text:
    BROUSSEAU’S, INC., d/b/a Brousseau’s Seafood v. CITY OF BATON ROUGE.
    No. 14110.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    H. Matthew Chambers, Baton Rouge, for plaintiff-appellee Brousseau’s, Inc. d/b/a Brousseau’s Seafood.

      Walter G. Monsour, Jr., Parish Atty., James J. Zito, Asst. Parish Atty., Baton Rouge, for defendant-appellant City of Baton Rouge.
    Winston R. Day, Baton Rouge, for defendant/in tervenor-appellant U ni versity Acres Civic Association, through Ms. Mary Jane Rupp, President.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The basic issue presented is whether or not appellee Brousseau’s, Inc. (hereinafter Brousseau’s) is entitled to a Class “A” beer, wine and liquor permit. Raised by this issue are the questions of whether or not appellant, City of Baton Rouge, can deny the permit on the basis of evidence showing a detrimental effect on the public health, safety and morals; and, whether or not the evidence in this case does in fact establish such a detrimental effect. We agree with the trial court’s judgment granting Brous-seau’s the right to apply for the permit, although our conclusion is based on different reasons.

This litigation arose from the following facts. Appellee Brousseau’s filed a notice of intent to apply for a Class “A” permit to sell beer, wine and liquor at its proposed restaurant. The restaurant was to be located on Highland Road, near its intersection with Lee Drive in Baton Rouge. Brous-seau’s followed the required steps, including the posting of a notice of intent on the door of the building. Four hundred seventy-five residents of a nearby neighborhood, University Acres, signed a petition protesting the granting of the license and presented the petition to the Alcohol Beverage Control Board (hereinafter ABC Board). After considering the matter the ABC Board refused to allow appellee to apply for the permit. At trial Francis Fitch, Chairman of the ABC Board, admitted the right to apply was denied mainly because of the residents’ complaints.

Brousseau’s appealed to the City Council and after a hearing was held the Council granted Brousseau’s the right to apply for a license to sell beer and wine, but not liquor. The Council cited as authority a local ordinance found in the Baton Rouge City Code, Title 9: § 4(a) which allows the Council to deny a permit “on grounds which might adversely affect the public health, safety and morals.”

Brousseau’s appealed to the Nineteenth Judicial District Court and a trial on the merits was held. The University Acres Civic Association intervened in the matter on behalf of the City. At trial, the court refused to allow any evidence of the possible effect on the health, safety and morals of the community. It stated the qualifications for obtaining a liquor license were prescribed by Chapter 1 of La.R.S. Title 26, (La.R.S. 26:1-219) and that Chapter 1 did not provide a license could be denied simply because of a possible adverse effect on the health, safety and morals of the community. In essence, the court found the local ordinance was not in compliance with La.R.S. 26:1-219 and therefore was invalid. Evidence on the possible adverse effects on the welfare of the community was offered on proffer only.

After hearing testimony on other matters the court ruled there had been no evidence showing Brousseau’s did not meet the requirements of La.R.S. 26:1-219, therefore the liquor license should be granted. The City and the intervenor appealed.

Appellants urge the court erred in ruling evidence relative to the welfare of the community was irrelevant to the proceedings. They argue the court overlooked a specific statutory grant of authority for a municipality to regulate alcohol to preserve the welfare of the community, La.R.S. 26:494. The statute reads as follows:

“Except as limited by the provisions of this Chapter the various subdivisions of the state may regulate but not prohibit, except by referendum vote as provided by Chapter 3, this Title or by legally authorized zoning laws of municipalities, the business of wholesaling, retailing, and dealing in alcoholic beverages. However, no parish or municipality shall, in the exercise of its police power, regulate the business of selling such beverages more than is necessary for the protection of the public health, morals, safety, and peace. Local subdivisions, in adopting these regulatory ordinances, may provide, in addition to the ordinary penalties authorized by law for their violation, provisions which subject the permittee to having his permit suspended or revoked in the manner provided by law for the suspension or revocation of permits.” (Emphasis added.)

Further, appellants argue that adoption of the local ordinance was permitted under the broad authority of La.R.S. 26:495 which reads as follows:

“No person shall sell any beverages of high alcoholic content in violation of any lawful ordinance or regulation adopted by authority of this Part by any parish or municipality.”

Appellee argues this statute, found in Chapter 2 of Title 26, has no bearing on the instant case. He cites R.S. 26:84 which reads as follows:

“The board with respect to state permits and municipal authorities and parish governing authorities with respect to local permits may withhold the issuance of permits in the manner and under the terms and conditions specified in this Chapter.” (Emphasis added.)

Section 84 is found in Chapter 1 of Title 26 and therefore indicates that only Chapter 1 is applicable to the granting of local permits. Since there was no contention that Brousseau’s had failed to meet any of the requirements of Chapter 1, appellee contends the trial court was correct in ruling in Brousseau’s favor.

After carefully examining the applicable law and the jurisprudence interpreting it, we cannot say Section 494 has no application to this case, simply because it is found in Chapter 2 of Title 26. Granted, the arrangement of Title 26 is somewhat confusing. Chapter 1 deals primarily with liquor and wine and Chapter 2 deals mainly with beer. However, Chapter 2 is divided into seven parts. While Part Two deals only with beverages of low alcoholic content, other parts, including Part Six (in which Section 494 is found) deal with beverages of both high and low alcoholic content. (See Comment following Section 494.) The statute refers clearly to municipalities having the right to regulate the selling of alcoholic beverages. We find no authority for ignoring Section 494 simply because it is not found in Chapter 1.

Section 494 has been cited several times for the proposition that a municipality may enact stricter alcoholic beverage regulations than is provided under state law. In City of Lafayette v. Elias, 232 La. 700, 95 So.2d 281 (1957), rehearing denied 1957, the court held that a municipality could enforce a local ordinance which prohibited the selling of beer to those under age twenty-one even though state law allowed the sale of beer to persons eighteen or over. The court cited Section 494 and noted that the municipality could regulate in accordance with the needs of the community. In City of Baton Rouge v. Rebowe, 226 La. 186, 75 So.2d 239 (1954), rehearing denied 1954, the court upheld the validity of a city ordinance defining “closing hours” differently than state law. The court cited Section 494, as authority for the municipality to enact such ordinances dealing with alcoholic beverages if necessary for the protection of the public welfare.

In Lanaux v. Com’n on Alcoholic Bev. Control, 342 So.2d 265 (La.App. 4th Cir. 1977), writ refused 1977, the court held that Section 494 did not apply to the statutes found in Chapter 1 of Title 26. Therefore, the court rejected the plaintiff’s arguments that under Section 494 the municipalities were limited by the specific regulations of Chapter 1 and held that there was “no statutory provision prohibiting a municipality or subdivision of the State from enacting ordinances which may include additional restrictive provisions not inconsistent with the intent of the legislative act.”

These cases indicate clearly that appellant is correct in arguing that Section 494 grants municipalities authority to enact statutes such as Title 9, Section 4(a) of the Baton Rouge City Code if such ordinances are necessary for the protection of the welfare of the community and even if such ordinances go beyond the provisions found in Chapter 1 of Title 26 or in other state laws. We therefore disagree with the trial court’s ruling that all evidence as to the possible effect on the welfare of the community was irrelevant. The evidence should have been admitted.

After carefully examining the proffered evidence, we reach the same ultimate conclusion as the trial court. Appellee is entitled to his liquor permit. The evidence proffered to establish the possible adverse effects on the welfare of the community fails to establish that these effects are likely to occur.

The proffered evidence consisted of testimony by Mr. Fitch, R. Robert Rackley, and Ralph W. Stephenson, Jr. Mr. Fitch related the various complaints and fears of the residents. He reported they feared increased traffic congestion, more frequent accidents due to an increased number of intoxicated drivers, increased litter and increased vandalism. However, there was no evidence to support these apprehensions. Mr. Rackley and Mr. Stephenson, residents of the area, testified traffic congestion was the main concern of the people. While this is certainly a legitimate interest, and it is probable a restaurant in this area would minimally increase the traffic flow, there was not one iota of evidence to show Brous-seau’s business would increase appreciably simply because he was granted a permit to sell liquor. In other words, the increase in traffic would undoubtedly occur as a result of the opening of a new restaurant, whether that restaurant was serving liquor or not. The proffered testimony failed to establish any connexity between the speculated effects and the granting of the liquor license (in addition to the beer license already approved).

Evidence admitted at trial showed the proposed site of the restaurant is surrounded by commercial property. Terrence Brousseau, owner of the proposed restaurant, testified the site is surrounded by a service station, a water tower, a convenience store, a bank and a gift shop. There is no residential property contiguous to the proposed site. The restaurant is designed to seat about sixty people and the. parking lot is built to accommodate thirty-six cars. There is additional space for parking cars behind the building. Much time was spent at trial in questioning Mr. Brousseau about certain activities at The Caterie, a bar and restaurant partially owned by Mr. Brous-seau. As appellee’s counsel pointed out, this evidence had no relevance to the issue at hand. The Caterie is an establishment serving meals with an average price of $3.00 and contains a separate bar designed for consumption of alcoholic beverages. To the contrary, Brousseau’s is a restaurant serving meals with an average price of $5.00 to $6.00 and the bar area contemplated is designed primarily for the consumption of oysters. Because of these differences we find any comparison of Brous-seau’s to The Caterie to be irrelevant.

In conclusion we hold that appellants, as opponents to the application for the liquor permit, have failed to show any adverse effects will result from the granting of the permit. The crux of the opposition seems to be a misunderstanding that Brousseau’s will be a bar rather than a restaurant. For the foregoing reasons, we affirm the judgment of the trial court. Appellant, City of Baton Rouge, is cast for all costs, limited to those applicable by law.

AFFIRMED.

      . The appeal raises the issue of the propriety of the liquor permit only. Brousseau’s right to obtain a permit to sell beer and wine is not at issue.

