text:
    HEYDORN v. NEW ORLEANS PUBLIC SERVICE, Inc.
    No. 18466.
    Court of Appeal of Louisiana. Orleans.
    June 18, 1948.
    Harry R. Cabral and James E. Courtin, both of New Orleans, for plaintiff-appellant.
    A. R. Christovich and Wm. W. Ogden, both of New Orleans, for defendant-appel-lee.
    L. V. Landry, of New Orleans, for in-tervenor.
   JANVIER, Judge.

Harvey G. Heydorn, a draftsman with a substantial earning capacity, was run over shortly before 4:00 a. m., on July 16, 1943, by an electric street car of New Orleans Public Service, Inc., on the neutral ground of Canal Street, between Miro and Galvez Streets, in New Orleans, and sustained very severe injuries resulting in the amputation of his right leg just above the ankle, a fracture of the left arm, and serious contusions and bruises. Seeking reimbursement for his injuries, suffering, loss of earnings and earning capacity, and for medical and other expenses, he brought this suit in the Civil District Court for the Parish of Orleans against said New Orleans Public Service, Inc., alleging that the accident resulted solely from negligence on the part of the motorman of the street car and without any contributory negligence on his part. He prayed for judgment for $79,138.67.

The Board of Administrators of the Charity Hospital of Louisiana at New Orleans intervened, alleging that at the Charity Plospital Heydorn had been rendered treatment and services made necessary by the injury, and that if the accident was caused by negligence of the employees of defendant corporation, the said defendant was liable to the Board of Administrators of the Charity Hospital in the sum of $234, together with attorney’s fees at ten per cent.

Heydorn made allegations of fact and charges of negligence which may be summarized as follows:

That he had gone to sleep partially "between the inbound track” of the said railway company “with one leg thereon” when a street car of defendant company ran over him “severing his foot and part of his leg,” and causing the other injuries already mentioned, and that the motorman was at fault in that “he did not keep a proper lookout for obstructions or persons who might have been * on the track * * * ”; that “he saw or should have seen petitioner lying in a precarious position with his leg stretched across defendant’s track, his view being unobstructed for a distance of more than two hundred feet * * * ”; that “he did not have the street car under sufficient control and that same was being operated in a highly dangerous manner * * * in that it was being driven at a high rate of speed and could not have been brought to a stop within a distance which would have been safe; ” and in that “said motorman failed to slacken his speed despite the fact that he was approaching a dangerous crossing, and after striking petitioner and causing his injuries, failed to stop the street car operated by him and return to see what damage he had caused.”

Plaintiff especially alleged “that defendant’s employee had the last clear chance to avoid the accident, but made no attempt to do so.”

Defendant corporation denied the occurrence of the accident — for reasons which we shall hereafter set forth- — but averred in effect that, if such an accident occurred as alleged, its employees were entirely without fault, and that if plaintiff was injured as averred by him, his injuries “were solely and alone caused through his own acts of negligence and carelessness * *

In the alternative that it should appear that there was any negligence 'on the part of any employee of defendant corporation, then it alleged that the accident was caused not by that negligence, but by the contributory negligence of plaintiff himself in the following particulars:

“Falling asleep in the dead of night on the neutral ground of Canal Street in the immediate vicinity of a street car track * * * ” and “in a group of azalea plants, which rendered it difficult, if not impossible, to ascertain his presence; ” in “moving his leg into such a position that it passed under the wheels of one of respondent’s street cars” ; in “falling asleep in a place immediately adjacent to respondent’s street car tracks where the azalea bushes in question caused a shadow to fall on the track closest to said azalea bushes” ; in “placing his leg on respondent’s car track, at a time when one of respondent’s cars was passing” ; in “attempting to cross the neutral ground on Canal Street in the middle of the block and at a point not ordinarily used by pedestrians;” and in “violating all of the rules of reason and self-protection * *

There was judgment in the Civil,District Court in favor of defendant, dismissing the suit and the intervention, and plaintiff and the Board of Administrators of the Charity-Hospital have appealed.

It seems to be made clear in the record, and counsel for plaintiff not only concede it but, in fact, largely rely upon it, that plaintiff had become very much intoxicated during the night which preceded the accident, and as a result had gone to sleep on or near the track shortly before the arrival of the street car and had thus lost all ability to appreciate his danger, or to save himself.

The record shows that, for several hours, plaintiff had imbibed very freely with friends in various so-called cocktail lounges and, at about 3:00 a, m., had found himself in the vicinity of Miro and Galvez Streets. He said that he wandered across the street with a rather hazy intention of boarding a street car; that he saw no car coming and walked “cater-comer” to where the cars stop at the comer of Canal and Galvez Streets. He then said: “At that time I looked again and didn’t see any street car coming, and I stood for a few minutes, and then I sat down, and that’s the last I remember.”

Even his recital of the events which had occurred up to that time evidences an uncertainty as to what actually occurred, for he said: “It is more or less guesswork with me.”

The fact that he actually knew nothing at all about what took place is evidenced by his conflicting statements made at various times. In the report of the Charity Hospital there is a “history” in which it appears that the patient “states that he was attempting to cross street car track and was struck by street car which ran across his right leg. * * * ”. A claim adjuster of defendant company testified that Hey-dorn -had made a statement to the effect that he noticed the street car coming in Canal Street at a fast rate of speed and swaying from side to side, and that he started to run across Canal Street in an uptown direction and that on the inbound track he stumbled and fell, was unable to get up, and that the car ran over him. In his petition, he alleges that while he was asleep, lying partially beyond the inbound track, “with one leg thereon” the street car ran over it, but in his testimony he stated that he did not know how he was seated, and when he was asked whether his legs were on the track, he said:

“No, I don’t believe I could have changed positions.”

His counsel, as we have already said, do not attempt to deny his condition, and, in fact, point to it as indicating that he could not have been guilty of contributory negligence, and they argue that there is liabiliity in the defendant because, while plaintiff was lying there completely helpless, he should have been seen by the motorman who, if his car had been under control, could have stopped it before reaching him.

Although, in its answer, the defendant company denied that plaintiff was run over by one of its street cars, the record leaves no other conclusion possible, and defendant did not attempt to prove that the car did not cause the injury. It merely offered evidence tending to show that its motorman did not know that he had run over plaintiff’s leg, and that under the surrounding circumstances and conditions, it was not negligence for him to fail to see plaintiff before the car reached him and to fail to discover his presence even after-wards.

There is then little dispute over the principal facts, and the controversy arises over the question of whether the failure of the motorman to see the plaintiff was such negligence as to justify a recovery by plaintiff.

There is a disagreement over one rather important fact and .that is whether plaintiff’s leg was lying across the rail as the car approached, or was thrown over the rail as plaintiff was aroused by the noise of the passing car and after the front wheels had already gone by.

On Canal Street there is a very wide neutral ground and on it at that point there are two street car tracks, each of which is about 16 feet from the edge of the neutral ground. On this neutral ground and between the outer rail of the inbound track and the paved driveway, there is a paved passenger platform level with the ground. This platform extends from Galvez Street back towards Miro Street a distance of 60 feet. Twenty-one feet from the end of this paved platform, there is a bed of azaleas 4 or 5 feet wide, the nearest edge of which is about 16 to 22 inches from the outer rail and which bed is about 24 or 26 feet in length. Between the outside edge of this azalea bed and the edge of the neutral ground there is a street light so located that this light throws the shadow of the azalea bushes towards the nearest rail of the inbound track, which is the rail on which plaintiff received his injuries. The post from, which this light hangs is between the light and the rail so that the shadow of this post, which shadow is about 10 inches wide, extends completely across the track. The azalea bushes themselves threw shadows from this light, but those serrated shadows, except at one point, did not extend across the inbound rail, nearly all of them extending irregularly to points only a few inches from the rail.

There were two other street lights in the immediate vicinity which, to some extent, illuminated the spot at which plaintiff was .lying. One of those lights was 88 feet away on the neutral ground at the auxiliary crossing between Miro and Galvez Streets, and the other was 105 feet away on the neutral ground at the corner of Galvez Street. Both of these lights were on the downtown edge of the neutral ground so that neither threw shadows of the azalea bushes towards the rail. Around this azalea bed there was a shallow trench estimated at from 2 to 5 or 6 inches in depth, the aza'lea bushes reaching in height from 4V2 to 5 feet. Plaintiff was lying among the bushes or in this trench, some 85 or 90 feet from the corner of Galvez Street and 30 or 35 feet from the nearest end of the passenger platform. His clothing was dark, his shirt being blue, and his trousers brown. Only his hat was white, and obviously, his head, at least, was in the azalea bushes or lying under them.

The record leaves no room for doubt that the car was proceeding at a moderate speed of from 8 to 10 miles an hour and that the motorman brought it to a stop at its usual stopping point alongside the passenger platform, though there is some evidence to the effect that when it had stopped its front end extended a short distance into the crossing of Galvez Street. The record shows that the company’s rules'require that all cars be brought to a stop before crossing Galvez Street.

The record shows, without any corttradiction, that as the car reached a point about opposite the azalea bed, the motorman, the conductor, and several of the passengers heard two distinct clicks or noises which they all said gave the impression that the car had run over a stick or a stone. The two clicks which came from the rear of the car indicated to these witnesses that it was the two wheels on that side of the rear truck of the car that had run over the object, whatever it was. The motorman stated that before he 'heard the two clicks, he had seen nothing extending across the track.

When the car was brought to a stop, the motorman, in an effort to discover what it was that had been run over, got out, looked under (lie car and around it, and neither saw nor heard anything. Being urged by various passengers to proceed on his route so that they would not be late for work, the motorman got back on his car and went to the end of his route on Canal Street near the Mississippi River. On its Way back from the river, as the car reached Galvez Street, it was stopped by persons who had discovered the injured plaintiff, but even then the motorman and the conductor did not realize that it was their car which had caused the injury. Later, as they were completing their run, they thought over the earlier occurrence and then realized that possibly their car had run over plaintiff on its inbound trip when they had heard the two clicks which the motorman had investigated.

