant a clear opportunity to withdraw the plea if the judge cannot in conscience impose the sentence indicated; but that is the limit of the trial court’s obligation. .

In reaching the same conclusion with respect to a bargained guilty plea in Davis v. State, 308 So.2d 27 (Fla.1975), our supreme court said:

We come now to the problem sub judice: when a judge who has participated in or tentatively approved a plea bargain decides not to include the concessions contemplated therein in his final disposition of the case and affirmatively offers the defendant the opportunity to withdraw his guilty plea, may the defendant refuse to withdraw his plea on the ground that the plea bargain is a specifically enforceable contract? We think not. It is our view that, even if the trial judge’s indication of leniency is the only inducement a defendant has in pleading guilty, the court is not bound by it. If for any reason the plea bargain is not carried out, the defendant has two alternatives: (1) he may withdraw his plea and proceed to a disposition of the matter without any of his admissions, statements, or other evidence given in the plea negotiations being used against him; or (2) he may agree to proceed with the guilty plea without being bound by any conditions or agreements. The result is that, if the trial judge decides not to fulfill the tentative plea agreement, the case is returned to the position it was in prior to the plea negotiations, thereby imposing no unfair disadvantage on a defendant.

When these principles are .applied to the instant case, it appears that the court could not reject the previously accepted plea or insist that the plea be changed to guilty in order to prevent Milton from exercising his right to appeal. Rather, the court should simply proceed to impose the sentence. If the sentence is not in accordance with the bargain, Milton must be offered the opportunity to withdraw his plea and the case should be set for trial.

The petition is granted to the extent that the trial court is prohibited from rejecting the previously accepted nolo contendere plea. The petition is otherwise denied.

HOBSON and RYDER, JJ., concur.


text:
    Secundino ABUT, Appellant, v. CITY OF MIAMI BEACH, a political subdivision of the State of Florida, Frank Aymonin, as Director of Zoning and Public Works Director of the City of Miami Beach, Florida, and Terco Properties of Miami Beach, Inc., Trustee, Appellees.
    No. 77-2015.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.
    Smith, Mandler, Smith, Werner & Jaco-bowitz, Jeffrey A. Sarrow and Steven R. Brownstein, Miami Beach, for appellant.
    Joseph A. Wanick, City Atty. and Andrew H. Moriber, Asst. City Atty., for ap-pellees.
    Before PEARSON and KEHOE, JJ., and PIERCE, WILLIAM C. (Ret.), Associate Judge.
   PER CURIAM.

This appeal from an order quashing alternative writ of mandamus is affirmed upon authority of the rule stated in Green v. Walter, 161 So.2d 830, 834 (Fla.1964).


text:
    Anna BILLINGS et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 77-2441.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.
    Horton, Perse & Ginsberg and Edward A. Perse; George P. Telepas, Miami, for appellants.
    Spencer & Taylor and W. Thomas Spencer, Miami, for appellee.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed on the authority of State Farm Mutual Automobile Insurance Co. v. Diem, 358 So.2d 39 (Fla.3d DCA 1978).


text:
    Bonnie WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2481.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.
    Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Bernhardt v. State, 288 So.2d 490 (Fla.1974); Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947); Randolph v. State, 292 So.2d 374 (Fla.3d DCA 1974); Singletary v. State, 290 So.2d 116 (Fla.4th DCA 1974); Franklin v. State, 226 So.2d 461 (Fla.2d DCA 1969); and McNeely v. State, 186 So.2d 520 (Fla.2d DCA 1966).


text:
    Eskar L. POCHE v. Vivian Louise Poche JENKINS (Hutchinson).
    No. 60670.
    Supreme Court of Louisiana.
    Jan. 27, 1978.
   In Re: Application for rehearing as to action December 8, 1977, on motion to lift stay order issued on September 22, 1977.

PER CURIAM.

The plaintiff husband was granted a stay order of a change of custody of his child, pending appellate review, by this court, which acted on the plaintiff’s application for supervisory writs. The defendant wife applies for a rehearing as to our action of December 8, 1977, which conditionally continued the stay order and denied her motion to rescind it.

While the application for rehearing was pending, the plaintiff husband filed in this court pleadings showing that his appeal was dismissed as moot, due to the emancipation by marriage of the child whose custody is contested. The plaintiff husband indicates that his request for supervisory relief is moot.

