author:
McBride, judge.
      REGAN, Judge

text:
    Frank FRADELLA v. TEXAS AND NEW ORLEANS RAILROAD COMPANY.
    No. 20603.
    Court of Appeal of Louisiana. Orleans.
    April 2, 1956.
    Arlice Roby Crockett, New Orleans, for plaintiff-appellant.
    John E. Fleury, Gretna, for defendant-appellee.
   McBride, judge.

Plaintiff’s demands were dismissed below and he has appealed. He sued defendant railroad for $815.50 for personal injuries and hospital bills and for damages to his automobile sustained as the result of an accident on October 10, 1949, at about 1:50 p. m., in which plaintiff’s automobile was struck by defendant’s diesel engine at the intersection formed by Lafayette Avenue and Fourth Street in the City of Gretna, Jefferson. Parish. The engine, pulling eleven freight cars, was traveling eastwardly en route to Algiers at a slow rate of speed, 4 to 5 miles per hour, and defendant was driving his automobile in a southerly direction at about IS miles per hour. It is an unquestioned fact that before driving his car onto the railroad track plaintiff did not stop, look or listen, saw no signals, and never knew of the train until a moment before the crash, although the bell of the locomotive was ringing continuously, its headlight was illuminated (a rule of the railroad), and the automatic red flasher or wig-wag signal lights which defendant maintained on both sides of the crossing to warn of the approach of trains were in full operation. Fradella was also warned that a train was coming by a bystander who was on the sidewalk. After the accident in a conversation with the witness Marsh, the plaintiff remarked: “I don’t know where I was going.” It might be mentioned that the whistle of the engine was not blown for the crossing due to the fact that there is an ordinance of the City of Gretna which prohibits the blowing of whistles on trains within the corporate limits.

Plaintiff, who was 26 years of age, at the time when his automobile was hit was participating in a parade of automobiles celebrating “Homecoming” of Gretna High School and his was the fifth or sixth car in the line. The procession was hc-aded by an official car of the Gretna Police Department in which two officers were riding and the red signal light atop the car was blinking and the siren was sounded at intervals. The police department car came up to the railroad track without stopping and as it crossed the track both officers looked to the right and saw that there was an approaching train, and according to their estimate the engine was then about three-fourths of a block removed from the crossing. Officer Kleinpeter testified that he waved his hand when ■ the car passed across the track meaning this to be a signal for the engine crew to stop the train. The police car then continued on its journey and as it neared the next comer, Fifth Street, the traffic light there changed to red which necessitated a stop being made. This had the effect of causing all succeeding vehicles in the parade to come to a halt, and the plaintiff says that most unhappily for him he was compelled to stop his car on the railroad track “bumper to bumper” with the car ahead. Defendant’s fireman denies that Fradella’s car was in a stopped position when the engine hit it. The composite of the testimony of the train crew is that ás Fradella’s car came toward the track the train was but a short distance from the crossing and when Carroll, the engineer, was apprised a car was approaching the track he attempted an emergency stop but to no avail, the automobile being struck by the engine and pushed forward for a distance of some 12 feet. Carroll' was on the right side of the cáb of the engine and he says he could not see Fradella’s car before the crash bécause it came from the left side of the track and it was the fireman’s duty to look out for automobiles or pedestrians coming from that direction. The fireman ■ was seated in a position in the cab opposite to Carroll and he states he only saw the automobile when it was 10 or 12 feet from the center of the track explaining that although he was keeping a lookout, it was impossible to see the automobile sooner • because a building housing a hardware store at the corner makes the corner “blind” and the structure is so situated that when a car on Lafayette Avenue is traveling as was Fra-della’s it could not have been seen from the engine until it passed the building and had emerged into Fourth Street. Photographic evidence shows that the corner is indeed a blind one. The fireman says that upon sighting the automobile, both he and the engine helper, who was also riding ■ in the .cab, immediately called out to the engineer “Hold it!” and Carroll instantly applied his brakes.- Marsh, the helper, supports the fireman’s statements in every point, except that Marsh said he saw Fradella’s car when it was 20 feet from the center of the track. Marsh mentioned his having called Out to the engineer “Hold it!” a railroad expression meaning that an emergency stop should be made.

The plaintiff alleges .and his counsel strenuously argues that the accident was caused solely by the gross negligence of the train crew in disregarding the instructions of the police officers to stop the train before reaching Lafayette Avenue. It is also alleged and argued that there was a “willful desire” on the part of the engine crew “to force the right of way through the parade after being instructed to stop by the police * * The defense is that plaintiff attempted to- cross directly in front of the engine at a time when it was impossible for him to have negotiated the crossing with safety and that when it became apparent to the crewmen that plaintiff would make the rash attempt at crossing the track, the engineer applied his brakes as in the case of an emergency, but that because of the short distance between the engine and the automobile it was impossible to stop in time and the collision was therefore unavoidable. Plaintiff’s contributory negligence is pleaded as an alternative defense.

On behalf of the plaintiff it is stoutly contended that the employees of the ■ railroad should have known that' the line of automobiles constituted a parade and have come to the realization that all of the vehicles in the line would continue to proceed to cross the track until they all had passed. It was' testified to that the vehicles moving in the procession were decorated in the colors of the high school and that six convertible-type automobiles were carrying the maids of honor and that one of these was a passenger of Fradella. The decorations and the presence of the maids of honor in the automobiles, plus the fact that the police officer waved to the train-crew, it is said, should have brought home forcibly to the engineman that there was something unusual on Lafayette Street and he should have taken the precaution of bringing the train to a stop before reaching the crossing so as to avoid the possibility of an accident. This is in effect a plea under the doctrine of the last clear chance.