Though an earnest effort was made to discredit the witnesses who stated that they had felt and heard the two clicks which had come from the rear of the car after the front end had passed, it is made very certain that these witnesses could not have been mistaken and that it was in truth that particular car which struck the plaintiff. It is shown that at that time in the early morning most of the persons who used such street cars are regular passengers, each of whom rides the same street car every day. And it appears from this that after the accident had been brought to the attention of the crew, they remembered some of the persons who had been on the car at the time, and, though otherwise it might have been difficult to locate witnesses, under these circumstances it was possible to remember what persons had been on that particular street car. Two of the witnesses say that they 'learned of the accident in the newspaper and then remembered that they had been in the street car. It was in this way that these two witnesses were located by the defendant company. The record shows, too, that it could not have been any other street car because at that time of the morning only two were operated on that route and there was no other which could have passed over that track at that time, the other being far away at the other end of the route.

Two lighting experts were placed on the stand, one by plaintiff and one by defendant. They stated that they made exhaustive tests shortly before the case came to trial which was almost two years after the occurrence of the accident. The record, and particularly photographs introduced in evidence, show that unquestionably when these tests were made the azalea bushes were not nearly so high or so thick as they had been at the time of the occurrence of the accident. According to these tests the illumination outside of the shadows was sufficient to comply with the standard required for street lighting, though it appears to us that this standard was very low, for the witnesses agreed that 16% of 1 foot candle power was sufficient. These tests showed, however, that in the shadows cast by the light post and by the azaleas the illumination was very much below standard, amounting to only .02 of 1 foot candle power. These tests were made without the additional illumination thrown by the headlight of a street car. And while we are discussing the question of the illumination thrown by the headlight of such a street car, let us say that the evidence shows that the headlight of a street car gives little illumination to the sides of the track, it being confined almost entirely to the space between the two rails and that the evidence shows also, and there is nothing to the contrary, that in cities the headlights of street cars are intended to show to pedestrians and operators of vehicles that a street car is approaching and add very little to the illumination by which the motorman is expected to see persons or things on or near the track. This was recognized in Tassin v. New Orleans Public Service, Inc., 19 La.App. 456, 139 So. 695, 698, in which we said: “City street cars, operating where, at almost every corner and in many cases between corners, there are brilliant electric lights, should not be required to maintain headlights such as are properly required of -automobiles, which must operate in the darkness of country and suburban roads.”

Counsel for plaintiff, in their effort to show that the motorman should have been particularly on the alert, point to the fact that the street car was approaching Galvez Street, which is a safety stop. They show that a safety stop is a point at which all cars must be brought to a stop because of dangerous conditions at that point. We think, however, that the fact that Galvez Street is such a stop cannot be pointed to as proof of the fact that the motorman should have been looking for persons sleeping on the neutral ground 100 feet away. The danger of such crossings comes from the fact that there is much traffic on the intersecting street and that there are frequently passengers waiting on the platform to board the street cars coming up to the intersection. In such a situation, it is the duty of the motorman approaching such a crossing to be on the alert for crossing traffic and for persons waiting for a street car, and, therefore, it is to be expected that his attention will not be directed to the ground alongside the track 100 feet before his car reaches the crossing.

When we consider whether the motorman should have seen plaintiff before reaching him, we are impressed by several facts. The witness Dearie, placed on the stand by plaintiff, found it necessary to use a flashlight in making an investigation when, in passing in his taxicab, he heard plaintiff call for help and saw him wave a handkerchief.

The witness Mara, who also was passing in his automobile and was attracted by hearing a call and seeing a handkerchief wave, says that in order to see better he placed his car so that its headlight could shine upon Heydorn. He says that it was quite dark and when asked whether he could see the man himself when he looked from Miro Street, he said: “Well, frankly, I’ll tell you, if it wasn’t for the handkerchief, I probably wouldn’t have seen him at all.”

It must be remembered that this was after his attention had been directed to the fact that some one was calling and waving a handkerchief, apparently in trouble, on the neutral ground.

That it must have been dark is also evidenced by the fact that when the motorman got out of his streét car to look to see if he could discover whether his car had run over anything, even though he was looking for something, he could not see Heydorn lying in the bushes.

If the motorman should have seen plaintiff, since the plaintiff had lost all power to save himself and was, therefore, not capable of being guilty of contributory negligence, there would be liability in the defendant company. We say this because of the doctrine which has come to prominence and is now well recognized as the Doctrine of Discovered Peril. Under this doctrine, which grows out of and is an extension of the doctrine of the Last Clear Chance, one who may have been at fault in negligently placing himself in a precarious situation but who no longer has the ability to save himself, may nevertheless, recover from some other person who causes him injury if the other person, having discovered the peril and having the ability to avoid an accident, fails to do so. This was what was held in Rottman v. Beverly, 183 La. 947, 165 So. 153. This doctrine was later extended and it is now held that there may be liability not only if the other person actually discovers the peril and fails to avert it, but also if the other person should have discovered it. This was what was held in Jackson v. Cook, La.App., 176 So. 622.

While it is true that where there are shown facts which make this doctrine applicable, the burden shifts to the defendant to explain the failure to see the person who should have been seen, the doctrine has no application until the plaintiff has first shown the necessary facts. In other words, he must first show that he, himself, has lost the ability to save himself and that the defendant could have seen him and could have avoided an accident. The plaintiff here has shown only the first fact; that he himself had lost the ability to save himself. He has shown none of the other necessary facts except that he was later injured. The burden was on him to show these other facts as it always is when a plaintiff relies for recovery upon the Doctrine of the Last Clear Chance and the extension of it, the Doctrine of Discovered Peril. See Courtney v. Louisiana Ry. & Navigation Co., 133 La. 360, 63 So. 48.

But the defendant has not relied on the failure of plaintiff to prove these necessary facts, for defendant has gone farther and affirmatively shown that the motorman was not at fault in failing to see the plaintiff as his car approached the bushes.

The record leaves no room for doubt as is evidenced by the fact that it was obviously only the last two wheels of the street car which passed over the leg of plaintiff, that as the car approached him, his leg was not lying on the rail. There is no evidence that there was any blood on any of the wheels of the car by which it could be determined which wheel struck him first, but since the street car continued on its run all the way to the end of the line and then back from the end of the line to Galvez Street before it was stopped, if there had been any blood on any of the wheels it might have so completely disappeared by that time as to have been not noticeable. We say this because in a somewhat similar situation in the case of Moses v. New Orleans Great Northern R. R. Co., 132 La. 1010, 62 So. 124, the Supreme Court found that since the blood was discovered only on the rear wheels of the locomotive, the arm of the plaintiff, which was cut off by the locomotive, could not have been lying across the rail as the locomotive approached and must have been thrown over the rail after the plaintiff, lying alongside the track, was aroused by the noise of the passing locomotive.

Counsel for defendant call attention to three cases, each of which involves somewhat similar facts, and they argue that all are authority for the conclusion that there was no negligence in the motorman in the case at bar. These cases are: Moses v. New Orleans Great Northern R. R. Co., supra, Tassin v. New Orleans Public Service, Inc., supra, and Kramer v. New Orleans, City & Lake R. R. Co., 51 La. Ann. 1689, 26 So. 411.

In the Moses case plaintiff had gone to sleep at night alongside a railroad track within a passenger depot in New Orleans. The city lights threw a shadow of a concrete wall across him and across the track. As the locomotive came into the station, Moses was awakened by the noise it made and he threw out his arm, which up to that time had not been across the rail, after the first wheels of the locomotive had passed. The Supreme Court held that there was no negligence in the engineer in failing to notice that Moses was lying alongside the track.

In the Tassin case, a boy, fourteen years old, had gone to sleep on the neutral ground on St. Claude Avenue in New Orleans, and at about 3 o’clock in the morning, a street car ran over his right leg, cutting off his foot. The evidence showed that the spot at which the boy lay was “obscured by shadows on the neutral ground” and was “not at a street intersection.” We held that it was the duty of the motorman to use ordinary care to discover this third person, and we said that “if it can be argued that there was a duty to expect persons near intersections, surely such duty would not extend to places between street crossings and in the neutral ground, where persons seldom are seen.”

As in the Moses case and also in the case at bar, young Tassin did not extend his foot over the rail until just as the car was about to reach him.

In Ihe Kramer case, the plaintiff had gone to sleep alongside a street railway track where his body was partially obscured by grass and in a location which, because of a curve, made it difficult or impossible for the motorman to see him until the car was rather close. The Supreme Court held that there was no liability.

Counsel for plaintiff, seeking to distinguish these cases, point to Brown v. Chicago, R. I. & P. Ry. Co., La.App., 14 So. 2d 307, and Griggs v. Kansas City Rys. Co., Mo.Sup., 228 S.W. 508, 511, as presenting facts practically identical with those in the case at bar.

In the Griggs case, the plaintiff, very drunk, went to sleep at night in a dangerous position and was run over and killed by a street car. The defendant was held liable. But the evidence showed that plaintiff had been actually discovered by the motorman of the street car when the car was a sufficient distance away for it to have stopped, at the speed at which it was running, if the motorman had been on the alert. There was further evidence to show that such an object as the body of a man, because of the lighting conditions at that point and at that time, “could have been discovered and identified” at a distance of 250 feet.

The facts of the Brown case are very similar to those presented in the case at bar, particularly in that Brown was not seen by either the engineer or the fireman of the locomotive, who did not know that he had been struck by their train. But the distinguishing feature of that case is that there the Court found the all important fact that Brown should have been seen, since he was actually on the track. The Court said [14 So.2d 309]: “* * * we are definitely of the opinion that plaintiff was on the track where he could and should, have been seen by the engineer or fireman, or both, if they had been keeping a proper lookout at the time.”

