author: BOWLING, Justice,

text:
    Richard E. MOONEYHAM v. June Chandler MOONEYHAM.
    No. 53845.
    Supreme Court of Mississippi.
    Oct. 27, 1982.
    Billy R. Gibson, Bay St. Louis, for appellant.
    Lawrence E. Chandler, Calhoun City, for appellee.
    Before SUGG, P.J., and BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant and appellee were divorced by a decree of the Chancery Court of Calhoun County dated August 20, 1977. Under the terms of the decree, appellee was awarded the custody of the minor child of the parties subject to visitation by appellant. The decree further ordered that appellant pay to appellee the sum of $150 per month toward the support of the minor child. These payments were made regularly and promptly by appellant to the Chancery Clerk of Calhoun County until November 1979, at which time they were reduced to $15.30 per month. The admitted reason for this reduction was that appellee had begun receiving directly from the Social Security Administration the sum of $135.70 per month, representing the minor child’s social security payments under the prior earnings of appellant.

It is admitted that appellant prior to the divorce was totally disabled. At the time of the divorce appellant was receiving $77 per month as social security payments to the minor child. In 1979 appellee filed for and began receiving the minor child’s social security payments rather than being mailed to appellant as previously had been done. When these payments started coming directly to appellee each monthly check was in the sum of $135.70. The appellant, without securing a court order, reduced the payments to the difference between the social security payments and the monthly payments ordered by the court in the divorce decree.

At the time of the hearing of this cause on August 13, 1981, the minor child’s social security payments had been increased to the monthly sum of $220 and were still being paid directly to appellee for the child’s support.

In its decree in this cause, the chancellor found that appellant was not relieved from a personal payment of $150 each month, even though from the time of the original divorce decree, the child was receiving support payments from the Social Security Administration, as set out above. As stated, the social security payments were a direct result of the earnings and payments to the Social Security Administration through appellant’s employment prior to his total disability.

The chancellor in his decree ordered that appellant pay to appellee the sum of $3,532.80 representing a net of $150 per month from the date of the original divorce decree until the decree appealed here.

The chancellor further ordered that the child support payments be increased to the sum of $220 per month, which was the amount of the monthly social security support payments at the time of the hearing and also ordered that any further increase in these payments be regarded as child support payments on behalf of appellant.

The questions involved in the appeal here are: (1) whether or not the chancellor was correct in rendering a decree against appellant for the lump sum back payments of $150 per month, and (2) whether or not the chancellor was correct in holding without a petition thereon to increase the child support payments to the monthly social security payments and substituting those payments for any funds required to be paid by appellant. The chancellor also held that the child support payments would be increased as the social security payments were increased.

In deference to the chancellor, the questions presented in the cause were not properly briefed by either party. Sometimes, it is necessary for this Court to brief an appeal after it is presented to this Court. This occurred here. No cases or authorities in point were presented either to the chancellor or this Court.

We find that the questions involved in this appeal have not been previously presented to this Court and there are no Mississippi authorities. We do find, however, that the question has been presented in other states. They appear to be unanimous in holding that the social security payments to the minor under the facts related above should be credited on the amount of support ordered by the court. As stated, at the time of the original decree, appellant was receiving the sum of $77 each month. He paid the required $150 per month support payments to appellee regularly. After appellee applied for and began receiving the check direct, appellant’s obligation was to see that appellee secured the total amount ordered by the lower court in the original divorce decree. In the case of Mask v. Mask, 95 N.M. 229, 620 P.2d 883 (1980), the Supreme Court of New Mexico in authorizing the social security payments to be credited against the court’s order stated:

Plaintiff argues that allowing the defendant credit toward his support obligation for the social security payments is a modification of a vested and accrued obligation. Generally a court cannot retroactively modify a support order that has accrued and become vested. Gomez v. Gomez, 92 N.M. 310, 587 P.2d 963 (1978). However, proceeding and so equitable principles are applicable. Corliss v. Corliss, 89 N.M. 235, 549 P.2d 1070 (1976). Also, in a proceeding for the enforcement of a support order, any valid defense against payment may be raised. Headley v. Headley, 277 Ala. 464, 172 So.2d 29 (1964), including the defense of payment from some other source, Binns v. Maddox, 57 Ala.App. 230, 327 So.2d 726 (1976).
We affirm the trial court in holding that the defendant may receive a credit against his support obligation, but only up to the amount of that obligation ($50.00), for each month after the child began receiving the benefits. It would be inequitable to rule otherwise, as stated in Andler v. Andler, 217 Kan. 538, 538 P.2d 649, 654 (1975):
[W]here the father who has been ordered to make child support payments becomes totally and permanently disabled, and unconditional Social Security payments for the benefit of the minor children are paid to the divorced mother, the father is entitled to credit for such payments by the government against his liability for child support under the divorce decree. The father is entitled to credit, however, only up to the extent of his obligation for monthly payments of child support, but not exceeding it.

The Alabama Court of Civil Appeals in Binns v. Maddox, 57 Ala.App. 230, 327 So.2d 726 (1976), said as follows:

An order of support is for the benefit of the children, even though directed paid to the mother or other custodian. If the sum directed to be paid by the father is paid by the government through social security benefits derived from the account of the father, the purpose of the order has been accomplished. The father is entitled to be credited with such payments against his liability under the decree.
In Horton v. Horton, 219 Ga. 177, 132 S.E.2d 200, the Supreme Court of Georgia said as follows:
“Social Security disability payments represent money which an employee has earned during his employment and also that which his employer has paid for his benefit into a common trust fund under the Social Security Act. 42 U.S.C. § 301, et seq. These payments are for the purpose of replacing income lost because of the employee’s inability to work upon becoming disabled. Thus, these payments substitute for income. Since the amount of alimony required to be paid is determined largely by income, we see no reason why, in discharging the obligation to pay the alimony, Social Security disability benefits should not be credited.”
Other cases reaching the same conclusion are Cash v. Cash, 234 Ark. 603, 353 S.W.2d 348; Kipping v. Kipping, 186 Tenn. 247, 209 S.W.2d 27; Hopwood v. Hopwood, 169 Neb. 760, 100 N.W.2d 833; Cohen v. Murphy, 368 Mass. 144, 330 N.E.2d 473; Andler v. Andler, 217 Kan. 538, 538 P.2d 649. We are in agreement with the above authorities. The rule expresses the intent of Headley v. Headley, supra, and is not contrary to the law of this state that decrees for alimony and support may not be modified retrospectively. Armstrong v. Green, supra.

We, therefore, see that at least eight jurisdictions have reached the same conclusion. In our opinion the reasoning of those jurisdictions is proper and we follow those recommendations. We, therefore, are of the opinion that the lower court was in error in rendering the lump sum decree against appellant. The cause should be reversed as to that action.

As to the second point raised, we find that the lower court was fully authorized as a court of equity to decree that the monthly social security check of $220 be continued as child support payments received by appellee through the work product of appellant. Also, we see nothing objectionable to holding that any increase in the monthly social security disability payments would automatically increase the application of those payments toward child support. This does not prevent either party on a proper change of circumstances, to petition the court for further orders.

We, therefore, reverse the order of the final decree granting appellee a lump sum money decree against appellant and render here by holding that this part of the decree is void. All other orders of the lower court in the decree are affirmed.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

PATTERSON, C.J., SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge. LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    John GRAFFEO v. STATE.
    7 Div. 845.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.
    On Return to Remand Oct. 12, 1982.
    Lister Hill Proctor of Proctor & Vaughn, Sylacauga, for appellant.
    Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted, on a plea of guilty in Circuit Court Case No. 80-421 to an indictment charging him with the sale óf marijuana, and sentenced to imprisonment for seven years; in Circuit Court No. 80-423 he was convicted on a plea of guilty to an indictment charging possession of marijuana and sentenced to imprisonment in.the penitentiary for a term of seven years. His appeals in the cases have been consolidated.

On arraignment in each case, defendant pleaded not guilty, but when each case came on for trial on February 16, 1981, the defendant, accompanied by his retained counsel, asked leave to withdraw his plea of not guilty and enter a plea of guilty. Appellant contends that, as to each case, the action of the court did not meet the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Our review of the lengthy colloquy among the court, defendant and his counsel convinces us that the requirements of Boykin were met, the acceptance of defendant’s plea of guilty was proper, and that there was no error by the trial court in the rendition of its judgment of conviction in Circuit Court Case No. 80-421.

Immediately after the hearing on whether to accept the plea of guilty in Circuit Court Case No. 80-421, the court commenced a lengthy colloquy as to Circuit Court Case No. 80-423, which also in general met the requirements of Boykin, but in one particular it did not, as shown by the transcript as follows:

“THE COURT: All right. Do you further understand that the State must prove you guilty beyond a reasonable doubt and to a moral certainty?
“THE DEFENDANT: Yes, sir.
“THE COURT: And the State also must prove beyond a reasonable doubt and to a moral certainty the essential elements of the crime in which you are charged in the indictment. The State must prove, one, that you did unlawfully sell, furnish, or give away, two, a controlled substance, to-wit, marijuana, three, to Gabe McCray. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Sir, what if anything did you do that makes you say you are guilty of this offense?
“THE DEFENDANT: They said I sold it.
“THE COURT: You said you sold it?
“THE DEFENDANT: They said I did.
“THE COURT: Would you repeat the answer?
“THE DEFENDANT: I said they did. (sic)
“THE COURT: That you did sell, furnish, or give away marijuana?
“THE DEFENDANT: Yes, sir.”

