author: ALDERMAN, Chief Judge.

text:
    The HOTEL & RESTAURANT EMPLOYEES & BARTENDERS INTERNATIONAL UNION, an unincorporated association, Appellant, v. LAKE BUENA VISTA COMMUNITIES, INC., a Florida Corporation, Appellee.
    No. 77-500.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1977.

      John D. McElheny and Robert D. Gatton of Johnson, Motsinger, Trismen & Sharp, Winter Park, for appellant.
    Becky A. Powhatan of Akerman, Senter-fitt & Eidson, Orlando, for appellee.
   ALDERMAN, Chief Judge.

The defendant, The Hotel & Restaurant Employees & Bartenders International Union, seeks dismissal of the plaintiff’s complaint based upon an alleged insufficiency of process. We find no reversible error and affirm.

The plaintiff, Lake Buena Vista Communities, Inc., filed suit in Orange County, Florida, to nullify a mortgage held by the defendant on real property owned by the plaintiff in that county. The original summons was issued by the Clerk of the Circuit Court on December 21, 1976, and the plaintiff attempted to serve the defendant at its main office in Hamilton County, Ohio. On January 7, 1977, the plaintiff, in writing, advised the Clerk that it had been unable to find anyone in Ohio upon whom process could be served, but had learned that the president of the defendant union was in Miami. The plaintiff requested and the Clerk issued an alias summons; later that same day the alias summons was served upon the union’s president in Miami. At the time the alias summons was issued, the original summons had not been returned to the Clerk’s office; it was; however, subsequently filed on January 17, 1977, with a return indicating that the defendant could not be located in Hamilton County, Ohio. On January 18, 1977, a “Notice of Appearance” was filed by the attorneys representing the defendant; subsequently, on January 27, 1977, the defendant filed its motion to dismiss.

The defendant’s only point on appeal is that the Clerk has no authority to issue an alias summons until the original is returned “not executed or returned improperly executed.” It relies upon that portion of the Fla.R.Civ.P. 1.070(b) which provides:

“When any process is returned not executed or returned improperly executed for any defendant, the party causing its issuance shall be entitled to such additional process against the unserved party as is required to effect service.”

The defendant contends, since at the time the alias summons was issued the original summons had not been returned “not executed or returned improperly executed”, that the alias summons was improperly issued and therefore insufficient. We reject this contention and hold that the alias summons, even if improvidently issued, was not void and, under the circumstances of this case, was sufficient.

Trawick’s Florida Practice and Procedure, Section 8.3 (1975), correctly points out that when the original summons is not returned, an alias summons can be authorized by the court. The proper procedure is to file a motion to obtain such authorization, alleging the need for alias summons and the reason the original summons has not been returned. This procedure was not followed in the present case, but the error was harmless because the trial court would have been justified in approving the issuance of an alias summons if a proper motion had been made prior to the return of the original summons. Although the plaintiff should have obtained the court’s authorization in advance, we find no abuse of discretion on the part of the trial court in approving the issuance of the alias summons, after the fact.

Additionally, it appears that the “Notice of Appearance” filed by defendant’s attorneys in this case was a general appearance which subjects the defendant to the jurisdiction of the court and precludes a later challenge as to the sufficiency of process. A defendant may not make a general appearance and later repudiate it by attacking the court’s jurisdiction over him. Royal Industries, Inc. v. Birdsong, 340 So.2d 526 (Fla. 1st DCA 1976).

AFFIRMED and REMANDED.

DAUKSCH and LETTS, JJ., concur.


source: Caselaw Access Project

author: HENDRY, Chief Judge.

license: Public Domain

text:
    TAYLOR CREEK VILLAGE ASSOCIATION, INC., a Florida Corporation, Appellant, v. Leslie HOUGHTON et al., Appellees.
    No. 76-1155.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1977.
    Joe N. Unger, Miami, for appellant.
    Horan & Finley and David Paul Horan, Key West, for appellees.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HENDRY, Chief Judge.

Appellant, defendant-counter-plaintiff below, appeals from a final judgment rendered in favor of appellees, plaintiffs-counter-defendants below.

Appellees’ amended complaint for declaratory judgment and injunctive relief sought declaratory relief concerning the applicability of a certain declaration of restrictions placed upon certain mobile homesites by the original developer of the tract, Key Largo Mobile- Homesites, Inc. Appellees also sought a permanent injunction requiring appellant to remove all liens placed by it on appellees’ property for failure to comply with the provisions of the declaration of restrictions, which required both membership in, and payment of dues to an association composed of the purchasers of the subdivision lots.

Appellant counterclaimed, asking the court to determine whether it had the right to continue to enforce the declaration of restrictions and whether it could enforce liens placed upon appellees’ lots for nonpayment of association dues and services.

In a lengthy final judgment containing findings of fact, the learned chancellor ruled, inter alia, that the restrictions were not applicable to appellees’ property under the exhibits and testimony presented to the court and discharged the liens placed on said property. The court also ordered that appellees were not required to pay dues for certain recreational and common areas. The applicable findings of fact are as follows:

“The Court heard the testimony of the witnesses and considered the exhibits filed in evidence and finds as follows:
“a. The Declaration of Restrictions filed as Plaintiff’s Exhibit No. 1 discloses that the restrictions were placed on record by Key Largo Mobile Home-sites, Inc., on May 3, 1966, and imposes restrictions on a subdivision known as Key Largo Mobile Homesites, Inc., recorded in Plat Book 5, at page 103, of the Public Records of Monroe County, Florida. Said Declaration of Restrictions provides that all buyers in said subdivision shall apply and be approved for membership in Mobile Homesites Club of Key Largo, and that said buyer shall buy the lot subject to rules and regulations of the Club, and that the Club shall maintain all recreational and common areas and vacant lots, and dues for this purpose shall be paid to the Club.
“b. Defendant’s Exhibit No. 2 discloses a Warranty Deed from Key Largo Mobile Homesites, Inc., to Mobile Homesites Club of Key Largo for a parcel of land which appears not to be in the same subdivision described in the above finding of fact. The Court finds that the said Warranty Deed dated November 15, 1971, conveys a club house tract adjacent to Blocks 12 and 13, Key Largo Mobile Homesites, Plat 4, recorded in Plat Book 6, at page 15, of the Public Records of Monroe County, Florida.
“c. The Court finds that Mobile Homesites Club of Key Largo in turn conveys the same club house tract to Taylor Creek Village Association and provides that the said property conveyed is given together with all the rights and privileges conferred upon it by the Declaration of Restrictions in Plat Book 5, page 103. The Court finds that these restrictions in Plat Book 5 should not impose any restriction on property or property owners other than in said Plat Book 5, page 103.”

After carefully reviewing the record, we must agree with the chancellor’s ruling that the exhibits placed before the court were insufficient to show that the restrictions of record applied to appellees’ lots. It is well settled that a chancellor’s findings of fact and conclusions of law come to an appellate court clothed with a presumption of correctness and will not be disturbed unless they are shown to be clearly erroneous. Marx v. Goldfinger, 187 So.2d 380 (Fla.3d DCA 1966).

No such error having been made to appear, the final judgment is hereby affirmed.

Affirmed.


author: PER CURIAM.

text:
    LONG ISLAND INSURANCE COMPANY, Appellant, v. LE-BERT INTERNATIONAL, INC., Appellee.
    No. 77-584.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1977.
    Rehearing Denied Oct. 14, 1977.
    Michael P. Weisberg, Jeanne Heyward, Miami, for appellant.
    Bryson & Berman and Mark S. Berman, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See: Acme Fast Freight, Inc. v. Bell, 318 So.2d 212 (Fla. 3d D.C.A. 1975); Cal-U-Sonic v. Metric Systems Corporation, 330 So.2d 63 (Fla. 1st D.C.A. 1976); Overseas Development, Inc. v. Dominion Mortgage Corporation, 330 So.2d 845 (Fla. 3d D.C.A. 1976); Bay Products Corporation v. Winters, 341 So.2d 240 (Fla. 3d D.C.A. 1976).


author: SCHEB, Judge.

text:
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant, v. Robert F. BRYAR et al., Appellees.
    No. 77-657.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1977.
    Rehearing Denied Oct. 12, 1977.

      Mark E. Hungate and James C. Hada-way, of Fowler, White, Gillen, Boggs, Villa-real & Banker, St. Petersburg, for appellant.
    Douglas J. Loeffler, of Fox, George, Loeffler & Downey, Clearwater, for appel-lees.
   SCHEB, Judge.

The trial court held the 1976 amendment to the no-fault insurance law, which prohibits aggregating or “stacking” of uninsured motorist coverage for each vehicle, does not apply where the insured obtained his policy prior to the effective date of the amendment. We disagree and reverse.

