text:
    Frederick MARSDEN, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2070.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.

      Bennett H. Brummer, Public Defender and Thomas H. Connors, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

The defendant’s conviction for unlawful possession of a firearm while attempting to commit a felony, section 790.07, Florida Statutes (1977), is affirmed. Although the elements of this crime are the same as the elements constituting the crime of attempted robbery with a firearm, sections 812.13(1), (2)(a), and 777.04(1), Florida Statutes (1977), for which defendant was also convicted, the error was not preserved for appellate review since defendant failed to attack the information below through a motion to elect and/or dismiss. However, the sentence imposed upon the less serious of the two crimes — the firearm conviction— is reversed on double jeopardy grounds as a fundamental error which may be raised for the first time on appeal. Williams v. State, 397 So.2d 438 (Fla. 3d DCA 1981) (1981).

Denial of the defendant’s motion to suppress is affirmed on the authority of State v. Webb, 398 So.2d 820 (Fla.1981).

Affirmed in part; reversed in part.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mark Lee RAY and David Gorman, Appellants, v. STATE of Florida, Appellee.
    Nos. 80-1250, 81-541.
    District Court of Appeal of Florida, Fifth District.
    July 1, 1981.
    J. Cheney Mason and Donald A. Lykke-bak, Orlando, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of State v. Benitez, 395 So.2d 514 (Fla.1981).

DAUKSCH, C. J., and ORFINGER and COWART, JJ., concur.


author: PER CURIAM. COWART, Judge,

text:
    William Floyd MEYERS, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 80-1082.
    District Court of Appeal of Florida, Fifth District.
    July 1, 1981.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

Appellant’s split sentence on count 1 is reversed for resentencing in conformity with Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981) [1981 F.L.W. 313], a decision which was not available to the trial judge because it issued after the sentencing in this case. Appellant’s judgments and sentences are affirmed in all other respects.

AFFIRMED in part; REVERSED in part.

DAUKSCH, C. J., and ORFÍNGER, J., concur.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

I dissent for the reasons expressed in the dissent to Lauxman v. State, 402 So.2d 432 (Fla. 5th DCA 1981), and Wesley v. State, 400 So.2d 175 (Fla. 5th DCA 1981). Furthermore, although Villery has effectively repealed split sentences under section 948.01(4), Florida Statutes, it should be noted that the benefits of that sentencing concept are still available to trial judges where, as here, an accused is subject to separate sentences on two or more counts. This may be accomplished by sentencing the defendant to confinement on one count and ordering probation on another count and providing for the latter count to run consecutive to the first.


author: SHARP, Judge.

text:
    Joseph ROTHENBERG and United States Fidelity & Guaranty Company, Appellants, v. Herschel SHEPARD and City of Palatka, Appellees.
    No. 80-1043.
    District Court of Appeal of Florida, Fifth District.
    July 1, 1981.
    Angus W. Harriett, Palatka, for appellants.
    Hedstrom, Dunning & Smith, Palatka, for appellee, Shepard.
    A. W. Nichols, III, Palatka, for appellee, City of Palatka.
   SHARP, Judge.

REVERSED.

See Shepard v. City of Palatka, 399 So.2d 1044 (Fla. 5th DCA 1981).

DAUKSCH, C. J., and COWART, J., concur.


text:
    Robert BLACKSHEAR, Jr., and Vernon Lee Adams, Appellants, v. STATE of Florida, Appellee.
    Nos. 80-888, 80-959.
    District Court of Appeal of Florida, Fifth District.
    July 1, 1981.

      James B. Gibson, Public Defender, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

Appellants’ split sentences are reversed for resentencing in conformity with Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla. 1981), a decision which was not available to the trial judge because it issued after the sentencing in this case.

REVERSED.

ORFINGER and SHARP, JJ., concur.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

I dissent for the reasons expiessed in the dissent to Wesley v. State, 400 So.2d 175 (Fla. 5th DCA 1981).


author: DAUKSCH, Chief Judge.

text:
    STATE of Florida, Appellant, v. Robert L. LITTLE, Appellee.
    No. 80-304.
    District Court of Appeal of Florida, Fifth District.
    July 1, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty., Gen., Day-tona Beach, for appellant.
    Raymond E. Cramer, St. Cloud, for appel-lee.
   DAUKSCH, Chief Judge.

We have for consideration before us an order of the trial court declaring

ORDERED AND ADJUDGED that Section 732.663 F.S. [sic] does not charge a crime. It mere sets our a penalty for unlawfully poaching. Further, if this Section states a crime the State would have to prove the elements of poaching, that is the trespass and violation of sporting rights. Therefore the Motion to Dismiss is granted.

The order of the trial court is unclear. We are confused first by the “order that Section 732.663 (sic) does not charge a crime.” We assume the order was meant to say “state” a crime and, if so, the implication is that the trial judge felt the statute was unconstitutionally vague. We have also been led to suspect the trial judge might have meant to say the statute does not allow for a prosecution for a crime because it fails to define the elements of poaching which were, at common law, as the order says, the trespass upon another’s land and the violation of his “sporting rights.” That means, essentially, the taking of game animals from another’s property, either private or public. In order to take a wild animal, a game animal, it is obviously necessary to kill or capture it. Of course this is true of any animal which does not want to come, or cannot, by its own volition.

As has been often said it is our obligation to find an allegedly unconstitutionally vague statute constitutional if the application of ordinary logic and common understanding would permit. Board of Public Instruction of Broward County v. Doran, 224 So.2d 693 (Fla.1969). See Newman v. Carson, 280 So.2d 426 (Fla.1973) (test of statutory vagueness is whether language conveys sufficiently definite warning as to proscribed conduct when measured by common understanding and practice).

Having read this statute and the information charging the crime we must conclude there is nothing vague or indistinct about what the Legislature meant when it wrote the statute and what the appellees were alleged to have done to violate it. This statute is surrounded by others which are obviously meant to. protect alligators. Although this particular statute is the only one we have found which uses the word “poaching” or the word poach in any form, we cannot see how a person would be misled as to what acts are proscribed by the statute.

There are a number of statutes which provide for the penalty for the commission of acts which were under the common law, and still are, crimes. Just because the Legislature has not specifically defined the usual meaning of these crimes does not mean they can by violated without penalty. In section 775.01, Florida Statutes, it is provided

The Common Law of England in relation to crimes, except so far as the same relates to the modes and degrees of punishment, shall be of full force in this state where there is no existing provision by statute on the subject.

If the Legislature uses a word without defining it then its common or ordinary meaning applies. Although we recognize “poaching” or “to poach” is not as common a term as in times past and our urban neighbors may not even know what it means, it is hardly questionable that one who goes upon another’s land wrongfully and kills or captures game animals knows what poaching means. The moneylender knows quite well what usury means but it is probable many woodsmen do not. The same may be said of the words compounding a felony, misprision of a felony, sedition, and tattooing. We have skimmed the statute books for champerty, barratry and maintenance and do not see those words defined (or the crimes proscribed) but there are few lawyers who do not know, generally, what those terms mean, and it is lawyers who would violate them. It is apparent the Legislature meant to require the elements of common law poaching to be proved, and that should be done. The statute and the information are clear enough in their terms to let the accused know what he did wrong and the potential poacher know what he better not do.

The order dismissing the information is reversed.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . The proper statute is 372.663 which states:
      (1) Any person who is convicted of poaching alligators or any crocodilia by killing or capturing, or attempting to kill or capture, such animals shall be guilty of a felony of the third degree ...


text:
    Eleanor K. NOWICKI, as Personal Representative of the Estate of Janine Marie Nowicki, Deceased, Appellant, v. SCHOOL BOARD OF BROWARD COUNTY, a political subdivision of the State of Florida, and Admiral Insurance Company, a/k/a Security Insurance Corporation, a Connecticut corporation, Appellees.
    No. 79-1915.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1981.
    Law Offices of James A. McCauley and Simons & Sehlesinger, P.A., Fort Lauder-dale, Joel D. Eaton and Walter H. Beck-ham, Jr. of Podhurst, Orseck & Parks, P.A. and Susan Goldman, Miami, for appellant.
    E. Bruce Johnson of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   PER CURIAM.

This is an appeal from the denial of a motion for new trial on the issue of damages. We reverse and remand for a new trial on the issues of liability and damages.

Appellant, Eleanor K. Nowicki, as personal representative of the estate of Janine Marie Nowicki, deceased, brought an action for the wrongful death of Janine Nowicki against the School Board of Broward County and its insurer, Admiral Insurance Company, in which she alleged that the School Board was negligent in failing to provide proper emergency first aid care and treatment, and in failing to provide for the health, safety and welfare of Janine Now-.icki, causing her death. At trial the jury returned a verdict for appellant against the School Board, awarding $20,000 to the estate of Janine Marie Nowicki, but awarding zero damages to the decedent’s mother, Eleanor K. Nowicki, and the decedent’s father, Richard Nowicki.

The jury was confused during their deliberations about whether they had to award damages to the estate, the mother and the father, or whether an award only to the estate would be legally sufficient, should they find for the plaintiff. Although the court, after consulting with counsel, tried to clarify the issue, it is apparent from the unsupported amount of the award to the estate that the jury remained confused.

Section 768.21(6), Florida Statutes (1979) enumerates those damages that are recoverable on behalf of the estate in a wrongful death action. Specifically, in the instant case the evidence supports a maximum potential recovery on behalf of the estate of $8,000, slightly less than $6,400 for medical expenses and slightly more than $1,600 in funeral costs. This does not even approach the $20,000 award. In light of the previously referred to confusion of the jury and their misconception of law as is apparent from the unsupported award to the estate, we believe a new trial on both liability and damages is proper.

Accordingly, we reverse the order denying the motion for new trial on damages alone and remand for a new trial on liability and damages on authority of Section 59.35, Florida Statutes (1979).

REVERSED AND REMANDED.