It is to be readily seen that the trial court was treating Case No. 80-423 as charging the same as charged in Case No. 80-421, a sale of marijuana, or the legal equivalent, which is not charged in Case No. 80-423. Neither the record proper nor the transcript clarifies the mistake in such a way as to conclude therefrom that defendant’s plea of guilty in Case No. 80-423 was voluntarily, knowingly and understandingly made to the charge contained in the indictment.

A presentence investigation and report were requested by defendant in each case, and the cases were continued to March 23, 1981, for sentence hearing and a determination of defendant’s application for probation. On March 23, 1981, a sentence hearing was conducted, which resulted in the sentence of seven years in each case and a denial of defendant’s application for probation. The transcript shows that a presen-tence report of investigation had been submitted, but the transcript does not contain the report and contains very little reference to it. About the only reference to it is to be found in the argument of defendant’s counsel as follows:

“MR. LYON: Your Honor, we would just like to emphasize some of the points in the report, if we may.
“THE COURT: Yes, certainly.
“MR. LYON: Okay. Your Honor, we would emphasize the reputation and community attitude toward Mr. Graffeo that almost everyone contacted said that they are surprised at the charges and that they considered the Graffeos decent people — never wrong-doing anyone else and the people of the community recommend probation for them — for him and the analysis of the report states that there were two positive aspects toward recommending probation.
“There is no previous record for Mr. Graffeo and he has a good reputation in the community and Mr. Graffeo pled guilty to possession of a small amount of marijuana and also the sale, I believe, of two ten cent bags, also a small amount of marijuana.
“Mr. Graffeo has had three heart attacks, is in very poor health. As you can see, he is elderly and I will submit to Your Hon- or that there will be no social benefit to deny probation on his application and that is it.”

By reason of what has been stated above relative to the hearing on defendant’s plea of guilty in Case No. 80-423, the judgment therein should be reversed and the cause remanded.

As to Case No. 80-421, in which there was compliance with the requirements of Boykin v. Alabama, supra, the judgment of conviction should be affirmed. However, it appears that, as to both cases, the court was considering that defendant was pleading guilty to two separate cases of selling marijuana and that the term of the sentence in each case, as well as the determination of the application for probation, was probably influenced thereby. Case No. 80-421 should be remanded with directions that the court conduct another sentence hearing in accordance with Alabama Rules of Criminal Procedure — Temporary Rules, effective February 23, 1980, and that the parties be given due notice of the time thereof. The trial court shall make due return to the order of remandment, with notice thereof to each of the parties. Either party aggrieved thereby will have fifteen days thereafter in which to file a brief to this court and the opposing party will have fifteen days within which to file a reply brief.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the court. The judgment of conviction in Case No. 80-421 is hereby affirmed and the case is remanded with directions for another sentence hearing. The judgment in Case No. 80-423 is hereby reversed and the case remanded.

AFFIRMED BUT REMANDED WITH DIRECTIONS FOR ANOTHER SENTENCE HEARING IN ONE OF TWO CASES; REVERSED AND REMANDED IN THE OTHER CASE.

All the Judges concur.

ON RETURN TO REMAND

LEIGH M. CLARK, Retired Circuit Judge.

A comprehensive return to remand was filed in this Court on July 29,1982. By his brief filed well within the time directed, appellant asserts that the trial court “did not conduct the sentence hearing in accordance with the prior orders of the Court of Criminal Appeals” in that it was not conducted in accordance with “Alabama Rules of Criminal Procedure-Temporary Rules.” He relies on Rule 3(a)(2) in providing “... on written motion of either party, the Court shall require a written report of a presen-tence investigation of a defendant convicted of a felony and such defendant shall not be sentenced before such report has been presented to and considered by the Court,” and upon Rule 3(c), which provides, “Copies of the presentence report shall be furnished to the district attorney and attorney for the defendant prior to the sentence hearing.”

The sentence hearing was conducted on July 1, 1982, after due notice had been given to defendant and counsel for the respective parties, who were all present. Testifying on call of the defendant were the defendant and Mrs. Judith C. O’Connor, a parole and probation officer assigned to Shelby County, who at the previous sentencing hearing in the instant case had submitted a “pre-sentence investigation report,” dated March 19,1981, to which reference was made in our opinion on original submission. She testified that since the date of that report, Mr. Graffeo and his wife had moved their residence from Shelby County to Jefferson County, and that she in her capacity as a probation officer in Shelby County had called upon a probation officer in Jefferson County for an “updated” report on the defendant. Correspondence between Mrs. O’Connor and a Jefferson County. parole and probation officer, to which was attached a letter dated June 30, 1982, from a psychiatrist of the University of Alabama in Birmingham relative to defendant was introduced in evidence by defendant.

The defendant testified at length on the hearing as to his physical, emotional and mental condition.

Although it appears from the transcript that defendant’s attorney did not receive a copy of the “updated” report until a short time after the sentence hearing commenced and he had not until then been shown again the original presentence report presented at the time of the previous sentencing hearing, there is nothing in the transcript to indicate that defendant was prejudiced in any way by his attorney’s not being furnished, before the commencement of the sentencing hearing now under consideration, a copy of either the original report or the “updated” report. He had the original and the “updated” report before him well before the conclusion of the hearing. We note that there was no motion or request by defendant that the hearing be delayed or continued by reason of failure of the State or any of its representatives to furnish defendant’s attorney with a copy of the original or “updated” report prior to the commencement of the hearing. The action of the trial court now complained of by appellant did not constitute error prejudicial to him. The judgment of sentence in the particular case now under consideration, Circuit Court Case No. 80-421, should now be affirmed, as was the judgment of conviction as shown by our previous opinion herein.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Thomas A. LARKIN, Respondent.
    No. 61088.
    Supreme Court of Florida.
    Aug. 26, 1982.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel and John A. Weiss, Bar Counsel, Tallahassee, of The Florida Bar, for complainant.
    Thomas A. Larkin, in pro. per.
   PER CURIAM.

This disciplinary proceeding is before us on the complaint of The Florida Bar and the report of the referee recommending that respondent, Thomas A. Larkin, be found guilty of professional misconduct occurring as a direct result of his alcoholism and that he be suspended from the practice of law for three years. The respondent petitions for review of that report, admitting that he is an alcoholic, but asserting that the recommended punishment is too severe because he now has his alcoholism under control. We have jurisdiction. Art. V, § 15, Fla.Const.

The referee’s findings and conclusions, in summary, are as follows:

1. that respondent be found guilty of engaging in conduct prejudicial to the administration of justice and reflecting his unfitness to practice law, in violation of Florida Bar Code of Professional Responsibility D.R.. 1-102(A)(5) and (6), because he failed to appear for the continuation of his clients’ trial without the prior permission of the trial judge, because he failed to request permission to be absent or to request a continuance of the trial, and because he neglected to submit, at the trial judge’s request, evidence to support his excuses for the absence;
2. that respondent be found guilty of neglecting a legal matter entrusted to him and for failing to carry out a contract of employment entered into with a client, in violation of Florida Bar Code of Professional Responsibility D.R.6-101(A)(3) and 7-101(A)(2), because, after receiving seven hundred dollars in payment for his services, he failed to take any significant action to secure his client’s release from prison and failed to communicate with either his client or his client’s family;
3. that respondent be found guilty of gross neglect of a legal matter entrusted to him and for failure to carry out a contract of employment entered into with a client, in violation of Florida Code of Professional Responsibility D.R. 6-101(A)(3) and 7-101(A)(2), because, after being retained to secure the restoration of his client’s civil rights and being paid three thousand dollars of a five thousand dollar fee, respondent failed to file the required application, which had been completed by the client, with the Clemency Board and failed to contact his client, in any fashion, to advise him that the application had been lost or that a replacement form was needed.

In the context of making these findings of misconduct, the referee also expressly found that respondent suffers from abuse of alcohol:

By his own admission Thomas A. Lar-kin suffers from the abuse of alcohol and such condition has existed for some length of time. His physical appearance before this Referee was such that I concluded that Larkin suffered such condition before he admitted it. His actions, his speech, his conduct and personal bearing all at the hearing were most respectful, but they all clearly demonstrated that-his ability and faculties are impaired as a result of long abuse of alcohol. He was completely sober at the hearing, but a reading of his questions, comments and testimony at the hearing clearly demonstrate his loss of faculties. His conduct as evidenced by the facts in these three separate counts of the Complaint are [also] consistent with those of one who suffers from the abuse of alcohol.

The referee has recommended that respondent be suspended as a member of The Florida Bar for three years and that his reinstatement be conditioned upon proof that he receive professional treatment for his alcohol abuse which results in his having full control of the problem, that he no longer presents a risk to the public as a practicing attorney, that he is fit and able to practice law, and that he has made restitution, in full, of the fees paid by the two clients whose legal business he neglected. The referee also noted that, in 1979, respondent was found guilty by the Court of similar misconduct and was publicly reprimanded and placed on probation for one year. The Florida Bar v. Larkin, 370 So.2d 371 (Fla.1979).

