author: ANDERSON, Associate Justice.

text:
    The FLORIDA NATIONAL BANK OF JACKSONVILLE, a national banking corporation, as Executor of the Last Will and Testament of Emma M. Hobbs, deceased, and Beatrice Graichen, the residuary devisee and legatee under the Last Will and Testament of Emma M. Hobbs, deceased, Petitioners, v. Wilbur W. PUGH, Respondent.
    Supreme Court of Florida. Special Division A.
    April 18, 1956.
    Rehearing Denied May 21, 1956.

      James T. Smith, St. Petersburg, for petitioners.
    James Booth and Ramseur, Bradham & Clark, St. Petersburg, for respondent.
   ANDERSON, Associate Justice.

The respondent filed a complaint in the Circuit Court of Pinellas County for the construction of two Wills of Emma M. Hobbs, deceased, and of a promissory note for $4,500 given by him and his deceased wife, to Emma M. Hobbs, in her lifetime and for a declaratory decree thereon asking the Court to construe the provisions of the two wills and the promissory note “in the light of the services rendered” by him to Mrs. Hobbs “taking into consideration the conditions under which said note was executed and delivered and the conditions under which the said Last (the later in point of time) "Will and Testament of March 16, 1955 was executed by the testatrix, and to enter an appropriate decree fixing and determining the rights and liabilities of the plaintiff under said documents [sic] insofar as the defendants might have any right or claim against the plaintiff.”

The Chancellor denied motions to dismiss the complaint upon the ground' that it “states a cause of action warranting the court in entering a declaratory judgment in favor of the plaintiff because paragraph nine of plaintiff’s Exhibit No. 3 (the Will of March 16, 1955) is susceptible of the construction claimed by plaintiff, to-wit: that the items mentioned therein represent compensation moving to the plaintiff from the testatrix, and therefore no consideration existed for the execution of the promissory note shown as plaintiff’s Exhibit No. 2 to the complaint.”

The defendants applied for a writ of certiorari.

The writ must be granted and the order denying the motions to dismiss quashed.

No reason is apparent why there exists any doubt as to the first will of Emma Hobbs. It left all of her property to Wilbur W. Pugh and his wife, or the survivor. Her Last Will (of March 16, 1955 — Exhibit No. 3) made a different disposition of her property and assigned clear and unequivocal reaons why the Pughs were left out. It needs no construction. It was admitted to probate without objection. The promissory note (Exhibit No. 2) is in conventional form. In the event a suit were brought on it any defenses would be open to the respondent that would be available to him under his complaint for declaratory decree. We expressly refrain from indicating what such defenses would be. We therefore hold that the Chancellor erred in denying the motions to dismiss.

In Columbia Casualty Co. v. Zimmerman, Fla.1953, 62 So.2d 338, 340 the Court said: “The complaint in this case shows on its face that there is no doubt as to the meaning of the contract. The only doubt which is shown to exist is whether or not the automobile was being driven with, or without, the knowledge and consent of the insured. This is not a doubt as to the meaning of the contract or as to the proper interpretation of the contract. It is simply a doubt as to what will be the ultimate outcome of a consideration of the facts bearing on the question of whether or not the automobile was being driven with ,the knowledge and consent of the insured.”

To like effect see Ready v. Safeway Rock Co., 157 Fla. 27, 24 So.2d 808; Bowden v. Seaboard Air Line R. Co., Fla. 1950, 47 So. 2d 786; Halpert v. Oleksy, Fla.1953, 65 So. 2d 762; Mountain v. National Airlines, Fla.1954, 75 So.2d 574 and Bullema v. Losey, Fla.1956, 84 So.2d 715.

There is nothing in Bloomfield v. City of St. Petersburg Beach, Fla.1955, 82 So.2d 364, or Modernage Furniture Corp. v. Miami Rug Co., Fla.1955, 84 So.2d 916, that is inconsistent with these views.

Accordingly the writ of certiorari is granted, and the order denying the motions to dismiss the complaint is quashed with directions to dismiss the complaint.

DREW, C. J., and THOMAS and O’CONNELL, JJ., concur.


source: Caselaw Access Project

author: DREW, Chief Justice.

license: Public Domain

text:
    Ruth PRIDGEN and Henry Pridgen, Jr., a minor, Petitioners, v. INTERNATIONAL CUSHION COMPANY, Employer, The Travelers Insurance Company, Carrier, and Florida Industrial Commission, Respondents.
    Supreme Court of Florida. Special Division A.
    April 18, 1956.
    Rehearing Denied May 21, 1956.
    Dale, Scott & Singer and Paris G. Singer, Fort Lauderdale, for petitioners.
    Fleming, O’Bryan & Fleming, Fort Lau-derdale, Bumis T. Coleman and Rodney Durrance, Tallahassee, for respondents.
   DREW, Chief Justice.

The following facts in this workmen’s compensation case are undisputed and without conflict. Henry Pridgen, the deceased, was employed by International Cushion Company to drive a truck and to load and unload items transported for his employer. January 13, 1955 the deceased and a fellow employee were directed to move some mattresses from one location to another. Between nine and ten o’clock in the morning while engaged in unloading mattresses, Pridgen suddenly collapsed and died within a few minutes. It was a cool morning and the building in which the death occurred was adequately ventilated. It was the first work of the day and was an everyday work chore. In relating the circumstances of the death the fellow employee stated:

“He [Pridgen] was going to bring some mattresses into the shop that we were using, small mattresses. I went over there with him, and I think we put about five mattresses on the truck— thirty inch mattresses, thirty-five pound mattresses approximately. They may be over it. It may be a fraction under it.
“We kept them sideways to put them on the truck and as I laid mine down to slide it in the truck I heard a — I can’t describe the noise — like a groan or a thud and I looked around and Henry was laying on the mattress in a carton at approximately, I would say, twelve or fifteen feet from the door back at the plant in this warehouse. I ran to him. He never spoke and I was there 30 seconds. I told the people that operate the warehouse — a man and his secretary came up and I run over to our shop and told them to call the ambulance. He turned over on his back and held him, but he never did speak.”

The record contains no reference to the age of the deceased or his general physical condition. The wife testified that shortly before the death Pridgen had visited a doctor for treatment of a common cold. She gave a negative answer to the question of whether her husband had ever complained of any heart trouble or similar disease or condition. The fellow employee testified that sometime before his death Pridgen had complained of a cold and a hurting in his chest. The fellow employee said, “He had gone to doctors he told me and he said the doctor said it was a cold.” The record is devoid of any evidence whatsoever of any accident, such as a stumble, slip or fall; or any unusual event, such as lightning or the discharge of an electric current at the time of, or in close proximity at the time of the death of Pridgen, which could have caused his death.

The record does not show whether any autopsy was ever performed or, if performed, the result thereof. No medical evidence was introduced to establish or attempt to establish the cause of death. The entire evidence offered was that of the wife of the deceased and his fellow employee, the material parts of which we have narrated above. Only the death of the decedent was established, an event referred to by some philosophers as the only certain thing in life.

The question presented here, as stat-' ed in petitioners’ brief, is as follows:

“If competent evidence is adduced to prove two of the three elements necessary for a compensable claim, to-wit: The injury during the course of employment, can the statutory presumption that the claim comes within the provision of the Workmen’s Compensation Act be relied upon to supply the third necessary element, to-wit: that the injury arose out of the employment?” (Emphasis theirs.)

The petitioner urges that the evidence narrated above establishes two of the three elements necessary for compensation, namely, the (1) injury (death), (2) during the course of employment, sec. 440.09(1), Florida Statutes 1953, F.S.A., and by applying the presumption of sec. 440.26, Florida Statutes 1953, F.S.A., viz.: “In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary — (1) that the claim comes within the provisions of this chapter.” claimant’s evidence is sufficient to create at least a prima facie showing that the death arose out of (that is, has a causal connection with) the employment. Thus appellants say the burden is shifted to the employer or carrier to show there was no causal connection between the death and the employment.

Arguing that no ruling has been made by this Court on this precise question, petitioners say that under the holding of this Court in Sanford v. A. P. Clark Motors, Fla. 1950, 45 So.2d 185, 187, as approving Crawford v. Benrus Market, Fla.1949, 40 So.2d 889; American Airmotive Corp. v. Moore, Fla.1952, 62 So.2d 37; Lyng v. Rao, Fla.1954, 72 So.2d 53 and Johnson v. Dicks, Fla.1954, 76 So.2d 657, the result urged by them is clearly indicated. We cannot agree that such conclusion may be drawn from any of the cited cases. In Sanford v. Clark, supra, the death of the employee was caused by violent, external means. The cause of death in that case was clearly ascertainable as having arisen out of an automobile accident. We applied a presumption only to the single real question involved in that case— whether the accident occurred in the course of the employment. In that case we observed :

“This court is committed to the doctrine that when a serious injury is conclusively shown and a logical cause for it is proven, he who seeks to defeat recovery for the injury has the burden of overcoming the established proof and showing that another cause of the injury is more logical and consonant with reason. [Citations omitted.] The proof of appellees falls far short of this standard. No other rule could possibly give the force and effect to Workmen’s Compensation that the makers proposed for it. Even in doubtful cases the doubt should be resolved in favor of the claimant.”

There, we were not discussing the subject with which we are dealing in this case— but the question of whether the employee was engaged in the employer’s business at the time of his death by accident. In the instant case, the petitioner attempts to invoke the presumption, not to the proposition of whether the death occurred in the course of employment, but to whether there was any causal connection between the death and the employment. The observation in the last sentence of the quoted matter above would not be applicable in this case for the simple reason that there is no conflicting evidence here out of which a doubt may arise. There is no evidence at all of any causal connection between the death and the employment. Death itself is inevitable. It is an event which must occur to all living things.

Crawford v. Benrus Market, supra, involved personal injuries and the sole question presented was whether the evidence was sufficient to sustain the award of the deputy commissioner as affirmed by the Industrial Commission. In that' case we approved the award on the same basis as we did in the later case of Sanford v. Clark, supra, heretofore quoted. This case is no authority for the proposition urged by petitioners.