Accordingly, rehearing is granted, and our stay order is rescinded.


author: TATE, Justice

text:
    Mrs. Lillian Schon SMALL v. S. (Samuel) Sanford LEVY, Presently sitting as Judge, Division “D” of the Civil District Court for the Parish of Orleans, State of Louisiana.
    No. 61945.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Mrs. Lillian Schon Small applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 355 So.2d 643.

Writ denied.

TATE, J., dissents from denial and assigns reasons.

DIXON, J., dissents from the denial for the reasons stated in the dissent by Tate, J.

TATE, Justice

(dissenting from denial of review).

In my opinion, the lower courts were in error in dismissing this suit, for the reasons assigned by the dissenting opinion in the court of appeal, 355 So.2d 643, 651 (La.App. 4th Cir. 1978). On the merits, the 1960 amendment to the constitution of 1921 permitting judges “now serving” (i.e., in 1960) to serve beyond seventy-five years of age (under certain conditions) , does not apply to the respondent judge, who first took judicial office in 1964. This provision of the 1921 constitution was continued as a statute by Article XIV, Section 16(A)(5) of the 1974 constitution; however, the constitution’s language specifically provided that it was continued as a statute “but restricted to the same effect as on the effective date of this constitution”, i.e., January 1, 1975.

In reaching this conclusion, I do so fully acknowledging the distinguished past and present service of the respondent judge and that his physical and intellectual vigor are that of a man at least two or three decades younger than his chronological age of seventy-six or so. If he is forced to retire by reason of the constitutional mandate, I would hope that the judicial system could continue to utilize his service as an assigned judge, if he is willing to accept such assignment.

Accordingly, I regretfully but respectfully dissent from the denial of review.

      . The purpose was to permit those judges to retain certain retirement rights by service past seventy-five, which were terminated by the I960 amendment and would not apply to judges subsequently elected.


author: STOULIG, Judge. PER CURIAM.

text:
    Renee Iris Blache Lulich, wife of John LULICH, Jr. v. John LULICH, Jr.
    No. 9341.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Order July 11, 1978.
    On Rehearing July 26, 1978.

      Sidney I. Goldman and Michael E. Soi-leau, New Orleans, for plaintiff-appellant.
    Parlongue & Riegel, Philip R. Riegel, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Appellant, Renee Lulich, has appealed a judgment of the Civil District Court for the Parish of Orleans that, inter alia, deprived her of the custody of her 12-year-old minor child, Jean, and granted it to St. Elizabeth’s Children’s Home. The hearing at which the custody change was determined was initiated ex proprio motu by the trial judge after a disturbance occurred between the minor and her mother.

As background, we note that Renee and John Lulich, Jr., were divorced in what has been extensive and bitter litigation. Mrs. Lulich, awarded the divorce on the ground of adultery, was also given custody of Jean.

The events that precipitated this hearing began on Saturday, September 17, 1977, when Jean returned to her home with her mother after visiting with her father and his present wife, Carol Lee Lulich. While Jean’s older sister Pauline was at a shopping center, she saw Jean, accompanied by Carol Lee, driving a car and almost colliding with another vehicle. To avoid punishment for disobeying her mother with respect to driving, Jean told a series of lies and finally her mother attempted to punish her for lying. She defied her mother’s order to go to her room, there was an exchange of words and a physical exchange of blows, and later that night Jean left home after calling her father to pick her up. When Renee discovered her daughter was missing she attempted to locate her at the ex-husband’s home, and then called the police, who told her it was a civil matter. Sometime around midnight, the mother called the trial judge.

Apparently being concerned over the welfare and best interest of the child, the trial judge on Monday, September 19, 1977, requested the attorneys for the litigants to appear in his court. An ex proprio motu order was issued by the judge to both the mother and the father to show cause on September 30, 1977 why custody should not be taken “from both or either” and given to a third party. The trial court that date gave the father temporary custody until September 30, 1977.

On the date of the hearing Renee Lulich filed an exception of no cause or right of action and of lack of jurisdiction. The trial court should have maintained the exception as to jurisdiction and its capacity to initiate the rule (no right of action).

C.C. arts. 146 and 157, our substantive custody laws, confer on a district judge the power to award the custody to the mother while the litigation is pending (unless circumstances militate against this) and to the spouse who obtains the divorce, unless this is not in the interest of the child. In both cases the judge must choose between the parents and cannot confer custody on a third person. As the Supreme Court points out in Griffith v. Roy, 263 La. 712, 269 So.2d 217 (1972), the source article in the Code Napoleon permits a trial court to vest custody in third persons, but Louisiana chose to delete this option from its custody rules.