Business and professional groups, including The Florida Bar, have only recently openly acknowledged and addressed the problem of the alcoholic businessman and professional. This problem must be directly confronted; a practicing attorney who is an alcoholic can be a substantial danger to the public and the judicial system as a whole. Too often, attorneys will recognize that a colleague suffers from alcohol abuse, but will ignore the problem because they do not want to hurt the individual or his or her family. This attitude can have disastrous results both for the public and for the individual attorney. If alcoholism is dealt with properly, not only will an attorney’s clients and the public be protected, but the attorney may be able to be restored as a fully contributing member of the legal profession. This Court has responsibility to assure that the public is fully protected from attorney misconduct. In those cases where alcoholism is the underlying cause of professional misconduct and the individual attorney is willing to cooperate in seeking alcoholism rehabilitation, we should take these circumstances into account in determining the appropriate discipline.

After careful examination of the record and of the referee’s report, we approve the referee’s recommendations that respondent be found guilty of the three counts of professional misconduct. We modify the recommended discipline to a suspension for ninety-one days and until such time as respondent establishes rehabilitation. We believe that this penalty is severe enough to protect society and to deter others from engaging in unethical conduct, while, at the same time, encouraging the respondent to seek rehabilitation. It is clear from the facts of this case, as perceptively found by the referee, that Mr. Larkin’s professional misconduct stems totally from the effects of alcohol abuse.

We, therefore, order that respondent, Thomas A. Larkin, be suspended from the practice of law for ninety-one days, effective from the date this order is filed, and until such time as he establishes rehabilitation. In addition, any reinstatement application submitted by respondent must expressly show that he has: (1) established full control over his alcohol abuse; and (2) provided full restitution of the $3,700, plus interest, in fees collected from his clients, as detailed in the referee’s report. Should Mr. Larkin meet reinstatement standards, any reinstatement must be conditioned on supervised probation for two years. Costs are taxed against respondent in the amount of $2,691.45.

It is so ordered.

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


author: OVERTON, Justice.

text:
    Robert HOLDEN, Petitioner, v. ESTATE OF Mary Lee GARDNER, a/k/a Mary Lee Holden, Respondent.
    No. 61397.
    Supreme Court of Florida.
    Aug. 26, 1982.
    Rehearing Denied Nov. 16, 1982.

      James H. Earp, Jacksonville, for petitioner.
    Harry Katz, Jr. of Katz & Katz, Jacksonville, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the First District Court of Appeal reported as Holden v. Estate of Gardner, 404 So.2d 1169 (Fla. 1st DCA 1981), concerning a homestead claim by a surviving husband against his wife’s estate. The district court of appeal found that no homestead existed because the wife was not the head of the household and certified the following question to be one of great public importance:

Whether the prohibition against the devise of homestead property contained in Article X, Section 4(c) of the Florida Constitution applies only to situations where the deceased owner, who is survived by a spouse, is the head of the family?

We have jurisdiction under article V, section 3(b)(4), Florida Constitution, and answer the question in the affirmative.

The facts are undisputed. Robert Holden and his wife, Mary Lee Gardner Holden, resided on real property owned solely by Mary until her death in October, 1979. It was stipulated that the husband, the petitioner here, was the head of the family. In her will Mary devised her real property, including the marital home, to her sister. The husband brought this action against his wife’s estate, asserting that the marital home constituted “homestead property” and that the devise of the home was void under article X, section 4(c); Florida Constitution.

The trial court rejected the husband’s claim that the residence was homestead property. On appeal, the district court, in a well-reasoned opinion, affirmed, holding that because the wife was not head of the family, the marital residence was not homestead property within the meaning of article X, section 4(c), and therefore could be devised without restriction.

The petitioner recognizes that the availability of homestead status is traditionally limited to property owned by the head of the family. In determining whether a person is the head of a family, Florida courts have long used a test which requires a showing of either: (1) a legal duty to support which arises out of a family relationship, or (2) continuing communal living by at least two individuals under such circumstances that one is regarded as in charge. Killian v. Lawson, 387 So.2d 960 (Fla.1980); Solomon v. Davis, 100 So.2d 177 (Fla.1958); Beck v. Wylie, 60 So.2d 190 (Fla.1952); Heard v. Mathis, 344 So.2d 651 (Fla. 1st DCA 1977); Brown v. Hutch, 156 So.2d 683 (Fla.2d DCA 1963). While the former requirement looks to a “family in law,” the latter looks to a “family in fact,” which arises out of a moral obligation to support. Smith v. Stewart, 390 So.2d 178 (Fla. 4th DCA 1980). Whether an individual is a head of family is a question to be resolved on the facts of each case. Nationwide Financial Corp. of Colo. v. Thompson, 400 So.2d 559 (Fla.1981); Cory v. Parks, 386 So.2d 292 (Fla.2d DCA 1980).

The petitioner contends that the 1968 revision of the constitution and the passage of the Dissolution of Marriage Act in 1971 changed the established law concerning the traditional homestead requirement that the owner of the property be the head of the family. He asserts that, although in the past a wife had no legal duty to support her husband, the 1968 revision of the constitution made husbands and wives equal before the law, creating in each a reciprocal duty to support the other. He contends that because the law establishes this duty of support, support in fact is no longer an issue. Based on this reasoning, petitioner concludes that a homestead is created and its devise is limited when property is owned by a person who has a legal duty to support another arising out of a family relationship, regardless of whether that individual is in fact the head of the family. Petitioner further contends that the legislature, in adopting section 732.4015 of the Probate Code, Florida Statutes (1979) eliminated the requirement that a decedent spouse who owned the marital home be the head of the family before restrictions on devise away from the other spouse would apply.

The respondent estate asserts that neither the 1968 constitutional revision nor the 1975 amendment to the Probate Code changed the law concerning the requirement that homestead property be owned by the head of the household.

We reject the petitioner’s contentions and approve the decision of the district court of appeal.

The concept of homestead rights did not arise in the common law; rather, these rights, which restrict the alienability of private property, are a creation of constitutional and statutory law. Because homestead provisions restrain the transfer of private property, such provisions are strictly construed. We reject the construction asserted by petitioner that any real property owned by either spouse, if used as the marital home, cannot be devised regardless of whether the owner was the head of family because that construction would substantially broaden the restraint on alienation of property separately owned by a spouse. We find no basis for such a construction, there being no such intent in the 1968 constitutional revision or the 1975 amendments to the probate code.

The homestead provision of article X, section 4, reads as follows:

Section 4.
HOMESTEAD — EXEMPTIONS.—
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by the head of a family:
(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or his family;
(2) personal property to the value of one thousand dollars.
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.

It is important to read section 4 in its entirety. Subparagraph (a) provides that the homestead and personal property shall be exempt from forced sale and contains the requirement that the property be “owned by the head of a family.” Subpara-graph (b) provides that “these exemptions,” referring to homestead rights in general, shall inure to the surviving spouse or heirs of the owner who is a head of family. Subparagraph (c), the provision in issue in this proceeding, begins with the phrase, “The homestead shall not be subject to devise .... ” We believe that this refers to homestead as it is otherwise used in section 4. To adopt the construction suggested by the petitioner would create two distinct definitions of homestead; one definition under subparagraphs (a) and (b) of section 4, and another definition under subparagraph (c) concerning the devise of the homestead.

The type of substantial change envisioned by petitioner was neither considered nor presented to the people when this constitutional provision was submitted for ratification. An analysis of the proposed revision of article X, section 4(c), as prepared by the Legislative Reference Bureau for public distribution prior to the adoption of the 1968 constitution, contained the following explanation:

Subsection (c) generally restates present Section 4 of Article X except that the devise of homestead would be prohibited if the owner is survived by “spouse or minor child,” rather than the present “children.” In addition, the right of a married owner to directly transfer by deed the title of the homestead to himself and his spouse as an estate by the entirety would be given constitutional status. Also the Legislature would be directed to provide a method of alienating or encumbering homestead property where either the owner or spouse is incompetent.

Draft of Proposed 1968 Constitution, July 20, 1968, at 17: Florida State Archives RG 005, Series 725, Box 1, file 19. This analysis reflects that the amended homestead provision was clearly not intended to apply in the broad manner contended by the petitioner.

We find that the use of “homestead” in section 732.4015 refers to “homestead” as that term is used in the Florida Constitution. There is no showing that the legislature intended to change the ease law definition of head of family to expand the homestead restriction to devises made by an, owner of a home who is not in fact the head of the family.

The presumption that the husband is the head of family has been abrogated by the 1971 amendment to section 61.09, Florida Statutes. The head of the family may be either the husband or the wife and the determination of who is the head of family is a factual one. This does not mean that the concept of homestead property has been broadened to include property not previously determined to be homestead.

In the instant case, it was stipulated that the husband was the head of family. We necessarily conclude that Mary Lee Gardner, a/k/a Mary Lee Holden, was not the head of family and, therefore, article X, section 4(c) of the Florida Constitution did not restrict her devise of the marital property owned by her to her sister. The certified question having been answered in the affirmative, we approve the decision of the district court of appeal.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD and McDONALD, JJ., concur.

SUNDBERG and EHRLICH, JJ., dissent.

      . The Act allows alimony from either spouse . and charges each spouse with an equal duty, to support the children of the marriage. §§ 61.-08, .09, .13(1), Fla.Stat. (1979).

      . Section 732.4015, adopted in 1975, reads: “Devise of homestead. — As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except that the homestead may be devised to the owner’s spouse if there is no minor child.”

      . Note, Our Legal Chameleon is a Sacred Cow: Alienation of Homestead under ,the 1968 Constitution, 24 U.Fla.L.Rev. 701 (1972).

