author: TERRELL, Justice.

text:
    STATE of Florida ex rel. PALMER-FLORIDA CORPORATION, a Delaware corporation duly authorized to do business within the State of Florida, Relator, v. Honorable Ray E. GREEN, as Comptroller of the State of Florida, Respondent.
    Supreme Court of Florida. Special Division A.
    June 20, 1956.
    C. L. McKaig, Worth Dexter, Jr., and Dexter & Conlee, Sarasota, for relator.
    Richard W. Ervin, Atty. Gen., and Fred M. Burns, Asst. Atty. Gen., for respondent.
   TERRELL, Justice.

July 3, 1953, relator, a foreign corporation authorized to transact business in this state, by appropriate resolution directed its officers to execute and deliver a deed to certain unimproved real estate owned by -it in Sarasota County to the stockholders ■ of relator, each stockholder to be granted the undivided interest in the real estate represented by the ratio of the number of shares of common stock which he owned June 30, 1953, to the total number of shares of common stock of relator-corporation outstanding.

The resolution also provided that the carrying value on the books of the corporation of said real estate, namely the sum of $22,628.60, be charged to the paid-in surplus account of the corporation and that the paid-in surplus of the corporation be accordingly reduced. The deed was duly executed and recorded and $207.00 in documentary stamps were affixed to it and cancelled. This amount was based on the market value of the land. Subsequently, but within one year as provided by Sec. 215.26, Florida Statutes 1953, F.S.A., relator filed application for refund of the amount paid for said documentai-y stamp taxes on the theory that they were erroneously paid. The request for refund was denied August 18, 1954. January 19, 1956, petition for alternative writ of mandamus was filed in this court and on February 6, 1956, the alternative writ was issued directed to the respondent commanding him to refund the amount paid for said taxes or show cause why he refused to do so. A return, motion to quash and a motion for peremptory writ notwithstanding the return raise the primary question of whether or not the transaction described in the pleadings is subject to the documentary tax imposed under Sec. 201.02, Florida Statutes, F.S.A., as follows:

“On deeds, instruments, or writings, whereby any lands, tenements, or other realty, or any interest therein, shall be granted, assigned, transferred, or otherwise conveyed to or vested in the purchaser, or any other person by his direction, on each one hundred dollars of the consideration therefor the tax shall be ten cents; provided, that when the full amount of the consideration for the execution, assignment, transfer, or conveyance, is not shown in the face of such deed, instrument, document, or writing, then in such event the tax shall be at the rate of ten cents for each one hundred dollars, or fractional part thereof, of the consideration therefor.”

Relator says that the grantees were all the stockholders in Palmer-Florida Corporation; that they took interests in the land conveyed in proportion to their stockholdr ings; that they paid no “consideration” as contemplated by the quoted statute for the conveyance in that they paid no money for it, they delivered no real, personal or intangible property in exchange for it and they transferred to the corporation nothing of value in exchange for the land conveyed to them. They contend further that what transpired was in reality a partial liquidation of the corporation with resultant transfer of the legal title to the real estate from the corporate name to' the stockholders’ names. Viewed in this light, says relator, the stockholder-grantees were the equitable owners of the land in question so that the deed conveying such realty was not necessary to transfer the general title but was for the purpose of transferring the legal title on the public record. Socony-Vacuum Oil Company v. Sheehan, D.C.E.D.Mo.1943, 50 F.Supp. 1010, 1012; Culbreath v. Reid, Fla., 65 So.2d 556; and De Vore v. Gay, Fla., 39 So.2d 796, are relied on to support this premise. See also as persuasive support for this contention, Biennial Report of Attorney General of Florida, 1953-54, p. 273; Socony-Vacuum Oil Company v. Shee-han, supra; Tide Water Associated Oil Company v. Jones, D.C.W.D.Okl.1944, 57 F.Supp. 482; R. H. Macy & Co. v. United States, D.C.S.D.N.Y.1952, 107 F.Supp. 883; Greyhound Corporation v. United States, 7 Cir., 1954, 208 F.2d 858.

Respondent meets the contention of relator with the argument that mandamus is not the proper remedy to procure refund of taxes paid under Sec. 215.26, Florida Statutes, F.S.A., after an application for such refund has been made to the comptroller and by him denied.

Circumstances might arise in which this argument would contain merit but not so in this case. The right to return of the documentary tax was a pure question of law, no factual situation was involved. Where that is the case mandamus is permitted. State ex rel. Victor Chemical Works v. Gay, Fla., 74 So.2d 560, 562; State ex rel. Tampa Electric Co. v. Gay, Fla., 40 So.2d 225. See also State ex rel. Seaboard Air Line R. Co. v. Gay, 160 Fla. 445, 35 So.2d 403. There are numerous other Florida cases to the same effect. There is another aspect of this case which we feel impelled to mention. In this country where the citizen has paid good money illegally and has an election of remedies for recovery, he should be permitted to employ the most complete and expeditious remedy possible to recover; whether this be mandamus, certiorari or other complete remedy is not material.

Respondent next contends that this proceeding is barred by the limitations contained in Sec. 215.26, Florida Statutes, F.S.A. In this connection, it is further contended that no review of the comptroller’s letter of August 18, 1954, denying the refund having been sought, the present proceeding cannot now be maintained. It is admitted that the application for refund was made within one year after payment of the taxes in question. Respondent contends that both the application for refund and the mandamus suit should have been brought within one year.

It is settled law in this state that mandamus is generally controlled by the equitable doctrine of laches rather than the statute of limitations. Tampa Waterworks Company v. State ex rel. City of Tampa, 77 Fla. 705, 82 So. 230; Little River Bank & Trust Co. v. Johnson, 102 Fla. 828, 136 So. 452; State ex rel. Shein v. Attwood, Fla., 64 So.2d 917; Jumper Creek Drainage District v. State ex rel. Davis, 155 Fla. 669, 21 So.2d 459. It is not suggested that the lapse of time has affected the status of either party. The first aspect of this question was considered in Walgreen Drug Stores Company v. Lee, 158 Fla. 260, 28 So.2d 535, but the cited cases settle the question.

Other questions argued have been considered but we think they are comprehended and answered in what we have said. It is accordingly our view that mandamus was the proper remedy, that respondent has made no showing of injury to his position or that of the public by the lapse of time, so there is no support for the claim of laches, that the deed in question did not require documentary stamps because the grantees were not “purchasers,” and did not pay a “reasonably determinable,” “consideration” for the conveyance as contemplated by Sec. 201.02, Florida Statutes, F.S.A. We find no legal support for the theory that the documentary stamp tax should be measured by the market value of the land transferred. It was a mere book transaction and was in no sense a sale to a “purchaser” as contemplated by Sec. 201.02, Florida Statutes, F.S.A.

Peremptory writ is therefore granted and respondent is directed to draw his warrant for return of the amount paid for the documentary tax.

It is so ordered.

DREW, C. J., THORNAL, J., and CARROLL, Associate Justice, concur.


source: Caselaw Access Project

license: Public Domain

text:
    Georgina BOLICK, Appellant, v. Eugene Lewis SPERRY and Ronald W. Yurewitz, Appellees.
    Supreme Court of Florida. Division A.
    June 13, 1956.

      See, also, Fla., 82 So.2d 374.
    Francis K. Buckley and Buckley & Bland, Fort Lauderdale, for appellant.
    Fowler, White, Gillen, Yancey & Hum-key and Henry Burnett, Miami, for ap-pellees.
   TERRELL, Justice.

Georgina Bolick, a guest passenger sued appellees as defendants in the Circuit Court of Broward County for personal injuries, charging gross negligence. The automobile involved was owned by one of the defendants and driven <by the other. In their answer defendants denied gross negligence. Trial before a jury resulted in a verdict for $2,500 in favor of the plaintiff against both defendants. A motion to set aside the verdict and enter final judgment in favor of defendants was granted. This appeal is from that judgment.

The point for determination is whether or not the trial court committed error in setting aside the verdict and in ordering final judgment for defendants.

Appellant elected to omit bringing-up any of the evidence taken at the trial. Her sole reliance for reversal is an information for reckless driving based upon section 317.21, Florida Statutes, F.S.A., to which a plea of guilty was entered by defendant, Ronald W. Yurewitz. In this state of the record it is settled law that this court having no access to the evidence taken at the trial cannot rule on its sufficiency or insufficiency. Melrose Mfg. Co. v. Kennedy, 59 Fla. 312, 51 So. 595; Florida East Coast R. Co. v. Buckles, 85 Fla. 416, 96 So. 397.

Having disposed of this point, we revert to the question of whether or not a plea of guilty to a charge of reckless driving was sufficient to support a verdict for the plaintiff in an action under the guest statute.

Appellant contends that the terms of section 317.21, Florida Statutes, F.S.A., having to do with reckless driving to which a plea of guilty was entered by one defendant are so similar to the terms of section 320.59, Florida Statutes, F.S.A., upon which the guest action was based that it is equivalent to admission that defendants were guilty of the charge under the latter statute, section 320.59, and being so, it was useless to bring up the evidence.

There is no merit to this contention Section 317.21 has to do with reckless driving and defines what speeds shall he lawful but declares that any speed m excess oí the limits so defined shall be prima facie evidence of reckless driving. The information to which the plea of guilty was entered charged that defendants did then and there operate their motor vehicle at a rate oí speed in excess of SO miles per hour at night.

This court has repeatedly held that speed alone is not sufficient evidence of gross negligence to support a verdict for damages under the guest statute. Section 320.59, Florida Statutes, F.S.A.; O’Reilly v. Sattler, 141 Fla. 770, 193 So. 817; Koger v. Hollahan, 144 Fla. 779, 198 So. 685, 131 A.L.R. 886; Crane v. Loftin, Fla., 70 So. 2d 574; Ling v. Edenfield, 5 Cir., 211 F.2d 705. See also Orme v. Burr, 157 Fla. 378, 25 So.2d 870, 878, where we held that “violation of the speed limit fixed by the statute does not of itself constitute wilful and wanton misconduct or gross negligence within the meaning of our guest statute.” Whether this is such a case we could not tell without the evidence.