Robin Hoekstra was injured in an automobile accident on October 4, 1976, while driving a car owned by her guardian, Robert Bryar. Unfortunately, the car Robin collided with was not adequately insured to cover the injuries she sustained. Appellees, Mr. & Mrs. Bryar, filed a complaint for declaratory relief on Robin’s behalf, asking the trial court to determine whether the uninsured motorist coverage under Mr. Bryar’s policy could be stacked for the benefit of Robin, since all three of Mr. Bryar’s vehicles were covered by the insurance policy. In its answer Nationwide denied that coverage for the three cars could be stacked, as the legislature had amended the no-fault insurance law to prohibit stacking as of October 1, 1976, three days before the accident. After taking evidence, the trial court entered a partial summary judgment in favor of the appellees, holding that the 1976 amendment “cannot retrospectively affect the provisions of plaintiff ROBERT BRYAR’S insurance policy which was in effect prior to the effective date of said law.” The practical effect of this ruling is to allow Robin to stack coverage under Mr. Bryar’s insurance policy. It is from this determination that Nationwide appeals.

In 1976 the legislature enacted Chapter 76-266, Laws of Florida, as a revision of the automobile liability insurance law of the state. Section 10 of Chapter 76-266 (now Section 627.4132, Florida Statutes [Supp. 1976]) prohibits the stacking of underin-sured motorist coverage. Section 16 provides, “This act shall take effect October 1, 1976, and shall apply to all claims arising out of accidents occurring on or after said date.”

Appellant Nationwide argues that the legislature has mandated that the antis-tacking provision should become effective on October 1,1976, and to allow stacking to continue beyond this point is a violation of the express intent of the legislature. On the other hand, appellees argue that if the legislative mandate is given literal effect, then Chapter 76-266 will impair the obligation of Bryar’s insurance contract with Nationwide, which was entered into prior to the effective date of the amendment. Therefore, the question becomes: If the antistacking provision of Section 10 of Chapter 76-266, which became effective October 1, 1976, applies regardless of when individual insurance policies were entered into, has the legislature impaired Nationwide’s contractual obligation to Bryar?

Article I, Section 10, Florida Constitution prohibits the passing of any law which impairs a contract. The federal constitution contains a similar provision. However, it has long been recognized by the courts of this state that the constitutional prohibition of the impairment of contracts stands on no higher plane than other constitutional provisions; i. e., that this provision should not itself “impair” the legitimate exercises of legislative authority. Shavers v. Duval County, 73 So.2d 684 (Fla.1954); Miami Bridge Co. v. State Railroad Commission, 155 Fla. 366, 20 So.2d 356 (1944); Setzer v. Mayo, 150 Fla. 734, 9 So.2d 280 (1942).

In analyzing impairment of contract problems, the courts have looked to whether the law in question is a legitimate exercise of the police power, and whether the measures taken are reasonable and appropriate. If the law is found to meet these criteria, no impairment will be found. Mahood v. Bessemer Properties, Inc., 154 Fla. 710, 18 So.2d 775 (1944); Lester v. City of St Pe-tersburg, 183 So.2d 589 (Fla.2d DCA 1966).

There can be little doubt that insurance is a proper subject for legislative concern. Insurance, because of its quasi-public nature, is especially appropriate for legislative control. 16A C.J.S. Constitutional Law § 378 (1956). In the past few years the legislature of this state has been increasingly occupied with the task of assuring that adequate insurance coverage will be available to protect the public with premiums within the reach of the citizens of the state.

We think the legislature exercised its power reasonably and appropriately in the challenged section of Ch. 76-266. In Section 14 of Ch. 76-266, the Department of Insurance is required to review automobile insurance rates within sixty days of the effective date of the act “for purpose of insuring that premium or rate reductions resulting from the provisions of this act are being passed on to the insurance policy buyers.” So the legislature, even though it has taken the benefit of stacking from the policy holder, has also attempted to assure that the policy holder will be compensated for any reduction in benefits. This seems reasonable and appropriate when considering the legislative purpose of attempting to reduce skyrocketing insurance rates, which may otherwise jeopardize the ability of drivers and owners to obtain insurance.

Finally, we point out that the governor signed Ch. 76-266 into law on June 27, 1976. So over three months elapsed from the time the new law was passed until it became effective. Mr. Bryar took out his insurance policy with Nationwide in March of 1976. However, the policy was renewable at six-month intervals until March 1981. Mr. Bryar exercised his first option to renew in September 1976, after Chapter 76-266 was signed into law, though before it became effective. Mr. Bryar would have us apparently extend stacking under his policy until 1981. We think that when Mr. Bryar renewed in September 1976, he was on notice of the impending effectiveness of the antistacking provision and should have obtained his insurance coverage with that knowledge.

Reversed and remanded to the trial court for further proceedings consistent with this opinion.

BOARDMAN, C. J., and OTT, J., concur.

      . At this juncture a brief history of stacking seems appropriate: In Tucker v. Gov’t Employees Ins. Co., 288 So.2d 238 (Fla. 1974), the supreme court interpreted a policy, containing a clause prohibiting stacking, to allow stacking of the uninsured motorist coverage an insured had purchased for himself and his family. The court held that there was no statutory basis for an automobile insurer to exclude stacking in a policy combining liability coverage for two or more automobiles for the named insured with uninsured motorist coverage.
      Although Tucker applied to uninsured motorist coverage, during the pendency of that litigation the legislature redefined “uninsured motorist” to include an underinsured motorist as well. The courts followed suit and held that stacking was permitted whether the motorist was uninsured or underinsured. State Farm Mutual Auto Ins. Co. v. White, 330 So.2d 858 (Fla.2d DCA 1976); see also, State Farm Mutual Auto Ins. Co. v. Anderson, 332 So.2d 623 (Fla.4th DCA 1976).
      Yet, when faced with a problem outside the context of a family automobile policy, this court gave full effect to the antistacking provision of the contract. In Travelers Ins. Co. v. Pac, 337 So.2d 397 (Fla.2d DCA 1976), cert, denied (Fla.1977), Case No. 50,567, opinion filed June 12, 1977, we reversed a judgment which had allowed a person, who achieved his status of an insured simply by driving his employer’s vehicle, to stack the coverage of his employer’s fourteen additional vehicles.

      . In 1971 the legislature passed the “Florida Automobile Reparations Reform Act,” Ch. 71-252, Laws of Florida, which instituted no-fault automobile insurance in Florida. The 1971 act modified private passenger automobile liability policies in effect on January 1, 1972. In 1976 the legislature revised the act quite extensively by enacting Ch. 76-266, Laws of Florida, which is involved in this case. Ch. 76-266, among other things, effectuated substantial changes in the benefits that an insurer was liable to pay under its policies then in existence. Again, the legislature has been at work revising the act during its 1977 session. See Ch. 77-468, Laws of Florida.


text:
    Jerry Wayne RUSSELL and Sally Tucker Jolly, Appellants, v. STATE of Florida, Appellee.
    No. 76-1446.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1977.

      Jack 0. Johnson, Public Defender, Paul J. Martin, Asst. Public Defender, and Paul C. Helm, Legal Intern, Bartow, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The appellants, Jerry Wayne Russell and Sally Tucker Jolly, were charged by indictment with: Count I, first degree murder; Count II, robbery; and Count III, grand larceny. They were tried together and convicted by a jury on all three counts and sentenced to: Count I, life imprisonment with credit for time served; Count II, 15 years to run consecutively with Count I; and Count III, one year in county jail to run concurrent with any other sentences.

On this appeal appellant Russell raises the question of whether it was error for the trial judge to admit into evidence a confession by Mrs. Jolly which served to incriminate him, when Mrs. Jolly did not testify at trial. Both appellants raise the question of whether it was error for the trial judge to allow the indictment by which the appellants were charged to be amended to add appellants’ names to the robbery and grand larceny counts. For the reasons set forth below, we find it necessary to reverse appellant Russell’s conviction on all counts, to reverse appellant Jolly’s conviction on the robbery and grand larceny counts, and to remand the cause for a new trial on those counts.

At trial, Russell’s counsel objected to the admission of one sentence in a confession which Mrs. Jolly had made. The sentence was the only evidence which directly linked him with the robbery. The trial judge refused to delete the sentence, and the entire confession was read to the jury. Mrs. Jolly did not testify at any time during the proceedings.

The trial judge’s refusal to delete the sentence was error because evidence of the confession of one co-defendant which incriminates a second co-defendant may not be admitted where the confessing co-defendant does not testify even if the court instructs the jury to disregard the confession in determining guilt or innocence of the second co-defendant. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Seidel v. State, 240 So.2d 521 (Fla.4th DCA 1970).

We cannot agree with appellee’s argument that the appellant should not be able to suppress the harmful part of a confession and then allow the rest of it into evidence. Clearly, if a defendant is allowed to suppress an entire confession he should be able to suppress a portion of it. After all, the State need not introduce the confession if it finds that a deletion alters its meaning or usefulness.

The error committed by the trial court was prejudicial to the appellant Russell since the confession was the only direct evidence linking him to the robbery. Moreover, although the evidence of the confession was only damaging on the charge of robbery, since the trial court instructed the jury on felony murder, we must also reverse appellant Russell’s conviction for murder.

Both appellants raise another point which requires the reversal of their convictions for robbery and grand larceny. The indictment under which appellants were charged consisted of three counts. Appellants’ names were left out of the counts concerning robbery and grand larceny. In effect, then, they were not charged with either robbery or grand larceny and the Circuit Court had no in personam jurisdiction to try them for these crimes. Chow Bing Kew v. United States, 248 F.2d 466 (9th Cir. 1957). The trial judge attempted to remedy this error at the beginning of appellants’ trial by allowing the prosecutor to amend the indictment. This move was clearly improper and requires reversal since only a grand jury may handle the amendment of an indictment. Fla.R.Crim.P. 3.140(j); Pickeron v. State, 94 Fla. 268, 113 So. 707 (1927).