      . Section 61.09 of the Florida Statutes places a duty of support on both spouses. This has been construed as abrogating the presumption that the husband is the head of family. Cory v. Parks, 386 So.2d 292 (Fla.2d DCA 1980).


author: BOYD, Justice.

text:
    Dorman K. KIMBRELL, Petitioner, v. GREAT AMERICAN INSURANCE COMPANY, Respondent.
    No. 61082.
    Supreme Court of Florida.
    Sept. 9, 1982.
    Rehearing Denied Nov. 18, 1982.
    Schuler & Wilkerson, P.A., and Edna L. Caruso, West Palm Beach, for petitioner.
    Joe N. Unger of the Law Offices of Joe N. Unger, Miami, and Pomeroy, Betts, Wiederhold & Moses, West Palm Beach, Florida, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for review of a district court of appeal decision, Kimbrell v. Great American Insurance Co., No. 80-1322 (Fla. 4th DCA July 29, 1981). The district court certified that its decision conflicts with a decision of another district court of appeal, Decker v. Great American Insurance Co., 392 So.2d 965 (Fla. 2d DCA 1980), cert. denied, 399 So.2d 1143 (Fla.1981). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Petitioner Dorman K. Kimbrell was an employee of R & X Installation Company of Florida. While driving his employer’s truck in the course of his employment, he was injured in an accident caused by the negligence of an uninsured motorist. Petitioner brought an action for declaratory judgment seeking a determination of the amount of uninsured motorist coverage available to him under his employer’s automobile insurance policy. Petitioner invoked the provisions of section 627.727(1), Florida Statutes (1975), which requires insurers to provide uninsured motorist coverage to policy holders in an amount equal to their bodily injury liability coverage, unless the uninsured motorist coverage is rejected by the named insured. Petitioner sought a declaration that the amount of uninsured motorist coverage inuring to his benefit was $250,000, and not $10,000 as noted on the policy declaration. He grounded his claim for relief on the allegation that higher coverage limit was not rejected as required by the statute.

The evidence showed that R & X Installation Company of Florida, Inc., the employer, was affiliated with R & X Installation Company, Inc., a Georgia-based business. Soon after its formation, the Florida corporation was added as a named insured to an existing policy.

At trial the depositions of W.E. Stephenson, president of R & X Installation, and Penn G. Holman, an insurance agent, were admitted into evidence. Their testimony established that Stephenson and Holman met in 1973 and arranged for the purchase of insurance for R & X Installation Company, which was doing business solely in Georgia. Stephenson said that Holman offered him uninsured motorist coverage in the same amount as his liability coverage but that he selected the minimum coverage required by law. Holman’s statement corroborated this selection but conceded that there was nothing in writing to show the offer and the selection.

In 1974 Stephenson and his business associates formed the new corporation to operate in Florida. In a telephone conversation with Holman, Stephenson secured coverage for the new entity in the same amounts as provided for in the existing policy. R & X Installation Company of Florida, Inc., was added as a named insured and the uninsured motorist coverage was noted on the policy as being $10,000 per person and $20,-000 per incident.

Petitioner moved for summary judgment on the ground that the insurer had not complied with the requirement of section 627.727(1) that the insurer offer uninsured motorist coverage in the same amount as the bodily injury liability coverage provided. Respondent moved for summary judgment on the ground that the policy showed that the insured had selected lower limits of uninsured motorist coverage. The trial judge denied both motions and let the case go to a jury for trial.

Section 627.727(1), Florida Statutes (1975), provides in relevant part:

(1) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto in not less than the limits of the liability insurance purchased by the named insured for bodily injury, [or such lower limits complying with the company’s rating plan as may be selected by the named insured,] under provisions filed with and approved by the department, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage. ...

In response to special factual interrogatories framed by the trial court judge, the jury found that the respondent, through an agent, offered R & X Installation Company of Florida and the other named insureds uninsured motorist coverage in an amount equal to the bodily injury liability coverage provided under the policy, and that the named insureds made an informed decision to reject the coverage offered. Based on the jury verdicts, the court entered judgment for respondent, holding that there was $10,000 in available uninsured motorist coverage. The district court affirmed on the authority of Del Prado v. Liberty Mutual Insurance Co., 400 So.2d 115 (Fla. 4th DCA 1981).

Petitioner seeks review of the district court’s decision on two grounds. He argues that the statute together with administrative regulations require the selection of uninsured motorist coverage in an amount less than bodily injury liability coverage to be in writing. He also contends that the jury’s findings of an offer and a specific rejection were against the manifest weight of the evidence.

In support of his first point, petitioner points out that section 627.727(1) requires that uninsured motorist coverage be provided in the same; amount as bodily injury liability coverage unless lower limits of uninsured motorist coverage are selected by the insured. Because the statute embodies a public policy for the protection of insureds, petitioner argues, it should be broadly and liberally construed. As sources of authority for construing the statute petitioner relies on Florida Administrative Code, Rule 4-28.02 and Department of Insurance Bulletin No. 586. These administrative regulations were promulgated pursuant to section 627.727(1) and require that the selection of lower uninsured motorist coverage be in writing and that evidence of the writing be maintained in the insurer’s files. Some courts have held that the failure of an insurer to comply with these administrative regulations renders the selection of lower limits invalid so that uninsured motorist coverage will be deemed to be in an amount equal to bodily injury liability coverage. See Harris v. United States Fidelity & Guaranty Co., 569 F.2d 850 (5th Cir.1978); Decker v. Great American Insurance Co., 392 So.2d 965 (Fla. 2d DCA 1980), cert. denied, 399 So.2d 1143 (Fla.1981); General Insurance Co. of Florida v. Sutton, 396 So.2d 855 (Fla. 3d DCA 1981).

It is true that a regulatory agency’s construction of a statute the agency is assigned to enforce is entitled to considerable weight. See, e.g., Louisville & Nashville Railroad Co. v. Speed-Parker, Inc., 103 Fla. 439, 137 So. 724 (1931). However, when the language of a statute is plain and its meaning clear, resort to this or any other rule of statutory construction is unnecessary. See Starr v. Karst, Inc., 92 So.2d 519 (Fla.1957). The statute under consideration is “clear and unambiguous in requiring that uninsured motorist coverage be contained in a policy, unless it is rejected by the insured. However, the statute does not require written rejection nor does it mandate rejection in a specific form.” Glover v. Aetna Insurance Co., 363 So.2d 12, 13 (Fla. 1st DCA 1978). What the statute does require is that a rejection of uninsured motorist coverage or a selection of lower limits of coverage must be knowingly made. Wilson v. National Indemnity Co., 302 So.2d 141 (Fla. 1st DCA 1974).

The question of whether an insured has knowingly rejected uninsured motorist coverage or knowingly selected coverage in a lesser amount than that which the insurer is required to make available is an issue to be decided by the trier of fact. Lumbermen's Mutual Casualty Co. v. Beaver, 355 So.2d 441 (Fla. 4th DCA 1978); contra, American Motorists Insurance Co. v. Weingarten, 355 So.2d 821 (Fla. 1st DCA 1978). In deciding this factual issue, the trier of fact may consider whether the insurer offered the insured the full amount of uninsured motorist coverage. The making of an express offer, however, is not disposi-tive of the question of whether there was a knowing selection of coverage limits. It is conceivable that the insured might know of the availability of coverage without being expressly informed of such by the insurer. Similarly, the fact that the insurer maintains in its files evidence of an offer and a selection is relevant but not crucial to a finding that a knowing selection was made. Liberty Mutual Insurance Co. v. Wright, 406 So.2d 1261 (Fla. 4th DCA 1981). We therefore conclude that the trial judge was correct in submitting the question to the jury even though there was no evidence of a written selection of coverage limits.

With regard to the evidentiary issue, we find there was competent, substantial evidence to support the jury’s conclusion that there was an offer and an informed selection of the lower uninsured motorist coverage limits. Both Holman, the insurance agent, and Stephenson, president of R & X Installation, stated in their depositions that Stephenson was only interested in purchasing the minimum uninsured motorist coverage available. Stephenson stated that he was offered coverage in the amount of $250,000 at a higher premium. He did not want to incur the cost of the higher coverage so he rejected it. It was clear from the evidence that Stephenson knew what he was doing when he selected the lower uninsured motorist coverage.

For the foregoing reasons we find petitioner’s contentions to be without merit. The decision of the district court is approved.

It is so ordered.

ALDERMAN, C.J., and OVERTON, SUNDBERG, McDONALD and EHRLICH, JJ., concur.

ADKINS, J., dissents.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Louis Ronnie HOFFER.
    No. 82-KA-0067.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Michelle Jackson, Asst. Dist. Atty., for plaintiff-appellee.
    Stephen K. Peters, Baton Rouge, for defendant-appellant.
   DIXON, Chief Justice.

The defendant Louis Ronnie Hoffer was charged by bill of information with the crime of theft of more than five hundred dollars (R.S. 14:67). He was tried by a judge who found him guilty as charged. He was sentenced to two years at hard labor, suspended on the special conditions that he serve six months in the parish jail and that he make full restitution to the victim in the amount of $7400.00 during the term of his two year active probation. The defendant has appealed arguing that the state failed to prove the necessary elements of felony theft beyond a reasonable doubt and that a sentence imposing incarceration for six months on a first offense nonviolent crime was improper without a showing of the reasons therefor.

The facts in this record reveal that the defendant attended an auto auction in Lafayette on the evening of January 26,1978. Though the auction was for licensed and bonded automobile dealers only, the defendant was neither licensed nor bonded.