HERSEY and GLICKSTEIN, JJ., and WETHERINGTON, GERALD T., Associate Judge, concur.

      . Section 768.21(6) provides, in part:
      (6) The decedent’s personal representative may recover for the decedent’s estate the following:
      (a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. If the decedent’s survivors include a surviving spouse or lineal descedents, loss of net accumulations beyond death and reduced to present value may also be recovered.
      (b) Medical or funeral expenses due to the decedent’s injury or death that have become a charge against his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5).


author: LETTS, Chief Judge. HERSEY, Judge, ANSTEAD, Judge,

text:
    Marvin STERNBERG and Susan Sternberg, his wife, Appellants, v. BARNETT BANK OF FORT LAUDERDALE, a Florida Banking Corporation, Andrew Development Corporation, a Florida Corporation, Fred Sternberg and Bonnie Sternberg, appellees.
    No. 79-2116.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1981.
    Samuel L. Heller, Law Offices of Samuel L. Heller, P. A., Fort Lauderdale, for appellants.

      Bruce A. Weihe, of Houston, Faircloth, Cooper, Easthope & Kelley, Fort Lauder-dale, for appellee Barnett Bank.
   LETTS, Chief Judge.

This cause is affirmed.

The neglect which has occasioned the entry of a summary judgment came about either by the gross negligence of the losing parties’ attorney or the losing parties themselves, or both. If the first or last of these three possibilities are the correct ones, then the remedy, if any, is against the attorney. Even after entry of the final judgment no effort to set it aside was made for more than seven months. Prior cases out of this court have concluded that neglect by attorneys and failure of litigants to keep abreast of litigation do not normally constitute excusable neglect. Kar Kare Owners Group of Florida v. Chason, 356 So.2d 851 (Fla. 4th DCA 1978) and Westinghouse Credit Corporation v. Steven Lake Masonry, Inc., 356 So.2d 1329 (Fla. 4th DCA 1978).

As we said in Kar Kare,

Simple prudence would dictate that when one is being sued on a serious matter, such as this ... one would positively notify his attorneys as to his exact whereabouts and not depend on the vagaries of the re-routing process of the U.S. Mails. At least, when he heard nothing for several months he should have enquired. (Id. at 854.)

AFFIRMED.

HERSEY, J., concurs specially with opinion.

ANSTEAD, J., dissents with opinion.

HERSEY, Judge,

concurring specially:

The record discloses that appellants became aware of the withdrawal of their attorney in May of 1979. Their motion to vacate the default judgment was not filed until July 27, 1979. “Further delay in excess of the time reasonably necessary to prepare and file a notice to vacate should prove fatal, absent exceptional circumstances.” Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So.2d 1329 (Fla. 4th DCA 1978). Whether or not appellants’ inaction prior to entry of the default judgment resulted from excusable neglect their subsequent inaction is not legally excusable. Accordingly I concur in affirming the summary final judgment.

ANSTEAD, Judge,

dissenting:

On the present state of the record it is uncontradicted that the appellants’ attorney withdrew from this cause without notice to appellants and that the cause then proceeded to final disposition without any notice to the appellants. As soon as the appellants learned of the entry of final judgment they moved to set it aside. As noted above, these facts are not in dispute.

Rule 2.060(i) of the Rules of Judicial Administration provides:

(i) Withdrawal of Attorney. An attorney shall not be permitted to withdraw from an action unless the withdrawal is approved by the court. The attorney may file a motion for that purpose stating the reasons for withdrawal and the client’s address. A copy of the motion shall be served on the client and adverse parties.

The motion to withdraw contained no certification that a copy had been served upon appellants as required by Rule 2.060(i). In fact, no notice was given to the appellants, who are residents of Pennsylvania, even though their address was in the court file and set out in the original summons and return.

The motion to withdraw specifically alleged the appellants’ absence from the area as the reason the attorneys sought to withdraw. Notwithstanding the above, the order authorizing withdrawal reflected that a copy thereof was being sent to appellants at an erroneous local address in Fort Lauder-dale. The source of the erroneous address is not contained in the record. All further notices to appellants were sent to the erroneous address notwithstanding the fact that appellants’ correct address was clearly set out in the court file.

If an attorney withdraws, and no other attorney is substituted in his place, a party is at least entitled to continuing notice of the proceedings. In this case, since the record reflects that the appellants’ correct address was in the court file I believe they were entitled to notice at that address.

I agree with the majority that the attorney in question may be subject to sanctions, and perhaps even legal action, if indeed the appellants never received notice of the withdrawal as the record presently reflects. However, I do not believe the attorneys’ negligence should prevent the appellants from being relieved of the effects of a final judgment entered on the erroneous assumption that appellants were receiving notice of the ongoing proceedings when in fact notice was being sent to them at an incorrect address despite the fact the court file contained their correct address.

      . We do not refer to counsel for appellant on appeal. Another attorney handled this case at the trial level.


author: ANSTEAD, Judge.

text:
    Toby KEARNS a/k/a Thomas Norman Kearns, Jr., and Leon Eugene Allen, Petitioners, v. The Honorable Judge Lawrence L. KORDA, Respondent.
    No. 81-1022.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1981.
    Charles G. Brackins, Gainesville, for petitioners.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for respondent.
   ANSTEAD, Judge.

The respondent trial judge granted petitioners’ motion to dismiss on the grounds that the statute under which the petitioners were being prosecuted was unconstitutional. See generally, State v. Benitez, 395 So.2d 514 (Fla.1981). The state did not appeal. Subsequently, in Benitez, supra, the statute in question was found to be constitutional. The state then filed a motion before the respondent to reinstate the cause and the motion was granted. The petitioners now claim that upon dismissal the trial court lost jurisdiction and had no authority to reinstate the case. In response to an order to show cause the respondent has candidly conceded the validity of petitioners’ assertion. The respondent has not cited and we are unaware of any authority by which the trial court, after dismissal, could reinstate the action against the petitioners because of the issuance of an appellate decision in another case. See generally State v. Morris, 359 So.2d 478 (Fla. 1st DCA 1978). Accordingly, the petition is granted and the respondent is directed to discharge the petitioners from further prosecution in Circuit Court Case No. 80-9398 CF A-B.

DOWNEY and MOORE, JJ., concur.


text:
    David Wayne BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1141.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1981.
    Richard L. Jorandby, Public Defender, and Ellen S. Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant appeals from two judgments of conviction and sentences for robbery with a firearm. We find no merit to the points on appeal and affirm.

The appellant also appeals from a judgment of conviction and sentence for possession of a firearm while engaged in a criminal offense. The conviction and sentence for this offense are vacated. See, State v. Pinder, 375 So.2d 836 (Fla.1979); Hillery v. State, 391 So.2d 776 (Fla. 4th DCA 1980); Saleh v. State, 399 So.2d 513, (Fla. 4th DCA, 1981).

LETTS, C. J., MOORE and HERSEY, JJ., concur.


text:
    Bruce SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 81-986.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1981.
    Bruce Simmons, pro se.
    No appearance for appellee.
   PER CURIAM.

Reversed on the authority of Jones v. State, 384 So.2d 736 (Fla. 4th DCA 1980). The trial court should conduct an evidentia-ry hearing to determine whether defendant’s plea bargaining agreement was violated. If so, he must be given an opportunity to withdraw his plea. See Richmond v. State, 375 So.2d 1132 (Fla. 1st DCA 1979).

MOORE, HERSEY and HURLEY, JJ., concur.


text:
    Frederick Lee REDMAN, Appellant, v. STATE of Florida, Appellee.
    No. 79-1690.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1981.
    Richard L. Jorandby, Public Defender and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. The assessment of $2.00 court costs against the appellant is stricken.

LETTS, C. J., and MOORE and HERSEY, JJ., concur.


text:
    Cleveland JONES, Appellant, v. STATE of Florida, Appellee.
    No. 81-916.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1981.
    Cleveland Jones, pro se.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED. The trial court was without jurisdiction to consider the appellant’s pro se motion for post-conviction relief because of an appeal pending in this court involving the same issues. See Gonzalez v. State, 384 So.2d 57 (Fla. 4th DCA 1980).

LETTS, C. J., and DOWNEY and AN-STEAD, JJ., concur.


text:
    Gerald L. THOMAS, Jr., Appellant, v. PERSONAL REPRESENTATIVE OF the ESTATE OF Leo Z. DeLOACH, Sr., Deceased; Leo Z. DeLoach, Jr., as Heir At Law of Leo Z. DeLoach, Sr., Deceased; and General Accident Fire and Life Assurance Corporation, Ltd., an Insurance Corporation, Appellees.
    No. VV-55.
    District Court of Appeal of Florida, First District.
    July 1, 1981.

      G. Frank Godfrey of Wood, Godfrey & Callin, P.A., Jacksonville, for appellant.
    Stephen E. Day and Harris B. Brown of Mathews, Osborne, Ehrlich, McNatt, Gobel-man & Cobb, Jacksonville, for appellees.
   PER CURIAM.

Thomas appeals the dismissal of his complaint for failure to prosecute. We reverse and remand.

On October 20,1978, Thomas filed a complaint against DeLoach’s estate alleging De-Loach had negligently operated a vehicle thereby injuring Thomas. The defendant, General Accident Fire and Life Assurance Corporation (General), moved to dismiss the complaint on March 7, 1979. On March 21, 1979, the court entered a Notice of Trial and on May 9,1979, the court filed a Memorandum on Cancellation. The record reflects no other activity until March 12,1980, when General moved to dismiss for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e) (1980). Following a hearing, the trial court entered an order dismissing the cause.

Rule 1.420(e) provides in part:

All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing, at least five days before the hearing on the motion, why the action should remain pending.

The rule was designed to require prompt prosecution of cases and to prevent the clogging of the trial court’s docket. Strader v. Morrill, 360 So.2d 1137 (Fla. 1st DCA 1978). The rule, however, specifically provides that “[m]ere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.” Any record activity filed by a party or the court within the year prior to the motion to dismiss which is intended to move the cause to judgment precludes dismissal. Harris v. Winn Dixie Stores, Inc., 378 So.2d 90 (Fla. 1st DCA 1979).

