author: GULOTTA, Judge. SCHOTT, Judge,

text:
    Mr. & Mrs. Douglas J. KOOB v. The TRAVELERS INSURANCE COMPANY.
    No. 10783.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Rehearing Denied April 18, 1980.
    Reed & Reed, Floyd J. Reed, J. D., New Orleans, for plaintiffs-appellants.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Thomas M. Nosewicz, New Orleans, for defendants-appellees.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   GULOTTA, Judge.

The sole issue in this appeal by plaintiffs is quantum. Liability in this October 2, 1976 rear-end automobile accident was stipulated and the jury returned a verdict in favor of Douglas J. Koob in the amount of $914.95 in special damages, and in favor of Mrs. Mary Cahill Koob in the amount of $600.00 in general damages.

Plaintiffs claim that, because proof established the special damages total $1,612.21, and because the nature and seriousness of Mrs. Koob’s injuries require an award in the range of $7,500.00 to $12,000.00, the jury award is inadequate.

GENERAL DAMAGES

At the time of the accident Mary Cahill Koob, the twenty-three-year-old wife of Douglas J. Koob, was the driver of the automobile. Her husband was not an occupant of the vehicle. She testified that shortly after the accident her knee began to “hurt real bad” and she went to Ochsner Hospital Emergency Room where her knee was x-rayed. She stated that the day following the accident, when she woke up she could “barely move” and was “stiff and sore”. She returned to the Ochsner Hospital Emergency Room and was advised to take hot baths and to use a heating pad. Mrs. Koob continued to have recurrences of pain in the area of the back and the neck and saw an orthopedic surgeon, Dr. Bryan Huncke, on October 12, 1976. She stated that she continued to have problems as of December 6,1977, the date of the trial, with recurrences of pain in her back and neck approximately four times a week, especially when working. She complained that her back hurts when she sits, stands, or walks for an extended period of time or when she engages in vigorous activities, such as dancing.

Mrs. Koob testified further that she had difficulty in her work since the accident because her job as a welder required her to sit for periods of up to eight hours a day and to pick up tubes for welding. She explained that when picking up these tubes she felt pain in the area of the back. The rapid production-line work required in her job “triggers [her] back off real fast.” Holding her neck in a downward position results in back pain.

According to Mrs. Koob, when she drives her automobile for a long distance or stands a great deal, she suffers back pain. She and her husband both testified she now experiences back pain with her menstrual period, and she can no longer engage in bowling or dancing and other activities as she was accustomed to doing prior to the accident. Her husband stated that his wife is often irritable and quick-tempered when her back is giving her problems, and she occasionally has trouble falling asleep. Koob described his wife as a much more easy-going, fun-loving and jovial person before the accident. Koob further stated that she is unable to work as an aluminum welder on occasions because of the back pain.

Mrs. Koob was first seen by Dr. Huncke on October 12, 1976. She complained of foot and calf pain, some neck and low-back problems, stiffness on awakening in the morning, and soreness and aching in the affected areas. Dr. Huncke testified that Mrs. Koob expressed severe subjective complaints of discomfort on pressure or palpation of the neck, mid-back and low-back areas. However, her reflexes were normal and she had a normal range of motion. There were no muscle spasms. In essence, his findings were subjective complaints of soreness, with no objective symptoms. He suggested mild medication, a light exercise program and heat, with restricted activities more or less as her symptoms dictated. When she returned to him on November 12th, he testified, she appeared to be resolving some but not all of the symptoms. She was following the pattern he would expect of a patient with this type of problem, which he considered a sprain-type of injury.

Mrs. Koob next returned to Dr. Huncke on January 31, 1977. She told him that she had wrenched her back at work a few days previously. Her knee was better. Her lower-back was still bothering her, but her mid-back symptoms had subsided. Dr. Huncke testified it was difficult to pinpoint precisely when the effects of the October 2, 1976 accident subsided. Ordinarily that type of injury, he stated, would subside somewhere between six and twelve weeks, although some symptoms might remain as long as six months. He reaffirmed his conclusion from an earlier medical report stating, “As near as I can judge, the symptoms subsided by January as anticipated. She had some recurring back problems, which as near as I can judge based on my clinical experience and general medical knowledge, are unrelated to the incident in question.” Dr. Huncke testified also that Mrs. Koob made return visits to him on February 12, April 2, June 13 and July 18,1977. On June 13th, he referred her to Ochsner’s Physiotherapy Department.

During the time of her treatment, according to Mrs. Koob, she was told by Dr. Huncke to take aspirin, to continue with hot baths and to use “Bengay” as well as a heating pad. She stated that she remained off work for a two week period.

Judging from the $600.00 general damage award, a reasonable conclusion can be made that the jury determined the effect of Mrs. Koob’s accident-related injuries ended on or about January 31, 1977, and that her subsequent problems were not the result of the October 2, 1976 accident. Although the evidence indicates symptoms continuing past January 31,1977, we cannot say the jury erred in apparently reaching a conclusion, based upon the medical testimony, that ordinarily the type of injuries suffered by Mrs. Koob would subside between six and twelve weeks. Furthermore, the jury could reasonably have concluded that any subsequent back problems resulted not from the accident but from a wrenched back which she suffered at work a few days prior to the January 31st visit to Dr. Huncke.

When we consider the medical testimony with that of plaintiffs, we cannot say that the general damage award determined by the jury in this case is an abuse of discretion.

However, plaintiffs argue that, assuming the jury properly concluded Mrs. Koob had recovered on January 31, 1977 from the effects of the soft-tissue injury suffered in the October 2, 1976 accident, nevertheless the $600.00 award is so inadequate as to constitute an abuse. We do not agree. Although we may deem the amount on the low end of the spectrum, we cannot say the jury abused the “much discretion” rule.

SPECIAL DAMAGES

Plaintiffs complain the jury should have awarded $1,612.21 in special damages, because this amount was not disputed by defendants at trial. The special damages to which Mrs. Koob testified were as follows:

Car repair ... $ 647.41
Auto rental . 200.66
Lost Wages, 2 weeks_ 420.00
Ochsner Hospital_ 91.00
Ochsner Clinic. 157.76
Physiotherapy _ 169.00
Less partial reimbursement for car
rental. 73.60
TOTAL $1,612.21

Examining the figure of $914.95 awarded by the jury, and comparing it with the amounts listed above, we find it impossible to compute on what combination of figures the jury based this amount. We assume that if the jury concluded Mrs. Koob’s injury lasted only until January 31, 1977 they must have denied payment for medical .bills after this period. Possibly, in addition, the jury refused to award Mrs. Koob the lost wages, since she was not directed by the physicians to stay home from work, but did so through her own choice. Mrs. Koob testified that the medical bills were broken down as follows: Ochsner Hospital, $45.50 and $45.50, for a total of $91.00; Ochsner Clinic, $33.00, $52.75, $12.00, $15.00 and $45.00, for a total of $157.75. The physiotherapy bill was one total and separate from the other two.

Although it is plaintiffs’ burden to establish entitlement to damages by a preponderance of the evidence and although absent from this record are bills or invoices supporting plaintiffs’ testimony and their claim for special damages, nevertheless, Mrs. Koob did testify and identify the automobile repair bill and a rental bill. She identified a bill from Dick Bohn Ford for automobile repairs in the amount of $647.41. She also identified an auto rental receipt in the sum of $200.55 (not included in the record). She testified further that defendant paid the sum of $73.50 on the rental bill; that she lost two weeks’ pay at $210.00 per week, totaling $420.00; and that she incurred the Ochsner Hospital bill, the Ochsner Clinic bill and the physiotherapy bill. Because these bills were uncontro-verted, we are led to conclude that plaintiffs are entitled to be reimbursed for the automobile repair bill, the automobile rental bill, less the credit, the Ochsner Hospital and Clinic bills and the two-week loss of wages. Because the doctor did not recommend physiotherapy until the June 13, 1977 visit, and we are not convinced the jury believed the effects of the injury carried over later than January 31,1977, we are led to conclude that plaintiffs are not entitled to be reimbursed for this other special damage.

Accordingly, we amend the jury award to plaintiffs for special damages and increase the amount as follows:

Automobile repairs- $ 647.41
Automobile rental- 200.55
Lost wages (2 weeks)_ 420.00
Ochsner Hospital- 91.00
Ochsner Clinic- 157.75
TOTAL $1,516.71
Credit for payment on auto rental 73.50
PLAINTIFFS’ ENTITLEMENT
FOR SPECIAL DAMAGES- $1,443.21

Accordingly, the judgment of the trial court is amended to increase the amount of the special damages awarded to Douglas J. Koob from $914.95 to $1,443.21. In all other respects the judgment is affirmed.

AMENDED AND AFFIRMED.

SCHOTT, Judge,

assigning reasons for denying application for rehearing:

In its application for rehearing Travelers contends that we erred in increasing the amount of special damages awarded to plaintiff Douglas J. Koob to $1443.21, and including in that award an item of $647.41 for automobile repairs. This argument is based on a showing that it had issued checks to plaintiff, Mary Koob, for the $647.41 in October, 1976, and that these checks were negotiated two days after plaintiffs were awarded their judgment based on the jury verdict. In their response, plaintiffs assert that they received these checks after the date of the judgment and the insurance company provided them with checks issued one year earlier. I have concluded that our judgment is correct, but Travelers is entitled to a credit for the $647.41 against the judgment in favor of Douglas Koob.

■The rehearing is denied.

      . Although the doctor did not order Mrs. Koob to stay away from work for any period of time, we do not consider a two week sick leave period to be excessive in this case.


source: Caselaw Access Project

author: CHEHARDY, Judge.

license: Public Domain

text:
    Joseph P. TOUCHETTE v. Brian C. BRAUD and the American International Insurance Company.
    No. 10806.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Rehearing Denied April 18, 1980.

      McGIinchey, Stafford & Mintz, Frederick R. Campbell, Michael R. Sistrunk, New Orleans, for defendants-appellants.
    John H. Brooks, Gretna, for plaintiff-ap-pellee.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Joseph P. Touchette sued Brian C. Braud and the American International Insurance Company for injuries, property damage and lost wages that he sustained as a result of an automobile accident.