Sections 317.21 and 320.59 are so different in purpose and the evidence required to make out a case under them is such that conviction under the criminal statute would hardly be said to be sufficient to support a judgment for personal injuries under the guest statute. This is even more obvious from reading the cases cited herein.

Other questions have been considered but they bear no theory under which the judgment appealed from should be reversed so it must be, and is hereby, affirmed.

Affirmed.

DREW, C. J., THORNAL, J., and CARROLL, Associate Justice, concur. -


text:
    In re ESTATE of Frances KRIEGER, Deceased.
    Supreme Court of Florida. Special Division A.
    June 27, 1956.
    Rosin & Paderewski, Sarasota, for appellant.
    Early & Early, Sarasota, for appellees.
   TERRELL, Justice.

This is a proceeding to probate the will of Frances Krieger, executed May 5, 1952. The testatrix died November 5, 1953, and on November 13, 1953, appellant Elbert C. Harmon petitioned the appropriate court to probate the will and to issue him letters testamentary as the will provided. Caveats were filed by Andrew E. Krieger, Jr., and Grace Blain, stepchildren of the testatrix. The caveators also filed answer resisting the petition to probate on the ground that the testatrix was incompetent at the time she executed the will and that it was secured by undue influence of Harmon.

The Probate Court took testimony and determined that the testatrix had testamentary capacity and admitted the will to probate but he also determined that those portions of the will leaving; bequests to appellant and appointing him (appellant) co-executor and co-trustee were void on account of having been secured by undue influence. The order of the Probate Judge was on appeal affirmed by the Circuit Court. This appeal is from that decree.

The only point for determination is whether or not the evidence is sufficient to show that the portions of the will leaving bequests to Harmon and appointing him co-executor and co-trustee were void account of having been procured by undue influence of Hannon on the testatrix.

Appellant proposes four grounds for reversal: (1) He admits that the will was unreasonable and unnatural but says that it was unreasonable in a reasonable manner; (2) the testimony of counsel who prepared the will shows that its preparation and execution were not secured by undue influence; (3) the Probate Court did not give sufficient credibility to a certain order he made in another proceeding concerning the testatrix; (4) notwithstanding the provisions of the will in favor of appellant resulted from his influence, such influence was “allowable.” Appellant in other words contents himself by proposing a premise or proposition on which his case may be answered and with it wraps up the answer the court should give on his rather than the Probate Court’s appraisal of the evidence.

The evidence shows that the testatrix was mentally sick; that she was a confirmed alcoholic, was infirm in mind and body and executed the will while in that condition and under the complete control of appellant. Before he had known her eight months he moved into her home and directed her household; he would insist on being present when any one talked to her, never ^permitted her to be alone with others ; insisted that he was her business manager and took care of her business; got her to invest him with power of attorney to represent her, and took complete charge of her safe deposit box and personal affairs. He then embarked on a course of cursing, abusing, calling her vile names, dominating her every movement and isolated her from friends; he told her what to eat and how much; when to stand and when to sit; how to dress and what clothes to purchase and directed all her activities. Pie was the type that appeared to gloat over the fact that he could handle her so thoroughly. Every element of undue influence was established. Mrs. Krieger’s physical and mental condition suscepted her to undue influence and she was shown to be completely dominated by appellant. She was within his clutches twenty-four hours of the day; she could not take care of herself, even to such personal ministrations as dressing her person and retreating to the bathroom for ablutions. Since no other person was present, the opportunity to impose his will on her was present. It is definitely shown that appellant was disposed to exercise influence over the testatrix. The results of such influence were shown in the will that was produced. The Probate Court so found, the Circuit Court approved and we are constrained to follow them.

This case is typical of others which have made their way to this court in which one who is senile or otherwise incompetent becomes possessed of a sizable wad, then like the prodigal son, excites the devotion of the avaricious who never before found anything about them to excite their interest. The web of deceit is forthwith thrown about the victim and the surprising thing about the whole affair is that those who cast the net so often exhibit no more alertness in spoiling their designs than the victim of their greed does in avoiding them.

The following cases compel the judgment we have reached: Gardiner v. Goertner, 110 Fla. 377, 149 So. 186; Hamilton v. Morgan, 93 Fla. 311, 112 So. 80; In re Auerbacher’s Estate, Fla., 41 So.2d 659; Watts v. Newport, 149 Fla. 181, 6 So.2d 829; Newman v. Smith, 77 Fla. 633,. 82 So. 236; In re Estate of Zimmerman, Fla., 84 So.2d 560, and many others could be cited.

Affirmed.

DREW, C. J., THORNAL, J., and WARREN, Associate Justice, concur.


author: HOBSON, Justice.

text:
    In re Estate of Charles H. PRATT, Deceased. CHILDREN’S HOME SOCIETY OF FLORIDA, the Berkshire Industrial Farm, the New York Infirmary for Women and Children, the Seaman’s Church Institute and the Tuskegee State Normal and Industrial Institute, Appellants, v. Helen Aubrey PRATT, Drusilla Pratt Gjoerloff, Martha Pratt Shermund, Robert Hyde Pratt, by and through his next friend and natural guardian, Helen Aubrey Pratt and W. E. Winderweedle, Appellees.
    Supreme Court of Florida. Special Division A.
    March 2, 1956.
    Rehearing Denied July 16, 1956.

      G. W. Botts, Jacksonville, J. R. Spector, New York City, and Fleming, Jones, Scott & Botts, Jacksonville, for appellants.
    J. Thomas Gurney, Orlando, for appellees.
   HOBSON, Justice.

Charles H. Pratt departed this life on September 8, 19S3, leaving a will executed three days before his death.. The will commenced with a conventional revocation clause “hereby expressly revoking all other Wills and Codicils by me at any time made” and gave certain directions pertaining to funeral expenses, costs of administration and taxes. Under Item III of the will, the rest, residue and remainder of the property was to be divided into three equal portions and disposed of as prescribed in subdivisions A, B, and C of Item III. Under A, the first equal' third portion of the residuary estate was bequeathed to the widow absolutely. Under B-, another equal third was bequeathed to the testator’s three children, share and share alike. Under C, the • third equal portion was to be devoted first to certain minor specific legacies, and the balance as follows:

,“The balance of said third portion of my residuary estate remaining after the payments of the said legacies, I give, devise and bequeath absolutely and forever in equal shares to the following:
“New York Infirmary for Women and Children, of New York City.
“Tuskegee State Normal and Industrial Institute of Tuskegee, Alabama.
“Berkshire Industrial Farm of Canaan, Columbia County, New York.
“Seamens Church Institute of New York, located at 25 South Street, New York City, N. Y.
“The Children’s Home Society of Florida, Jacksonville, Florida.”

This will was admitted to probate. Thereafter, the widow and three children of the testator petitioned the County Judge’s Court, praying that gifts to the charitable corporations named in the will be avoided under F.S. Sec. 731.19, F.S.A., which provides that a will making charitable bequests shall be invalid as to such bequests unless it was duly executed at least six months before the testator’s death.

The charitable corporations defended upon the ground that the testator, by a will validly executed' more than six months before his death, had made the same charitable bequests; that by the probated will he had merely reiterated a dispositive scheme conceived more than six months before his death; and that under these'¡circumstances F.S. Sec. 731.19, F.S1A. could not be invfolred to invalidate the gifts to the charities. The charities also sought to compel the attorney for the executor to produce the earlier will. On motion, the defenses were stricken and the attorney for the executor was held not required to produce the prior will. The County Judge de^ dared the charitable .bequests :void and ordered that the portion of the estate which was the subject of’the invalid bequests be distributed as intestate property.

This judgment was appealed to the- Circuit Court, by which it was affirmed, and the charitable corporations 'now appeal to this court. Appellees are the widow and children of the testator and the attorney for the executor.

F.S. Sec. 731.19, F.S.A. so far as it is applicable here, reads as follows:

“If a testator dies leaving issue of his body, or an adopted child, or the lineal descendants of either, or a spouse, and if the will of such testator devises or bequeaths the estate of such testator, or any part thereof, to a benevolent, charitable, literary, scientific, religious or missionary institution, corporation or association or purpose, * * * such will as to such devise or bequest shall be invalid unless it was duly executed at least six months prior to the death of the testator.”

We had occasion to construe this statute in Taylor v. Payne, 154 Fla. 359, 17 So.2d 615, 618, 154 A.L.R. 677. There we said that the purpose of the statute is “to prevent testators who may be laboring under the apprehension of impending death from disposing of their estates to the exclusion of those who are, or should be, the natural objects of the testator’s bounty.” We also held that the statute must be so construed as to secure full protection to the shielded class, at the same time giving as much effect as possible to the intention of -the testator insofar as it is not inconsistent with some settled rule of law or public policy. Thus the statute is to be neither strictly nor narrowly construed. But its plain language, from which we cannot deviate, is broad enough to encompass many cases where a testator, by no means in extremis or even contemplating death, makes a charitable bequest and dies shortly -’thereafter. The statutory coverage is much more comprehensive than its apparent purpose would warrant, but the restriction of its scope is a problem for the legislature.

In the case before us, it is obvious that since the statutory' prohibition has been raised by the testator’s widow, and. children it operates to avoid the charitable, gifts under the will from which we have quoted, and the courts below properly so held. The controlling question is whether the charitable bequests allegedly made in the earlier will should have been revived under the doctrine of “dependent relative revocation”, as appellants have vigorously contended thoughout- this litigation. The application of this doctrine would give rise to the rebuttable presumption that the testator would have preferred to revive his earlier charitable bequests rather than let the property go by intestacy.

The doctrine of dependent relative revocation becomes less abstruse and more comprehensible under other names. In the most celebrated article on the subject, Warren, Dependent. Relative Revocation, 33 Harv.L.R. 337, the author suggests “revocation under a mistake”. Thus if the testator by codicil, revokes a portion of a prior testamentary instrument and makes a substituted disposition under a mistake of fact or of law with the result that the later disposition is invalid, the prior disposition is revived on the theory that had the testator not been mistaken in his belief he would not have revoked the original gift. As explained by the Supreme Court of Iowa in Blackford v. Anderson, 226 Iowa 1138, 286 N.W. 735, 746:

■ “The basis for the doctrine of dependent relative revocation, or conditional or mistaken revocation, as it is sometimes called, is that there was never any revocation of the earlier instrument, or real intention to revoke, because of a mental misconception of the effect of his act, on account of mistake, or ignorance, or some other error.”

