author: THOMAS, Justice. HOBSON, Justice

text:
    David BUCK, a minor, by his next friend and father, Norman Buck; and Norman Buck, individually, Appellants, v. CITY OF HALLANDALE, a municipal corporation, Appellee.
    Supreme Court of Florida. En Banc.
    Dec. 2, 1955.
    Rehearing Denied March 27, 1956.
    Varón & McMorrough, Hollywood, for appellants.
    Wicker & Smith, Miami, for appellee.
   THOMAS, Justice.

The appellant, Norman Buck for himself and for his minor son, instituted an action to recover damages suffered in a collision between the 'bicycle the minor was riding and a car alleged to have been owned by R. B. Hitchcock and negligently operated by Dale Eugene Manchester. The City of Hallandale was made a defendant because, so it was charged, a dangerous condition was created at the place of the mishap when an employee of the city negligently operated a city truck in diffusing insecticides, a process commonly known as “fogging”.

The circuit judge entered a summary judgment in favor of the city and this appeal followed. Appellant’s suit met this fate because of the variance between the notice given the city and the one required by the charter to be served by anyone proposing to hold the city liable for damages flowing from tort. It is expressly provided in the charter that “No suit shall be maintained against the City for damages arising out of any tort unless it shall be made to appear * * * that written notice of such damage was, within thirty (30) days after the receiving of the injury alleged, given to the City Commission with such reasonable specifications as to time and place and witnesses as would enable the City officers to investigate the matter.” Section 58, City Charter, Chapter 29108, Laws of Florida, Special Acts of 1953. We have italicized the parts that are relevant to the present dispute.

The appellant alleged that through his attorneys he notified the city “in accordance with Section 58 of the Charter” but our examination of the record convinces us that his assertion is but a conclusion. The so-called notice was signed by an attorney who stated that he represented the minor, and it was addressed to the mayor. In the letter the attorney simply said that his client intended to file suit for injuries sustained by him on a stated day and that the city would be made a defendant.

It will be seen that the letter was hardly an approximation of the notice required in the statute. It was not addressed to the city commission; although the date was given, there was no specification “as to time”; the place was not mentioned; and the requirement with reference to witnesses was ignored.

It is appellant’s position that the city attorney had some knowledge of the incident and that a member of the police force had conducted an investigation. He states in the brief that it “is not his sole position * * * that any defect * * * was necessarily waived by the * * * municipality, but * * * that any defect was cured by the actual knowledge possessed by the * * * municipality and its Commission, and by its City Attorney, and by the opportunity to investigate and the actual investigation, or by any combination of these elements in addition to the written notice.”

We have often discussed the purpose of such charter provisions and there is no need here for elaboration. Our comments on the subject may be found in Olivier v. City of St. Petersburg, Fla., 65 So.2d 71; Town of Miami Springs v. Lasseter, Fla., 60 So.2d 774; Crumbley v. City of Jacksonville, 102 Fla. 408, 135 So. 885, 138 So. 486. But we cannot agree that because the object of including such a provision in a charter is to afford the authorities an “opportunity to investigate the matter, determine the question of liability” and consider settlement, as was written in the Olivier case [65 So.2d 75], such a requirement may be disregarded if it can be shown that the opportunity offered, or certain information was obtained, irrespective of the notice. That would lead us to the conclusion that •compliance with the charter provision could be only a gesture and that, after all, the issue would be determined upon evidence of what the city discovered or, perhaps, could have discovered. We are not disposed to take such liberties with a legislative enactment.

We decide that there was not substantial compliance with the charter provision and that the condition precedent to the right to institute the action, Town of Miami Springs v. Lasseter, supra, having failed, the complaint was properly dismissed.

In his second question the appellant challenges the validity of the charter provision making the notice a prerequisite to suit, on the ground that by a special act, the practice in courts of justice was attempted to be regulated in violation of Section 20, Article III of the Constitution. We answer the question by simply remarking that in Olivier v. City of St. Petersburg, supra, the precise point was determined to the contrary.

The judgment is — ■

Affirmed.

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

TERRELL, ROBERTS and HOBSON, JJ., dissent.

HOBSON, Justice

(dissenting).

I cannot agree with the conclusion reached in the opinion prepared by Mr. Justice THOMAS because it appears to me that, although the notice given the city by the appellants was technically defective, the purpose of the charter provision which required the notice was abundantly fulfilled.

In Olivier v. City of St. Petersburg, Fla., 65 So.2d 71, at page 75, it was stated:

“The purpose of Acts of the kind here considered [cognate section of the St. Petersburg charter] is to notify the city that a person has been injured so that the city will have a reasonable opportunity to investigate the matter, determine the question of liability and effectuate a settlement, if one is justified.”

In accord, see Town of Miami Springs v. Lasseter, Fla., 60 So.2d 774, and Crumbley v. City of Jacksonville, 102 Fla. 408, 135 So. 885, 138 So. 486.

The Hallandale charter codifies this rule in requiring such notice “as would enable the city officers to investigate the matter.”

There is proof in this record that the city officials did in fact investigate the accident down to its minute details. The deposition of the mayor of Hallandale shows that he knew of the place where the accident occurred the same day it happened. The fact that the notice was addressed to the mayor I regard as a sufficient compliance with the charter provision, for notice to the mayor should constitute notice to the city commission.

At a special meeting of the city commission the city attorney called the attention of that body to the fact of the accident and told the commissioners that there had been an investigation of it by the city police department. He also told them that notice of such accident had been served upon himself as city attorney, upon the city clerk, and upon the mayor. This is proved by an affidavit of a member of the commission, filed in opposition to the motion for summary judgment. A comprehensive accident report was in the records of the defendant municipality, readily accessible to the commissioners.

From these facts it is perfectly clear that the city had an opportunity to investigate the accident and availed itself of this opportunity, and that the notice was significant merely as a formal declaration by the plaintiffs that they intended to assert their rights. It is not disputed that the notice was timely filed.

In Olivier v. City of St. Petersburg, supra, 65 So.2d 71, the notice had stated that the injury was caused by the resurfacing of a street, and was otherwise silent as to the place of the accident. It was contended that the city should have known the location of such work on the date given in the notice. We took judicial notice of the fact that St. Petersburg is a large city with miles of street, which it is constantly repairing and resurfacing. We held, therefore, that the notice could not be construed as substantially complying with the charter provisions because- the city could not be expected to determine the location of the accident on the basis of such notice. In the instant case these considerations are reversed, because the City of Hallandale is comparatively quite small, which fact is undoubtedly responsible for the thorough knowledge of this accident which the city officials are proved to have had.

In Town of Miami Springs v. Lasseter, Fla., 60 So.2d 774, we held that notice to an insurance adjuster did not comply with the charter requirement, and, to reach the opposite result, “we would be compelled to recognize the adjuster as possessing some authority to act for the -city, presumably vested with it by the city clerk, who, himself, had no authority to receive the notices.” That is not the case here.

In Crumbley v. City of Jacksonville, supra, 135 So. 885, we held that the city had waived defects in the notice by proceeding to reject the claim without requiring greater particularity. It appeared in that case that the city attorney and city commission had fully investigated the matter and that the claim had been rejected on the merits within the notice period.

In the instant case it appears that no affirmative action whatever was taken by the city either before or after the notice period had run. Although the situation here presented may not amount technically to waiver under the Crumbley case, I think that the circumstances I have outlined above are even more favorable to appellants’ position.

Since on this motion for summary judgment the uncontroverted allegations of the complaint and the uncontroverted affidavit must be taken as true, I think the resultant combination of circumstances sufficient to constitute substantial compliance with the charter provision, and to accomplish the purpose of that provision. It further appears to me that previous pronouncements by this court hereinbefore discussed have been made on clearly distinguishable facts.

I would therefore reverse the judgment appealed from and remand the cause for further proceedings not inconsistent herewith.