Defendants appeal from a judgment in the amount of $3,896.38, together with legal interest and all costs of the proceeding. The trial court found that the accident was caused by the gross negligence of Braud, who, while exceeding the speed limit, tried to pass the Touchette vehicle at an intersection.

The accident happened on July 5, 1976 at the intersection of Huey P. Long Street and Mason Street in Gretna, Louisiana. Both vehicles were travelling north on Mason Street, a two-lane undivided street with a lane going in each direction, north and south.

When plaintiff reached the intersection, he came to a dead stop and then turned left onto Huey P. Long Street, which at that point is a dead-end street approximately a block and a half long. He also testified that he neither looked to the rear nor did he turn on his signal light.

Braud’s wife, who was a passenger in the defendant’s vehicle, testified that Braud then attempted to pass the plaintiff in the southbound lane of traffic, and the collision occurred. Plaintiff’s witnesses testified that Braud’s vehicle struck the left rear of the plaintiff’s vehicle in the southbound lane of traffic as the plaintiff had almost completed his turn. Mrs. Braud did not contradict this testimony but stated that she “couldn’t see that part.’’

The investigating officer, Dennis Dunn, testified that Braud had admitted to him at the scene of the accident that he was travelling approximately 28 miles per hour in what was a 25-mile-per-hour zone.

The issue before this court is whether the trial court erred in finding Braud guilty of gross negligence and in not finding plaintiff guilty of contributory negligence.

The law is clear regarding the responsibility of a passing vehicle when approaching an intersection under circumstances similar to this case. LSA-R.S. 32:76 states in part:

“A. No vehicle shall at any time be driven to the left side of the highway under the following conditions:
ifc ifc * S)C * *
2) when approaching within one hundred feet of or traversing any intersection or railroad grade crossing * * (Emphasis ours.)

In the interpretation of this statute, the court in Roy v. Edmonson, 221 So.2d 583, 586 (La.App. 4th Cir. 1969), said:

“The jurisprudence is settled that this prohibition is applicable to city streets and not just the thoroughfares which are generally thought of by laymen to be the ‘highways’ of this state. Nicolle v. Roberts, 117 So.2d 622 (La.App.Orl.1960); Parker v. Home Indemnity Co. of New York, 41 So.2d 788 (La.App. 2 Cir. 1949.)”

The defendant Braud also admitted to Officer Dunn at the accident scene that he was exceeding the speed limit by at least several miles per hour. In commenting on a situation similar to the present case, the court also said in Roy, supra, at page 586:

“The record is clear that the defendant Edmonson was attempting the passing maneuver prohibited by this statute when the collision occurred. Further by his own admission he was exceeding the posted speed limit by 5 to 10 miles per hour. The violation of the statute prohibiting passing within an intersection constituted negligence per se. The statute is designed to prevent just such an accident as occurred. Herget v. Saucier, 223 La. 938, 67 So.2d 543 (1953); Nicolle v. Roberts, supra and numerous cases cited therein. * * * >1

Defendants argue that exceeding a fixed speed limit does not, itself, constitute negligence where it has no causal connection to the accident in question, citing Tallo v. Johnson, 255 So.2d 446 (La.App. 1st Cir. 1971). Such is not the case here. It is reasonable to assume, since Touchette’s car had almost completed the turn at the time of impact, that had Braud been travelling at a slightly reduced speed, he would have missed Touchette’s vehicle completely. There was a causal connection between Braud’s exceeding the speed limit and the occurrence of the accident.

Defendants further contend that, in any case, plaintiff was guilty of contributory negligence in failing to give a turn signal and in failing to look behind and that such negligence was also a proximate cause of the accident. We do not agree.

The law is clear regarding the duty of left-turning motorists. The court said in Adams v. Travelers Indemnity Company, 277 So.2d 685, 687 (La.App. 2d Cir. 1973):

“A motorist who attempts a left turn or who attempts to turn from a direct line on the public highways of the state must ascertain in advance that the turn can be made without endangering normal overtaking or oncoming traffic. The giving of a signal is not the only burden placed on the motorist for he must, in addition, check the rear immediately before the turn is attempted to ascertain whether it can be executed safely. See Wesley v. Home Indemnity Co., 245 La. 133, 157 So.2d 467 (1963); Johnson v. Wilson, 239 La. 390, 118 So.2d 450 (1960); Nain v. State Farm Mutual Automobile Insurance Co., 241 So.2d 792 (La.App. 3d Cir. 1970); Hayes v. Travelers Indemnity Company, 213 So.2d 119 (La.App. 3d Cir. 1968); Nugent v. Glover, 205 So.2d 129 (La.App. 1st Cir. 1967); LSA-R.S. 32:104.
“The law is equally clear that a motorist has the unquestioned right to assume the following traffic will observe all the duties imposed on it by law and common sense, such as that the following traffic will proceed within the speed limit and will not pass at an intersection where passing is prohibited; and moreover, that the drivers of such vehicles are keeping a proper lookout. See Porter v. Sprawls, 227 So.2d 792 (La.App. 4th Cir. 1969); Procell v. Strange, 203 So.2d 739 (La.App. 3d Cir. 1967); Breland v. American Insurance Company, 163 So.2d 583 (La.App. 2d Cir. 1964); Faulkner v. Ryder Tank Lines, Inc., 135 So.2d 494 (La.App. 2d Cir. 1961).”

It is undisputed that Touchette did not signal nor did he look to the rear prior to commencing his turn, and therefore did not fulfill this duty placed on left-turning motorists.

However, as the court pointed out in Scrantz v. Aetna Casualty and Surety Company, 281 So.2d 820 (La.App. 1st Cir. 1973), in automobile accidents each case must stand on its own peculiar facts and the essential inquiry in each of the cases referred to is whether the left-turning motorist was a proximate cause of the accident or in any way contributed thereto.

Defendants cite a myriad of cases where a plaintiff was held contributorily-negligent for either failing to give a turn signal or failing to keep a proper lookout, neither of which was done by the plaintiff in the present case. However, in each of these cases plaintiff’s action was held to be a proximate cause of the accident. We cannot agree, however, that such is true in the instant case.

It was established that Braud’s vehicle was travelling at a speed of approximately 28 miles per hour and that Touchette commenced his turn from a dead stop. It was also established that plaintiffs car was hit on the left rear by defendant’s vehicle when the plaintiff had completed or almost completed his turn. The defendant should have seen the turning vehicle in enough time to stop, regardless of whether the plaintiff had signalled the turn.

Plaintiff also cites the case of Ulmer v. Travelers Insurance Company, 156 So.2d 98 (La.App. 1st Cir. 1963), wherein a plaintiff’s failure to look to the rear immediately before turning was held to be contributory negligence, even though the plaintiffs car was struck just before he cleared the highway. That case is, however, distinguishable from the present case since in Ulmer, supra, the highway on which the vehicles were travelling had a speed limit of 60 miles per hour, and the defendant admitted to travel-ling at a speed of approximately 40 miles per hour. Moreover, the defendant’s car was in the process of passing the plaintiffs vehicle and two other vehicles behind the plaintiff. Had the plaintiff in Ulmer, supra, looked to the rear immediately prior to turning, therefore, he certainly would have seen the oncoming vehicle, which was already in the process of passing two other cars. As noted previously, the factual circumstances do not indicate that such would have been the case here.

Defendants properly observe, and we recognize, that on appeal “the appellate review of facts [in civil cases] is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous).” Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

However, in the instant case, a study of the entire record does reveal a reasonable factual basis for the trial judge’s finding and establishes that his decision is supported by the facts.

For the ljpasons assigned the judgment appealed from is affirmed. Defendants-appellants are to pay all costs of this appeal.

AFFIRMED.

      . Braud did not testify. His wife said he was working offshore and was prevented by the weather from coming in to testify. In their brief defendants state that there was a pre-trial agreement that no inference would be drawn from his absence in lieu of a continuance.

      . See Porter v. Sprawls, 227 i.2d 792 (La.App. 4th Cir. 1969).


author: SCHOTT, Judge.

text:
    Robert P. HYMEL v. Hubert L. HYMEL, Jr.
    No. 10830.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Rehearing Denied April 18, 1980.
    Leon C. Vial, III, Hahnville, for defendant-appellee.
    Charles C. Wilson, Hahnville, for plaintiff-appellant.
    Edward F. Wegmann, Wegmann & Lon-genecker, New Orleans, for third-party defendant and plaintiff in reconvention (Wag-uespack, Pratt, Inc.).
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his suit for specific performance based upon an agreement to purchase a piece of property from defendant.

Plaintiff had contacted Frank Weber, a real estate agent in the employ of Wagues-pack, Pratt, Inc., to bring about the purchase of the subject property which was adjacent to the restaurant operated by plaintiff and wanted for the purpose of a parking lot. After some initial meetings between Weber and defendant, the latter signed an agreement to sell the property for $20,000 on a printed real estate form. However, according to defendant the agreement was blank at the time he signed it but Weber was instructed to make the agreement reflect that the $20,000 would be net to him so that any commission on the sale would be owed by the purchaser and an ice house located on the property would be subject to removal by defendant at the purchaser’s expense. According to Weber the document was filled out with the usual provisions for the payment of the real estate agent’s commission by the seller and without any reference to the ice house. In any event, Weber presented the completed agreement to plaintiff who accepted the offer as presented to him.

The trial court’s dismissal of the suit was based on the omission from the contract of reference to the ice house. Noting that both Weber and Hymel admitted that the ice house was not to be included in the sale, the effect of the agreement was that the ice house would be transferred to the plaintiff along with the land. He specifically did not conclude whether the omission from the agreement was caused by fraud, error or oversight, but concluded that the agreement did not represent the true intent of the parties. However, the trial judge did not make a specific finding as to the credibility of defendant in his testimony that he signed the agreement in blank with instructions to his agent Weber, which in turn were violated by Weber. Consequently, we are not inhibited from making our own credibility determinations in this regard.