The doctrine is called “conditional revocation” upon the theory that the testator Has revoked the former gift only on condition that 'the later gift will be operative. Atkinson on Wills, 2d Ed., pp. 452-463.

In Stewart v. Johnson, 142 Fla. 425, 194 So. 869, we applied the doctrine to give effect to a prior will when a :later will, conT-taining an express revocation clause, failed. for lack of sufficient witnesses. The, same result could' have been achieved by applying Laws 1933, c. 16103, Sec. 14, which provided, as F.S. Sec. 731.13 F.S.A. presently provides, that a will may be revoked by a written instrument, provided such instrument is executed with the same formalities required for the execution of wills. Since the second will in the Stewart case attempted to revoke the first but did not comply with the statute, the revocation was ineffective and the first will stood unaltered. The situation in the Stewart case was similar to that in the classic case of Onions v. Tyrer, 2 Vern, 742, 23 Eng.Rep. 1085 (1717) where the dependent relative revocation doctrine was applied to save an earlier will when the later revoking will failed for want of proper attestation. Onions v. Tyrer, however, was decided under the common law of the period, which permitted revocation by unattested writing. Atkinson on Wills, supra, p. 461, n. 46. Under modern law, codified in F.S. Sec. 731.13, F.S.A., supra, Atkinson gives the following explanation at p. 461:

“If * * * invalidity [of a subsequent gift] is due to a defect in execution, no question of dependent relative revocation arises for the clause of revocation would likewise be ineffective since the same formalities are required for a revoking as for a disposing instrument.”

In another class of case, the subsequent instrument is a properly executed codicil which revokes, expressly or by implication, a gift in a will or previous codicil, and itself attempts a new disposition of property which is ineffective. Here the doctrine may be applied to save the earlier gift. The will and its codicils if properly executed must by their very nature be presented to the probate court, by which they must be examined, and the problem calling for the application of the doctrine will then generally be apparent to the court without resort to evidence extrinsic to the documents themselves. Although execution of a codicil has the effect of republishing the will [in Florida, this rule is codified in F.S. Sec. 731.17, F.S.A., as construed in Massachusetts Audubon Soc. v. Ormond Village Imp. Ass’n, 152 Fla. 1, 10, So.2d 494], it has been held, under statutes similar to F.S. Sec. 731.19, invalidating charitable bequests if made within a certain period before the testator’s death, that such gifts are effective if the will precedes the prescribed period although the codicil does not. In re Pence’s Estate, 117 Cal.App., 323, 4 P.2d 202; In re McCauley’s Estate, 138 Cal. 432, 71 P. 512; Appeal of Carl, 106 Pa. 635.

One of the clearest examples of a codicil case where the “dependent relative revocation” doctrine was in our opinion, properly applied is the English case of In re Bernard’s Settlement [1916] 1 Ch. 552. There the testator, by will, exercised a power of appointment, but expressly revoked it by a third codicil in which a new appointment was made which violated the rule against perpetuities. In its opinion, the court thus stated the question to be resolved [1 Ch. 560]:

“Did the testator intend by the second appointment to revoke in any case the prior appointment, or did he really only intend to revoke it for the purpose of carrying out the alteration made in his second appointment and without having any intention of revoking the previous gift except for the purpose of the altered appointment?”

It was held, (solely on the basis of the testamentary papers necessarily before the court, so far as appears) that the probable testamentary intention was to revoke only in favor of a valid new appointment, and that the original appointment was preferable to intestacy and should therefore be made effective.

The differences between the instant case and the improper execution cases discussed above is too plain for comment. The codicil cases, however, are another matter.

It might appear that we could treat the later will as a codicil. But wills and codicils have different legal incidents which overlap but by no means coincide. And no test now occurs to us which would be useful in a case like this for determining when a testamentary document which appears in all respects to be a will should be treated as in fact a codicil by the Probate Court.

The case before us is one wherein the testator, by an unambiguous, complete testamentary instrument, has disposed of all of his property, expressly revoking all prior wills. There is no suggestion of fraud or undue influence. There are no conflicting provisions of testamentary papers necessarily before the court, as in the case of a will and codicils, which might form a basis for the admission of parol evidence for its bearing upon the testamentary intent. We know of no principle of law which would authorize us to look beyond the probated will for testamentary intent in such a case. We do not understand that the “dependent relative revocation” doctrine, useful and salutary as it is in a proper case, carries with it the authority to disregard so well-established a rule as that which forbids us to write a new will for the testator in the face of a clear intent expressed in a proper instrument.

In the much-cited article to which we have alluded, Warren, Dependent Relative Revocation, the author states in part [33 Harv.L.R. at pp 348-9] :

“A will cannot be' set aside for mistake in either the United States or in England where the testator knew and approved its contents. By the same token a revocation absolute on its face, the words of which the testator knows and approves, will not be set aside because the reasons which induced it are found to be based on false .assumptions of fact or law. The testator is dead, and it is too dangerous to inquire what motives induced his action. This was to be done for the ■construction of the document; it should not be resorted to for alteration of it.”

Two courts, in cases almost identical with the one before us, have held that an earlier charitable bequest is revived in spite of an express revocation clause in a later will. The Supreme Court of California so held in In re Kaufman’s Estate, 25 Cal.2d 854, 155 P.2d 831. In that case, the earlier will and the circumstances surrounding the execution of the later one had been examined at length by the probate court, but the propriety of conducting such examination and admitting the evidence incident thereto does not seem to have been questioned, since it is not discussed by the California Supreme Court, nor was it discussed in the opinion of the District Court of Appeal (see In re Kaufman’s Estate, 151 P.2d 37). The case is therefore not helpful upon this basic objection to the application of the doctrine. A second feature of the case perplexes us. The attorney who drafted the last, revoking will testified that he had consulted the California Code, discovered the provision invalidating charitable bequests made within thirty days of death, and advised the testator to make the desired change by codicil. The attorney testified in part [155 P.2d at page 833] :

“ ‘I said to him, “if I were you, I would draw a Codicil to this Will because should you die within 30 days it would not be effective.” He said, “No, I want a new will. I don’t want a Codicil,” and I drew the Will of 1941.’ ”

Thus the testator, having been advised of the effect of the statute, nevertheless drew a new will expressly revoking all others, under no misapprehension of fact or of law. So far as appears, he fully understood that if he died within, thirty days the later charitable bequest would be invalid, yet he did not expressly make the revocation of the charitable bequest in his previously executed will conditional upon the validity of the later one. It is thus impossible to apply the “mistake” theory, and the “condition” theory is, to say the least, extremely tenuous under the circumstances. Insofar as the intent of the testator to leave money to the charity is concerned, such intent exists in every case where a charitable bequest is made but is frequently thwarted by statute in favor of the heirs. And we can give effect to the intent of the testator only insofar as it is not inconsistent with law, as we have observed. It is only the intent to revoke which is important in this discussion, and it appears that if, as in the Kaufman case, the testator revokes absolutely and with full knowledge of the consequences there is nothing further to be considered. Compare the position of the testator in Re Bernard’s Settlement, supra, where, by mistake of law, the latest codicil was invalid for violation of the rule against perpetuities. And note that there the Probate Court, presented with the will and codicils, had the problem thrust upon it, whereas in the Kaufman case the problem was unearthed only after a search behind the will. The Kaufman situation illustrates the danger of admitting and considering parol evidence to modify the unambiguous words of a complete testamentary instrument.

The second case in this line of authority is Linkins v. Protestant Epsicopal Cathedral Foundation, 87 U.S.App.D.C. 351, 187 F.2d 357, 28 A.L.R.2d 521. The testatrix had made three wills, making identical charitable bequests. The last will contained an express revocation clause. The District of Columbia Code, Sec. 19-202, provided that no such bequest “shall be valid unless the same shall be made at least one calendar month before the death of the testator.” The testatrix died within the statutory period. The United States Court of Appeals, District of Columbia Circuit, held, in the main opinion by Judge Prettyman, that the charitable bequests in the will immediately preceding the last one were revived under the doctrine of dependent relative revocation. The Kaufman case was the authority for this decision. In the Linkins case, the court disposed of the extrinsic evidence problem in the following words:

“We hold that evidence extrinsic to the latest will may be adduced to show that the execution of the revocatory clause was intended to be upon a condition. Thus we find the solution in a well-established pattern of law. That pattern applies generally to contracts and even to deeds; e. g., delivery of an executed contract may be shown to have been in escrow, or a deed may be shown to have been in fact a mortgage.” 87 U.S.App.D.C. 351, 353, 187 F.2d 357, 359, 28 A.L.R.2d 521, 524.

In this way, by analogy to the law of deeds and contracts, it was held proper to admit evidence to explain an unambiguous will. But the considerations are different in these apparently analagous fields of law, the principal difference being that they do not necessarily contemplate that the principal party, whose intention controls if it is possible to ascertain and give effect to it, is dead. The law of wills is calculated to avoid speculation as to the testator’s intent and to concentrate upon what he said rather than what he might, or should, have wanted to say. Wright v. Sallet, Fla., 66 So.2d 237; Martin v. Shands, Fla., 49 So. 2d 598; State v. North, 159 Fla. 351, 32 So. 2d 14; lies v. Iles, 158 Fla. 493, 29 So.2d 21; In re Block’s Estate, 143 Fla. 163, 196 So. 410; Howe v. Sands, 141 Fla. 813, 194 So. 798, rehearing denied 142 Fla. 625, 195 So. 609; Rewis v. Rewis, 79 Fla. 126, 84 So. 93. Moreover, in probate matters statutory mandates hedge us in closely. Under F.S. Sec. 731.09, F.S.A., for example, revocation of a will is void if such revocation “is procured by fraud, duress, menace or undue influence * * *.” At the very least, this statute, in laying down grounds for setting aside a revocation, narrows the allowable ambit of our movement in' this field. See Hill v. Morris, Fla., 85 So.2d 847.