Appellant Russell’s judgments and sentences are reversed on all three counts and appellant Jolly’s judgments and sentences are reversed on Counts II and III. The case is remanded to the Circuit Court for a new trial.

BOARDMAN, C. J., HOBSON and OTT, JJ., concur.


text:
    STATE of Florida DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Petitioner, v. Charles E. DIETZ, Respondent.
    No. 76-1996.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1977.

      Kenneth H. Hart, Jr., Tallahassee, for petitioner.
    Charles E. Dietz, pro se.
   SCHEB, Judge.

An unemployment compensation appeals referee held that respondent/claimant voluntarily left his employment without good cause, and was therefore not entitled to receive unemployment benefits Upon review> the Industrial Relations Commission reversed- The state now Petltlons for cer-tiorari. We grant the writ.

On March 12,1976, the respondent/claimant Charles Dietz applied to petitioner for unemployment compensation benefits. His application was denied by a claims examiner on the ground that he had been terminated due to misconduct. He appealed this decision, and on May 22, 1976, the appeals referee entered the following decision:

The determination of the Claims Examiner, disqualifying the claimant for benefits for being discharged by the employer for misconduct connected with his work, is hereby modified so as to hold that the claimant voluntarily left his employment without good cause attributable to the employer, and that the period of disqualification shall be for the week ending February 21, 1976, plus the five immediately following weeks, and until he has become reemployed and has earned at least $820.00.

The evidence before the appeals referee showed that Mr. Dietz had worked as a field auditor for the Division of Employment Security from February 1973 until May 1975, at which time he was assigned to appeals work; that he worked for approximately nine months in that position receiving somewhat lower wages than the regularly assigned referees. Mr. Dietz left the appeals office on February 16,1976, and did not return, although he was furnished written notice that if he did not report back by March 8 (later extended to March 9) he would be deemed to have abandoned his .job. In his testimony before the referee, Mr. Dietz offered no explanation for his departure from work or for his failure to return as ordered. Other witnesses indicated Mr. Dietz was dissatisfied because he was receiving lesser wages than regular referees. The evidence, however, revealed that he had been advised by the' district supervisor that if he returned to work he would, upon request, be reassigned to the field auditing service.

In sum, the evidence supports the appeals referee’s conclusion that from February 17 through March 9, 1976, the supervisor gave Mr. Dietz an opportunity to return to work and express his desire to. either remain in appeals work or be reassigned as an auditor; however, Mr. Dietz neither returned nor expressed his reasons for not doing so.

On petition for certiorari to review administrative actions in granting or denying unemployment benefits it becomes incumbent upon this court to determine whether there was substantial competent evidence to support the findings of the appeals referee. Newkirk v. Florida Industrial Commission, 142 So.2d 750 (Fla.2d DCA 1962); Continental Baking Co. v. Vilchez, 219 So.2d 733 (Fla.2d DCA 1969).

Here we have concluded there was competent substantial evidence from which the appeals referee could have properly concluded that Mr. Dietz’ failure to report back to work was tantamount to abandonment of his job. Under the. law any claimant who voluntarily leaves his employment without good cause attributable to his employer is rendered ineligible for benefits otherwise provided under the unemployment compensation laws of this state. Section 443.06(1), Florida Statutes (1975); Duran Ins. Co. v. Dept. of Commerce, 260 So.2d 873 (Fla.2d DCA 1972). See also Quick v. North Central Fla. Community Mental Health Center, 316 So.2d 301 (Fla.1st DCA 1975). The referee’s conclusion that the claimant was disqualified from receiving benefits was therefore correct.

Certiorari is granted and the decision of the Industrial Relations Commission is reversed and the decision of the appeals referee is reinstated.

BOARDMAN, C. J., and GRIMES, J., concur.

      . Judicial review by petition for writ of certio-rari from orders of the Industrial Relations Commission in unemployment compensation matters is provided for by Section 443.07(4)(e), Florida Statutes (1975).


author: HUBBART, Judge.

text:
    The PUBLIC HEALTH TRUST OF DADE COUNTY, Florida, an agency and instrumentality of Dade County, Florida, which operates Jackson Memorial Hospital, Appellant, v. Ella GABRILOVE, as Personal Representative of the Estate of Hillard Gabrilove, Deceased, Appellee.
    No. 76-1327.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1977.

      Stuart L. Simon, County Atty. and James K. Kracht, Asst. County Atty., for appellant.
    Burnett Roth, Miami Beach, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HUBBART, Judge.

This case is an independent action to enforce a creditor’s claim against an estate. The trial court dismissed the claim as untimely and the claimant appeals.

The sole issue raised by the appeal is whether Fla.R.Civ.P. 1.090(a), (e) is applicable in computing the statutory thirty day time period under Section 733.705(3), Florida Statutes (1975), within which a claimant must file suit on a claim against an estate after being served with the estate’s objection to such claim. We hold that Fla.R. Civ.P. 1.090(a), (e) is applicable in computing the thirty day time period under Section 733.705(3), Florida Statutes (1975), and reverse.

The plaintiff-appellant is the Public Health Trust of Dade County, Florida, an agency and instrumentality of the State of Florida which operates, maintains and governs Jackson Memorial Hospital in Miami, Florida. The defendant-appellee is Ella Ga-brilove, the personal representative of the estate of Hillard Gabrilove.

On February 20,1976, the plaintiff filed a claim against the estate of Hillard Gabri-love which was then being probated in the Circuit Court of Dade County. The claim was for the reasonable value of medical services, supplies and treatment rendered by the plaintiff hospital during the deceased’s last illness.

On April 5, 1976, the defendant filed an objection to this claim with the court and mailed a copy of the objection to the plaintiff. On May 10,1976, the plaintiff filed an independent action to enforce its claim against the defendant with the Circuit Court of Dade County. The trial court dismissed the suit as untimely filed. The plaintiff appeals this order of dismissal.

Sections 733.701-733.710, Florida Statutes (1975), deal with the procedure involved in filing and enforcing creditors’ claims against an estate. After a claim has been properly filed, the personal representative of the estate or other interested person may file an objection to the claim on or before the expiration of four months from the date of first publication of the notice of administration. “If an objection is filed, the person filing it shall serve a copy of the objection by registered or certified mail to the address of the claimant as shown on the claim . . .” Section 733.705(2), Florida Statutes (1975).

“The claimant shall be limited to 30 days from the date of service of an objection within which to bring an independent action upon the claim.” Section 733.705(3), Florida Statutes (1975). This 30 day time limit may be extended by the court upon proper notice for good cause shown. Absent such extension, however, no action may be brought on the claim upon the expiration of the above 30 day time limit. Section 733.705(3), Florida Statutes (1975).

There are no provisions in any of the above statutes as to how the 30 day time limit provided in Section 733.705(3), Florida Statutes (1975), should be computed. In the absence of such provisions, the Florida courts have applied Fla.R.Civ.P. 1.090 and its predecessor rule in computing like statutory time periods. Stockslager v. Daly Aluminum Products, Inc., 246 So.2d 97 (Fla. 1971); Herrero v. Black & Decker Manufacturing Co., 275 So.2d 54 (Fla.3d DCA 1973); Finley v. State, 168 So.2d 201 (Fla.2d DCA 1964).

Fla.R.Civ.P. 1.090 provides in relevant part as follows:

“(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court or by any applicable statute, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday or legal holiday in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. * * * ”
“(e) Additional Time After Service by Mail. When a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period.”

Applying the above rules to the instant case, it is clear that the plaintiff’s action was timely filed. On April 5, 1976, the defendant’s objection to the claim was mailed to the plaintiff. Under the 30 day time period established by Section 733.-705(3), Florida Statutes (1975), as computed by Fla.R.Civ.P. 1.090(e), this gave the plaintiff until May 8, 1976, within which to file an independent action enforcing the claim. Since May 8, 1976 fell on a Saturday, the plaintiff had until the following Monday, May 10, 1976, to file the action under the same statute as computed by Fla.R.Civ.P. 1.090(a). The plaintiff, therefore, timely filed his action on May 10, 1976.

The order appealed from is reversed and the cause remanded for further proceedings.