TERRELL and ROBERTS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    H. E. TOOKE, Jr., and Frances G. Tooke, his wife, trading and doing business as Sanford Fruit Company, Appellants, v. FOSGATE CITRUS CONCENTRATE COOPERATIVE, a cooperative marketing corporation organized and existing under the Laws of the State of Florida, Appellee. PATRICK FRUIT CORPORATION, a Florida corporation, Appellant, v. FOSGATE CITRUS CONCENTRATE COOPERATIVE, a cooperative marketing corporation organized and existing under the Laws of the State of Florida, Appellee.
    Supreme Court of Florida. Division A.
    March 2, 1956.

      Patterson, Freeman, Richardson & Watson, Jacksonville, for appellants.
    Andrews & Smathers, Orlando, for ap-pellee.
   PER CURIAM.

These are companion cases. The facts are not materially different. The only difference, says appellee, is in the terms of the contract between the parties. In the Tooke case, defendants appealed from a summary judgment striking appellants’ counterclaim and granting appellee judgment in the sum of $663.58, plus interest and costs due under a marketing and concentrate processing agreement. In the Patrick case, the appeal is from a judgment for $11,258.97 in favor of the cooperative, Fosgate Citrus Concentrate Cooperative. The cases were argued together in both the Circuit Court and in this court and will be disposed of in one opinion.

As often occurs, the parties are not in accord as to questions presented to us for adjudication. In our view these questions have to do with the duties incurred by the parties to the contract with reference to payment for the fruit and purchase of the Class C stock which are more specifically detailed therein.

We have examined the record and the briefs and as to the Tooke case we think the trial court correctly interpreted the contract, and since there was no material issue of fact requiring the determination of a jury, the award of a summary judgment was proper. As to the Patrick case, we are also of the view that there was no material issue of fact for a jury, that the trial court was correct in so finding and that the award of summary judgment for the plaintiff was proper.

It follows that the judgment appealed from in both the Tooke and Patrick cases was correct and is hereby

Affirmed.

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


author: THOMAS, Justice.

text:
    F. W. HARVEY, doing business as F. W. Harvey Iron Works, Appellant, v. Ray E. GREEN, Comptroller of the State of Florida; and Dave Starr, Sheriff of Orange County, Florida, Appellees.
    Supreme Court of Florida. Special Division B.
    March 2, 1956.

      Andrews & Smathers, Orlando, for appellant.
    Richard W. Ervin, Atty. Gen., Fred M. Burns and John D. Moriarty, Asst. Attys. Gen., for Ray E. Green, Comptroller.
    William H. Dial, Orlando, for Dave Starr, Sheriff.
   THOMAS, Justice.

The appellant brought a suit against the Comptroller and the sheriff of Orange County to enjoin the collection by the sheriff of sales taxes upon warrant issued by the Comptroller.

The appellant furnishes supplies and materials for the improvement or repair of real property, so he alleged in his complaint, upon a “cost plus” basis or guaranteed price, and since he has paid all taxes on all materials purchased to fulfill the contracts made with his customers, he resists the collection of additional taxes on the theory that he is the “ultimate consumer” of the materials.

The stipulation of the parties and the report of the general master make it possible for us to relate concisely the salient facts.

The appellant operates an iron works and the transactions, to which he is a party, involved in this litigation are of two kinds: He manufactures a product, according to the customer’s specifications for a specific sum and (a) delivers it to the customer at appellant’s place of business, or (b) installs or attaches it to the property of the customer. The cost of the articles may be determined in three ways: by agreeing on the amount, by charging on a “cost plus” basis, or by guaranteeing an “up-set” price which may not be exceeded. The products manufactured are not for sale in appellant’s place of business but are custom-made and usually the price includes cost of installation.

The plaintiff claims that his transactions are governed by paragraphs (a), (b) and (c) of Comptroller’s Rule 51, promulgated under Sec. 212.18(2), Florida Statutes 1951, and F.S.A., which with the introduction follow:

“Where contractors or sub-contractors perform contracts in connection with the repair, alteration, improvement and construction of real property, and contracts covering a combination of work on both real and personal property, it is necessary to determine the method adopted by such contractors, or sub-contractors in arriving at the total contract price charged to their customers in the fulfillment of their contracts, for the purpose of ascertaining whether the receipts from sales made to or by them are taxable.
“Such contractors may include among others, building, electrical, plumbing, heating, painting, decorating, ventilating, paper hanging, sheet metal, bridge, road, landscape or roofing contractors and they may use one or more of the following methods in arriving at the total contract price:
“(a) Those contracts in which the contractor or subcontractor agrees to furnish the materials and supplies and necessary services for a lump sum;
“(b) Those contracts in which the contractor or subcontractor agrees to furnish the materials and supplies and necessary services on a cost-plus 'basis;
“(c) Those contracts in which the contractor or subcontractor agrees to furnish the materials and supplies and necessary services with an upset or guaranteed price which may not be exceeded ; * *

In the act, a dealer is defined as a person “who manufactures or produces tangible personal property for sale at retail, for use, consumption or distribution * * Sec. 212.06(2), Florida Statutes 1951, and F.S.A. It seems to us that the definition is a fair description of appellant in the operations here involved. The rule we have quoted applies to contractors and subcontractors “in connection with the repair, alteration, improvement and construction of real property” and in three paragraphs following the introduction there are references to ‘contract’.

The last paragraph of Rule 51, which follows the ones we have quoted and five intervening paragraphs, makes clear the inapplicability of the whole rule to the appellant’s dealings. It specifically eliminates contracts under which the contractor “acts as a dealer selling tangible personal property” or “is required to install a complete unit * * *.” Illustrations are then given that fit the operations of the appellant. We are inclined to the idea that the pivotal words making the rule unavailable to the appellant are the ones “complete unit.” So if the appellant produces a piece of grill work to order and installs it, he is liable for a sales tax on the retail price to his customer including the charge of installation, unless he separates the installation charge from the cost of the unit, in which case he pays the tax only on the latter. Comptroller’s Rule 16. This accords with the administrative ruling which is of considerable persuasive force, State ex rel. Fronton Exhibition Co. v. Stein, 144 Fla. 387, 198 So. 82, as well as the finding of the master and the decision of the chancellor.

The appellant was a “dealer,” as we have already said, he was not a consumer; the consumer was the one to whom he sold the completed product.

The interpretation of the chancellor was cairrect and his decree is affirmed.

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


text:
    FOOD FAIR STORES, Inc., a corporation, Appellant, v. Albert FLOOD, Appellee.
    Supreme Court of Florida. Special Division A.
    Feb. 22, 1956.
    Rehearing Denied March 27, 1956.
    Brown, Dean, Adams & Fischer, Miami, for appellant.
    Fleming, O’Bryan & Fleming and Harrison D. Griffin, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

Reversed under the authority of Carls Markets, Inc., v. Leonard, Fla.1954, 73 So.2d 826; Clyde Bar, Inc., v. McClamma, 1942, 152 Fla. 118, 10 So.2d 916.

DREW, C. J., and TERRELL, HOBSON and ROBERTS, JJ., concur.


author: O’CONNELL, Justice.

text:
    Isaac NELSON, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Division B.
    Feb. 3, 1956.
    Rehearing Denied Feb. 29, 1956.
    M. H. Jones, Clearwater, for appellant.
    Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.
   O’CONNELL, Justice.

On December 3, 1954 an information was filed in the Circuit Court for the Sixth Judicial Circuit, against the appellant, Isaac Nelson, charging that he “did conceal and was concerned in concealing a beverage for or in respect whereof a tax is imposed by the beverage law or would be imposed if such beverage were manufactured in or brought into the State in accordance with the regulatory provisions thereof, with intent to defraud the state of such tax, namely: approximately one gallon and four ounces of intoxicating liquor commonly called moonshine whiskey, * * *” said information being drawn under the provisions of Section 562.32, F.S.1953, F.S.A.

Thereafter on December 15, 1954 the defendant, appellant here, filed a Motion to Quash Information. There is no order in the record overruling or sustaining the Motion to Quash, nor is it shown that defendant, appellant, ever requested a ruling thereon. Appellant in his brief contends, however, that the record shows, as it does, that the defendant was placed on trial on June 16, 1955, and that by so doing, the trial court in actual fact overruled the Motion to Quash. The defendant waived trial by jury, was tried by the court and found guilty.