Documentary evidence introduced at the trial includes the agreement to purchase and sell, which was signed by the parties on March 14, 1978, a listing agreement purportedly executed by defendant on December 16 in favor of Waguespack, Pratt, Inc. and a bid-proposal by a house moving contractor, dated March 31, to remove the ice house for a price of $916. The listing agreement is a standard agreement providing that defendant employed Waguespack to sell his property for $20,000 and would pay to the realtor a commission of 6%. Defendant denied that it was his signature on the agreement but Weber testified that it was. Weber testified further that after he got defendant’s signature on the agreement he took it to plaintiff, who in turn signed it and made a deposit of $2,000 in compliance with the agreement. Thereafter, Weber gave defendant a copy of the agreement. He had some additional contacts with defendant relative to the removal of the ice house and stated that he was to prepare an agreement that after the act of sale defendant could move the house. Saying as follows:

“. . . . Mr. Hubert Hymel would move it. I was trying to protect him to give him time so at the same time Robert Hymel, so it would be moved within a reasonable time.”

Weber stated that on March 29, after he had been trying to contact defendant by telephone in order to inform him that the act of sale was to take place in accordance with the agreement between April 1 and April 20, he called on defendant and was immediately attacked and threatened by defendant without defendant stating any reason for his anger. Thus, Weber was well aware that defendant wanted to remove the ice house but, according to Weber, it was not until this lawsuit that defendant said that plaintiff was to pay the cost of the removal of the ice house or the commission on the sale.

There is no testimony by plaintiff with respect to the removal of the ice house or the cost of that removal. Plaintiff did testify that he wanted to buy the property for a parking lot from which the logical inference follows that it would be removed. But if the agreement between him and defendant is valid the ice house as an immovable by destination would be transferred to plaintiff at the act of sale, and in the absence of some other agreement between the parties, which was not established in this record, defendant would have no cause of action against plaintiff for either the house itself or the cost of removal.

Defendant’s testimony was unconvincing. Starting with his statement that he signed the agreement to purchase and sell in blank it was also necessary for him to deny his own signature on the listing agreement in order to avoid the effect of that agreement on his legal position. He testified that when Weber returned the agreement to him signed by plaintiff he didn’t look at it but simply put it in his pocket. He said the first time he looked at the agreement was when Weber came around to inform him of the coming act of sale.

On the basis of the conflicting testimony and the failure of the trial court to make any specific credibility calls, we find the facts to be as follows: The agreement was filled out when defendant signed it and consequently there was a binding agreement to purchase and sell the property between the parties. Defendant understood that he could remove the ice house and was unaware of the legal effect of the agreement which would transfer title of the ice house to the purchaser. Defendant was relying on his agent, Weber, to protect his interest in the ice house and Weber, who should have known that defendant was depending on him in this connection, failed in his duty to his principal. Under the law defendant had no claim against plaintiff in this connection but might have a valid claim against Weber as-his agent. LSA-C.C. Art. 3003. Defendant filed a third-party demand against Weber’s employer, Wagues-pack, Pratt, Inc., which was dismissed by the court, but defendant has failed to appeal from this dismissal so that we are unable to afford him any relief against the agent. While plaintiff did not admit that the ice house was defendant’s to take, plaintiff’s attorney in brief tells us that there was never any disagreement between plaintiff and defendant that the ice house would be removed by defendant, only that the cost would be at the expense of defendant and not plaintiff.

Thus, defendant may have a viable claim for the ice house itself or its value against plaintiff on the basis of the statements made by plaintiff’s counsel in his brief, but pretermitting questions of prescription and res judicata defendant is relegated to a claim against Weber and/or Waguespack, Pratt alone for the cost of removal.

Accordingly, the judgment of the trial court is reversed and set aside and there is judgment in favor of plaintiff, Robert P. Hymel, and against defendant, Hubert L. Hymel, Jr., ordering that defendant convey to plaintiff plot 19, Luling Parkway Subdivision, St. Charles Parish, Louisiana, on grounds measuring about 50' X 150' for the price of $20,000 cash. The sale is to be passed before purchaser’s notary not later than 30 days after this judgment becomes final. All costs are to be paid by defendant.

REVERSED AND RENDERED.


author: REDMANN, Judge. SAMUEL, Judge,

text:
    Lloyd Robert MOFFETT, Jr. v. Mary LUMPKIN et al.
    No. 10873.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.

      Monte J. Ducote, New Orleans, for plaintiff.
    Alexander C. Cocke, Jr., New Orleans, for defendants.
    Before SAMUEL, REDMANN and HOOD, JJ.
   REDMANN, Judge.

Awarded by the jury a total of only $15,000 for facial scarring (from breaking an automobile windshield with his head), a deep laceration of the knee, $2,763 medical expenses (including emergency room suturing by a plastic surgeon, later surgical revision and finally dermabrasion) and $2,442 claimed as lost wages, plaintiff appeals.

We sympathize with plaintiff; general damages of about $10,000 is towards the low end of the range for his many small facial scars shown by the photographs in evidence, for a scar on his leg, and for his pain and suffering. But we cannot articulate any abuse of the jury’s “much discretion” under C.C. 1934(3); Reck v. Stevens, La.1979, 373 So.2d 498.

Plaintiff’s complaint that the judge should have let the jury know defendants’ insurance policy limits is impliedly answered by Guy v. Tonglet, La.1980, 379 So.2d 744, 747:

Should a defendant raise the issue of his inability to pay a judgment, in defense or in mitigation, he has put his financial status at issue and the plaintiff is entitled to be prepared to present evidence in opposition. His financial status is otherwise irrelevant.

Affirmed.

SAMUEL, J., concurs.

SAMUEL, Judge,

concurring.

In my view the general award for pain and suffering is so inadequate as to require an increase. However, I agree that we cannot increase under the guidelines set out in Reck v. Stevens.

Accordingly, I respectfully concur.


text:
    Faye Ross, wife of and E. L. CLEMENTS, Jr. v. Ashton J. RYAN and United China & Glass Company.
    No. 10883.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.

      James E. Glancey, Jr., Stanley E. Loeb, New Orleans, for plaintiffs-appellants.
    Phelps, Dunbar, Marks, Claverie & Sims, Jesse R. Adams, Jr., Mark B. Meyers, New Orleans, for defendants-appellees.
    Before GULOTTA, BOUTALL and CHE-HARDY, JJ.
   CHEHARDY, Judge.

This is an action for defamation which was brought by the plaintiff-appellant Mrs. Faye Ross Clements and her husband, E. L. Clements, Jr., against United China & Glass Company and its former president, Ashton J. Ryan, in Civil District Court for the Parish of Orleans.

The trial court granted defendants’ motion for directed verdict at the close of plaintiff’s case on the finding of insufficient evidence of publication of the accusations of theft.

Mrs. Clements had been employed by United China & Glass Company for approximately 23 years, the last 14 of these years as cashier, handling cash sales and petty cash. However, at least six other employees also had access to the cash.

In the latter part of 1974, Mrs. Clements was told by defendant Ashton J. Ryan of discrepancies in the funds, and was asked to submit to a lie detector test. The test was then given to Mrs. Clements and several other employees over a period of several weeks by Ronald Lauland, president of Lau-land Security Consultants. Approximately two weeks after the first test Mrs. Clements submitted to a second lie detector test. Lauland testified that Ryan told him, even before he started the tests, that Mrs. Clements was stealing money. Ryan agreed, however, to also have other employees tested.

Mrs. Clements passed the first test, but three other employees failed, with one employee failing the test seven times. Ryan asked that Mrs. Clements be tested again. Once more she passed the test. Lauland further testified that Ryan, sometime later, called him on the phone and advised that he had better get his machine fixed because “we got the woman * * * she didn’t confess, but I know we got her.” Subsequent checks of the test results by other experts corroborated Lauland’s findings.

On December 18, 1974, while independent auditors were at the company, Mrs. Clements’ check of cash sale tapes against the books were “not coming out.” this so upset her she had to take a nitroglycerin pill. When she got up, Ryan asked the controller, who was standing by, to take her keys.

Ryan then called her into his office, alone, told her to get her purse, get out of there and never come back because she was being fired for stealing. Plaintiff then walked from Ryan’s office to her desk, where she answered a telephone call from her sister, and advised her that she had been fired for stealing. While at her desk Ryan had another employee count the money before Mrs. Clements left. She was then accompanied home by Mrs. Orsario Gonzales, another employee.

James Y. Avallone, in the accounting business for 24 years, testified he accompanied Mrs. Clements’ attorney to see Ryan, who told him Mrs. Clements had been dismissed because of a discrepancy in the cash and that he would only recommend her for a job that did not entail handling cash. After an examination of the system at United China, Avallone described it as a very loose one, saying that “almost anybody could have taken the money.”

Mrs. Orsario Gonzales testified she had been a co-employee of Mrs. Clements for 24 years and she had also bowled with her. She said that everyone in the office knew of the lie detector tests and that Mrs. Clements was the only employee who left the company at that time. However, she also testified that she did not know why the plaintiff left, nor did she know or care whether or not Mrs. Clements had stolen the money.

Mrs. Clements’ husband testified that Ryan called him and offered to let him come over and examine the books; however, he declined unless he could bring an attorney. He also testified that his wife has not contacted any of her co-employees at United China since her termination because she was too embarrassed and humiliated.

The trial court decided that Mrs. Clements’ presentation of evidence failed to establish sufficient publication of any defamatory statements.

Under our jurisprudence an employer has the right to dismiss an employee suspected of wrongdoing and need not predicate such dismissal on “judicial proof” of wrongdoing. This court said in the case of Senac v. L. M. Berry Company, 299 So.2d 433, 434 (1974):

“Article 2747 of the Civil Code states: ‘A man is at liberty to dismiss a hired servant attached to his person or family without assigning any reason for so doing. The servant is also free to depart without assigning any cause.’

“It is clear from the jurisprudence of this state, based on Article 2747, a contract of employment for an indefinite time, as in the instant case, can be terminated at the will of either party. See Pechon v. National Corporation Service, 234 La. 397, 100 So.2d 213 (1958).”

It is the circumstances surrounding her dismissal which Mrs. Clements asserts as the basis of her defamation suit. It is clear from the testimony that Ryan did ask Mrs. Clements and several other employees to submit to a lie detector test and that there had apparently been some discrepancies in the cash records of the company. In the case of Rougeau v. Firestone Tire and Rubber Company, 274 So.2d 454, 457 (La.App. 3d Cir. 1973), the court said:

“Defendant reasonably conducted an investigation into the suspected wrongdoings of its employees, which it had a right to do. Toomer v. Breaux, 146 So.2d 723 (La.App. 3 Cir. 1962); Lancaster v. Hibernia Bank and Trust Co., 163 La. 821, 112 So. 798 (1927); Gilliland v. Feibleman’s, Inc., 161 La. 24, 108 So. 112 (1926); Raggio v. Morgan’s Louisiana and Texas R and S.S. Company, 148 La. 209, 86 So. 747 (1920). * * *”

Since there were cash discrepancies, an investigation on the part of Ryan was in order.