The trial court entered the Notice of Trial within the twelve-month period prior to General’s filing of the motion to dismiss. The courts have consistently held that a notice of trial or hearing is sufficient action to avoid the effect of a motion to dismiss under Rule 1.420(e). Adams Engineering Co. v. Construction Products Corp., 156 So.2d 497 (Fla.1963); City of Miami v. Railway Express Agency, Inc., 141 So.2d 285 (Fla. 3d DCA 1962); Milu, Inc. v. Duke, 256 So.2d 83 (Fla. 3d DCA 1971); Kenet v. Stein, 326 So.2d 36 (Fla. 3d DCA 1976). Since the trial judge entered the Notice of Trial within the twelve months prior to the motion to dismiss, the appellee’s motion was prematurely filed and the trial court erred in ordering the dismissal. The fact that the trial date was later cancelled has no bearing on the effect of the notice. The court notes this error may have occurred due to a change in the presiding trial judge.

Accordingly, the cause is reversed and remanded for action consistent with this opinion.

SHIVERS and WENTWORTH, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge, concur.


author: WENTWORTH, Judge.

text:
    INTER-MEDIC HEALTH CENTERS, INC., etc., et al., Appellants, v. Edward L. MURPHY, etc., Appellee.
    No. ZZ-338.
    District Court of Appeal of Florida, First District.
    July 1, 1981.
    Bruce S. Bullock of Bullock, Sharp, Childs, Mickler & Cohen, Jacksonville, Walter A. Shelley of Shelley & Shelley, Dayto-na Beach, for appellants.
    Thomas R. Brown and Wayne Hogan of Brown, Terrell & Gogan, Jacksonville, for appellee.
   WENTWORTH, Judge.

Appellants seek interlocutory review of an order denying various motions relating to venue; we conclude that the court erroneously refused to transfer venue, and reverse the order appealed. This case involves a medical malpractice action brought against the patient’s physician (Dr. Shelley) and the treating hospital in its corporate entity (Inter-Medic). The cause of action accrued in St. Johns County, where the treating hospital is located and where Dr. Shelley resides; however, this action was brought in Duval County, where Inter-Medic maintains another hospital facility. Section 47.021, Florida Statutes, provides that, regarding multiple defendants residing in different counties, venue “may be brought in any county in which any defendant resides.” However, this provision is inapplicable where a corporate defendant resides in the same county as an individual defendant, even though the corporate defendant may have other residences; in such circumstances venue is proper, pursuant to § 47.011, Florida Statutes, only in the county of “joint residence.” See Enfinger v. Baxley, 96 So.2d 538 (Fla.1957); Maloney v. Fleishaker, 238 So.2d 496 (Fla.2d DCA 1970).

While a venue objection is subject to waiver, see Inverness Coca Cola Bottling Co. v. McDaniel, 78 So.2d 100 (Fla.1955), Inter-Medic’s failure to make an adequate objection does not preclude the assertion of a venue objection by Dr. Shelley. See Maloney v. Fleishaker, supra. Dr. Shelley did file a timely objection, by way of motion to dismiss and transfer venue, citing § 47.011 and alleging St. Johns County as his only residence and the appropriate place of venue. Although Dr. Shelley did not specifically allege that Inter-Medic also resides in St. Johns County, this fact was alleged in both the complaint and Inter-Medic’s answer. We conclude that in these circumstances Dr. Shelley’s venue objection was sufficiently pleaded.

The order appealed is accordingly reversed and remanded with directions to transfer venue.

SHAW and THOMPSON, JJ., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Ricky Steven WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 80-137.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1981.
    Joel S. Fass of Colodny & Fass, P. A., North Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   OPINION ON REHEARING

PER CURIAM.

The petition for rehearing, Fla.App., 390 So.2d 411, is denied.

LETTS, C. J., and HERSEY, J., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

I believe our decision herein is in conflict with this court’s decision in Robinson v. Lasher, 368 So.2d 83 (Fla. 4th DCA 1979).


text:
    Pete HIRSCHEY v. Sherman A. BERNARD.
    No. 81-C-0123.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Sherman A. Bernard, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 398 So.2d 1134.

Granted. The district court judgment is reinstated and the court of appeal judgment is vacated. Otherwise the writ is denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Reginald ROME v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0312.
    Supreme Court of Louisiana.
    April 17, 1981.
   In re Reginald Rome, applying for writ of certiorari. Parish of Orleans. No. 260-371.

Granted in part and denied in part and relator is remanded for resentencing. See State ex rel. Bickman v. Dees, 367 So.2d 283 (Louisiana 1978). Otherwise denied.


text:
    STATE of Louisiana v. Arthur DAVIS.
    No. 81-K-0979.
    Supreme Court of Louisiana.
    April 17, 1981.
   In re Arthur Davis, applying for writ of certiorari, and stay order. Parish of Orleans. No. 256-545.

The writ is granted and the ruling of the trial judge is reversed. The testimony of an absent witness may not be used in the new trial unless the witness is “truly unavailable,” Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). The record before us is not convincing that the witness is “truly unavailable,” or that the state has exercised diligent efforts to locate him. See C.Cr.P. art. 857 and comments thereunder; State v. Sam, La., 283 So.2d 81; State v. Moore, La., 305 So.2d 532; State v. Jones, La., 325 So.2d 235; State v. Kaufman, La., 304 So.2d 300. The case is remanded to the district court for further proceedings.


text:
    STATE of Louisiana v. Terry James HILL et al.
    No. 81-K-0650.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Cotton Belt Insurance Company, applying for writs of certiorari, prohibition and mandamus. Parish of Terrebonne. No. 86-332.

Denied. State v. Coran, 386 So.2d 914 is distinguishable.

DIXON, C.J., would grant the writ.


text:
    Minnie KNOX et al. v. Celeste R. EUBANKS et al. Lubertha Bell CAREY v. Celeste R. EUBANKS et al.
    No. 81-C-0941.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Minnie Knox, and Lubertha Bell Carey, applying for remedial writs. Parish of East Baton Rouge. Nos. 234195 and 237318.

Denied.


text:
    STATE of Louisiana ex rel. Gary L. SWINSON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0953.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Gary L. Swinson, applying for writs of mandamus and habeas corpus. Parish of Morehouse. No. 27685.

Denied.


text:
    STATE of Louisiana ex rel. Glenn D. NEWMAN v. STATE of Louisiana.
    No. 81-KH-0956.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Glenn D. Newman, applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of Bossier. No. 56575.

Denied.


text:
    STATE of Louisiana v. Alvin M. SPURGEON.
    No. 81-K-0966.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Alvin M. Spurgeon, applying for writ of certiorari. Parish of LaSalle. No. 22966.

Denied.


text:
    Gloria Jean HAYNES, on Behalf of her minor child, Brandon Cargo v. Clarence CARGO.
    No. 81-C-0973.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Clarence Cargo, applying for remedial writs. Parish of Orleans. No. 80-17410.

Denied.


text:
    STATE of Louisiana, Autry Lee Jones v. Norbert C. RAYFORD, Commissioner, 19th Judicial District Court, Baton Rouge, Louisiana.
    No. 81-C-0978.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Autry Lee Jones, applying for writ of certiorari, prohibition and mandamus. Parish of East Baton Rouge. No. 198836.

Denied.


text:
    STATE of Louisiana ex rel. Alphonse BAZILE v. STATE of Louisiana.
    No. 81-KH-0989.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Alphonse Bazile, applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Orleans. No. 252-942.

Denied.


text:
    STATE of Louisiana v. Willie D. GARNER.
    No. 81-K-1013.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Willie D. Garner, applying for writ of habeas corpus. Parish of Livingston. No. 3154.

Writ denied.


text:
    STATE of Louisiana v. Harry J. OUBRE.
    No. 81-K-1044.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Harry J. Oubre, applying for writs of certiorari, prohibition, mandamus and for a stay order. No. 171-80. Parish. St. John Baptist

Denied.


text:
    STATE of Louisiana v. Anthony T. MAURER.
    No. 81-K-1076.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Anthony T. Maurer, applying for writs of remedial writs. Parish of Rapides. Nos. 80-4890 and 80-4891.

Writ denied.


text:
    CHALMETTE GENERAL HOSPITAL, INC. v. William A. CHERRY et al.
    No. 81-C-0963.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re George Fischer, Vice: Dr. William A. Cherry, and the Louisiana Department of Health and Human Resources, applying for writs of certiorari or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 398 So.2d 599.

Denied. Judgment not final.


text:
    Howard Leo SIBLEY, Jr., et al. v. Randy MENARD et al.
    No. 81-C-1067.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Randy Menard, et al., applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of Livingston. 398 So.2d 590.

Writ denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. James CRIPPS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary, et al.
    No. 80 KH 1709.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re James Cripps, applying for writ of mandamus, Criminal District Court. Parish of Orleans. Honorable Bernard J. Bagert, Judge. No. 203-494.

Granted. The trial court is ordered to act on the application on or before May 14, 1981.


text:
    STATE of Louisiana v. Harlow R. FREEMAN, Jr., and Tim R. Lee.
    No. 81-K-0944.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Harlow R. Freeman, Jr., and Tim R. Lee, applying for writs of certiorari, prohibition and mandamus. Parish of DeSoto. Nos. 42321, 42322, 42323, 42325, 42327, 42328, 42329, 42330, 42331, 42332, 42333, 42336, 42337, 42339, 42340 and 42341.

Writ granted. The matter is docketed as an appeal.


text:
    STATE of Louisiana ex rel. Rodney BECNEL v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0957.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Rodney Becnel, applying for writs of certiorari, prohibition, mandamus and habeas corpus. Orleans Parish. No. 229-168.