In American Airmotive Corp. v. Moore, supra, the deceased was killed in an automobile accident. On conflicting evidence we held that the death arose out of and in the course of the employment. On the basis of abundant evidence in the record we determined that there was a causal connection between the death and the employment.

Lyng v. Rao, supra, was a lightning case and again the question was whether or not the evidence was. sufficient to establish an injury, it being conceded that the employee was in the course of her employment. There was sufficient evidence in the record in-that case to establish: (1) that there was an injury, and (2) that it occurred in the course of the employment, and (3) that there was a causal connection between the employment and the injury.

In Johnson v. Dicks, supra, the record shows that an autopsy was performed on the deceased employee. The real question in that case was whether death was from natural causes or from electrocution. W® held that it was from the latter cause and that it occurred while the employee was in the course of his employment picking oranges,

We conclude that proof of death alone, even though death occurred while deceased was in the performance of his employment, is insufficient in itself to establish any causal connection between the employment and the death. In such cases as this the body of the deceased is available for an autopsy or for a medical examination. The law requires that at least some evidence be presented by the claimant to establish the cause of death, or that sufficient evidence be introduced to allow logical inference of a connection between the death and the employment in order to bring such claim within the purview of the Workmen’s Compensation Act. We think the case is controlled by Fidelity & Casualty Company v. Moore, 143 Fla. 103, 196 So. 495; Sims Tire Service v. Parker, 146 Fla. 23, 200 So. 524; Cleary Bros. Const. Co. v. Nobles, 156 Fla. 408, 23 So.2d 525; Reed v. Brinson, Fla. 1951, 50 So.2d 877; Wesley v. Warth, Fla. 1951, 52 So.2d 346; Martin v. Board of County Commissioners, Fla.1955, 79 So.2d 513.

Cases in this Court in which we have discussed the presumption in sec. 440.26, Florida Statutes, F.S.A., are: Neuman v. Shel-bourne, 155 Fla. 491, 20 So.2d 677; Florida Forest and Park Service v. Strickland, 154 Fla. 472, 18 So.2d 251; City of St. Peters-burg v. Mosedale, 146 Fla. 784, 1 So.2d 878; Kane v. Rutas Aereas National es, 6 Fla. Supp. 139. The New York courts have extensively reviewed a statutory presumption in their Workmen’s Compensation Act which is materially the same as the Florida provision. Chapter 67, McKinney’s Consolidated Laws of New York, Workmen’s Compensation Law, § 21; Vol. 11, Consolidated Laws Service (N.Y.) sec. 21— contains summaries of many of the New York decisions. Massachussetts has a provision which only applies when the worker is killed or otherwise injured so as not to be available to testify. Cf. Goddu’s case, 323 Mass. 397, 82 N.E.2d 232; Lapinsky’s case, 325 Mass. 13, 88 N.E.2d 642; LeBanc’s case, 1955, 332 Mass. 334, 125 N.E.2d 129. See also a note on Workmen’s Compensation presumptions in 120 A.L.R. 683; also, Vol. 1, Larson’s Workmen’s Compensation Law, p. 106; and on statutory presumptions generally, e. g., Morgan, 44 Harvard Law Review 906; Morgan, 2 Selected Essays on Constitutional Law 1500; Keeton, 10 Texas Law Review 34.

A simple illustration demonstrates that the result which we reach is the only one possible under the circumstances. In this instance if the body of the deceased employee had been cremated or destroyed by burial, the employer or carrier would have been deprived of the only possible means of defense to the claim.

Certiorari is denied.

THOMAS and THORNAL, JJ., and PATTERSON, Associate Justice, concur.


author: THOMAS, Justice.

text:
    COLONIAL TRANSFER CO., a corporation, Appellant, v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY, a corporation, Appellee.
    Supreme Court of Florida. Division B.
    April 18, 1956.
    Rehearing Denied May 7, 1956.

      Blackwell, Walker & Gray, Miami, for appellant.
    Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, for appellee.
   THOMAS, Justice.

In the consideration of this case we are concerned with the relevant provisions of Chapter 678, Florida Statutes 1953, and F.S.A., the Warehouse Receipts Act.

In the appellee’s complaint it was alleged that the appellee deposited with the appellant, “a warehouseman as defined” in the act, a large quantity of telephone directories which were in good condition, and paid the appellant for the storage.

It was charged that while the books were in the appellant’s hands the appellant “failed in its statutory duty to exercise such care in regard to [the property] as a reasonably careful owner of similar goods would exercise” and as a consequence the directories were so damaged that they were worthless, except for a nominal amount received for them as salvage. The plaintiff averred that the directories would have been worth approximately $24,000 had the defendant exercised the care stipulated in Sec. 678.21 of the Act, but that as a consequence of the violation of this duty their value was reduced to about $600.

It seems appropriate here to give the substance of Sec. 678.21 which is titled “Liability for care of goods.” By its terms a warehouseman is responsible for injury to goods resulting from “his failure to exercise such care * * * as a reasonably careful owner of similar goods would exercise,” but in the absence of an agreement to the contrary he is not liable for damage “which could not have been avoided by the exercise of such care.”

The defendant filed a plea of not guilty, a plea denying each allegation of the complaint and six defensive pleas.

Twice each year the appellee has telephone directories printed for use of its subscribers in the Miami area and it engages Crumbley Distributing Company to deliver the books to its customers. To perform the work the distributors must have a central location from which to operate. In the process of distribution, appel-lee’s representatives continuously inspect the distributor’s work. The appellee secured from the appellant, by verbal agreement, space in the latter’s warehouse for use as a base from which distribution of the directories would be made. Some deliveries, in bulk, were made by the appellant to various points in Miami for which it was compensated.

The building, described as a “warehouse-type” was located adjacent to the tracks of Seaboard Air Line Railroad. The appellant was primarily engaged in transferring merchandise. The goods were received, generally in carload lots, at the warehouse in question which served as a freight terminal, and were re-shipped in appellant’s own trucks to various consignees.

By their agreement the appellant was to store the surplus directories in its warehouse after the immediate distribution had been completed. This is the phase of the transaction involved in this litigation. From the nature of the property, deliveries were frequently being made even after the distributing company had finished its work, so the charge for storage was based on the number, in hundreds, of the books on hand from time to time.

The property placed in the custody of the appellant was, in this sense, fluid. The distributing company in a relatively short time delivered the bulk of the directories; Afterward deliveries to new subscribers and to replace lost or stolen directories continued and the stock diminished accordingly. Payment for storage was based on the number of directories on hand from time to time, and the appellant seems to have taken the word of tire appellee for the number on which the charge should be periodically computed. The representatives of the appellee necessarily had free access to the building but as they had no key they could enter the warehouse only when it had been opened by the employees of appellant.

During the distribution period, but after the appellee had stored surplus of the stock in the place assigned, fire of unknown origin occurred. It was discovered by appellant’s terminal manager who attempted to' extinguish it with ordinary “wall-type soda-acid” fire extinguishers which were found to be ineffective.

The appellant first asked whether or not the trial court erred by his refusal to direct a verdict for the defendant when there was no substantial evidence that it maintained fire-fighting equipment in a manner other than a reasonably prudent warehouseman would have done.

In the Act, Sec. 678.54, a warehouseman is defined as “a person lawfully engaged in the business of storing goods for profit.” For the purpose of the argument addressed to the immediate question, the appellant assumes that the relationship of the parties was that of commercial warehouseman-bailor and argues that there was no proof of failure on its part to exercise the care described in the complaint and required by the statute, from both of which we have quoted. The appellant argues that there was no evidence setting any standard of care that should have been observed by a bailee in its position, or to show what fire-fighting equipment should have been maintained. Moreover that there was no proof that any city ordinance had been violated, or that there was need for a sprinkler system or alarm systems or for ready axes. It is also argued that due care was exercised because all fire extinguishers on the property of the Seaboard Air Line Railroad, the owner and lessor of the warehouse, were maintained by an employee of the owner in an approved manner, and that the extinguishers were inspected and refilled periodically, and were to be re-charged on a date two days after the fire.

The testimony of the person who was supposed to test the fire extinguishers was unsatisfactory, to say the least, and the jury were thoroughly justified in rejecting it; and even had it been more nearly convincing, the jury would not have been warranted in finding that because of some arrangement in that respect between the lessor and its agent, the appellant-lessee and-bailee could escape liability for failure to discharge duty owed by it direct to the appellee.

Employees of the appellee had not been on the premises for two hours preceding the discovery of the fire and no one knew just how it started. We think this phase of the case may be decided on the fact that no equipment for fighting fire was present, except worthless extinguishers; and on the question whether or not this situation demonstrated want of that care which would be expected of a cautious owner of similar goods. The jury were privileged to believe testimony of witnesses that three fire extinguishers were tried and all were found deficient, and of an expert witness that one good extinguisher would have sufficed to control the fire, and two would have been sufficient to quench it.

We think the presence or absence of proper care was a question to be resolved by the jury. Runkle v. Southern Pac. Milling Co., 184 Cal. 714, 195 P. 398, 16 A.L.R. 275; Exporters’ & Traders’ Compress & Warehouse Co. v. Shaw, Tex. Civ.App., 20 S.W.2d 248.

There was abundant reason for the verdict and judgment which constituted a finding and adjudication that the care exacted of warehousemen by the statute had not been forthcoming.

In the argument of the second question, it is contended that the appellant was not a warehouseman. It is said that no warehouse receipts were issued and that the appellant was “not generally nor regularly engaged in the commercial warehousing business” but was operating as a transfer company.

Replying, the appellee refers to the definition of a warehouseman we have already quoted .and to indicia of the appellant’s status- appearing in the record. For instance, the letterhead of the appellant listed its activities as commercial hauling, warehousing, and so on. In a letter, written on its stationery, the president of appellant-corporation confirmed a conversation between him and the “District Directory Manager” of appellee-corporation, quoting the charge that would be made for services and facilities including “Storage (per month, per bundle) 3‡.” In a later letter, on the same stationery, the president of appellant-corporation wrote : “The supply of extra directories are being stored in our warehouse * * On invoices issued by appellant-corporation appear notations about books “Returned to Whse.” As for the absence of warehouse receipts, the ap-pellee points to Sec. 678.01 which contains the simple sentence: “Warehouse receipts may be issued” indicating, of course, that issuance is permissive but not mandatory. (Italics supplied.)