      . “Alcoholic beverages” is defined in Chapter 1 (La.R.S. 26:2[1]) as any fluid having an alcoholic content of more than six per cent by volume. Chapter 2 (La.R.S. 26:241[1]) defines the same as any fluid containing more than one-half of one per cent alcohol by volume.


source: Caselaw Access Project

author: LEAR, Judge.

license: Public Domain

text:
    Charles B. MULLIN, Sr. v. Ellis VESSIER.
    No. 14116.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Roy K. Burns, Jr., Covington, for plaintiff-appellant.
    Julian J. Rodrigue, Covington, William P. Golden, Jr., La Place, for defendant-appel-lee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Plaintiff, Charles B. Mullin, Sr., filed this civil action for himself and on behalf of his minor son, Charles B. Mullin, Jr. (hereinafter referred to as Charles). He seeks recovery of general and special damages resulting from the battery of Charles by another boy, Ted Vessier. Plaintiff named as defendants Ellis Vessier, father of Ted, and Security Insurance Group of Hartford, Connecticut, insurer of Ellis Vessier.

After trial on the merits, judgment was rendered in favor of plaintiff and against both defendants, in solido, for five thousand dollars in general damages plus special damages. Plaintiff appealed, alleging error in the amount of general damages awarded. Plaintiff submits that the district court erred in failing to award damages for embarrassment and humiliation and in awarding an inadequate amount in general damages.

The judgment herein awards general damages of five thousand dollars, without itemization. Seldom, if ever, are the various elements of general damages itemized and an award made for each element. Ogaard v. Wiley, 325 So.2d 642 (La.App. 3rd Cir. 1975). Such itemization is not required. Chaisson v. J. Ray McDermott & Co., 324 So.2d 844 (La.App. 1st Cir. 1974), writ denied, 328 So.2d 86 (La.1976). The peculiar facts related to each item must indicate support for the total award. Ogaard v. Wiley, supra. It cannot be said that the district court omitted consideration of any particular items in reaching its decision on the total award for general damages in this case. Therefore, we turn to an examination of the record to review the district court’s total award for general damages. In so doing, we remain cognizant of the various items which may indicate support for the total award, including embarrassment and humiliation.

On the night of February 3,1979, Charles and several friends attended a movie. They were waiting outside the theater for a ride home when Ted Vessier approached Charles and hit him in the upper right quarter of his face. The blow knocked Charles against a window and he slumped to the ground, temporarily unconscious. When he got up, his face was numb; he could not feel anything. He and his friends walked to a drug store. By this time, he was in considerable pain. A friend’s mother took him to the hospital, where he was examined and given medication for pain.

The next day, he was examined by Dr. James L. Bradford (ear, nose and throat surgeon). Dr. Bradford recommended surgery after the swelling subsided. During the operation, a temporary balloon was inserted into Charles’ sinus cavity.

Charles testified that people made fun of him and that he experienced considerable pain before and after surgery, in spite of pain medication. He missed two weeks of school and his other activities were quite curtailed. Family members also testified that Charles evidenced pain and embarrassment.

Charles claimed that he failed the eighth grade because of his injury. However, as the district court noted in written reasons for judgment, Charles’ report card indicates that his grades were poor prior to the injury.

Regarding the cosmetic effects of the surgery, Charles stated that he had one scar covered by his eyebrow and another scar so close to his eye that “you can’t really see it.”

Dr. Bradford’s deposition was submitted in lieu of his testimony at trial. He stated that he first examined Charles on February 5, 1979, and diagnosed his injury as a right trimalar fracture, with swelling and bruising around the right eye. He referred Charles to Dr. Ferry for ophthalmologic consultation and Dr. Ferry reported that there had been no damage to Charles’ eye.

Dr. Bradford recommended surgery, which was performed on February 13,1979. Three fracture sites were repaired. Stainless steel wire was permanently inserted in the face, from which, Dr. Bradford states, Charles experiences no disability. A surgical balloon was temporarily inserted. Dr. Bradford testified that the balloon may have caused some discomfort but that it would not interfere with nasal breathing.

Charles was examined by Dr. Bradford several times in the hospital. Dr. Bradford noted that he was given medication for pain, that he was alert and doing well, and that he had the usual amount of swelling. Charles was discharged from the hospital on February 17, 1979.

Dr. Bradford examined Charles on three occasions thereafter. On February 23, the balloon was removed. Dr. Bradford noted that the swelling had subsided and there was “good cosmesis.” On March 17, Dr. Bradford noted “excellent cosmesis and no problems.” On July 13, 1979, Dr. Bradford stated that the injury was well healed, that the surgery results were very good, and that Charles had no complaints.

Overall, Dr. Bradford’s testimony indicated that Charles’ surgery and recovery were normal in every way. Regarding possible permanent effects of the injury, he stated that Charles had no functional or cosmetic disability, except two small scars which are not noticeable.

With respect to the award of general damages, each case must be weighed and evaluated according to its own particular facts and circumstances. In Reck v. Stevens, 373 So.2d 498, 501 (La.1979), the Louisiana Supreme Court stated:

“Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determine that the award is excessive.
* * * * * *
“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion,’ La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.
“In the initial determination of exces-siveness or insufficiency, an examination of prior awards has a limited function — if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) ‘similar’ injuries, see Coco [Coco v. Winston Industries, Inc., 341 So.2d 332] at 341 So.2d 334.”

Considering all of the facts and circumstances, we find no abuse of discretion in the district court’s award for general damages. See Moffett v. Lumpkin, 382 So.2d 278 (La.App. 4th Cir. 1980).

For the foregoing reasons, the judgment of the district court is affirmed. Costs of this appeal are to be borne by plaintiff.

AFFIRMED.


author: CHIASSON, Judge.

text:
    Mrs. Myrtle Devall ANDRUS et al. v. Kenneth H. KAHOA, J. King Woolf, Jr., and Ashland Plantation, Inc.
    No. 14121.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Rehearing Denied May 18, 1981.
    Writ Granted Sept. 11, 1981.
    John T. Olivier, Olivier & Brinkhaus, Sunset, for plaintiffs-appellants.

      R. Gordon Kean, Jr., Sanders, Downing, Kean & Cazedessus, Baton Rouge, for defendants-appellees.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Plaintiffs Myrtle Andrus, Evelyn Prague, Susan Devall, and Harmon Devall, filed this civil action seeking recovery of portions of bonuses and rentals under a mineral lease executed by defendant Ashland Plantation, Inc., in favor of Chevron Oil Company. Plaintiffs contend that they are entitled to such monies under the terms of an act of sale of their interest in the leased property in 1969 to defendants, Kenneth H. Kahoa and J. King Woolf, Jr., who subsequently sold the property to Ashland Plantation, Inc. The basis for their claim is set forth in their petition as follows:

“III.
“By the terms of said sale, the sellers reserved an undivided one-half (Vfe) interest in and to all the outstanding minerals, the other undivided one-half (V2) interest being conveyed to purchasers, who had the exclusive right without the necessity of securing the joinder or consent of sellers to enter into any oil, gas and mineral leases as they deemed fit, provided, however, that no lease be executed for less than a one-sixth (Veth) royalty.”

Defendants filed Peremptory Exceptions of No Cause of Action and of Prescription. The exception of no cause of action was based upon the assertion that the act of sale conveyed to vendees the executive right to grant mineral leases without a reservation by vendors of any right to bonuses or rentals. The district court maintained defendants’ Peremptory Exception of No Cause of Action and dismissed plaintiffs’ suit at their costs. Plaintiffs appealed.

Plaintiffs submit that the district court erred in maintaining defendants’ exception of no cause of action. They argue that they are entitled to portions of the bonuses and rentals under the terms of the act of sale.

Plaintiffs admit in brief that the district court’s ruling would be correct if Article 105 of the Louisiana Mineral Code was applicable to the act of sale at issue herein. That article provides, inter alia:

“The executive right is the exclusive right to grant mineral leases of specified land or mineral rights. Unless restricted by contract it includes the right to retain bonuses and rentals.”

However, the act of sale at issue herein was executed prior to the enactment of the Mineral Code. Plaintiffs argue that application of article 105 would divest them of a vested right to portions of the bonuses and rentals and impair the obligation of the act of sale, all in contravention of Article 214 of the Mineral Code.

Hence, the ultimate issue for our review is whether or not, under the law as it existed prior to the enactment of the Mineral Code, plaintiffs are entitled to portions of the bonuses and rentals under the terms of the act of sale as set forth in their petition.

Prior to the enactment of the Mineral Code, the two leading cases interpreting executive right provisions were Ledoux v. Voorhies, 222 La. 200, 62 So.2d 273 (1952) and Mt. Forest Fur Farms of America v. Cockrell, 179 La. 795,155 So. 228 (1934). In these cases, the Louisiana Supreme Court found that the plaintiffs (holders of mineral interests) were not entitled to mineral lease bonuses and rentals under clauses in acts of sale which authorized others to execute mineral leases without expressly reserving unto plaintiffs the right to such monies.

In their petition, plaintiffs state that the act of sale gave to vendees “the exclusive right without the necessity of securing the joinder or consent of sellers to enter into any oil, gas and mineral leases as they deemed fit.... ” The grant of an exclusive right to execute a mineral lease carries with it the right to retain bonuses and rentals unless specified as being excepted from the grant. See Ledoux v. Voorhies, supra, and Mt. Forest Fur Farms of America v. Cockrell, supra.

There is no allegation in plaintiffs’ petition that they expressly excepted from the grant any rights to bonuses or rentals. The act of sale is not part of the record and, because this case is before us on an exception of no cause of action, we accept as true all well pleaded allegations of plaintiffs’ petition. The petition establishes that no such exception was made in the act of sale.