The appellant raises two questions, the first being, “Does an information purporting to charge violation of the offense of concealing a beverage with intent to defraud the State of a tax under Section 562.32 (F.S.1953 [F.S.A.]) charge a violation of such statute when the information fails to allege that the tax was not paid?” This question must be resolved against appellant for he has failed to show that any ruling was ever made upon the Motion to Quash filed by him, or that the matter was duly brought on for consideration by the trial court prior to proceeding to trial. The action of the defendant in failing to obtain a ruling on his Motion to Quash, prior to trial, amounts to a waiver of the defects, if any, in the information attacked thereby. The point is accordingly foreclosed and cannot be raised on appeal. Sinclair v. State, Fla., 46 So.2d 453; Section 909.06, F.S. 1953, F.S.A.; Ortiz v. State, 30 Fla. 256, 11 So. 611; Baxley v. State, 72 Fla. 228, 72 So. 677; 24 C.J.S., Criminal Law, § 1679, p. 330.

The second question raised is, “Does the evidence show beyond a reasonable doubt that the tax was not paid upon the beverage found in the possession of the appellant?” It affirmatively appears and is not controverted that only a portion of the record in the court below was brought here on appeal. Questions of sufficiency of evidence will not be considered by this Court unless all the evidence that was before the trial court is presented to this Court. Holland v. State, 39 Fla. 178, 22 So. 298, 302.

For the reasons above cited the judgment and sentence are affirmed.

DREW, C. J., and THOMAS and ROBERTS, JJ., concur.


text:
    Richard W. ERVIN, as Attorney General of the State of Florida, Appellant, v. LeRoy COLLINS, individually, R. A. Gray, as Secretary of State of the State of Florida, and Peaslee Streets, Appellees.
    Supreme Court of Florida. En Banc.
    Feb. 25, 1956.
    Richard W. Ervin and Howard S. Bailey, Tallahassee, for appellant.
    Chas. S. Ausley, Ben C. Willis, D. Fred McMullen, Tallahassee, and William A. McRae, Jr., Bartow, for LeRoy Collins, individually.
    R. A. Gray, Tallahassee, in pro. per.
    Damon G. Yerkes, Jacksonville, for Peaslee Streets.
   PER CURIAM.

This cause is before the Court on the suggestions of Peaslee Streets, one of the attorneys, that Justices Elwyn Thomas, Campbell Thornal and Stephen O’Connell are disqualified to hear the above cause, on the ground of bias in favor of the appellee, LeRoy Collins. Disqualification of Justice Thomas is sought because of the fact that “Justice Thomas and LeRoy Collins and their families are close, intimate, and personal friends, and have been for many years.” Disqualification of Justice Thornal and Justice O’Connell is sought on the ground that each was appointed to the office of Justice by Governor Collins, and each is a strong personal and political friend of the Governor.

At the bar of this Court the attorney for Peaslee Streets has conceded that the sug* gestions filed on behalf of Streets are not legally sufficient to constitute a basis for the disqualification of the Justices sought to be disqualified, but on the contrary are addressed to the conscience of the respective Justices'against whom the suggestions are directed. With this we agree.

The suggestions are not sufficient in form to constitute a legal basis for disqualification. Ball v. Yates, 158 Fla. 521, 29 So.2d 729; Hahn v. Frederick, Fla., 66 So.2d 823. And assuming that the form of the suggestions were sufficient, the facts alleged therein are not sufficient to constitute a legal basis for disqualification.

DREW, C. J., TERRELL, HOBSON and BUFORD, JJ., and PARKS and HARRISON, Associate Justices, concur.


author: THORNAL, Justice.

text:
    ATLANTIC COAST LINE RAILROAD COMPANY, a corporation, Appellant, v. Frona Mae BOONE and Helen Goff, Appellees. Frona Mae BOONE and Helen Goff, Appellants, v. ATLANTIC COAST LINE RAILROAD COMPANY, a corporation, and H. J. Skinner, Appellees.
    Supreme Court of Florida. Special Division B.
    Feb. 1, 1956.
    Rehearing Denied Feb. 29, 1956.

      Norman C. Shepard, Wilmington, N. C., Dewey A. Dye, Bradenton, LeRoy Allen and Ralph C. Dell, Tampa, for Atlantic Coast Line R. Co., appellant and appellees.
    Mabry, Reaves, Carlton, Fields & Ward, Tampa, for Frona Mae Boone and Helen Goff, appellees and appellants.
   THORNAL, Justice.

We have for consideration two separate appeals resulting from the verdict of a jury in favor of appellants Mrs. Boone and Mrs. Goff against the Atlantic Coast Line Railroad Company.

Appellants Boone and Goff appeal from an order of the trial judge granting a new trial pursuant to a motion filed by the Railroad.

By an entirely separate notice of appeal, the Railroad seeks reversal of an order of the trial judge refusing to enter a judgment for the Railroad pursuant to its motion for a directed verdict after the jury had rendered a v.erdict in favor of the plaintiffs and against the Railroad and after the trial judge had denied a similar motion for directed verdict at the conclusion of all of the evidence during the trial.

In the separate appeals no effort was made to cross-assign errors by the respective appellees.

The Goff case was previously before us on an appeal from an order of the trial judge granting a summary judgment for the defendant Railroad. This order was reversed on the ground that the facts shown by the motion and opposing affidavits revealed that questions of negligence and alleged contributory negligence were sufficiently in dispute that a jury decision on the problem was necessitated. See Goff v. Atlantic Coast Line R. Co., Fla.1951, 53 So.2d 777. Many of the alleged facts now before us were mentioned in our earlier opinion.

The case arose out of a collision between a moving freight train of the Atlantic Coast Line and an automobile operated by one Anthony J. Bartulevy. In addition to the driver of the car, the occupants thereof were John Boone, Helen Goff and Jewel Bullington. Boone and Mrs. Bullington were killed. Mrs. Goff was injured. Suits against the Railroad were instituted by Mrs. Goff, by Frona Mae Boone, widow of John Boone, and by V. L. Bullington, widower of Jewel Bullington. The suits were consolidated for trial and tried on the issues of negligence of the train crew, contributory negligence of the automobile passengers, negligence of Bartulevy, the automobile driver, and on the further question of the effect of certain documents executed with Bartulevy by Mrs. Goff, Mrs. Boone and Bullington, each styled “Covenant Not to Sue”.

According to the testimony of members of the train crew, the bell on the engine was ringing, the whistle was blowing, and the train was traveling at a relatively moderate rate of speed across a wide-open crossing that permitted a clear view of the approaching train by the driver of the automobile on the intersecting highway. On the other hand, there is testimony for plaintiffs below that the train was traveling at a high rate of speed and that the signals of its approach were not given until the train was actually across the road. There was other testimony that an embankment and trees blocked the view of the approaching automobile driver and that he was exercising reasonable care and caution as he neared the crossing. There was evidence that the group in the automobile had spent the afternoon, from about noon until shortly after four o’clock when the collision occurred, visiting various and sundry beer taverns in the area. On the other hand, there was testimony that they had had very few beers and that the driver of the car was absolutely in control of his senses when he left the last tavern and proceeded on his tragic journey to the point of contact with the defendant’s train. At the trial the judge deposited the problem of resolving all of these issues with the jury which, under our system, is the appropriate depository of the problem of arriving at factual conclusions to be determined from conflicting testimony..

In addition to these questions, the trial judge left with the jury the problem of determining whether the documents executed by Mrs. Goff and Mrs. Boone were releases or whether they were covenants not to sue. He also instructed the jury to determine whether the train crew and Bartulevy, the driver of the automobile, were joint tort-feasors. He advised them that if they found that the documents were releases and that Bartulevy was a joint tort-feasor with the Railroad, their joint negligence thereby causing the collision, thén they would have to find for the Railroad for the reasons hereinafter mentioned. On the other hand, the jury was informed that if they determined the documents were covenants not to sue, such documents woúld not preclude a verdict against the Railroad even though they found that Bartulevy was a joint tort-feasor. As to Bullington, the court concluded as a matter of law that the document he signed was an outright release and in his case the jury was instructed that if they found that Bartulevy was a joint tort-feasor, they would have to find for the Railroad. However, Bullington asserted that the alleged release was obtained by misrepresentations and was therefore ineffective and the jury was further instructed by the judge that if they found from the evidence that the Bullington release was obtained by misrepresentations then it would not be a bar to his recovery against the Railroad but that any amount paid to him-'for the release should be deducted from the amount of any damages awarded to him against the Railroad.