When the salient facts on which the appellee relies are juxtaposed with those on which the appellant depends, we conclude from the comparison that the former definitely preponderate and establish that the latter was, and intended to be, a warehouseman and in that capacity performed services and furnished facilities for a profit.

Adverting to the first question, we conclude that as a warehouseman the appellant did not meet the burden placed upon it by the Act and that it was properly held accountable for the- default.

Having come to these views by our study of what we consider the pivotal points in the case, we wonder what would be accomplished by a discussion and decision of the procedural question- blended with the ones we have discussed, that is, whether or not the judge should have construed the arrangement between the parties as a matter of law instead of submitting the matter to the jury as one of fact. During the trial when the course he should follow was being argued he said: “ * * * I will state for the record that if the Court has to rule on it, I will rule he [sic] is a warehouseman in this case.” Our opinion coincides with his. This being the case it would be a mere gesture to reverse the judgment on the ground that there was error in the procedure. If there was error, which we do not decide, it has now become harmless.

Our conclusion is that the appellee properly prevailed.

Affirmed.

DREW, C. J., and ROBERTS and O’CONNELL, JJ., concur.


author: HOBSON, Justice.

text:
    STATE of Florida ex rel. James P. RANDALL, Appellant, v. MIAMI COIN CLUB, Inc., etc., et al., Appellees.
    Supreme Court of Florida. Division A.
    June 13, 1956.
    Horton & Horton, Miami, for appellant. Warren Glasgow, Miami, for appellees.
   HOBSON, Justice.

Appellant was a member of appellee corporation, a social, club incorporated under F.S. § 617.10, F.S.A. It is. stipulated that the corporation is “located” in Dade County. On June 25, 1954, appellant was, expelled from the group by majority vote of the executive committee, in accordance with the by-laws of the club. He was given no opportunity to be heard. At the tim.e of his expulsion, he was not in E*adc-County but was in Broward County, where he resides.

Appellant instituted mandamus proceed-' ings in the Dade County Circuit Court seeking reinstatement as'a member of the elub.« The club defended on the ground that tth- - der F.S. § 617.10(2), F.S.A,, appellant -w¡as not entitled to be heard. The proviso itx. the statute relied on by the club reads as follows:

“ * * * provided, ■ thát before .his membership shall cease against his consent he shall be given an opportunity to be heard, unless he is absent from-the cotmty where the corporation is located * * (Italics supplied.)

The Circuit Judge ruled for the appellee club, observing in his order that, although it was difficult to understand why an absent member would be denied an opportunity to be heard, that was the import of (he statute, and since the constitutionality of the statute was not raised the court had no alternative but to deny the prayer for the issuance of a peremptory writ.

The sole question presented by appellant here is “Did the lower court, by its judgment of February 9, 1955, correctly interpret and apply the provisions of Sec. 617.10, F.S.A., which reads as follows: [the language of the proviso', quoted above, is given]”

The whole argument of appellant is that the statute was adopted when means of communication were primitive and it would have placed too much of a burden on a club to call in absent members and accord them an opportunity to be heard, • whereas at present this is not true. It is therefore urged that the trial judge “misinterpreted” the statute. Only at the conclusion of the brief is it suggested that the statute may b^ subj ect to a constitutional obj ection, but this suggestion is neither properly briefed nor argued. Consequently, it cannot be said to be raised on this appeal. It therefore appears that appellant’s position is wholly untenable in that the learned Circuit Judge merely followed the plain language of the statute and could have reached no other result on the showing made and point raised. The case is not to be confused with La Gorce Country Club v. Cerami, Fla., 74 So.2d 95, wherein Cerami, who was expelled from a club without an opportunity to be heard, was within the county when expelled.

The judgment must be, and it is hereby, affirmed.

DREW, C. J., and TERRELL and THORNAL, JJ., concur.


author: THORNAL, Justice.

text:
    H. H. SHORES and H. G. Shores, Appellants, v. Ida MURPHY and her husband, R. H. Murphy, Appellees.
    Supreme Court of Florida. En Banc.
    May 9, 1956.
    Rehearing Denied May 25, 1956.
    A. G. Campbell, Jr., De Funiak Springs, for appellants.
    James N. Daniel, Chipley, for appellees.
   THORNAL, Justice.

Appellants Shores, who were defendants below, seek reversal of an adverse judgment entered in favor of appellees Murphy, who were plaintiffs below in an ejectment proceeding.

The issue on appeal is whether the trial judge committed error in ordering a jury trial despite the fact that neither party had demanded trial by jury in accord with the provisions of 31 F.S.A. Rule 2.1(b), Florida Rules of Civil Procedure.

The record reveals that neither the plaintiffs by their complaint, nor the defendants by their answer, demanded a jury trial. When the case came on for trial, the following transpired:

“By Mr. Campbell: Defendants, through their attorneys, object to proceeding in the trial by a jury in this case and move the Court to try said cause without a jury; neither side having asked for a jury trial, as provided by Rule 2.1, Florida Rules of Civil Procedure, and the defendants not consenting at this time a demand for trial by Jury by the plaintiffs.
“By the Court: The motion will be over-ruled and I will deny the motion, because it is the Court’s conclusion that sub-section B and D of Rule 2.1 is invalid and unconstitutional, in that the Constitution guards the right of trial by jury, which right is recognized in Sub-section A of Rule 2.1 and it being the Court’s conclusion that a constitutional right cannot be denied by negative action, altho said right may be waived by affirmative action by both sides.
“By Mr. Daniel: I would like to add that plaintiff has no objection to trial by a jury.”

Although the record does not so reveal, counsel for appellants in the oral argument conceded that when the docket was sounded several days before the date of trial, the parties were at that time advised by the court that the case would be tried before a jury.

The sole ground for reversal argued by appellants is that the trial judge committed error in ordering a jury trial. The- correctness of the ultimate judgment is not questioned. Appellees contend that the trial judge had a reasonable discretion to exercise within the limits of the Florida Rules of Civil Procedure and that his discretion was not abused.

Although we do not agree that subsections (b) and (d) of Rule 2.1, Florida Rules of Civil Procedure, are unconstitutional, as suggested by the trial judge, nevertheless, for the reasons hereinafter stated we find no justification to reverse the judgment under attack.

The pertinent parts of Rule 2.1, Florida Rules of Civil Procedure, are as follows:

“Rule 2.1. Demand for Jury Trial-Waiver
“(a) Right Preserved. The right of trial by jury as declared by the Constitution or by statute shall be preserved to the parties inviolate.
“(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury, by serving upon the other party a demand therefor in writing at any time after commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party.
* * $ * * *
“(d) Waiver. The failure of a party to serve a demand as required by this rule and to file it as required by these rules shall constitute a waiver by him of trial by jury. If waived, a jury trial may not be granted without the consent of the parties. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.”

The present rule is similar to Rule 38 of the Federal Rules of Civil Procedure, 28 U.S.C.A. and supersedes former Florida Common Law Rule 31, which read as follows :

“Unless the plaintiff in his complaint or the defendant in his answer shall demand a trial by jury, a trial hy jury shall Be deemed to have been waived.”

We have consistently held that the purpose to be accomplished by rules of this nature is to expedite the disposition of cases where possible by enabling the trial courts to clear congested dockets. It was never intended that parties would be arbitrarily denied a tidal by jury where such denial might work an injustice. Furthermore, one of the basic objectives of the New Rules of Civil Procedure was to expand the judicial discretion of the trial courts in procedural matters wherever full and complete justice required that such discretion be exercised. Instead of limiting and restricting the sound discretion of the trial judge, the purpose of the New Rules was to liberate the trial courts from many of the hard and fast technical procedural restrictions of the common law. Messana v. Maule Industries, Inc., Fla.1951, 50 So.2d 874; Fountain of Youth Broadcasting Co. v. Church, Fla.1951, 51 So.2d 728.

In Wood v. Warriner, Fla.1953, 62 So.2d 728, we held that under former Common Law Rule 31, even though jury trial had not been demanded in the complaint or answer, the trial judge did not abuse his discretion by granting a motion for a jury trial filed by the plaintiff on the day of the trial.

Federal Rule 38 is very similar to Florida Rule 2.1. However, the Florida Rules of Civil Procedure do not include a rule similar to Federal Rule 39, which by its terms authorizes the trial judge in his discretion to order a trial by jury upon motion even though neither party is entitled to a jury trial as a matter of right because of the waiver that results from a failure to demand trial by jury in accordance with the rule. The broad discretion of the trial courts in ordering a jury trial under the Federal Rules was recognizd by the Circuit Court of Appeals for the Fifth Circuit and approved by the Supreme Court of the United States in Roth v. Hyer, 142 F.2d 227, certiorari denied 323 U.S. 712, 65 S.Ct. 38, 89 L.Ed. 573.

Although we do not have a Florida Rule similar to Federal Rule 39, it should be noted that under Florida Rule 1.15(e) a trial judge is granted an exceedingly broad discretion in permitting amendments in procedural matters and otherwise disregarding defects which do not affect the substantial rights of the parties. This would include the discretion to order a jury trial if justice requires it.

When construed as above, it is our view that Rule 2.1, Florida Rules of Civil Procedure, meets the requirements of the Constitution which, by Section 3 of the Declaration of Rights, F.S.A., requires that the right to trial by jury shall remain inviolate. Consequently, we do not agree with the trial judge when he expressed the view that the Rule is unconstitutional. On the other hand, in the case before us, the appellants do not contend that there was any error in the verdict of the jury in favor of the appellees or in the ultimate judgment of the court entered upon the verdict. Under such circumstances it could hardly be effectively contended that the appellants have suffered injury by the requirement of the trial judge that the case be tried before a jury. There is no argument offered to us to show that the conclusion would have been otherwise if the cause had been tried by the judge without a jury. Furthermore, there is no contention that the trial judge abused his discretion in ordering a jury trial even though the reason that he gave for justifying the exercise of his discretion might not have been a sound one. Consequently, if any error was committed in this case, it was necessarily harmless.