Therefore, according to the law as it existed prior to the enactment of the Mineral Code, plaintiffs are not entitled to bonuses or rentals under the terms of the act of sale. Moreover, the same result is obtained under Article 105 of the Mineral Code, which is itself based upon this prior juiis-prudence. See Official Revision Comment, Article 105, Louisiana Mineral Code; Hardy, “Highlights of the Mineral Code Recommendations: A Guide to the More Important Suggested Changes and Elaborations,” 32 La. Law Rev. 542 at 578 (1972). Hence, the district court did not err in maintaining defendants’ Peremptory Exception of No Cause of Action.

Plaintiffs next complain of the trial judge’s denial of their timely request for written reasons for judgment. We are unable to determine the merits of this complaint because no such request is contained in the record before us.

For these reasons, the judgment of the district court is affirmed. Costs of this appeal are to be borne by plaintiffs.

AFFIRMED.

      . La.R.S. 31:105.


author: LOTTINGER, Judge.

text:
    Jim W. RICHARDSON, Jr. v. STAN WEBER & ASSOCIATES, INC. and J. P. Pravata.
    No. 14123.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    E. B. Dittmer, II, Bogalusa, for plaintiff-appellant.
    Jim W. Richardson, Jr., Bogalusa, in pro per.
    L. Jay McCreary, Slidell, Charles F. Bar-bera, Metairie, for defendant-appellee Stan Weber & Assoc.
    J. P. Pravata, in pro per.

      Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

Plaintiff, Jim W. Richardson, Jr., appeals from the judgment of the trial court rejecting his claim for recovery of $4,700.00, the amount of deposit on a real estate purchase agreement. He named as defendants the realtor with whom the property was listed, Stan Weber & Associates, Inc., (hereinafter referred to as Stan Weber) and the prospective purchaser of the property, J. P. Prava-ta.

The record of trial on the merits reveals the following facts: White Stock Company, a corporation wholly owned by Richardson, was owner of the property. In August of 1977, George Higgins, as agent for the company, signed a listing agreement with Stan Weber for promotion of the sale of the property. Ron Merrill, a real estate agent with Stan Weber, secured a prospective purchaser, Mr. Pravata, who signed a purchase agreement. This agreement was signed by plaintiff himself, signifying acceptance, on October 15, 1977.

The purchase agreement stipulated the amount of Mr. Pravata’s deposit as damages in the event of default by either party. Also, the agreement provided that the sale was conditioned upon the purchaser’s ability to obtain financing on specified terms and stated: “Should purchaser, seller or agent be unable to obtain the loan stipulated above within 30 days from acceptance hereof, this contract shall then be null and void and the agent is hereby authorized to return the purchaser’s deposit in full.”

Mr. Pravata was unable to obtain financing on the terms specified in the purchase agreement. During the thirty-day time period, Mr. Merrill dealt entirely with Mr. Higgins and spoke with him several times about financing and about numerous other problems with the property. Mr. Higgins was notified of the financing problems; but plaintiff was not so informed by Stan Weber until January of 1978, when Mr. Merrill realized that plaintiff had an interest in the property and attempted to secure a release of the deposit from him. Plaintiff then declared that he would provide the financing himself. Nevertheless, Mr. Merrill returned the deposit to Mr. Pravata.

The trial judge stated in oral reasons for judgment that Mr. Pravata had made a good faith effort to obtain the financing. Since he was unable to do so within the specified time period, the purchase agreement was rendered null and void. Plaintiff’s claim for the amount of the deposit as damages was rejected.

Plaintiff’s sole contention on appeal is that Stan Weber breached an obligation to notify him personally of the financing problems. He argues that notification of Mr. Higgins was not sufficient because Stan Weber was placed on notice, by plaintiff’s signature on the purchase agreement, that he was the ultimate principal and seller of the property.

First, we note that this contention is raised for the first time on appeal. It was not raised by plaintiff in pleading and, apparently, was not considered by the trial judge in his decision. Generally, this Court will consider only issues which were submitted to the trial court. Uniform Rules, Courts of Appeal, IX-A. See also Dugas v. Dugas, 374 So.2d 1278 (La.App. 3rd Cir. 1979).

In any event, we reject plaintiff’s contention on its merits. In doing so, we do not specifically find, but assume arguendo, that Stan Weber had a duty to notify the seller of the financing problems and that Stan Weber was placed on notice that plaintiff was the ultimate seller of the property as owner of White Stock Company.

At all relevant times, Mr. Higgins was the agent of the owner of the property for the purpose of promoting its sale through Stan Weber. Plaintiff does not argue that Mr. Higgins’ mandate was invalid nor that plaintiff’s signature on the purchase agreement signified revocation of Mr. Higgins’ mandate. In fact, plaintiff testified at trial as follows:

Q Through the entire period of time we are talking about from mid October through, let’s say, mid January, was Mr. Higgins an agent on behalf of White Stock?
A Yes, sir, he was. People could deal with him as if they were dealing with me or with White Stock Company.

Notice to an agent on a matter within the scope of his authority serves as notice to the principal. Weingart v. Delgado, 204 La. 752, 16 So.2d 254 (1943); Marpco, Inc. v. South States Pipe & Supply et aL, 377 So.2d 525 (La.App. 3rd Cir. 1979). Hence, notification of Mr. Higgins about the financing problems served as notice to plaintiff.A

A few days prior to oral argument of this case, Stan Weber filed a peremptory exception of prescription alleging that Richardson’s suit sounded in tort and therefore prescribed one year from the time Richardson knew or should have known of the alleged breach of Stan Weber’s duty. Because of our decision on the merits in this case we need not decide the prescription issue.

Therefore, for the above and foregoing reasons, the judgment of the trial court, rejecting plaintiff’s claim, is affirmed. Costs of this appeal are to be borne by plaintiff. AFFIRMED.


author: PONDER, Judge.

text:
    Kathleen A. NAQUIN v. Michael J. HESS et al.
    No. 14131.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Rehearing Denied May 18, 1981.
    Donna W. Lee, Baton Rouge, for plaintiff-appellee Kathleen A. Naquin.
    Dan B. Cornett and Richard S. Derbes, Baton Rouge, for defendants-appellants Michael J. Hess and David P. Shellington.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is a redhibition suit. Defendants, Michael J. Hess and David P. Shellington, appealed from a judgment decreeing a reduction in price of a home.

The issues are the sufficiency of proof of a defect in the air conditioner at the time of sale and the allowance of recovery for roof repair not alleged in the petition.

We affirm.

Plaintiff testified she had difficulty with the air conditioner on the first day of occupancy. The circuit breaker would interrupt the electric line, necessitating that plaintiff climb on the roof to reset the breaker. She notified one defendant several times by telephone and then by letter. Defendant sent a air conditioning repairman, who replaced an evaporator blower motor. Tests on the system then resulted in normal results. Within a month the repairman had to return; this time he found a tripped circuit breaker, which, however, operated correctly when reset. That winter she had considerable trouble with the heating portion of the equipment, finally having to cease using it because of escaping gas. The next summer, moreover, the trouble with the air conditioning portion occurred quite frequently, necessitating numbers of trips on the roof. Finally some seventeen months after purchase of the home she was informed by another repairman that there was a “short” in the compressor and a hole in the heat exchanger. Defendants contend that the defects must have developed after the normal check made when the evaporator blower motor was replaced.

The last repairman, however, testified that isolated checks of the unit would not necessarily detect the problem. The cause of the overheating and breaking of the circuit could have developed at any time and could have resulted in the ultimate complete failure of the compressor. The trial court found that the defect was present at the time of the sale. The trial court was not clearly wrong; we find no error.

Plaintiff’s petition mentions a roof leak only incidentally. Without objection, however, soon after plaintiff took the witness stand, she testified not only about the air conditioning and heating problems, but also of a leaking roof the defendants repaired a number of times and that plaintiff had to replace entirely. Only when plaintiff was asked about attempts to get defendants to repair was objection made. We agree with the trial judge that the objection came too late after the pleadings had been enlarged.

For these reasons the judgment is affirmed. Appellants are cast with the costs.

AFFIRMED.


author: PONDER, Judge. EDWARDS, Judge,

text:
    Donald R. CHAUSSE v. SOUTHLAND CORPORATION et al. Randolph P. CAZES, Jr., Individually, Etc. v. SOUTHLAND CORPORATION et al. Jimmy DRUMMOND, Individually, Etc., v. SOUTHLAND CORPORATION et al. Amelia Jo LaSALLE, Etc. v. SOUTHLAND CORPORATION et al.
    Nos. 14033-14036.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Dissenting Opinion May 27, 1981.
    Rehearing Denied July 27, 1981.
    Writs Denied Sept. 11, 1981.

      Dennis R. Whalen, Baton Rouge, for Donald R. Chausse, Randolph P. Cazes, Jr., In-div. and as Admin, of Laurie R. Cazes, and Jimmy Drummond, Indiv., etc.
    A. S. Easterly, III, Baton Rouge, for John D. Knight, Southland Corp. and The Travelers Insurance Company.
    Judith Atkinson Chevalier and Mike Clegg, Baton Rouge, for United States Fidelity & Guaranty Company and Nelson & East Motor Co., Inc.
    Frank H. Dickinson, III, Baton Rouge, for Mrs. Mary Russell.
    Thomas R. Bryan, Baton Rouge, for Jeffrey Dean Russell.
    Anthony J. Clesi, Jr., Baton Rouge, for Curtis C. Savoy, Jimmy Drummond and State Farm Mutual Automobile Ins.
    James E. Moore, Baton Rouge, for Randolph P. Cazes, Jr., Aetna Life and Casualty Company.
    Kenneth E. Barnett, Baton Rouge, for MFA Ins. and Donald R. Chausse.
    John Samaha, Baton Rouge, for Amelia Jo LaSalle, etc.
    Before ELLIS, COVINGTON, LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiffs appeal the judgment of the trial court barring recovery for wrongful death benefits and for damages for personal injury because of contributory negligence.

The issues are: contributory negligence, assumption of the risk, imputation of contributory negligence and assumption of the risk, the admissibility of evidence of a related crime and damages.

We reverse and render.