Griffith also pointed out that exclusive jurisdiction is vested in the juvenile court in cases of child neglect and abuse, and when such a complaint is made against the custodial parent, the State is the party to initiate the charge. In parishes where there is no separate juvenile court, a district judge may sit as a juvenile judge where the matters before him are within the juvenile jurisdiction. However, in Orleans Parish, where there is a separate juvenile court, the Civil District Court has no jurisdiction whatsoever over juvenile matters. R.S. 13:1566 establishes the Orleans Parish Juvenile Court and R.S. 13:1570 confers on it exclusive original jurisdiction in proceedings concerning a child within the parish subjected to neglect, abuse or delinquency. (Confirmed by LSA-Const. of 1974, Art. 5, §§ 15, 16 and 18.)

The trial judge’s self-initiated act of provoking the hearing at which the custodial care of the child was denied both parents and the minor placed in an institution was obviously motivated by his belief that the best interest and welfare of the child demanded this immediacy of action. To reach the result that he did the trial judge had to find that the daughter was either neglected or abused as defined by R.S. 13:1570 A(l) or that she was technically delinquent (disobedient or beyond the control of her parents) under R.S. 13:1570 A(3). However, neither of these determinations are within the province of the District Court for the Parish of Orleans but are vested exclusively in the juvenile court for said parish, the latter also having the authority to “ * * * make such informal adjustment as is practicable without a petition * * *.” Such an informal procedure is not available to the District Court and if it deemed a determination of neglect, abuse or delinquency was necessary for the welfare of the child, then the trial judge could have directed the attention of the juvenile authorities to this matter.

Therefore, we conclude the trial judge had no right to initiate this proceeding ex proprio motu nor did he have jurisdiction to conduct a hearing to determine if Jean Lu-lich was neglected, mistreated or was a delinquent. While these labels have not been used in the trial of the rule, it is apparent this is the essence of the court-initiated inquiry.

For the reasons assigned, the judgment appealed from is annulled and the custody of Jean Lulich is restored to her mother Renee. The exceptions of no right of action and of lack of jurisdiction are maintained.

JUDGMENT ANNULLED; EXCEPTIONS MAINTAINED.

ORDER

We grant rehearing.

The case will be submitted to the Court on rehearing on July 25, 1978, on the existing record and whatever additional briefs the parties may wish to file on or before July 24, 1978.

ON REHEARING

PER CURIAM.

The decree in our original opinion insofar as it awards the custody of the minor Jean Lulich to her mother Renee Blache Lulich is recalled, vacated and set aside, and said decree is reformed as follows:

For the reasons assigned the judgment appealed from is annulled and this matter is remanded to the district court for further proceedings consistent with the views herein expressed. In all other respects our original opinion is reaffirmed.

JUDGMENT ANNULLED; REMANDED.


author: LEMMON, Judge.

text:
    Clarence J. ALOMBRO, Jr. v. CAMPBELL “66” EXPRESS, INC. and International B. F. Goodrich Company.
    No. 9275.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1978.

      Gertler & Gertler (Rodney P. Vincent), New Orleans, for plaintiff-appellant.
    Bienvenu, Foster, Ryan & O’Bannon (H. F. Foster, III), New Orleans, for defendant-appellee, Campbell “66” Exp., Inc.
    Hammett, Leake, Hammett, Hulse & Nelson (John I. Hulse, IV), New Orleans, for defendant-appellee, The B. F. Goodrich Co.
    Adams & Reese (Harold A. Thomas), New Orleans, for defendants-appellees, August Hosch and Adrian Hammond.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   LEMMON, Judge.

Plaintiff, a fork lift operator employed by Lift, Inc., was injured in the course of his employment while unloading from a trailer owned by Campbell “66” Express, Inc. a shipment of five 2,000-pound “off the road” tires manufactured and shipped by B. F. Goodrich Company. After a jury trial judgment was rendered dismissing plaintiff’s tort suit against Campbell and Goodrich. In plaintiff’s appeal the sole issue that we reach is the sufficiency of evidence to establish the liability of either defendant.