Reversed and remanded.


text:
    STATE of Florida, Appellant, v. William STEINMETZ and Ronald Hansen, Appellees.
    No. 76-1863.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1977.
    Michael J. Satz, Assigned State Atty., and Linda De Bene, Asst. State Atty., Fort Lauderdale, for appellant.
    Lawrence E. Hoffman, Miami Beach, Martin Blitstein and Ross Rosenberg, Miami, for appellees.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

Reversed and remanded for further proceedings based on the following authorities: Austin v. State ex rel. Christian, 310 So.2d 289, 290-91 (Fla.1975); Hart v. State, 144 Fla. 409, 198 So. 120 (1940); State v. Viscito, 349 So.2d 196 (Fla. 3d DCA 1977); Carey v. State, 349 So.2d 820 (Fla. 3d DCA 1977).


text:
    STATE of Louisiana v. Louis MIX.
    No. 59262.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Orleans Indigent Defender Program, Maurice T. Hattier, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Construing the sentences as concurrent, the convictions and sentences are affirmed.


text:
    STATE of Louisiana v. Thomas Anthony LEBLANC.
    No. 59446.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Jude Thaddeus Fanguy, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., William G. Yates, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Albert DAMOND.
    No. 59457.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Eugene WALL.
    No. 59473.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Gravel, Roy & Burnes, Richard V. Burnes, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., James A. Norris, Jr., Brian E. Crawford, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Roy CLARK, Jr. and Brent Mikell.
    No. 59482.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    James J. Gleason, III, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Kurt F. Sins, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Edward L. SMITH.
    No. 59500.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Rehearing Denied Oct. 21, 1977.
    Robert P. McLeod, Law Offices of Robert P. McLeod, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don K. Carroll, Dist. Atty., William R. Coenen, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Arthur WILLIAMS.
    No. 59511.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Shelby TAYLOR.
    No. 59513.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The record discloses that the defendant was sentenced only two days following his conviction, rather than the three days required by article 873 of the Code of Crim-mal Procedure, and does not indicate that the defendant waived his right to the mandatory delay period. Even though defendant did not object to this error at the time of sentencing or urge it on appeal, the error is considered by this Court since it is discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. La.C.Cr.P. art. 920(2); State v. Young, 337 So.2d 1196 (La.1976).

Defendant’s conviction is affirmed, but the sentence imposed is vacated and set aside, and the case is remanded to the district court with instructions to the trial judge to sentence defendant in accordance with law.


text:
    STATE of Louisiana v. Raymond HARRIS.
    No. 59515.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Wilson R. Ramshur, Willis & Ramshur, St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., A. Z. Butterworth, Special Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Claude WOODS.
    No. 59516.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Wilson R. Ramshur, Willis & Ramshur, St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., William E. Woodward, Asst. Dist. Atty., A. Z. Butterworth, Sp. Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. John ELMORE, Jr.
    No. 59517.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    James A. Hobbs, Blackwell, Chambliss, Hobbs & Henry, William L. Olsen, West Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Brian E. Crawford, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Charles JOHNSON.
    No. 59551.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Elizabeth W. Cole, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: PER CURÍAM.

text:
    STATE of Louisiana v. Kelly YOUNG.
    No. 59552.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    John M. Lawrence, Orleans Indigent Defender Program,; New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, .Dist. Atty., Donald T. Giglio, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURÍAM.

Affirmed.


text:
    STATE of Louisiana v. Salvador J. LOGRANDE.
    No. 59574.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lee R. ROBINSON.
    No. 59602.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Rena M. Price, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. John ROBERTSON.
    No. 59603.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Rena M. Price, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert L. Simmons, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Raymond COMPTON.
    No. 59613.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    J. Daniel Rivette, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Donald T. Giglio, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Chester MERCANDEL.
    No. 59614.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Rena M. Price, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Donald T. Giglio, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Harrell Joseph CLARK.
    No. 59634.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    George M. Papale, Knight, D’Angelo & Knight, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., William E. Woodward, Asst. Dist. Atty., A. Z. Butterworth, Sp. Asst. Dist. Atty., for plain tiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. James MEREDITH.
    No. 59642.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Alan James Boudreaux, Staff Appeals Counsel, 24th Judicial District Indigent Defender Bd., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Mark FORD.
    No. 59651.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Barry F. Yiosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. McKinley J. REDDIX.
    No. 59653.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Rena M. Price, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Clarence GOODLOW.
    No. 59678.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    E. Robert Sternfels, Felix H. Savoie, Jr., Napoleonville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Aubert D. Talbot, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Joseph Clayton SEPULVADO.
    No. 59680.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    James B. O’Neill, Many, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., E. L. Edwards, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. William POWELL.
    No. 59686.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Patrick D. McArdle, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Leon DUGAS.
    No. 59742.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Hillery PRESTON.
    No. 59743.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Arthur A. Lemann, III, Supervising Atty., New Orleans, Kim A. Gandy, Student Practitioner, Loyola Law School Clinic, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant’s conviction is affirmed, but the death penalty imposed is annulled and set aside, and the case is remanded to the district court with instructions to sentence the defendant to imprisonment at hard labor for a period of twenty (20) years. Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); State v. Sledge, 340 So.2d 205 (La.1976); State v. Lee, 340 So.2d 180 (La.1976).


author: DENNIS, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana v. Floyd A. HUTCHINSON.
    No. 59333.
    Supreme Court of Louisiana.
    Sept. 19, 1977.

      Arthur A. Lemahn, III, Supervising Atty., New Orleans, Steven Broussard, Student Practitioner, Loyola Law School Clinic, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Floyd A. Hutchinson was charged by bill of information with simple burglary, in violation of La.R.S. 14:62. After moving unsuccessfully to suppress certain physical evidence, defendant entered a guilty plea, reserving his right to appeal the ruling of the district judge denying his motion to suppress. See, State v. Crosby, 338 So.2d 584 (La.1976).

Upon receipt of defendant’s guilty plea, the State filed a multiple offender bill, La. R.S. 15:529.1, and the court subsequently found him to be a second offender felon. Defendant was sentenced to serve three years at hard labor in the custody of the Department of Corrections. The sole issue presented by this appeal is the correctness of the district judge’s ruling denying defendant’s motion to suppress.

On September 19, 1976, Officer Pamela Cobb of the New Orleans Police Department, was summoned to the business establishment of the C & C Rental Company, on Canal Street in Orleans Parish, to investigate a burglary reported by Bobby Clements, one of the business’ co-proprietors. Upon her arrival, she interrogated Clements and the defendant, Floyd Hutchinson, an employee who claimed to have seen the burglar.

While Officer Cobb, was questioning these individuals, Jack Duson, another co-proprietor, acting without Officer Cobb’s authorization, conducted a search of the premises. Because he suspected Hutchinson of the crime, Duson went to the company’s private parking lot in the front of the building and searched the exterior - of defendant’s van. There was evidence that Duson saw a red grease rag hanging from beneath the vehicle. By getting down on the ground beside the van at this point, Duson was able to observe, on the underside of the chassis, a number of white envelopes protruding from a brown paper bag.

Since the co-proprietors had kept the missing money in white envelopes like those he observed in the brown bag, Duson returned to the company office and informed Officer Cobb of what he had found. Officer Cobb went to the van with Duson, who crawled underneath, retrieved the bag, and handed it to Officer Cobb. Inside the bag were a number of white envelopes containing the stolen money, a pistol, and three lids of marijuana. At this point the defendant was placed under arrest.

Since Duson, on his own initiative, conducted a search as a private citizen, any intrusion resulting from the search alone was private, not public, and therefore beyond the ambit of the Fourth Amendment’s protection. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed.2d 1048 (1921); United States v. Goldberg, 330 F.2d 30 (3d Cir. 1964), cert. den. 377 U.S. 953, 84 U.S. 1630, 12 L.Ed.2d 497; United States v. McGuire, 381 F.2d 306 (2d Cir. 1967), cert. den. 389 U.S. 1053, 88 S.Ct. 800, 19 L.Ed.2d 848; People v. Horman, 22 N.Y.2d 378, 292 N.Y.S.2d 874, 239 N.E.2d 625 (1968), cert. den. 393 U.S. 1057, 89 S.Ct. 698, 21 L.Ed.2d 699; People v. Randazzo, 220 Cal.App.2d 768, 34 Cal.Rptr. 65 (1963), cert. den. 377 U.S. 1000, 84 S.Ct. 1933, 12 L.Ed.2d 1050; United States v. Winbush, 428 F.2d 357 (6th Cir. 1970), cert. den. 400 U.S. 918, 91 S.Ct. 179, 27 L.Ed.2d 157; Cf. State v. Bryant, 325 So.2d 255 (La.1976); State v. Kemp, 251 La. 592, 205 So.2d 411 (1967). Once Duson related the results of his independent inspection to Officer Cobb, she had probable cause to believe that evidence of the crime was located on the underside of defendant’s van. Moreover, the fact that a sack apparently filled with stolen currency was precariously affixed to a movable motor vehicle presented exigent circumstances justifying a warrantless seizure of the evidence. See, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Williams, 347 So.2d 231 (La.1977); State v. Hearn, 340 So.2d 1365 (La.1976); State v. Massey, 310 So.2d 557 (La.1975).

Defendant contends, however, that the inspection conducted by Duson was an unreasonable search proscribed by the Louisiana Constitution. We are unwilling to hold that the rights safeguarded by Article I, § 5 of our constitution are merely coextensive with those protected by the Fourth Amendment to the federal constitution, or that private searches and seizures are not within the ambit of protection afforded by our state charter. See generally, Documents of the Louisiana Constitutional Convention of 1973 Relative to the Administration of Criminal Justice, 40th Day’s Proceedings — August 31, 1973, pp. 599-604 (1976). However, under the facts of this case, we do not find that Duson’s search was an unreasonable invasion of privacy.