Brown had been seen only a very short time before at about 5:15 o’clock in the morning by a negro woman who had passed, and who testified that when she saw him he was seated on the end of a cross-tie. At 5:15 o’clock in the morning of July 4tli, at Rusten, Louisana, day had already broken.

Another interesting feature of the Brown case is that the Court there found, as we find here, that although there was no actual eyewitness to the occurrence, the circumstantial evidences were so strong that there was no other conclusion possible than that the plaintiff had actually been struck by the vehicle of defendant. The Court said: “ * * * To place any other interpretation upon the chain of circumstances presented would be to adopt a strained, speculative and hypothetical conclusion which is not justified by the facts, * *

While there are facts in all of these cited cases which are similar to some of those now under consideration, it may not be said that any one of them is identical with this case. We feel that no one of them is authority for the view that in any such case there may be laid down a hard and fast rule for determining just how far the engineer of a locomotive or the motorman of a street car should see a man’s body lying on or near the track. But we feel that all of them are authority for the view that in such cases all of the surrounding circumstances must be taken into consideration, and when we take all of the surrounding circumstances into consideration we do not think that the motorman was guilty of negligence in failing to see plaintiff lying as he was in the shadow of the azalea bushes and with no part of his body extending across the rail as the car approached him. The shadows, as already stated, were serrated; at least one of them and the shadow of the lamp post extending across the rail. The others extended for varying distances towards the rail.

It was more difficult to see and recognize an object lying among such shadows than it would have been had there been only one solid and clearly defined shadow.

To hold that there was negligence here would be to hold that a motorman owes to third persons the absolute duty of discovering them when they place themselves alongside such tracks. There is no such duty. We repeat what we said in the Tassin case, that where such third persons are involved the motorman or engineer must exercise ordinary care to discover them.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.


source: Caselaw Access Project

author: McBRIDE, Judge.

license: Public Domain

text:
    CHAPITAL v. WALKER et al.
    No. 18925.
    Court of Appeal of Louisiana. Orleans.
    June 7, 1948.

      Neils F. Hertz, E. B. Charbonnet, Jr., and Joseph M. Bowab, all of New Orleans, for plaintiff-appellee.
    Warren O. Coleman, Edwin J. Prinz and Solomon S. Goldman, all of New Orleans, for defendants-appellants.
   McBRIDE, Judge.

This appeal involves the ownership of 41% shares of the capital stock of Supreme Industrial Life Insurance Company, Inc., an industrial life insurance company created under the laws of this state in 1941 and having its domicile in New Orleans. All of the stockholders in the said company are colored persons.

The capitalization of the corporation is one thousand shares of stock having a par value of $10 per share. At the time of the transaction hereinafter discussed, the stock was equally, or about equally, divided between six persons, namely: Raleigh J. Coker, Frank J. Walker, Lucien V. Alexis, Sr., Paul Hortman, Gustave C. Chapital, Jr., and Horace Rixner. Each of the parties had a few shares of stock placed in the names of a member or members of his respective family, in order to qualify them for eligibility to the board of directors of the corporation.

On or about September 13, 1944, Paul Hortman and his wife, who owned 166% shares of stock, notified the corporation through its secretary that they wished to sell their stock, and they offered it to the other stockholders in proportion to their then present holdings, in accordance with the provisions of the charter of the corporation, which provides in article 4 that no stock shall be sold or transferred without it first being offered at not more than its book value to the stockholders of the corporation for a period of not less than thirty days, and that such offer shall be made in writing addressed to the corporation and delivered to the secretary, who shall communicate said offer in writing to each stockholder of record at the time of the offer.

On September 19, 1944, Coker and his foster daughter, Walker and his wife, Alexis and his wife, Chapital and his wife and daughter, and Rixner and his wife, in writing, gave notice to the corporation that they desired to purchase the Hortman stock in accordance with article 4 of the charter, and signed what is termed a “subscription list.”

On December 23, 1946, Chapital brought this present suit against the corporation, Walker, Alexis and Coker to compel them to deliver to him his proportionate share of the Hortman stock which he had contracted to purchase, alleging that he is entitled to receive 41% shares, and that although he has been always ready, willing and able to pay for his part of the Hortman stock and has repeatedly demanded that it be delivered to him he has never received it. He further alleged that Walker, Alexis and Coker transferred the Hortman stock to themselves with the full knowledge that the 41% shares were under contract to be sold to him.

Plaintiff sought a judgment ordering Walker, Alexis and Coker each to sell unto him 131%8 shares of stock, and ordering the corporation to transfer such stock to him on its books and to deliver the proper stock certificate or certificates evidencing the same, upon plaintiff depositing in the registry of the court the sum of $416.77, the value of the said stock. An injunction was also sought prohibiting and enjoining the defendant Supreme Industrial Life Insurance Company, Inc., from holding the regular annual meeting of the stockholders fixed for January 7, 1947, or any other meetings of the stockholders, until the further orders of the court.

The corporation, Walker and Coker make the defense that Chapital withdrew his offer to purchase his part of the Hortman stock, and that he even offered his own stock for sale by letter written on October 13, 1944; that after the withdrawal of the offer to purchase by plaintiff, Walker, Alexis and Coker paid for and acquired the Hortman stock; that new certificates were issued to them or their nominees on October 30, 1944, and that these certificates were signed by plaintiff as treasurer of the corporation. These defendants further allege that since such time they have continued to hold the stock and have voted the same at regular meetings of the stockholders held in January 1945 and 1946, and at a special meeting in December 1945, at all of which meetings plaintiff was present and voted his own stock, making no objection to defendants voting their respective portions of the Hortman stock. The further defense is made that Chapital has waived his right to acquire any part of the Hortman stock and is estopped, after two years of inaction, from demanding that the defendants, who had put up their money to acquire the said stock in October 1944, must now allow him to participate therein.

Defendant Alexis, in his answer, practically admitted all of the allegations of the petition, and prayed that there be judgment in favor of plaintiff.

Upon the trial of the rule nisi for a preliminary injunction, the trial court restrained and prohibited the defendants from holding any stockholders’ meetings until the further orders of the court. A devolu-tive appeal from this decree was taken by all defendants except Alexis, which appeal was heard before us, and the preliminary injunction was recalled. See 30 So.2d 150, and 32 So.2d 90. We remanded the cause to the Civil District Court for the Parish of Orleans for further proceedings on the merits, not inconsistent with the views expressed by us.

The matter was tried on its merits in the court below and plaintiff recovered judgment as prayed for. The corporation, Walker and Coker have appealed.

Rixner, one of the stockholders, sold his stock subsequent to the Hortman transaction, and at this time there are only four persons, together with their nominees, owning stock in the corporation. As will be seen from the above, they are divided into two camps, Walker and Coker on the one side, and Alexis and Chapital on the other. The control of the corporation is incidentally involved in this case, for if the plaintiff is not to be allowed to obtain the 41% shares, the Walker-Coker fraction will hold sway and Alexis and Chapital and their nominees will be in the minority.

Our concern in this case is largely with facts. We note that the trial in the court below was clothed with much bitterness, and the record is stamped with acrimony and shows that truth was handled loosely. The testimony of the two factions is diametrically opposed on salient questions.

Chapital’s testimony is to the effect that he was always ready and willing to take title to his share of the Hortman stock and that he repeatedly made that fact known to the officers of the company, and always insisted upon the delivery of the stock to him. In this he is supported by the defendant Alexis. Chapital stated that Coker and Walker had always led him to believe that he would ultimately get his stock, and that it was only when Walker flatly refused to transfer the stock that he sought redress from the courts. On the other hand Walker and Coker vehemently denied that Chapital ever made demand for the stock, but on the contrary, they say, Chapital stated to them he did not want to go thi-ough with his deal to purchase a proportionate share of it.

There was offered and admitted in evidence a carbon copy of a letter bearing the date October 6, 1944, addressed by Coker as president of the company to Walker, instructing him to interview Chap-ital, and to take with him a witness, in order to definitely learn whether Chapital and his nominees planned to make good their agreement to purchase his share of the Hortman stock. Walker claims that upon receipt of this letter from the president he, together with Alexis, visited Chapital, and that Chapital informed him, in the presence of Alexis, that he, Chapital did not want any part of the Hortman stock, and even contemplated offering his own stock for sale to the other stockholders. In order to bolster this contention that Chapital had stated he did not want any of the Hort-man stock, the defense introduced into evidence a carbon copy of a letter purportedly written by Walker on October 10, 1944, and addressed to Coker, in which Walker informed the president of the company that he, together with Alexis, had interviewed Chapital and that Chapital had unequivocally stated that “he had no intention of giving any money in the form of currency or check for the purchase of the stock of Hortman et al,” and that Chapital had stated he intended to offer his stock for sale.

There was much made of the copy of the above mentioned letter, and Walker stated that it was written shortly after his visit with Alexis to see Chapital, and that the facts stated in the letter were correct. He claimed that Alexis dictated the letter and that he, Walker, signed it and sent it to Coker. But Alexis denied that he dictated the letter, although he admitted going with Walker to see Chapital, and his testimony is that_ he did not hear the conversation which took place between them.

Dorothy Wiltz, who was a stenographer for the Supreme Industrial Life Insurance Company, Inc., testified that she wrote the letter from the dictation of Alexis, but a careful reading of her testimony leads us to the conclusion that little weight should be accredited to it, for Chapital and a disinterested witness testified that previously, when they spoke to the Wiltz woman about the letter, she denied that she had written it and disclaimed any knowledge of it.