We therefore hold that Rule 2.1 'of the Florida Rules of Civil Procedure is constitutional and that by failing to comply with it, the parties to a cause may waive the privilege of a jury trial as a matter, of right. Nevertheless, when this Rule is considered in the light of the other Rules of Civil Procedure, as well as the recognized power of the trial judge to direct the course of the trial in a manner consistent with the requirements of justice, so long as he exercises his discretion within the orbit of applicable rules and statutes, we further hold that under appropriate circumstances, the trial judge still may exercise a sound judicial discretion in ordering a trial by jury subject to the limitation that the discretion must not be abused to the injury of the parties-litigant. No abuse is here shown.

No error having been made to appear in the verdict and judgment under attack in the case before us, the judgment must therefore be—

Affirmed.

DREW, C. J., and TERRELL, THOMAS, ROBERTS and O’CONNELL, JJ., concur.

HOBSON, J., not participating.


author: PER CURIAM.

text:
    E. R. LAMBERT, as Administrator of the Estate of Vina Zapf, Deceased, Appellant, v. Alsina Zapf THORNTON, Appellee.
    Supreme Court of Florida. Division B.
    May 2, 1956.
    Rehearing Denied May 25, 1956.
    Carlton L. Welch and Will O. Murrell, Jacksonville, and Frank M. Lipscomb, Jacksonville Beach, for appellant.
    Louis S. Joel and Norman P. Freedman, Jacksonville, for appellee.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appealed from pursuant to 31 F.S.A.Rule 38 of the Rules of this Court and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument ;

It is' accordingly ordered, adjudged and decreed that the motion to affirm the judgment appealed from be, and the same is, hereby granted, and the . judgment is

Affirmed.

DREW, C. J., and THOMAS, ROBERTS and O’CONNELL, JJ., concur.


text:
    Ruth W. PHILIPS, Appellant, v. Kingsley H. GERLACH, Appellee.
    Supreme Court of Florida, Division B.
    July 13, 1956.
    Rehearing Denied Sept. 11, 1956.
    Boone D. Tillett, Jr., Lake Wales, for appellant.
    Arthur A. Simpson (of Macfarlane, Ferguson, Allison & Kelly), Tampa, for ap-pellee.
   PER CURIAM.

Affirmed on authority of Hamilton v. Flowers, 134 Fla. 328, 183 So. 811; and State ex rel. Lorenz v. Lorenz, 149 Fla. 625, 6 So.2d 620.

DREW, C. J., and THOMAS, ROBERTS and O’CONNELL, JJ., concur.


text:
    Sadie R. WILLIAMS, Appellant, v. SURF PROPERTIES, Inc., t/b/d Belmar Hotel, Appellee.
    Supreme Court of Florida. Special Division B.
    June 13, 1956.
    George Schwartz, Miami Beach, for appellant.
    Wicker & Smith, Miami, for appellee.
   PER CURIAM.

Upon careful consideration of the record we cannot agree that there was no genuine issue of fact to be determined by a jury, so the summary judgment is reversed with directions to proceed accordingly.

Reversed.

DREW, C. J., THOMAS and ROBERTS, JJ., and CARROLL, Associate Justice, concur.


author: TERRELL, Justice.

text:
    Gerald G. MATTHEWS, Appellant, v. LAWNLITE COMPANY, a corporation, Appellee.
    Supreme Court of Florida. Division A.
    May 25, 1956.
    Rehearing Denied July 5, 1956.

      Carey & Harrison, St. Petersburg, for appellant.
    Arthur W. Primm, Miami, for appellee.
   TERRELL, Justice.

Appellant was plaintiff and appellee was defendant below. In his second amended complaint plaintiff alleged that defendant was engaged in the business of manufacturing aluminum outdoor furniture and selling it to the public through retail merchants or distributors; that on or about March 27, 1954, defendant sold and delivered one or more pieces of such furniture to Dean*s Tropical Furniture Shop, a retailer located in St. Petersburg, Florida; that on the date last mentioned plaintiff was in Dean’s Tropical Furniture Shop examining furni.ture with the view of purchasing and sat in a lounge chair manufactured by defendant. “As plaintiff sat in said chair he laid his right hand on the right hand arm rest of said chair and the third finger of said right hand extended over the front of the tight hand arm rest and under the front end thereof. Thereupon his said third finger of .his right hand was completely severed by the moving parts of said chair and tile finger fell upon the floor.” A motion to dismiss thé complaint was granted and this appeal was prosecuted from said order.

The point for determination is whether or not the manufacturer of lawn chairs is liable for injuries to a customer or potential purchaser inflicted on him when examining one of said chairs in the store of a retailer ■with the view of purchasing. The injury ’to said customer was caused from clipping off one of his fingers by a mechanism concealed under the arm of said chair.

Appellee contends that this question should he. answered in the negative and súpports’its contention with Poretz v. R. H. Macy & Go.; Inc.; Sup., 119 N.Y.S.2d 211; Liedeker v. Sears, Roebuck & Co., 249 App. Div. 835/292 N.Y.S. 541; Id., 274 N.Y. 631, 10 N.E.2d 586, and similar cases. These cases have’ been examined and hold that there is no liability where the hazards complained’of are apparent to the plaintiff; they also subscribe to the doctrine that the plaintiff can not recover for injury sustained as a result of his own careless and negligent conduct.

These cases also modify the early common law rule which inhibited recovery where there was absence of privity of contract. Huset v. J. I. Case Thrashing Mach. Co., 8 Cir., 120 F. 865, 61 L.R.A. 303 ; 86 A.L.R. 949; MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, Ann.Cas.l916C, 440. While these and other case's -reveal the early pattern of thought in cases of this kind, there is a rash of later cá'ses which also reveal a more humane or reasonable trend of decisions in the disposition of such cases. Statler v. George A. Ray Mfg. Co., 195 N.Y. 478, 88 N.E. 1063; Devlin v. Smith, 89 N.Y. 470, 42 Am.Rep. 311; Parks v. C. C. Yost Pie Co., 93 Kan. 334; 144 P. 202, L.R.A. 1915C, 179; Catani v. Swift & Co., 251 Pa. 52, 95 A. 931, L.R.A.1917B, 1272; Flies v. Fox Bros. Buick Co., 196 Wis. 196, 218 N.W. 855, 60 A.L.R. 357; Heckel v. Ford Motor Co., 101 N.J.L. 385, 128 A. 242, 39 A.L.R. 989, and many others might be cited.

These and other cases have so often departed from or modified the old theory that an innocent third party who purchases from a retailer can not sue a manufacturer because of absence of privity of contract that the doctrine may be said to have been abandoned in many jurisdictions. A doc-triné more in line with reason and justice has been substituted for it and may be said to have been crystallized in Restatement of the Law of Torts, Sec. 398, Vol. 2, page 1084, as follows:

“A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel lawfully or to be in the vicinity of its probable use, for bodily harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.’

This court has several times been con-onted with the question and has held the manufacturer liable to the third party on an implied warranty where food in sealed containers was brought in question. Blanton v. Cudahy Packing Co., 154 Fla. 872, 19 So. 2d 313; Hoskins v. Jackson Grain Co., Fla., 63 So.2d 514; Florida Coca-Cola Bottling Co. v. Jordan, Fla., 62 So.2d 910. See also Smith v. Burdine’s, Inc., 144 Fla. 500, 198 So. 223, 131 A.L.R. 115; McDonald v. Sanders, 103 Fla. 93, 137 So. 122; Tampa Shipbuilding, etc., Co. v. General Const. Co., 5 Cir., 43 F.2d 309, 311, 85 A.L.R. 1178; United States Rubber Products v. Clark, 145 Fla. 631, 200 So. 385; Lambert v. Sis-trunk, Fla., 58 So.2d 434. In the last four cases involving secondhand goods, no liability was permitted on the basis of implied warranty.

An implied warranty does not protect against hazards apparent to the plaintiff; it protects against an usual or apparent use. It does not protect against injury imposed while carelessly using a dangerous mechanism. A lounge chair is not a dangerous instrumentality. Dangerous instrumentalities have been defined as those which by nature are reasonably certain to place life and limb in peril when negligently constructed, such as airplanes, automobiles, guns and the like.

The chair in question is a rocking chair with moving parts; it rocks back and forth. It was constructed of aluminum and was used for rest and recreation; it looks harmless, every aspect of it suggested ease and comfort. There was no notice of any kind that beneath its restful armrest there were moving metal parts so constructed that they would amputate the occupant’s fingers with the ease that one clips a choice flower with pruning shears. It was designed, constructed and delivered to the public with these moving parts that were essential to its use. They were completely concealed from the user and as essential parts of the chair were inherently dangerous, No one would suspect that such a dangerous device would be concealed in such an innocent looking instrumentality.

It is a well settled principle of law that one is not required to guard against danger in places where it is not expected to be. No one would ever suspect danger under the arm of a lounge chair designed for ease and comfort. In our view the facts recited bring this case within the rule recited from Restatement of Torts. If such a mechanism is required for the chair, it should be protected by a housing. It follows that the judgment appealed from must be, and is hereby, reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed with directions.

DREW, C. J., and HOBSON and THORNAL, JJ., concur.


text:
    Fred E. CRANE and Dorothy B. Crane, his wife, Appellants, v. Julian H. LIFSEY, Jr., and Cone Brothers Contracting Company, Inc., Appellees.
    Supreme Court of Florida. Division B.
    May 2, 1956.
    Rehearing Denied May 25, 1956.
    Peyton T. Jordan, jr., and Jordan & Jordan, Tampa, for appellants.
    Robert L. Pursifull and Lifsey, Pursifull & Johnston, Tampa, for appellees.
   PER CURIAM.

■ This cause came on to be heard on the motion of appellee to affirm the .judgment appealed from pursuant to 31 F.S.A.' Rule 38 of the Rules of this Court and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly ordered, adjudged and decreed that the motion to affirm the judgment appealed from be, and the same is, hereby granted, and the judgment is

Affirmed.