Düsori, a co-owner of the establishment burglarized, independently conducted the search in question on the premises occupied by his business. Duson did not violate the interior of the van in the course of his search. The stolen money and other evidence was concealed, not inside the van, but merely on the underside of the chassis. There was evidence that a red grease rag hanging from or near the secreted money sack was visible upon a casual observation of the vehicle.

Defendant voluntarily brought his van onto the rental company’s property, then affixed the evidence of his criminal conduct to the exterior of his van. Defendant could not reasonably have expected the exterior of his van — even its undersides — to be free of scrutiny by the owner of the private property upon which he placed it. Compare, State v. Fearn, 345 So.2d 468 (La.1977). Thus, Duson’s search did not trench upon an area of defendant’s privacy protected by Article I, § 5 of the 1974 Louisiana Constitution.

For the foregoing reasons, the ruling of the district judge denying defendant’s motion to suppress was correct. Consequently, defendant’s conviction and sentence are affirmed.

SANDERS, C. J., concurs with written reasons.

SUMMERS and MARCUS, JJ., concur.

SANDERS, Chief Justice

(concurring).

As the majority notes, it is universally recognized that the Fourth Amendment of the United States Constitution, banning unreasonable searches and seizures, extends only to governmental action. It does not apply to the conduct of private citizens. The United States Supreme Court and other federal courts have spoken many times on this subject. See, e. g., McGuire v. United States, 273 U.S. 95, 47 S.Ct. 259, 71 L.Ed. 556 (1927); Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); 68 Am.Jur.2d, Searches and Seizures, § 13, p. 670.

As late as 1975, in State v. Bryant, La., 325 So.2d 255, this Court held that the protection against unreasonable searches and seizures extended only to state action and not to the conduct of private citizens.

Article 1, Section 5 of the Louisiana Constitution (1974) provides:

“Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in. violation of this Section shall have standing to raise its illegality in the appropriate court.”

I find nothing in the language of this section extending the protection to searches by private citizens. In fact, the language is the same as that of the Fourth Amendment with the exception of the addition of the words “invasions of privacy” and the last sentence dealing with standing.

The reference to invasions of privacy does nothing more than make clear that the right protected is that of privacy. This right has long been recognized as the basis of the Fourth Amendment. See, e. g., McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948).

By its terms, the last sentence of the section deals only with standing, not with the type of search prohibited.

If a drastic departure from long-established principles was intended, it would have been very easy for the drafters of the constitution to so indicate in the section. In my opinion, the language is not there.

Accordingly, I adhere to the view that the exclusionary rule applies only to searches by law enforcement officers and other governmental agents.

For the reasons assigned, I concur in the decree.

       Duson testified he told the policewoman he was going out to search. But Officer Cobb testified she was not aware of Duson’s intention to search. The trial judge apparently believed the testimony of the officer, finding either that Du-son did not tell her he intended to search or that she did not hear his statement to her. Moreover, under the circumstances Duson would not have become an agent of the police officer by merely informing her that he was going to conduct a general search of his own premises.


author: SUMMERS, Justice. CALOGERO, Justice

text:
    STATE of Louisiana v. Terrance L. BOYD.
    No. 59390.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen;, John A. Richardson, Dist. Atty., Ronald R. Inderbitzin, Asst. Dist. Atty., for plaintiff-relator.
    Robert Earl Piper, Jr., Shreveport, for defendant-appellee.
   SUMMERS, Justice.

A bill of information dated November 12, 1976 charged Terrance L. Boyd with possession of marijuana. La.Rev.Stat. 40:966. Prior to trial Boyd filed a motion “to suppress any marijuana paraphernalia or marijuana seized.” The motion is based upon the allegation that the marijuana was seized incident to an unlawful arrest because the arresting officer lacked probable cause. As a result it is contended that there was a violation of Article I, Section V, of the Louisiana Constitution and the Fourth Amendment to the United States Constitution.

At the hearing on the motion to suppress Officers Wallace and Lewis testified on behalf of the State. During the early morning hours of November 4, 1976 they were assigned by tactical enforcement to “sight felony” arrests in the vicinity of Catherine and Missouri Streets in the city of Shreveport. During that evening a church, a doctor’s office and another location in this neighborhood had been burglarized within one hour. Eight to ten police vehicles were patroling the area.

About one-thirty that morning, while cruising on Catherine Street about a block from the Queensborough Elementary School in an unmarked vehicle, Officers Wallace and Lewis noticed Boyd walking across Catherine Street into the school yard toward the school building. Wallace left the vehicle and walked into the school yard in search of Boyd, suspecting that he had no business there at that time of the night. Lewis later followed walking in another direction to head Boyd off. As Wallace reached the rear of the school building he encountered Boyd coming around the building toward him. Wallace identified himself as a police officer and told Boyd to put his hands on the building so that he could check him for weapons, obtain his identification and find out what Boyd was doing near the school at that hour. La.Code Crim.Pro. art. 215.1.

When Boyd placed his hands on the wall Wallace began patting him down. At this point Boyd took his left hand off the wall, put it under his jacket and reached forward toward an indentation in the brick building covered by grillwork. When Wallace told him to put his hand back on the wall he did so. Wallace testified he did not then know what Boyd had put in the grillwork-covered indentation of the wall.

At this time Officer Lewis arrived and saw a plastic baggie hanging out of the grillwork. He pulled it out and saw that it contained green vegetable material; whereupon, he testified, he “placed [Boyd] under arrest for possession of marijuana.”

Boyd testified at the hearing, saying that he was taking a short-cut home and stopped at the school to use the rest room. He acknowledged the stop and the presence of the grill but denied that he had any marijuana.

When the parties rested, defense counsel argued that there was no evidence that the green vegetable matter in the plastic bag was marijuana. He contended the State “could have gotten in touch with the Crime Lab and brought forth some document which would say, and I don’t know whether it would say it or not, that it was marijuana ..” The trial judge agreed, saying the State had failed to establish that marijuana was seized. Accordingly, he granted the motion to suppress.

The ruling was erroneous. The State has no affirmative burden of proof on a motion to suppress tangible evidence. The accused bears the burden of establishing the unconstitutionality of the search and seizure. La.Code Crim.Pro. art. 703A, C; State v. O’Conner, 320 So.2d 188 (La. 1975); State v. Wood, 262 La. 259, 263 So.2d 28 (1972). As already pointed out, Officer Lewis testified that when he pulled the plastic bag containing green vegetable matter from the grillwork he immediately “placed Boyd under arrest for possession of marijuana.” It is implicit in this testimony that Officer Lewis believed that the green vegetable matter was marijuana, and the entire record supports a finding that he had reasonable cause to believe that it was marijuana.

Boyd was at large at 1:30 in the morning in an area where three burglaries had occurred within an hour prior to his appearance at the school ground. Marijuana -is commonly known to be green vegetable matter, and the plastic baggie containing green vegetable matter had just been surreptitiously secreted by Boyd in the grill-work while Officer Wallace was searching him for weapons. Officer Lewis identified the green vegetable matter as marijuana as his testimony indicates.

A peace officer may arrest without a warrant when he has “reasonable cause to believe that the person to be arrested has committed an offense.” La.Code Crim.Pro. art. 213(3). The law does not require that “reasonable cause to believe” be established by evidence sufficient to convict, that is, the arresting officer need not be convinced beyond a reasonable doubt of the arrestee’s guilt. The standard of reasonable cause to believe is a lesser degree of proof determined by the setting in which the arrest took place, together with the facts and circumstances known to the arresting officer from which he might draw conclusions warranted- by his training and experience. State v. Millsap, 258 La. 283, 248 So.2d 324 (1971). This standard has been satisfied in the instant case. It is the standard contemplated by Article I, Section V, of the Louisiana Constitution and the Fourth Amendment to the United States Constitution.

For the reasons assigned the ruling of the trial judge granting the motion to suppress is reversed and set aside, and the motion to suppress is denied. The case is remanded to the trial court to be proceeded with in a manner not inconsistent with the view expressed herein.

TATE, J., concurs for reasons assigned by CALOGERO, J.

DIXON, J., dissents.

CALOGERO, J., concurs with reasons.

CALOGERO, Justice

(concurring).

In my view, seizure of the plastic baggies was not shown to have been illegal or unconstitutional in any respect. Thus the trial court should have overruled the motion to suppress. The state need not prove the contents of the plastic baggies. For the purpose of the motion to suppress, except in rare circumstances not here present, the nature of the matter seized is irrelevant.


author: CALOGERO, Justice.

text:
    Hazel Carr HARTLEY v. John A. HARTLEY.
    No. 59428.
    Supreme Court of Louisiana.
    Sept. 19, 1977.

      Walton J. Barnes, Barnes & Barnes, Baton Rouge, for plaintiff-applicant.
    James D. Thomas, II, Dodd, Barker, Avant, Wall & Thomas, Baton Rouge, for defendant-respondent.
   CALOGERO, Justice.

On October 28, 1974 Mrs. Hazel Carr Hartley procured a judgment in the district court against her husband John A. Hartley awarding her alimony pendente lite in the sum of $1,518.88 per month. Pending Mr. Hartley’s appeal from that judgment, Mrs. Hartley filed a rule for contempt against Mr. Hartley for his failure to pay the alimony granted and for a judgment making the past due alimony executory. The rule for contempt was dismissed on motion of plaintiff when the defendant, apparently unavailable, failed to appear at the hearing. However, since defendant was represented by counsel, the rule for executory alimony was tried. In January, 1976 judgment was rendered in favor of Mrs. Hartley making executory some fifteen months of unpaid alimony amounting to $22,783.20. Defendant also appealed this latter judgment.