Goodrich hired Campbell, a motor freight carrier, to transport the tires from the manufacturing plant in Oklahoma to New Orleans, Louisiana, to be delivered to the Congress Street wharf. Under the applicable tariffs Goodrich had the obligation to load and unload the tires from Campbell’s trailer. Goodrich loaded the tires in Oklahoma, but elected to hire Campbell to unload the tires in Louisiana and agreed to pay an additional charge for this extra service. Because the shipment was to be unloaded at a point other than its local terminal, Campbell found it more economically advantageous to hire Lift to perform the unloading it had contracted with Goodrich to perform.

Life assigned plaintiff to perform the unloading with a 5,000-pound fork lift machine. Since this particular wharf did not have a pit or dock with an unloading platform level with the trailer floor, Lift also furnished a portable ramp, which had been fashioned from a flatbed truck.

Plaintiff drove his lift machine from ground level up the incline of the ramp and then into the trailer. The tires had been loaded perpendicular to the wheels of the trailer, and there was clearance between the wheels and each side of the trailer of one or two inches. Plaintiff placed his forks under the first tire and backed straight out, but when the tire reached the back door of the trailer, the tracks for the overhead sliding door, located on either side of the opening, prevented the tire from going straight out, and the tire became stuck between the tracks. When plaintiff used the forks on his machine to prod one side of the tire, the other side became free, and the tire fell onto the ramp and then onto the ground. Plaintiff backed down the ramp, picked up the tire, and loaded it onto the wharf.

Plaintiff again drove onto the ramp and reentered the trailer. He lifted the second tire, backed the lift machine, and set the tire down at the rear of the trailer. Then, with his machine on the .ramp (which was about as wide as the trailer), plaintiff again lifted the tire and attempted to angle the tire through the opening by turning his machine on the ramp and moving it backward and forward. The tire fell back into the trailer, and the lift machine went off the side of the ramp, causing plaintiff’s injuries.

Plaintiff’s petition included the following allegation of negligence:

“Petitioner, Clarence J. Alombro, Jr. avers that the accident resulted from the negligence of the defendants, International B. F. Goodrich Company and Campbell ‘66’ Express, Inc., in the following respects:
“(a) Improper loading of the tractor tires;
“(b) Improper use of the wrong type of van to handle the tires in question;
“(c) Failing to regard the safety of others;
“(d) Creating a trap;
“(e) Failing to warn petitioner of impending accident;
“(f) Failing to take proper steps to correct the trap then existing;
“(g) Any other acts of negligence which may be revealed before and at the time of the trial of this matter.”

There was no attempt to prove that the tires were improperly loaded. In his presentation of evidence in the trial court and in his argument in this court plaintiff relied on the theory that Goodrich and Campbell selected the wrong trailer for the intended purpose and that the trailer constituted a hazard to the party who performed the unloading.

As to the suitability of the trailer, Goodrich manufactured a considerable amount of these tires at that plant and since before 1954 had shipped them by the thousands in this type of trailer used by various carriers without incident or complaint. Furthermore, this was the largest trailer in height and width allowed on the highways under federal regulations.

As to the related question of the hazard presented by a rear door opening slightly narrower than the tires, plaintiff relies on the testimony of an expert in industrial safety that the lift machine fell off the ramp because of inadequate curbing on the ramp and that the doorway of the trailer was a contributing factor in plaintiff’s losing control of the lift truck.

Clearly, the track on the sides of the doorway of the trailer was a cause-in-fact of the accident. The determination of cause-in-fact is a “but for” inquiry. Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970). And but for the track on each side of the opening, plaintiff more probably than not would have backed straight out of the trailer, and the accident would not have occurred.

However, the determination of cause-in-fact is, far from conclusive of civil liability. The next step in the procedure for determining liability outlined in the Pierre case is the determination of the duty imposed under the circumstances and of whether there was a breach of that duty.

Campbell owed a duty to plaintiff to provide a trailer which was free from hazards so as not to be unreasonably dangerous in its intended use and to warn of any latent dangers. This record does not establish any breach of that duty.

Even if the tracks (doubtfully) constituted a hazard at the outset, plaintiff was well aware of the tracks when he attempted to unload the second tire. The evidence in this record and common sense compel the conclusion that the trailer was not unreasonably dangerous to one unloading such tires who was aware of the restriction in the doorway.