Writ granted.


text:
    STATE of Louisiana ex rel. Robert MYLES v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 67589.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Robert Myles, applying for writ of habeas corpus. Parish of Orleans. No. 265-242.

Writ denied.


text:
    STATE of Louisiana ex rel. Jimmy BAZILE, Sr. v. CRIMINAL SHERIFF JEFFERSON PARISH SHERIFF DEPARTMENT, Twenty-Fourth Judicial District, State of Louisiana.
    No. 81-KH-0108.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Jimmy Bazile, Sr., applying for writ of mandamus. Parish of Jefferson.

Denied. Moot.


text:
    STATE of Louisiana v. Don POOLE.
    No. 81-K[A]-0397.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Don Poole, applying for remedial writs. Parish of Jefferson. No. 78-1549.

Denied.


text:
    STATE of Louisiana ex rel. Kevin J. JOHNSTON v. Judge Frank SHEA, Orleans Criminal District Court.
    No. 81-KH-0432.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Kevin J. Johnston, applying for supervisory and remedial writs. Parish of Orleans. No. 269-603.

Denied.


text:
    STATE of Louisiana ex rel. Kenneth HENELY v. STATE of Louisiana et al.
    No. 81-KH-0519.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Kenneth Henely, applying for remedial writs. Parish of West Feliciana. Nos. 11044A and 11043A.

Denied.


text:
    STATE of Louisiana ex rel. Alton WOODS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0766.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Alton Woods, applying for writ of habeas corpus. Parish of St. Landry. No. 32725.

Denied.


text:
    STATE of Louisiana ex rel. Clifford NOLAN v. STATE of Louisiana.
    No. 81-KH-0801.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Clifford Nolan, applying for remedial writs. Parish of St. Tammany. No. 83172.

Denied.


text:
    STATE of Louisiana ex rel. Tommy PORTER v. Criminal Sheriff Charles C. FOTI, Jr. and Warden Joseph Howard.
    No. 81-KH-0802.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Tommy Porter, applying for writs of habeas corpus, and mandamus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Charles Paul WEATHERS v. Frank BLACKBURN, Warden, and 32nd Judicial District Court, Parish of Terrebonne, State of Louisiana.
    No. 81-KH-0826.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Charles Paul Weathers, applying for writ of mandamus. Parish of Terrebonne. No. 50621.

Denied.


text:
    STATE of Louisiana ex rel. Willis Wilbert JONES, Jr. v. The 27TH JUDICIAL DISTRICT COURT, St. Landry Parish, Louisiana.
    No. 81-KH-0834.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Willis Wilbert Jones, Jr., applying for writ of mandamus. Parish of St. Landry. No. 31820.

Denied.


text:
    STATE of Louisiana ex rel. Joseph R. SIEGEL v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0855.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Joseph R. Siegel, applying for writs of habeas corpus. Parish of East Baton Rouge. No. 1-74-8052B.

Denied.


text:
    STATE of Louisiana ex rel. Albert REY v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0856.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Albert Rey, applying for remedial writs. Parish of Orleans. No. 248-426.

Denied.


text:
    AMF-BRD, INC. v. Shirley McNAMARA, Secretary of the Department of Revenue and Taxation.
    No. 81-C-0873.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re AMF-BRD, Inc., applying for supervisory writ. Parish of East Baton Rouge. No. 14430.

Denied.

CALOGERO, BLANCHE and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Edison RANDLE v. Frank C. BLACKBURN, Warden.
    No. 81-KH-0887.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Edison Randle, applying for remedial writ. Parish of St. Mary. No. 105054.

Denied.


text:
    STATE of Louisiana v. Louis R. DIGILORMO.
    No. 81-K-0893.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Louis R. Digilormo, applying for remedial writs. Parish of Caddo. No. 9292.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana, ex rel. Willie D. NEEDHAM v. STATE of Louisiana.
    No. 81-KH-0902.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Willie D. Needham, applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Bossier. No. 55831.

Denied.


text:
    STATE of Louisiana ex rel. Joseph ROBERTSON v. Frank BLACKBURN, Warden.
    No. 81-KH-0907.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Joseph Robertson, applying for remedial writs. Parish of Iberville. No. 3600-79.

Denied.


text:
    STATE of Louisiana ex rel. Allen ANDERSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0906.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Allen Anderson, applying for certio-rari, habeas corpus, and mandamus. Parish of Orleans. No. 233-762.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Charles E. POSEY v. CLERK OF COURT, & O. I. D. P. Parish of Orleans, Section “H”, State of Louisiana.
    No. 81-KH-0915.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Charles E. Posey, applying for writs of certiorari and mandamus. Parish of Orleans. No. 267-462.

Denied.


text:
    STATE of Louisiana ex rel. Rev. Thurmond L. CAMPBELL, Jr. v. STATE of Louisiana.
    No. 81-KH-0916.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Rev. Thurmond L. Campbell, Jr., applying for remedial writs. Parish of Cad-do. No. 114-189.

Writ denied.


text:
    STATE of Louisiana v. John Wayne TONNUBBEE.
    No. 81-K-1150.
    Supreme Court of Louisiana.
    May 4, 1981.
   In re State of Louisiana through the Asst. Attorney General, Patrick G. Quinlan, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of St. Charles. No. 80-143.

Denied.


text:
    STATE of Louisiana v. Alvin SHEPHERD.
    No. 81-K-1151.
    Supreme Court of Louisiana.
    May 5, 1981.
   In re Alvin Shepherd, applying for remedial writs and stay order. Parish of Orleans. No. 280-818, H.

Denied.


text:
    STATE of Louisiana v. Freddie WILLIAMS
    No. 81-K-1145.
    Supreme Court of Louisiana.
    May 5, 1981.
   In re Freddie Williams, applying for remedial writs. Parish of East Baton Rouge. No. 4-81-168.

Writ granted. Preliminary examination is ordered to be held on or before Wednesday, May 13, 1981.


text:
    STATE of Louisiana ex rel. Ken SEAVEY, (alias Randy Tucker), pro se. v. STATE of Louisiana, Honorable Frank Marullo, Judge.
    No. 81-KH-1073.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Ken Seavey, (alias Randy Tucker), pro se, applying for writs o.‘ certiorari. Parish of Orleans. No. 268-919.

Denied. The denial of the motion for a new trial may be reviewed in the pending appeal if the record and assignments of error are supplemented to preserve the issue for review.


text:
    STATE of Louisiana v. Lizardo GARCIA.
    No. 81-K-1128.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Lizardo Garcia, applying for writ of certiorari and stay order. Parish of Jefferson. No. 81-818.

Writ denied.


text:
    STATE of Louisiana In the Interest of Marie WILLIAMS.
    No. 81-CK-1148.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Marie Williams, applying for supervisory writs and stay order. Juvenile Court, Orleans Parish. No. 191-394.

Denied.


text:
    STATE of Louisiana ex rel. Edward Charles WATTS v. STATE of Louisiana.
    No. 81-KH-1057.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Edward Charles Watts, applying for writ of review. Parish of St. Tammany. No. 78441.

Denied.


text:
    STATE of Louisiana ex rel. Vernell RICHARDSON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary et al.
    No. 81-KH-1072.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Vernell Richardson, applying for remedial writs. Parish of Orleans.

Denied.


text:
    Charles NEATHERY v. STATE of Louisiana Through its DEPARTMENT OF CORRECTIONS et al.
    No. 81-C-1046.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Charles Neathery, applying for writs of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Rap-ides. No. 7813.

Denied.


text:
    STATE of Louisiana ex rel. Robert WALKER v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-1623.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Robert Walker, applying for writ of certiorari. Parish of Orleans. No. 219-498.

Denied.

DIXON, C. J., would grant the writ.


text:
    STATE of Louisiana ex rel. Ronald BRAUD v. Honorable Jerome M. WINSBERG et al.
    No. 80-KH-2689.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Ronald Braud, applying for writs of mandamus and supervisory remedial. Parish of Orleans. No. 268-294.

Denied.


text:
    STATE of Louisiana ex rel. Albert DAWSON v. STATE of Louisiana.
    No. 81-KH-0258.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Albert Dawson, applying for writ of mandamus. Evangeline Parish. Nos. 24240 and 14106.

Denied.


text:
    STATE of Louisiana ex rel. Leon G. HULBERT v. STATE of Louisiana and the Attorney General of East Baton Rouge.
    No. 81-KH-0622.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Leon G. Hulbert, applying for writs of habeas corpus, certiorari and mandamus. Parish of East Baton Rouge. No. 5-80-87.

Writ denied. Consideration of petitioner’s claims is premature until district court acts on his out of time appeal.


text:
    STATE of Louisiana ex rel. Preston DAIGRE v. 20TH JUDICIAL DISTRICT COURT, PARISH OF WEST FELICIANA.
    No. 81-KH-0515.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Preston Daigre, applying for writ of mandamus. Parish of West Feliciana. No. W-77-3-381.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Anthony LANKFORD v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0917.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Anthony Lankford, applying for writs of habeas corpus. Parish of Jefferson. No. 79-543.

Writ denied.


text:
    STATE of Louisiana ex rel. David N. TAYLOR v. C. J. BOLIN, Judge, First Judicial District Court, State of Louisiana.
    No. 81-KH-0952.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re David N. Taylor, applying for writ of mandamus. Parish of Caddo. No. 117095 HC.

Denied.


text:
    STATE of Louisiana ex rel. Rodney Wayne MACON v. STATE of Louisiana.
    No. 81-KH-0988.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Rodney Wayne Macon, applying for writ of review. Parish of Caddo. No. 112549.

Denied.


text:
    STATE of Louisiana ex rel. John VINCENTE v. Frank C. BLACKBURN, Warden et al.
    No. 81-KH-1004.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re John Vincente, applying for remedial writs. Parish of Jefferson. No. 74228.