Plaintiff’s counsel called for the original of the letter and Walker stated to the court “Your Honor, I will find it; I will, your Honor,” but he apparently never found it, because we cannot locate it in the record. The nonproduction of the original is an extremely suspicious circumstance; the letter was a matter of much importance to the defendants, and it would seem that great care would have been taken to preserve the original.

Both Alexis and Chapital admit that Walker did call to see Chapital on the mentioned occasion, but they state that at the conference there had been no discussion about the Hortman stock whatever, and that the purpose of Walker’s visit was to ascertain if Chapital, as a stockholder, would help to “fortify the capital structure” as the treasury of the corporation was impaired at the time.

Our conclusion is that the testimony of Chapital regarding Walker’s visit to him seems to be the most probable, because the record shows that during October 1944 Chapital did make a contribution of some $1,167 to the corporation’s treasury, and in March 1945 hé contributed another $1,000. It seems that Coker, Walker and Alexis also made like contributions at the times mentioned, as the Secretary of State and ex-officio Insurance Commissioner demanded that the treasury be strengthened, otherwise the corporation could continue with its business no further.

The trial judge, in view of the contributions made by Chapital, concluded that it would be unreasonable to believe that a person who had contributed more than $2,100 to the treasury intended to relinquish his stock holding's in this closed corporation and place himself at the mercy of his adversaries, particularly in view of the fact that it would have taken only an advance of $416.77 by Chapital to acquire his share of the Hortman stock. In his written reasons for judgment the trial court made these observations : “* * * it does not take an immensity of common sense, and it would be contrary to all laws of human nature for a man to go into a joint enterprise with three other individuals, to contribute with them in equal proportions money to replenish capital stock illegally depleted the sum of over $1100.00, and then to make another contribution of one thousand dollars at a later date, and if he in their joint undertaking to pay themselves back for this money advanced to the corporation received the sum of $50.00 per week, and to knowingly or willingly place in their hands the power to destroy him and to divest him of all rights he may have to the profits of the corporation.”

In order to offset the effect of the Chapital contributions, learned counsel for defendants argue that the donations of cash to the corporation were to continue it in business so that the plaintiff and defendants could derive an income from the corporation, for up to that time it had never paid a dividend. Counsel point out that immediately after the first donation was made the four parties began receiving “salaries” of $50 a week and each continued to receive that salary for two years, or until October 1946. We believe counsel’s contention has been fully answered •by the trial judge.

Counsel for defendants likewise seek to make capital of the fact that when the Hortman stock was placed in the names of Coker, Walker and Alexis, plaintiff signed the certificates as treasurer of the company. It is soug-ht to be impressed upon us that such action on the part of Chapital amounted to an estoppel against him from claiming any part of the stock. Chapital testified that Walker was the man who had 'blocked him from getting his stock, and that he repeatedly spoke to Coker about it. Asked why he did not take the matter up with Walker, Chapital stated that he was afraid to go to Walker, because at a directors meeting during 1943 or the early part of 1944 Walker had a pistol with him and made the statement that if anything, passed in the meeting that he did not like he would kill some one. Chapital stated that when Coker and Walker demanded that the Hortman stock be placed in the three names, he, because of his fear of Walker, signed the new stock certificates as treasurer of the corporation; that Coker and Walker at the time promised him he would get his share of the stock at some later date. He explained that Coker and Walker wanted to “punish” him and that “they was soaking me in my own grease and after I soaked in my own grease long enough they would give me the stock.”

At the commencement of Chapital’s testimony that he signed the certificates under duress, counsel for the defense objected to the admission of the testimony upon the ground that there was no allegation to that effect, nor was it alleged that the defendants had promised to later let Chapital have a part of the stock. The objection was overruled by the trial court and the evidence was permitted to be introduced. Counsel complains of this ruling, but we find no error, because it is well settled that allegations of an answer are open to any objections of law or fact without any special plea, and replications are not required of permissible under our law. When 'defendants pointed to Chapital’s signing of the certificates as one of their defenses, Chapital had the right to explain the circumstances under which he signed the certificates without the necessity of having pleaded the facts regarding the matter.

Horace Rixner, the fifth stockholder at the time of the Hortman transaction, later sold his holdings to the four remaining stockholders, and Chapital received his part of the Rixner stock. Chap-ital stated that at the time of the Rixner transaction he contended to the three other stockholders that in view of his not having received his share of the Hortman stock he, in fairness, should be given a larger share of the Rixner stock to make up for it, but Walker told him that he would not get any extra stock out of the Rixner lot.

The defense counsel confidently direct our attention to the above testimony, claiming that it indicates Chapital’s intention of abandoning any right he may have had to get any of the Hortman stock, but we cannot attach this import to the testimony. Chapital was always disgruntled about having been deprived of the Hortman stock and had repeatedly demanded it from the defendants, but received from them, instead of stock, merely promises, and we believe that it was a normal human reaction for him to request additional shares of the Rixner stock to make up for his part of the Hortman stock which he had been promised by the other three stockholders. Chapital’s demand for additional shares of the Rixner stock did not have the effect of constituting an abandonment on his part of his hope to get that part of the Hortman stock to which he believed he was entitled.

The defense also contends that the record shows that at certain stockholders meetings Coker, Walker and Alexis voted the Hortman stock, and that plaintiff, who was present and voted his own stock, made no objection to the Hortman stock being voted by the others. This defense is not borne out by the evidence, from which it appears that Chapital did make the point at a meeting of the stockholders that he should be permitted to vote his part of the Hortman stock.

As we said at the outset, there was much bitterness between the parties, and Coker, in an attempt to strike out at Alexis, who had joined the Chapital camp, made an admission which we believe was most damaging to the defendants’ cause. He was asked if he had ever promised to let Chap-ital have any of the stock, and his answer, quoted in full, is as follows: “No, there is no credence in that. The Chapital stock Was discussed by the three of us, between Walker, Alexis and myself, and Professor Alexis was the man said don’t give him anything; he was the man; he started all that by refusing to give him his share of the stock.”

The above testimony of Coker evidently made a deep impression upon the trial judge, for we find that he himself then questioned the witness. He prodded Coker regarding the admission which the witness had made, and the most he could get from Coker, who could not extricate himself, was that two years ago Chapital was entitled to the stock but that Coker believed he was not entitled to it now “because that time has elapsed.”

The reasons given by the trial judge clearly and unmistakably indicate that he believed the testimony of Chapital and Alexis should prevail over that of Coker and Walker. He had the opportunity of seeing the witnesses, noting their demeanor, and hearing them testify, and under the familiar rule of law the findings of the trial court on facts should not be disturbed unless manifestly erroneous. Not only do we detect no error in the findings, but we deem them eminently correct, as our careful reading of the record likewise firmly leads us to the belief that the testimony of Chapital and Alexis is by far the worthier.

Coker and Walker, in this court, filed a plea of prescription of one year under C.C. art. 3536, contending that the present action arises from a fraudulent act and should have been instituted within one year of plaintiff’s discovery or knowledge of such fraud. Counsel argues that the Rixner transaction took place “a little while after” the Hortman stock was sold, and that the suit was filed by the plaintiff more than two years after the Rixner deal when Walker told Chapital that he would get no part of the Plortman stock. We fail to see how the prescription of one year is applicable to the present case. It is true that the defendants have been charged by the plaintiff with bad faith, but the action is not pitched upon the ground that defendants fraudulently took away the stock from plaintiff, but rather that plaintiff is entitled to it by virtue of his having contracted to purchase it. Defendants’ brief even concedes this, for it is therein stated “that Plaintiff predicated his cause of action solely on the terms of the cor'poration’s charter regarding the division among existing stockholders of stock offered for sale,!’ and the action is defended upon the ground that plaintiff waived his rights to Hortman’s stock. The one year prescription is certainly not applicable.

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

Affirmed.


text:
    ALEXIS et al. v. WALKER et al.
    No. 18954.
    Court of Appeal of Louisiana. Orleans.
    June 7, 1948.
    Neils F. Hertz, E. B. Charbonnet, Jr., and Joseph M. Bowab, all of New Orleans, for plaintiffs-appellees.
    Warren O. Coleman, Edwin J. Prinz and^ Solomon S. Goldman, all of New Orleans, for defendants-appellants.
   McBRIDE, Judge.

On the suit of Luden V. Alexis and Gus-tave C. Chapital, Jr., a preliminary injunction was issued against the appellants, Supreme Industrial Life Insurance Company, Inc., Frank J. Walker and Raleigh J. Coker (the two individuals being officers, directors and stockholders of the corporation), restraining, enjoining and prohibiting them from holding, on January 6, 1948, or on any other date, a meeting of the stockholders of the corporation for the purpose of electing directors for the corporation, until a final decree and judgment has been rendered and signed in the suit involving the ownership of 41% shares of the capital stock of the corporation, which suit is entitled: “Gustave C. Chapital, Jr., v. Frank J. Walker, et al.”

A full discussion of the internal affairs of the defendant corporation will be found in two opinions handed down by us this day.

The sole defense made in this court, is contained in a short statement in the brief of appellants, as follows: “The question of ihe propriety of the preliminary injunction is moot once the stock ownership suit is decided, therefore we submit the proper action of this Court will be to remand this matter for trial on its merits.”

We do not agree with counsel that once the stock ownership litigation is decided by this court that we should hold the question of the propriety of the preliminary injunction is moot and recall the writ, for it may well be that application will be made to the Supreme Court of Louisiana for writs in the stock ownership suit, which would then deprive the plaintiffs herein of the protection which the preliminary injunction appealed from gives 'them.