Moreover, after the accident Lift sent another operator who unloaded the tires by picking up a tire and placing it at the rear of the trailer, and then, after going to ground level and having Campbell’s driver move the trailer away from the ramp, by maneuvering the lift machine on the ground and angling the tire through the doorway. The tires were unloaded safely and without problem. Furthermore, Goodrich’s general shipping foreman and one of the floor foremen testified that such tires are routinely loaded into and unloaded from similar trailers by the thousands with a similar lift machine by setting the tire on the blades at a slight angle and by having the top of the tire rest on the upright of the lift tractor, thus establishing three-point stability. With the tire in a canted position, the lift machine can go straight into or out of the trailer safely and with no problem.

Finally, plaintiff’s safety expert conceded that the doorway was safe for unloading as long as the load was secure on the forks and that it “is not that the doorway was unsafe or that the trailer or van was unsafe, but that the method or procedure selected by Mr. Alombro in deciding to put the ramp up and unload by means of the ramp was unsafe”.

We agree that the accident resulted from unwise choice of equipment and method of unloading and that Campbell had no duty to Lift (who was a specialist in the field) or its employees to choose the equipment or direct the method by which Lift was to perform the job for which it contracted. There was no basis in this record for the jury to conclude that either Campbell or Goodrich breached any duty to plaintiff.

Accordingly, the judgment of the trial court, dismissing plaintiff’s suit, is affirmed.

AFFIRMED.

      . Plaintiff filed a separate suit against two executive officers of Lift, Inc., and these officers were made third party defendants in this litigation. However, plaintiff failed to obtain consolidation of the separate suit or to notify the court of that suit prior to the day of trial, and this case went to trial in that posture.
      In answering interrogatories the jury found Campbell and the executive officers negligent and Goodrich free from negligence. Because the answer to another interrogatory supported Campbell’s special defense that it was a statutory employer under R.S. 23:1061 and immune from liability under R.S. 23:1032, the court dismissed the suit against Campbell notwithstanding the finding of negligence. Thus, the judgment did not reach the question of the officers’ liability, which was raised only by the third party demands.

        While his appeal in this suit was pending plaintiff compromised the separate suit against the executive officers. Since we do not reach the third party demand, that compromise has no effect on this litigation.

      . This fact was the basis of Campbell’s statutory employer defense. Because we find there was no evidentiary basis for a finding of negligence by either defendant, we do not reach that issue.

      . The tires were 88 inches wide, and the trailer had an interior width of approximately 91 inches.


text:
    Patricia McFatter, wife of/and William McFATTER v. Johnny SIZEMORE and United Van Lines.
    No. 9236.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1978.
    Gordon K. Konrad, Gretna, for plaintiffs-appellees.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Thomas M. Nosewicz, New Orleans, for defendants-appellants.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   LEMMON, Judge.

This case involves an intersectional collision in which plaintiff was injured. The trial court held that defendants, the driver and operator of a large moving van which was parked within two to five feet of the intersection, was the sole cause of the accident, and defendants have appealed. The only issue on appeal is whether plaintiff was contributorily negligent.

The collision occurred on a clear day at the intersection of Iberia Street, a two-lane, two-way street, and Wall Boulevard, a divided street with one lane for travel and one lane for parking on each side of the median.

Prior to the accident plaintiff was traveling east on Iberia and stopped in obedience to a stop sign controlling the intersection, intending to proceed directly across. As she had approached the corner, she saw some traffic coming from her left, but when she came to a stop at the intersection her view to the left was completely obstructed by the van. She waited until the traffic she had seen had passed, and then she began to edge forward slowly in order to check for additional oncoming traffic, when suddenly she was struck on the left front fender.

A city ordinance prohibited parking within 40 feet of an intersection, and the van driver’s violation of the ordinance and of rules of reasonable driving caused the view of each motorist to be obstructed. This thoughtless and selfish parking was clearly a legal cause of the accident.

Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, the standard being that of a reasonable man under like circumstances. Smolinski v. Taulli, 276 So.2d 286 (La.1973). Here, plaintiff could not turn to her right without entering a portion of the traffic lane, could not back up because of other cars, and could not see to her left, although she leaned forward as far as possible. Her conduct in moving forward slowly constituted reasonable care under the circumstances, at least when considered in a reciprocal duty relationship to the duty of the operator of the parked van. It would be completely illogical to hold that the van operator had a duty imposed by statute and reason to refrain from parking in a position that creates a risk of danger to motorists entering the intersection and then to hold that the van operator is not liable for an accident resulting from that exact risk when a motorist, proceeding cautiously into the intersection, is injured because of the obstruction of lookout created by the van operator’s breach of duty.

The judgment is affirmed.

AFFIRMED.