At the conclusion of the testimony, the jury brought in a verdict in favor of Mrs. Goff and Mrs. Boone and against Bulling-ton. Bullington has not appealed. As to Bullington, we have no way to determine from his record whether the jury decided against him on the theory that his wife was killed as the result of the negligence of joint tort-feasors (the Railroad and Bartu-levy, the driver) and that the release of Bartulevy released the Railroad or whether they found for the Railroad on the proposition that the complete release had been obtained by misrepresentations but that in actuality Bullington had already been paid in- full and had recovered all of the damages to which he was entitled. We emphasize the foregoing with reference to the verdict against Bullington to underscore the fact that in our consideration of the appeal by Mrs. Boone and Mrs. Goff, we cannot be led to the inescapable conclusion that in the Bullington aspect of the trial the jury necessarily found that Bartu-levy, the driver, and the Railroad were joint tort-feasors. The importance of this observation will be emphasized later in the opinion.

Following the verdict for Mrs. Boone and Mrs: Goff and within the time allowed by former Common Law Rule 40 (1954 Florida Rules of Civil Procedure 2.7) the Railroad filed a motion renewing the motion for a directed verdict which it had submitted at the conclusion of all the testimony and in the alternative moved for a new trial, grounding its position in both motions on the theory that the evidence showed that the Railroad was guiltless of negligence and that B'artulevy’s negligence was the sole cause of the collision or in the alternative that the Railroad and Bartulevy were joint tort-feasors and that the documents executed by Mrs. Goff and Mrs. Boone were complete releases rather than covenants not to sue and that the Railroad was thereby released from further liability.

After considering the matter for over a year, the trial judge entered an order granting the Railroad’s alternative motion for a new trial reciting as his reasons his conclusion that as a matter of law the documents in question were complete 'releases rather than covenants not to sue and that in his opinion “any liability of the defendant is that of a joint tort-feasor”. In the same order by which he granted the new trial, the trial judge denied the Railroad’s motion for a judgment regardless of the adverse verdict. From the order granting the new trial, Mrs. Goff and Mrs. Boone have perfected one appeal. -The Railroad has undertaken to perfect an entirely separate appeal from the order ‘denying the motion for judgment notwithstanding the adverse verdict.

Appellants Goff and Boone contend that the documents in question were merely covenants not- to sue and should not bar their action against the Railroad even though the Railroad and Bartulevy were joint tort-feasors. They also contend that the negligence of the Railroad through the operation of its train was the sole proximate cause of the collision. By its appeal the Railroad contends that it was guiltless of negligence as a matter of law but that even if it was guilty of some negligence, Bartulevy, the driver of the automobile, was also negligent and that the injury and damage to the plaintiffs resulted from a joint tort and further that the documents were complete releases of a joint tort-feasor that relieved the other joint tort-feasor (the Railroad) of further liability to the plaintiffs below.

Before considering the merits of the contentions of the parties to the two appeals, we are compelled to examine the status of the record and the method by which these questions have been brought to the attention of this court. An appellate jurisdictional question is involved and such questions may be considered even though not raised by the parties.

In actions at law appeals lie only from final judgments except in certain limited situations defined by statute. See Sections 59.02-59.04, Florida Statutes, F.S. A. One of the exceptions is that “the party aggrieved” may appeal from the entry of an order granting a new trial. Section 59.04, Florida Statutes, F.S.A. The appeal perfected by the appellants Goff and Boone is therefore authorized by the statute cited, they being the “parties aggrievéd” by the order. We find, however, no authority for an appeal based entirely on an order denying a motion for a directed verdict whether the motion is made during the course of the trial or after verdict following denial of a similar motion made during the course of the trial. In such situations, that is, where an order has been entered' denying a motion for a directed verdict under former Common Law Rule 40 (1954 Rules of Civil Procedure 2.7), the appeal must be from the final judgment itself rather than from the order denying the motion. The reason for the rule is that such orders are considered interlocutory and not final in nature and therefore insufficient to support the appeal, absent specific statutory authority therefor. There is no such authority. We have repeatedly announced that in the absence of specific authority established by statute an appeal from an interlocutory order in a law action will not be heard. In Leonetti v. Boone, Fla.1954, 74 So.2d 551, we held, for example, that an order granting a new trial is reviewable on appeal therefrom only by virtue of statute that such review is limited to grounds specified by the trial judge as the basis for granting the order, again because of a statute; and further that on such an appeal the issue of whether the trial court committed error in refusing to direct a verdict for the plaintiff was not reviewable, the new trial having been granted on the defendant’s motion.

Of more persuasive influence is our decision in Gore v. Hansen, Fla.1952, 59 So.2d 538. In that case we held that former Common Law Rule 40 relating to motions for directed verdicts during and following trial does not define or in any way change the scope of the appellate jurisdiction of the Supreme Court and we concluded the case with the holding that an order denying a motion for entry of judgment pursuant to a motion for a directed verdict made and entered after a mistrial is not appealable under the statutes hereinabove cited. The reasoning of this court in Gore v. Hansen, supra, is appropriate to the situation before us in the case at bar.

Insofar as the question at issue is concerned, we find a precedent directly analogous in Ford Motor Co. v. Busam Motor Sales, 6 Cir., 185 F.2d 531. An examination of the opinion in the last cited case construing Federal Rules of Civil Procedure, Rule 50, 28 U.S.C.A., which is identical with our former Common Law Rule 40, will sustain the .conclusion that an order denying a motion for a judgment notwithstanding the verdict is interlocutory and not appealable. Where the motion for the judgment notwithstanding the verdict is joined in the alternative with the motion for a new trial and the new trial is granted, then there is in existence no judgment from which an appeal could be perfected in order to raise the question of the correctness of the ruling on the motion for judgment notwithstanding the verdict.

On the effect of an order granting a new trial, we quote from 39 Am.Jur., New Trial, Sec. 204, p. 201, as follows:

“An order directing a new trial has the effect of vacating the proceeding and leaving the case as though no trial had been had. .The verdict and judgment are set aside, even though the order does not specifically mention either. The granting of the motion usually has the effect-, ipso facto, of vacating the judgment.”

We are not to be understood as holding that an order denying a motion for directed verdict cannot be reviewed. Such orders are subject to review at the proper time,-which is following the- entry of the final judgment which ultimately disposes of the case and from which an appeal may properly be taken, but the appeal is from the final judgment not from the order denying the motion. If there is no final judgment, as where a new trial has been granted and the entire case is re-opened, there is no order from which an appeal can be taken to secure review of the denial of the directed verdict. In the absence of a final judgment to support the appeal, the order on the motion for a directed verdict in an of itself (unlike the order granting a new trial because of Section 59.04, Florida Statutes, F.S.A.) cannot constitute the basis for appeal.

A very helpful opinion covering the subject under discussion will be found in Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147. Also see Barron and Holtzoff on Federal Practice and Procedure, Vol. 2, Sec. 1081; and Moore’s Federal Practice, 2d Ed., Vol. 5, Sec. 50.14.

In order to avoid unduly lengthening this opinion we have refrained from quoting at length from the authorities cited. In' applying this opinion as a precedent, however, they should be examined.

Applying the foregoing rules to the situation before us, we are, therefore, led to the conclusion that the appeal of Mrs. Goff and Mrs. Boone from the order granting the motion for new trial was properly perfected pursuant to provisions of Section 59.04, Florida Statutes, F.S.A., and that when the motion for new trial filed by the Railroad was granted, it had the effect of vacating any final judgment theretofore entered and completely revitalizing the entire cause for further proceedings in the form of a new trial. By granting the new trial the judge renewed and revived the judicial- labor of the trial court. The order denying the motion for directed verdict ■ being interlocutory in nature and there being no authority in this court to consider an appeal based entirely upon such an order, we find that we are zcnthout jurisdiction to consider the matters raised in the separate appeal perfected by the Railroad necessarily grounded entirely upon the adverse ruling on the motion for a directed verdict, there being no final judgment upon which such an appeal can be bottomed.