The voting of the 41^ shares of the disputed stock has been enjoined in Chapital v. Walker, et al., La.App., 35 So. 2d 900. If a meeting of stockholders is held at this time for the election of a new board of directors, the Chapital-Alexis faction would he deprived of the benefit of the voting power of said disputed shares, and the said faction will he in the minority due to the disproportionate distribution of the stock which could be voted. To deprive Chapital of the right to vote this stock would undoubtedly cause him irreparable injury, in view of the tense situation which exists in the scrambled affairs of the corporation. We believe that justice and equity dictate that there should be no stockholders meetings until such time as the ownership of the 41 Yz shares of stock is finally judicially determined and the full voting power can participate at the election of new directors. The status quo should be maintained until then.

For the reasons assigned, the order appealed from, granting the preliminary injunction, is affirmed.

Affirmed.


text:
    ALEXIS et al. v. COKER.
    No. 18858.
    Court of Appeal of Louisiana. Orleans.
    June 7, 1948.
    Joseph M. Bowab, Neils F. Hertz and E. B. Chafbonnet, Jr., all of New Orleans, for plaintiffs-appellees.
    Warren O. Coleman, Edwin J. Prinz and Solomon S. Goldman, all of New Orleans, for defendant-appellant.
   McBRIDE, Judge.

Raleigh J. Coker, the president of Supreme Industrial Life Insurance Company, Inc., has appealed from a judgment of mandamus condemning him to call a regular meeting, of the board of directors of the corporation on the fourth Tuesday of the month of September 1947, and regularly on the fourth Tuesday of each and every succeeding month, as set forth in the charter and by-laws of the said corporation.

The plaintiffs-appellees are Lucien V. Alexis and Gustave C. Chapital, two of the members of the directorate.

The defense of Coker is that it would be inequitable to force the calling of meetings of the board, as there has been an injunction issued enjoining meetings of the stockholders pending judicial determination of the ownership of certain stock held by members of the board. It is contended that this injunction has the effect of placing plaintiffs-appellees in the position of attempting to perpetuate themselves in office. Defendant’s amended return to the alternative writ of mandamus recites further that plaintiffs are attempting to gain control of the corporation, because one Antonia M. Bossier, a board member who had previously sided with Coker and his faction, has gone over to the Chapital-Alexis faction, thus giving the latter a majority number of representatives on the board, and that there should be no meetings until the stockholders have had an opportunity to elect another board.

The internal strife prevailing amongst the stockholders is fully recited and discussed in an opinion handed down by us this day in the case of Chapital v. Walker, et al., La.App., 35 So.2d 900.

The provisions of the charter stipulate that the directors shall be elected for a term of one year at a regular meeting of the stockholders to take place on the first Tuesday of January of each year, and as there have been no regular stockholders meetings the present directors remain in office with full power as holdovers, until such time as their successors are elected. Regardless of the nonholding of meetings of the stockholders, the holding of which is prohibited by an injunction, the corporate business must go on and the corporation should properly function, which end can only be accomplished through meetings of its board, and furthermore, unless the board of directors does hold its meetings, the corporation will lack that management which the law demands that a corporation should have. We fail to see how the injunction which prohibits the stockholders from meeting should be used as an excuse by Coker, the president, for not calling the regular meetings of the board of directors.

According to Act No. 148 of 1936, § 14, industrial life insurance companies shall be amenable to all insurance laws now in force. Act No. 105 of 1898, as amended by Acts Nos. 172 of 1920 and 122 of 1926, Dart’s La.Gen.Stat. § 4004, which regulates insurance companies or corporations, provides in section 4(g) that the board of directors shall meet at least once a month.

The charter of the Supreme Industrial Life Insurance Company, Inc., in article 5, specifically provides that “the board of directors shall meet at least once a month * * * ” and “meetings shall be held on the fourth Tuesday of each month.”

Under the clear mandate of the law and the charter provisions, this industrial life insurance company should have the benefit of meetings of its directors as stipulated, and the affairs of the corporation should be orderly and properly conducted as determined by the board. The fact that a dispute exists between stockholders, or that the Coker-Wallcer faction is in the minority on the board and is likely to be outvoted, should in no way mitigate against the holding of regular meetings of the board.

It is the duty of Coker as president of the corporation to call regular meetings of the directors, and it is elemental that whereas he has wrongfully refused to do so, mandamus will lie at the instance of other directors to compel such meetings.

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

Affirmed.


author: JANVIER, Judge.

text:
    ÆTNA FINANCE CO. v. BETZ et al.
    No. 18973.
    Court of Appeal of Louisiana. Orleans.
    June 7, 1948.
    Rehearing Denied June 18, 1948.
    George T. Fisher and Samuel J. Ten-nant, Jr., both of New Orleans, for plaintiff and appellant.
    Cabral & Courtin and Wm. M. Campbell, Jr., all of New Orleans, for defendant and appellee.
   JANVIER, Judge.

Aetna Finance Company, a corporation engaged in the business of making small loans under the provisions of Act No. 7 of the Extra Session of 1928, brought this suit in the First City Court of New Orleans alleging that on March 22nd, 1947, it had made a loan of $300.00 on a note executed by Gus Betz and John W. Bowen, and that there remained past due and owing a balance of $275.48, together with interest and attorney’s fees as stipulated in the note. It prayed for judgment against the said Betz and the said Bowen for the said amount with interest and attorney’s fees.

Betz made no appearance and there was judgment by default against him as prayed for. He has not appealed.

Bowen answered the petition, denying that he had signed “any promissory note of any kind, in connection with Gus Betz and the Aetna Finance Company,” and he also alleged that if his name appeared on any such note “the "said alleged signature is a forgery.” He then assumed the position of plaintiff in reconvention and made the following allegation:

“That defendant in reconvention, the Aetna Finance Company, called upon him for the payment of this note, prior to the suit being filed; that he denies that he had signed the note and informed them that his said alleged signature was a forgery, and he cautioned the said finance company not to file suit against him, for the said suit would injure his good name and reputation; that in spite of the caution and the warning given to the finance company by reconvenor, the said finance company filed suit nevertheless, causing your petitioner worry, embarrassment and mental anguish, and causing him to bind himself for the payment of $150.00 attorney’s fees for the defense of this case.”

He prayed for a dismissal of the main demand and for judgment in reconvention for $650.00 against Aetna Finance Company.

Aetna Finance Company, defendant in reconvention, filed an exception of no cause of action, which was “referred to the merits.”

After a trial there was judgment below in favor of Bowen dismissing the suit as against him, and on the reconventional demand there was judgment in Bowen’s favor against Aetna Finance Company in the sum of $150.00, with interest and costs.

Counsel for Bowen assert in their argument in this court that plaintiff failed to prove the genuineness of the signature of Bowen and they rely largely upon the fact that plaintiff did not attempt to prove this signature in one of the ways set forth in Articles 324 and 325 of our Code of Practice. Those articles read as follows:

“324. Acknowledgment or denial of signature by defendant. — When the demand is founded on an allegation, or an act under private signature, which is alleged to have been signed by the defendant, such defendant shall be bound in his answer to acknowledge expressly or to deny his signature.
“325. Denial of signature by defendant —Proof of genuineness. — If the defendant deny his signature in his answer, or contend that the same has been counterfeited, the plaintiff must prove the genuineness of such signature, either by witnesses who have seen the defendant sign the act, or who declare that they know it to be his signature, because they have frequently seen him write and sign his name.
“But the proof by witness shall not exclude the proof by experts or by a comparison of the writing, as established by the Civil Code.”

It is true that when the signature of Bowen was denied by him and the case came to trial, plaintiff offered no handwriting expert, and did not produce any witness who had seen the defendant sign the note sued on, nor any witness who, having frequently seen him sign his name, could identify his signature.

But plaintiff did produce a witness, Edward Wood, its office manager, who testified that when Betz brought the note to him, before the loan had been completed, and he saw on it a signature which Betz reported was that of defendant Bowen, he, Wood, telephoned to a number which had been given on a previous application as that of Bowen, in an effort to “verify” the loan. Wood said that he spoke to someone whose voice souned to him like “John’s” voice— John being the first name of John W. Bowen — whom Betz knew. Before Wood could state what he had been told by “John”, counsel for defendant Bowen made the following objection:

“I object to any conversation this gentleman had with some unknown party over the telephone.”

This obj ection was maintained and Wood was not permitted to state what he had been told over the telephone by someone whose voice sounded to him like that of Bowen.

It is contended by counsel for Bowen that the purpose of the evidence which was excluded was to show that Bowen had stated over the telephone that though he did not sign the note, he would see that it was paid or would be responsible for it, and it was contended that such evidence would have been inadmissible as not responsive to the pleadings, the argument being that Bowen was sued as the maker of the note and not as a guarantor who, though he had not executed the note, had said that he would see that it was paid.

It is argued that such evidence, if admitted, would have enlarged the pleadings. However, there is nothing in the record to show that the purpose of eliciting evidence as to the statement which had been made over the telephone was to show that Bowen had agreed that he would pay the note. It may well be that Wood would have testified that Bowen admitted over the telephone that he had signed the note. If that had occurred, surely evidence to the effect that such admission had been made over the telephone would have been admissible. And it is almost inconceivable that the testimony concerning the conversation of Wood with Bowen would have been for the purpose of proving that Bowen had stated that though he had not signed the note he would be responsible for it, because it is certain that since at that time the loan had not been completed, if Bowen had made the statement over the telephone that he had not signed the note, the loan would not have been consummated on that note on the mere verbal assurance of Bowen that he would be responsible for it.

The fact that the telephone was used did not affect the admissibility of the statement.

Mr. Wigmore, in his work on Evidence, Second Edition, Vol. 4, p. 5§5, in discussing the admissibility of evidence concerning telephone conversations, states:

“It is generally conceded that a person may be recognized and identified by his voice, if the hearer is acquainted with the speaker’s voice. * * * ” .