Defendant, Southland Corporation, through its employee, John Doshen Knight, sold beer at least twice in one night to sixteen-year-old Jeffrey Dean Russell. While under the influence of the beer, Russell ran a red blinking light and collided with another car. The collision killed one of his passengers, Ramona Chausse, the thirteen-year-old daughter of Donald R. Chausse and Amelia Jo LaSalle, and injured her two companions, fourteen-year-old Lau- ■ rie Cazes and fifteen-year-old Marguerite Kay Drummond, both substituted plaintiffs in these actions. Two occupants of the other car were also injured.

The group had spent the evening driving around, stopping at various teen-age hangouts and drinking beer. Ramona drove the car until shortly before the accident when the group determined that she was too drunk to drive and Russell took the wheel. A blood alcohol test drawn on Russell after the accident showed a reading of .18 indicating legal intoxication. After determining that Russell’s intoxicated state materially contributed to the accident, the court found Southland Corporation, through its employee, had breached the duty of care it owed the three teen-age passengers by selling beer to a minor in violation of LSA-R.S. 26:88(1), LSA-R.S. 26:285(1) and LSA-R.S. 14:91. It awarded damages to the occupants of the other car, but denied damages to plaintiffs herein because of the girls’ own affirmative acts of negligence in getting drunk and driving with someone they knew or should have known was drunk.

Preliminarily, plaintiffs claim the court erred in refusing to admit evidence of a subsequent sale of beer to a minor by defendant. We agree with the trial court that the evidence is irrelevant. We find no error in the refusal.

Plaintiffs, LaSalle and Chausse, claim Ramona was not contributorily negligent. They argue a thirteen-year-old should not be held to the same standard of self-care as is required of an adult. We find, however, that, even applying the lesser standard of care, Ramona was contribu-torily negligent.

There was considerable testimony from the occupants of the car that Russell displayed no signs of being unable to drive. Under the standard of Prestenbach v. Sentty Insurance Co., 340 So.2d 1331 (La.1977), it was not proved that the girls assumed the risk of the harm they encountered in consenting to ride with Russell.

Plaintiffs next contend that the girls’ contributory negligence or assumption of the risk does not defeat recovery. Citing Boyer v. Johnson, 360 So.2d 1164 (La.1978), they argue that “where the purpose of a statute is to protect the minor against the risk of his own negligence . .. the general rule is that the minor’s contributory negligence or assumption of the risk will not defeat recovery for his injury or death, the very risk and harm the statute was designed to prevent.” We find plaintiff’s argument persuasive.

In speaking of the relationship between a statutorily imposed duty and contributory negligence, Professor William L. Prosser states:

“... the contributory negligence of the plaintiff is a complete bar to his action for any common law negligence of the defendant. Whether it is a bar to the liability of a defendant who has violated a statutory duty is a matter of the legislative purpose which the court finds in the statute. If it is found to be intended merely to establish a standard of ordinary care for the protection of the plaintiff against a risk, his contributory negligence with respect to that risk will bar his action, as- in the case of common law negligence. But there are certain unusual types of statutes, such as child labor acts, those prohibiting the sale of dangerous articles such as firearms to minors, the Federal Safety Appliance and Boiler Inspection Acts, factory acts for the protection of workmen, . . . which have been construed as intended to place the entire responsibility upon the defendant, and to protect the particular class of plaintiffs against their own negligence. In such a case, as in the case of the statutes involving the age of consent, the object of the statute itself would be defeated if the plaintiff’s fault were a defense, and the courts refuse to recognize it.” Prosser on Torts 425-26 (1971). (Citations omitted)

We believe the prohibition against the sale of alcoholic beverage to minors falls within this category. The statutes demonstrate a legislative intent to keep alcoholic beverages out of the hands of minors, based on the obvious determination that minors cannot safely handle alcohol. We find the risks here, death and injury due to the girls’ improvident riding with another inebriated teen-ager, some of the major harms the statute was designed to prevent. We therefore find the trial court erred in denying damages. Because of this, we find it unnecessary to address plaintiff’s argument that her contributory negligence should not be imputed to her parents.

Perhaps because of the presence of Dram Shop Acts in numerous states, the exact questions we have, whether recovery may be had by minors who suffered injury and by parents whose children were killed after participating in the purchase and drinking of alcohol, have not been answered in many states. However, the following cases and cases cited therein, may be cited as allowing recovery:

California: Vesely v. Sager, 5 Cal.3d 153, 95 Cal. Rptr. 623, 486 P.2d 151 (1971);
Florida: Prevatt v. McGlennan, 201 So.2d 780 (Fla.App.1967);
Indiana: Brattain v. Herron, 159 Ind.App. 663 309 N.E.2d 150 (1974);
Mississippi: Munford, Inc. v. Peterson, 368 So.2d 213 (Miss.1979);
New Jersey: Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959).

It is argued that in light of the existence of Thrasher v. Leggett, 373 So.2d 494 (La. 1979) and the absence of a Dram Shop Act, recovery should be denied herein. The Thrasher case held that there is no absolute liability imposed upon an alcoholic beverage retailer for the consequences of an adult patron’s intoxication; that the drinking of the alcohol was the proximate cause to an injury than was the sale. Because we believe that it was the legislature’s intent to protect against the act of the minor’s drinking we believe the Thrasher reasoning to be inapplicable here. In view of our civil law heritage of C.C. Art. 2315, we do not believe that a Dram Shop Act is necessary for recovery.

Plaintiff, Donald R. Chausse, the adoptive father of Ramona Chausse, claims $3,669.98 for medical and funeral expenses in addition to general damages for her loss. She had lived with her adoptive father for approximately ten years. The record reveals that although Mr. Chausse encountered some difficulty raising a young girl, he and Ramona had a close relationship. She was described as a “daddy’s girl.” We accordingly award plaintiff, Donald R. Chausse, $3,669.98 in special damages and $25,000.00 for the loss of his daughter.

Amelia Jo LaSalle, natural mother of Ramona Chausse, claims damages for Ramona’s physical and mental pain and suffering prior to her death, Ramona’s loss of enjoyment of future life and her own grief and loss due to Ramona’s death.

There is no basis for a survival action for damages for pain and suffering experienced by a deceased person unless the decedent was conscious following the injury. McDaniel v. Welsh, 234 So.2d 833 (La. App. 1st Cir. 1970), writ denied 256 La. 616, 237 So.2d 397. The evidence is inconclusive that Ramona was conscious at the scene of the accident. She was unconscious upon arrival at the emergency room and remained in a comatose state until her death six days later. For this reason, damages for her pain and suffering are denied. Our law does not recognize as compensable the loss of enjoyment of future life.

Ms. LaSalle relinquished custody of her daughter to Mr. Chausse approximately seven years prior to the accident. Ramona’s sister, Robin, testified Ramona had a good relationship with her mother. Although they saw each other infrequently they maintained communication through phone calls and letters. We find $5,000.00 just compensation for Ms. LaSalle’s loss.

We have no hesitancy in finding that the plaintiffs, Laurie Cazes and Marguerite. Kay Drummond, were also contributorily negligent. However, we come to the same conclusion that recovery is not thereby barred.

Laurie Cazes claims damages for personal injuries suffered in the wreck. She suffered multiple lacerations, a laceration of the liver and spleen and a bruised heart. Her spleen was removed and her liver repaired by abdominal surgery. She spent seventeen days in the hospital and missed the last semester of school. We award $3,657.99 for her medical expenses and $10,000.00 for pain, suffering and permanent disfigurement from abdominal surgery.

Marguerite Kay Drummond suffered multiple lacerations of the face, head and scalp. She was hospitalized for six days. We award her medical expenses of $1,707.37 and $2,000.00 for pain and suffering.

For the above reasons the judgment of the trial court is overruled insofar as it dismisses the suits of Donald R. Chausse, Amelia Jo LaSalle, Laurie Cazes and Marguerite Kay Drummond.

It is now ordered, adjudged and decreed that there be judgment in favor of Donald R. Chausse and against Southland Corporation, John Doshen Knight and their insurer Traveler’s Indemnity Company in solido in the amount of $28,669.98; it is further ordered, adjudged and decreed that there be judgment in favor of Amelia Jo LaSalle and against Southland Corporation, John Dosh-en Knight and Traveler’s Indemnity Company, in solido, in the amount of $5,000.00; it is further ordered, adjudged and decreed that there be judgment in favor of Laurie Cazes and against Southland Corporation, John Doshen Knight and Traveler’s Indemnity Company, in solido, in the amount of $13,657.99; it is further ordered, adjudged and decreed that there be judgment in favor of Marguerite Kay Drummond and against Southland Corporation, John Dosh-en Knight and Traveler’s Indemnity Company, in solido, in the amount of $3,707.37. All awards bear interest at the legal rate from date of demand until paid.

Costs of this appeal are to be borne by appellee.

REVERSED AND RENDERED.

EDWARDS, J., dissents and assigns reasons.

ELLIS, J., dissents for reasons assigned by EDWARDS, J.

EDWARDS, Judge,

dissenting.

To cast Southland Corporation in judgment, the majority first finds that the violation of some statute (here, LSA-R.S. 26:88(1), LSA-R.S. 26:285, or LSA-R.S. 14:91) and the prohibited sale of alcoholic beverages to a minor, Jeffrey Dean Russell, have magically transformed whatever liability Southland may have had for injuries to Jeffrey Dean into blanket responsibility for all harms to any party resulting from the ultimate consumption of said alcohol.

The majority then chooses, based on a pure policy decision, not to let the obvious contributory negligence of a knowing thirteen-year-old preclude her recovery.

Louisiana has no dram shop statute. Nor has one been created jurisprudentially. Thrasher v. Leggett, 373 So.2d 494 (La. 1979). Furthermore, even in those states which have dramshop statutes, the acts protect only innocent third parties. Ramona Chausse was not an innocent party. She freely joined and rode with a group of young people who regularly drank to excess. As on other occasions, she also drank to excess on the day of her death.