We return to the consideration of the merits of the appeal perfected by appellants Boone and Goff attacking the order of the trial judge granting the motion for new trial. We have examined the testimony, the exhibits and evidentiary facts revealed by the record and we cannot conclude that the record justifies the conclusion as a matter of law that either the train crew or Bartulevy, the driver of the automobile, was guilty of such negligence as to constitute the sole proximate cause of the injury and damage or that they were joint tort-feasors as a matter of law. Therefore, at the trial the judge properly submitted these problems to the- jury for determination and a new trial on this ground should not have been granted on the basis of the facts presently appearing in the record, although at a subsequent trial of the cause, such a conclusion might appear justifiable from the facts then appearing.

The Railroad contends that when the jury found in its favor in the Bullington case which was consolidated with these cases for trial, it necessarily had to find either that the Railroad was guilty of no negligence or that the Railroad and Bartu-levy were joint tort-feasors and the releases to Bartulevy would preclude recovery. We pointed out above that the jury could have based its verdict in the Bulling-ton case on another factual situation, to-wit, that Bullington was entitled to recover from the Railroad but that the consideration paid to him for the previously executed release was adequate to satisfy his claim for damages and that therefore he was not entitled to any further recovery from the Railroad. Hence the existence of joint tort-feasorsliip was not necessarily concluded by the verdict against Bullington.

We now proceed to a consideration of the remaining question as to whether the documents executed by Mrs. Goff and Mrs. Boone were outright releases or merely covenants not to sue. The two documents were identical except as to name of cov-enantor and amount paid. In order to understand the problem, it is necessary to quote the entire document which we do (omitting signatures, witnesses and the acknowledgment) as follows:

“Covenant not to Sue
“I, Frona Mae Boone of Zolfo Springs in the County of Hardee and State of Florida for my heirs, executors and administrators, in consideration of the sum of Fifteen hundred and no/100 — Dollars to me paid by Anthony J. Bartulevy the receipt of which is hereby acknowledged, do by this instrument covenant with said Anthony J. Bartulevy to forever refrain from instituting, pressing or in cmy way aiding any claim, demand, action or causes of action, for damages, cost, loss of service, expenses or compensation for, on account of, or in cmy way growing out of, or hereafter to grow out of an accident which happened to my husband, John W. Boone on or about the 21 day of September 1949, at or near Oneco, Florida, whereby John W. Boone was fatally injured and for the above consideration I hereby agree to hold the said Anthony J. Bartulevy harmless from any damages to myself resulting or to result from said accident.” (Emphasis ours.)

In arguing this cause at the bar of the Court, counsel for the respective parties have urged the Court to clarify what they allege to be certain questions arising out of previous decisions with reference to when a document will be considered a release and when it will be considered a covenant not to sue.

The basic rule on the effect of a release of one joint tort-feasor upon the liability of other joint tort-feasors was announced by this Court in Louisville & N. R. Co. v. Allen, 67 Fla. 257, 65 So. 8, 11, L.R.A.1915C, 20, as follows:

“ * * * The defendant does not question the general and well-established rule, which is thus laid down in 24 Amer. & Eng. Ency. of Law (2d Ed.) 306: ‘A release or discharge of one or more joint tort-feasors, executed in satisfaction of the tort, is a discharge of them all, on the ground that the party injured can have but one satisfaction for his injury. Each is considered as sanctioning all the acts of the others, thereby making them his own, and each is liable for the whole damage as if it had been occasioned by himself alone; hence the law considered that he who pays for the injury has paid for all, and there is nothing left for which the other tort-feasors can be liable.’ As is further said on page 307 of the work cited: ‘Another reason for the rule, as stated by the courts, is that the release being taken most strongly against the releasor is conclusive evidence that he has been satisfied for the wrong; and after satisfaction, although it moved from only one of the tort-feasors, no foundation remains for an action against any one. A sufficient atonement having been made for the trespass, the whole matter is at an end. It is as though the wrong had never been done.’ ” (Emphasis ours.)

The case last cited is likewise authority for the proposition that even though the release contains a reservation of rights against the other tort-feasors, it will not thereby fail to have the effect stated in the last quotation. The position of this Court on such a reservation is stated as follows in Louisville & N. R. Co. v. Allen, supra:

“ * * * We have reached the conclusion not only that the numerical weight of authority, but that the better-reasoned cases, are to the effect, as we [sic] held in Abb v. Northern Pacific Ry. Co., 28 Wash. 428, 68 P. 954, 58 L.R.A. 293, 92 Am.St.Rep. 864: ‘The acceptance of a sum of money from one joint tort-feasor in satisfaction of a claim for damages, and the execution of a release and discharge of such joint tort-feasor from all damages by reason of the injuries inflicted, operates as a release of the other joint tort-feasor, though the parties to the agreement may stipulate that the release of one shall not discharge the other.’ We are impressed with the reasoning in this case. See the authorities cited therein.” (Emphasis ours.)

The rule last stated continues to be the law in Florida and we have consistently adhered to it in later cases.

In City of Miami v. Miner, 124 Fla. 684, 169 So. 609, we recognized that a covenant not to sue as distinquished from an outright, release of one- tort-feasor would not have the effect of barring an action against the other joint tort-feasor. It is contended by the 'appellants Goff and Boone that the document signed by them is very similar, if not identical, with the document in City of Miami v. Miner, supra. We have examined the document in the case last cited as it appears in the original record on file in this Court although it is not recited in the opinion. We detect a very substantial difference between the two and it is a difference which lays the foundation for the conclusion which we reach in the case at bar. In the document signed by the appellants Goff and Boone, it should be observed that they covénanted with Bartulevy “to forever refrain from instituting, pressing or in any way aiding any claim, demand, action or causes of action, for damages, cost, loss of service, expenses or compensation for, on account of, or in any way growing out of, or hereafter to grow out of an accident”. (Emphasis ours.) The covenant before us was comprehensive and all-inclusive. It was not a covenant merely to refrain from suing Bar-tulevy. It was a covenánt to refrain from suing everybody connected with the particular injury. In City of Miami v. Miner, supra, the covenant was to refrain from bringing any action against the Seaboard Airline Railroad Company. It named the specific joint tort-feasor whom the injured party was covenanting not to sue. This was not so in the document signed by Mrs. Goff and Mrs. Boone. True, they agreed to hold Bartulevy harmless but by language which is crystal-clear they also agreed for a consideration paid by Bartulevy to refrain from instituting any action whatsoever and they did not limit this agreement to refrain from suing only Bartulevy.

The same distinction should be noticed in the case of Martin v. Burney, 160 Fla. 183, 34 So.2d 36. An examination of our opinion in that case will show that it was clearly a covenant not to sue certain named alleged joint tort-feasors. It was not an all-inclusive agreement covering every claim arising out of the accident regardless of whom the alleged tort-feasor might be as was done 'in the agreement in the instant case.

The pole star that guides our course in arriving at a safe conclusion in the consideration of documents of this nature is the intent of the parties as expressed in the document itself. Where that intent can be determined from the language of the instrument, such intent will be conclusive in our determination of the nature of the instrument. The construction of the document then becomes a question of law and not a jury issue. See Roper v. Florida Public Utilities Co., 131 Fla. 709, 179 So. 904.

Because of certain language used in our opinion in Davidow v. Seyfarth, Fla.1952, 58 So.2d 865, the parties in the instant case deem it of some consequence that the signers of the documents before us signed the same for themselves and for their “heirs, executors and administrators”. Despite any language in previous opinions, we hold that the use of these or similar words are not determinative of whether a specific document is a release or a covenant not to sue. These words might appropriately be used in either document. Furthermore in some of the earlier decisions language has been used indicating that if tire document shows that the injured party has received “satisfaction” for the alleged injury, it might be'construed as a release instead of a covenant not to sue. In most tort cases and particularly in personal injury matters, it is impossible to determine when a particular individual feels that his claim has been satisfied in the sense of being adequately compensated. The word “satisfied” has been used in the opinions to indicate that the party’s demand has been met and that he does not have any intention of pressing any further demand. It means satisfaction to the extent that he has been paid and will not pursue the matter further.