In the case of Wilson v. Capital City Press, 315 So.2d 393, 397 (La.App. 3d Cir. 1975), writ refused October 10, 1975, the court said:

“In Louisiana defamation is a quasi offense and as such is governed by Louisiana Civil Code Article 2315. Wisemore v. First National Life Insurance Company, 190 La. 1011, 183 So. 247 (1938); Vicknair v. Daily States Pub. Co., 153 La. 677, 96 So. 529 (1923). In order for defamatory words to be actionable in Louisiana proof of the following elements are necessary:
1. Publication, that is, communication to some person other than the one defamed;
2. Falsity;
3. Malice, actual or implied; and
4. Resulting injury.
Rougeau v. Firestone Tire and Rubber Company, 274 So.2d 454 (La.App. 3rd Cir. 1973); Sas Jaworsky v. Padfield, 211 So.2d 122 (La.App. 3d Cir. 1968); Comment 28 La.L.Rev. 82 (1967).”

Although Mrs. Clements testified that Ryan told her she was being fired for stealing, she also said that they were alone in his office when he accused her of the theft. There was no testimony that anyone else had been told by Ryan that Mrs. Clements was suspected of stealing money except Ronald Lauland, the man who had conducted the lie detector tests; Mr. Clements; and Avallone, the bookkeeper. There was also some testimony that Alfonso Wagner, Jr., vice president of United China & Glass Company, had been present during some of the conversations between Lauland and Ryan. However, it is our opinion that these individuals enjoyed a qualified privilege to receive these communications from Ryan.

In Ward v. Sears, Roebuck & Co., 339 So.2d 1255, 1261 (La.App. 1st Cir. 1976), the court observed:

“Toomer v. Breaux, 146 So.2d 723 (La. App. 3rd Cir. 1962), establishes the rule that a publication enjoys a qualified or conditional privilege if made (a) in good faith; (b) on any subject matter in which the person communicating has an interest or in reference to which he has a duty; and, (c) to a person having a corresponding interest or duty. This privilege arises from the social necessity of permitting full and unrestricted communication concerning a matter in which the parties have an interest or duty, without inhibiting free communication in such instances by the fear that the communicator will be held liable in damages if the good faith communication later proves to be untrue or inaccurate.” (Emphasis ours.)

In further explanation of the requirement of “good faith” the court explained in Ward, supra, also at page 1261:

“In this context good faith means a statement made with reasonable grounds for believing it to be true. Only when lack of such reasonable grounds is found can it be said the person uttering the statement is actuated by malice or ill will. On grounds of public policy, our law recognizes certain communications as privileged and, as such, they may not serve as grounds for imposing liability for defamation.”

Mrs. Clements failed to bear the burden of showing that this good faith did not exist. Although Lauland’s testing contravened the conclusion that Mrs. Clements had committed the thefts, Ryan felt Lau-land’s machine was in error and, indeed, called to tell him so. Avallone also testified that he believed Ryan’s conclusions were in error. The witnesses, however, did not claim that Ryan himself believed he was in error nor was it proven that Ryan had made these statements with actual or implied malice. Neither was Ryan called by the plaintiff to explain what his reasons were for believing Mrs. Clements was guilty.

We agree with plaintiff’s observation that it is well settled that words which impute crime to another are libelous per se and proof of malice is not required. Martin v. Markley, 202 La. 291, 11 So.2d 593 (1942); Edwards v. Derrick, 193 La. 331,190 So. 571 (1939); Cotonio v. Guglielmo, 176 La. 421, 146 So. 11 (1933); Fitzpatrick v. Daily States Pub. Co., 48 La.Ann. 1116, 20 So. 173 (1896); Savoie v. Scanlan, 43 La.Ann. 967, 9 So. 916 (1891); Wilson v. Capital City Press, supra; and Parsons v. Gulf & South American Steamship Co., 194 So.2d 456 (La.App. 4th Cir. 1967).

However in the instant case we find (1) that the plaintiff failed to show that Ryan lacked good faith in his communications with persons entitled to receive such communication, and (2) that Ryan was within the privilege the law extends to conversations under circumstances such as in this case.

The court said in Ward, supra, at page 1261, in discussing the burden of proof for defamation actions:

“ * * * Our jurisprudence holds that in cases of this nature the preponderance of proof required for making out a plaintiff’s case is greater than in ordinary civil cases. D’Echaux v. D’Echaux, 133 La. 123, 62 So. 597 (1913); Sterkx v. Sterkx, 138 La. 440, 70 So. 428 (1915); Lamartiniere v. Daigrepont, 168 So.2d 370 (La.App. 3d Cir. 1964).”

Summing up, we find that Ryan, suspicious of theft in his company, conducted a reasonable investigation to determine the guilty employee, that as a result, individuals necessarily involved in the investigation, as well as employees of the company, were, by the nature of the investigation, aware that Mrs. Clements was suspect and eventually fired because of this suspicion. We do not find, however, that plaintiff established malice on the part of Ryan and United China & Glass Company or that Ryan or United China had made any publication of their accusations about the plaintiff to anyone not legally privileged to receive such communications.

The factual finding of the trial judge that plaintiffs had failed, after putting in all of their evidence, to prove that communications necessary to make out a case of defamation can not be disturbed on appeal absent the manifest error required by Canter v. Koehring Company, 283 So.2d 716 (La.1973). We do not find such error.

We therefore affirm the judgment of the trial court granting defendants’ motion for a directed verdict.

AFFIRMED.


author: BROOM, Justice, for the Court.

text:
    David C. BRAMLETT et al., Members of the Board of Bar Commissioners of the Mississippi State Bar, Jack A. Travis, Jr. et al., Officers of the Mississippi State Bar v. William G. BURGIN, Jr.
    Misc. No. 965.
    Supreme Court of Mississippi.
    Aug. 22, 1979.
    Brunini, Grantham, Grower & Hewes, George P. Hewes, III, Newt P. Harrison, R. David Kaufman, Jackson, for appellants.
    Edwards & Storey, A. M. Edwards, Jr., West Point, William G. Burgin, Jr., Columbus, for appellee.
   ON PETITION FOR REHEARING

BROOM, Justice, for the Court.

Disciplinary procedures pursuant to Mississippi Code Annotated § 73-3-301, et seq. (1978 Supp.) applicable to an attorney convicted of a felony form the background of this cause. Conspiracy to defraud the United States is the offense for which Wm. G. Burgin, Jr. (petitioner herein) was convicted in the United States District Court, Southern District of Mississippi [Cause No. 78-00021(N)]. It was the conviction which set in motion a chain of events chronicled herein leading to the issue now before us.

Subsequent to the conviction and at the instance of the petitioner, the Honorable Harvey Buck, Judge of the Sixteenth Circuit Court District of the State of Mississippi, without notice to the Members of the Board of Bar Commissioners and Officers of the Mississippi State Bar (State Bar herein), issued a Fiat directing the Clerk of the Chancery Court of Lowndes County, Mississippi to issue a temporary writ returnable to the Chancery Court of Lowndes County enjoining and restraining the State Bar from filing with the Supreme Court of Mississippi a certified copy of the judgment of conviction of the petitioner. As directed,' the chancery clerk issued the temporary writ of injunction. The State Bar then applied to and obtained from this Court an Order dated July 17,1979 declaring null and void the temporary injunction. Our order dissolved the temporary injunction, and abated the injunction proceedings in the lower court (Cause No. 16,661 in the Chancery Court of Lowndes County, Mississippi) “pending further action by this Court.”

The matter is now before us on the petitioner’s request for rehearing. He contends that our Order dated July 17, 1979 was without adequate process and notice to him and did not afford him a reasonable opportunity to appear and be heard in opposition to the State Bar’s action wherein it sought to have this Court declare “its exclusive and inherent disciplinary jurisdiction” vouchsafed to this Court by § 73-3-301, supra, and to declare the temporary injunction ordered by the lower court null and void.

Petitioner, in his petition for rehearing now asserts that the cause in the Chancery Court of Lowndes County, Mississippi was a proceeding whereby he challenged the constitutionality of Mississippi Code Annotated § 73-3-339 (1978 Supp.) and he contends that the language of § 73-3-339, which requires that this Court “shall forthwith strike the name of the attorney so convicted . from the rolls of the Mississippi State Bar and order his immediate suspension from practice, pending an appeal and final disposition of disciplinary proceedings”, is unconstitutional. He contends that § 73-3-339 is an invasion by the legislative branch of the duties and prerogatives of the judicial branch of state government and an invasion of the powers inherent in the courts.

Another contention is that the section denies him substantial property rights without “substantial and procedural due process of law, the right to notice and an opportunity to be heard. . . . ” The petition also asserts that § 73-3-339 denies him other rights contrary to the provisions of Section 14 of the Mississippi Constitution, and denies him “of the right to defend himself in person or by counsel . .” contrary to Sections 24 and 25 of the Mississippi Constitution. He also charges that the effect of § 73-3-339 is to deny him of his rights under the provisions of the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States.

Our view is that our Order dated July 17, 1979 holding the temporary injunction to be null and void and of no effect is a valid order in every respect. It has long been the rule in this jurisdiction that the Supreme Court has the inherent power to discipline attorneys who practice in this state. By enacting Mississippi Code Annotated § 73-3-301 (1978 Supp.), the legislature recognized this inherent right by providing that attorneys practicing in this state:

. are subject to the exclusive and inherent disciplinary jurisdiction of the Supreme Court of Mississippi and the disciplinary agencies hereinafter established and designated.

The action of the lower court in enjoining and prohibiting the State Bar from filing with this Court a certified copy of the petitioner’s Federal Court criminal conviction amounted to a usurpation of the powers and duties exclusively vested in this Court and cannot be allowed to stand. Although the lower court’s injunction may have been specifically directed at the State Bar, indirectly its function was no less than a legal barricade which, if allowed to stand, would obstruct the functions of this Court.