Denied.


text:
    GALA AMUSEMENT COMPANY, INC. v. KEY DODGE, INC. and Chrysler Corporation.
    No. 81-C-1017.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Key Dodge, Inc., applying for writs of certiorari. Parish of Orleans. No. 79-13713.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Morris Frank KING v. Frank C. BLACKBURN, Warden et al.
    No. 81-KH-1025.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Morris Frank King, applying for remedial writs. Parish of St. Bernard. Nos. 40-728, 40-729 and 40-730.

Writ denied.


text:
    Susan Hemington, wife of Henry J. JUMONVILLE, III v. Henry J. JUMONVILLE, III.
    No. 81-C-1041.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Henry J. Jumonville and Geraldine Combs Jumonville, applying for remedial writs. Parish of Orleans. No. 79-12683.

Writ denied.


text:
    STATE of Louisiana v. Michael NEUBERGER.
    No. 81-K-1042.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Michael Neuberger, applying for writs of certiorari and review. Parish of Orleans. No. 280-063.

Denied.


author: GARRISON, Judge.

text:
    Marie Hymes Prevost, wife of and Maurice PREVOST v. YOSEMITE INSURANCE COMPANY.
    No. 11240.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 17, 1980.
    Rehearing Denied May 29, 1981.
    Writ Denied Sept. 11, 1981.
    Richard J. Boutall and Louis H. Schultz, Metairie, for plaintiff-appellant.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Harvey L. Strayhan and Peter S. Title, New Orleans, for third party plaintiff-defendant-appellee.
    Before REDMANN, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, granting judgment in favor of the defendant, Yosemite Insurance Co. and against the plaintiffs, Marie Hymes Prevost, wife of/and Maurice Prevost, and intervenor, Admiral Insurance Company, dismissing their case on the grounds that a policy issued by the defendant to insure plaintiffs’ home at 3116 Dumaine Street, New Orleans, against various losses, including fire loss, was cancelled prior to a fire which occurred at the home on January 19, 1976. From that judgment which we now reverse in part, plaintiffs and intervenor appealed.

The threshold issue to be addressed by this court is the question of cancellation. All parties presented evidence on the factual questions of whether the notice of cancellation was received and/or mailed, as well as, whether excess premiums were refunded. The issue is resolved, however, not on a question of fact, but on a point of law.

The Yosemite policy contains the following “Amendatory Cancellation and Non-Renewal Endorsement:”

“2. CANCELLATION OF POLICIES IN FORCE FOR 60 DAYS OR MORE AND RENEWAL POLICIES.
If this policy:
(a) has been in force for 60 days or more; or
(b) if this is a renewal policy issued by this Company, effective immediately;
it may be cancelled by this Company for one or more of the following reasons and then only by mailing or delivering to the insured written notice stating when, not less than 30 days thereafter, such cancellation shall be effective:
(1) This policy was obtained through material misrepresentation, fraudulent statements, omissions or concealment of fact material to the acceptance of the risk or to the hazard assumed by this Company:
(2) There has been a substantial change in the risk assumed by this Company since the policy was issued, or
(3) Willful and negligent acts or omission by the insured have substantially increased the hazards insured against.”

The policy was contracted on October 22, 1975, and was in effect for sixty days on December 21, 1975, which is the sixty-first day. The notice of cancellation was mailed on December 31,1975, hence the cancellation could not be effective until 31 days after the date of mailing or until January 31,1976. The fire, occurring on January 19, 1976, fell within a time period during which Yosemite could not have can-celled under the terms of its own contract.

Turning to the procedural aspects of the instant appeal, we note that the following actions were taken. On January 4, 1977, the Prevosts sued Yosemite on their contract of insurance. On August 31, 1977, Yosemite third-partied Insurance Brokers & Managers, Inc. and Graci Insurance Agency, Inc., alleging active negligence on their part in failing to properly cancel the contract. On October 24,1977, Admiral Insurance intervened for $12,450.00, alleging that it had paid that amount to the mortgage-holder, Pennamco, that Pennamco had credited that amount to the Prevosts, and that the Prevosts had assigned their rights to the first $12,450.00 to Admiral.

The judgment of the district court properly dismissed the actions against Insurance Brokers & Managers, Inc. and Graci Insurance Agency, Inc. This judgment was not appealed. The judgment also dismissed Admiral’s intervention against Yosemite.

On appeal, defendant-appellee Yosemite has filed a peremptory exception of no right of action and, alternatively, a peremptory exception of no cause of action. These alternative exceptions are based, respectively, on the grounds that plaintiffs, the Prevosts, are not the true insured for the amount of the alleged loss and have made a full assignment of the rights of intervenor, Admiral, (this constituting the thrust of the exception of no right of action) and that the petition of the plaintiffs fails to disclose a cause of action.

The Prevosts have been paid the full amount of $12,450.00 pursuant to a subro-gation agreement with Admiral Insurance Co. Accordingly, they are dismissed from this suit and Yosemite’s exception of no right of action is maintained. Having thus concluded, we need not address Yosemite’s exception of no cause of action.

Having disposed of the threshold issue of the time factor as to Yosemite’s coverage and having disposed of the peremptory exceptions, we come now to the question of specific obligations in the matter. Inasmuch as the Yosemite contract, issued effective October 22nd, 1975, has been found by us still to have been in effect with regard to the fire occurring about January 19th, 1976, the fire damages occurring at that time are critical to the disposition of this case.

However, the expert presumably testifying as to the damages occurring on that date, while stating that his evaluation was based upon the cost of making the premises livable, admitted that he did not know that there had been at least two other fires on prior occasions other than January 19th, 1976. There is no indication that such previous fires occurred, as did the January 19th, 1976 fire, during the period of Yosemite coverage. There is no indication as to what proportion of the amount of repair needed to “make the premises liveable” is aseribable to the damage caused by the January 19th fire, in contradistinction to possible damage caused by the previous fires and included in the $12,450.00 repair evaluation.

In summary, the record contains insufficient evidence to support any kind of determination as to the extent of the obligation which should be borne by Yosemite as to the fire or fires occurring during its period of contractual coverage. Nor is it possible, consequently, to go any farther into the question of degree of obligation or respective obligations without such clarifying evidence. This court has no other alternative, at this point, except to require that the trial court obtain such evidence and adjudicate the amount to which Admiral as the Prevosts’ assignee is entitled. Accordingly, while reversing the trial court’s judgment for the reasons given earlier, at the same time we remand this matter for further proceedings as indicated.

Accordingly, the judgment of the district court dismissing Admiral’s intervention is reversed and the matter is remanded to the trial court for the purpose of permitting evidence to be offered and to decide in connection with the amount of damages and issues implicit therein. Yosemite’s exception of no right of action is maintained against MARIE HYMES PREVOST, wife of/and MAURICE PREVOST, dismissing them as parties with prejudice.

REVERSED AND REMANDED.

ON APPLICATION FOR REHEARING

PER CURIAM.

We grant the application of Admiral Insurance Company for a rehearing in order to reconsider that part of our original judgment which ordered a remand for the purpose of permitting evidence of damage caused by the fire.

The record shows that Yosemite in substance stipulated that the damage caused by the fire of January 19, 1976, amounted to $12,450 so that evidence of previous fires would be irrelevant, and Admiral is entitled to a judgment for this amount.

We deny the application of the Prevosts for a rehearing. Their contention that they have a right to assert a claim for attorney fees even though they have no claim for the loss is without merit considering that the claim they asserted against Yosemite in January, 1977, had been totally assigned to Admiral over three months before.

Yosemite’s application for rehearing is denied.

Accordingly, our original opinion and decree are amended to the extent that our order directing a remand is revoked and there is judgment in favor of Admiral Insurance Company and against Yosemite Insurance Company in the amount of $12,450 with legal interest from date of judicial demand until paid, and all costs.


author: BOUTALL, Judge.

text:
    Jerrald C. FLANNIGAN, Individually, and as the administrator of the estate of his son, Terry J. Flannigan and Terry J. Flannigan v. Wayne VALLIANT, Ray Valliant and State Farm Insurance Companies.
    No. 11686.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Rehearing Denied July 13, 1981.

      Gerald P. Aurillo, Metairie, for Jerrald Flannigan and Terry J. Flannigan, plaintiffs-appellants.
    Montgomery, Barnett, Brown & Read, Edward A. Rodrigue, Jr., Daniel Lund, New Orleans, for Adele Valliant and Ray Valli-ant, defendants-appellees.
    Before GULOTTA, BOUTALL and HUGHES (Assigned), JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court which sustained a motion for summary judgment brought by the defendants, thereby dismissing the claims raised by the plaintiffs.

The record reflects that this case was before us on a previous occasion but for different issues. This case arose out of an assault and battery on July 11, 1972 which was allegedly committed by Wayne Valliant upon the plaintiff Terry J. Flannigan. Subsequently, Flannigan filed suit against the minor Wayne Valliant to recover the damages which allegedly resulted from the latter’s tortious conduct. Other named defendants included the parents of the minor, namely Ray and Adele Valliant, and their insurer State Farm Fire and Casualty Co. (hereinafter referred to as State Farm). State Farm filed a motion for Summary Judgment based on an exclusion in its policy of insurance with the Valliants. This motion was sustained by the trial court and later affirmed by us at 371 So.2d 349, thereby dismissing State Farm from any liability. Thereafter the parents of Wayne Valli-ant filed a joint motion for Summary Judgment which was based on an exception to the rule established strict liability against parents for the tortious acts of their minor children. This motion was sustained by the trial court thereby dismissing the plaintiffs’ claims against them. From this judgment the plaintiffs have appealed devolutively.

At the time we reached our earlier decision concerning summary judgment as to State Farm we noted some uncontested facts which are directly applicable to the matter before us and which we will adopt here. Ray and Adele Valliant were divorced in 1970. One of the decrees in this judgment awarded the legal custody of the minor child Wayne to the mother Adele Valliant. Wayne resided in his mother’s home until 1971 when he moved in with his sister. He continued to reside with his sister until April 1972 after which he moved in with his father for one or two months. Thereafter, Wayne moved in with his friend Buster Anderson. In doing so he took all his belongings from his father’s abode and had no intent to ever reside there again. At the time of the battery on July 11, 1972 Wayne was renting a room for $10.00 a week from the Siphers. Hence, he was not residing with either of his parents at that time but nevertheless he remained in the legal custody of his mother.