Southland Corporation violated no statutory duty to Ramona Chausse. To cast Southland for damages caused by Ramona’s own willful intoxication is both illogical and unfair. I therefore dissent.

      .LSA-R.S. 26:88(1):
      “No person holding a retail dealer’s permit and no agent, associate, employee, representative, or servant of any such person shall do or permit any of the following acts to be done on or about the licensed premises:
      (1) Sell or serve alcoholic beverages to any person under the age of eighteen years, unless such person submits a driver’s license, selective service card or other lawful identification which, on its face, establishes the age of the person as eighteen years or older and there is no reason to doubt the authenticity or correctness of the identification.

      LSA-R.S. 26:285:
      “No person holding a retail dealer’s permit and no servant, agent, or employee of the per-mittee shall do any of the following acts upon the licensed premises:
      (1) Sell or serve beverages of low alcoholic content to any person under the age of eighteen years, unless such person submits a driver’s license, selective service card or other lawful identification which, on its face, establishes the age of the person as eighteen years or older and there is no reason to doubt the authenticity or correctness of the identification.

      LSA-R.S. 14:91:
      “Unlawful sales to minors is the selling, or otherwise delivering for value by anyone over the age of seventeen of any alcoholic beverage either of high or low alcoholic content, or any firearm or other instrumentality customarily used as a dangerous weapon, to any person under the age of eighteen. Lack of knowledge of the minor’s age shall not be a defense.
      Whoever commits the crime of unlawful sales to minors shall be fined not more than three hundred dollars, or imprisoned for more than six months, or both.”

      . No appeal was taken in that case.

      . The contributory negligence of a child is measured by the self-care expected of a child of his age, intelligence and experience under the particular circumstances presented to him. Plauche v. Consolidated Companies, 235 La. 692, 105 So.2d 269 (La.1958); Dufrene v. Dixie Auto Insurance Co., et al., 373 So.2d 162 (La. 1979).

      . The existence of any liability whatsoever is questionable after Thrasher v. Leggett, 373 So.2d 494 (La.1979).


author: CHEHARDY, Judge.

text:
    John Kent CHAUVIN v. C. Robert BOHN.
    No. 12020.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    Rehearing Denied July 13, 1981.
    Flanders & Flanders, Dudley D. Flanders, New Orleans, for plaintiff-appellee.
    Wegmann & Longenecker, Edward F. Wegmann, Geoffrey H. Longenecker, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

Defendant, C. Robert Bohn, appeals a district court decision in favor of plaintiff, John Kent Chauvin, and against the defendant in the sum of $4,000 together with legal interest from date of judicial demand, until paid, and for all costs.

In giving his reasons for judgment, the trial court judge stated:

“The Parties confected an oral agreement which was reduced to writing as evidenced by the Defendant’s check and deposit, which was deposited prior to the Plaintiff, Chauvin, being advised by the Defendant, Bohn, that the agreement for the purchase and sale of Plaintiff’s home (No. 13 Weinning Drive, Willowdale Subdivision, St. Charles Parish, Louisiana, for and in consideration of the purchase price of $80,000.00) was being cancelled and awarding to John Kent Chauvin, the Plaintiff herein, the sum of $4,000.00 representing forfeiture of the deposit by C. Robert Bohn for breach of contract.
“Judgment will be rendered accordingly.”

We agree and affirm.

The record reveals that on August 15, 1976, the defendant and his wife, along with several other persons, toured the plaintiff’s house located in the Willowdale Subdivision in Luling, Louisiana, which plaintiff had placed on the market for sale. After a discussion of price, the parties agreed on the amount of $80,000. Bohn then wrote a check payable to the order of “John Kent” for $4,000 and on the back of the check noted:

Mrs. Chauvin testified that defendant also, at the time of this transaction, kissed her and said he was not going to put her out of her house. Bohn also indicated to Chauvin that if the new house the plaintiff and his wife were building was not finished when the act of sale was passed on the subject house, he would rent the house to the Chauvins until they could move. Mrs. Chauvin also testified that, upon leaving the residence, Bohn said he would not leave until the “For Sale” sign was out of the yard because he did not want someone else coming in and trying to buy the house. She said her husband then pulled up the sign and put it in the garage. Mrs. Chauvin also testified that her husband called the defendant several hours after he left to tell him he had neglected to put the plaintiff’s last name on the check and that Bohn then instructed the plaintiff to go ahead and write it in.

Mr. Chauvin testified he did not endorse and deposit the check until the afternoon of Thursday, August 19, at which time he said he also deposited his paycheck. He said on returning home that evening he learned from his wife that Bohn wanted to speak to him and when he returned the defendant’s call, he was told by Bohn that his wife did not want the house, and, he added, “so we can’t made a deal.” Chauvin was later informed by his bank there had been a stop payment issued on the check.

Although Bohn could not remember what time of the afternoon he spoke to Mr. Chau-vin on August 19, he said he spoke to Mrs. Chauvin sometime in the morning of that day and told her he did not want the house. Mrs. Chauvin, however, testified it was a babysitter with whom Bohn spoke, someone who works for her on Thursdays, and when she checked with this person, which she usually does between four and five o’clock, she was told Bohn wanted her husband to call him.

The bank statement of Mr. and Mrs. Chauvin lists a deposit of $4,000 and another deposit of $496.25 (which Chauvin described as his paycheck), dated August 20, 1976. Chauvin also testified he got paid on August 19 and deposited both checks that afternoon after work. The plaintiff also attempted to introduce a letter from his bank signed by the assistant cashier. The defendant’s objection thereto was sustained by the trial court judge and admitted only as a proffer. However, this court holds that we are able to consider the letter only for the limited purpose of establishing there is a 2 p. m. close out of that bank’s teller windows. If Chauvin had deposited the subject check after 2 p. m. on the afternoon of August 19, therefore, it would not have been credited to his account until August 20, 1976.

In the case of Liuzza v. Panzer, 333 So.2d 689 (La.App. 4th Cir. 1976), the court said at 691:

“Our jurisprudence is well settled that agreements to buy and sell real estate must be in writing to be binding and enforceable. Klotz v. Gertrude Gardner, Inc., 293 So.2d 601 (La.App. 4th Cir. 1974), writ refused, 296 So.2d 831 (La. 1974). See LSA-C.C. arts. 2275, 2439, 2440 and 2462. In Torrey v. Simon-Torrey, Inc., 307 So.2d 569 (La.1974), the Louisiana Supreme Court stated that the rule ‘allowing proof by parol evidence of a subsequent agreement to modify or to revoke a written agreement, is not applicable to a case in which the agreement is one required by law to be in writing’. In the instant case, we conclude the written offer to purchase at a reduced price, verbally accepted by the seller, did not constitute a valid agreement to modify the original purchase agreement.”

In the present case, this court holds, as did the district court, that the writing on the back of the check was sufficient to satisfy the requirement, under the jurisprudence of this State, that all offers to buy and sell real estate must be in writing. We note several cases where similar notations were held to satisfy this requirement: Guice v. Mason, 156 La. 201, 100 So. 397 (1924); Law v. Blackshire, 367 So.2d 1237 (La.App. 3d Cir. 1979).

In the case of National Co. v. Navarro, 149 So.2d 648 (La.App. 4th Cir. 1963), the court noted, however, citing LSA-C.C. art. 1800, that it is the general rule that offers may be revoked at any time before they are accepted. In the present case we agree with the district court judge’s finding of fact that the plaintiff and the defendant did confect an oral agreement to buy and sell the plaintiff’s house on August 15,1976, and on that date the offer to buy the house was put into writing by the defendant. There is also ample evidence in the record to support the district court’s conclusion that the plaintiff reduced his oral acceptance of the defendant’s written offer to writing when he endorsed and deposited the check and that these actions on his part took place before the defendant communicated his desire to withdraw from the agreement.

In the case of Miller v. Smith, 151 So.2d 83 (La.App. 1st Cir. 1963), the court declared that unless the deposited money on a contract of sale is declared not to be earnest money, then it is presumed to be earnest money. LSA-C.C. art. 2463 also states:

“But if the promise to sell has been made with the giving of earnest, each of the contracting parties is at liberty to recede from the promise; to wit: he who has given the earnest, by forfeiting it; and he who has received it, by returning the double.”

In the present case, therefore, this court holds that the $4,000 deposit on the purchase price of the home given by check by the defendant was earnest money and for that reason was forfeited by him when he receded from the promise to buy the plaintiff’s house.

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

AFFIRMED.


author: BOUTALL, Judge.

text:
    Emile M. DeSANDRO v. Mr. George SHOEMACHER, ABC Insurance Company, Boeing Services International, Inc. and Hartford Insurance Company.
    No. 12610.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.
    Gerald J. Martinez, Metairie, for plaintiff.
    Paul P. Rutledge, Metairie, for Boeing Services Intern., Inc. and Hartford Ins. Co.
    Jackson & Stovall, John J. Jackson, III, New Orleans, on behalf of George Shoe-macher.
    Before BOUTALL, BARRY and KLEES, JJ.
   ON MOTION TO DISMISS

BOUTALL, Judge.

Plaintiff-appellee, Emile M. De-Sandro filed a motion to dismiss this appeal on the following grounds: 1) that the motion and order for appeal named DeSandro as appellant rather than the true appellant; 2) that an amended motion and order naming George Shoemacher as the proper appellant was not filed in accordance with C.C.P. Article 253 nor was order of appeal ever signed by the trial court; 3) that the appeal in this matter was not perfected within the delay authorized by law. The record discloses that notice of judgment was served on Shoemacher on January 31, 1980, and that on February 15,1980 his attorney filed a motion for appeal but inserted the name of plaintiff DeSandro rather than Shoe-macher in the motion. This motion was signed by the trial judge, granting a sus-pensive appeal. Upon discovery of his error, the defendant’s attorney filed on March 10, 1980, an amended motion for a suspen-sive appeal which has never been signed by the judge. However, a hearing was apparently held on these issues, resulting in the trial court’s grant of a devolutive appeal to defendant on July 18, 1980. The law does not require that the order of appeal be in any sacred form, and we consider that the judgment rendered by the trial judge has cured the defects in the documents complained of. That proposition, however, leaves us with a devolutive appeal which was timely requested, but signed after the delay for devolutive appeal had run. On May 18,1981, the Supreme Court of Louisiana handed down its ruling in the consolidated cases of Traigle (Collector of Revenue, State of Louisiana) v. Gulf Coast Aluminum Corporation, et al, 399 So.2d 183 (La.1981) in which is settled contradictory decisions amongst the appellate courts concerning the validity of just such appeals. One of the consolidated cases was from this court, Scales v. State of Louisiana, et al., 391 So.2d 871 (La.App. 4th Cir. 1980), which was affirmed. That decision has decisively settled the issue here, and we hold that this appeal is valid.