Defendant’s initial appeal of the award of alimony pendente lite was partially successful and resulted in a reduction of the alimony payments from $1,518.88 to $545.00 monthly (additionally, defendant was required to make the mortgage payments on the family home amounting to $148.88 per month). Hartley v. Hartley, 336 So.2d 291 (La.App. 1st Cir.) writ refused, 339 So.2d 21 (1976). Accordingly, on defendant’s appeal of the judgment making past due alimony executory the Court of Appeal, consistent with its earlier reduction of the monthly sum, reduced the gross award to $8,175.00. Furthermore, the court allowed defendant husband a credit of $8,000.00 or one-half of community funds which the Court of Appeal found plaintiff wife had taken and used prior to the date of the alimony judgment. Hartley v. Hartley, 341 So.2d 1257 (La.App. 1st Cir. 1977). We granted writs on the application of Mrs. Hartley, 343 So.2d 204 (La.1977), to review the following assignments of error:

(1) The appellate court erred in equating an unliquidated and unsubstantiated demand with that of a judicially liquidated claim as a basis for an interposed plea of compensation;
(2) The appellate court erred in permitting a credit or offset when a plea of compensation had not been raised as an affirmative defense or in a recon-ventional demand.

The pertinent facts are as follows:

John A. Hartley and Hazel Carr Hartley were married in 1950. In 1971 Mr. & Mrs. Hartley moved to Norway upon the request of Mr. Hartley’s employer. In October of 1972 Mr. Hartley was transferred to Aberdeen, Scotland where the couple was scheduled to remain during the last thirteen months of Mr. Hartley’s special employment.

In March, 1973, while still living together in Europe as husband and wife, Mrs. Hart-ley, with the consent of Mr. Hartley, transferred some $16,000 of community funds from their joint savings account in the Cha-tom State Bank in Alabama to another joint account in the Bank of Slidell at Sli-dell, Louisiana. Thereafter, these same funds were transferred to a Lafayette, Louisiana account held in the name of their daughter Sandra Hartley Layod. This transfer was somehow accomplished by the litigants’ daughter with the apparent approval of both Mr. and Mrs. Hartley. Thereafter, marital difficulties arose which resulted in Mrs. Hartley’s return to the United States in August of 1973. She filed for separation in Baton Rouge but later had that suit dismissed. On September 20,1974 Mrs. Hartley again filed suit for separation this time in St. Tammany Parish. This second suit resulted in the award of alimony pendente lite referred to above on October 28, 1974. It is conceded by the parties that Mrs. Hartley received little, if any, support from the defendant from the time she left the matrimonial domicile in August of 1973 through the trial of the executory alimony rule in January of 1976.

At the trial of the executory alimony rule and at an earlier deposition Mrs. Hartley admitted that some of the funds which had been deposited in the Bank of Slidell and later transferred to the Lafayette, Louisiana account held by her daughter were used by the daughter for Mrs. Hartley’s benefit and support. It also appears that other portions of the funds were used by Mrs. Layod to manage certain pieces of real estate belonging to her parents and to support her minor sister during the final months of the child’s minority. However, other than these facts there is no clear showing in the record precisely how the $16,000.00 was expended.

As noted earlier, the Court of Appeal found that Mrs. Hartley had taken and used community funds amounting to $16,000.00 having had it placed in an account to which the defendant had no means of access. Based on this finding the Court of Appeal concluded that Mr. Hartley was entitled to a credit of one-half of the funds, or $8,000.00, against the amount due for unpaid alimony, citing Nelson v. Nelson, 311 So.2d 268 (La.App. 1st Cir. 1974) writ refused, 315 So.2d 39 (1975) as the controlling authority.

In so holding we believe the Court of Appeal erred.

In Nelson, supra, the Court of Appeal allowed a husband to credit community funds taken by the wife against an alimony judgment which had been made executory. This holding was based upon an earlier appellate court decision involving very similar if not identical issues: Cumpton v. Cumpton, 283 So.2d 846 (La.App. 2nd Cir. 1973). In both cases the Court of Appeal seemed to focus upon two central findings. First, the funds taken by the wife were taken almost immediately prior to the filing of suit for separation or divorce. And second, the funds were taken without the consent of the husband and were expended or available for expenditure solely in the discretion of the wife. These two findings make the instant case distinguishable from both Nelson and Cumpton. The funds here in question were transferred at least eighteen months prior to the separation suit filed in St. Tammany Parish and apparently many months before the separation suit which was filed in Baton Rouge Parish and later dismissed (the precise number of months is not apparent from this record). Additionally, the present funds were transferred with the apparent knowledge and consent of the defendant and they were not placed under Mrs. Hartley’s exclusive control. Rather, the funds were apparently controlled by the couple’s daughter, Sandra Hartley Layod. Thus, a result contrary to that of the decisions in both Nelson and Cumpton would be reached simply by distinguishing these cases on their facts.

There is, however, a more compelling reason why we conclude the Court of Appeal erred, and why the results in Nelson and Cumpton are at the least questionable.

Compensation or set-off to be applicable requires the contemporaneous existence of distinct debts, each equally liquidated and demandable. As this court stated in the early case of Carter v. Morse, 8 Mart.O.S. 398 (La.1820), alluding to Pothier:

“A debt, says Pothier, is liquidated when it appears that something is due, and how much. Cum certum sit an de-beatur & quantum debeatur. A contested debt, therefore, is not a liquidated one; and cannot be set off, unless he who claims to set it off, has the proof in his hands, and be ready to prove it promptly and summarily. 2 Pothier’s Obligations, n. 174.”

See also, Saunier v. Saunier, 217 La. 607, 47 So.2d 19 (1950).

Thus, a determination as to the liquidity of a claim is an essential prerequisite to deciding whether such a claim is a proper basis for a plea of compensation. Lack of sufficient liquidity and demandability will preclude such a plea.

In the case at hand the best that can be said of Mr. Hartley’s position is that he has a potential claim against his wife for community funds, a claim very likely to be contested, and one which should properly be determined in a partition of the community property. From the poorly developed record before us it is nonetheless evident that at such time Mrs. Hartley will be seriously urging that the $16,000.00, or some portion thereof, was employed not for her separate advantage but for community obligations including management of community realty, support of their minor daughter, and support of Mrs. Hartley between August 1973 and the October 28, 1974 initial alimony judgment, during which period she apparently received no support from her husband.

It is thus evident that Mrs. Hartley’s “debt,” when placed beside her husband’s alimony judgment obligation, is definitely not “equally liquidated and demandable.” Compensation or set-off is therefore not available in these proceedings to offset or reduce the debt owed by Mr. Hartley for past due alimony.

For the foregoing reasons the judgment in the Court of Appeal, insofar as it reduced the award for unpaid alimony by allowing the defendant a credit of $8,000.00, is reversed. The award of $8,175.00 for unpaid alimony (as reduced to comport with an earlier appellate court reduction) is affirmed.

      . It should be noted that the original decision in Nelson was modified on rehearing but not in such a manner that it is of any importance to the case presently before us. See, Nelson v. Nelson, 318 So.2d 68 (La.App. 1st Cir. 1968).

      . The concept of compensation or set-off is treated by La.Civ.Code arts. 2207-09, which provide as follows:
      Art. 2207. When two persons are indebted to each other, there takes place between them a compensation that extinguishes both the debts, in the manner and cases hereafter expressed.
      Art. 2208. Compensation takes place of course by the mere operation of law, even unknown to the debtors; the two debts are reciprocally extinguished, as soon as they exist simultaneously, to the amount of their respective sums.
      Art. 2209. Compensation takes place only between two debts having equally for their object a sum of money, or a certain quantity of consumable things of one and same kind, and which are equally liquidated and de-mandable.
      The days of grace are no obstacle to the compensation.

      . For present purposes we pretermit considering plaintiffs contention that defendant was required to, yet did not, affirmatively plead compensation or set-off and that the issues were not expanded by the receipt of evidence without objection.


author: SUMMERS, Justice.

text:
    ROBERTSON TANK LINES, INC., et al. v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
    No. 59636.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Charles H. Ryan, Monroe, Jeff McHugh David, Gen. Counsel, La. Public Service Commission, Baton Rouge, for defendants-appellees.
    Thomas K. Kirkpatrick, Baton Rouge, for plaintiffs-appellants.
   SUMMERS, Justice.

Groendyke Transport, Inc., a motor vehicle common carrier, filed a complaint before the Louisiana Public Service Commission under pertinent provisions of the Motor Carrier Act (La.Rev.Stat. 45:161-172) against Robertson Tank Lines, Inc., a common carrier; Robertson Tank Lines of Louisiana, Inc., a contract carrier; and Robertson Truck Lines, Inc., also a contract carrier. Some of the services which Groendyke is authorized to render under its common carrier certificate are competitive with services performed by the three Robertson companies.