On appeal the issue before us is whether either or both of the parents a-e liable for the tortious acts of their minor son, where the latter was not residing with either of them and the mother had legal custody of the son at the time the tort was committed.

The Louisiana Civil Code states that parents are in general liable for the tortious acts committed by their minor children. LSA-C.C. Art. 237 provides:

“Fathers and mothers are answerable for the offenses of quasi-offenses committed by their children, in the cases prescribed under the title: Of Quasi-Contracts, and of Offenses and Quasi-Offenses.”

LSA-C.C. Art. 2318 further states:

“The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemanci-pated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.
“The same responsibility attaches to the tutors of minors.”

The jurisprudence interpreting these statutes has established certain guidelines which are to be used in determining the liability of either or both parents. Generally, for the minor child who resides with his parents, liability for the tortious acts committed by the minor rests with the father. Turner v. Bucher, 308 So.2d 270 (La.1975). However, where the parental authority of the father has been suspended by the force and effect of law, such as a judgment awarding custody of a minor child to the mother, the father no longer has any liability for the minor’s tortious acts. Frazer v. Day, 307 So.2d 733 (La.1975). Liability is transferred to the mother who has custody. Guidry v. State Farm Mutual Automobile Insurance Co., 201 So.2d 534 (La.App. 3rd Cir. 1967). This parental authority or liability is not terminated by the mere physical absence of the minor from the custodial parent’s place of abode. Guidry v. State Farm Mutual Automobile Ins. Co., supra; Deshotel v. Casualty Reciprocal Exchange, 350 So.2d 283 (La.App. 3rd Cir. 1977).

With respect to the case before us, we find that the liability of the father for the tortious acts of his minor son was suspended by virtue of the 1970 divorce decree which awarded the custody of Wayne to his mother. There being no genuine issue of material fact as to Ray Valliant, he is entitled to judgment of dismissal as a matter of law. C.C.P. Art. 966.

However, we reach the opposite result with respect to the mother. Since she had legal custody of the minor son at the time of the alleged battery she had parental liability for the son’s tortious acts. The fact that Wayne resided outside of the mother’s abode does not relieve her of that liability. Under the factual situation stated above, Adele Valliant is not entitled to summary judgment as a matter of law.

Based on the foregoing, we affirm the judgment of the trial court dismissing plaintiff’s suit against Ray Valliant. However, we reverse the judgment dismissing the plaintiff’s suit against Adele Valliant and we remand this portion of the case to the trial court for further proceedings.

One final point for our consideration concerns the argument raised by both Ray and Adele Valliant that under our original decision in this case, at 371 So.2d 349, neither of them have any liability for the tortious acts of their minor son because the child did not reside with either parent. The language cited by them in support of their contention states:

“This liability under C.C. Art. 2318 does not attach to the parent (1) if the child does not reside with him when the damage to another occurs (Williams v. City of Baton Rouge, 252 La. 700, 214 So.2d 138 [1978]; ***** ”.)

First we point out that the liability of the father’s insurer was based only on the father’s liability which was held to be eliminated because of the custody decree. The statement stands only as dicta and a statement of law generally from C.C. Art. 2318. Our jurisprudence makes it clear that the residence referred to is legal residence. Toca v. Rojas, 152 La. 317, 93 So. 108 (1922) relied upon in Williams v. City of Baton Rouge, supra.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.


author: GARRISON, Judge. STOULIG, Judge,

text:
    Darlene Morales FORD v. DIXIE BUICK, INC.
    No. 11487.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Rehearing Denied July 13, 1981.

      Law Offices of Robert B. Keaty, Thomas S. Keaty & Charles C. Garvey, New Orleans, for plaintiff-appellee.
    John David Cassanova, Metairie, for defendant-appellant.
    Before GARRISON, STOULIG and CHE-HARDY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court, granting an action in redhibition in favor of the plaintiff and awarding her rescission of the sale and return of the purchase price, one thousand eight hundred twenty-five and 80/ioo dollars, as well as attorneys’ fees in the amount of five hundred dollars.

From that judgment, which we affirm, Dixie Buick, Inc. appeals, alleging that the trial judge erred in granting rescission without proper proof of defect, and without proper proof of tender for repair and/or tender for return of the price. Appellant also argues that the trial court improperly awarded attorneys’ fees and improperly allowed Claibert Morales to testify as an expert.

The trial judge provided the following written reasons for judgment:

“On November 29th, 1977 Darlene Ford, a widow went with a friend to Dixie Buick to purchase an automobile. This was the first time that she had purchased a car on her own. She selected a 1972 Volkswagen Fastback and test drove the automobile.
On the following day, she and her friend returned to Dixie Buick at which time she purchased the automobile. On her way home to Boutte the automobile kept stalling.
Because she was having trouble with this car, she enlisted the aid of her brother, who is a mechanic. After looking at the car, the brother decided that the car should be towed back to Dixie Buick. Since she testified she knew ‘nothing about cars’, she turned over to her brother the responsibility of dealing with Dixie Buick.
The brother, Claibert Morales, testified that heavy weight oil had been used. In fact, the oil was clean, indicating it had been recently put in the automobile. As he said, ‘The engine was doped up with 80 to 90 weight oil and STP.’
Therefore, the Court finds that the defendant was aware of the vices of this automobile and is liable for the restitution of the purchase price and attorneys fees. See Article 2545, R.C.C.”

I. PROOF OF DEFECT

We find Dixie’s argument on this point to be without merit. The thing purchased must be free from a vice or defect which would render the thing sold either absolutely useless or so inconvenient and imperfect that the buyer would not have purchased the thing if he had known of the vice or defect. C.C.Art. 2520. The buyer must show that the vice or defect existed at the time of the sale. However, where the defect appears within 3 days, the defect is presumed to have existed at the time of the sale. C.C.Art. 2537; Rey v. Cuccia, 298 So.2d 840 (La., 1974). In the instant appeal, the car died on the way home from the lot on the day of the sale. Accordingly, the presumption of C.C.Art. 2537 applies and the appellant’s specification of error on this point is totally without merit.

II. PROOF OF TENDER FOR REPAIR AND TENDER FOR RETURN OF THE PRICE

Appellant is correct in his contention that the buyer must allow the seller reasonable time in which to repair the vice or defect (C.C.Art. 2531) and that the buyer must tender the thing to the seller for repairs. At the request of Mrs. Morales, Claibert Morales towed the car to Dixie Buick for repair. This is the very essence of “tender for repair.” Prior to the commencement of suit, Dixie Buick held the car in its shop from late November through as late as January 6th of the following year. We find that over a month is more than “reasonable time” in which to make repairs. Mel Jacobson, President of Dixie Buick, testified that Claibert Morales later returned, was unsatisfied, and Jacobson offered Morales $200.00 to “forget the entire deal”. Claibert Morales testified that ie inspected the vehicle twice after it was tendered for repair and that on neither occasion was the vehicle in working condition. Accordingly, we agree with the conclusion of the trial court that there exists more than sufficient evidence of tender for repair, opportunity for repair and tender for price. We cannot conclude that the trial judge was manifestly erroneous.

III. AWARD OF ATTORNEY’S FEES

Under the Louisiana law, the general rule is that attorneys’ fees are not awarded absent specific statutory authority.

Civil Code Art. 2545 provides as follows: “The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

Additionally, C.C.Art. 2547 also authorizes the grant of attorneys’ fees in a proper case:

“A declaration made by the seller, that the thing sold possesses some quality which he knows it does not possess, comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject, under the title: Of Conventional Obligations.
It may, according to the circumstances, give rise to the redhibition, or to a reduction of price, and to damages, including reasonable attorney’s fees, in favor of the buyer.”

The trial judge found as a question of fact that the defendants had “doped up” the engine of the car by using heavy weight oil and STP. He also noted that the oil was “clean”, indicating that it had been put in the engine recently. Whether the trial judge found that the defendants omitted to inform plaintiff that the engine had been “doped-up” or that the defendants declared to Mrs. Ford that the car had the ability to run reasonably well for a used car, is of no moment as both conclusions are reasonable upon the record. We agree with the conclusions of the trial judge that defendants sold the vehicle to plaintiff with full knowledge of the defect.

Defendants argue that plaintiff “failed to allege grounds for the granting of attorney’s fees.” We note that Louisiana is a fact pleading jurisdiction. We find the following quote from plaintiff’s petition provides sufficient basis for a grant of attorneys’ fees:

“V. Immediately after the time of the sale, petitioner had continual trouble with hidden defects in workmanship, materials, quality, construction and design, all of which existed at the time of the sale, which include, but are not limited to the following:
A. Defective engine and drive train that it fails to function properly, requires frequent and extensive repair rendering the vehicle useless for the purpose for which it was intended.
B. Defective electrical ignition system in that it fails to run properly.
C. Any other defects inherent in these pleadings or which may appear by discovery or the trial of the case.” (emphasis added).

Accordingly, we conclude that the trial judge properly awarded attorneys’ fees.

IV. CLAIBERT MORALES — EXPERT WITNESS

We note initially that the trial judge is granted considerable discretion in the acceptance or rejection of expert testimony. The trial judge admitted Claibert Morales as an expert mechanic. Mr. Morales worked for 2V2 years as a line mechanic for Key Dodge and IV2 years as a mechanic for Jules Gulf Service Station. He owned and operated a service station for six years in Luling. Additionally, he did all of the automotive maintenance for several Monsanto plants in the area. For the last three years, he had been employed as the head mechanic for all heavy equipment and gasoline engines for Browning Ferris Industries, Chemical Division. It is apparent to this court that the trial judge did not abuse his discretion in admitting Mr. Morales as an expert.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

STOULIG, J., concurs with written reasons.