In a separate concurring opinion in thq Linkins case, Judge Edgerton expressed the view that it would be possible to hold that the statute restricted only the making of new bequests and not the restatement of existing ones. Thus a bequest in a will executed within the statutory period would not be deemed “made”, within the language of the D.C.Code, if it restated, or perhaps substantially restated, an earlier bequest. This result would, as pointed out in the note on the Linkins case at 64 Harv.L.R. 686, come closer to effectuating the testamentary intent than the use of the dependent relative revocation doctrine, because, by holding the statute inapplicable, the later and not the earlier bequest would be made effective. We cannot, however, apply this construction in Florida, because our statutory prohibition .is hinged not upon the time the bequest was “made” but upon the time the will was executed. There is no room for construction under our statute in a case of this nature.

In fine, although our labors over this question have been extensive, we can find no plausible theory upon which to proceed in permitting the examination of the revoked will in the case at bar with a view to further proceedings under the “dependent relative revocation” doctrine. We therefore conclude, as we must, that no error has been shown, and the judgment appealed from must be, and it is hereby

Affirmed.

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


text:
    John CLEMENTS, by his mother and next friend, Florence Clements, Appellant, v. Mike J. DEEB, Appellee.
    Supreme Court of Florida. Division A.
    May 25, 1956.
    Rehearing Denied July 16, 1956.
    Charles J. Schuh & Son, St. Petersburg, for appellant.
    Baya M. Harrison, Jr., Paul H. Roney and Mann, Harrison, Stone, Roney & Mann, St. Petersburg, for appellee.
   HOBSON, Justice.

This is an appeal by the plaintiff from a summary final judgment for the defendant.

The complaint alleged that the defendant was the owner of a certain automobile which was being driven by Robert Deeb, with the knowledge and consent of the defendant, in a northerly direction on 49th Street in St. Petersburg and that by reason of the gross negligence of the defendant’s driver the automobile overturned and the plaintiff, a passenger, was thrown out and injured. The gross negligence alleged consisted of “stunting” with the car and “deliberately zigzagging the said automobile to and fro across the highway.” The defendant answered, denying gross negligence. Depositions of the plaintiff and of Robert Deeb were taken and an affidavit was obtained from one Robert Simmons, who was also a passenger in the car when the accident occurred. The defendant moved for summary judgment and the court, after considering the pleadings, depositions, and affidavit, found that there was “no genuine issue of any material fact upon the issue of gross negligence or willful and wanton misconduct, all favorable inferences having been granted to the plaintiff * * * ”, granted the motion and entered the judgment appealed from.

The depositions and affidavit show that the three young men were embarked upon a hunting trip in the early morning. They were proceeding along a straight road in Pinellas Park, a community outlying St. Petersburg, at a speed of about 55 to 60 miles per hour. The plaintiff was describing an automobile accident in which he had almost been involved and said that it had been necessary for him to pull the wheel of his car sharply to the left in order to avoid another car. Robert Deeb, the driver of the car in which the three were riding, apparently by way of illustrating the plaintiff’s story, said, “like this” and deliberately pulled the wheel of the car sharply to the left. The car nearly went off the left hand side of the road and Deeb swerved the car back to the right to stay on the road, whereupon the car crossed the road and went off the right shoulder. Deeb then pulled the car to the left again but the car rolled over. The car apparently went out of control just as Deeb first pulled the steering wheel to the left and in his operation of the car thereafter, he was attempting to restore it to control rather than “deliberately zigzagging” across the road.

The critical question upon this appeal is whether or not Deeb’s action in deliberately pulling the wheel sharply to the left while the car was proceeding at a speed of 55 or 60 miles per hour constituted gross negligence. In Bridges v. Speer, Fla., 79 So.2d 679, 682, we said:

“We think the rule which would more nearly solve the problem than any other would be one which recognized that simple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons or property whereas gross negligence is that course of conduct which a reasonable and prudent man would know would probably and most likely result in injury to persons or property.”

On the evidence here before us we do not believe it could be said, as a matter of law, that the deliberate action of the driver in pulling the wheel sharply to the left at the speed indicated would not “probably and most likely result in injury to persons or property”, and this is the determination which we would have to make in order to affirm the judgment appealed from. This is too close a case for such a result and in Schneider v. Saxon, Fla., 82 So.2d 501, in connection with guest statute cases, we said:

“It should not be overlooked that gross negligence in such cases is a question for the jury.”

We think that this question should be submitted to a jury, functioning under proper instructions as to negligence and gross negligence.

It follows that the judgment appealed from must be, and it is hereby, reversed and the cause remanded for further proceedings not inconsistent with this opinion.

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


author: PER CURIAM.

text:
    Charles EGGERS, Appellant, v. PHILLIPS HARDWARE COMPANY, a Florida corporation, Appellee.
    Supreme Court of Florida. En Banc.
    May 23, 1956.
    Rehearing Denied July 16, 1956.
    George L. Knight, Miami, for appellant.
    Blackwell, Walker & Gray and Lane, Muir, Wakefield, Frazier & Lane, Miami, for appellee. .
   PER CURIAM.

This is an appeal by plaintiff from a jury verdict and judgment in favor of defendant entered in a suit for damages filed by him to recover for injuries sustained when, as he was attempting to walk across a street at a street intersection in the City of Miami, he was hit by a truck owned by defendant and being driven by defendant’s employee.

The principal issue here is whether the trial judge erred in admitting in evidence the testimony of the investigating officers that they did not arrest the defendant’s employee for a violation of any of the city’s traffic ordinances as a result of their investigation of the accident. We have concluded that this was error.

It is settled law in this jurisdiction that evidence of defendant’s conviction or acquittal in a criminal proceeding is not admissible in a civil suit against the defendant arising out of the occurrence which formed the basis of the criminal charge against him. Stevens v. Duke, Fla.1949, 42 So.2d 361; Wirt v. Fraser, Fla., 30 So.2d 174. The reason for this rule of inadmissibility is that “the obvious difference in objects, issues, procedure and results in civil and criminal proceedings, particularly in the case of traffic violations, renders such evidence clearly ‘not relevant or admissible.’ ” Moseley v. Ewing, Fla., 79 So.2d 776, 778. An arrest is but the initial step in a criminal proceeding leading to,the conviction or acquittal of the accused, and we think the auoted statement is just as applicable to an arrest as to a conviction tor .acquittal of a criminal charge. While The .court did not expressly só hold • in' the Moseley case, we have noted that the- defendant in that case was asked whether he had been charged •with a traffic offense, as well as whether he had been convicted"thereof; and, in holding that such evidence was inadmissible, the court did not distinguish between the two questions. If such testimony cannot be elicited, from a defendant, it is equally irrelevant when sought to be elicited from the investigating officer.

The plaintiff’s objection to the question was timely made, and it was sufficient to apprise the trial judge of the nature of the objection. Cf. Moseley v. Ewing, supra, 79 So.2d 776. It was, then, error to allow the investigating officers to testify that they did not arrest the defendant, and we cannot say that it was harmless error.

It is true that the evidence showed that the investigating officers did not arrive at the scene until several minutes after the accident occurred, nor did they question the traffic control officer — who saw the accident and testified at the trial that the defendant “ran” a red light — as to his version of the affair. But it was shown that the investigating officers interrogated witnesses at the scene, and the jury could have inferred either that these witnesses did not tell the investigating officers that the defendant ran a red light or that these officers did not believe such statements, if made. There was a direct conflict in the evidence at the trial on this vital point, and it may well be that the fact of the non-arrest of defendant might have balanced the issue in favor of the defendant. We think that the ends of justice would be best served by submitting this issue to another jury, so that it can be decided without the defendant’s having the benefit of the inadmissible evidence in question.

The plaintiff has argued other questions on this appeal, but has failed to persuade us of reversible error in these respects.

For the reasons above stated, the judgment must be reversed and the cause remanded for a new trial.

Reversed and remanded.

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

TERRELL and THOMAS, JJ., dissent.


author: ANDERSON, Associate Justice.

text:
    ALL FLORIDA SURETY COMPANY, a Florida corporation, Appellant, v. Ralph H. COKER, d/b/a Coker Plumbing, Appellee. ALL FLORIDA SURETY COMPANY, a Florida corporation, Appellant, v. Olin P. WRIGHT, Appellee.
    Supreme Court of Florida. En Banc.
    June 20, 1956.
    Rehearing Denied July 17, 1956.

      See also 79 So.2d 762.
    Henry L. Balaban and Thomas A. Hor-kan, Jr., Miami, for appellant.
    Ruff & Ready, Miami, for Ralph H. Coker and Turner & Hodson, Homestead, for Olin P. Wright, appellees.
   ANDERSON, Associate Justice.

H. O. Barber was awarded a contract by the Orange State Oil Company for the construction of a filling station at Islamorado, Florida. He sublet the plumbing work to Ralph H. Coker and the electrical work to Olin P. Wright. He applied to All Florida Surety Company for a performance bond to insure the fulfillment of the contract. His application was rejected because of his unstable financial condition. The agent of the surety company suggested that he secure others to become co-indemnitors upon his application for the bond. Barber said that his subcontractors would be agreeable to . assuming that obligation. The agent, after learning the names of the subcontractors, looked them up in Dun & Bradstreet and informed Barber that they were “bondable.” He thereupon prepared application for bonds for Coker and Wright and indemnity agreements for them to sign, marked the places for their signatures with a red pencil and gave them to Barber with directions to get the signatures of Coker and Wright to the papers prepared by, him and get financial statements from both.

Barber took the papers prepared by the agent of the surety company to Coker and Wright and procured their' signatures upon the application for bonds and the indemnity agreements. He also got financial statements from them. These he delivered to the surety company who thereupon signed the performance bond on behalf of the surety company. The agent of the surety company had no dealings with Coker or Wright other than as above set forth.

Barber defaulted on his contract. The surety company completed it at a cost of approximately $6,000. It then called on Coker and Wright for reimbursement under their indemnity agreement. They refused arid it brought suit.