Ex Parte Wimberly, 57 Miss. 437 (1879) is analogous in certain respects. There we held that although

most actions at law may be enjoined, there are large classes of them as to which no state of facts will justify the interposition of a court of equity.

We further held that:

The public interest in this question is to override the private interest of the parties. If a court of chancery is at liberty to interrupt the proceedings by writs of injunction, the whole scheme is defeated. Even a temporary injunction might produce complications difficult, if not impossible, of solution.

Though this Court is ordinarily an appellate court, we are a special tribunal in cases involving disciplinary proceedings regarding its officers: the attorneys who practice in the courts of this state. No circuit or chancery court has any jurisdiction whatever to directly or indirectly enjoin or circumvent proceedings over which this Court has exclusive jurisdiction. Totally without subject matter jurisdiction was the lower court which issued the purported injunction—an utter nullity.

Our Order dated July 17, 1979 at issue here does nothing to cut off petitioner Burgin’s right to raise any defense, contention, or constitutional issue which he desires to assert pertaining to any pertinent statute or anything regarding his standing as a member of the bar licensed to practice in the courts of this state. We take judicial notice of the fact that there is now pending before this Court in Mise. Cause No. 58 the Formal Complaint of the State Bar exhibiting a certified copy of petitioner’s indictment and conviction in the Federal Court. The office of the Formal Complaint is to commence disciplinary action against petitioner as a result of his felony conviction. Following the filing of the State Bar’s Formal Complaint, Chief Justice Patterson’s Order dated July 19,1979, entered in Confidential Mise. Cause No. 58, ordered the Clerk of this Court to give notice to the petitioner of the filing of the State Bar’s Formal Complaint, giving him thirty days after receipt of notice of the filing of the complaint to respond to it and present any defense or contention he desires to make concerning his standing to practice law in this state within the purview of Mississippi Code Annotated § 73-3-301, et seq. (1978 Supp.).

We also take judicial notice of the fact, as reflected in the official court file of Mise. Cause No. 58, that the Clerk mailed by prepaid Registered Mail “Deliver to Addressee only” (in accordance with our July 19,1979 Order, supra) notice to the petitioner at his Columbus, Mississippi address of his right to respond to the State Bar’s complaint. That file also reflects that an employee of petitioner’s office, Sandi Britt, signed a form used by the United States Postal Service acknowledging receipt of the Clerk’s notice regarding petitioner’s right to appear and oppose the State Bar’s complaint within thirty days.

This Court will take no adjudicatory action upon the merits of the Formal Complaint until thirty days’ process upon the complaint is accomplished. Accordingly, we find nothing has been done herein in violation of any of the rights of the petitioner under any pertinent statute or any section of the Constitutions of the United States and the State of Mississippi, and that there is no merit to the petition for rehearing. Our Order dated July 17, 1979 referred to above is valid and remains the Order of the Court.

PETITION FOR REHEARING DENIED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and COFER, JJ., concur.


author: ROBERTSON, Presiding Justice,

text:
    Miles Curtiss McKEE v. Mary Griffin McKEE.
    No. 51437.
    Supreme Court of Mississippi.
    Jan. 9, 1980.
    As Corrected on Denial of Rehearing April 2, 1980.
    Cox & Dunn, Vardaman S. Dunn, Jackson, for appellant.
    Young, Scanlon & Sessums, James Leon Young, Jackson, for appellee.
   ON PETITION FOR REHEARING

En banc.

ROBERTSON, Presiding Justice,

for the Court:

The petition for rehearing is granted as to the increase in alimony, but denied as to the increase in the support of the two children of the marriage and the allowance of a $750 attorney’s fee for appellee’s attorney. The affirmance, without opinion, on September 12,1979, of the Decree of the Chancery Court of the First Judicial District of Hinds County is withdrawn and set aside.

The Final Decree of Divorce of February 25, 1972, was an agreed decree as far as property settlement, alimony, and support of the two minor children of the marriage were concerned. Among other things, that decree recited:

“[A]nd the parties having announced to the Court that they have settled and compromised the property division and alimony questions in accordance with the terms hereinbelow set forth,
“5. Defendant shall pay to the complainant monthly alimony of $700.00 per month commencing March 1, 1972, through July 1,1972. Thereafter defendant shall pay to complainant monthly alimony each month of $500.00 commencing August 1, 1972, until the death of one of the parties or remarriage of complainant.”

Paragraphs 7, 8, 9, 10 and 11 of that decree cover the division of two automobiles (one to complainant, the other to the defendant), the awarding of all household goods, furnishings and equipment together with the home and lot at 209 South Brook Drive, to the complainant, the acquiring of a $100,000 twenty-year decreasing term life insurance policy by Curtiss McKee on his life with Mary Griffin McKee and the two children as beneficiaries, and the execution of a quitclaim deed by Mary Griffin McKee to Curtiss McKee conveying her undivided V2 interest in an Eastover lot for which Curtiss McKee would pay her $7,000 in cash.

It is apparent to this Court from the careful wording of this detailed and specific “Final Decree of Divorce,” dated February 25, 1972, that Curtiss McKee and Mary Griffin McKee intended to settle once and for all, all property questions and all alimony questions existing between them. They were being divorced each from the other, and it was certainly desirable that they settle once and for all, all differences between them. They both were mature and intelligent adults; both were advised by competent and experienced counsel. We held in In re Estate of Kennington, 204 So.2d 444 (Miss.1967), that such “[m]arital settlement agreements are not contrary to public policy.”

However, Mississippi Code Annotated section 93-5-23 (1979 Supp.) provides:

“When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and may, if need be, require sureties for the payment of the sum so allowed. The court may af-terwards, on petition, change the decree, and make from time to time such new decrees as the case may require.” (Emphasis added).

This simply means that each case must sit on its own bottom; each must be considered on its own merits; each must be decided on the facts and circumstances of that particular case.

While it is true that an agreed decree as to alimony is subject to review because of a material change of circumstances, careful consideration will always be given to the intent and purpose of the parties at the time the Final Decree of divorce is entered, and such a decree, as to alimony, will not be modified unless the change in circumstances is clear and substantial.

On February 25, 1972, when the final decree of divorce was entered, Mrs. McKee was earning approximately $5100 per year; in 1978, when the Petition to Modify was filed, she was making $15,292 per year from her employment and investments. Mr. McKee’s annual income was $31,549 in 1971 and $75,817 in 1977. The annual income of each has steadily increased with the onward march of inflation. These established facts, of right, ought to be considered along with the clear intention of Mr. and Mrs. McKee, both mature and intelligent adults, to settle on February 25, 1972, all monetary and property questions existing between them.

In Roberts, et al. v. Roberts, individually and as Administratrix, etc., 381 So.2d 1883 (1980), we held that a property settlement agreement entered into a few days before Roberts’ death, even though the divorce case had not been tried and no divorce decreed, was binding on the parties, and Mrs. Roberts would not inherit as an heir at law.

In Hopkins v. Hopkins, handed down January 23, 1980, 379 So.2d 314 (Miss.1980), we held that a final decree of divorce, entered on December 2, 1977, approving a property settlement of the parties and granting lump sum alimony, was not subject to change on a petition to modify and provide for monthly alimony.

The chancellor’s increase in the children’s support from $6,000 to $10,000 per year is amply supported by the evidence adduced. The children are older (one is in college), and all of their expenses have greatly increased, due in no small measure to an average inflation factor of 8% a year for six years (1972-1978).

We are, therefore, of the opinion that the decree, of December 18,1978, modifying the Final Decree of Divorce, should be reversed and set aside as to the $2,000 annual increase in alimony, but affirmed as to the annual increase in the children’s support from $6,000 to $10,000 per year, and affirmed as to the allowance of $750 attorney’s fee for Mrs. McKee’s attorney. Having applied for the allowance of an additional fee for representing her in this Court, in line with our usual custom, we allow her attorney a $375 fee (Vi of the fee allowed in the trial court).

The appellant is taxed with one-half of the court costs, and the appellee with one-half.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    Tyrone James GRIFFIN v. STATE of Mississippi.
    No. 51738.
    Supreme Court of Mississippi.
    April 9, 1980.
    Patricia Champagne Akin, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   ON MOTION TO DISMISS APPEAL

ROBERTSON, Presiding Justice, for the Court.

Appellant, Tyrone James Griffin, has appealed to this Court from an order of the Circuit Court of Harrison County finding that he had violated the terms of his probation and sentencing him to 7 years in the Mississippi State Penitentiary.

On May 13, 1976, Griffin entered a plea of “guilty” to an indictment charging him with burglary of a dwelling house, and stealing, among other things, a Zenith 19" color T.V. He was sentenced to 10 years in the penitentiary, but the execution of the sentence was suspended and Griffin was placed on supervised probation for a period of five years.

On June 20, 1978, a petition to revoke probation was filed in the Circuit Court of Harrison County, because Griffin was arrested on March 15, 1978, on a charge of burglary of a dwelling house and stealing a G.E. color television set. Griffin was indicted for this offense at the June, 1978, Term of Court, and tried on July 20, 1978. Although Griffin’s car was admittedly used in the theft of the color TV set, and although Griffin recovered the TV set from the man that Griffin said used his car that day and returned it to the owner, the jury returned a verdict of “Not Guilty”.

A hearing was held on the Petition to Revoke Probation on July 21,1978. Griffin contended at that hearing that there was no basis to revoke his probation because the jury had found him “not guilty” of the charge of burglary of a dwelling house, and that he had not violated the condition of his probation that he “commit no offense against the laws of this or any state.” The court found Griffin guilty of “Accessory After the Fact,” advised him “And you stay away from characters that are going to get you in trouble,” revoked his probation and sentenced him to- 7 years in the penitentiary-

The State has filed a motion to dismiss the appeal, contending that it is well settled in Mississippi that no appeal can lie from an order revoking an accused’s probation and resentencing him to the penitentiary.