A good example of a covenant not to sue will be found in the case of Martin v. Burney, 160 Fla. 183, 34 So.2d 36. It will be noted there that the words “heirs, executors, administrators, successors and assigns” are used by the party who executed the document. It will also be noted that the covenantor expressly reserved his rights against parties other than those specifically named in the covenant. Similar expressions if used in a release would not thereby convert it into a covenant not to sue. The key to the whole problem is that the injured party, if he desires merely to execute a covenant not to sue, should make the covenant with and for the benefit of the particular joint tort-feasor only.

A release is an outright cancellation or discharge of the entire obligation as to one or all of the alleged joint wrongdoers. A covenant not to sue recognizes that the obligation or liability continues but the injured party agrees not to assert any rights grounded thereon against a particular covenantee.

In the case before us Mrs. Goff and Mrs. Boone made the agreement not with and for the particular joint tort-feasor alone but with him and for the benefit of everybody involved. They agreed not to sue anyone for the injury and damage.

We conclude with the holding that the appeal of the Railroad on the order denying the motion for a judgment notwithstanding the verdict is not properly before the court for consideration and, therefore, is dismissed ex mero motu.

On the appeal by Goff and Boone the order granting the motion for a new trial is affirmed, subject to our conclusions with reference to the findings of the trial judge on the matter of the alleged joint tort-fea-sorship of the Railroad and Bartulevy. The cases will have to be re-tried on the issues of negligence and damages in accordance with the rules announced by this opinion.

DREW, C. J., and THOMAS and ROBERTS, JJ., concur.


text:
    Kathleen Porter KANY and Rudolph Kany, her husband, Appellants, v. Berrien BECKS, as Guardian of the property of Louise Hewitt Porter, an Incompetent, and Louise Hewitt Porter, an Incompetent, Appellees.
    Supreme Court of Florida. Division B.
    Jan. 27, 1956.
    Rehearing Denied Feb. 14, 1956.

      W. J. Gardiner, Daytona Beach, for appellants.
    Walter A. Shelley, Bjarne B. Andersen, Jr., and Berrien Becks, Daytona Beach, for appellees.
   THOMAS, Justice.

Berrien Becks, guardian, and his ward, Louise Hewitt Porter, were successful in their suit in ejectment against Kathleen Porter Kany and her husband, Rudolph Kany, and the Kanys appealed.

We condense the facts as they are mirrored in the record. The property involved was owned by A. McF. Porter, who, joined by his wife, Louise Hewitt Porter, appellee, conveyed it to their children, Kathleen Porter Kany, appellant, and Richard O. Porter, reserving to the grantors a life estate and right of enjoyment and possession so long as either of them lived. Immediately afterward Richard O. Porter, and his wife, conveyed his interest to Kathleen Porter Kany, his sister, subject to the life estate of the parents. So Richard O. Porter is no longer interested except as heir apparent and with this status we are not now concerned. For about nine years after the conveyances A. McF. Porter and Louise Hewitt Porter lived on the property, then, 19 January 1953, Louise Hewitt Porter was declared incompetent and admitted to the Florida State Hospital and, 13 June 1953, A. McF. Porter died. Meanwhile the appellant, Kathleen Porter Kany, moved into the home and, intermittently, for periods from two weeks to five months cared for her mother or father, or both of them. This attention to the mother ended when the daughter took the mother to the asylum where the mother now is. The daughter continued to care for the father until his death.

The appellee, Berrien Becks, was appointed the mother’s guardian and in that capacity instituted the present suit. He was joined in the amended complaint by his ward. Sec. 744.61, Florida Statutes 1953, and F.S.A.

A motion for summary judgment was filed by the plaintiffs and such a motion was also filed by the defendants. The court denied the second and granted the first adjudging Louise Hewitt Porter owner of a life estate in the property, and Berrien Becks, as guardian, entitled to possession of it. He also entered judgment against Kathleen Porter Kany in the sum of $1,500 for “rents and proceeds” for the fifteen preceding months.

The appellants first challenge the propriety of that part of the judgment fixing the amount due for “rents and proceeds,” probably intended to mean “profits,” claiming that in the absence of testimony on that subject there was no way the judge could have accurately arrived at the amount. Once the judge decided from the undisputed facts that the guardian was entitled to possession, the measure of the mesne profits recoverable was the “value of the use and occupation of the land” during the time the owner, or in this case the guardian of the owner, was wrongfully deprived of possession, Kester v. Bostwick, 153 Fla. 437, 15 So.2d 201. There was no admission of the amount of such damages and we are at a loss to understand whence came the information that formed a basis for this portion of the judgment, unless from some knowledge possessed by the judge and, of course, this method of establishing it cannot be approved as we held in Forbes v. Bushnell Steel Construction Company, Fla., 76 So.2d 268.

In most instances when motions for summary judgment are made by both parties-plaintiff and parties-defendant, the deduction that the case is properly determined in summary manner and that the losing party cannot well complain of that procedure, seems logical. Obviously that would not apply to the phase of this controversy relative to damages because the amount of them constituted a genuine issue of fact.

This part of the judgment is to us patently erroneous although we find no fault with the judge’s determination of the other issues by summary judgment. We will now proceed to a decision whether or not he decided them correctly.

The appellants seem to take the position that the remainderman’s, Kathleen Porter Kany’s, title was “accelerated” by the misfortune of Louise Hewitt Porter in losing her mental health. They reason that since the use, possession and enjoyment of the property were reserved and Louise Hewitt Porter could not, because of her condition use, possess or enjoy the property the “fee title” held by Kathleen Porter Kany “was accelerated and hastened as of the date of the death of * * * A. McF. Porter * * * and * * * the right of possession did at such time merge with the remainder and fee title of * * * Kathleen P. Kany.” Logic and the statute, Sec. 744.51, Florida Statutes 1953, and F.S.A., refute the thought. A person sent to the state hospital is not to be considered as having died hence as having been divested of an interest in a life estate. Many such unfortunate persons are afterward declared to have recovered and thereupon regain their normal places in society. The very purpose of the law, Chapter 744, Florida Statutes 1953, and F.S.A., under which the appellee, Berrien Becks, was appointed guardian of the property of Louise Hewitt Porter is to preserve the property of the ward. Such was the duty of the guardian who is appellee here and it was in the performance of that duty that he started this litigation.

The appellants attached significance to the facts that the daughter went upon the property at the request of her ailing parents to minister to them and made some improvements while there. We find in these actions, praiseworthy as they were and doubtless prompted by natural affection, nothing which would justify the construction that possession of the property was being surrendered or that the interest of the mother in the property was being disturbed. We do not interpret any of the acts of the daughter or of the parents as Having any influence on the state of the title conveyed and established by deed.

In accordance with 30 F.S.A., Common Law Rule 43(d) we direct that the cause be remanded for the purpose of determining the period during which Kathleen Porter Kany was liable for the use and occupancy of the land and the value of that use and occupancy, Manning v. Clark, Fla., 71 So.2d 508. Otherwise the summary judgment is affirmed.

Affirmed in part and reversed in part.

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


author: DICKINSON, Associate Justice.

text:
    David ALEXANDER, Petitioner, v. PEOPLES ICE COMPANY, Florida Industrial Commission and Hardware Mutual Casualty Company, Respondents.
    Supreme Court of Florida. Special Division A.
    Dec. 14, 1955.
    Rehearing Denied Feb. 29, 1956.
    David Lanier, Madison, for petitioner.
    William McChesney, Madison, Burnis T. Coleman and Rodney Durrance, Tallahassee, for respondents.
   DICKINSON, Associate Justice.

This matter is before this court on an application for a writ of certiorari to be directed to the Florida Industrial Commission, the Peoples Ice Company, the employer of the petitioner, and the Hardware Mutual Casualty Company, its carrier.