DREW, C. J., and THOMAS, ROBERTS and O’CONNELL, TT., concur.


text:
    VOLUSIA DISCOUNT COMPANY, Inc., a Corporation, Appellant, v. ALEXANDER K-F MOTORS, a Division of Kaiser Fraser Sales Corporation, Appellee.
    Supreme Court of Florida. Division A.
    May 25, 1956.
    Rehearing Denied July 5, 1956.

      Raymond, Wilson & Karl, Daytona Beach, for appellant.
    Hull, Landis, Graham & French, Daytona Beach, for appellee.
   THORNAL, Justice.

Appellant Volusia Discount Company, Inc., which was defendant below, seeks reversal of a summary judgment awarding damages to appellee Alexander K-F Motors, plaintiff below, in a replevin proceeding.

The question presented by the appeal is the correctness of the ruling of the trial judge awarding a summary judgment in favor of the appellee.

The record reveals that one R. A. Heptin-stall, Sr., d/b/a T. & H. Motors, was the local dealer in DeLand, Florida, for Henry J automobiles. Alexander K-F Motors was the distributor for such automobiles in Jacksonville. On August 3, 1953, Heptinstall ordered two new cars from the distributor and obtained a complete description of the automobiles by telephone, including model, serial number and motor number. On the same day he executed and delivered to Vo-lusia Discount Company a promissory note and a trust receipt which contained the detailed description of the automobiles. The Discount Company thereupon paid over to Heptinstall an amount approximately equal to the wholesale price of the cars. Two days later Heptinstall went to Jacksonville, obtained the two automobiles and received from the distributor an invoice which, in the automobile trade, evidences transfer of title and which said invoice showed on its face that the cars were delivered to Heptinstall on the basis of “cash on delivery.” The dealer gave the distributor his check for the purchase price and took possession of the automobiles, returned them to DeLand and exhibited the invoice to the Discount Company. The distributor deposited the dealer’s check on August 8, 1953, and on August 11 the drawee bank returned it because of insufficient funds. The check was redeposited and again returned for the same reason on August 17. On August 27, at the request of the distributor, the dealer issued a new check to replace the first check. The second check was returned because of insufficiency of funds on August 29.

On August 14, 1953, the dealer by telephone ordered a third Henry J and followed the identical procedure with the Discount Company and the distributor. On August 19 the dealer gave his check to the distributor, and received the third car. This check having been deposited on August 21 was likewise returned for insufficiency of funds on August 29. On August 29, the dealer Heptinstall defaulted on the loans that he procured from the Discount Company on the three automobiles and on that date the Discount Company took possession of the automobiles under the trust receipts and later sold them to innocent purchasers for value.

The deposition of the dealer is to the effect that the distributor knew that he (the dealer) was in financial difficulties, that they were extending credit to him for the automobiles by agreeing to withhold the deposit of his checks for several days on each occasion, that they had known for several months that he was in financial trouble and further that when he ordered the cars by telephone, he advised the distributor’s representatives that he needed detailed information with reference to the cars in order to “floor plan” them with the Discount Company. The wholesale manager of the distributor, by deposition, denied that the distributor’s representative was informed in the telephone conversations that the dealer expected to “floor plan” the cars. He did concede, however, that as far as the distributor was concerned, after delivery of the checks, the dealer could sell the automobiles to a customer and that once the dealer took possession of an automobile and had paid for it, their assumption was that the car “was paid for and gone.” He further stated that as far as they were concerned the dealer’s check “was legal tender for an automobile.”

On September 2, 1953, the distributor instituted replevin proceedings against the dealer and the Discount Company in an effort to repossess the three automobiles. The evidence showed that the cars had been sold and in lieu of a judgment awarding possession to the distributor, the trial judge granted the distributor’s motion for the summary judgment against the Discount Company and the dealer for an amount equal to the value of the automobiles. This appeal seeks reversal of this judgment.

The dealer has not appealed but the Discount Company contends that the depositions and affidavits submitted to the trial judge show substantial conflicts on material facts as to whether the distributor actually passed title to the dealer by accepting his check in lieu of cash and issuing the “invoice-bill of sale” showing cash on delivery, and further- whether the distributor had waived its rights to reclaim the automobiles as against the Discount Company by issuing the bill of .sale, and finally, whether the Discount Company is a good faith purchaser for value.

Appellee seeks to sustain the judgment of the trial court with the contention that there was no genuine issue on the controlling material fact, that title never passed to the dealer because the checks were returned for insufficiency of funds and that, therefore, the floor planning arrangement never became effective.

The correctness of the ruling of the trial court must be tested by the rules applicable to the awarding of summary judgments. If there was a genuine issue on material facts, then the summary judgment should not have been awarded and the cause should have been tried in the usual course.

We dismiss the contention that the appellant was a “good faith purchaser for value” for the reason that these automobiles were obviously not acquired by the appellant in the usual course of retail trade. It is for this reason that appellant cannot receive the benefit of those decisions which protect the customer who purchases a commodity in the course of retail trade even though the merchant or dealer does not have title to the commodity sold.

The problem before us, however, involves a consideration of Chapter 673, Florida Statutes, F.S.A., known as the Uniform Trust Receipts Law, which was originally adopted in Florida as Chapter 26730, Laws of Florida 1951. So far as we are informed, this is the first time we have been called upon to consider this Act. The Act is extremely technical and a discussion of all of its aspects would unnecessarily burden this opinion. The reader is referred to the statute and explanatory references cited herein for an understanding of the scope and effect of the provisions of the statute.

In order to understand the applicability of the statute, it is- necessary to consider the nature of the document executed by the dealer and delivered to the Discount Company. It is designated a “trust receipt.” The Discount Company is designated “the entruster” and the dealer is called the “trustee.” The trust receipt specifically provided that its terms and conditions were to be construed according to the Uniform Trust Receipts Law of Florida, Chapter 673, Florida Statutes, F.S.A. It recites that the trustee “does hereby pledge, assign, transfer and sell to the entruster” the particularly described automobile. It further states that the transfer and sale “is made for the purpose of creating a security interest” in the entruster in the described automobile to secure the repayment by the trustee of the “new value” of the automobile advanced by the entruster to the trustee. The trustee agrees that he shall keep the automobile on his place of business solely for the purpose of sale or exchange in the usual course of the trustee’s trade.

The trust receipt method of financing the acquisition of automobiles by dealers and the ultimate sale to purchasers in the usual course of trade has been a fairly recent development in the realm of commercial financing. Although trust receipt transactions were well known to the common law, particularly in financing the importation of goods from foreign countries, it was not until the late Twenties that it became evident that this type of financing could be of practical value in the domestic retail markets. So it was that in 1933 after years of study, the commissioners on Uniform State Laws recommended the Uniform Trust Receipts Act which has now been adopted in 32 states, plus Alaska and Puerto Rico, in substantially the same form as it exists in Florida. See Vol. 5 Fordham Law Review, p. 240, and Vol. 41 Columbia Law Review, p. 1134. Also see 1933 Handbook of the National Conference of Commissioners on Uniform State Laws, p. 241, for a detailed analysis of the reasons for the adoption of this particular Act.

Section 673.02, Florida Statutes, F.S.A., includes in the definition of trust receipt transactions the following:

“(c) The entruster gives new value in reliance upon the transfer by the trustee to such entruster of a security interest in goods or documents whether or not such goods or documents are owned or possessed by the trustee prior or subsequent to the execution of the trust receipt and whether or not such goods are thereafter retained in the trustee’s possession; * * (Emphasis added.)

The same section of the Act requires that the “new value” given by the entruster must be against the signing and delivery by the trustee of a writing designating the goods and reciting that a “security interest” therein will remain in or will pass to the entrust-er. It should be noted that under this Act it is provided that at the time the trust receipt is executed by the trustee (the dealer) he is not necessarily required to be the owner or possessor of the goods in which the entruster is given the “security interest.” The obvious reason for this is that one of the primary purposes of trust receipts financing authorized by the Act is to enable a retail dealer to obtain funds to purchase goods or merchandise to maintain his inventories at a satisfactory level in order to meet the demands of the retail market. This is so because it has been found that many small retailers are not able to supply their own financing in an amount sufficient to provide the inventories adequate to meet the public demand. In practice under the form of trust receipt financing followed in this case, the retailer would execute and deliver the trust receipt to the finance company which would then deliver the money to- the retailer who in turn would use the money to acquire the automobile from the distributor and upon acquiring title to the automobile, it then automatically becomes subject to the “security interest” of the finance company. The automobile remains on the “floor” of the dealer who ultimately sells the car to a purchaser in the course of trade and thereupon repays the finance company either in the form of cash or by transfer -of the lien papers executed by the purchaser. This is known to the trade as “floor-planning.” It is for this reason that it has been said that a finance company that lends money on trust receipts of this nature assumes the risk of the borrower’s dishonesty or fraud in that the borrower can sell a good title to a purchaser in good faith for value in the course of retail trade even though the automobile is encumbered by the security interest of the finance company.

With this very brief summary of the nature of trust receipt financing as applied to the particular situation before us, we return to a consideration of the applicability of the Act to the case at bar. The Discount Company advanced funds to the dealer apparently on the assumption that the dealer would in the usual practice acquire title to the particular automobiles and that this title would inure to the benefit of the Discount Company and thereby subject the automobile to the security interest of the lending agency. This transaction, between Iiep-tinstall and the appellant, would have been something of an anomaly at common law and in this state prior to the enactment of Chapter 673, Florida Statutes, F.S.A. But by the provisions of the cited Act the transaction now has a definite and legitimate legal status, which is entitled to full recognition within its proper orbit. Consequently, it now appears that if title to the vehicles reached Iieptinstall, as contended by appellant, then under this Act the appellant’s security interest attached to it and would give appellant a right of possession, on default at least within thirty days of the execution of the trust receipts (see Section 673.08, Florida Statutes, F.S.A.), prior in dignity to any right of appellee to recover the automobiles because of the worthless checks given in payment therefor. See 46 Am.Jur. “Sales”, Sec. 446, p. 611 et seq.; also Sec. 478, p. 644.