Our own Supreme Court, in a criminal case in which the defendant was convicted and sentenced to fifteen years imprisonment, held that evidence as to statements heard over the dictaphone and automatically recorded could be admitted if the voice of the speaker could be identified. See State v. Dooley, 208 La. 203, 23 So.2d 46, 48, wherein the court said:

“As we understand, a microphone, like a telephone, is an electrical contrivance by means of which sound is heard at a greater distance than it may ordinarily be heard. The rule as to allowing the ■ introduction of testimony of conversations of defendants in criminal prosecutions heard by this kind of mechanical contrivance is as follows : ‘The admissions and declarations of accused are not incompetent because they were received over a telephone, dictograph or detectaphone, where the witness receiving them could testify that he knew and recognized his voice, or where his testimony as to the identity of the voice is sufficient to carry the question to the jury * * 22 C.J.S., Criminal Law, § 731, page 1249.”

The evidence which was sought to be elicited may not have been inadmissible, provided Wood could identify the voice of the speaker and it is clear that he thought he could do so because he referred to the speaker as “John”, and stated that he had obtained his number from an application for a loan which had been previously signed by this same John, — meaning John Bowen.

It may well be that even if such evidence had been introduced, the trial judge would not have been convinced by it and would have decided that the signature was a forgery, but the evidence then would have been in the record and could have been considered by us.

As the record on the main issue is now made up, we think that the ends of justice will best be served by remanding the matter to the end that such evidence and any other admissible evidence may be introduced.

We have no doubt at all that, in spite of Articles 324 and 325 of our Code of Practice, admissions made by the alleged maker of the note concerning the genuineness of the signature may be introduced in evidence. In the case of Siekmann v. Schwartz, 132 La. 852, 61 So. 847, as expressed in syllabus No. 1, it is said:

“While the acknowledgment of a defendant made prior to the institution of a suit that she was the maker of the note sued on is admissible as evidence to prove the genuineness of the note, still this acknowledgment should not be held to be determinative of the whole issue, as the court must consider the circumstances under which the acknowledgment was made, and of mental and physical health of the person making the acknowledgment.”

When we come to consider the re-conventional demand, we reach the conclusion that that demand should have been dismissed under the exception of no cause of action and that no evidence in support of it should have been accepted. There is in the allegation which we have quoted no charge whatever of malice and no charge of want of probable cause. It is true, of course, that there is no express language which must be resorted to where either malice or want of probable cause is charged, but there must certainly be something more than a simple allegation that the plaintiff in the suit was told that the debt sued on was not due. If a suit for damages will lie whenever a prospective defendant in a civil action alleges that he told the plaintiff that the debt was not due and gave warning not to sue, then in almost every case an unsuccessful plaintiff will be subjected to liability for damages and for attorney’s fees.

In Corpus Juris Secundum, Vol. 1, Actions, § 15, page 1008, it is stated:

“In consonance with the rule or maxim already noted in § 4a of this Title, that for every wrong there is a remedy, it is the policy of the law that every person, acting in good faith, should have free and unobstructed access to the courts for the purpose of invoking their aid to protect him in the enjoyment of his legal rights and property, and, for this purpose, of both maintaining actions and making defenses thereto. Although one party may thereby subject the other to unnecessary trouble and expense, unless the action is malicious and without probable cause, as fully discussed in the title Malicious Prosecution § 19 (38 C.J. p. 400 note 36-p 403 note 45), the damage so caused is damnum absque injuria, and, as a general rule, a cause of action cannot be maintained for redress therefor, except in so far as it may be covered by a contract of indemnity, or the successful party may be entitled to redress by way of taxable costs, * *

To the same effect we note what the Supreme Court of Louisiana said in Cade v. Yocum, 8 La.Ann. 477:

“A plaintiff who neither arrests the defendant, nor disturbs her property, will not be mulcted in damages, because it turns out he was mistaken as to what he supposed were his legal rights.”

If it be true that the defendant in re-convention, in addition to filing the exception of no cause of action, should have objected to the introduction of any evidence in support of the reconventional demand, then we say that, nevertheless, the reconventional demand must be dismissed because the evidence, which was introduced, does not to any extent at all show malice or want of probable cause.

We have been somewhat concerned over -the question of whether we should remand the main demand for the introduction of the evidence which was excluded and such other relevant evidence as may be available and yet dismiss the re-conventional demand. We have reached the conclusion that there is no doubt of our right to do this. An appellate court is vested with discretion to remand a case wherever the ends of justice will be best served, and surely we are not required to remand the entire matter where the record shows to our complete satisfaction that the reconventional demand is not well founded.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be and it is annulled, avoided and reversed, and that there now be judgment dismissing the reconventional demand, and that there be further judgment remanding the principal suit to the First City Court of New Orleans for further proceedings according to law and not inconsistent with the views herein expressed, costs of this appeal to be borne by defendant, John W. Bowen, all other costs to await the final determination of the suit.

Reversed and remanded.


author: BOYD, Justice.

text:
    STATE of Florida, Petitioner, v. Toby Allen HASSBERGER, Respondent. STATE of Florida, Petitioner, v. Donald Bruce GRIMES, Respondent.
    Nos. 48444 and 48445.
    Supreme Court of Florida.
    May 26, 1977.
    Rehearing Denied Sept. 7, 1977.
    Robert L. Shevin, Atty. Gen., and Paul H. Zacks, Asst. Atty. Gen., for petitioner.
    Robert S. Sigman, Law Offices of Sigman & Speigel, Orlando, for Toby Allen Hass-berger.
    Charles R. Stepter, Jr., Fishback, Davis, Dominick & Simonet, Orlando, for Donald Bruce Grimes, respondent.
   BOYD, Justice.

Toby Allen Hassberger and Donald Bruce Grimes were arrested by members of the Orlando Police Department after they were observed delivering cannabis to a confidential informant. After charges were entered against both Hassberger and Grimes defense counsel moved for disclosure of the informant’s identity. The motion was granted. On the State’s ex parte motion for a protective order, and without notice to the codefendants, the court held an in camera hearing at which the State presented evidence of danger to the safety of the informant should his real identity be disclosed. At the conclusion of the hearing the court entered a protective order which relieved the State from the requirement that it furnish the defénse with the true name and address of the informant but which required the informant to be present at trial and available for depositions.

At trial, the State called the informant as a witness and the defense cross-examined him to the extent possible without knowing his real name or address which by reason of the court order were protected from disclosure to the defense. Both defendants were found guilty and appealed separately to the District Court of Appeal, Fourth District. The court first reversed Hassberger’s conviction because of denial of his sixth amendment right to cross-examination by failure of the lower court to require disclosure of the informant-witness’ true name and address. On the authority of Hassber-ger, Grimes’ conviction was reversed and on rehearing in Grimes the following question was certified to be one of great public interest:

CAN THE IDENTITY (ACTUAL NAME AND ADDRESS) OF A CONFIDENTIAL INFORMANT BE KEPT SECRET WHEN THE TRIAL COURT FINDS (BY MEANS OF AN IN CAMERA PROCEEDING ON THE SUBJECT), THAT THE INFORMANT’S PERSONAL SAFETY IS AT STAKE— WHEN THAT INFORMANT APPEARS AS A WITNESS IN THE CRIMINAL PROCEEDING?

The State requests this Court to accept jurisdiction of the Grimes decision through the certified question and of the Hassber-ger decision because of conflict with other decisions of Florida appellate courts. We accept jurisdiction of the certified question in Grimes. There is no conflict between the Hassberger decision and other decisions of Florida appellate courts, and, therefore, the petition in Hassberger should be discharged.

The prosecution’s limited privilege to withhold the identity of a confidential informer is well established under Florida law. Treverrow v. State, 194 So.2d 250 (Fla.1967); Harrington v. State, 110 So.2d 495 (Fla. 1st DCA 1959); Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965). Even where the informer never testifies at a trial or hearing, but simply provides the police with information which is helpful in their investigation of crime, there are due process limitations on the extent of the privilege. Where disclosure of an informer’s identity is relevant and helpful to the defense of an accused, or is essential to a fair determination of the cause, the privilege must give way. State v. Matney, 236 So.2d 166 (Fla. 1st DCA 1970); Rovario v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The United States Supreme Court has adopted a rule of fairness as regards the necessity of disclosure, which is as follows:

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.
Rovario v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 629, 1 L.Ed.2d 639 (1957).

Where the state produces the informer at trial, and attempts to prevent the witness from giving certain testimony on cross-examination, the sixth amendment right of an accused to confront the witnesses against him, made obligatory on the states by the fourteenth amendment, places severe restrictions on the privilege of nondisclosure. Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 156 (1968); Alford v. United States, 282 U.S. 687, 51 S.Ct. 77, 75 L.Ed. 736 (1931).

In the case under review, the trial court attempted to balance a concern for the safety of a State confidential informant turned witness against the right of a defendant to meaningfully confront witnesses against him. However earnest the effort, we believe that under the facts of this case, the defendant was denied his right to effectively confront the witnesses against him, in violation of the principles of law announced in Smith and Alford, supra.

In Smith v. Illinois, supra, the principal witness against the accused identified himself on direct examination as - “James Jordan.” He testified that the accused purchased a bag of heroin from him in a certain restaurant, but was the only witness, aside from the accused, who could testify as to the crucial events inside the restaurant. On cross-examination, the witness admitted that James Jordan was not his real name, but the trial court sustained the State’s objection when the witness was asked to give his correct name and address. The United States Supreme Court held that the accused had been denied a right guaranteed him under the sixth and fourteenth amendments, stating:

[W]hen the credibility of a witness is in issue, the very starting point in “exposing falsehood and bringing out the truth” through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.
390 U.S. at 131, 88 S.Ct. at 750.