Coker and Wright thereupon brought these identical suits in equity for a rescission of the indemnity agreements upon the ground that they had been falsely represented to them by Barber, as agent of the surety company, and that they had neglected to read them when presented for their signature. The special master found that “ * * * Barber falsely represented to Coker and Wright that the instruments he was requesting them to sign were those required in order that they, as sub-contractors, could be bonded” and they “relied on Barber’s representations as to the nature of the instruments, and that they signed without reading” them and “that there was such a confidential relationship existing between Barber and Coker and Wright * * * it is doubtful if they would have understood them [the documents], on account of their lack of experience and education * * * ” (Emphasis added.)

The Chancellor sustained the master’s recommendation that the documents be rescinded and that the surety company’s counterclaim for their enforcement be dismissed as to Coker and Wright.

The surety company appealed.

The decree must be reversed. There is no evidence that Barber, assuming that he did the things with which he is charged, was acting for the surety company. Coker and Wright both knew what his status in the transaction was and what his relationship to them was. They knew that he was not the agent of the surety company. As above pointed out, the agent or the surety company never had any contacts with Coker and Wright. There is a total absence of proof that the agent of the surety company had anything whatsoever to do with the conduct of Barber in procuring the signatures of Coker and Wright to the indemnity agreements. Even if there were it would be doubtful if he was authorized to bind the surety company in that respect.

In People v. Rogers, 104 Fla. 462, 140 So. 205, 208, relied on by appellees, it was expressly said: “* * * if the opposite party has induced one by a trickery, fraud, or any kind of artifice, not to read the contract, with the view of obtaining from him a paper which he could not otherwise have obtained, the right to prove these circumstances, and thereby establish the fact that he was signing an entirely different paper, may be shown for the purpose of relieving such party from the obligation thus fraudulently obtained.” (Emphasis added.) There is no proof that this alleged deception was practiced on Coker and Wright “by the opposite party.” There is no proof that Barber, in his alleged deception of Coker and Wright, represented the “opposite party.” As far as the evidence goes Barber was representing himself — not the “opposite party”- — -and his status and relationship was well known to both Coker and Wright.

In Corbin on Contracts (Sec. 607) it is said:

“One who signs or accepts a written instrument without reading it with care is likely to be surprised and grieved at its contents later on. In most cases he has been held bound in accordance with its written terms.”

Morgan v. Mengel Co., 1922, 195 Ky. 545, 242 S.W. 860, is squarely in point. It holds:

“A party to a written contract cannot defend against its enforcement on the ground that he signed it without reading it, unless he aver facts showing circumstances which prevented his reading the paper, or was induced by the statements of the other parties to desist from reading it.”

The courts will not ordinarily protect those who with full opportunity to do so will not protect themselves. Glass v. Craig, 83 Fla. 408, 91 So. 332; George E. Sebring Co. v. Skinner, 100 Fla. 315, 129 So. 759; Stokes v. Victory Land Co., 99 Fla. 795, 128 So. 408.

Under the title, Contracts, 12 Am.Jur., 628, Sec. 137, it is said:

“Ignorance of the contents of an instrument does not ordinarily affect the liability of one who signs it. The rule is the same where a written instrument is accepted otherwise than by signing it. If a man acts negligently and in such a way as to justify others in supposing that the writing is assented to by him, he will be bound both by law and in equity, even though he supposes the writing is an instrument of an entirely different character. The courts appear to be unanimous in holding that a person who, having the capacity and an opportunity to read a contract, is not misled as to its contents and who sustains no confidential relationship to the other party cannot avoid the contract on the ground of mistake if he signs it without reading it, at least in the absence of special circumstances excusing his failure to read it. If the contract is plain and unequivocal in its terms, he is ordinarily bound thereby. It is the duty of every contracting party to learn and know its contents before he signs and delivers it. He owes this duty to the other party to the contract, because the latter may, and probably will, pay his money and shape his action in reliance upon the agreement. To permit a party, when sued on a written contract, to admit that he signed it but to deny that it expresses the agreement he made or to allow him to admit that he signed it but did not read it or know its stipulations would absolutely destroy the value of all contracts. The purpose of the rule is to give stability to written agreements and to remove the temptation and possibility of perjury, which would be afforded if parol evidence were admissible. This rule has been carried to the extent of holding that in the absence of fraud or circumstances savoring of fraud, one entering into a contract which refers for some of its terms to an extraneous document, outside the contract proper, is bound also thereby, notwithstanding he omits to inform himself as to the contents of that document or the nature of those terms and conditions when it is possible for him to do so. The rule that one who signs a contract is presumed to know its contents has been applied even to contracts of illiterate persons on the ground that if such persons are unable to read, they are negligent if they fail to have the contract read to them. If a person cannot read the instrument, it is as much his duty to procure some reliable person to read and explain it to him, before he signs it, as it would be to read it before he signed it if he were able to do so, and his failure to obtain a reading and explanation of it is such gross negligence as will estop him from avoiding it on the ground that he was ignorant of its contents.”

And in Johnson v. Green, Fla.1951, 54 So.2d 44, 46, this Court said:

“ * * * equity will not grant relief where the mistake complained of resulted from the want of .care or that degree of care and diligence which could be exercised by persons of reasonable prudence under the same circumstances.”

The decree is reversed for proceeding not inconsistent with this opinion and the cases of Crosby v. Orange State Oil Co., 1947, 158 Fla. 551, 29 So.2d 634 and Orange State Oil Co. v. Crosby, 1947, 160 Fla. 664, 36 So.2d 273, are overruled. The gravamen of this suit is a 99-year lease, hereinafter referred to as the “lease”. Morris Sokolik and Florence Sokolik, his wife, filed their complaint against Ocean Park Company, also known as Ocean Park Company, Inc., a Florida corporation; Ozac, Inc., a Florida corporation, R. W. Weeks & Son Plastering Contractors, Inc., a Florida corporation; Bristol Insulation Co., Inc., a Florida corporation; Tri-City Electric Company, Incorporated, a Florida corporation; Tilecraft, Inc., a Florida corporation; Isidore Greenfeder and Nat Fechtner, d/b/a Service Plumbing Company; Maulé Industries, Inc., a Florida corporation; Reed Frame Company, a Florida corporation; James M. Anderson; Joseph Gersten; and Jacob Solomon and Yet-ta Solomon, his wife. The complaint prayed: (1) That defendant fee owners be enjoined without bond from proceeding further with a certain cause in the Civil Court of Record, Dade County, to secure possession of the premises therein described and that the court determine the rights of the parties; (2) that foreclosure and an accounting against Ocean Park Company and Ozac, Inc., be decreed, including a deficiency judgment against them if the mortgaged premises do not sell for a sum sufficient to pay the claim of plaintiffs; (3) as to defendant Joseph Gersten, the prayer is for immediate restoration of the furniture described in the complaint or for full payment thereof or judgment for its removal, including a reasonable attorney’s fee for legal services expended in the cause.

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

HOBSON, J., not participating.


author: TERRELL, Justice. DREW, Chief Justice

text:
    James M. ANDERSON et al., Appellants, v. Morris SOKOLIK and Florence Sokolik, his wife, Appellees.
    Supreme Court of Florida. En Banc.
    May 23, 1956.
    Rehearing Denied July 19, 1956.

      Harry B. Smith, Miami Beach, Smathers, Thompson, Maxwell & Dyer, Feibelman & Friedman, Loftin, Anderson, Scott, McCarthy & Preston, Charles F. Zokvic, Fogle & Fordham and Frank C. Oldham, Miami, for appellants.
    A. J. Kaplan, Miami Beach, for appellees.

      . The National Conference of Commissioners on Uniform State Laws and Proceedings originally drafted the language of the Florida Mechanics’ Lien Law and it was adopted with only minor revision. The particular sentence under discussion here was adopted in the exact language of the original uniform law. The footnote explaining the use of the sentence states: “It is equitable that the property of a lessor who has, by contract, required a lessee to improve it should be subject to lien. It is no hardship since he is thoroughly amare of the improvement.” (Emphasis supplied.) P. 617, footnote 32, Handbook of the National Conference of Commissioners on Uniform State Law and Proceedings, 1930.

   TERRELL, Justice.

A brief factual recital would clarify the atmosphere. On April 26, 1951, the Solo-mons executed a 99-year lease to Ocean Park Company, a Florida corporation, which became indebted to Ozac, Inc., a Florida corporation, in a large sum as evidenced by promissory note secured by mortgage deed describing the 99-year lease; that the said note and mortgage deed were purchased by and were assigned to the plaintiffs (the Sokoliks) and recorded in Mortgage Book 360 at page 220; that Ocean Park Company constructed a 30 room building on said property, 19 rooms of which were furnished and all of which were encumbered by the mortgage. The suit to foreclose the mortgage was precipitated because Ocean Park Company failed to meet the conditions of the mortgage in thát it neglected to pay taxes as they became due;- it- failed to pay sums due for labor and materials furnished; it failed to pay owners of the fee, the lessors, the sums due as rentals on the leased property and prior to the institution of this suit, Jacob and Yetta Solomon, lessors and also owners of the fee, instituted eviction proceedings in the Civil Court of Record of Dade County to secure possession of the leased premises.

. After filing the eviction proceeding to foreclose the lease, the lessors (the Solo-mons), being the fee simple owners, sold their interest to Royal Food Products, Inc., á corporation which was controlled by ap-pellees. .Royal Food Products, Inc., then, substituted itself as a party plaintiff in the action pending in the Civil Court of Record of Dade County to secure possession of the leased premises to cancel said 99-year lease for non-payment of rent and for other reasons. Royal Food Products, Inc., then had itself substituted in the instant cause as. party defendant in place of the original lessors, the fee simple owners.

At final hearing, the chancellor decreed that the leasehold interest was devoid of value since the lessee had been lawfully evicted by court order and being so, the claims of the mortgagee and the mechanic lienors against the leasehold interest were worthless. The court further decreed that Royal Food Products, Inc., held title to the leased premises, free of any encumbrance account of the statutory laborers’ and mechanics’ liens sought to be foreclosed. James M. Anderson and other defendants named as appellants have appealed from the final decree so entered.

frhe effect of the final decree in the Circuit Court is to terminate the 99-year lease, and permit Royal Food Products, Inc., a corporation controlled by the Sokoliks, to acquire the property without satisfying the mechanics’ liens imposed on it for constructing the 30 room building. The point for determination is whether or not under the circumstances this should be permitted. ]

The chancellor answered this question in the affirmative on the theory that the lease did not require the lessee to construct a building or buildings on the leased property and that there was complete absence of any showing of privity of contract between any of the lienors and the fee owners, and further that the allegations of fraud by the lienors against the plaintiffs and Royal' Food Products, Inc., were not proven.