In Pipkin v. State, 292 So.2d 181 (Miss. 1974), this same contention was made and this Court said:

“We agree that the case should be dismissed because the order is not appeala-ble. Habeas corpus is the proper remedy.
An order revoking a suspension of sentence or revoking probation is not appealable. Ray v. State, 229 So.2d 579 (Miss. 1969); Kittrell v. State, 201 Miss. 514, 29 So.2d 313 (1947); Cooper v. State, 175 Miss. 718, 168 So. 53 (1936). The remedy is habeas corpus to determine whether (1) the court has jurisdiction to issue the order, (2) rendered a valid judgment, Ray v. State, supra, and (3) defendant had notice and was granted a public hearing as required by due process. Mason v. Cochran, 209 Miss. 163, 46 So.2d 106 (1950).
This Court is reluctant to dismiss a proceeding because one seeks the wrong remedy; and a mere misnomer of the procedure should ordinarily not result in a dismissal; however, the attempt to appeal an unappealable order is a total departure from the orderly administration of justice and cannot and should not be approved.” 292 So.2d at 182.

Under the authority of Pipkin and the later case of Hamlin v. Barrett, 335 So.2d 898 (Miss.1976), the motion to dismiss the appeal is sustained.

APPEAL DISMISSED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    Mrs. W. B. (Mary Lou) HARDEN v. Mrs. Jamie WOODS.
    No. 51795.
    Supreme Court of Mississippi.
    April 9, 1980.
    Fred B. Smith, Ripley, for appellant.
    Boudie A. Jaggers, Pontotoc, for appellee.
   Appeal from Chancery Court, Pontotoc County; Fred P. Wright, Chancellor.

Before ROBERTSON, P. J., and LEE and BOWLING, JJ.

AFFIRMED.


text:
    Mrs. Frank JACOBS v. Tommy ROSE.
    No. 51796.
    Supreme Court of Mississippi.
    April 9, 1980.
    H. C. Mike Watkins, William B. Jacob, Meridian, for appellant.
    Tommy A. Horne, Meridian, for appellee.
   Appeal from Chancery Court, Lauderdale County; Howard R. Pigford, Chancellor.

Before SMITH, P. J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    Henry E. GOSA v. Patty B. GOSA.
    No. 51769.
    Supreme Court of Mississippi.
    April 9, 1980.
    Fraiser, Burgoon, Henson & Abraham, James W. Burgoon, Jr., Greenwood, for appellant.
    Webb Franklin, Greenwood, for appellee.
   Appeal from Chancery Court, Leflore County; William H. Bizzell, Chancellor.

Before ROBERTSON, P. J., and LEE and BOWLING, JJ.

AFFIRMED.


text:
    Martha BOMAR (Stuart) v. Roy L. BOMAR.
    No. 51788.
    Supreme Court of Mississippi.
    April 9, 1980.
    Self, Jordan & Jones, Robert D. Jones, Meridian, for appellant.
    Hamilton & Williamson, Joe Clay Hamilton, Meridian, for appellee.
   Appeal from Chancery Court, Lauderdale County; Howard Pigford and William Ne-ville, Chancellors.

Before SMITH, P. J., and BROOM and COFER, JJ.

AFFIRMED.


text:
    Alton Leroy PAYNE v. J. W. UNDERWOOD COMPANY and American Motorists Insurance Company.
    No. 51802.
    Supreme Court of Mississippi.
    April 16, 1980.
    Nobles & Ferguson, James W. Nobles, Jr., Jackson, Fred M. Harrell, Jr., Brandon, for appellant.
    Butler, Snow, O’Mara, Stevens & Canna-da, Dan McCullen, Jackson, for appellees.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

Before SMITH, P. J., and BROOM and BOWLING, JJ.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, LEE and COFER, JJ., concur.


text:
    Victoria M. ALEXANDER v. Jimmy Sherriel CLARK.
    No. 51808.
    Supreme Court of Mississippi.
    April 16, 1980.
    Ron C. Smith, Jackson, for appellant.
    Melvin & Melvin, Leonard B. Melvin, Jr., Sarah L. Entrekin, Laurel, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Clarence FOUNTAIN v. STATE of Mississippi.
    No. 51746.
    Supreme Court of Mississippi.
    April 16, 1980.
    Thomas D., Lee, Forest, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Scott County; Marcus D. Gordon, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and BROOM, BOWLING and COFER, JJ., concur.

LEE, J., took no part.


author: PER CURIAM. OVERTON, Justice,

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. EDWARD M. CHADBOURNE, INC., Appellee.
    No. 54264.
    Supreme Court of Florida.
    Feb. 28, 1980.
    Rehearing Denied May 5, 1980.
    Jerrold K. Phillips, Tallahassee, Fletcher N. Baldwin, Jr., Gainesville, H. Reynolds Sampson and Alan E. DeSerio, Tallahassee, for appellant.
    Thurston A. Shell of Shell, Fleming, Davis & Menge, Pensacola, for appellee.
    J. Rex Farrior and Joseph G. Thresher of Shackleford, Farrior, Stallings & Evans, Tampa, for W. L. Cobb Construction Company and Cone Brothers Contracting Company, amicus curiae.
   PER CURIAM.

This is an appeal from a decision of the First District Court of Appeal which passed on the constitutional validity of section 337.143, Florida Statutes (Chapter 74-262, Laws of Florida), and an amendment to the statute enacted by the legislature in 1976 as chapter 76-174, Laws of Florida. We have jurisdiction.

We hold that the statute, as originally enacted and as amended, is constitutional but that the 1976 amendment cannot be applied retroactively since to do so would result in an unconstitutional impairment of contract.

In 1973 the Organization of Petroleum Exporting Countries instituted an embargo on shipments of oil to the United States. The embargo caused a dramatic increase in the price of petroleum and petroleum-based products including asphalt. The legislature, recognizing that road contractors had “no control over the rapidly increasing prices of bituminous material,” enacted chapter 74-262, Laws of Florida, which became section 337.143, Florida Statutes (1975).

The law allowed an adjustment to the contract unit price to be paid for bituminous materials on which bids were received prior to April 1, 1974, if the material had not been used prior to December 1, 1973. The act specified that no adjustment would be made to the contract “unless a contractor agrees to the application of this adjustment for all applicable contracts he holds with the department.” The formula adopted in the statute provided that the adjusted contract unit price would be the asphalt price index computed by the Department of Transportation (department), plus five cents. The monthly index was determined by averaging price quotations on the first day of the month at terminals which could reasonably be expected to supply asphalt to the affected contractors.

When the statute was implemented, an unintentional result became apparent. The index price failed to reflect the actual price paid by some contractors for the asphalt. This allowed those contractors to receive the benefits of the embargo-induced price adjustment and still require their suppliers to provide asphalt at pre-embargo prices in accordance with their subcontracts. This situation thwarted the statute’s original objective and allowed some contractors to receive substantial windfall profits from the state. In order to correct the problem of windfall profits, the department enacted an emergency rule seeking to prevent potential overpayments; the legislature followed suit in 1976 by amending the price adjustment formula. § 337.143, Fla.Stat. (1977).

Edward M. Chadbourne, Inc., is an asphalt contractor which had entered into contracts with the department for the pavement of certain state roads. This contractor had elected to submit all of its contracts to the department in accordance with the 1974 statute. When the department withheld funds which the contractor felt were due, it filed this suit seeking funds under the 1974 act. The department answered, counterclaimed, and sought recoupment of funds previously paid under the 1974 law’s price formula, asserting that the 1976 amendment applied retroactively. The trial court found that the 1976 statute could not be applied retroactively and found for the contractor.

The district court affirmed the trial court and rejected the contention of the department that the state had given its tax power to aid a corporation or person in violation of article VII, section 10, of the Florida Constitution. In their rulings, the trial judge and the First District Court-of Appeal were correct.

The department asserts that the legislature had no constitutional authority to enact this statute to give road contractors an adjustment on existing contracts because of the oil embargo. It also asserts that, if section 337.143 is valid, the 1976 amendment to that section should apply retroactively. Chadbourne contends that section 337.143 is valid and that, when the contractor accepted the price adjustment formula of the 1974 version of the law, the statutory price formula became a part of the contract. Therefore any attempt to apply the 1976 amendment retroactively constituted an impairment of contract in violation of both the Florida and United States Constitutions.

There are two primary issues for us to resolve. First, whether section 337.143 as adopted originally and as amended is constitutional under article VII, section 10, of the Florida Constitution, and, second, if this section is constitutional, may the 1976 amendment be retroactively applied without violating the constitutional prohibition against the impairment of contractual obligations.

With reference to the constitutionality of the statute, the department contends that the law as enacted is prohibited by article VII, section 10, of the Florida Constitution, which provides:

Pledging credit. Neither the state nor any county, school district, municipality, special district, or agency of any of them, shall become a joint owner with, or stockholder of, or give, lend or use its taxing power or credit to aid any corporation, association, partnership or person; .

Although this provision requires that the primary purpose of any governmental undertaking must be public in nature, see Bannon v. Port of Palm Beach District, 246 So.2d 737, 741 (Fla. 1971), this does not mean that the undertaking may not incidentally benefit private corporations or individuals. The purpose of the statute in issue was to made a fair adjustment of the price for both parties so that contractors who build public roads would not be irreparably harmed because of the sudden price escalation caused by a national oil shortage. By accepting the terms of this statute, the contractors subjected themselves to the possibility of receiving less than the original contract price. In fact, Chadbourne did receive less than its bid price on one contract.

We hold that the benefits of the 1974 law, as amended by the 1976 act, run to the public as well as to the road contractors. This statute facilitates the construction of public roads which is, in our view, manifestly a public purpose. We find that the legislature acted legitimately in response to a problem created by an unforeseen embargo on oil shipments. We reject the department’s contention that the 1974 law does not benefit the public.

The second issue which must be addressed is whether the 1976 amendment unconstitutionally impaired contractual obligations created pursuant to the 1974 law.

The original enactment in 1974 did not contemplate that there would be windfall profits. The 1976 amendment, however, expressly records the legislative intent that windfall profits be avoided. That was a noble and just attempt to correct a consequence not foreseen in the 1974 act. Unfortunately, that part of the amendment which attempted to affect existing contracts flies into the wall of absolute prohibition. The fact that a law is just and equitable does not authorize its enactment in the face of a constitutional prohibition.

This Court has generally prohibited all forms of contract impairment. This Court recently reviewed the issue of impairment of contracts in great detail in Pomponio v. The Claridge of Pompano Condominium, Inc., 378 So.2d 774 (Fla. 1979). Additionally, Judges Ott and Grimes expressed conflicting views on the application of the impairment of contract clauses to the statute in question in State of Florida, Department of Transportation v. Cone Brothers Contracting Co., 364 So.2d 482 (Fla. 2d DCA 1978). Little can be added to what has been discussed in Pomponio and Cone Brothers. Simply stated, the majority of this Court feels that the views expressed by Judge Grimes in Cone Brothers are correct and should be followed as they relate to the retroactive effect of the 1976 amendment.