Alford v. United States, supra, similarly reversed a federal conviction which abridged the same right. An important prosecution witness gave damaging testimony with respect to various transactions of the accused, including conversations with the witness when others were not present, and statements of the accused to salesmen under his direction, whom the witness did not identify. On cross-examination, questions seeking to elicit the residence address of the witness were excluded. In reversing, the Court stated:

It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test. .
The question, “Where do you live?” was not only an appropriate preliminary to the cross-examination of the witness, but on its face, without any such declaration of purpose as was made by counsel here, was an essential step in identifying the witness with his environment. .
282 U.S. at 692-93, 51 S.Ct. at 220.

In a concurring opinion in Smith v. Illinois, supra, Justice White, with whom Justice Marshall joined, noted that in Alford, the Court recognized that questions which tend merely to harass, annoy, or humiliate a witness may go beyond the proper bounds of cross-examination. He opines:

I would place in the same category those inquiries which tend to endanger the personal safety of the witness. But in these situations, if the question asked is one that is normally permissible, the State or the witness should at the very least come forward with some showing of why the witness must be excused from answering the question. .

390 U.S. at 133-34, 88 S.Ct. at 751. A significant number of federal and state courts, citing this language in Smith, have concluded that the defendant’s right to background information on the witness is not absolute. They hold that Smith and Alford notwithstanding, where there has been some real threat to the personal safety of the witness because of his willingness to testify in that proceeding, the present address of the witness may be withheld from the defendant, as long as the cross-examination is otherwise vigorous, full and effective. Almost never, however, is the State privileged to withhold the witness’ real identity. In United States v. Alston, 460 F.2d 48 (5th Cir. 1972), cert. denied, 409 U.S. 871, 93 S.Ct. 200, 34 L.Ed.2d 122 (1972), the court held that the trial court did not abuse its discretion in refusing to order a federal narcotics agent to divulge his current home address on the witness stand, because the accused had had sufficient opportunity on cross-examination to “place the witness in his proper setting,” and there was a reasonable fear for the safety of the agent or his family, should the information be disclosed. In an analytical approach which is typical of those cases upholding this “personal safety of the witness” exception to the Smith-Alford rule, the Fifth Circuit reasoned that the substance of those United States Supreme Court decisions was that the defendant must be allowed sufficient latitude on cross-examination to fully “identify the witness with his environment,” and where the cross-examination has otherwise been complete,, no prejudice results to the defendant if only the current home address of the witness is withheld.

In United States v. Palermo, 410 F.2d 468 (7th Cir. 1969), the court adopted a procedure which has been widely accepted in dealing with this problem. First, an actual, not implied, threat .to the witness or to his family must be shown. Second, the government must disclose to the judge in camera the information sought to be withheld from the accused. The judge must then determine whether the facts must be disclosed, in order not to deny effective cross-examination to the defendant. His decision is reviewable on appeal. Finally, the accused must be allowed to show any special need for the information requested.

We approve of the “personal safety” exception to the otherwise ordinary duty of the State to allow the defendant full access to its witnesses on cross-examination, and of the procedure outlined in Palermo, supra. We stress, however, that this exception is an exceedingly narrow one, and that all doubts must be resolved in favor of the accused’s sixth and fourteenth amendment right to confront the witnesses against him. The use of a “John Doe” witness is clearly prohibited, and the correct name of the witness must be supplied. Rovario v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 156 (1968).

The Florida criminal discovery rules are not at variance with our opinion today. Rule 3.220(c)(2) of the Florida Rules of Criminal Procedure states:

(2) Informants. Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial, or a failure to disclose his identity will infringe the constitutional rights of the accused.

This rule appears to make the disclosure requirement absolute, where the informant is to testify at trial. This rule, however, cannot be presumed to lay down a principle of substantive law. Furthermore, the court has a legitimate interest in balancing the safety of a witness against the need for full and complete cross-examination. Beasley v. State, 271 Md. 521, 318 A.2d 501, 508 (1974). Fla.R.Crim.P. 3.220(h) qualifies the above-cited rule, stating:

(h) Protective Orders. Upon a showing of cause, the court may at any time order that specified disclosures be restricted or deferred, or make such other order as is appropriate, provided that all material and information to which a party is entitled must be disclosed in time to permit such party to make beneficial use thereof.

Under Fla.R.Crim.P. 3.220(h), the trial court may enter an order protecting the confidentiality of the current address of a witness, according to the procedure set forth above.

In the present case, the true name and address of the informant appearing at trial should not have been withheld. The informant, “Ed,” was clearly an important government witness; the transcript of his testimony occupies approximately one-third of the entire record on appeal. His true name should have been disclosed to the accused. In addition, the trial judge did not require the confidential informant to appear before him and testify to specific threats which were made against his safety as, a result of his testimony in this case. Nothing appears in the record by which a reviewing court can determine whether the threat to the witness’ safety was sufficient to overcome the defendant’s interest in the disclosure of the address of the witness.

The certified question is answered in the negative under the facts and for the reasons expressed in this opinion.

It is so ordered.

OVERTON, C. J., and ENGLAND and KARL, JJ., concur.

ADKINS, J., concurs in result only.

      . 321 So.2d 577 (Fla. 4th DCA 1975).

      . 321 So.2d 584 (Fla. 4th DCA 1975).

      . Art. V, § 3(b)(3), Fla.Const.

        .Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

      . E. g, McGrath v. Vinzant, 528 F.2d 681 (1st Cir. 1976) (current home address); United States v. Persico, 425 F.2d 1375 (2d Cir. 1970), cert. denied, 400 U.S. 869, 91 S.Ct. 102, 27 L.Ed.2d 108 (1970) (address and place of employment); United States v. Alston, 460 F.2d 48 (5th Cir. 1972), cert. denied, 409 U.S. 871, 93 S.Ct. 200, 34 L.Ed.2d 122 (1972) (home address); United States v. Palermo, 410 F.2d 468 (7th Cir. 1969) (address and present employment); Kirschbaum v. United States, 407 F.2d 562 (8th Cir. 1969) (present address); United States v. Ellis, 468 F.2d 638 (9th Cir. 1972) (correct name, address, and occupation of undercover agent); United States v. Smaldone, 484 F.2d 311 (10th Cir. 1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974) (address).

      . E. g., People v. Benjamin, 52 Cal.App.3d 63, 124 Cal.Rptr. 799 (1975) (address); People ex rel. Dunbar v. District Court of the Seventh Judicial District, 177 Colo. 429, 494 P.2d 841 (1972) (residence address); People v. Shaw,
        117 Ill.App.2d 16, 254 N.E.2d 602 (1969) (rule recognized); State v. Hill, 211 Kan. 287, 507 P.2d 342 (1973) (present address); State v. Thornton, 309 So.2d 266 (La.1975), cert. denied, 423 U.S. 861, 71 S.Ct. 117, 46 L.Ed.2d 89 (1975) (address); Beasley v. State, 271 Md. 521, 318 A.2d 501 (1974) (address); Commonwealth v. McGrath, 364 Mass. 243, 303 N.E.2d 108 (1973) (home address of rape victim at time of trial); People v. Pleasant, 69 Mich.App. 322, 244 N.W.2d 464 (1976) (home address); State v. Caldwell, 303 Minn. 297, 227 N.W.2d 382 (1975) (residence and place of employment); Commonwealth v. Vorhauer, 232 Pa.Super. 84, 331 A.2d 815 (1974) (present place of employment); State v. Capone, 347 A.2d 615 (R.I.1975) (current address and place of business); Richardson v. State, 508 S.W.2d 380 (Tex.Cr.App.1974) (residence, wife’s name, bank, and names and addresses of some of his associates); State v. Berard, 132 Vt. 138, 315 A.2d 501 (1974), cert. denied, 417 U.S. 950, 94 S.Ct. 3078, 41 L.Ed.2d 671 (1974) (residence).

      . Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 156 (1968); United States v. Palermo, 410 F.2d 468 (7th Cir. 1969); but see United States v. Crovedi, 467 F.2d 1032 (7th Cir. 1972), cert. denied, 410 U.S. 990, 93 S.Ct. 1510, 36 L.Ed.2d 189 (1973) (assumed names of government witnesses withheld from defendant, where the FBI had arranged for the witnesses to take on totally new identities for their own protection).

      . Accord, Smith v. Illinois, 390 U.S. 129, 134, 88 S.Ct. 748, 19 L.Ed.2d 156 (1968) (Justice White, concurring); Beasley v. State, 271 Md. 521, 318 A.2d 501 (1974) (trial judge abused his discretion in restricting cross-examination, where there was no hearing before the judge at which the witness related her fears for personal safety, but only counsel for witness furnished the information); see People ex rel. Dunbar v. District Court of the Seventh Judicial District, 177 Colo. 429, 494 P.2d 841, 843 (1972) (requiring that there be a nexus such that the witness legitimately fears reprisals from the defendant or his associates); People v. Shaw, 117 Ill.App.2d 16, 254 N.E.2d 602, 605 (1969) (requiring that an explicit threat against the witness be shown); Commonwealth v. Vorhauer, 232 Pa.Super. 84, 331 A.2d 815, 819 (1974) (hearing conducted in judge’s chambers detailing threats against the life of the witness as a result of his testimony in the case); but see Commonwealth v. McGrath, 364 Mass. 243, 303 N.E.2d 108 (1973), and McGrath v. Vinzant, 528 F.2d 681 (1st Cir. 1976) (rape victim need not disclose present address, and although no express claim of threat to the witness made, the courts found the threat “inherent in the situation;” defendant’s counsel made no attempt to show special need of the information, or its special relevance).


author: PER CURIAM. BOYD, Justice, SUNDBERG, Justice,

text:
    David S. HUFFMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 49731.
    Supreme Court of Florida.
    June 10, 1977.
    Rehearing Denied Sept. 12, 1977.

      Jack 0. Johnson, Public Defender, and David S. Bergdoll, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Davis G. Anderson, Jr., Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected probable jurisdiction in this Court. We issued the writ and have heard argument of the parties. After hearing argument and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the writ must be and is hereby discharged and the petition for writ of certiorari is dismissed.