STOULIG, Judge,

concurring.

The record amply supports the trial court’s determination that the defects in the automobile were of such a nature as to warrant the granting of redhibition.

The rejection of defendant’s reconven-tional demand for storage charges by trial court should also be affirmed. The granting of redhibition legally rescinded the sale of the car and restored the parties to the same status they occupied prior to the sale. Plaintiff’s ownership of the vehicle was annulled. The trial court apparently concluded that defendant’s possession of the automobile came about from the tender of its return by plaintiff. It therefore follows that because plaintiff is not the owner and the defendant’s retention of the car is in the capacity of owner and not of a deposi-tee, no storage charges are assessable against the plaintiff in favor of reconvenor.

      . We note that in cases involving fraud, often the fraud is not disclosed until discovery has taken place.


author: CHEHARDY, Judge. STOULIG, Judge,

text:
    Joseph LYTELL v. Donald HUSHFIELD, Ted Gauchen, Donald Larouse, A. C. Wilson, Kenneth Cole, and Allis-Chalmers Manufacturing Company.
    No. 11836.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Rehearing Denied July 13, 1981.

      Bernard S. Smith, Covington, for plaintiff-appellant.
    Donovan & Lawler, James L. Donovan, Metairie, for Donald Hushfield, Ted Gau-chen, Donald Larouse and A. C. Wilson, defendants-appellees.
    Before BOUTALL, CHEHARDY and STOULIG, JJ.
   CHEHARDY, Judge.

Plaintiff, Joseph Lytell, appeals a district court decision in favor of defendants Donald Hushfield, Theodore P. (Ted) Gauchen, Donald Larouse, A. C. Wilson, and Kenneth Cole dismissing the plaintiff’s suit against these executive officers of the company for which he worked, at his costs.

In his written reasons for judgment, the trial judge stated:

“The testimony leaves no doubt in the Court’s mind that petitioner had complete and full knowledge of the equipment he was using and assumed the risk of its operation, and even if the Court would not have reached this conclusion, there is ample proof in the record that with the full knowledge and experience petitioner had in his position as forklift operator, he would have been contributionly [sic] negligent in operating the machine in the manner he did on the date of his injury.”

We agree. The plaintiff, a forklift operator, was injured on the night of January 5, 1975, while he was working on the midnight shift at Strickland Transportation Company, Inc. At the time of the accident, Lytell was 51 years old and had been employed for some 17 years at Strickland, during which time he had received several safety awards. He had been working the same forklift for approximately four to five years before the accident, and was a “bidded” operator on that lift for several years prior to his injury.

There were no witnesses to the accident in question, however, the plaintiff testified that at approximately 3 a. m., Hushfield, the midnight dock foreman, asked him to pick up some crates from a particular trailer and set them on the dock, noting that “J” section had been cleared by Hushfield for that purpose and pointing out the door of the trailer that Lytell was to unload.

In describing what happened next, the plaintiff said:

“ * * * I proceeded that way and I opened the blades on the forklift and I picked up these creates on the back end of the trailer. They were approximately seven foot high. I picked them up and they were approximately the width of the trailer. And I picked up the first set backed up, went around and raised it up to a fair height to J Section where I was instructed to put the crates and went back to J Section and got the rest of them, came out with the boxes and I was backing up and I had to turn around and drop these crates next to the other ones and when I was lowering the boom,— loading the freight down to the floor, one of the blades disengaged as I was coming down and the top box fell backwards as I was sitting on the seat and I said oh, God, look out. I jumped off the lift machine. I landed on my back and my neck and I think it was Freddie and Mex LaBruno I had got up and he said what happened. I said this crate fell back on the lift machine and I thought it was going to hit me so I jumped off the lift. He said are you all right? I said well, I don’t know my back and my neck hurt. He said do you need any help. I said no, I believe I’ll make it. So, I was kind of in a daze and I walked around a minute or so, and then Donald Hushfield came by and he said what happened. I said I took those crates off and I put them in J Section like you told me and the crate — one of the crates fell back towards me and to keep from getting killed, I don’t know what was going to happen. The crates were pretty heavy. I jumped off the machine and I hit some other freight that was on the side of the dock.

There was a tremendous amount of testimony from coemployees of Lytell establishing that the forklift machine, the only one owned by Strickland’s New Orleans terminal at that time, was in very poor condition because it leaked oil on the floor of the dock everytime it was stopped, was not equipped with lights or a horn, contained no counterweight on the back and there were no safety catches on the bolts that held the lift blades in place, resulting in the blades sliding or coming off the machine during its use by operators. Furthermore, there was no overhead guard to protect the driver from being hit by falling freight that exceeded the height of the boom and the machine was always very dirty. Many of these unsafe factors of the condition of the machine, moreover, were in direct violation of occupational safety and health standards as proposed by the Occupational Safety and Health Administration of the Department of Labor.

Although the plaintiff testified that he really did not know what he slipped on when he jumped from the lift, other employees testified that there was oil near Lytell after the accident, and one witness described Lytell as being “stooped” in the oil after his injury.

Employees of Strickland also said at trial that a substance called “dry-zit” was used by the men to soak up the oil spills; however, a safety expert testified that the product would only improve safety of working conditions if it were properly used and swept up after it absorbed the oil; otherwise, it would be like putting sand on the dock, which would make it slippery.

It was also established at the trial court that no regular safety meetings were held for the workers at Strickland, that no maintenance schedule was followed on the lift machine and that the men frequently complained to the defendants about the condition of the machine but the problems were not rectified.

The plaintiff’s safety expert testified there is no problem with using a forklift without an overhead guard so long as the driver does not lift loads that are higher than his head. In describing his load at the time of the accident, however, Lytell said that it consisted of five or six crates, stacked one on top of another on a pallet, that they were approximately 7 feet wide and 15 inches high and, together, they reached a height of approximately 7 feet. He stated that the total load was over the height of the boom.

Lytell and coemployees testified at trial that if they had refused to work under unsafe conditions at Strickland, they would have been fired or sent off the job. Although defendants contended in their testimony that they told the men ujing the lift not to exceed the height of the boom, they were aware that the men actually did so. Although there was a sign on the dock that said “High and Tight” there was testimony from the men that this had to do with the way the freight was stacked in the trucks, but that there was nothing said about stacking the freight high on the docks. In fact, Gauchen, who was operations manager at Strickland at the time of the accident, testified that he was constantly telling the plaintiff not to stack the boxes so high on the dock because he would get complaints from another forklift operator on another shift who was afraid to take the boxes down.

The plaintiff also produced an interoffice communication to terminal managers and staff at Strickland, with forklift instructions and certification form, directing that each individual responsible for operating a forklift read and sign a copy of these instructions, as required by the Occupational Safety and Health Act; however, the forklift operators at Strickland’s New Orleans terminal testified they were never presented with these forms and instructions.

The plaintiff contends on appeal that he was not contributorily negligent because to refuse to work under unsafe conditions would have caused him to be dismissed from the job or be fired, citing Chaney v. Brupbaeher, 242 So.2d 627 (La.App. 4th Cir. 1970). In that case, the court said at 632:

“We therefore turn to the question whether Chaney’s mere working under the known unsafe conditions was itself contributory negligence.
“The test for negligence is reasonableness. While it may be true that the reasonable man would wish to avoid the known risk here, an employee is not entirely free to do so. He cannot simply decline to do the work, because he would then subject himself to loss of his job, his means of support for self and family. It would not have helped Chaney to point out the danger to Owens, because Owens already knew it. Nor could Chaney tell Owens how to run the job. It cannot be fairly said that Chaney elected to work under the dangerous conditions (the danger not being an intrinsic feature of Chaney’s work). Thus as we see the question, it is whether the reasonable laborer (with a wife and three children to feed, clothe and house) would quit his job or expose himself to being fired, without any immediate prospect of another job, rather than work in the presence of a danger which his job did not necessitate and which he had never previously been called on to tolerate. We simply cannot answer that question affirmatively. We believe Chaney’s conduct measured by the reasonable man standard was not negligent, and the defense of contributory negligence therefore falls.”

Defendants, however, cite the case of Miller v. Employers Mut. Liability Ins. Co., 349 So.2d 1353 (La.App. 2d Cir. 1977), wherein the court discussed the criteria for determining whether an employee is guilty of contributory negligence. After taking note of Chaney v. Brupbacher, supra, that court said at 1362:

“On the other hand, there are cases in which an employee’s contributory negligence has been held to bar recovery against a supervisory co-employee or executive officer. See Laborde v. Martin, 316 So.2d 437 (La.App. 3d Cir. 1975) and Richardson v. Heyd, 323 So.2d 507 (La.App. 4th Cir. 1974). In these cases, the employee was found to have had sufficient knowledgeable control over his situation at the time of the injury to make an evaluation of his conduct, a pertinent factor in considering negligence which contributed to cause the harm. Other cases have held that an employee who exposes himself to a known danger assumes the risk of such exposure and is guilty of contributory negligence if he suffers injury as a result thereof. Swilly v. American Fire & Casualty Company, 148 So.2d 157 (La.App. 1st Cir. 1962); Spears v. American Fidelity & Casualty Company, 123 So.2d 513 (La.App. Orl.1960); Pfister v. Phoenix of Hartford Insurance Company, 290 So.2d 362 (La.App. 4th Cir. 1962).
“Emerging as criteria for determining an employee’s contributory negligence are: (1) relative knowledge ol the danger by the supervising employee and the injured employee; (2) relative control over the employee’s situation; (3) the degree to which the employee’s conduct is voluntary on his part; (4) alternatives available to the employee; (5) obviousness of the danger; and (6) relative ability to eliminate the danger.”