The complaint alleges that Robertson Tank Lines, Inc., was operating as a common carrier of special commodities by motor carrier within the State of Louisiana under a common carrier certificate issued by the Commission. At the same time Robertson Tank Lines of Louisiana, Inc., and Robertson Truck Lines, Inc., are also operating as contract carriers of special commodities by motor carrier in Louisiana under contract carrier permits issued by the Commission.

The complaints are based upon allegations that the three corporations are managed by, and under the common control of, substantially the same directors and officers. All, or substantially all, of the capital stock of these three corporations is owned and controlled by the same parties, whether directly or indirectly, either through subsidiary corporations or through direct or indirect ownership. The facilities used in the conduct of operations under the contract carrier permits and the common carrier certificate are substantially the same and are used interchangeably.

This common ownership and simultaneous operation under a common carrier certificate and contract carrier permits by corporations under common control is alleged to be contrary to the statutory prohibition that “[n]o person shall at the same time hold, or operate under, both a common carrier certificate and a contract carrier permit.” La.Rev.Stat. 45:165.

In addition, the complaint alleges that under these circumstances the two corporations holding contract carrier authority under the two permits together furnish transportation to more than five separate shippers of property. In doing so, it is contended, they are acting as common carriers, without certificates of public convenience and necessity unless they can show by a clear preponderance and to the satisfaction of the Commission that the character of their operations is not that of a common carrier. Thus, the complaint sets forth that a motor carrier cannot act as a common carrier without having obtained from the Commission a certificate of public convenience and necessity, for to do so is a violation of Section 164 of the Motor Carrier Act, punishable as provided in Section 171 (La.Rev.Stat. 45:164, 171).

After a hearing on the complaint, the Commission found that the stock of all three carriers was owned wholly by Robertson Distribution Systems, Inc. It found also that the directors and officers of all three Robertson carriers are essentially the same; that a number of employees work for two or more of the three Robertson carriers and vehicles owned by one of the carriers at times are used by the other by lease or other arrangement.

With these findings and in light of the decision in American Courier Corporation v. Louisiana Public Service Commission, 256 La. 464, 236 So.2d 802 (1970), the Commission found that the operations conducted by the three Robertson carriers in Louisiana intrastate commerce were essentially that of one person and in violation of the prohibition contained in Section 165 of the Motor Carrier Act against any person, at the same time, holding, or operating under, both a common carrier certificate and a contract carrier permit.

The Commission also found that the operations of the two carriers holding contract carrier permits were essentially that of one person and they were acting as common carriers as contemplated by Section 162(4) of the Motor Carrier Act because the essential nature of their business was soliciting or accepting property for transportation for compensation as a business and as such together they furnished such transportation to more than five separate shippers. To do so without obtaining a common carrier’s certificate as required by Section 164, the Commission decidéd, was a violation of the Act.

Accordingly, the Commission ruled that the three Robertson corporations must furnish an acceptable plan within forty-five days, which, when implemented, would result in compliance with its order, or submit an- application within that time to dispose of those certificates or permits which would prevent them from complying with the Act.

When the Commission denied a rehearing, the three Robertson corporations appealed to the Nineteenth Judicial District Court where the order of the Commission was affirmed on the record made before the Commission. This appeal by the three Robertson corporations was then perfected. We affirm.

The rule of law relied upon by the Commission and the District Court and recognized in American Courier Corporation v. Louisiana Public Service Commission, supra, holds that the identity of two corporations as separate entities wilLbe disregarded under Louisiana law by “piercing the corporate veil” when the theory of the separate entity leads to an absurdity, or when the persons involved in a corporation seek to use this legal fiction to immunize themselves from the consequences of their illegal actions.

A review of the evidence adduced before the Commission supports its finding. The vice president of all three corporations was called as a witness by Groendyke, the complainant. He testified that he was a member of the executive committee of all three Robertson corporations. His salary is prorated, among the three companies because he performs substantially the same duties in each. The same person serves as chairman of the board of all three corporations. All eight vice presidents and the two secretaries of the three corporations were the same persons on January 1, 1975. And the four members of the three boards of directors are the same.

All of the stock in all of the three corporations is owned by Robertson Distribution Systems, Inc., a publicly owned holding corporation. The chief executive officer and president of the three operating companies is a member of the executive committee of the holding corporation.

The main office of each of the three operating companies is located in the same building at the same address in Houston, Texas. All mail dispatched to the three corporations is received in the same office. All managerial personnel except terminal-directors at the Louisiana terminals and those charged with travel safety are headquartered in the Houston office. Accounting, billing and payroll functions for all three operating companies are performed in the Houston office.

One salesman in Louisiana is a permanent employee devoting a portion of his time to each company. Expenses and salaries of employees at the Louisiana terminals are charged to the operating companies on the basis of the freight handled and the revenue reported monthly by each operating company. Salaried personnel for all companies are issued checks by Robertson Tank Lines, Inc., the corporation holding the common carrier certificate. Some employees, including maintenance, repair and dispatching service personnel, work interchangeably for the three carriers. Gasoline and fuel facilities at the operating terminals are used in common by the operating companies as the occasion warrants. The record also supports the allegation that vehicles owned by one of the carriers at times are used by the other under lease or other arrangement.

Significantly, the record shows that the common carrier serves the same shippers served by the contract carriers and that common carriers are bound by published rates whereas contract carriers are free to negotiate rates, the sole requirement being that the rates charged by contract carriers be filed with the Commission for review.

Thus the record abundantly supports by uncontradicted evidence the Commission ruling that the three Robertson corporations were in truth and in fact operating as one person holding both common carrier certificates and contract carrier permits contrary to Section 165. For the word “person” as used in the Motor Carrier Act includes a body of persons whether incorporated or not; it applies likewise to corporations acting together in a common undertaking. Furthermore, by piercing the corporate veil of the three corporations it becomes obvious that the two contract carriers operating under four and five contracts, respectively, were together operating as one person furnishing transportation to more than five separate shippers. By doing so they are held to be a common carrier operating as such without the required certificate. La.Rev.Stat. 45:162(4), 164.

It has not been shown that these two contract carriers have discharged the burden by a clear preponderance and to the satisfaction of the Commission that the character of their operations is not that of a common carrier.

The contract carriers introduced no testimony to. exonerate themselves from the pri-ma facie presumption in law that they were operating as a common carrier by acting as one person serving more than five shippers. La.Rev.Stat. 45:162(4). The only evidence touching upon the subject was the testimony of a vice president of each of the three corporations. When he was cross-examined by the Groendyke’s attorney he simply stated, without supporting documents or vouchers, that as a matter of practice neither contract carrier would act as a common carrier for any of their nine contract companies. In light of the abundant evidence of the common operations of these carriers, that testimony- is insufficient to overturn the Commission finding to the contrary.

As the facts of this case disclose, the three operating companies are authorized to transport the same commodities in the same geographical area. These circumstances permit discrimination. While the common carrier must adhere to the commodities and rates approved by the Commission and serve the public generally in a nondiscriminatory manner, if the common carrier is in fact the same “person” as contract carriers organized as fictitious entities, it is able through these contract carriers to favor shippers with special rates and services and thereby undercut other common carriers who may not legitimately operate as contract carriers, thus violating its own certificate. This is the effect of the Commission’s finding.

The Commission is charged with the responsibility of regulating all motor carriers. This power and authority is broad and comprehensive, La.ReviStat. 45:163, and is declared to be a matter affected with a public interest. La.Rev.Stat. 45:161. Because the Commission operates in a technical field its orders are accorded great weight and are not disturbed by courts unless they are found to be unreasonable, arbitrary or capricious, Transway, Inc. v. Louisiana Public Service Commission, 253 La. 933, 221 So.2d 53 (1969). On this record the Commission’s order is neither arbitrary, unreasonable or capricious. The record supports its ruling as well as the judgment of the District Court and this Court. Rubion Transfer Storage Co. v. Louisiana Public Service Commission, 240 La. 440, 123 So.2d 880 (1960).

For the reasons assigned, the ruling and order of the Commission and the judgment of the District Court are affirmed.

      . La.Rev.Stat. 45:164:
      “No motor carrier shall operate as a common carrier without first having obtained from the commission a certificate of public convenience and necessity, which shall be issued only after a written application made and filed, a public hearing, due notice given to applicant and all competing common carriers, and a finding by the commission that public convenience and necessity require the issuance of a certificate. No new or additional certificate shall be granted over a route where there is an existing certificate, unless it be clearly shown that the public convenience and necessity would be materially promoted thereby.
      “No motor carrier shall operate as a contract carrier without having had a public hearing and obtained from the commission a permit to do so, which permit shall not be issued unless in the public interest and-until the applicant shall have complied with the requirements of R.S. 45:161 through R.S. 45:172.”