The defendant filled out an application requiring such information as his dealer number, address, credit information, etc. prior to his participating in the auction. A completed application was required of all purchasers who intended to pay for cars by means of bank draft. The application could not be located and was therefore not offered at trial.

The information on the application could not be verified at night because banks and the state offices were closed. Seeing the defendant bidding on cars, the auction owner, Mr. Estillette, approached him and introduced himself. The defendant said that he was Ronnie Hoffer and that he owned Auto City in Baton Rouge. The auction owner then went to other Baton Rouge dealers and inquired about him. They did not know him, but they did know that Auto City had put up a large sign. This satisfied Estillette; he knew that it was against the law to put up a sign without being licensed and bonded.

The defendant successfully bid on fourteen cars, signing bank draft envelopes for each one. He removed the cars from the auction lot a short time after the auction. The cars were placed on the Auto City lot and offered for sale. Depending on their condition, some of the cars were sent to a body shop for reconditioning prior to being placed on the lot.

The draft envelopes containing the titles to the cars were forwarded to the defendant’s bank. Of the fourteen drafts, three were paid. The remaining eleven, totaling $7400.00, were returned unpaid, and remained unpaid at the time of trial.

Several of the fourteen cars purchased were sold to customers without titles, a violation of state law for which the defendant was subsequently convicted and fined $50.00. Several other cars were towed to a lot near the office of the attorney representing Auto City where they deteriorated from disuse and were later towed by the police as abandoned. Two or three of the cars could not be located or accounted for by the attorney. The trial judge found that the defendant disposed of all of the cars except one.

The defendant and Silas Musselwhite both testified that the defendant’s interest in the lot was sold to Musselwhite prior to the purchases at the auto auction. The defendant’s testimony was that the lot was low on cars, and that Musselwhite asked the defendant where cars could be purchased close to Baton Rouge. Defendant knew of the Lafayette Auto Auction; Musselwhite asked him to go to the auction to purchase cars on behalf of the lot. It was the understanding between the defendant and Mus-selwhite that Musselwhite would be responsible for the drafts when they came in.

After the sale of the lot and the auction, the defendant helped out at the lot selling cars, as Musselwhite was unfamiliar with the car business. Three of the cars were sold. The defendant took the proceeds of the sales to the bank, paid the drafts on those cars, and received the titles for delivery to the purchasers. The remaining drafts were returned unpaid.

Mr. Estillette contacted the State Department of Public Safety and the district attorney’s office. The authorities inspected the lot and sought the business records. Estillette, with the titles to the remaining eleven cars in his hands, induced Mussel-white to write a check for the balance, but refused to deliver the titles until the check cleared. Musselwhite withdrew the funds from the account and the check bounced.

The lot was subsequently closed by the authorities. Other auctioneers who also had not been paid (as the lot could no longer sell cars) picked up their cars remaining on the lot.

R.S. 14:67 was enacted with the purpose of combining the various statutes dealing with larceny, obtaining by false pretenses, and embezzlement. It was thus designed to remove the common law distinctions among the various crimes and to broaden the scope of the statute to include misrepresentations as to future facts as well as past and present facts. State v. Dabbs, 228 La. 960, 84 So.2d 601 (1955). The statute now includes all forms of “... misappropriation or taking of anything of value which belongs to another, either without the consent of the other ... or by means of fraudulent conduct, practices, or representations....”.

The trial court found that the defendant misrepresented himself as a licensed and bonded dealer when he participated in an auction for licensed and bonded dealers only. This fact, along with the fact that the drafts were not paid during the time between their signing and the filing of the information, some seventeen months, convinced the trial judge that the requisite element of intent had been shown. The defendant challenges this conclusion of the trial court, contending first that no material misrepresentation was proved and second that a later failure to repay a debt cannot prove intent to defraud since the intent to defraud must exist at the time of the taking.

As the defendant has not admitted, and has expressly denied, any intent not to pay for the automobiles purchased, the prosecution necessarily was forced to prove intent through circumstantial evidence. R.S. 15:445; State v. Duncan, 390 So.2d 859, 861 (La.1980). Where such circumstantial evidence is used, “... in order to convict, it must exclude every reasonable hypothesis of innocence.” R.S. 15:438.

Our standard of review in cases where a conviction is challenged based on insufficiency of the evidence is mandated by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). There the United States Supreme Court determined that, to properly balance the roles of the trier of fact and the reviewing court, the relevant question is “... whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt . .. . ” 443 U.S. at 319, 99 S.Ct. at 2789. We must therefore consider whether any rational trier of fact could have found that the evidence of intent, viewed in the light most favorable to the prosecution, excluded every reasonable hypothesis of innocence. Thus, if there exists a reasonable hypothesis of innocence not excluded by the evidence, the state has not met its burden.

With respect to the representation that the defendant was a licensed and bonded dealer, the defense argues that there was no proof of such. representation, and that the credit application was not offered into evidence; nor was there any testimony that the defendant ever claimed, in response to any question posed to him at the auction, that he was a licensed and bonded dealer. Such a verbal representation was not required. Any rational trier of fact could have concluded that the defendant’s participation in an auction for the benefit of bonded and licensed dealers only, as evidenced by a large sign to that effect and an announcement at the commencement of the auction, was a representation that the defendant was licensed and bonded.

The defendant further argues that any misrepresentation as to his status was not material to his intent to pay for the drafts when presented. He had established a used car lot and had actually dealt regularly in automobiles for months. The defendant compares the situation to, for example, stating one’s age as twenty-seven when only twenty-five. There was no evidence presented to the trial judge on the materiality of the representation with respect to the intention to pay the drafts. We agree that while the misrepresentation may have an effect on the perception that the defendant had a greater ability to pay the drafts, it had no bearing on his intent to pay the drafts. Otherwise, it would be saying, for example, that someone buying wholesale without a retailer’s certificate intends not to pay for the merchandise. There is no rational relation between the status as purchaser and the intention to pay. With no evidence before it to support the proposition, no rational trier of fact could conclude that the misrepresentation that the defendant was a licensed and bonded dealer indicated an intention not to honor the drafts when presented.

The defendant also challenges the trial judge’s reliance on the fact that the drafts were never paid as indicating an intention, at the time they were signed, not to honor them. To allow such a conclusion, argues the defendant, would subject every defaulting debtor to criminal charges. While nonpayment is consistent with the intention not to pay, and, of course, a prerequisite to bringing criminal charges, it is not sufficiently indicative of intention not to pay to exclude beyond a reasonable doubt the intention to pay. There was also evidence presented that three of the fourteen drafts were paid, and that the defendant and Mr. Musselwhite had agreed that the drafts were to be paid by Musselwhite, as he was the owner of the lot and would receive the purchase price of the cars from their eventual retail buyers. This is a reasonable hypothesis of innocence that was not excluded by the evidence.

The state, therefore, has failed to prove beyond a reasonable doubt that the defendant had the requisite intent to fraudulently deprive the auction owner of his property.

Where there is insufficient evidence of an essential element of the crime charged, the double jeopardy clause of the Fifth Amendment precludes a second trial. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Entertainment Specialists, Inc., 386 So.2d 653 (La.1980). A judgment discharging the defendant therefore is ordered. Burks, supra; Entertainment Specialists, Inc., supra; State v. Peoples, 383 So.2d 1006 (La.1980); State v. Thompson, 366 So.2d 1291 (La.1978).

For the reasons assigned, the defendant’s conviction and sentence are reversed, and the defendant is ordered discharged.

LEMMON, J., concurs.

WATSON, J., dissents, disagrees with the treatment of intent.

      . R.S. 14:67, in pertinent part, provides:
      “Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
      Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.

      When there has been a misappropriation or taking by a number of distinct acts of the offender, the aggregate of the amount of the misappropriations or takings shall determine the grade of the offense.”

      . Mr. Musselwhite initially became involved with Ronnie Hoffer as a partner because he thought it was a good business investment. He brought in additional investors who would advance funds on particular cars and hold their titles until the cars were sold, realizing a profit on the transaction. The business was good and growing fast; so Musselwhite and Hoffer agreed that Hoffer’s interest, originally 50%, would be sold to Musselwhite for $3000.00 in cash and a $7000.00 promissory note. The cash was paid, but the $7000.00 evidenced by the note was never paid.

      . Hoffer began in the used car business by selling cars off the Auto City lot for the benefit of Charlie Buff, a licensed and bonded dealer, making a profit for himself by selling the cars in excess of a price set by Buff. Hoffer soon realized he could make more money buying the cars himself. He discussed the mechanics of purchasing cars with his banker who explained about drafts and approved Hoffer for such transactions. The drafts involved in this case were written on Hoffer’s bank.

      . Musselwhite testified that many of the auctioneers were cooperative with Auto City in that they would allow the titles to be taken to finance companies to be used as collateral for loans to Auto City. The auctioneers would then be paid out of the proceeds. In contrast, Estillette would not part with any titles until paid, and refused tenders of partial payment as the cars were sold, insisting instead, on advice from the district attorney, to receive the $7400.00 in one lump sum.

      . “In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.” R.S. 15:445.

      . “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” R.S. 15:438.

      . The test of Jackson v. Virginia, supra, has been previously adopted by this court. State v. Tonubbee, 420 So.2d 126 (La.1982); State ex rel. Ross v. Blackburn, 403 So.2d 719 (La.1981).