/it may be that no specific provision of the lease requires the construction of a building on the leased premises. It is a 38 page instrument, however, and one cannot read and construe it as a whole without reaching the conclusion that when it was executed, the parties contemplated the construction of improvements on the leased premises.

Article IV (A) of the 99-year lease requires payment of all taxes “on the land and all buildings, fixtures and improvements now or hereafter thereon.” Article V, among other things, provides, “irrespective of the fact that the lessee is obligated by the terms of this lease to .cause• improvements to be installed in or constructed upon the premises, nevertheless, all persons with whom the lessee may deal, are put upon notice that the lessee has no power to subject the lessors’ interest to any claim for mechanics’ or materialmen’s liens and all persons dealing with the lessee must look solely to the credit of the lessee and to the lessee’s assets and not to the lessors or the lessors’ assets.”

Article VI inter alia provides that the “lessors shall have a first lien * * * on the buildings required to be placed upon the premises * * *.” Article VII (A) provides that the “lessee covenants and agrees that it will, at all times, and at its own expense, keep all buildings and improvements, situated on the demised premises insured * * This section fixes the amount of insurance that must be carried. Articles VIII and IX deal with payment of fire and windstorm insurance premiums. Article XI entitled “Lessee’s Obligation to Build” uses the term “may” in reference to any building the lessee may propose to erect but requires that they be placed in accordance with approved plans and specifications, and that such improvements become a part of the realty whether by default or by ordinary lapse of time. Article XIV entitled “Default” has to do with failure to build or rebuild as provided and subjects the lease to forfeiture, including buildings and improvements thereon. Article XXII fixes time and conditions of lessee’s option to purchase and Article XXIII is pertinent because it fixes the form of notice to be given not only before building is commenced but after building is completed as well and shows that the parties contemplated the construction of buildings or improvements on the leased premises, j

Despite the ruling of the chancellor that there was no specific provision of the lease requiring construction of improvements on the leased premises, we think the foregoing and other provisions of the lease show conclusively that both parties contemplated that buildings or other improve'ments would be constructed according to plans and specifications to be approved and that they were in fact placed on the premises. It is perfectly obvious that both parties knew that the improvements were the pith of the lease and except for them the lease would not have been executed. They were essential to the purpose of the lease and when the lessee contracted for them, he did so “in accordance with a contract” with the lessors whose interest in the property was then subject to the mechanics’ and materialmen’s liens.

jjThe governing statute is F.S. § 84.03(2), F.S.A., as follows:

“Except as provided in §§ 84.12 and 84.13, such liens shall extend to, and only to, the owner’s right, title or interest existing at the time of the visible commencement of operations or thereafter acquired in the real property (not exceeding forty acres of land). When an improvement is made by a lessee, in accordance with a contract between such lessee and his lessor, liens shall extend also to the interest of such lessor. If any part of the real property subject to such liens be removed before the discharge thereof, such removal shall not affect the rights of lienors in respect to either the remaining real property or the part so removedj” j

In Robert L. Weed, Architect, Inc., v. Horning, 159 Fla. 847, 33 So.2d 648, this court considered various provisions of F.S. Chapter 84, F.S.A., relating to mechanics’ liens and held inter alia that said act should be liberally construed to protect laborers and materialmen. This is true whether the obligation to build is express or implied. In either event, the lease attaches to the interest of the lessor fee simple owner. Any other interpretation would make it possible for lessors and lessees to evade the mechanics’ lien law and defeat the claims of laborers and mechanics. It would be an open invitation to set at naught the mechanics’ lien law and leave the laborer and mechanic without protection. Appellants were material-men and contractors who had furnished labor and material. They were not parties to the lease agreement consequently questions as to terms of the lease should be resolved in their favor. Cf. New York Life Ins. Co. v. Kincaid, 136 Fla. 120, 186 So. 675.

The words in the statute quoted above — “when an improvement is made by a lessee, in accordance with a contract between such lessee and his lessor, liens shall extend also to the interest of such lessor”— amply cover the contract we are confronted with in this case. Lehigh Structural Steel Co. v. Joseph Langner, Inc., Fla.1949, 43 So.2d 335, and Masterbilt Corporation v. S. A. Ryan Motors, Inc., 149 Fla. 644, 6 So.2d 818. There was never a case in which the doctrine of the statutory lien could be more appropriately invoked than here. In F.S. Chapter 84, F.S.A., the legislature placed every safeguard possible about the economic security of the laborer and the mechanic. It was designed to cut off every defense to payment and provided summary process to convert his labor or material into bread and raiment when the owner of the improved lands fails to do so. No court should invoke what may be termed the process of judicial alchemy to transmute the bread and raiment of the laborer and materialman into stones and by the same token transform it into gold for the lessors.

The provision in Article V, quoted in the forepart of this opinion, wherein it is attempted to strip the appellees of power to subject the lessors’ interest to any claim for mechanics’ lien is in effect an attempt to repeal or set aside F.S. Chapter 84, F.S.A., as applied to this contract and is without force or binding power. One cannot by contract read the clear intent of the legislature out of the books, neither can he, in the manner shown, contract the coat off the back of him who furnishes labor or material to improve his premises. Robert L. Weed Architect, Inc., v. Horn-ing, supra. In historical setting, the very purpose of equity and the statutory mechanics’ lien was to prevent hardships like that pointed out in this case.

It follows chat the chancellor committed error in finding that the liens of appellants did not attach to the interest of appellees, so his judgment is reversed.

Reversed.

THOMAS and HOBSON, JJ., and FLOYD, Associate Justice, concur.

DREW, C. J., and THORNAL and SE-BRING, JJ., dissent.

DREW, Chief Justice

(dissenting).

I respectfully dissent from the majority opinion in this case because of my firm belief that the result reached in the majority opinion not only does violence to the law, but also results in substantial injustice to the owners of the title to the land involved.

The circuit court held that the liens of appellant Anderson and others sought to be foreclosed by cross bill did not constitute valid liens against the fee simple title of Royal Food Products, Inc. As a basis for its decision on this question, the circuit court found that the lease in question did not require the lessee to construct any building on the premises, that no privity of contract ever existed between any of the lienors and the owner of the fee simple title, and that the allegations of fraud made by the lienors against the Sokoliks and Royal Food Products were not proven. The correctness of the lower court’s finding concerning the allegations of fraud are not questioned on this appeal and the views hereafter expressed are predicated on the premise that no fraud existed.

The sole question raised here concerns Chapter 84, F.S.1953, F.S.A., The Mechanics’ Lien Law, as applied to the ninety-nine year lease between the leasing parties in this case. The part of this statute relevant to the question presented is this sentence in Paragraph 84.03(2) F.S.1953, F.S. A., “When an improvement is made by a lessee, in accordance with a contract between such lessee and his lessor, liens shall extend also to the interest of such lessor.”

There is no contention here by the appellants or anyone else that the ninety-nine year lease involved in this litigation contains any provision which requires the lessee to construct a building. On the contrary, appellants argue “It is apparent from a reading of the lease that the parties contemplated and intended a substantial and permanent improvement to be made within the purview of Florida Statute 84.03(2) [F.S.A.].” (Emphasis added.)

The .case involves a ninety-nine year lease of real estate. Quite obviously, a ' person leasing a piece of vacant property for- a period of ninety-nine years would ordinarily anticipate that his lessee would construct a building or buildings thereon at some time within the term. It would do no violence to the logical process of reasoning to assume that the lessee likewise intended at some time in the future that buildings would be erected thereon. .And it is perfectly logical to assume that a careful draftsman of such a lease would insert suitable provisions to take care of such an eventuality when and if it oc.curred. A.S I view the lease here in question, the language used is employed solely with reference to a building which may some time in the future be erected. There is no mention in the lease, nor elsewhere in the record, of the size or kind of building to be erected, not the cost thereof nor is there the first word in the lease which in any way obligates the lessee to build any -structure whatever on the premises.

The plain language of that portion of the statute quoted above requires a contract between the lessor and the lessee to make an improvement which would give rise to a mechanic’s lien. A contract is an agreement enforceable at law between two or more parties for the doing-or not doing of some specific thing,; a' contract must create legal obligations. 1- .Bouv. Law Diet.,. Rawle’s Third Revision, p. 658; 17 C.J.S.,'Contracts, § 1, p. 310.'- See also paragraph 84.01, F.S.1953, F.S.A., “Definitions”.

The manifest purpose of this specific provision of the statute is to limit the extent and the conditions under which liens may attach to the lessor’s real property through acts of another so that the lessor at the time of the contract may determine, delineate, prescribe and limit the risk involved; and, if he so desires, take steps to protect his property against such liens by performance bonds, indemnity bonds or otherwise. The statute says that the improvements made by a lessee must be made “in accordance with a contract between such lessee and his lessor.” The words “in accordance with” have the same meaning as “agreeable to”, “consonant with”, “in conformity with” and words-of similar import. In those instances' where the lessee has contracted with the lessor to construct an improvement on the lessor’s land, to the extent of the reasonable cost thereof, the statute in effect.makes the lessee the agent of the lessor and provides that those who furnish labor and material in the construction of the improvement may look to the land as security. The statute does not contemplate a random scatter gun approach to the problem nor does it impose absolute liability .upon the lessor for any improvements, in any amount, at any time placed on the lan(l by a lessee. To countenance such a propa-sition could well result in the statute becoming an instrument of oppression.

Contemplating the construction of an improvement and contracting for such improvement are entirely different things. To adopt the construction of the majority is tantamount to holding that if a lessor executes a long term lease on vacant land, he can not anticipate that buildings may be some time constructed thereon and protect his fee simple interest with respect thereto without bringing himself within the provisions of the statute and subjecting his fee simple title to mechanics’ liens which might be incurred in the construction of a building for any amount that the lessee may thereafter determine to erect.