It is, therefore, apparent that if the dealer in this case acquired title to the three automobiles, such title automatically inured to the benefit of the Discount Company. That was the question to be decided in the trial court and on this question there appears to be conflicting facts and circumstances which would justify a full trial of the cause. While the record shows that the dealer gave worthless checks to pay the purchase price to the distributor, it also contains statements indicating testimony on which a jury might have found that the distributor had accepted the checks of the dealer in payment and had delivered to the dealer an unequivocal invoice tantamount to a bill of sale as between them evidencing payment of cash on delivery. In addition there are indications on which a finding might be made that for one reason or another the distributor withheld deposit of the dealer’s checks for several days and even after the checks were returned for insufficiency of funds, the distributor continued the extension of credit by re-depositing the first check and later accepting another check in lieu thereof. With all of this background the distributor in connection with the third Henry J seemingly accepted another check from the obviously hard-pressed dealer. The distributor’s wholesale manager testified by deposition that when these checks were accepted the distributor considered that the dealer had the right to sell the automobiles.

It was further evident from this record that the distributor for several months was aware of the financial difficulties of this particular dealer. There was a conflict on whether the distributor was actually advised at the time of the telephone purchase that the dealer intended to “floor plan” the cars. If it should be determined as a fact that the distributor had this information when the cars were purchased by telephone, it would appear that he knowingly and willingly extended credit to the dealer or was completely indifferent to the results by transferring the cars to the dealer without evidencing in the transfer papers some retention of title until he was paid in a satisfactory manner.

From all that appears in this record on the motion for summary judgment it could be concluded that the distributor deemed himself paid in the form of the dealer’s check, that he was willing to run this risk and that he transferred title to the automobiles to the dealer and assumed the risk of payment therefor knowing all the while that the dealer was hard-pressed and with information that the dealer had “floor planned” the cars. In addition there appears to be substance to the appellant’s contention that even though the distributor felt that he was retaining title to these automobiles contingent on ultimate payment of the checks, there is evidence, sufficient at least to justify a full trial, to indicate that he waived such right as against the floor planning finance company by executing the unequivocal bill of sale that subsequently was exhibited to the finance company as evidence of the dealer’s title and as indicating that the security interest of the finance company was adequately protected by the unrestricted title transferred to the dealer. Compare Woods v. Thompson, 159 Fla. 112, 31 So.2d 62.

By the foregoing analysis of the testimony appearing in the record before us, we are not here intending to hold that upon a full trial the Discount Company appellant should necessarily be successful. We do here hold, however, that there was sufficient conflict in the material factual aspects of this case to justify a full trial either by jury or by the court without a jury. It is noted in passing that neither party has requested a jury trial.

In the subsequent consideration of this case the parties might find it helpful to refer to Metropolitan Finance Corporation of California v. Morf, Cal.App., 109 P.2d 969; Federal Building Co. v. Ford Motor Co., 101 Ind.App. 286, 199.N.E. 163; and the following Annotations in American Law Review, to-wit, 49 A.L.R. 282 ; 87 A.L.R. 302; 101 A.L.R. 453; and 168 A.L.R. 359.

We have not overlooked the Florida cases of Commercial Credit Corporation v. Mc-Griff, Fla., 66 So.2d 52; and Nash Miami Motors, Inc., v. Bandel, 160 Fla. 925, 37 So.2d 366. An analysis of these cases will reveal that they furnish no precedent for the present disposition of the case before us although upon a full hearing on all of the facts they may be helpful in determining the ultimate results.

Finding, therefore, that there was substantial conflict and controversy on material factual issues justifying a full trial of the case before us, the order granting the motion for summary judgment and entering the judgment for the appellee must necessarily be reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed.

DREW, C. J., and TERRELL and HOB-SON, JJ., concur.


author: ROBERTS, Justice.

text:
    Leta Margaret SPARK, as one of the Executrices of the Last Will and Testament of Ella T. Farmer Steding, also known as Ella Therese Farmer Steding, deceased, Appellant, v. DeVera Ellen CANNY, also known as Mrs. DeVera E. Canny, and First Federal Savings and Loan Association of Miami, a corporation, Appellee.
    Supreme Court of Florida. En Banc.
    June 13, 1956.
    Rehearing Denied June 26, 1956.

      Emma Roesing and Mattie Belle Davis, Miami, for appellant.
    Nestor Morales, Miami, for appellee.
   ROBERTS, Justice.

The decree here appealed from was entered in a suit to determine the rights of the litigants to a $20,000 savings account in the First Federal Savings and Loan Association of Miami. The litigants are two of the three surviving daughters of Mrs. Ella Farmer Steding, deceased. Mrs. Spark, plaintiff below and appellant here, is one of the executrices of the last will and testament of Mrs. Steding; and Mrs. Canny, defendant below and appellee here, appeared on the records of the First Federal Savings and Loan Association as the joint owner, with Mrs. Steding, of the savings account in question. Mrs. Steding’s will named Mrs. Spark, Mrs. Canny and the other daughter as residuary legatees, share and share alike, of her estate, after making two minor bequests to other persons. Except for the savings account in question, Mrs. Steding’s estate at the time of her death consisted of corporate stock valued at $20,000 and a $10,000 U. S. Savings Bond.

The savings account was opened by Mrs. Steding (then Mrs. Farmer) in 1935 and was carried in her individual name for many years. In 1938 she also rented a safety deposit box in the same bank. She did not have a checking account, and it was her custom to cash dividend and interest checks and place the funds in the safety deposit box, from which she withdrew them as needed.

Mrs. Steding was 83 years of age at the time of her death. She was hospitalized in November of 1953 for a week and, according to the witnesses, was never really well after that time. She was taken to the hospital again in April of 1954, where she died on May 6, 1954. All three of her daughters lived in other states. Mrs. Canny came to Florida to stay with her mother on December 17, 1953; and on December 18, 1953, Mrs. Steding arranged for Mrs. Canny to have access to the safety deposit box. On January 5, 1954, Mrs. Steding changed the savings account from her individual name to a joint account in the names of herself and Mrs. Canny or the survivor. It is conceded that the instruments executed at the bank were sufficient to establish a joint accouilt 'with the right of survivorship, as between the bank and the parties hereto; but as between the parties themselves a different situation may prevail, as is more fully discussed hereafter.

The bank’s records show that Mrs. Sted-ing entered the safety deposit box for the last time bn January 13, 1954; that, beginning January 25th, Mrs. Canny entered it four times before her mother’s death on May 6th; and that, between May 7th and May 15th, she entered it five times. There was no cash in the safety deposit box at the time the estate was inventoried. Neither Mrs. Steding nor Mrs. Canny made any withdrawals from the savings account during the time it was in their joint names. However, three days after Mrs. Steding’s death, Mrs. Canny withdrew $1,500 from the savings account and had the balance transferred to her individual name. She used the $1,500 to pay her mother’s hospital and funeral expenses and thereafter filed a claim against the estate in the amount of approximately $1,750 to reimburse her for these and other bills she had paid.

The theory of Mrs. Spark’s complaint was that Mrs. Steding gave Mrs. Canny access to the safety deposit box and changed her savings account to a joint account with Mrs. Canny for convenience only; that it was Mrs. Steding’s purpose and announced intention to establish the joint account solely to enable Mrs. Canny to withdraw funds to pay for Mrs. Steding’s living and medical expenses during her last illness and her funeral expenses after her death, with the remainder to be divided equally among her three daughters; that it was never Mrg. Steding’s intention to make, a gift of any portion of such savings account to Mrs. Canny; and that to uphold Mrs. Canny’s asserted claim to the savings account, as the surviving joint owner. thereof, would not only be a betrayal of the confidence reposed in her by their mother, but would also constitute a fraud against the plaintiff and the other daughter, as the residuary legatees (with Mrs. Canny) under their mother’s will.

Mrs. Canny’s answer denied that such was Mrs. Steding’s intention and asserted that the “agreed purpose of the decedent as expressed in the documents pertaining to the account, was that a joint estate be created with full right of survivorship.”

Testimony on the issues thus made was submitted to a Special Master (who did not, however, have authority to make findings of fact and recommendations of law), the issues were decided adversely to the plaintiff by the Chancellor on the basis of the recorded testimony, and the caúse was dismissed. In his decree, the Chancellor commented that “It appears that all conversations of the decedent with witnesses in regard to her funds were of a general nature in conformity with the will of the decedent,” but he made no specific finding of fact as to the donative intent of Mrs. Steding. The decree found that the bank documents establishing the joint account were sufficient to establish a joint account with right of sur-vivorship, under the authority of Crabtree v. Garcia, Fla., 43 So.2d 466; Crawford v. McGraw, Fla., 61 So.2d 484, and In re Brandle’s Estate, Fla., 65 So.2d 27, and that “there was no fraud or wrongdoing shown by the Defendant, DeVera Ellen Canny which -would alter the above joint account agreement.” Mrs. Spark has appealed from the decree dismissing the cause.

It may be conceded that there is nothing in the evidence to show that Mrs. Canny was guilty of any fraud or wrongdoing in the setting up of the joint account; nor is there any direct evidence as to whether Mrs. Canny knew what her mother’s intentions were in establishing the joint ' account. But as we read the testimony (and 'it should be noted that our opportunity to evaluate the evidence is the same as that of the Chancellor, since he did not hear the witnesses) we think it shows conclusively that, in establishing the joint account w-ith right of survivorship, Mrs.'Steding had no intention of doing anything more than is here contended for by Mrs. Sparks — that is, establishing it. solely as a matter of convenience and' without any donative intent in favor of Mrs. Canny. Mrs. Steding’s husband (whom she married in 1950), her son and her daughter-in-law (none of whom were “interested parties” within the meaning of the Dead Man’s Statute) all testified to this effect. Her son testified that when he was trying to persuade her to have a private nurse at the hospital, and offered to pay for one himself, she said that she had enough money to see her through and that she had had “to get somebody to go down to the bank and withdraw the money from the savings account. I’ve had to let DeVera [Mrs. Canny] sign for me so that she could get enough out of there to pay any expenses,” and that Mrs. Canny “has promised me faithfully to see that the girls get their third and to see that things work out the way that I have always wanted them to.” Mrs. Steding’s husband testified that during January, 1954, Mrs. Steding discussed with him and Mrs. Spark the account in the First Federal and told them that Mrs. Canny had charge of it so that she could “go to the bank and pay the money and pay the hospital and doctor and whatever was left would go to the three girls, after all the expenses were paid.” There was other testimony of these witnesses along this same line, and Mrs. Steding’s daughter-in-lav/ testified to the same effect. It was also shown that, while Mrs. Steding made occasional trips to the doctor during her last illness and sometimes went out to dinner or for a drive in the car, it was an effort for her to get out of bed. In our opinion, the evidence showed conclusively that Mrs. Steding established the joint account solely as a matter of convenience and with no intention of giving to Mrs. Canny the funds on deposit therein.