This Court therefore concludes that the 1976 amendment clearly affected existing contractual rights of the contractors who had entered into contracts with the state pursuant to the terms of the 1974 ac„, and the rights and obligations flowing therefrom cannot be affected by the 1976 amendment. Any contracts made after the effective date of the 1976 amendment would, of course, come under the statute as amended.

In accordance with these findings the opinion of the district court is affirmed.

It is so ordered.

ENGLAND, C. J., and BOYD, SUND-BERG and McDONALD, JJ., concur.

OVERTON, J., dissents with an opinion, with which ADKINS and ALDERMAN, JJ., concur.

OVERTON, Justice,

dissenting.

I strongly dissent. The constitutional provision prohibiting impairment of contracts should not be interpreted to allow road contractors to receive windfall profits from taxpayer dollars. Such an interpretation is not required by the impairment of contract clause of either the United States Constitution or the Constitution of the State of Florida. In my view, article VII, section 10, of the Florida Constitution, which prohibits the use of state taxing power to benefit private individuals, controls the outcome of this case. The majority's construction of the 1974 statute to allow windfall profits from the public purse is a plain violation of article VII, section 10.

I would hold both the 1974 statute, section 337.143, Florida Statutes (1975), and the 1976 amendment, to be constitutional. This holding, however, would be dependent upon the retroactive application of the 1976 amendment, and its express requirement that the contractors establish that their asphalt cost exceeded the pre-embargo contract price. This express requirement of the 1976 amendment was implicit in the 1974 statute, and was the obvious intent of the legislature when it originally formulated the act. Without this retroactive application of the amendment, the original statute is constitutionally invalid under article VII, section 10.

The statute was enacted to aid contractors whose asphalt costs had drastically, and unpredictably, increased because of the oil embargo. It clearly was not enacted to benefit contractors who had suffered no loss. This statutory benefit to the affected class of contractors served an important public purpose, because without the aid those contractors would have been unable to fulfill their obligations to construct public roads. If the 1976 amendment is not retroactively applied, then contractors whose asphalt costs had not increased, because they had secured asphalt under long-term contracts at pre-embargo prices, would also receive additional state funds under the statute. In that instance no public purpose is served, as the completion of those road construction contracts was never in jeopardy.

I totally reject the assertion by these contractors that they are entitled to the benefits under the 1974 statute, and that application of the 1976 amendment to them constitutes an impairment of their contract with the state. In my opinion, any impairment of contract by the 1976 amendment meets the test expressed in United States Trust Co. v. New Jersey, 431 U.S. 1, 25, 97 S.Ct. 1505, 1519, 52 L.Ed.2d 92 (1977), because it is “reasonable and necessary to serve an important public purpose.” The clear purpose of the legislature in enacting the 1976 amendment was to prevent the receipt of windfall profits by the instant contractors, an objective not only “just and equitable,” as characterized by the majority, but also necessary to remedy constitutional defects in the 1974 statute.

Neither the state nor the contractors should be penalized or unduly benefited by this statute and amendment, enacted solely because of the 1973 oil embargo. The sole purpose of this legislation was to allow a fair and equitable contract adjustment as a result of a national oil crisis; it should not be interpreted to bring forth a different result.

ADKINS and ALDERMAN, JJ., concur.

      . State of Florida, Department of Transportation v. Edward M. Chadbourne, Inc., 358 So.2d 605 (Fla. 1st DCA 1978).

      . Art. V, § 3(b)(1), Fla.Const.

      . Ch. 74-262, Laws of Florida, provides:
      AN ACT relating to providing for pay adjustments on Department of Transportation road construction contracts; providing an effective date.
      WHEREAS, the price of bituminous material has substantially increased during the past months due partly to the worldwide energy crisis, and the situation now and in the future appears to be very volatile and unstable, and WHEREAS, a contractor has no control over the rapidly increasing prices of bituminous material after he has successfully bid on a road construction project with the Department of Transportation, and after entering into binding contracts for the supply of bituminous material, and
      WHEREAS, the Department of Transportation has recognized this situation by adopting a specification providing for adjustment of the bid unit price for bituminous material which is applicable to contracts on which bids are received after April 1, 1974. The price adjustment activates upon a rise in the current asphalt price index in excess of 5% of the asphalt price index applicable at the time bids were received for a project, and WHEREAS, contractors on projects for which bids were received by the Department of Transportation prior to April 1, 1974 will suffer irreparable economic harm and injury in performing their contracts upon the failure of the Legislature to enact this law, NOW THEREFORE,
      Be It Enacted by the Legislature of the State of Florida:
      Section 1. The State of Florida Department of Transportation shall adjust the contract unit price for bituminous material included in any contract for roadway construction for which bids were received by the Department of Transportation prior to April 1, 1974, in accordance with the following:
      A.The adjustment shall be calculated separately for each month during which bituminous material is incorporated into a project using the following formula:
      Pa = Id + 5 cents where:
      Pa = Adjusted unit price for bituminous material.
      Id = Department’s Asphalt Price Index in effect during the month in which the material is incorporated into the project.
      The Department of Transportation shall determine the Asphalt Price Index by averaging quotations in effect on the first day of each month at terminals which could reasonably be expected to furnish bituminous materials to road construction projects in the State of Florida.
      B. No adjustment shall be made for bituminous material used prior to December 1, 1973.
      C. No price adjustment reflecting any further increases in the cost of bituminous material shall be made for any month after expiration of the allowable contract time, including any extensions that may be granted.
      D. The Department shall adopt rules to implement payment of this adjustment.
      E. No adjustment shall be made to the contract unit price for bituminous material on any applicable contract unless a contractor agrees to the application of this adjustment for all applicable contracts he holds with the department. The department shall notify each contractor in writing by registered mail of his right to have this act apply to his contracts with the department. If a contractor fails to respond within 15 calendar days of such notice, no adjustment provided for in this act shall be made to any applicable contract.
      Section 2. Any contractor receiving additional compensation under this act shall, if applicable, pay the entire amount of such additional compensation to the subcontractor who performed the asphalt work on the project.
      Section 3. This act shall take effect upon becoming a law.
      Approved by the Governor June 18, 1974.
      Filed in Office Secretary of State June 19, 1974.

      . Ch. 76-174, Laws of Florida, provides:
      AN ACT relating to transportation; amending s. 337.143, Florida Statutes, providing legislative intent; requiring documentation of certain costs; prohibiting the Department of Transportation from making cost adjustments under certain circumstances in the contract unit price for bituminous materials included in road construction contracts; providing an effective date.
      Be It Enacted by the Legislature of the State of Florida:
      Section 1. Section 337.143, Florida Statutes, is amended to read:
      337.143 Adjustment of contract price for bituminous material; providing legislative intent.—
      Ill Recognizing that the unprecedented increase in the cost of petroleum products seriously affects a vital segment of the construction industry, legislative intent was, and is. to protect, bv this act, said industry from irreparable economic harm and injury. It was not. and is not, legislative intent that any single contractor or group of contractors should receive excess or windfall profits to the detriment of the taxpayers, and the department shall take immediate steps to recoup any excess payments made since July 1. 1974.
      (21 The Department of Transportation shall adjust the contract unit price for bituminous material included in any contract for roadway construction for which bids were received by the department prior to April 1, 1974, in accordance with the following:
      (31(al (l)(a) The adjustment shall be calculated separately for each month during which bituminous material is incorporated into a project, using the following formula: Pa = Id plus 5 cents, where:
      1. Pa = The adjusted unit price for bituminous material; and
      2. Id = The department’s Asphalt Price Index in effect during the month in which the material is incorporated into the project.
      (b) The department shall determine the Asphalt Price Index by averaging quotations in effect on the first day of each month at terminals which could reasonably be expected to furnish bituminous materials to road construction projects in the state. However, the department shall require documentation of actual costs paid prior to making any adjustments.
      (41 The department shall not made any adjustment under subsection (31(al where “Pa” exceeds:
      (al The actual unit price paid bv the contractor nlus 5 cents, or
      (bl The bid price plus the difference in the Asnhalt Price Index on December 1. 1973, and the Asphalt Price Index at the time of application.
      The department shall use the lesser of subsection (41(al or (bl as the basis for adjustment if the provision of subsection (31(al does not apeN
      {5} {2} No adjustment shall be made for bituminous material used prior to December 1, 1973.
      {6} (3) No price adjustment reflecting any further increases in the cost of bituminous material shall be made for any month after expiration of the allowable contract time, including any extensions that may be granted.
      (71 (4) The department shall adopt rules to implement payment of this adjustment.
      {8} (5) No adjustment shall be made to the contract price for bituminous material on any applicable contract unless a contractor agrees to the application of this adjustment for all applicable contracts he holds with the department. The department shall notify each contractor in writing by registered mail of his right to have this section apply to his contracts with the department. If a contractor fails to respond within 15 calendar days of such notice, no adjustment provided for in this section shall be made to any applicable contract.
      (91 (6) Any contractor receiving additional compensation under this section shall, if applicable, pay the entire amount of such additional compensation to the subcontractor who performed the asphalt work on the project.
      Section 2. This act shall take effect upon becoming a law.
      Approved by the Governor June 17, 1976. Filed in Office Secretary of State June 18, 1976.

      . Art. I, § 10, Fla.Const.; U.S.Const., art. I, § 10, cl. 1.

      . United Gas Line Co. v. Bevis, 336 So.2d 560 (Fla. 1976); Yamaha Parts Distr. ínc. v. Ehrman, 316 So.2d 557 (Fla. 1975); Fort Lauder-dale v. State ex rel. Elston Bank & Tr. Co., 125 Fla. 89, 169 So. 584 (1936).


author: PER CURIAM.