      . The defendant understates the seriousness of the misrepresentation. Hoffer represented that he had a legal status which he knew he did not have.


author:
DIXON, Chief Justice.
     DENNIS, Justice,

text:
    Wilbert L. ROTH v. B & L ENTERPRISES, INC. and F. Robert Porter.
    No. 82-C-0845.
    Supreme Court of Louisiana.
    Oct. 18, 1982.

      ' Garland R. Rolling, Michael Baham, Me-tairie, for applicant.
    Gordon K. Konrad, Metairie, for respondents.
   DIXON, Chief Justice.

This is a suit in warranty brought by a purchaser of real estate against his vendor. On January 6, 1977 plaintiff, Wilbert L. Roth, entered into an agreement with defendant, B & L Enterprises, Inc., to purchase certain immovable property owned by B & L located in Rural Park Subdivision, Jefferson Parish, for $12,000. The listing agreement stipulated that the purchaser was to choose the notary to pass the act of sale. Roth retained F. Robert Porter, a notary public, to execute the act of sale. Though made a defendant, Porter was never served with process, despite several attempts to locate him.

At the passing of the act of sale, Roth made his check for $12,000 payable to Porter. There is a dispute between the parties as to whether the notary or the president of B & L Enterprises, Inc., Melvin J. Berthe-lot, instructed the purchaser to make the check payable to the notary. Under either version, B & L approved of this method of payment.

At the time of the act of sale, there existed outstanding pavement and improvement liens against the property which amounted to approximately $5250.00. Roth testified that he was unaware of the existence of these liens at the time of the sale. Both B & L and Porter knew of these encumbrances and it was understood between them that Porter was to pay them out of the proceeds of the sale. Porter was also retained by B & L to satisfy liens on other property owned by B & L from the $12,000 sales price. Some time after the sale, Porter gave B & L a check for $274.00, presumably the net proceeds remaining after the liens had been paid. However, instead of canceling the liens, Porter absconded with the money.

Plaintiff discovered the existence of the liens for the first time upon receiving a bill for their payment from Jefferson Parish. He has since made periodic payments on the liens.

Judgment was rendered by the trial court rejecting plaintiff’s demands for payment of the liens, concluding that Porter was Roth’s agent and that Roth was bound by his agent’s activities. This judgment was affirmed in the court of appeal. Roth v. B & L Enterprises, Inc. and F. Robert Porter, 411 So.2d 627 (La.App.1982). Upon plaintiff’s application, we granted a writ of cer-tiorari to review the judgments of the lower courts.

Plaintiff argues first that the mere act of hiring a notary public to pass an act of sale does not constitute that notary as the purchaser’s agent. When Roth paid the notary a $100.00 fee to execute the act of sale, he was unaware of the existence of liens on the property. The act of sale corroborates this nondisclosure of the liens; that document contained language reciting that the property did not appear to be “subject to any encumbrance whatever.”

In the early case of City of New Orleans v. Bienvenu, 23 La.Ann. 710 (1871), the Louisiana Supreme Court recognized a notary to be “... an officer appointed by the Governor by and with the advice and consent of the Senate, and commissioned and sworn as such .. .. ” R.S. 35:1 codifies the procedure for executive appointment of notaries public, subject to legislative approval. In addition, the legislature regulates the profession by enumerating its general powers (R.S. 35:2), by determining the place where notarial acts can be executed (R.S. 35:10), by outlining the qualifications of prospective applicants (R.S. 35:191), and by requiring a bond of $5000.00 conditioned upon the faithful performance of a notary’s duties (R.S. 35:191).

Among the general powers of notaries public listed in R.S. 35:2 is the power to “make ... conveyances, and generally, all contracts and instruments of writing.” It has been held previously by this court that the notarial powers listed in this statute were not exclusive and that the notary’s “... obligation is to perform all the duties incumbent upon him, or else he will be liable to those by whom he is employed ....” Stork v. American Surety Co. of New York, 109 La. 713, 716, 33 So. 742, 743 (1903); Schmidt v. Drouet, 42 La.Ann. 1064, 8 So. 396 (1890). The enumerated powers, however, are not the discretionary powers commonly associated with persons such as brokers, intermediaries and attorneys at law. The responsibilities included in R.S. 35:2 and its predecessor statute do not suggest that a notary is regarded by the legislature as a depositary or custodian of proceeds of the parties. This court has agreed that a notary’s “.. . office is not one of deposit ...” (emphasis added), finding that a notary receives funds not in his official capacity, but rather as a trusted individual. Rochereau v. Jones, 29 La.Ann. 82, 85 (1877). furthermore, the bond required of notaries is only for the minimal sum of $5000.00, not a sufficient amount to protect innocent parties who entrust their funds to a notary acting in his official capacity. R.S. 35:191. Even though a notary may typically be entrusted with the proceeds from real estate transactions, by receiving the funds, the notary is acting on behalf of the parties to the act of sale and not in his official capacity as notary.

The general rule is that if a vendee unilaterally delivers the sales price to the notary, the vendee bears the risk of the notary misusing the funds since the notary is merely acting as his depositary. Saloy v. Hibernia National Bank, 39 La.Ann. 90, 1 So. 657 (1887); Brown v. Schmidt, 7 La. Ann. 349 (1852); Breen v. Schmidt, 6 La. Ann. 13 (1851). The vendee is merely depositing the proceeds with the notary until the vendor accepts them for payment.

In order to satisfy his obligation of tendering the purchase price, the vendee must pay either the vendor or an agent of the vendor. If payment is made to an unauthorized individual, the payment is valid only if the vendor has either ratified this procedure or profited by it. C.C. 2140. Accordingly, if the vendor consents to delivery of the sales price to the notary, this constitutes payment and the vendor bears the risk of the notary’s embezzlement. Breen v. Schmidt, supra.

In the instant case it is unclear as to whether B & L directed Roth to make the check payable to the notary or whether B & L merely agreed to this mode of payment. Even if B & L did not explicitly authorize the notary to accept the funds at the act of sale, B & L ratified this receipt of the purchase price by asking Porter to use these proceeds to pay off other outstanding obligations as well as the liens on the sale property, the existence of which had not been disclosed to Roth. B & L designated Porter as its mandatary when they verbally agreed that Porter would pay off the liens. C.C. 2985, 2992. B & L regarded the money as its own and so bore the risk of the mismanagement of its agent. Breen v. Schmidt, supra.

When Roth exercised his right as purchaser to choose the notary, he selected Porter only to perform the notarial function of passing an act of sale. The primary role of a notary at an act of sale is “... to assay the identity of the parties, their marital status, their capacity to contract, and their willingness to do so....’’ Roth hired Porter to fulfill his traditional notarial functions, while B & L used Porter as its agent to satisfy the outstanding liens.

As notary, Porter was required by C.C. 2251 to record the completed act of sale. Similarly, at the time of this transaction, he was also required by C.C. 3364 (repealed 1978) to obtain a mortgage certificate and to mention the existence of any mortgages in the act of sale. Porter breached one of his statutory obligations by failing to record the outstanding liens in the act of sale.

Porter would be liable as notary for any damage Roth suffered in reliance on the erroneous recitation in the act of sale. Roth did not know of the liens on the property in part because this fact was not disclosed in the act of sale. However, B & L, the vendor, breached its obligation of warranty by failing to notify Roth of the liens. The vendor, in a sale made with express full warranties, warrants his vendee against any undeclared and nonap-parent mortgages, privileges, or other charges that burden the property at the time of the sale. C.C. 2501; Richmond v. Zapata Development Corp., 350 So.2d 875 (La.1977). A vendor can only be relieved of this obligation by a stipulation to the contrary in the act of sale. A vendee can assume the payment of any encumbrances by deducting from the purchase price a sufficient amount to discharge the liens. Jaenke v. Taylor, 160 La. 109, 106 So. 711 (1925). However, this procedure must be clearly agreed to by the parties and both parties must be aware of the existence of the encumbrances. In the instant case, since Roth had no knowledge of the outstanding liens, he could not consent to the payment of them. The act of sale does not indicate that Roth agreed to deduct a proportional amount from the purchase price to satisfy the liens.

Rather, the evidence shows that B & L attempted to pay off the liens by appointing Porter to carry out its obligation. Since Porter failed to perform this duty, B & L must assume responsibility for the criminal conduct of its own agent in embezzling its funds. The mere fact that the agent happened to be a notary cannot relieve B & L of its obligation to attend to the payment of the liens. The damage Roth suffered is attributable solely to the failure of B & L to pay off the outstanding liens on the property.

C.C. 2475 obligates a seller to deliver and to warrant the object that he sells. Here the act of sale recited that the sale was made with full warranties, including the warranty referred to in C.C. 2501 “... against the charges claimed on such thing, which were not declared at the time of the sale.” The fact that the buyer could have discovered the liens by searching the public records is not sufficient to relieve the seller of his statutory obligation of warranting against undeclared charges. Richmond v. Zapata Development Corp., supra. The buyer is entitled, as between himself and his seller, to rely upon the deed as written. Cf. Collins v. Slocum, 317 So.2d 672 (La.App.), writ denied 321 So.2d 364 (La.1975). The seller cannot relieve himself of the obligation of warranty by shifting the burden to the buyer to discover nonap-parent encumbrances on the property. The seller entrusted the notary with the authority to cancel the outstanding liens. Porter failed to comply with both his statutory obligation of producing a mortgage certificate and his assumed obligation to B & L to pay off any encumbrances on the property. The duty to attend to the payment of liens rests with the seller. The seller delegated this responsibility to the notary; since the notary did not comply with the seller’s instructions, the seller must sustain the loss.