The facts are very simple. They are these:

Petitioner was employed by Peoples Ice Company. In 1940 he suffered the loss of one eye while employed by another employer. In 1951, while in the employ of Peoples Ice Company, he lost the sight of his other eye through an accident. He claims he is entitled to compensation for 700 weeks, this being the compensation allowed for the loss of both eyes, while his employer and his carrier contend that he is entitled to compensation only for 175 weeks, this being the statutory allowance for the loss of one eye only. There is no question but what the petitioner is totally blind.

The Deputy Commissioner and the Full Commission denied petitioner compensation for 700 weeks, holding in effect that he, having lost the sight of one eye in another employment was thus only partially disabled as a result of his current employment. Hence this application for review.

Section 440.15, subsection (1) (b) provides that a loss of both eyes shall constitute permanent total disability and shall be compensable for not to exceed 700 weeks.

Section 440.15, subsection (5) (c) provides :

“(c) If any employee had a permanent disability not occasioned by an injury resulting from an accident while in the employ of same employer in whose employ he received a subsequent permanent injury, the amount of compensation shall be fixed as follows:
“1. If the permanent injury is one that is classified under subsection (3) of § 440.15, and to the same member and in the same degree, the compensation shall be sixty per cent of the employee’s average weekly wage to be paid only during the time he is incapacitated from work on account of said injury but not to exceed the period of time specified in subsection (3) of § 440.15 for the permanent disability.”

Section 440.15, subsection (3) (e) provides that in case of disability, partial in character but permanent in quality, the compensation, in addition to that provided by subsection (2) of this section, shall be sixty per cent of the average weekly wages and shall be paid to the employee as follows: “(e) Eye lost, one hundred and seventy-five weeks’ compensation.”

The crux of this case is whether a person totally blind shall draw compensation for 700 weeks or 175 weeks, the latter time being what the Commission determined governed in this case.

It is difficult for this court to see how there could be any question but what the petitioner has lost both eyes and is totally blind. The act does not make any exception as to when or how one becomes blind or loses both eyes, but only says that compensation shall be payable in the event of total blindness or loss of both eyes. The employer took the employee knowing, for all the record shows, that petitioner had lost one eye and thus only had one eye to lose. An employer takes an employee as he finds him when he employs him, especially with a condition so obvious as the loss of an eye.

This is a new question in Florida, but other courts have passed on the question on their workmen’s compensation statutes. This court has said many times that the act should be construed liberally and where doubt exists it should always be resolved in favor of the working man. Thus, and only thus, can he be protected and the purpose of the act fulfilled.

The case of In re Branconnier, 223 Mass. 273, 111 N.E. 792, is decisive on this question. It involved the same factual situation that we have here involved. We adopt it as controlling here. Certainly it is hard to conceive any more total disability than total blindness occasioned by the loss of both eyes.

Hence the writ will issue and the cause be remanded to the Commission for further action not inconsistent with this opinion.

TERRELL, Acting Chief Justice, and O’CONNELL and BUFORD, JJ., concur.


author: HOBSON, Justice.

text:
    Elizabeth Heard HILL, Petitioner, v. J. N. MORRIS and Broward National Bank of Fort Lauderdale, as Executors and Trustees under the Last Will and Testament of John Henry Hill, Deceased, John Henry Hill, III, a minor, Anna Belle Johnson, as Guardian of John Henry Hill, III, a minor, and Francis K. Buckley, Guardian Ad Litem for John Henry Hill, III, a minor, Respondents.
    Supreme Court of Florida. Special Division A.
    Jan. 27, 1956.
    Rehearing Denied Feb. 29, 1956.

      Joseph A. Varón, Hollywood, Sam D. Phillips, Jr., West Palm Beach, Robert E. Hathaway, Tallahassee, and Phillips & Hathaway, West Palm Beach, for petitioner.
    McCune, Hiaasen, Kelley & Crum, Fort Lauderdale, for J. N. Morris and Broward Nat. Bank of Fort Lauderdale.
    William H. Grimditch, Jr., Deerfield Beach, for Francis K. Buckley, as Guardian ad Litem for John Henry Hill, III, a minor, for respondents.
   HOBSON, Justice.

This petition for certiorari is brought by Elizabeth Heard Hill to review certain rulings of the circuit court culminating in an order denying a joint motion of the parties for determination of the cause upon bill and answer.

Respondent executors of the estate of John Henry Hill, deceased, filed a complaint for declaratory decree, naming as defendants the petitioner, who is the widow of the decedent, and the respondents John Henry Hill, III, minor son of the decedent, and his guardian. The complaint alleged in substance that decedent had died testate, that his widow had intentionally shot and killed him, and that she had filed a claim for family allowance in the probate proceedings and was expected to claim dower. The executors prayed for an order declaring, inter alia, to what extent, if any, the widow was entitled to participate in the estate.

By stipulation, further action in the suit was stayed pending the outcome of criminal proceedings against petitioner in the circuit court on a charge of murder, which finally resulted in a verdict, and judgment duly entered consequent thereon, of “not guilty for the cause of insanity”. Petitioner elected to claim dower, and set up the fact of her acquittal in her answer in the instant suit. For affirmative relief she prayed that the court declare her entitled to receive her statutory share in the estate of decedent. Subsequently, a counterclaim was filed on behalf of John Henry Hill, III, by a guardian ad litem who had been appointed for him. The petitioner and the respondent executors were named as defendants to this counterclaim, in which it was alleged, inter alia, that although petitioner had been acquitted of murder, her "killing of decedent was unlawful”. The counterclaim prayed for a decree ordering litigation of the question of the alleged unlawful killing and, if the result of such trial should be determined adversely to petitioner, for an order precluding her participation in the estate by way of dower or otherwise. The counterclaim was answered and motions were filed, including a motion by petitioner to dismiss the counterclaim for failure to state an actionable claim, which was denied. Ultimately, all parties joined in a motion for decree on the pleadings, for the reason that “the facts in the above cause have been agreed upon by all the parties hereto”. This motion was also denied by the circuit judge, who held that the issue of whether the killing of decedent was “unlawful and felonious” or “justified or excused by reason of [petitioner’s] insanity at the time of the killing” would have to be “resolved by testimony before this court as to the circumstances of the death of John Henry Hill before the Court can made a declaratory decree herein”.

The question presented on this petition is whether or not a widow who has been duly acquitted, by reason of insanity, from a charge of murdering her husband is entitled as a matter of law to participate in his estate by way of dower. We have never before passed upon this specific question, but we are much assisted by the opinion of the court below and by the excellent briefs prepared by counsel for the parties.

In Florida, the right to dower and the manner of taking it spring wholly from the Probate Law, F.S. Secs. 731.34 and 731.-35, F.S.A. Part of the same chapter of the Probate Law, Sec. 731.31, reads as follows:

“Murderer. — Any person convicted of the murder of a decedent shall not be entitled to inherit from the decedent or to take any portion of his estate as a legatee or devisee. The portion of the decedent’s estate to which such murderer would otherwise be entitled shall pass to the persons entitled thereto as though such murderer had died during the lifetime of the decedent.” (Italics added.)

In Peeples v. Corbett, 117 Fla. 213, 157 So. 510, 511, we held that a complaint seeking to work a forfeiture under this statute failed to state a cause of action where it did not allege a conviction of murder. Commenting on the statute we said, in an opinion by Mr. Justice Buford:

“It will be noted that the legislative enactment only excludes those from inheritance who have been convicted of the murder of a decedent from whom they would otherwise inherit.
“This is a salutary provision and the condition applying only to those who have been convicted of murder is a wise one. If one murders his ancestor, he should not profit by his wrong, but, before he should be required to forfeit his right of inheritance, his guilt should be established beyond a reasonable doubt.”

An important part of our reasoning in that case was that since the rights sought to be forfeited arose by statute, and the legislature had also prescribed the conditions under which such rights would be barred for felonious homicide, there was no necessity for the consideration of common-law principles. We therefore concluded that the statute (predecessor of F.S. Sec. 731.31, F.S.A.) should be “given effect as it was written” and held that the complaint stated nothing actionable.