It is not clear from the decree whether the Chancellor gave any consideration to the question of the donative intent of Mrs. Steding. But in view of the fact that the decree specifically found only that (1) the bank instruments were sufficient to create a joint account with right of survivorship, and (2) there was no fraud or wrongdoing on the part of Mrs. Canny “which would alter the above joint account agreement,” we think it may validly be assumed that the Chancellor gave no consideration to Mrs. Steding’s “donative intent” in deciding the cause. And the argument made here on behalf of Mrs. Canny in support of the decree confirms this assumption.

It is contended here on behalf of Mrs. Canny that the banking instruments constituted a contract binding on Mrs. .Sted-ing’s heirs and personal representatives, in the absence of a showing of fraud or misconduct on the part of Mrs. Canny. It is contended equally strongly in behalf of Mrs. Spark that a donative intent on the part of Mrs. Steding was necessary to the establishment, with her own funds, of a joint bank account with right of survivor-ship. This question has not heretofore been directly decided by this court, so far as we can tell.

In upholding the right of a survivor to take the balance of a joint bank account upon the death of the joint owner with whose funds the joint bank account was established, the courts of other jurisdictions have followed one or the other of the following theories: (1) that a joint tenancy with right of survivorship was created in the deposit; (2) that there was a gift of the deposit to the surviving claimant; (3) that a trust was created for the use and benefit of the surviving claimant; (4) that the bank memoranda in regard to the particular deposit involved created a contract between the original owner of the funds on deposit and the bank, for the benefit of the surviving claimant. See Webster v. St. Peters-burg Federal Savings & Loan Ass’n, 1945, 155 Fla. 412, 20 So.2d 400, for a discussion of the application of each of these theories to a claim by a surviving joint account holder. See also the cases in the annotation in 135 A.L.R. beginning at page 993 for decisions from other jurisdictions following one or the other of the theories.

This court apparently follows the “joint tenancy” theory, since it was said in Crawford v. McGraw, Fla. 1952, 61 So.2d 484, 487, that “The opening of a joint bank account with the intention of creating a right of survivorship is a means of creating a joint estate in personal property.” and most of the cases involving a claim by the survivor to a joint bank account heretofore decided by this court were principally concerned with the question of whether the banking memoranda establishing the joint .account sufficiently complied with Section 689.15, Fla.Stat.1955, F.S.A., which abolished the right of survivorship in joint ten.ancies except where “the instrument creating the estate shall expressly provide for the right of survivorship * * See Crawford v. McGraw, supra, 61 So.2d 484; Crabtree v. Garcia, Fla.1949, 43 So.2d 466; In re Brandle’s Estate, Fla.1953, 65 So.2d 27.

But this court has never held that the lack of donative intent of a deceased joint .account holder, with whose funds the joint account was established, could not be shown to defeat a claim by the surviving joint account holder. On the contrary, the court emphasized in Crawford v. McGraw, supra, 61 So.2d 484, 488, that “in both the Garcia case [Crabtree v. Garcia, supra, 43 So.2d 466] and this case it was undisputed that the intention of the deceased and the co-depositor was to establish a joint account with the right of survivorship.” And in Webster v. St. Petersburg Federal Savings & Loan Association, supra, 20 So.2d 400, 403, this court pointed out that “in the great majority of the cases [from other jurisdictions] where the funds were furnished entirely by one party there appeared in the transaction involved some element of present .gift, trust, or joint ownership which might well have upheld the claim of a survivor upon the gift, trust, or joint-ownership theory, without regard to the contract theory.”

It is true, as contended on behalf of Mrs. Canny, that the rules relating to gifts inter vivos cannot be strictly and literally applied in determining whether a joint bank account with right of survivorship has been established. Thus, the very nature of .a joint bank account is such that one essential element of a gift inter vivos is missing — that of surrender of dominion and control by the donor — since each party has an equal right to withdraw the funds on deposit. See Hagerty v. Hagerty, Fla.1951, 52 So.2d 432. Nor is the rule as to “delivery” of the gift applicable in this situation. This is so because the thing given is not the money, in specie, on deposit in the joint bank account; it is a gift of an interest in the funds on deposit equal to that of the donor. But we think that the third essential of a gift inter vivos — that of do-native intent — is just as relevant to the question here under discussion as it is in cases involving the establishment of a bank account by a person with his own funds in the name of another. Cf. McKinnon v. First Nat. Bank of Pensacola, 77 Fla. 777, 82 So. 748, 6 A.L.R. 111, and King v. King, Fla.1951, 55 So.2d 181; or in the establishment of a joint bank account by a husband in his and his wife’s names, Cf. Jones v. Ferguson, 150 Fla. 313, 7 So.2d 464, and Hagerty v. Hagerty, supra, 52 So.2d 432.

A case very similar on its facts to the instant case is Murray v. Gadsden, 91 U.S. App.D.C. 38, 197 F.2d 194, 203, 33 A.L.R.2d 554. There, the federal court discarded the “contract theory” and held that a joint estate in a bank account “is not established unless it is the result of a gift or a trust as a condition precedent.” (The principal question in the Murray case was whether parol evidence was admissible to show the intention of the donor in establishing the joint account, and it might be noted that no complaint was made here as to the admissibility of the testimony concerning Mrs. Steding’s donative intent.) We think this is the sounder and more logical rule than the “contract theory” and one which is entirely in accord with the previous decisions of this court respecting joint bank accounts with right of survivorship.

We hold, therefore, that where a joint bank account with right of survivor-ship is established with funds of one person, as here, a gift of the funds remaining in the account at the death of the creator of the joint account is presumed; but such presumption is rebuttable and may be overcome by clear and convincing evidence to the contrary. Cf. Seymour v. Seymour, Fla.1956, 85 So.2d 726. Since the evidence in the instant case showed conclusively that the joint bank account was established by Mrs. Steding solely for her own convenience and without donative intent, it was error to hold that Mrs. Canny was entitled to the balance on deposit in the account at Mrs. Steding’s death.

For the reasons stated, the decree appealed from should be and it is hereby

Reversed.

DREW, C. J., and TERRELL, HOB-SON, THORNAL and O’CONNELL, JJ., concur.

THQMAS, J., dissents.


author: PATTERSON, Associate Justice.

text:
    J. E. GROOVER and Lucy Lee Groover, his wife, Appellants, v. Calvin WALKER, Appellee.
    Supreme Court of Florida. Special Division A.
    May 25, 1956.
    Rehearing Denied July 9, 1956.

      James G. Pace and A. F. Barone, Miami, for appellants.
    Sweet & Wolf and Joseph Pardo, Miami, for appellee.
   PATTERSON, Associate Justice.

Plaintiff below filed his bill in the nature of a bill of review to have an earlier decree of foreclosure and sale vacated and to allow plaintiff to redeem the property sold under the previous foreclosure sale. After answer, both plaintiff and defendants moved for summary final decree and upon hearing the Chancellor, Honorable Vernon Hawthorne, granted defendants’ motion and on December 13, 1954, entered summary final decree for defendants dismissing plaintiff’s suit. On December 22, 1954, plaintiff filed a Petition for Rehearing of said summary final decree and on January 19, 1955 filed an amended Petition for Rehearing directed to the same summary final decree. In the meanwhile, oil December 31, 1954, the term of Judge Hawthorne expired and he was succeeded as Chancellor by Honorable Fritz Gordon. On February 8, 1955, Judge Gordon granted the Petition for Rehearing, set aside the summary final decree entered by Judge Hawthorne on December 13, 1954 and entered final decree vacating the certificate of title in the prior foreclosure and ordering that the property involved in the foreclosure be resold by the Clerk unless redeemed within ten days.

This appeal is taken from such final decree of February 8th.

Appellants, defendants below, are content to rest their appeal in this Court on two questions of procedure: (1) does our chancery practice permit a rehearing of a summary final decree and (2) may a successor Chancellor reverse the final order or decree of his predecessor, no new facts being made to appear.

Assuming, but not deciding, that Petitions for Rehearing may properly be addressed to summary final decrees in chancery, the decisive question to be decided in this case is whether Judge Gordon, sitting in the case as successor to Judge Hawthorne who had entered summary final decree for the defendants, had authority to set aside such final decree on the basis of the matter presented to him in the petition for rehearing on which he acted to vacate and reverse his predecessor’s final decree.