In the recent case of Brenner v. Smul-lian, Fla. 1956, 84 So.2d 44, 46, in discussing this same provision of our statutes, we stated that such section “has been construed by this court to make the lessor’s interest in the property liable for any construction work done by the lessee only if the lease agreement required the lessee to make the alterations or to effect the improvements involved. An acquiescence on the part of the lessor to the improvements does not render the interest of the lessor liable but affects only the interest of the lessee in the premises.” In the Brenner case the original lease did not require or authorize the lessee to alter the premises, but by subsequent agreements between the original lessor and the lessee, such improvements were not only authorized but the details and the extent thereof were agreed upon between the lessor and the lessee. In that case we said:

“We are of the opinion that under the amended lease and the testimony produced in the record that the decision of the lower court in construing the original agreement, the new agreement, and other contracts herein, requiring the sub-lessee to complete the contracts was correct.”

Clearly under such circumstances the statute came into operation and we so held.

On the same general subject of whether the statute requires a contract, we said in Robert L. Weed, Architect, Inc., v. Horning, 1947, 159 Fla. 847, 33 So.2d 648, 651:

“The rule appears'to be general that when a lease requires the lessee to construct improvements on the leased premises, the lessee thus becomes the owner or the agent of the owner and there is no reason for the notice of the lien. Taylor v. Ferroman Properties, Inc., 103 Fla. 960, 139 So. 149; Hart v. Reid, 243 Mich. 175, 219 N.W. 692, 220 N.W. 717; Jordan v. Natrona Lumber Co., 52 Wyo. 393, 75 P.2d 378; Burkitt v. Harper, 79 N.Y. 273; Burkett v. Griffith, 90 Cal. 532, 27 P. 527, 13 L.R.A. 707, 25 Am.St.Rep. 151; Waring v. Bass, 76 Fla. 583, 80 So. 514.
******
“ * * * When a lease contract in terms requires valuable improvements, that are the gist of the lease, and the parties to the lease witness them being made, they will not be heard to say that they can contract to prevent laborers and material men from securing a lien on the leasehold which the law in terms gives them. * * * ” (Emphasis supplied.)

Moreover, in the earlier case of Master-bilt Corporation v. S. A. Ryan Motors, Inc., 1942, 149 Fla. 644, 6 So.2d 818, 820, on the same subject we held:

“The owner’s consent for alterations of the building so that the same could be used as a restaurant was first to be obtained in writing as a prerequisite. The owner simply examined the plans and specifications as prepared by the architect and granted its formal approval. The consent of the owner for the improvements according to the plans did not confer on or grant to the Masterbilt Corporation the authority to do the work. In fact it nowhere appears that the owner of the property, or its lessee, knew or had negotiations with it in any manner incident to the alterations. If the owner was to obligate its property to the lien of the act, certainly some instrument in writing’ should have been prepared and signed. * * *” (Emphasis supplied.)

See also the case of Stowers v. Wheat, 5 Cir., 1935, 78 F.2d 25, for an interesting discussion of this question. While it is to be observed that the present statute is different from the statute in effect at that time, the reasoning in the Stowers case follows generally the pattern which this Court has consistently followed in the later cases.

The majority urges that the concepts of natural justice and equity require that the liens involved herein be extended to the interest of the lessors because the labor and material of the lienors was incorporated in the building which now belongs to the lessors and amounts to an unjust enrichment of them. The answer to this contention is that the situation in which these lienors find themselves is of their own making. They knew they were not dealing with the owner of the fee. A simple examination of the records would have advised them that the lease contained no provision requiring the lessee to construct the building then under construction or any other building. It cannot be said that the lienors were in any way misled by the owners of the fee but, on the contrary, the lower court expressly found, and appellants admit, that there was no such misrepresentation or fraud. It was simply a case of proceeding without taking proper steps to protect their interest which results in the situation in which they now find themselves involved. Many years ago this Court, speaking through Justice Ellis, in the case of Sikes v. Dade Lumber Co., 98 Fla. 451, 123 So. 918, at page 919, in a somewhat similar situation and concerning a similar argument made by the writer of this opinion, observed:

“The general observations of counsel for appellants in the latter part of their brief upon the word ‘justice,’ and what it means as applied to a cause in equity, are pretty enough as generalizations, but scientific administration of justice can never be accomplished in disregard of rules of procedure which have for their purpose a clear and definite presentation of an issue of law or fact. ‘Justice,’ as the term is understood and applied in the courts to the transaction of business among men, is governed by rules of conduct and legal procedure to which those who seek it must conform to the end that the elements of which it consists in the particular case may be clearly stated, and not left to brilliant generalities which at any material point in the controversy may be as elusive as the iridescence of an autumn sunset.”

I would affirm.

THORNAL, J., concurs.


text:
    R. S. WEEKS & SON PLASTERING CONTRACTOR, Inc., a Florida corporation, Appellant, v. Jacob SOLOMON et al., Appellees.
    Supreme Court of Florida. En Banc.
    May 23, 1956.
    Rehearing Denied July 19, 1956.
    Zokvic & Fuller and James C. Dougherty, Miami, for appellant.
    A. J. Kaplan, Miami Beach, for appellees.
   PER CURIAM.

Reversed on the authority of Anderson v. Sokolik, Fla.1956, 88 So.2d 511.

TERRELL, THOMAS, and HOBSON, JJ., and FLOYD, Associate Justice, concur.

DREW, C. J., and THORNAL and SE-BRING, JJ., dissent.


author: PARKS, Associate Justice.

text:
    SEABOARD AIR LINE RAILROAD COMPANY, Appellant, v. John B. STRICKLAND, Appellee.
    Supreme Court of Florida. Special Division B.
    May 23, 1956.
    Rehearing Denied July 19, 1956.
    Fleming, Scott & Botts, Charles R. Scott, Jacksonville, and James B. McDonough, Jr., Norfolk, Va., for appellant.
    Nichols, Gaither, Green, Frates & Beck-ham and William Frates, Miami, for appel-lee.
   PARKS, Associate Justice.

In the original appeal the defendant-appellant, Seaboard Air Line Railroad Company, presented two questions, the first dealing with negligence vel non, and the second dealing with the admissibility and discussion by counsel of certain evidence.This court reversed the judgment, deciding that the defendant was not guilty of negligence and as to the second question said “because of the view which we entertain as to this question [negligence vel non], it is unnecessary to refer to or answer the other question propounded by the defendant.” See Seaboard Air Line Railroad Company v. Strickland, Fla., 80 So.2d 914, 915.

On review by the United States Supreme Court that court reversed our judgment by its order of November 14, 1955 in the following language:

“Per ‘Curiam: The petition for writ of certiorari is granted and the judgment is reversed. Bailey v. Central Vermont Ry., 319 U.S. 350 [63 S.Ct. 1062, 87 L.Ed. 1444].”

Thereafter, the defendant petitioned this court to consider its second question prior to the issuance of our mandate, because that question had been excluded from our consideration in our former opinion and judgment, The original appeal contained two questions, and pursuant to the mandate of the Supreme Court of the United States, the first question is controlled by the pronouncement of that Court in Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444. The mandate from the Supreme Court of the United -States ordered “that this cause be, and the same is hereby, remanded to the Supreme Court of Florida for proceedings not inconsistent with the opinion of this Court." (Italics supplied.) Since the second question was not determined by this court and, therefore, not reviewed by the Supreme Court of the United States, we do not deem it to be contrary to the order of that Court to review the second question at this time, and particularly since the defendant has not yet had its day in a reviewing court on the points of law posed in the second question.

Involved in defendant Railroad’s second question in its brief are the factors of whether or not the letters of the “Britting-ham correspondence” were admissible in evidence over the objections of defendant and further, even though admissible, whether or not the remarks of counsel concerning these letters and other matters in his presentment and argument of the case to the jury were so prejudicial as to require a reversal of the judgment and the granting of a new trial.

The 'Brittingham correspondence consists of three letters, one written May 19, 1953, by defendant’s senior general attorney of its claim department, Smith R. Brit-tingham, Norfolk, Virginia, to Dr. Thomas Ryon, medical practitioner with offices in Miami who was under contract with the defendant Railroad to examine and treat employees for injuries received in the course of their employment with the company ; attached to this letter was one dated May 1st written by B. H. Silverstone of the Veterans Administration of Coral Gables, addressed to J. E. Pierce, Grand Lodge Chairman of the Brotherhood of Railroad Carmen of America (this letter had been delivered to the senior counsel by Pierce) ; the reply letter of Dr. Ryon of May 22nd. Omitting the headings and signatures, these letters read as follows:

“Dear Dr. Ryon:
“I have previously written you with reference to the case of Mr. John B. •Strickland, who has been rather persistently and methodically chopping around among the doctors for treatment.
“During the latter part of -April Mr. Strickland apparently conceived the idea that if he were to apply to the Veterans Administration Hospital at Coral Gables, he would unquestionably be able to get a scientifically accurate diagnosis. Mr. Strickland entered the hospital and was examined there on April 20th, last, following which a report was made to Mr. J. E. Pierce, Grand Lodge Chairman of the Brotherhood of Railway Carmen of America, under date of May 1st. Mr. Pierce who always collaborates with both the Claim and Medical Departments of the Seaboard, at once brought the original of the letter to us for such value as it might have in further handling of Mr. Strickland’s case. I therefore, take pleasure, and assure you I am deriving no small degree of amusement, in enclosing herewith copy of the aforesaid letter of May 1st to Grand Lodge Chairman Pierce. I confess that when Dr. 'Collins and I saw the diagnosis we enjoyed a spell of laughter as hearty and as extensive as any in recent years. I am sure you will also experience appreciable amusement upon noting the dire condition which the examiners at the Veterans Administration Hospital discovered.”
“Dear Mr. Pierce:
“Please be advised that Mr. John B. Strickland was examined at this hospital 4-20-53.
“Diagnosis: Local Myofascitis, Chronic.
“Recommendation: Heat, diathermy, novocain ionto-phoresis. Hospitalization not necessary for this.”
“Dear Mr. Brittingham:
“Thank you for your letter of May 19th and your enclosure from the Veterans Administration regarding John B. Strickland. I did indeed join you in your sentiments.
“I hope that the next time you are in Miami you will be able to drop around at the Clinic here to see Dr. Fischer and myself.”