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. DICKERSON, INC., Appellee.
    No. 54318.
    Supreme Court of Florida.
    Feb. 28, 1980.
    Rehearing Denied May 5, 1980.
    Jerrold K. Phillips, Tallahassee, Fletcher N. Baldwin, Jr., Gainesville, H. Reynolds Sampson and Alan E. DeSerio, Tallahassee, for appellant.
    Bruce Stone, John Radey and F. Alan Cummings of Holland & Knight, Tallahassee, for appellee.
    J. Rex Farrior and Joseph G. Thresher of Shackleford, Farrior, Stallings & Evans, Tampa, for W. L. Cobb Construction Company and Cone Brothers Contracting Company, amicus curiae.
   PER CURIAM.

Affirmed. State of Florida, Department of Transportation v. Edward M. Chadbourne, Inc., 382 So.2d 293 (Fla. 1980).

ENGLAND, C. J., and BOYD, SUND-BERG and McDONALD, JJ., concur.

ADKINS, OVERTON and ALDERMAN, JJ., dissent.


text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. EDWARD M. CHADBOURNE, INC., et al., Appellees.
    No. 53206.
    Supreme Court of Florida.
    Feb. 28, 1980.
    Rehearing Denied May 5, 1980.

      Jim Smith, Atty. Gen., and Susan E. Mole and Horace Sehow, II, Asst. Attys. Gen., Tallahassee and Jerrold K. Phillips, Tallahassee, Fletcher N. Baldwin, Jr., Gaines-ville, H. Reynolds Sampson and Alan E. DeSerio, Tallahassee, for appellant.
    Thurston A. Shell of Shell, Fleming, Davis & Menge, Pensacola, for appellees.
    Joseph G. Thresher of Shackleford, Farri- or, Stallings & Evans, Tampa, for W. L. Cobb Construction Company and Cone Brothers Contracting Company, amicus curiae.
    Bruce Stone, F. Alan Cummings and John Radey of Holland & Knight, Tallahassee, for Ashland Oil, Inc.; Couch Construction Company, Inc.; Dickerson, Incorporated; and Macasphalt Corporation, amicus curiae.
    Raymond L. Syfrett of Syfrett & Hutto, Panama City, for Florida Asphalt Paving Company and Baxter’s Asphalt and Concrete, Inc., amicus curiae.
   PER CURIAM.

Affirmed. State of Florida, Department of Transportation v. Edward M. Chadbourne, Inc., 382 So.2d 293 (Fla. 1980).

ENGLAND, C. J., and BOYD, SUND-BERG and McDONALD, JJ., concur.

ADKINS, OVERTON and ALDERMAN, JJ., dissent.


author: OVERTON, Justice.

text:
    Scott LeBLANC, Appellant, v. STATE of Florida, Appellee.
    No. 56064.
    Supreme Court of Florida.
    March 27, 1980.

      Davis G. Anderson, Jr., Tampa, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appel-lee.
   OVERTON, Justice.

Appellant was arrested under authority of section 901.15(6), Florida Statutes (1977). Appellate review by this Court is sought because the trial court directly and initially upheld the constitutionality of that statute. We have jurisdiction.

The record indicates that appellant, Scott LeBlanc, arrived home late at night in an intoxicated condition. He entered into an argument with his wife and became enraged, beating her about the head and body. The wife withdrew to her mother’s home, where she contacted the police. Mrs. Le-Blanc, visibly bruised as a result of the battery, informed the officers of her husband’s actions and accompanied them to her home. Having been informed of the battery and seeing evidence of the wife’s bodily harm, the officers arrested the appellant, Mr. LeBlanc. The arrest was performed without a warrant pursuant to the authority granted under this specific circumstance by section 901.15(6). Appellant was subsequently convicted of spouse battery, section 784.03(l)(a), Florida Statutes (1977), and resisting arrest without violence, section 843.-02, Florida Statutes (1977).

An arrest is properly authorized under section 901.15(6) if officers have reason to believe that one has committed a battery upon his or her spouse and the officers either find evidence of bodily harm or reasonably believe that the victimized spouse would be placed in further danger if the assailant was not arrested without delay. Appellant does not dispute the existence of these statutory factors; rather, he alleges that his arrest was invalid due to the unconstitutional nature of the statute. He attacks the statute on equal protection grounds, contending that the classification, dealing only with spouses, is irrational. Appellant argues that domestic violence, the subject of this statutory provision, occurs not just between spouses but between other family relations and between unrelat-eds sharing a home. It is alleged that singling out only spouses from the affected parties and subjecting them to arrest without warrant under the statute violates the equal protection clause', as it constitutes a fragmentary and thus irrational classification. We disagree.

There is no suggestion that this statute fails to address the problem of domestic violence, or that members within the affected spousal class are treated differently. We reject appellant’s contention that the statute must apply to all parties who might be involved with or affected by domestic violence. It is not a requirement of equal protection that every statutory classification be all-inclusive. Railway Express Agency, Inc. v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949); Newman v. Carson, 280 So.2d 426 (Fla.1973); Pacheco v. Pacheco, 246 So.2d 778 (Fla.1971). Rather, the statute must merely apply equally to the members of the statutory class and bear a reasonable relation to some legitimate state interest. Soverino v. State, 356 So.2d 269 (Fla.1978); Gammon v. Cobb, 335 So.2d 261 (Fla.1976). We find that the statute clearly satisfies this rationality test.

Appellant also contends that the state’s evidence was insufficient to prove the intent element of the battery, particularly in light of appellant’s intoxicated condition. We find this contention to be without merit in view of the record evidence.

The judgment of the trial court is affirmed.

It is so ordered.

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

      . § 901.15, Fla.Stat. (1977):
      When arrest by officer without warrant is lawful. — A peace officer may arrest a person without a warrant when:
      (6) The officer has probable cause to believe that the person has committed a battery upon the person’s spouse and the officer:
      (a) Finds evidence of bodily harm; or
      (b) The officer reasonably believes that there is danger of violence unless the person alleged to have committed the battery is arrested without delay.

      . Art. V, § 3(b)(1), Fla.Const.


author: McDONALD, Justice.

text:
    The DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES of the State of Florida, Appellant, v. Darrell Gene HEFFLER, Appellee.
    No. 57171.
    Supreme Court of Florida.
    March 27, 1980.
    Joseph R. Boyd of Boyd, Harris & Smith, Tallahassee, and Chriss Walker, Office of Child Support Enforcement, Dept, of Health and Rehabilitative Services, Tallahassee, for appellant.
   McDONALD, Justice.

The state Department of Health and Rehabilitative Services (HRS) appeals a circuit court ruling that section 409.2567, Florida Statutes (1977), is unconstitutional. This Court has jurisdiction under article V, section 3(b)(1), Florida Constitution.

Section 409.2567 allows HRS to provide child support collection and paternity determination services to persons not receiving governmental subsidies. These services include HRS’s maintenance of suit, on behalf of an individual, to determine the paternity of dependent children. In such suits, counsel is supplied at no outright cost to the individual, but apparently not to the respondent. The trial court found this practice to be a denial of equal protection of the law. We disagree.

Article I, section 2 of the Florida Constitution states: “All natural persons are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; . .” This Court has stated: “For a statutory classification to satisfy the equal protection clauses found in our organic documents, it must rest on some difference that bears a just and reasonable relation to the statute in respect to which the classification is proposed.” Rollins v. State, 354 So.2d 61, 63 (Fla.1978). “[T]he test to be utilized in examining whether a statutory classification satisfies the Equal Protection Clause is whether it rests on some difference bearing a reasonable relation to the object of the legislation.” Soverino v. State, 356 So.2d 269, 271 (Fla.1978). “Any classification must bear a just and reasonable relation to a legitimate purpose.” In re Estate of Reed, 354 So.2d 864, 865 (Fla. 1978), citing Gammon v. Cobb, 335 So.2d 261 (Fla.1976).

Section 409.2567 meets this test. The basic purpose of sections 409.2551-409.-2597, Florida Statutes (1977), is to maintain children “from the resources of responsible parents, thereby relieving, at least in part, the burden presently borne by the general citizenry through public assistance programs.” Section 409.2551, Florida Statutes (1977). Section 409.2567 supports this purpose by allowing the identification of responsible parents and the award of support from them prior to, and in place of, receiving public assistance.

The legislature passed sections 409.2551-409.2597 in order to receive federal aid to families with dependent children (AFDC) funds. The pertinent language of section 409.2567, “any individual not otherwise eligible for such services,” comes directly from the federal statute. 42 U.S.C. § 654(6)(A).

Since section 409.2561(4) allows reimbursement of HRS’s expenses out of support payments, individual plaintiffs under section 409.2567 are not receiving free counsel. But, such individuals do not suffer the out-of-pocket expense of hiring an attorney as do most defendants in paternity determinations.

The concern of the circuit court that the petitioner was furnished counsel by HRS and the respondent was not should not vitiate the statute. With the advent of legal aid societies, and the willingness of members of the Florida Bar to contribute their services when needel, indigent defendants in such suits should be able to secure representation.

The trial judge had other objections to the statute, with which we disagree.

We find that section 409.2567 suffers from no constitutional defect. The trial court’s order is hereby quashed, and this cause is remanded for further proceedings under chapter 742, Florida Statutes.

It is so ordered.

ENGLAND, C. J., and ADKINS, OVER-TON, SUNDBERG and ALDERMAN, JJ., concur.


text:
    Willie CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 56775.
    Supreme Court of Florida.
    March 13, 1980.
    As Corrected May 13, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, App. Div., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Mary E. Mars-den, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant pled no contest to the charge of possession of marijuana, specifically reserving his right to appeal the trial court’s denial of his motion to dismiss. The trial court’s finding that section 893.-03(l)(c)3, Florida Statutes (1978 Supp.), is constitutional is consistent with this Court’s ruling in State v. Cheatham, 376 So.2d 1167 (Fla.1979). We hold that this constitutional issue is frivolous and transfer this case to the seventeenth judicial circuit for resolution of the remaining issue on appeal.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, ALDERMAN and MCDONALD, JJ., concur.

ADKINS, J., dissents.


text:
    Jerry TELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 56311.
    Supreme Court of Florida.
    March 20, 1980.
    Robert E. Jagger, Public Defender, and William G. Sestak, Asst. Public Defender, Dade City, for appellant.
    Jim Smith, Atty. Gen., and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

Affirmed. See State v. Ashcraft, 378 So.2d 284 (Fla.1979); Gissendanner v. State, 373 So.2d 898 (Fla.1979).

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