Accordingly, the motion to dismiss is denied.

MOTION DENIED.


text:
    Anthony J. FERRARA v. Abdul KHAN.
    No. 12617.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.
    Shushan, Meyer, Jackson, McPherson & Herzog, Bradley M. Smolkin, New Orleans, for plaintiff-appellee.
    John M. Holahan, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

Plaintiff, Anthony J. Ferrara, seeks dismissal by this court of a suspensive appeal taken by the defendant, Abdul Khan, on a district court decision rendered in favor of the plaintiff. The trial court, on a Rule to Evict Occupant, ordered the defendant to vacate the premises which are the subject of this suit and to deliver possession thereof to the plaintiff.

Plaintiff does not argue the defendant’s application for appeal or the filing of the appeal bond was not timely. He contends, however, that the defendant failed to plead an affirmative defense which would entitle him to a suspension of the execution of the judgment in order to retain possession of the premises.

LSA-C.C.P. art. 4735 states:

“An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.”

It has also been held that LSA-C.C.P. art. 4735 requires that an affirmative defense pleaded in an answer must be supported by the defendant's oath that all the facts contained in his answer are true. Sarpy v. de la Houssaye, 217 So.2d 783 (La.App. 4th Cir. 1969). Additionally, the sworn testimony of the defendant, under oath on the trial of the rule, attesting to such an affirmative defense, has been held not to, alone, satisfy this requirement of LSA-C. C.P. art. 4735. Sarpy v. de la Houssaye, supra.

In the present case, however, as noted by the defendant in opposition to the plaintiff’s motion, the record of the suspensive appeal taken has not yet been filed with this court, rendering it impossible to determine whether the defendant has met the requirement of LSA-C.A.P. art. 4735 by sufficiently pleading an affirmative defense. For this reason the motion to dismiss the defendant’s suspensive appeal must be denied on grounds of prematurity.

MOTION DENIED.


author: HAWKINS, Justice,

text:
    ROBERT E. RATLIFF COMPANY, INC., v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 52789.
    Supreme Court of Mississippi.
    July 22, 1981.

      A. E. (Gene) Harlow, Grenada, for appellant.
    Mitchell M. Lundy, Grenada, for appellee.
    Before SMITH, BOWLING and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

This case is on appeal from the Chancery Court of Grenada County in which the court dismissed with prejudice a bill of complaint filed by appellant Robert E. Ratliff Company, Inc., against the appellee Mississippi State Highway Commission to remove a cloud upon the title to a strip of realty allegedly owned by appellant, and for in-junctive relief as well. We affirm.

The realty in dispute is a strip of realty forming a part of the right-of-way of Mississippi State Highway Number Eight, and is 25 feet wide north and south and 350 feet long east and west.

On March 9, 1939, T. J. Hallam, a single man, executed a warranty deed unto the State Highway Commission of Mississippi, duly recorded on March 21,1939 in the land deed records of Grenada County, to the following described real property in that county:

A strip of land varying in width, extending through, over, on and across the following described lands in said county and State: the Southeast Vi of the Northeast Vi of Section 17, Township 22 North, Range 5 East and containing 3.7 acres, more or less, and being all the land owned by me/or us within certain limits more particularly described as follows: A strip of land extending 50 feet right and left from the center line, and beginning at Station 68 + 45 and ending at Station 74 + 50 and a strip of land extending 75 feet right and left from the center line, and beginning at Station 74 + 50 and ending at Station 78 + 00 and a strip of land extending 50 feet right and left from the center line, and beginning at Station 78 + 00 and ending at Station 82 + 81 of a proposed highway as now surveyed and shown by the plans for said highway on file in the office of the State Highway Department at Jackson, Mississippi, and known as State Project No. 8 — 1147—B(l) between Grenada and Calhoun City and said plans are hereby specially referred to and made a part hereof by reference.

The area in dispute is the south 25 feet of the right-of-way of Highway Eight beginning at Station 74 + 50 on the west and ending at Station 78 + 00 on the East. The reason for the extended width of the right-of-way between these two stations was the road ran through a lake or low swampland and additional right-of-way was needed for the fill for the highway.

On July 22, 1974, Jessie V. Harper and other grantors conveyed a tract of realty containing approximately 15 acres adjacent to the south right-of-way of Highway Eight to appellant Robert E. Ratliff Company, Inc., a close corporation of which Robert E. Ratliff individually is president, and the description of which included this 25 feet wide strip of realty. If this deed to Robert E. Ratliff Company, Inc., were correct, the right-of-way on the south side of Highway Eight in the disputed area would have been only 50 feet wide as opposed to 75 feet. Also, undisputed testimony indicated the existence of a fence on the south side of this highway since the early 1940’s along what would have constituted a 50 feet right-of-way on the south side, rather than a 75 feet right-of-way on the south side of the highway.

After Mr. Ratliff purchased the realty he began filling in a portion of the area next to the highway and constructed several commercial stores thereon. He asked a Mr. Suggs Ingram, an employee of the highway department who inspected for encroachments, about filling in the realty south of the highway and was told by Mr. Ingram that a Mr. Jim Anderson, permit inspector for the highway department, agreed to the fill. Mr. Anderson denied giving any such authority, and testified such a permit would have violated highway regulations, and even if authorized would have to be in writing.

On August 11, 1978, Mr. T. E. Foshee, district engineer of the highway department, wrote Mr. Ratliff to remove some gasoline pumps which were on the 75 feet right-of-way.

The original bill of complaint to remove the cloud upon title of this corporation was initially filed in the Chancery Court of Grenada County on January 18, 1979, and an amended bill was filed on February 26, 1979. The highway department answered the bill of complaint, and trial was had thereon before the Chancery Court.

The amended bill of complaint alleged that the deed to the State Highway Commission was insufficient to put the complainant on notice of its interest in the right-of-way and that the complainant was an innocent purchaser for valuable consideration. The bill further alleged the disputed area had been abandoned, and the conduct of the highway department estopped it from making any claim to this area.

After hearing the cause, the chancellor found as a fact that the deed to the highway department was a good and valid deed and the description was adequate to put the complainant on notice that the highway commission had an interest in the realty. The court further found as a fact that Mr. Ratliff, president of the complainant corporation, had previously been involved in obtaining highway department permits for connecting with highway rights-of-way, and knew that the permits were in writing. The court further found that the complainant had no valid permit or authorization from the State Highway Department, that the State Highway Department had not abandoned any of its right-of-way and the State Highway Commission could only speak through its minutes. The court found as a fact there had been no estoppel of any kind, or laches on the part of the highway department preventing it from asserting lawful ownership of the property. The court thereupon entered a final decree incorporating the findings of fact and conclusions of law set forth in the opinion, and dismissing with prejudice the bill of complaint filed by the appellant Robert E. Ratliff Company, Inc.

Appellant’s first assignment of error on appeal is the inadequacy of the description to the highway department. In order for a deed to constitute a valid conveyance, it is not necessary that the description of the land be contained in the deed, if it contains sufficient information so that by reference to some document or instrument referred to in the deed, a true and accurate description can be ascertained. See Mixon v. Clevenger, 74 Miss. 67, 20 So. 148 (1896); McManus v. Wilson, 138 Miss. 1, 102 So. 543 (1925); Patterson v. Morgan, 161 Miss. 807, 138 So. 362 (1931); Bridges v. City of Biloxi, 253 Miss. 812, 178 So.2d 683 (1965); 26 C.J.S. Deeds, § 30f and § 101.

Appellant does not seriously contest this well-recognized rule of law. Instead, it maintains the plans and specifications on file with the highway department when the deed was executed did not have marked thereon the 150 feet north and south boundary right-of-way lines between Station 74 + 50 and Station 78 + 00, but this 150 feet north and south right-of-way line was later marked on the plans in green. It was not necessary, however, that the perimeter of this right-of-way between these stations be marked on the plans, because the deed referred to the center line and to stations on the center line, which were marked on the plans. The deed stated it was a strip of land extending 75 feet right and left from the center line beginning at Station 74 + 50 and ending at Station 78 + 00. This clearly established the boundary between these stations being 150 feet in width, and was susceptible of ready measurement and location on the ground.

Appellant also complains of the failure of the department to record the plans in the office of the chancery clerk of Grenada County. Mississippi Code Annotated § 65-1-53 requires the Mississippi State Highway Commission upon final completion of any project involving acquisition of lands to file with the chancery clerk of each county in which the lands are situated a plat or reproduction showing the location of the center line of the project in that county. The highway department obtained this realty prior to the enactment of this act, and the plans referred to on the project for Highway Eight are not recorded in the chancery clerk’s office of Grenada County. This act did not impose a duty on the highway department to record plats of projects completed prior to its enactment. Furthermore, we would not hold that the failure of the highway department to record the information involving plans with the chancery clerk in the county where the project was located, as required by this act, vitiates an otherwise legal and valid conveyance. It might subject the department to liability of some kind to some party damaged by the failure of the department to record such information. Such question, however, is not before the Court on this case.