Counsel for plaintiff-appellee in the trial court contended that this correspondence was admissible on the ground that “it showed the way this man (plaintiff) was kicked around by the Seaboard and the conduct of the Seaboard Air Line in handling this matter”. In his argument and brief in this court he shifts to the ground that the letters were admissible to repudiate Dr. Ryon’s claim that plaintiff’s trouble was in his mind rather than in his back, also that they furnished good cause for plaintiff (who had no knowledge of the letters until the trial) to distrust Dr. Ryon and the Railroad Company and think that they were not rightly trying to help him. Dr. Ryon, in January 1953, examined plaintiff’s condition with reference to injuries suffered and for which this suit is brought. To support these grounds he argues that Railroad counsel, Dr. Ryon and Pierce, the Union official, all conspired together to defeat plaintiff’s claim and at the trial tried to prove that plaintiff was a psychological neurotic because he trusted neither the Railroad nor Dr. Ryon. Neither of these contentions are supported by the letters or by the evidence in the record. There is no evidence that defendant had any connection with the writing of the Veterans Administration letter or its subject matter. Nor is there any evidence in the record of conspiracy by anyone connected with defendant to hinder or defeat plaintiff’s claim or suit against it. The interdepartmental letters of Brittingham and Dr. Ryon contained no evidence tending to prove or disprove plaintiff’s case or any phase of it, nor did they aid or rebut the defense. It must be also noted that plaintiff made Dr. Ryon his witness. There was no foundation in the evidence for admitting the letters and it was error to admit them over objection of defendant. They were, however, obviously prejudicial to the defense of the cause and furnished a basis for numerous prejudicial remarks of plaintiff’s counsel in the trial of the case. Among such remarks, on re-direct examination of Dr. Jarrett, plaintiff’s witness, the following appears:

“Now, Doctor, if a man had worked for a railroad, and worked for them for a series of years, then got injured, and then say they pushed him around — sent him from one doctor to another doctor or to another doctor— and told him it was all in his mind, where it seemed to be a joke; now would that be a situation where a man would resent that kind of treatment, wouldn’t it? That would be the normal thing, wouldn’t it?”
“Doctor, if an orthopedic specialist had made a diagnosis of chronic myo-fascitis — I don’t know if I pronounced it correctly — would you consider that a joking matter for a man who was engaged in railroad work?”
“Would that, to you as a doctor, throw you into fits of laughter and be a joke?”
“All right, sir. But it is a disabling diagnosis, or a disabling factor, isn’t it — ‘local myofascitis, chronic, recommend heat, novocain; hospitalization not necessary for this’ — that wouldn’t throw you into fits of laughter, as a physician, would it, sir?”

Among the damaging remarks in his opening argument to the jury at the close of trial, referring to the Brittingham correspondence, counsel stated:

“I tell you, gentlemen, when I asked Dr. Jarrett, he said ‘I don’t think it is funny’. I brought this out, and the Judge permitted me to introduce it in evidence, because the doctor said he had an antagonistic attitude toward the employer.
“I don’t know whether Strickland is normal, but I think I am, and I am telling you I would have an antagonistic attitude toward people who would write stuff like these people have written.
“Now, gentlemen, I want you to take this letter with you, please, when you go into the jury room.
“The chief surgeon and the senior general attorney — I can see them sitting in their office laughing. They think it is funny.
“ * * * I can just see them up there with their feet on their desk, ‘Isn’t this a big joke? Strickland has hurt his back, and he is having trouble with it.’
“Well, I don’t think it is a joke, and there is one thing, gentlemen, Strickland doesn’t think it is a joke, and I don’t think his wife thinks it is a joke * * * If you think, under the evidence, we are entitled to a verdict, I would like to wipe that smile off Brit-tingham’s face. * * *
“I don’t suppose he has ever worked with his hands, or his back; and I don’t suppose he will have to work with his hands and his back. * * * When people get so careless they can sit up in a plush office in Norfolk, Virginia, and laugh about a man 30 years old who has a permanent back injury, then things are coming to a sad state of affairs.”

Giving his version of the accident in which plaintiff was injured and while speaking of a demonstration of it staged during the trial at the place of its happening in the yards of the defendant Railroad, counsel in his argument to the jury in effect gave the following testimony:

“Now, frankly, the demonstration out there made, as far as I am concerned, the question of their liability, easy. I would like to discuss a reasonably safe place to work just briefly. Now, it doesn’t mean completely putting it over the pit; it means providing them a reasonably safe place to work— a place free from grease, free from rock, and free from places where a man might hurt himself.
“That demonstration out there today, on our motion — and I think that you gentlemen out there and seeing the actual facts, can put the witnesses in this case in their proper place.
“Now, gentlemen, it was a strange thing that happened out there today, and to my way of thinking it is typical of Seaboard Airlines’ attitude in this entire case. When you came out there these bolts and hangars were loose. That is why you had to wait. I went out there and saw it, and I called Mr. Langford over and said, ‘You put those back up there,’ and they did.
“Do you know why those were loose and taken off? I will tell you why. They didn’t want you to see those two men get under that car on those rocks and in that grease. * * *
“Was there any doubt in any of your minds that that was a reasonably safe place to work when those two men had to get in there and undo those bolts on their back on those rocks and in that grease ?
“Now, every one of these Seaboard men have said it is necessary to have good footing. Look at these rocks. You saw that grease out there. 'Sometimes that grease is slippery, and sometimes it isn’t. Did you see all of that grease around there? Is that good footing?
“You fellows saw that fellow out there taking that beam off. I wrote down, and I am sure you saw it, he knocked his hat off on this same journal box; and several times he brushed his back very, very close to it, and one time he hit it. I am not sure, but it was within inches. Did you see him that time he was moving that thing around on the tracks, trying to pull it out, and he was grunting and groaning ; * * *
“I am confident that after you have heard this evidence, and after you have seen that demonstration out there, that there is no question in your mind — and certainly there is none in mine — about the failure of this railroad to use ordinary care.
“I don’t think railroads are bad. I think the railroads have done a lot to help this country; but I think in this case the Seaboard Airline has pulled every sly trick in the books.”

There are other remarks of the same character in the record, some of little consequence and others trivial, all of which must be considered as a part of the course of conduct indulged in the handling of the trial. None was in recrimination of conduct of defense counsel. To many of counsel’s prejudicial remarks, occurring during the taking of the testimony, objections were made. In a few instances some of the objections were sustained and in> one or two instances a mild rebuke to counsel was administered. To some of the remarks during the trial no objections were' made nor were objections made to counsel’s argument before the jury.

While we are committed to the rule that in the ordinary case, unless timely objections to counsel’s prejudicial remarks are made, this court will not reverse the judgment on appeal, however, this ruling does not mean that if prejudicial conduct of that character in its collective impact of numerous incidents, as in this case, is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury, this court will not afford redress. In this state of the record, even though the Brittingham correspondence was admissible, the prejudicial remarks of counsel, including the statements made in argument amounting to testimony in the case, require a new trial. Courts are conscious of the fact that without partisan zeal for the cause of his client, counsel in many instances could have little success in properly representing litigants in sharply contested cases, but his conduct during the cause must always be so guarded that it will not impair or thwart the orderly processes of a fair consideration and determination of the cause by the jury.

Finally, plaintiff’s counsel complains that defendant’s counsel in their brief make a personal attack on him, listing twenty-one items appearing in the brief. An examination of this brief fails to sustain any personal or professional attack on him or his firm.

The principles above mentioned are supported by precedent. Seaboard Air Line Ry. v. Smith, 53 Fla. 375, 43 So. 235; Tampa Transit Lines, Inc., v. Corbin, Fla., 62 So.2d 10. In both cases, conduct of counsel, much less offensive than in this case, was condemned by this court. Objections are not required where the conduct complained of runs through the trial. New York Central R. Co. v. Johnson, 279 U.S. 310, 49 S.Ct. 300, 303, 73 L.Ed. 706, wherein Justice Stone speaking for the court said:,

“Respondents urge that the objections were not sufficiently specific to justify a reversal. But a trial in court is never, as respondents in their brief argue this one was, ‘purely a private controversy * * * of no importance to the public.’ The state, whose interest it is the duty of court and counsel alike to uphold, is concerned that every litigation be fairly and impartially conducted and that verdicts of juries be rendered only on the issues made by the pleadings and the evidence. The public interest requires that the court of its own motion, as is its power and duty, protect suitors in their right to a verdict, uninfluenced by the appeals of counsel to passion or prejudice. * * * Where such paramount considerations are involved, the failure of counsel to particularize an exception will not pre-elude this court from correcting the error.”

To the same effect is Robinson v. Pennsylvania R. 'Co., 214 F.2d 798, 802, Third Circuit Court of Appeals:

Plaintiff points out that only a few of the statements about which defendant complains were objected to at the time and that a motion to withdraw a juror w;as made to only one such statement. For lack of objection and specific motion, it is argued that an appellate court may not interfere. As to the ordinary case, we agree, but we have never understood it to be the law that flagrantly abusive statements, unsupported by the evidence and introducing matters clearly irrelevant to the jury’s deliberation of the issues on the law and evidence, in. the absence of an admonition to the jury, are immune from appellate redress simply because there was not an objection to each such statement. This field of improper trial arguments is not one where the citation of cases is of, much help, but, to the extent that precedents are at all relevant, there is authority for the proposition that lack of an objection is not always a bar to correction and that, in the obvious case such as this, plain error may, indeed must, be noticed and rectified.”

To the same effect is the holding in United States v. American Die & Instrument Works, Inc., 3 Cir., 213 F.2d 731.

It is the responsibility of the trial court to protect litigants against such interference by counsel with the orderly administration of justice and the protection of the right of the litigant to, a verdict “uninfluenced by the appeals of counsel to passion or prejudice.”

The judgment is reversed and a new trial granted.

It is so ordered.

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