The Court is committed to the general proposition that a successor judge may not correct errors of law committed by his predecessor and hence he cannot review and reverse on the merits and on the same facts the final orders and decrees of his predecessor. In Smith v. Mobley, 95 Fla. 829, 116 So. 760, a case involving the reversal of a final decree earlier entered by a circuit judge of another circuit sitting as a visiting circuit judge, this Court held that while rehearings are authorized in chancery causes, when parties are aggrieved by a decree an appeal should be taken rather than application made to another circuit judge, where no matters are presented that should be adjudicated by a circuit judge. The petition for rehearing upon which the decree was reversed by the resident circuit judge alleged that certain items were not allowed in the final decree of accounting, although they were “proved by undisputed testimony.” Thus the petition for rehearing did no more than take issue with the Court on the correctness of its finding and decision in its final decree. The case is authority for the rule that such is not a proper .matter to be presented to another circuit judge but is a matter properly reviewable by appeal. The rule would appear-to be otherwise with respect to interlocutory orders or decrees. Jones v. McConnon & Co., 100 Fla. 1158, 130 So. 760; 48 C.J.S., Judges, § 56(c), p. 1021. In the later case of Lawyers Co-op. Pub. Co. v. Williams, 149 Fla. 390, 5 So.2d 871, 872, relied on by the appellants, this Court expressly approved the general rule first mentioned above. This Court there said:

“A successor judge generally cannot review, modify or reverse, upon the merits, on the same facts, the final orders of his predecessor unless there exists some special circumstances such as mistake or fraud perpetrated on the court. 33 C.J. Judges, § 104, (p. 973) ; Annotation, 132 A.L.R. 14.
“It is also generally held that where an application is made to a court seeking the exercise of a discretionary authority and such application has already been made to and passed on by a predecessor judge, the successor may not reverse or modify the previous ruling. Annotation supra. The motion for new trial and petition for rehearing thereof were addressed to the discretion of the Court. Florida Dairies Co. v. Ward, 131 Fla. 76, 178 So. 906. The motion to vacate the final judgment was addressed to the discretion of the court. Alabama Hotel Co. v. J. L. Mott Iron Works, 86 Fla. 608, 98 So. 825. Both were founded on and supported by the same facts and legal arguments.
“The rule stated does not derogate that line of decisions in this State holding, as in Alabama Hotel Co. v. J. L. Mott Iron Works, 86 Fla. 608, 98 So. 825, supra, a courts’ order, however conclusive, to be under the control of that court during the term at which the order was rendered. It does not follow from this recognition of the court’s inherent power over its own actions that a successor judge may reverse or modify his predecessor’s final orders or discretionary rulings where the facts remain unchanged.”

Appellee cites and relies heavily on United American Ins. Co. v. Oak, 123 Fla. 159, 166 So. 547. In that case a successor judge entered an order granting a rehearing and staying the final decree of his predecessor pending the result of such rehearing granted. The opinion expressly rejected the contention that granting the petition for rehearing in that case amounted to one circuit judge reversing another contrary to the general rule. That case is authority for the settled proposition that the identity of the Court is not disturbed by a succession in the identity of the person of the Chancellor exercising its authority and functions. Jones v. Mc-Connon & Co., supra. Moreover, where there are several judges of the same court, each is legally clothed with the full jurisdiction of the Court and may legally take up a case and at any point carry it on, except that propriety and orderly procedure may suggest that where one of such judges has undertaken the handling of a particular case he should carry it through. We find no fault with such pronouncements but we do not find them inconsistent with the more specific proposition of Lawyers Co-op. Pub. Co. v. Williams, supra. We take the proper rule to be that where a petition for rehearing, within its proper scope, presents a point which the Chancellor overlooked or failed to consider, rendering a final decree inequitable or erroneous, then the successor Chancellor, exercising the full jurisdiction of the Court, may with propriety consider such petition and take such proper action upon it as could his predecessor who entered the decree. In such instances the successor’s consideration of the case may be said to be in continuation of and supplemental to that of his predecessor. However, where the petition for rehearing merely reargues the case on points and facts found and considered in the prior hearing of the cause, then the petition for rehearing goes beyond its proper scope and it should be denied in any event, and if the Chancellor who entered the final decree has been succeeded, his successor is without authority on such basis to reverse his predecessor contrary to the general rule approved in the Williams case, supra. In such cases, the errors suggested by the petition are matters of review on appeal rather than rehearing by the successor judge.

The relief sought in this case in the Court below, and denied by the summary final decree entered by Judge Hawthorne, was the vacating of an earlier foreclosure sale of appellee’s property wherein it is claimed, for reasons set out, that appellee had not had proper notice and opportunity of redemption, with harsh and inequitable result. We have carefully examined the record below and the petition for rehearing on which the successor Chancellor reversed his predecessor’s summary final decree denying the relief sought and find that such petition for rehearing, contrary to the recognized scope of petitions for rehearing, did not bring to the Court’s attention any point the Court overlooked or failed to consider in entering its final decree, but on the other hand merely charges that the Court erred in its view of the facts and equities of the cause resulting in an erroneous final decree, and seeks to reargue the case on the same facts and arguments presented theretofore to the predecessor Chancellor in the hearing on motion for summary final decree. Under such circumstances, and under the rule of Smith v. Mobley, supra, such are not proper matters to be presented to another circuit judge and under the general rule approved in Lawyers Co-op. Pub. Co. v. Williams, supra, were not such matters that would authorize a successor Chancellor to reverse the final decree of his predecessor.

We are impelled to the conclusion that every consequential fact and argument in support of the decree of February 8th was before the Court for consideration when the decree of December 13th was entered; and that the later decree constitutes an outright reversal by a successor Chancellor of the final decree of his predecessor on the same facts and arguments. It was therefore entered without authority and must be reversed.

It is so ordered.

DREW, C. J., and HOBSON and THORNAL, JJ., concur.


text:
    Melbourne Lee RUSSELL, Appellant, v. John W. MARTIN, as Trustee of the property of the Florida East Coast Railway Company, Appellee.
    Supreme Court of Florida. Division A.
    May 23, 1956.
    Rehearing Denied July 9, 1956.

      George B. Mehlman and George H. Butler, West Palm Beach, for appellant.
    Anderson, Scott, McCarthy & Preston, William B. Killian, Miami, Russell L. Frink, Jacksonville, and Robert H. Anderson, Miami, for appellee.
   TERRELL, Justice.

Appellant, hereinafter referred to as Russell, instituted this suit against appellee, hereinafter referred to as the Railroad, to recover damages for negligently striking and killing plaintiff’s minor son, Michael .Lee Russell, while riding his bicycle along the tracks and over the crossing of the Railroad, within the corporate limits of the Town of Lantana, Florida. The acts of negligence alleged were: Defendant ran its train at a high and dangerous speed, in violation of the ordinance' regulating speed of trains within the corporate limits of the Town of Lantana, without giving signals or warnings of the train’s approach. The answer of defendant denied negligence on its part and as an affirmative defense interposed an agreement between Russell and the Railroad in which Russell was given a license to use the Pine Grove Trailer Park Crossing as a private crossing. Russell also agreed .to indemnify and save harmless the Railroad from any and all claims arising out of the use of said crossing ; that he (Russell) would use said crossing at his own risk and would not rely on the Railroad, its agents, employees, servants or invitees for signals or warnings of approaching trains. On the issues so made, summary judgment for the Railroad was entered and Russell appealed.

The point for determination is whether or not there was error in the order granting summary judgment.

It is admitted that Pine Grove Crossing was the scene of the accident in which Michael Russell was killed. Russell contends that the question urged requires an affirmative answer because the agreement between Russell and the Railroad was devoid of mutuality. For the purpose of this suit, it is not necessary to determine whether the agreement was in effect a license or an easement subject to revocation by the Railroad. An easement is more permanent in nature than a license; it is generally for a specified period, otherwise it is not revocable by the grantor. There is accordingly no basis for the contention that the agreement is void for lack of mutuality. Whichever it was, it had been in effect seven years and the Railroad had performed on its part. The consideration running to the Railroad was Russell’s agreement not to hold it liable for any accident on the crossing. Under such circumstances the contract was executed and lack of mutuality was no defense; the agreement was fully executed and was binding on the parties. Thompson v. Shell Petroleum Corp., 130 Fla. 652, 178 So. 413, 117 A.L.R. 248; Le Noir v. McDaniel, 80 Fla. 500, 86 So. 435; Restatement of the Law of Contracts, Secs. 83 and 79.

It is next contended that the crossing agreement is void because of inequality of bargaining power on the part of the parties thereto.

This contention is supported by Williston on Contracts, Sec. 1751C. When read in connection with the following paragraphs, we do not see that Sec. 1751C has any relevance to the point. Russell further contends that he bought the trailer park without knowledge of the crossing agreement between the Railroad -and his predecessor in title, and finding himself in this predicament, he was forced to sign the agreement or lose the use of the right-of-way. " If the Railroad had superior- bargaining power, it did not impose it on Russell. It could have granted or it could have refused to grant the crossing. It took nothing in return for it except Russell’s promise of indemnity. If the law of contracts has application to the crossing agreement, the Railroad made no attempt to impose or enforce it. It is common knowledge that a landowner may impose such conditions as it sees fit for granting a right-of-way over its lands.

It is last contended that Russell’s promise of indemnity is void as against • public policy.

Public policy is a fickle concept. No fixed rule has ever been defined by which it may be shown. It is generally conceded that a contract is not void for public policy unless it is injurious to the public or contravenes some settled social interest. Ordinarily a common carrier contract to save itself harmless from its negligence when acting as a common carrier is ineffective, but it is not so when acting in its private capacity. We have no case in this state directly in point but it is fairly well settled in other jurisdictions. Louisville & N. R. Co. v. Atlantic Co., 66 Ga.App. 791, 19 S.E.2d 364; Minneapolis-Moline Co. v. Chicago, M., St. P. & P. R. Co., 8 Cir., 1952, 199 F.2d 725, 729; J. V. Mc-Nicholas Transfer Co. v. Pennsylvania R. Co., 6 Cir., 1946, 154 F.2d 265; Santa Fe, P. & P. R. Co. v. Grant Bros. Const. Co., 228 U.S. 177, 33 S.Ct. 474, 57 L.Ed. 787; Caccy: v. Virginian R. Co., 4 Cir., 1936, 85 F.2d 976; Id., 300 U.S. 657, 57 S.Ct. 433, 81 L.Ed 866; Atlantic Coast Line R. Co. v. Beasley, 54'Fla. 311, 45 So. 761; Thomas v. Atlantic Coast Line R. Co., 5 Cir., 1953, 201 F.2d 167.

From the foregoing cases, the rale is settled in most jurisdictions that agreements by common carriers to save from indemnity for injuries at private and spur-track crossings do not contravene public policy so there was no error in the order granting summary judgment.

It follows that the judgment appealed from must be, and is hereby,

Affirmed.

DREW, C. J., and HOBSON and THORNAL, JJ., concur.