      . La.Rev.Stat. 45:162(4):
      “(4) ‘Common carrier by motor .vehicle’ means any person, the essential nature of whose business comprises engaging in, soliciting or accepting persons or property for transportation for hire, charge, or compensation as an employment or holding himself out as so available to the public generally and indiscrimi-nhtely for such business, whether or not the business is conducted over a regular route, between fixed termini, within a defined area, or upon a regular or irregular schedule. There shall be two main classes of common carriers, ‘common carriers of commodities over regular routes’, and ‘common carriers of special commodities over irregular routes’. ‘Common carriers of special commodities over irregular routes’ means any person, as a common carrier, transporting commodities which require special equipment, service or handling over irregular routes and not between fixed termini. All certificates of public convenience and necessity now issued and validly outstanding shall continue in full force and effect until the further orders of the Commission. Any person who, with or without specific contracts, furnishes such transportation to more than five separate shippers of property or more than five passengers shall be, prima facie, held to be a common carrier and the burden shall rest upon him to show by a clear preponderance and to the satisfaction of the Commission that the character of his operations is not that of a common carrier. This paragraph shall not apply to the business of any person conducted mainly within the corporate limits of one incorporated municipality but within a radius of seven miles of the limits of the incorporated municipality but this exemption shall not apply to motor carriers of passengers operating beyond the limits of the parish of their domicile unless the major portion of such carrier’s operations are conducted within the corporate limits of one municipality.”


text:
    Jo Ann S. BURLEIGH v. ARGONAUT INSURANCE CO. et al.
    No. 60281.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Argonaut Ins. Co. and Acadia St. Landry Hospital Service District applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Acadia, 347 So.2d 13.

Writ denied: Judgment not final.


text:
    Ada Bell Russell LaCAZE v. TENNESSEE LIFE INS. CO. et al.
    No. 60272.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Ada Bell Russell LaCaze applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches, 346 So.2d 1280.

Writ denied. The result is correct.


text:
    STATE of Louisiana Through DEPARTMENT OF HIGHWAYS v. A. WILBERT’S SONS LUMBER & SHINGLE CO.
    No. 60271.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: State of Louisiana through Department of Highways applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit, Parish of West Baton Rouge, 346 So.2d 842.

Writ denied. No error in judgment of the court of appeal.


text:
    Billy D. TERRY v. J. B. TALLEY & CO., INC., et al.
    No. 60270.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Billy D. Terry applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit, Parish of Lafourche.

Denied.


text:
    Lester N. STRANGE v. COMMERCIAL INSURANCE CO. OF NEWARK, New Jersey.
    No. 60269.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Commercial Insurance Co. of Newark, New Jersey, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 346 So.2d 752.

Writ denied: Judgment not final.


text:
    Troy BRUHL v. Loel WHITE.
    No. 60267.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Troy Bruhl applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa, 346 So.2d 734.

Writ refused. On the facts found by the court of appeal, there is no error of law in its judgment.


text:
    LAKE PROVIDENCE DREDGING CO., INC. v. Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana.
    No. 60265.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Shirley McNamara, in her capacity as Secretary of the Dept, of Revenue & Taxation applying -for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 346 So.2d 825.

Writ denied. Judgment of the court of appeal is correct.


text:
    STATE of Louisiana v. Charles B. W. PALMER.
    No. 60260.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Charles B. W. Palmer applying for writs of certiorari, prohibition and/or mandamus.

Writ denied. Inadequate showing to grant the relief sought.


text:
    Paula Kay COBB v. COLEMAN OLDSMOBILE, INC.
    No. 60255.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Paula K. Cobb applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 346 So.2d 831.

Application denied; no error of law.


text:
    HOME BUILDING INSULATORS, INC. v. GREAT AMERICAN INSURANCE CO. et al., Tricon, Inc., et al.
    No. 60250.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Great American Insurance Co. and Louisiana Nursing Homes, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo, 347 So.2d 44.

Writ refused. On the facts found by the court of appeal, there is no error of law in the judgment.


text:
    James A. O’CONNOR v. Dorothy E. TERRY et al.
    No. 60247.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: James A. O’Connor applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Tammany, 346 So.2d 739.

Writ denied. On the facts found by the court of appeal and trial court (jury), there is no error of law in the judgment of the lower courts.


text:
    John E. THIBAUT et al. v. David D. THIBAUT et al.
    No. 60246.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: David D. Thibaut and James H. Thibaut applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Assumption, 346 So.2d 809.

Application denied; there was no error in the ruling of the court of appeal on the exception to venue.


text:
    Jerry Joseph FONTENOT et al. v. STATE of Louisiana Through DEPT. OF HIGHWAYS et al. Robert McCONNELL et al. v. UNITED STATES FIDELITY AND GUARANTY CO. et al.
    No. 60245.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Ascension Parish Police Jury applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 346 So.2d 849.

Writ denied. Under the facts found, no error of law.


text:
    James COMEAUX v. DELCAMBRE SEAFOOD MARKET et al.
    No. 60238.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: James Comeaux applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Iberia, 346 So.2d 1277.

Writ refused. No error of law.


text:
    Lindy Webb, widow of Andrew Jackson WISNER v. Paul K. SCOTT.
    No. 60236.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Paul K. Scott applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Tammany.

Writ denied. The result is correct.


text:
    STATE of Louisiana v. David REILLY.
    No. 60235.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: David Reilly applying for writs of certiorari, prohibition, mandamus and for stay order.

Writ denied. Adequate remedy by review in event of conviction.


text:
    W. M. HEROMAN & CO., INC. v. SAIA ELECTRIC, INC.
    No. 60234.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Saia Electric, Inc. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 346 So.2d 827.

Application denied.


text:
    In re CHIN CHANG CHIEN.
    No. 60578.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Chin Chang Chien applying for admission to the bar.

Application denied; when applicant graduated from Law School in 1940, no exemption from bar examination had been established. In 1942 an exemption was established for Veterans. Only later was there an exemption established for graduates of approved law schools.


author: SUMMERS & TATE, JJ.,

text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. A. WILBERT’S SONS LUMBER AND SHINGLE CO. et al.
    No. 60282.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: A. Wilbert’s Sons Lumber and Shingle Co. and H. B. Fairchild applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of West Baton Rouge, 346 So.2d 842.

Writ denied.

SUMMERS & TATE, JJ.,

are of the opinion the writ should be granted on the issue presented by assignment of error No. 5 concerning the lessee’s right to recover damages suffered by reason of the contractor’s failure to timely construct fences surrounding the highway right of way.


author: SUMMERS, J.,

text:
    Francis Warren GREER v. Ann Mylius GREER.
    No. 60262.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Francis Warren Greer applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Washington, 346 So.2d 846.

Writ denied: Under the facts found by the Court of Appeal, the result is correct.

SUMMERS, J.,

is of the opinion the writ should be granted. On the facts of this case the mother is not entitled to the maternal preference our law grants in custody cases.


text:
    AETNA LIFE AND CASUALTY CO. v. Marie DOTSON.
    No. 60249.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Aetna Life & Casualty Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 346 So.2d 762.

Writ denied.

SUMMERS, J., is of the opinion the writ should be granted.

DIXON, J., dissents from the denial, and is of the opinion the writ should be granted.


text:
    George W. MILLER, Jr. v. Thomas L. CARTER et al.
    No. 60241.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: George W. Miller, Jr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Tammany, 346 So.2d 748.

Writ denied. The result is correct.

SANDERS, C. J., is of the opinion that a writ should be granted.

TATE, J., concurs in the result for the reasons assigned by the trial judge.


author: TATE, J., DIXON, J., CALOGERO, J.,

text:
    STATE of Louisiana v. Karolina G. JONES.
    No. 60237.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Karolina G. Jones applying for writs of certiorari, mandamus, prohibition and review.

Writ denied. The trial judge did not abuse his discretion.

TATE, J.,

concurs. While cross-examination as to violation of sequestration should have been permitted, I am not persuaded that under the circumstances reflected, the accused was prejudiced in this bench trial.

DIXON, J.,

dissents, being unable to determine that the error was harmless, and would grant.

CALOGERO, J.,

dissents, disallowance of cross-examination was prejudicial error in my view.


text:
    The FIRST NATIONAL BANK OF JEFFERSON PARISH v. LOUISIANA PURCHASE CORP., Overland-Louisiana, Overland Investments, Ltd., et al.
    No. 60209.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Eugene E. Schaefer, Jr., Third Party applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 346 So.2d 345.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in the judgment complained of.

SANDERS, C. J., and TATE, J., are of the opinion that a writ should be granted.


author: SUMMERS, J., MARCUS, J.,

text:
    Joel MESSER v. DEPT. OF CORRECTIONS, Louisiana State Penitentiary.
    No. 60258.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Joel Messer applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Civil Service Commission, State of Louisiana, 346 So.2d 783.

Granted; appeal reinstated. See Walker v. Jones, 221 So.2d 44.

SANDERS, C. J., dissents from the grant.

SUMMERS, J.,

is of the opinion the court of appeal properly considered the appeal abandoned. Accordingly, he dissents from this decree reinstating this appeal. See Rule VII, Section 5(b), Uniform Rules, Court of Appeal.

MARCUS, J.,

dissents from the grant,

being of the opinion that the Court of Appeal correctly held that the appeal had been abandoned.


author: TATE, J.,

text:
    STATE of Louisiana ex rel. Phillip MALVEAUX v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 60195.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Phillip Malveaux applying for writ of habeas corpus.

Writ granted. Out-of-time appeal granted.

TATE, J.,

concurs. On March 5, 1973, applicant filed in this court an application for an appeal, within fifteen days of his sentence, Docket No. 53,306. We cannot say he intelligently waived his right to appeal.