In the present ease, applying the above criteria, this court holds that it was obvious to the plaintiff, by his own admission, that the load he was carrying at the time of the accident exceeded the height of the boom. In spite of the fact that he had not actually had formal safety instruction in the use of the machine, it would be obvious to any reasonable man (and certainly to one of the plaintiff’s experience in such operations on the defective machine) that by carrying such a load of such height on a machine being operated without a headguard, and with the added danger of the blades slipping or disengaging at any time, he was placing himself in danger of being struck by one of the crates falling. Although it was established that the defendant foreman told Lytell to move the crates with the lift machine, it was not established that he was required to move them in exactly the manner in which he did, i. e., in loads which either exceeded the height of the boom at all times it was on the forklift or when he raised it to go around other freight in the area. Moreover, the evidence does not indicate that the instructions given by Hush-field to Lytell about moving the load to “J” section included any directions about the manner in which the load was to be moved. If the loads, as they were stacked on the truck, exceeded the height of the boom on the machine, certainly the operator, Lytell, was in as good or better position than the foreman to notice this and at least make some effort to remedy the situation or call the problem to the attention of Hushfield and ask that he remedy the problem in some way. Since the record indicates that Lytell made no effort in these respects on behalf of reasonable self-protection, he cannot be heard now to complain that he had no options of safer methods of moving the load available to him or that he was required to move the load in the manner that he did or be fired.

Contributory negligence is a question of fact to be determined by judge or jury, and a reviewing court should not disturb such factual determinations in absence of manifest error, and in order to find manifest error, the record must support the conclusion that a factual determination was clearly wrong. Skinner v. Nightingale, 377 So.2d 1348 (La.App. 1st Cir. 1979). Also, a court of appeal is not entitled to substitute its finding of fact for reasonable evaluation of credibility and reasonable inferences of fact made at a personal injury trial. Pierre v. Landry, 341 So.2d 891 (La.1977). In view of the above, and in view of our own conclusions reached after review of the record, we can find no basis sufficient to disturb the district court’s determination that the plaintiff was contributorily negligent in his operation of the machine at the time of his accident and that such operation was a proximate cause of his injury.

Neither is the court impressed with the plaintiff’s attempt to invoke the doctrine of sudden emergency. Even if the falling box caused an emergency situation at that point, the doctrine is not available to a plaintiff, like Lytell, who creates the situation through his own negligence, i. e., carrying a' load which exceeded the height of the boom. Simms v. Estridge, 346 So.2d 300 (La.App. 4th Cir. 1977).

This court also rejects the plaintiff’s attempt to invoke the doctrine of last clear chance to overcome his contributory negligence, because for this doctrine to be applicable the litigant relying thereon has the burden of establishing, by a clear preponderance of evidence, that he was in a position of peril of which he was unaware or from which he was unable to extricate himself. Barthelemy v. Phoenix Insurance Co., 226 So.2d 603 (La.App. 4th Cir. 1969). In the present case plaintiff did not establish through his testimony that he was unaware that the load he was carrying exceeded the height of the boom or that, although he was aware of that fact, he could not extricate himself or remedy the situation before the accident occurred.

The trial court has wide discretion in assessing costs. Green v. Orleans Parish School Bd., 365 So.2d 834 (La.App. 4th Cir. 1978). The plaintiff has failed to show that there was any abuse of discretion on the part of the district court in this respect.

Accordingly, the trial court judgment is affirmed.

AFFIRMED.

STOULIG, J., dissents with written reasons.

STOULIG, Judge,

dissenting.

I respectfully dissent.

Joseph Lytell, after 16 years on the job, permanently injured his back January 5, 1975 when two of many defects in a forklift machine combined to create the hazard that resulted in his accident. As Lytell operated the forklift to move a palletized seven-foot-high load of freight from one area of the warehouse dock to another, one of the blades of the forklift disengaged causing the freight to toppel backward toward Lytell. As he jumped from the machine to avoid being hit he stepped in an oil slick that had escaped from the crank case of the forklift.

Not only had Lytell and other Strickland employees called the oil leak and the disengaging blade to management’s attention, they also requested needed repairs to no avail. The majority opinion succinctly states the numerous defects in the machine of which both Lytell and his supervisors were aware.

I conclude Lytell was not contributorily negligent nor did he assume the risk of injury because the circumstances here bring him under the Chaney v. Brupbacher decision. The majority quotes criteria from Miller v. Employers Mutual Liability Ins. Co. for determining whether an employee in an executive officer action is contributo-rily negligent; viz:

“Emerging as criteria for determining an employee’s contributory negligence are: (1) relative knowledge of the danger by the supervising employee and the injured employee; (2) relative control over the employee’s situation; (3) the degree to which the employee’s conduct is voluntary on his part; (4) alternatives available to the employee; (5) obviousness of the danger; and (6) relative ability to eliminate the danger.”

In Miller the employee (1) had a greater knowledge of the risk than did his supervisor; (2) had an alternative safer method for performing the task (changing a door); and (3) could have eliminated what should have been an obvious danger.

By contrast Lytell (1) had unsuccessfully tried to have his supervisors correct defects in the forklift; (2) used the only means available to perform the job he was assigned; and (3) had the unhappy alternative of using the forklift or refusing to do the job.

Lytell, 51 years old at the time of the accident, could have refused to use the forklift; however, at his age it is unlikely different employment would have been readily available to him.

The majority finds plaintiff negligent in lifting the load higher than the boom of the forklift because a counter weight had been removed from the back of it (another defect) and there was a danger of cargo toppling over after being raised a certain height. Employees testified and supervisors confirmed that all forklift operators at Strickland must, from time to time, lift cargo above the boom either to avoid stacked freight on the loading dock or because the packages (example — household goods) are higher than the boom. The majority suggests that the palletized, banded together stack of boxes could have been moved in a more prudent manner, perhaps by dividing the stack into two loads.

If, as the majority suggests, the plaintiff was negligent in how he moved the load, defendants bore the burden of proving this. C.C.P. art. 1005 lists contributory negligence as an affirmative defense, which defendants, who relied on it, should have been required to prove.

I believe this court should award damages under the Chaney v. Brupbacher holding.

      . The record establishes that the boxes were banded together on the pallet. However, there is nothing in the record to indicate that plaintiff could not have removed the band and thus have lessened the height.

      .This cause of action arose before R.S. 23:1032 was amended by La. Acts 1976 No. 147 which eliminated this type of suit as a valid cause of action.

      . 242 So.2d 627 (La.App. 4th Cir. 1970).

      . 349 So.2d 1353 (La.App. 2nd Cir. 1977).


author:
CHEHARDY, Judge.
      STOULIG, Judge,

text:
    Mary Brupbacher, wife of/and Brian BARKER v. NEW ORLEANS CITY PARK IMPROVEMENT ASSOCIATION.
    No. 11844.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Rehearing Denied July 13, 1981.

      John J. Farrell, Jr., New Orleans, for plaintiffs-appellees.
    W. Eric Lundin, III, New Orleans, for defendant-appellant.
    Before BOUTALL, CHEHARDY and STOULIG, JJ.
   CHEHARDY, Judge.

Defendant, New Orleans City Park Improvement Association (City Park), appeals a trial court judgment in favor of plaintiffs, Mary Brupbacher, wife of/and Brian Barker, declaring City Park’s lease agreement with Crescent Riding Academy to be null and void and of no effect. The judgment further decreed that an injunction issue restraining and enjoining City Park, and its officers and agents, from leasing the premises known as City Park Horse Barn and Riding Facilities, and from allowing any person, firm or corporation to occupy said premises without first complying with the State statute regarding the leasing of public lands following advertisement and public bidding.

In December of 1960 defendant entered into a lease with Crescent Riding Academy for a term of ten years, after submitting the lease to public bidding. In January of 1971 defendant extended the lease with Crescent for a term of seven years. In December of 1977, defendant once again extended the lease in favor of Crescent for a period of five years, to terminate in December of 1982.

Defendant now argues that the final lease is valid because LSA-R.S. 41:1217(A) allows such an extension of the lease without the necessity of public bidding due to the fact that the lessee placed $2,000 worth of permanent improvements on the premises.

LSA-R.S. 41:1217(A) states in part:

“All leases executed under the provisions of this Part shall be for a period not exceeding ten years and shall provide for consideration to be paid as a cash rental of not less than one dollar per acre, which shall be payable in cash annually and in advance, or if the land is leased for the agricultural purpose of planting, growing, cultivating and harvesting any agricultural crop the consideration shall be so paid in cash or on a share basis at the option of the lessor; provided, however, that any person who leases such land and who, within the ten year term of the lease, or any person who holds a ten-year lease in full force as of the date of passage of this Act, adds or contracts for permanent improvements to be constructed or placed on or made to the land in the amount of not less than two thousand dollars may, upon written modification to the lessor and upon a proper showing that such improvements have in fact been made or contracted for, lease such lands for an additional period of not more than ten years, the payment of rentals therefor to be made as hereinabove stated. * * * ” (Emphasis ours.)

Our interpretation of LSA-R.S. 41:1217 is that public land can be leased for a total of ten years; however, if the lessee has constructed a minimum of $2,000 worth of permanent improvements on the property an extension can be granted for a period of up to ten years. We do not interpret the statute, however, to declare that further extensions can be granted in addition to any extensions which total ten years.

In the present case, City Park granted a lease extension to Crescent Riding Academy for a total of seven years in January of 1971. The lease of December, 1977, therefore, granting a further extension of five years clearly exceeded the limits of LSA-R.S. 41:1217(A) by two years and was, for that reason, null and void.

For the reasons assigned, the district court judgment is affirmed.

AFFIRMED.

STOULIG, J., concurs with written reasons.

STOULIG, Judge,

concurring.

I concur.

In my opinion the trial court should have reformed the term of the lease to comply with the ten-year provision of R.S. 41:1217(A) rather than strike the contract with nullity.

The penalty for the violation of the statutes is set forth in R.S. 41:1221 which provides for a fine and imprisonment. This statute does not decree such a lease to be null and void and therefore the lease agreement should have been given the full effect permitted under the Leases of Public Lands Laws.