For the reasons assigned, the judgments of the lower courts are reversed, and there is now judgment in favor of Wilbert L. Roth and against B & L Enterprises, Inc. in the full sum of $5250.00, with legal interest from date of judicial demand, and all costs of these proceedings.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

According to the majority opinion, when two innocent parties to a transaction are defrauded by a dishonest notary hired by one party, the other innocent party who had nothing to do with selecting the notary must bear the loss. This result is reached by resorting to the law of agency and presuming B & L’s “ratification” of the mode of payment. However, this approach overlooks the-trial court’s findings that Roth knew or should have known of the encumbrance on the tract, the customary practice for the purchaser’s notary to pay the seller only after clearing the property of any encumbrances, and the vendee’s legal right to hold a portion of the price to retire any debts affecting the property. I believe that the facts and the law more justly and fairly support the sellers in this case.

       Judge E.L. Guidry, Jr. of the Court of Appeal, Third Circuit, participated in this decision in place of Lemmon, J., recused.

      . “Notaries public have power, within their several parishes, to make inventories, appraise-ments, and partitions; to receive wills, make protests, matrimonial contracts, conveyances, and generally, all contracts and instruments of writing; to hold family meetings and meetings of creditors; to receive acknowledgments of instruments under private signature; to affix the seals upon the effects of deceased persons, and to raise the same. All acts executed by them, in conformity with the provisions of article two thousand two hundred and thirty-four of the Civil Code, shall be authentic acts.” R.S. 35:2 (West 1964).
      This version of the statute was applicable to the instant case. R.S. 35:2 has since been twice amended by Acts 1977, No. 354, § 1 and Acts 1981, No. 406, § 1.

      . This court referred to Rev.St.1870, § 2492, the predecessor of the present R.S. 35:2. The language in both statutes is substantially the same.
      “Sec. 2492. Notaries public shall have power, within their several parishes, to make inventories, appraisements, partitions, to receive wills, make protests, matrimonial contracts, conveyances, and generally all contracts and instruments of writing; to hold family meetings and meetings of creditors; to receive acknowledgments of instruments under private signature; to affix the seals upon the effects of deceased persons, and to raise the same; and all acts executed by them, in conformity with the provisions of article two thousand two hundred and thirty-one of the Civil Code, shall be authentic acts.”

      . “The payment must be made to the creditor, or to some person having a power from him to receive it, or who is authorized by a court, or by law, to receive it for him.
      Payment made to a person, not having power to receive it for the creditor, is valid, if the creditor has ratified it, or has profited by it.” C.C. 2140.

      . The act of sale recites that:
      “This sale is made and accepted for and in consideration of the price and sum of TWELVE THOUSAND AND NO/100 DOLLARS-($12,000.00) Dollars, Cash, which the said purchaser has well and truly paid, in ready and current money to the vendor, who hereby acknowledges the receipt thereof and grants full acquittance and discharge therefor.” (Emphasis added).
      This language verifies Roth’s testimony that by paying the $12,000 to Porter, he understood that he was complying with the desires of B & L.

      . See Burke and Fox, The Notaire in North America: A Short Study of the Adaptation of a Civil Law Institution, 50 Tul.L.Rev. 318, 333 (1976).

      . “Every notary who shall pass an act of sale, mortgage or donation of an immovable, shall be bound to obtain from the office of mortgages of the place where the immovable is situated, a certificate declaring the privileges or mortgages which may be inscribed on the object of the contract, and to mention them in his act, under penalty of damages towards the party who may suffer by his neglect in that respect.” C.C. 3364.
      This article was later repealed by Acts 1978, No. 651, § 3, but was still in effect at the time of the act of sale.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. James A. MOORE.
    No. 82-K-1234.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    Patrick H. Wright, Jr., Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Michael J. Fontenot, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant James A. Moore is before this Court on writs, granted to review the trial court ruling denying his motion to quash the bill of information charging him with driving in violation of a habitual offender judgment.

On June 20,1978, judgment was rendered in State of Louisiana v. James A. Moore (No. 118,375) adjudging him to be an habitual offender as defined by La.R.S. 32:1472. Accordingly the defendant was prohibited from driving upon the roads, streets and highways of this state for a period of five years.

On February 22, 1982, defendant James A. Moore was charged by bill of information with the crime of driving after having been adjudicated a habitual offender in violation of La.R.S. 32:1480. On April 7,1982, defendant filed a motion to quash the bill of information on the grounds that defendant was not properly Boykinized before entering the guilty pleas to the three DWI convictions which were used to support the habitual offender adjudication. The bill of information was amended on May 5, 1982, and the motion to quash was taken under advisement on May 10, 1982. On May 11, 1982, the motion to quash was denied. On that same day, counsel for the defendant gave oral notice of his intent to apply for writs to this Court and was granted a stay order by the trial court pending action by this Court.

On June 11, 1982, this Court considered defendant’s writ application and granted it. 415 So.2d 949. Notice of the action taken on defendant’s writ was mailed to the attorneys of record and to the district court. That notice was received in the district court and filed in the record on June 14, 1982. Thereafter, on June 23,1982, defendant appeared in court and, pursuant to a plea bargain, pled guilty to the crime of attempting to drive in violation of the habitual offender judgment. Defendant was sentenced to serve six months in the Oua-chita parish jail, the sentence to run concurrently with another sentence imposed in a different matter. On July 28,1982, defendant’s sentence was amended and he was released from prison and placed on supervised probation for six months provided that he commit himself to a specified alcohol treatment facility and that he remain there until he successfully completes the in-patient alcohol treatment program.

On September 3, 1982, the State of Louisiana filed a motion to dismiss these proceedings in this Court, contending that the issue upon which writs had been granted was mooted by the defendant’s later entry of a guilty plea to a reduced charge without even attempting to reserve the right to have his granted writ decided in this Court. The state’s motion to dismiss was referred to the merits and the case was submitted here on briefs.

It is well settled that entry of an unqualified plea of guilty waives all non-jurisdictional defects occurring prior thereto, and precludes review thereof either by appeal, or where appeal is unavailable, by supervisory review. In State v. Crosby, 338 So.2d 584 (La.1976), this Court held that where a defendant, at the time of entering a guilty plea, expressly stipulates that he does not waive his right to the review of a non-jurisdictional pre-plea ruling, this Court will review that ruling.

In the present case defendant did not expressly stipulate that he was reserving his right to review at the time he entered his guilty plea. It appears from the record of the guilty plea proceedings that defendant entered an unqualified plea of guilty to a reduced charge. Normally that would conclude the matter. The entry of an unqualified plea would be deemed a waiver of all non-jurisdictional defects. Defendant argues, however, that his having secured, pre-plea, a writ grant from this Court on the ruling denying his motion to quash the information, implies that his plea was made with a reservation of the right to have this Court rule on the matter.

This position is not supported by the record. If anything, the implication to be drawn is just the reverse. Pursuant to a plea bargain agreement, the state agreed to reduce the charges against defendant to attempt to drive in violation of the habitual offender judgment (which automatically reduces the mandatory one year prison sentence for the original charge by one-half) in return for defendant’s guilty plea to the reduced charge. Furthermore, defendant had ample opportunity to expressly reserve his right to have the issue in his granted writ application reviewed, but instead said nothing when the trial judge explained to him that he was waiving his “right of review to a higher court” by pleading guilty. Under these circumstances, we find that the defendant waived his right of review of non-jurisdictional defects when he entered his unqualified guilty plea to the reduced charge.

Decree

For the foregoing reasons, the state’s motion to dismiss this matter in this Court as moot is granted. The writ is recalled.

MOTION TO DISMISS GRANTED; WRIT RECALLED.


author: MARCUS, Justice. WATSON, Justice,

text:
    William STRACENER v. UNITED STATES FIDELITY & GUARANTY COMPANY.
    No. 82-C-0565.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    William B. Baggett, Baggett, McCall, Singleton & Ranier, Lake Charles, for applicant.
    Richard B. Cappell, Raggio, Cappell, Cho-zen & Berniard, Lake Charles, for respondent.
   MARCUS, Justice.

William Stracener instituted this action for workmen’s compensation against his employer’s insurer, United States Fidelity & Guaranty Company, to recover benefits for a personal injury by accident arising out of and in the course of his employment with Nichols Construction Company on February 4,1980. He alleged that the injury produced a permanent total disability. He also sought penalties and attorney fees.

The trial judge rendered judgment in favor of plaintiff and against defendant awarding compensation under La.R.S. 23:1221(4)(e) for the loss of a hand at the rate of $148 per week beginning February 4,1980 for a period of 150 weeks, subject to a credit for compensation previously paid. Penalties and attorney fees in the amount of $1,000 were also awarded. Plaintiff appealed. The court of appeal amended the judgment of the district court by reducing the amount of weekly compensation from $148 to $139.34; otherwise, the judgment was affirmed. On application of plaintiff, we granted certiorari to review the correctness of that decision.