It is so ordered.

OVERTON, C. J., and ADKINS, ENGLAND and KARL, JJ., concur.

BOYD, and SUNDBERG, JJ., dissent with opinions.

HATCHETT, J., dissents and concurs with BOYD, J.

BOYD, Justice,

dissenting.

I dissent to discharge of the writ because in my opinion the district court’s decision in this cause, reported at 336 So.2d 612 (Fla.2d DCA 1976), conflicts with Jordan v. State, 293 So.2d 131 (Fla.2d DCA 1974).

On November 28, 1972, petitioner Huffman was convicted of one count of rape and one count of breaking and entering with intent to commit a felony under aggravating circumstances. He was sentenced to two concurrent life terms. On appeal, the lower court judgment was affirmed, but the life sentence for breaking and entering was reduced to fifteen years since the intent to assault (i. e., to rape) was formed after petitioner entered the dwelling. Huffman v. State, 301 So.2d 815 (Plaid DCA 1975).

In January, 1975, Huffman filed a Motion to Vacate Sentence (Fla.R.Crim.P. 3.850) claiming denial of his constitutional rights by the trial court’s refusal to entertain defense counsel’s challenge to the composition and selection process of the all white jury.

In the motion Huffman claimed that he was denied a fair trial by an impartial jury drawn from a representative cross-section of the community because of racial bias in the jury selection process. The trial court denied the motion and the District Court of Appeal, Second District, affirmed per cu-riam. 336 So.2d 612 (Fla.2d DCA 1976).

Jordan and the instant case are quite similar. They both involve the rape conviction of a black defendant by an all white jury. The chief complaining witnesses in the respective cases were also white. The two trials were held in Sarasota circuit court; Huffman’s only two months earlier than Jordan’s.

The district court reversed the conviction of Jordan on the basis that he had made a prima facie showing that the jury selection process deprived him of his constitutional right to an impartial jury. Jordan, 293 So.2d at 134. The State did not then meet its burden in rebutting this prima facie case.

The Jordan court found that there was opportunity for the jury commissioners to racially discriminate during the jury selection process. The commissioners would select four or five precincts out of the forty-five in the County. The jury lists were then drawn from the voter registration cards, upon which the race of each voter was indicated. The commissioners would examine each card to determine if the listed voter was qualified to serve on a jury. After qualified prospective jurors had been winnowed out, the names were put in a “jury drum” from which a master venire was derived. The Jordan court also noted that out of the 1344 prospective jurors, there were only four black voters on the master list. The jury that convicted Huffman was drawn from the same venire.

The Jordan court stated that the defendant had made a prima facie showing of unconstitutional racial bias in jury selection by demonstrating that there was an opportunity to discriminate and there was a “substantial statistical disparity between the proportion of blacks selected and the proportion of blacks eligible for jury duty.” Jordan, 293 So.2d at 133. Citing Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972), the court stated that once such a prima facie case is presented the burden shifts to the State to rebut the presumption that the venire panel is unconstitutionally composed. The prima facie showing was not rebutted by the state; thus Jordan’s conviction was reversed.

At the conclusion of the opinion the district court stated the following:

“ . . . [U]nless the challenge to the precinct system was made and decided prior to trial in any other case, the right to object is considered to have been waived.” Jordan, 293 So.2d at 134.

Similarly this Court has stated:

“Although we are required to hold that there were arbitrary exclusions in the selection of the jurors, those who have been convicted can receive no comfort from this decision. A challenge to the panel, or challenge to the array, is used to question the selection or drawing of prospective jurors. Such a challenge must be made and decided before any independent juror is examined . . ..” State v. Silva, 259 So.2d 153 (Fla.1972).

As a portion of the trial transcript, infra, indicates, Huffman’s counsel challenged the venire panel prior to voir dire but was prevented from presenting a prima facie case of racial bias in the selection process. Counsel stated that he was prepared to interrogate the Jury Commission. The trial judge refused this request and stated that he would allow counsel to question the Supervisor of Elections instead. The record indicates that both counsel and the trial judge knew that inquiry of the Supervisor would be futile.

The challenge to the array was made orally, prior to voir dire. The transcript reads in pertinent part:

“MR. HASTINGS: ... We would move to strike the panel as it exists at the present time, that is the prospective jury panel, prior to the selection of the jury in this matter. And as our consideration there is the following. The defendant is — is a person of the negro race and the chief complaining witness is a person of the white race. The entire panel, at least from a visual perusal of same on behalf of counsel, is constituted of white people. While I have an abiding faith personally in the system of justice at the very same time I think from a constitutional stand point it raises the question as to whether or not the defendant will have in the final analysis a jury of his peers. “Now, if the Court would permit me I would be prepared to make the proper interrogation of the Jury Commission that I would assume that is here in Sarasota County to determine whether or not there is systematic exclusion of blacks from juries in Sarasota County. . “And that being the case I question seriously whether or not Sarasota is — that is, the County structure for selection of juries is — is in compliance with regulations that the United States Supreme Court has enunciated regarding fair trial and of a person being allowed to receive a jury of their peers ... I would just like for the purposes of Mr. Huffman’s record to have that reserved as a question.
“THE COURT: Would you like to interrogate the Supervisor of Elections? I can arrange to have her here and I think she can speak for them for your record.
“MR. HASTINGS: ... No, sir, Judge, I would be prepared to proceed and respectfully ask the Court’s indulgence in that regard and understand full well that I have placed on the record that the jury panel is white. I think I know what the Supervisor of Elections would say, that they are extracted from the voting rolls without imputing anything to color.
“THE COURT: I am sure that would be the case. . . .”

Thus, it appears that while trial counsel was prepared to make the prima facie showing of a systematic exclusion of blacks from the County’s juries, the judge refused to allow him the opportunity to do so. From Jordan we know that there could have been shown a prima facie case that the State would not have been able to rebut. Therefore, Huffman’s Motion to Vacate Sentence should have been granted.

The district court’s decision to uphold the denial of the motion conflicts with Jordan. It should be quashed.

HATCHETT, J., concurs.

SUNDBERG, Justice,

dissenting.

Although I do not concur in discharge of the writ in this case, in fairness to the State and the judges who have heretofore considered this matter, it should be pointed out that petitioner and his various counsel have been less than diligent in presenting and pursuing the due process deficiency here complained of. Petitioner raised no objection by motion prior to trial which is the indicated manner for questioning a jury venire. At trial, although petitioner’s counsel raised the issue of the deficiency in the jury venire, he failed to follow the prescribed procedure for presenting the issue and was less than forceful in attempting to establish the factual basis for disqualifying the venire. The colloquy between counsel and the trial judge before voir dire demonstrates a willingness of the judge to consider the issue if properly presented, but a reluctance by counsel to do more than make a general observation about the makeup of the panel.

At best it can be said that counsel did little more than preserve the issue for appeal. However, strangely enough, the objection to the jury panel was not even presented on appeal of the judgments and sentences to the district court of appeal following petitioner’s conviction. (Conced-edly that review was prosecuted by different counsel and took the form of habeas corpus because State action frustrated petitioner’s right to a direct appeal.) Furthermore, petitioner addressed several applications to the trial court for mitigation of sentence, at least one of which could have been treated as an application for relief under Fla.R.Crim.P. 3.850, and none of those applications raised the matter here objected to.

It was not until January 27, 1975, that petitioner filed a motion pursuant to Fla.R. Crim.P. 3.850 raising for the first time post trial the legality of the selection of his prospective jurors at trial. Denial of this motion was affirmed by the district court of appeal, per curiam, without opinion. 336 So.2d 612 (Fla.2d DCA 1976). It is this action by the district court which is asserted to conflict with Jordan v. State, 293 So.2d 131 (Fla.2d DCA 1974). As pointed out by the dissent of Mr. Justice Boyd, Jordan held that the appellant there made a prima facie showing that the jury selection process deprived him of his constitutional right to an impartial jury which the State failed to rebut. The State here asserts that no such prima facie showing has been made by petitioner through the eonclusory statements made in his motion to the trial court and, hence, the per curiam affirmance by the district court does not conflict with its decision in Jordan. I am persuaded to agree with the State. Nonetheless, it cannot be denied that the jurors who convicted petitioner were drawn from the very same master jury list as were the Jordan jurors and that list was not altered from the time of petitioner’s trial until after Jordan’s trial. Therefore, it is inescapable that the deficiencies attached to Jordan’s jury were present in the selection of petitioner’s jury.

Consequently, where so fundamental an error has occurred in the observance of one’s constitutional rights, a new trial is mandated. If jurisdiction does not exist in this Court due to lack of conflict with Jordan, it exists through habeas corpus. See Article V, Section 2(a) and Section 3(b)(6), Florida Constitution. As observed in Justice Boyd’s opinion, State v. Silva, 259 So. 2d 153 (Fla.1972), is no impediment to our consideration of this case because objection was made in the trial court although not with the niceties which might better have been observed.

Accordingly, I would treat this petition as one seeking habeas corpus and grant the writ to the extent of requiring a new trial. To do otherwise in this case is to elevate form over substance.

      . Jordan, 293 So.2d page 133, indicates that the list was compiled in October, 1972. Huffman was convicted in November, 1972. A new list was not drawn in the interim. (See footnote 2 in text.)

      . Race was indicated on the voter registration cards.

      . 2.65% of registered voters were nonwhite, while .297% of prospective jurors were black. Jordan, 293 So.2d at 133. The odds, therefore, of having a black on a jury in Sarasota County at the time of both Jordan and Huffman was only one in ten million. Jordan, note 4.

      .There is a refusal implicit in the judge’s counter offer of the Supervisor of Elections rather than the Jury Commission; the latter was exclusively and ultimately responsible for jury selection.