It is true that the Peeples case concerned rights springing from the statutes of descent and distribution rather than dower, but we think its reasoning equally applicable to the case at bar because both interests arise wholly from the Probate Law.

It was held below and it is urged here by respondents that dower is not inheritance, that F.S. Sec. 731.31, F.S.A., does not apply to dower, and that under common-law principles, which thus become .applicable, petitioner might be obliged to forfeit her dower.

Whether or not F.S. Sec. 731.-31, F.S.A., was intended to cover dower we find it unnecessary to resolve upon this application. Since no conviction was alleged, and indeed it is agreed that petitioner was acquitted, it is obvious that the statutory bar does not operate, by its own terms and under Peeples v. Corbett, supra, and if the common law then enters the breach, we find the weight of authority in connection with dower to be favorable to petitioner, even disregarding the fact of her acquittal.

In 28 C.J.S., Dower, § 52, p. 120, it is stated:

''In the absence of statute to the contraryj a wife does not forfeit her right to dower by wrongfully killing her husband, whether the grade of the offense is murder or voluntary manslaughter.” (Italics added.)

And 17 Am.Jur., Dower, Sec. 88, p. 742, reads as follows:

“It is very generally, although not universally, held that in the absence of a statutory provision to the contrary, neither dower nor statutory right of a widow in her husband’s estate is barred because she has taken, or was a party to the taking of, her husband’s life. In such a case a statute which prescribed in unambiguous terms certain things, not including murder, which shall deprive the widow of her share in her husband’s estate prevents the application of the maxim ‘that no one shall be permitted to take advantage of his own wrong.’ (Italics added.)

If, in the absence of statute to the contrary, the above rules would apply had there been a conviction of murder or other felonious homicide, what of the purifying effect of an acquittal? It was held below, and it is argued here by respondents, that the acquittal cannot be considered, because by a familiar principle a criminal judgment is not res judicata of a civil action and is inadmissible in such civil action as evidence of the facts upon which it was based. Wirt v. Fraser, 158 Fla. 777, 30 So.2d 174; State v. Dubose, 152 Fla. 304, 11 So.2d 477. As we pointed out in Stevens v. Duke, Fla., 42 So.2d 361, 363, this rule is “not without its exceptions”. But a more fundamental objection to its applicability in this case is voiced by petitioner, who points out that the real question here is not the effect of the criminal judgment when sought to be introduced in civil proceedings, but whether or not such proceedings may be maintained at all. In the Peeples case, supra, we held that they could not, short of an allegation of conviction. Moreover, as we have indicated, the acquittal by reason of insanity is conceded for purposes of this application, and since the cause was sought by all parties to be determined on the pleadings, we are relieved of the necessity for determining the admissibility of the judgment of acquittal vel non. We can only evaluate it in connection with the matter immediately at hand.

In Chantangco v. Abaroa, 218 U.S. 476, 31 S.Ct. 34, 54 L.Ed. 1116, the Supreme Court of the United States was confronted with a similar situation. There the defendant had been acquitted in a criminal trial in the Philippine Islands and was sued for damages in a civil action arising out of the same facts. Defendant had pleaded his acquittal, and had obtained judgment on the basis thereof. On appeal, this judgment had been affirmed, on the premise that a judgment of conviction was essential to an action for indemnification under the applicable local law. On writ of error to the Supreme Court, plaintiff in error contended that the doctrine of res judicata did not apply. Acknowledging this rule, and discussing its ramifications, the Supreme Court held that it had no application to the case because of the statutory considerations involved. Most important, under the Philippine Code civil responsibility for crime was made dependent upon, and was to be declared in, the criminal proceedings. Thus a conviction of crime was the sine qua non of civil responsibility for the same act, and without a conviction there could be no such responsibility. This was exactly the effect of our holding under the Florida Probate Law in Peoples v. Corbett, supra. In the Chantangco case the Supreme Court of the United States affirmed the judgment from which the writ of error was taken.

The effect of the judgment of acquittal by reason of insanity was to establish conclusively that petitioner was not guilty of the public offense with which she was charged, because as a matter of criminal law she lacked the capacity to commit the crime. This should suffice to clear the record of such epithets as “felonious killer” and the like, with which it is replete, and which are properly applicable only in the criminal law. More significantly, it establishes that she cannot in any event be subjected to the bar which the legislature has made an integral part of the Florida Probate Law. If that bar should be extended, it is a task for the legislature.

Respondents urge upon us insurance cases in which the proceeds of policies of insurance were denied beneficiaries who had killed the insured. Examples are Horn v. Cole, 203 Ark. 361, 156 S.W.2d 787, and DeZotell v. Mutual Life Ins. Co. of New York, 60 S.D. 532, 245 N.W. 58, relied upon by the Court below. But this type of case, which involves a fraud upon a contract right, is not persuasive in a situation concerning a statutory right such as in the case at bar. It is interesting that the Supreme Court of Arkansas, which had decided in Horn v. Cole, supra, that a widow could not share in the proceeds of the insurance policy of her husband, whom she had killed, was later confronted with a claim to dower on behalf of a widow who had killed her husband and committed suicide, in Barnes v. Cooper, 204 Ark. 118, 161 S.W.2d 8. It was there held that dower should be granted as a matter of law without litigation of the lawfulness of the killing because the statutory bar, like ours, applied only to a spouse “convicted of murder”.

Another case illustrative of this distinction is Smith v. Greenburg, 121 Colo. 417, 218 P.2d 514. In that case a husband murdered his wife and adopted daughter and committed suicide. It was held that the husband was barred as beneficiary from the proceeds of insurance policies, but that he was not barred from inheriting property of the wife and adopted daughter because he was not convicted of murder. For other illustrative insurance cases, showing the various lines of authority on this subject, see the annotation at 39 A.L.R.2d 477.

Also relied upon are Hogan v. Martin, Fla., 52 So.2d 806, and Ashwood v. Patterson, Fla., 49 So.2d 848, in which we held, in line with the middle current of authority (see the cases collected in annotation at 32 A.L.R.2d 1099) that where one spouse murders the other and they own property by the entireties, the property is treated as if they had been tenants in common. This situation, too, is to be distinguished from the case at bar, since a tenancy by the entireties does not originate from, nor does it involve, the Florida Probate Law.

This distinction is emphasized in the recent Kentucky case of Cowan v. Pleasant, Ky., 263 S.W.2d 494. In a previous case, Eversole v. Eversole, 169 Ky. 793, 185 S.W. 487, L.R.A.1916E, 593, it had been held that a wife who had been convicted of voluntary manslaughter of her husband was entitled to dower as a matter of statutory right. In the Cowan case the same court was confronted with the tenancy by the entireties situation and held, exactly in line with our judgment in Ashwood v. Patterson, supra, that the property should be treated as if the spouses had been tenants in common. In distinguishing the Eversole case, the court stated [263 S.W.2d 495]:

“The tenor of the Eversole opinion is that statutes pertaining to the inheritance of property must be followed strictly. It was said also in that case that, cases, involving the rights of a beneficiary who murdered the insured for the purpose of obtaining the proceeds'of a policy on the latter’s life, were not in point, because the wrongful act of a beneficiary was a fraud upon a contract right. The case under consideration is more akin to the category of cases involving contractual rights, because of the manner of acquisition of the property, than it is to those involving inheritance questions. * * * It follows that the Eversole case is not controlling here.”

We conclude that no cases involving private, non-statutory property rights bear upon the subject at hand.

Finally, respondents rely upon the Restatement of Restitution, Sec. 187, and comments thereto. The principal rule of this section appears to be largely declaratory of that which the Florida legislature has codified in F.S. Sec. 731.31, F.S.A., supra. Insofar as the comments given in the Restatement regarding the application of the rule are inconsistent with what we have written above, we have found the law covering the case before us to be otherwise.

It follows that certiorari is granted and the challenged orders must be, and they are hereby, quashed with directions to dismiss the action, including the counterclaim. It is so ordered.

DREW, C. J., TERRELL and O’CON-NELL, JJ., concur.