The record reveals that William Stracener, age 58, was employed by Nichols as a boilermaker foreman at the time of the accident on February 4, 1980. He had worked as a boilermaker since 1941 (some 39 years). He was classified as a boilermaker journeyman by the Boilermaker Local 79 (a local union of which he was a member). He possessed journeyman skills as a layer out worker, fitter, rigger, tube roller, burner, chipper and caulker, tray worker and tank builder. The accident occurred when his right thumb got caught between a tube and a tube support. This resulted in the amputation of the distal phalanx and a partial removal of the proximal phalanx of that thumb. The only medical evidence was the testimony of the treating physician, Dr. Edward W. Phillips, Jr., an orthopedist, who stated that plaintiff had lost over half his thumb, which represented a 75% disability of the thumb and a 38% disability of the hand. Plaintiff missed seven days of work for which he was paid his wages. He then returned to work and has continued to work as a boilermaker foreman.

Because of the injury sustained, plaintiff is unable to perform many of the skills of his occupation as a boilermaker. He is limited in the use of tools required in his various skills. He has difficulty in gripping these tools and exerting enough force on them to use them in an effective manner. Furthermore, plaintiff is right-handed, so the injury on that hand limits him substantially. On these facts, the courts below concluded that plaintiff was entitled to receive compensation for the loss of a hand under La.R.S. 23:1221(4)(e) but was not partially disabled within the meaning of La. R.S. 23:1221(3). The courts felt that even though plaintiff may not be able to perform all the duties of a boilermaker journeyman, it was of no significance because he had worked exclusively as a boilermaker foreman for four years prior to the accident and had continued to do so for more than one year thereafter. Plaintiff contends that the courts below erred in not allowing recovery for partial disability under La.R.S. 23:1221(3), subject to a credit of 150 weeks of compensation awarded for the loss of his hand under La.R.S. 23:1221(4)(e). In addition, he argues that he is entitled to an increase in attorney fees.

The first issue presented for our determination is whether plaintiff’s injury produced a partial disability under La.R.S. 23:1221(3).

La.R.S. 23:1221 provides in pertinent part:

Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
(3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability, but not beyond a maximum of ... four hundred fifty weeks....

In order to recover benefits for partial disability under the above provision, plaintiff must show that his injury prevented him from performing the “duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience.” (Emphasis added.)

As a member of the Boilermaker Local 79, plaintiff did not work for a sole employer, but instead was sent out on various jobs by the union and worked until that particular job was completed. As previously stated, plaintiff had the skills to be sent out as a layer out worker, fitter, rigger, tube roller, burner, chipper and caulker, tray worker and tank builder. To perform these skills the hand and thumb are essential to grip the tools and instruments. The court of appeal, although finding that the injury would “hinder plaintiff’s use of tools considerably” and handicap him “to some extent,” denied recovery for partial disability on the ground that there was only a “remote possibility” that he would have to perform tasks as a boilermaker journeyman based on his employment record as a foreman. We do not agree.

There are many factors involved in the selection of a boilermaker foreman. A.E. Vincent, business manager of the local union, testified that the selection is based on the availability of men and work at the time. He further stated that unless the foreman is requested by the contractor, the business manager has the complete discretion to send out the foreman. The business manager is elected every three years so there is no guarantee that the new business manager would send plaintiff out as a foreman. Moreover, Mr. Vincent acknowledged that “he had retirement staring at him in the face.” He also affirmed that plaintiff’s opportunity to work as a foreman depended on who might take his place. Thus, although plaintiff has had the good fortune of being selected as a foreman in the past, the very transient, political, and economical nature of the selection process does not preclude the possibility that plaintiff will not be sent out as a foreman in the future and ultimately be forced to work as a journeyman. As a matter of fact, he was required to turn down a job as a boilermaker journeyman after the accident because of his inability to do the work. Additionally, even if plaintiff is selected as a foreman, he must work with tools if he has less than six men under his control. Finally, there is no serious dispute that plaintiff is unable to perform the various skills required of him as a boilermaker journeyman because of his injury.

Based on these facts, we conclude that plaintiff’s injury prevents him from performing the duties in which he was engaged when injured as well as those for which he is fitted by education, training, and experience. Hence, he is partially disabled within the meaning of La.R.S. 23:1221(3) and entitled as such to recover disability benefits under this provision.

The next issue is whether plaintiff is entitled to partial disability benefits under La.R.S. 23:1221(3) despite the fact that he has received compensation for the loss of his hand under La.R.S. 23:1221(4)(e). Jacks v. Bannister Pipelines America, 418 So.2d 524 (La., 1982), recently decided by this court, is dispositive of this issue.

In Jacks, plaintiff was an equipment mechanic and utility welder. He suffered an injury to his right eye which resulted in the permanent loss of vision in that eye. However, plaintiff returned to work and continued to work as a pipeline mechanic and utility welder at the same or greater wages than he was being paid at the time of the accident. Plaintiff contended that he was entitled to recovery for both specific loss and partial disability. We held that “[ajlthough the employee may not recover compensation for both his specific loss and partial disability, he is entitled to the more favorable of the two remedies.” We stated:

If the employer is later required to pay the worker compensation for his partial disability, because it proves to be the favorable remedy, the employer will be entitled to subtract the 100 weeks of compensation paid for the specific loss from the maximum number of weeks for which partial disability compensation is payable.

We further stated in Jacks that if the employer should be required to pay partial disability compensation to the employee in the future, the employer should receive credit for his earlier payment under the specific loss provision by shortening the period during which partial disability compensation is payable by the number of weeks compensation was paid under the schedule for the specific loss. The employer may not make deductions from any future disability compensation payments on a dollar-for-dollar basis because such deductions are provided for only where the employer has first paid compensation under the total or partial disability provisions and compensation is later allowed under the specific loss subdivision. La.R.S. 23:1223.

Thus, Jacks received 100 weeks of compensation according to the schedule for the specific loss of his eye and 350 weeks of partial disability compensation, subject to a credit for the portion of compensation which had been paid.

Applying Jacks to the instant case, wherein the situation is practically identical, plaintiff is entitled to 150 weeks of compensation according to the schedule for the specific loss of his hand under La.R.S. 23:1221(4)(e) and 300 weeks of partial disability compensation under La.R.S. 23:1221(3), subject to a credit for the portion of compensation which has been paid.

Plaintiff also contends that he is entitled to an increase in the award of $1,000 for attorney fees. La.R.S. 22:658 provides for the imposition of penalties and attorney fees when the failure to pay workmen’s compensation insurance “[i]s arbitrary, capricious, or without probable cause.” We held in Guillory v. Travelers Insurance Company, 294 So.2d 215 (La.1974), that “[i]n the event that there exists a substantial issue as to whether the disabled workman is entitled to compensation benefits, penalties should be denied.” Here, defendant insurer’s failure to pay compensation for the specific loss of a thumb within sixty days after receipt of satisfactory proofs of loss and demand therefor was arbitrary, capricious, and without probable cause; an award of $1,000 for attorney fees for the prosecution and collection of that loss is reasonable. As stated by the court of appeal: “[Wjhile we think the amount awarded was low, we cannot say that there was such an abuse of discretion by the trial court as to warrant our amending his judgment in this respect.” We concur. Further, we do not consider that defendant insurer’s failure to pay compensation based on the loss of a hand under La.R.S. 23:1221(4)(e) was arbitrary, capricious, or without probable cause because a substantial issue existed as to whether there was a loss to the thumb or the hand. Hence, we will not disturb the award for attorney fees.

DECREE

For the reasons assigned, the judgment of the court of appeal is amended to award plaintiff, William Stracener, 150 weeks of compensation according to the schedule for the specific loss of his hand and 300 weeks of partial disability compensation, subject to a credit for the portion of the compensation which has been paid. As amended, the judgment is affirmed.

WATSON, J., concurs in part, dissents in part and assigns reasons.

WATSON, Justice,

concurring in part and dissenting in part.

I fully agree with the majority opinion’s resolution of the principal issues in this case.

I dissent only as to the failure to increase the attorney fees. Counsel for plaintiff won a judgment in the trial court for maximum benefits for the loss of a hand. In the Court of Appeal, the defendant answered the appeal contending that the benefits should be reduced from loss of a hand to loss of a thumb. Counsel was forced to defend against that contention, but received no increase in fee. In this Court, the defendant took the position that even though only plaintiff applied for writs, the defendant could and did advocate a reduction of benefits just as in the Court of Appeal. Therefore, counsel for plaintiff not only gained a judgment in this Court for partial disability, but also defended in the Court of Appeal and to some extent in this Court, against the contention the trial court was wrong.

Therefore, I would order a substantial increase in the fee.

Otherwise, I respectfully concur.

      . La.R.S. 23:1221(4)(e) provides:
      (4) In the following cases, the compensation shall be as follows:
      (e) For the loss of a hand, sixty-six and two-thirds per centum of wages during one hundred fifty weeks.

      . This amounted to $148 per week for 50 weeks or $7,400.

      . The reduction was based on Dr. Phillips’ testimony that there was a 38% loss of function of the hand and La.R.S. 23:1221(4)(o) and was calculated by taking 38% of 6672% of plaintiff’s weekly wages of $550.

      . 410 So.2d 1220 (La.App. 3d Cir.1982).

      . 413 So.2d 497 (La.1982).

      . Considering that plaintiffs injury entitled him to compensation for a loss of a thumb under La.R.S. 23:l-221(4)(a), defendant insurer made a lump sum payment for thirty-seven weeks at $148 per week and thereafter paid weekly compensation through January 19, 1981, for a total of fifty weeks of compensation at $148 per week or $7,400.

      . Some of the tools and instruments that are used as a boilerman journeyman are square and compass, pencil, hammer, rigging belt, spud wrenches, crescent wrench, pins, air impact, calipers, cutting torch, and a Frenchman.