There is no merit to the contention of appellant the department somehow abandoned a portion of the right-of-way extending beyond 50 feet distance from the center line. While abandonment of a public road or street can be shown by conduct on the part of a public body by non-use of a right-of-way over an extended period, as held in Medina v. State ex rel. Summer, 354 So.2d 779 (Miss.1977), and in Picayune Wood Products Co. v. Alexander Manufacturing Co., 227 Miss. 593, 86 So.2d 480 (1956), such cases involved an entire right-of-way. It would be novel indeed to require courts to oversee an administrative body charged with maintaining public highways and streets and chop off outer portions of a right-of-way simply because of some claim the right-of-way was not being used to its full width. We adhere to the rule set forth in 39A C.J.S. Highways, § 131b, p. 851:

“If a highway is legally laid out and established, the mere fact that the public does not use it to its entire width will not of itself constitute an abandonment of any portion thereof. The rule is the same whether or not the road is fenced by the adjoining landowners. Encroachments on a highway continually used cannot be legalized by mere lapse of time; the limited use will not lessen the right of the public to use the entire width of the road whenever the increased travel and exigencies of the public render this desirable.”

Appellant finally claims the highway department is estopped to dispute this area because an employee of the Mississippi State Highway Department verbally told Mr. Ratliff he could fill in next to the highway. No such verbal statement by an employee of a public body could work an estoppel as against the state, or any other political subdivision. The case of City of Jackson v. Merchants Bank and Trust Co., 112 Miss. 537, 73 So. 573 (1917), cited by appellant is clearly distinguishable from the facts contained in this record and the findings of the learned chancellor.

For the reasons stated, this case is hereby affirmed.

AFFIRMED.

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


author: ROBERTSON, Presiding Justice,

text:
    William R. ROBERTSON, a minor, v. Joan Marie EVANS.
    Misc. No. 1189.
    Supreme Court of Mississippi.
    July 22, 1981.
    Rehearing Denied Sept. 2, 1981.

      Jerry 0. Terry, Greaves, Terry & Sheely, Gulfport, for appellant.
    A. M. Murphy, Lucedale, C. R. McRae, Pascagoula, for appellee.
   ON PETITION FOR APPEAL FROM INTERLOCUTORY DECREE

ROBERTSON, Presiding Justice,

for the Court:

Joan Marie Evans has petitioned this Court for an appeal from an Interlocutory Decree of the Chancery Court of George County overruling her motion to dismiss for lack of jurisdiction, or alternatively, to transfer to the Circuit Court of George County a tort action for damages filed on behalf of William R. Robertson, a minor, by his Guardian. This suit arises out of an intersectional collision between the motorcycle driven by the 14-year-old minor and the automobile driven by Defendant Evans.

Mississippi Constitution Article 3, Section 31 (1890), provides:

“The right of trial by jury shall remain inviolate.. .. ”

In McLean v. Green, 352 So.2d 1312 (Miss.1977), this .Court said:

“The action at bar arises from a tort claim, and we have made it clear previously that courts of equity should not assume jurisdiction over claims for personal injury. Evans v. Progressive Casualty Insurance Company, 300 So.2d 149 (Miss.1974); 30 C.J.S. Equity § 28 (1965). One reason for such a rule is that historically tort claims have been tried by jury.
* * # * * #
Despite the mandate of § 147, we look with disfavor upon and consider it an abuse of discretion for a chancellor to assume jurisdiction of a common law action which properly should be tried in a court of law where the right to trial by jury remains inviolate.” (352 So.2d at 1314).

Unlike McLean v. Green, supra, where a tort action proceeded to judgment in chancery court and the defendant was denied a trial by jury vouchsafed to her by the Mississippi Constitution, this question is raised on the threshold in the case at bar.

In view of this fact, even though we are denying the Petition for Interlocutory Appeal, we are of the opinion that the chancellor should transfer this cause of action to the proper circuit court and thus avoid a clear abuse of discretion on his part in proceeding to try a tort action and thus violate the constitutional provision that “the right of trial by jury shall remain inviolate.” (Emphasis added). (Miss.Const. Art. 3, § 31 (1890)).

PETITION DENIED BUT CAUSE REMANDED WITH DIRECTIONS.

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


author: BOYD, Justice.

text:
    Wayne R. DENEHY and Michael S. Pitoscia, Appellants, v. STATE of Florida, Appellee.
    No. 57448.
    Supreme Court of Florida.
    Oct. 16, 1980.
    Rehearing Denied July 31, 1981.
    William R. Slaughter, II of Slaughter & Slaughter, Live Oak, for appellants.
    Jim Smith, Atty. Gen., and Lee Mandell, Asst. Atty. Gen., Tallahassee, for appellee.
   BOYD, Justice.

This cause is before the Court on appeal from judgments of the Circuit Court of the Third Judicial Circuit, in and for Hamilton County. The court passed upon the constitutionality of section 570.15, Florida Statutes (1977). We have jurisdiction. Art. V, § 3(bXl), Fla.Const.

The appellants were jointly informed against and convicted of the crime of possession of more than one hundred pounds of cannabis with intent to sell, a felony proscribed by section 893.13, Florida Statutes (1977).

On January 16, 1978, Wayne Denehy and Michael Pitoscia, travelling in a pick-up truck with a camper mounted on the bed, passed an agricultural inspection station without stopping for inspection as required by section 570.15(2), Florida Statutes (1977). An inspection officer pursued and stopped them about two miles north of the station. The inspector asked Pitoscia, who was driving, for a look inside the truck. Denehy got out and opened the rear hatch. The officer looked in with a flashlight, seeing a box with a plastic covering. He told the appellants they would have to return to the inspection station, which they did.

At the inspection station, the inspection officer asked if he could further inspect the truck. One of the appellants opened the truck and the inspector stepped up on the bumper and looked under the plastic covering. He saw some burlap-covered bundles and smelled cannabis. The officer arrested Pitoscia for failure to stop for inspection and called a sheriff’s deputy. The deputy sheriff found cannabis in the truck and arrested the appellants for possession.

The appellants moved to dismiss the information and to suppress evidence, contending that they were stopped on the authority of an unconstitutional statute, section 570.15, and that the warrantless search of the truck was unlawful. At the hearing on the motions, the testimony was in conflict on the issue of consent. The judge believed the officer rather than the appellants, and denied the motions.

After the denial of their motions, the appellants entered pleas of nolo contendere to the charge of possession in excess of one hundred pounds, reserving the right to appeal the denial of the motions.

The appellants contend that section 570.15, Florida Statutes (1977), denies equal protection by establishing a classification having no rational basis. We hold that the distinctions drawn by the statute, providing for inspection access to trucks used in agriculture but not to passenger vehicles, and requiring trucks and vehicles pulling trailers to stop for inspection, have a rational basis. Gluesenkamp v. State, 391 So.2d 192 (Fla. 1980).

The appellants contend that the motion to suppress should have been granted because the evidence in question was obtained through an illegal search. After hearing testimony, the trial judge concluded that the appellants consented to the search. The question of whether the consent was voluntary “is a question of fact to be determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 92 S.Ct. 1168, 31 L.Ed.2d 230 (1973). Under ordinary circumstances the voluntariness of the consent to search must be established by preponderance of the evidence. See McDole v. State, 383 So.2d 553 (Fla. 1973). Since there was no evidence of coercion such as prolonged detention or a threat to obtain a search warrant, Seuss v. State, 370 So.2d 1203 (Fla. 1st DCA 1979); Powell v. State, 332 So.2d 105 (Fla. 1st DCA 1976), or repeated requests for consent, Gonterman v. State, 358 So.2d 595 (Fla. 1st DCA 1978); Sarga v. State, 322 So.2d 592 (Fla. 1st DCA 1975), the trial judge under the applicable standard of proof, could properly conclude from the officer’s testimony that the appellants voluntarily consented to the search of the truck. Dennis v. State, 373 So.2d 47 (Fla. 1st DCA 1979).

We therefore affirm the judgments of the circuit court.

It is so ordered.

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


author: PER CURIAM.

text:
    Raymond Lee DRAKE, Appellant, v. STATE of Florida, Appellee.
    No. 54850.
    Supreme Court of Florida.
    May 21, 1981.
    Rehearing Denied July 31, 1981.

      Jack O. Johnson, Public Defender and Paul C. Helm, Asst. Public Defender, Bar-tow and Bruce S. Rogow, Fort Lauderdale, of Pearson, Josefsberg & Tarre, Miami, for appellant.
    Jim Smith, Atty. Gen. and James S. Pur-dy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Drake appeals his conviction of first-degree murder and sentence of death. We have jurisdiction and reverse his conviction.

Drake was charged with the murder of Odette Reeder. Late in November 1977, Drake and Reeder met by chance at a lounge in Pinellas Park. After several drinks, they left the bar together. Reeder indicated to friends that she would return shortly; her friends thought she was going outside with Drake to smoke marijuana. Neither Reeder nor Drake returned to the lounge, and none of her friends ever saw Reeder alive again.

Some six weeks later, Reeder’s body was discovered in a wooded area in Oldsmar. The body was found lying on its back with a skirt covering the face and neck, a blouse beneath the body, and the hands tied behind the back with a bra. Although badly decomposed, the body exhibited eight stab wounds in the lower chest and upper abdomen. The medical examiner opined that these wounds caused Reeder’s death, but she could not rule out other possibilities. The State theorized that Reeder was raped but this could not be confirmed by medical opinion because of the decomposition of the lower part of the body.

Part of the State’s proof against Drake was evidence that on two prior occasions he had sexually assaulted two different women and had, during the course of those assaults, bound his victims’ hands behind their backs.

The first incident occurred twenty months before Reeder’s death. Drake had met K.T. at a lounge and offered her morphine. Thereupon they drove to Drake’s apartment where he injected K.T. with the drug and then demanded payment. When she said she would pay him later, Drake stripped off her clothes, bound her hands behind her back, and violated her both vaginally and anally with a broomstick and a bottle. Then, “to give [her] a good rush,” Drake choked her until she passed out. When she regained consciousness he choked her again, but this time K.T. only pretended to faint. Drake would not let her leave, and she had to make her escape as Drake slept.

The second incident occurred just two months before the Reeder homicide. On this occasion a girl that Drake had been dating, one P.B., and Drake’s male roommate returned to Drake’s apartment after spending the evening drinking. After a while P.B. undressed and went into the bathroom. When she returned to the bedroom, Drake was alone in the room where his roommate had been. Angry at the thought that she had engaged in sexual activity with his roommate, Drake threw P.B. on the bed, tied her hands behind her, struck her several times in the abdomen, and eventually attempted intercourse.

Williams v. State holds that evidence of similar facts is admissible for any purpose if relevant to any material issue, other than propensity or bad character, even though such evidence points to the commission of another crime. The material issue to be resolved by the similar facts evidence in the present case is identity, which the State sought to prove by showing Drake’s mode of operating.

The mode of operating theory of proving identity is based on both the similarity of and the unusual nature of the factual situations being compared. A mere general similarity will not render the similar facts legally relevant to show identity. There must be identifiable points of similarity which pervade the compared factual situations. Given sufficient similarity, in order for the similar facts to be relevant the points of similarity must have some special character or be so unusual as to point to the defendant. The only similarity between the two incidents introduced at trial and Reeder’s murder is the tying of the hands behind the victims’ backs and that both had left a bar with the defendant. There are many dissimilarities, not the least of which is that the collateral incidents involved only sexual assaults while the instant case involved murder with little, if any, evidence of sexual abuse. Even assuming some similarity, the similar facts offered would still fail the unusual branch of the test. Binding of the hands occurs in many crimes involving many different criminal defendants. This binding is not sufficiently unusual to point to the defendant in this case, and it is, therefore, irrelevant to prove identity.

As an alternate ground for admission of the P.B. incident, the State argues that incident relevant to prove motive for the murder, that Drake raped Reeder and then killed her to avoid revocation of his parole. Under the State’s theory, a similar fear caused Drake’s failure to complete his sexual attack on P.B., and the P.B. incident would demonstrate that Drake had a pervasive fear of revocation. This argument is not persuasive, especially in light of the fact that there is no evidence that his reason for stopping the attack on P.B. was such a fear. No other basis for relevancy has been offered to this Court, nor can we fathom any basis ourselves. Purely and simply, the similar facts evidence in this case tends to prove only two things — propensity and bad character.

Having considered the collateral facts testimony and its potential impact on any jury hearing the details of Drake’s prior acts, we find that the erroneous admission of this similar facts evidence requires reversal of Drake’s murder conviction. We do not accept appellant’s contention, however, that, absent the similar facts evidence, there is insufficient evidence to sustain a conviction of murder. We must therefore order a new trial.

Drake contends there were other errors. Since we are reversing his conviction we decline to address those arguments except to note that there appears to be a technical violation of the Miranda rule when Drake’s statements to Detective Pondakos were admitted.

We reverse Drake’s first-degree murder conviction and remand the cause for a new trial.

It is so ordered.

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

ADKINS, J., dissents.

      . Art. V, § 3(b)(1), Fla.Const.

      . 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).

      . This Court heard oral argument on a case involving a similar binding of the hands on the very morning it heard Drake’s case.

      .At the time Drake was on parole for the sexual battery of K.T.


text:
    THE FLORIDA BAR, Complainant, v. Benny R. S. HARRIS, Respondent.
    No. 59184.
    Supreme Court of Florida.
    July 9, 1981.
    David G. McGunegle, Branch Staff Counsel, Orlando, and John A. Boggs, Asst. Staff Counsel, Tallahassee, for complainant.
    E. G. Musleh, Ocala, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Benny R. S. Harris, is before us on a petition for review of the report of the referee. The referee’s report and record have been filed with this Court pursuant to Fla.Bar Integr.Rule, article XI, Rule 11.06(9)(b). We have jurisdiction. Art. V, § 15, Fla.Const.

The referee’s findings of fact are as follows:

A. (05A79C0S)
1. Respondent was a member of The Florida Bar at the time pertinent to the matters alleged in the Complaint filed in this proceeding.
2. Respondent maintained two trust accounts (one in Gainesville and one in Ocala, Florida) from November, 1977 until some time in 1979. During that period of time he wrote checks on said trust accounts when there were insufficient funds in the account or accounts to cover the amount of the checks. Respondent, according to a Bar Audit conducted January, 1980, overdrew the Ocala trust account 51 times. The trust account records were not kept in accordance with appropriate rules governing trust accounts, and trust funds belong to clients were co-mingled with other clients’ funds and with personal funds of Respondent.
3. Respondent executed FY 1978 and 1978 “Dues Statement” indicating he had read the appropriate rules governing trust accounts and that he was in substantial compliance. Such statement was false according to his admissions and the audit and the auditor’s testimony (the auditor’s testimony is contained in the recorded transcript of the Grievance Committee Hearing which was admitted into evidence by stipulation of counsel).
B. (05A79C15)
1. Respondent collected $4,000 settlement for his client, Boyle. He deposited it in his trust account on October 12, 1978.
2. After deducting his fee, Respondent issued a postdated check to his client for her portion of the settlement.
3. At the time the check was issued, there were insufficient funds and there were insufficient funds to cover the postdated check the following day, October 13, 1978, the date on the check.
4. The client did receive funds equal to the amount of the check by a cashier’s cheek delivered to her after her complaint concurring [sic] the insufficient funds. However, said sum was not obtained from the trust funds that were initially placed there the 12th day of October, 1978.
C. (05A79C17)
1. Respondent collected a workmen’s compensation settlement for his client, McBride, and he signed the client’s name and his name on the draft.
2. The amount collected for the client was $3,000, which Respondent failed to process through his trust account.
3. Respondent paid some of the clients’ funds to his client, in cash, and the client claims Respondent still owes him a disputed amount.
4. Respondent claims he had paid his client, in cash, “in full”, but he submitted no proof of such to the Referee. In fact, Respondent agreed to pay the amount claimed by his client in the very near future.
D. (05A79C24)
1.Respondent collected a $5,000 settlement for his client, Jones. $3,000 of the total was due the client.
2. The money was collected by Respondent in February, 1979.
3. Respondent paid $1,000 of the $3,000 due his client, but failed to pay the client the additional $2,000 until after the Grievance Committee Hearing held April 26,1979. There was no evidence that any of such sums were paid into or out of any trust account of Respondent.
E. (05A79C30)
1. Respondent collected $5,750 in a settlement for his client, Hefflin, in the early part of 1979.
2. The client’s share of the proceeds was $3,045.90.
3. Respondent failed to pay his client her share. He failed to place it in a trust account or the registry of the court, but used the funds for his personal benefit.
F. (05A80C01)
1. Respondent received $27,427 due his client, Patterson, which represented her portion of her father’s estate.
2. Respondent opened a new trust account and deposited the above funds in it on April 26, 1979.
3. Respondent never paid the client any of those funds, but converted the funds to his own use.
4. By May 1,1979, the total amount of funds in the above trust account was $5,299.02. The account continued to decline, and by August, 1979, the account was closed.
5. After several requests by the client for her money, Respondent consulted with his client and acknowledged that he was indebted to her for the funds. He gave his client two postdated checks and admitted the funds were not available at the time the checks were given.
6. An attempt by Respondent’s client to cash her checks was without benefit to her because of insufficient funds.
7. Respondent used the entire $27,427 for his own benefit and without the consent of his client.

The referee then recommended that respondent be found guilty of each count of the complaints. He then recommended that respondent be suspended from the practice of law for thirty-six months and continuously thereafter until he has made satisfactory restitution, paid all costs of this proceeding, and until he demonstrates to the Board of Governors of The Florida Bar and to the Supreme Court of Florida that he is entitled to be reinstated in the practice of law by successfully passing the bar examination subsequent to his thirty-six month suspension.

It is evident from the findings of the referee that respondent has engaged in a continuing and irresponsible pattern of conversion of clients’ trust funds to his own use, failure to account for clients’ trust funds and failure to maintain trust records. Respondent’s actions demonstrate an attitude wholly inconsistent with the high professional standards of the legal profession. We feel that under these circumstances, the penalty of disbarment is more appropriate than the suspension recommended by the referee.

We discussed the purposes of discipline in The Florida Bar v. Pahules, 233 So.2d 130, 132 (Fla.1970):

[T]hree purposes [of discipline] must be kept in mind in reaching our conclusions. First, the judgment must be fair to society, both in terms of protecting the public from unethical conduct and at the same time not denying the public the services of a qualified lawyer as a result of undue harshness in imposing penalty. Second, the judgment must be fair to the respondent, being sufficient to punish a breach of ethics and at the same time encourage reformation and rehabilitation. Third, the judgment must be severe enough to deter others who might be prone or tempted to become involved in like violations.

We feel that in this situation the purposes of discipline, as set forth in Pahules will be met by disbarment.

Other cases similar to the case at bar include The Florida Bar v. Bassett, 369 So.2d 583 (Fla.1979) (disbarment warranted in view of seven separate probable cause .cases involving allegations of blatant misuse of clients’ trust funds); The Florida Bar v. Duffy, 369 So.2d 344 (Fla.1979) (misappropriation of trust funds warranted disbarment); and The Florida Bar v. Mattingly, 342 So.2d 508 (Fla.1977) (improper transfers from client’s trust account, resulting in shortages, warranted disbarment). Considering these similar cases and considering our pronouncement in The Florida Bar v. Breed, 378 So.2d 783 (Fla.1979), that we would not be reluctant to disbar an attorney for commingling, misuse, and misappropriation of clients’ funds, it is the order of this Court that this disbarment be effective thirty days after the filing of this order, thereby giving respondent thirty days to close out his practice and take the necessary steps to protect his clients. It is further ordered that respondent shall not accept any new business, and that all costs of these proceedings be charged to the respondent in the amount of $1,636.40.

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