We can agree with counsel that the law is to the effect that any person operating a vehicle failing or refusing to comply with any lawful order or direction given by a police officer is negligent and this can be said to be so even though such an order or direction may be at variance with a signal given by a traffic light. But the question is, did Officer Kleinpeter order or direct the stopping of the train by giving an intelligible signal such as could be seen and understood by the trainmen ? The officer says he gave the signal by waving his hand in the direction whence the train was coming. The fireman and the helper admit they saw the police vehicle from their respective positions in the cab, but they state positively they did not see the signal the officer says he gave or any other signal from the police car. The plaintiff’s witnesses unanimously testified that all the vehicles were traveling about IS miles per hour, and thus we do not see how defendant’s employees even if they saw the officer’s hand from a distance of three-fourths of a block away could have interpreted this as a command to stop the train. It occurs to us that at a speed of 15 miles per hour the automobile traveled across the track in a flash, and we can well understand why no one riding in the cab of the engine :ever saw the officer wave toward the train. Nor is it difficult to understand why the men on the engine did not hear the siren of the police department car.

The engineer saw no cars on Lafayette Avenue approaching from the left of the track because of his position on the other side of the cab. The fireman who was seated on the left admits that he observed some traffic, on Lafayette Avenue, but he states there was nothing extraordinary about this as he always sees automobiles cross the railroad track at intersections and particularly the one in question. He stated “cars travel all day long over that crossing” and that “sometimes they try to beat you across.” No one in the cab noticed that the automobiles were decorated or that there was anything so unusual in their appearance as to attract 'especial attention. Marsh, like the fireman, saw vehicles, four or five of them, come from the left.and cross the track, but he thought nothing of it until a red car came into his view. He said:

“I was standing on the left side of the engine in the cab and I was looking through the glass door. I saw some automobiles going over. Then, I didn’t see any more. I kept looking and a red automobile showed up and he was right near the stop signal, the warning signal, flasher signal and somebody spoke to the driver. I saw him turn his head and he kept on going.
“Then, I realized that he had run the red signal and didn’t intend to stop and I called to the engineer to ‘Hold it’. At the same time the fireman did, too.”

Counsel for plaintiff endeavors to make capital of what he points out as some implausible statements made by defendant’s employees and advances the argument that these statements render all of their testimony unworthy of belief. The fireman did testify that it would require 30 seconds to stop a train going at 4 miles an hour and that at such speed a railroad train travels about 10 or 12 feet in the period of 30 seconds. The engineer also thought it would take 30 seconds to stop the train after the brake was applied. It also appears that Marsh made a statement, which is absolutely out of keeping with the weight of the testimony, and that is that Fradella’s automobile was traveling at the rate of 8 miles per hour instead of IS miles per hour as all other witnesses testified. However, no matter how far-fetched such testimony is or may appear to be, we do not think the statements of the trainmen per se warrant the reversal of the judgment and the casting of defendant in damages.

We fail to perceive any negligence on the part of defendant’s éngineer. An engineer or other servant of the railroad in driving a train through a populated town such as Gretna undoubtedly will see many persons near the track and observe many automobiles on intersecting thorough-fares crossing the track ahead of the train, and under these circumstances the one in charge of the train ordinarily has the right to presume that a person at or near, the track or approaching a crossing in possession of his full mental faculties, is aware of the situation, and will exercise ordinary care and take the precaution which the law requires him to take to insure his own safety by staying out of danger. 74 C.J.S., Railroads, § 751 b, p. 1400; Cook v. Louisiana & N. W. R. Co., 130 La. 917, 58 So. 767; Smith v. Texas & P. R. Co., La.App., 189 So. 316; Franklin v. Louisiana & A. R. Co., 10 La.App. 526, 120 So. 679; Guillot v. Louisiana Ry. and Nav. Co., 3 La.App. 541. Because the automobiles which they observed crossing Fourth Street were in parade formation does not alter the situation, for the members of the train’s crew could discern nothing distinctive about the vehicles or that the manner in which they crossed the track was out of the ordinary, and we do not see how it can be said that the engineer was negligent in proceeding forward toward Lafayette Avenue at the slow rate of speed.

The doctrine of the last clear chance must be eliminated from the case. We think the engineer did all he possibly could when he became aware of Fradella’s danger by applying his emergency brake. Unfortunately the accident could not be avoided for the reason that there was an insufficiency of space in which the train could have been stopped. It cannot be overlooked that the train crew did not see Fradella’s red automobile until it came past the hardware store at the corner and when it was 10 or 12 feet from the center of the track, as estimated by the fireman, or about 20 feet from the center of the track, according to Marsh’s estimate. At any rate, the train was in close proximity to the crossing and the accident, so far as defendant’s employees are concerned was unavoidable.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

REGAN, Judge

(dissenting).

I respectfully dissent. A freight train moving four miles per hour runs into the center of what was obviously a parade led by a “police car” and its mourning “siren”, during broad daylight, at a busy intersection. If the reasoning of the majority opinion is correct then the rationale of the existing jurisprudence relating to negligence, last clear chance and discovered peril has only very remote or no application when a Sccomotive “crew” is involved.

The accident resulted because the crew “failed to see what it could have seen” if it had simply exercised its sense of sight and of reasoning. It relied instead entirely on “blinker lights” located in the intersection, its own “bell” and “headlight” to afford an unobstructed passageway over the crossing.

The whole tenor of the record indicates that the crew was obviously derelict in its duty of maintaining a proper lookout commensurate with the conditions existing in a “blind” and much trafficked intersection moments before the accident became imminent.


source: Caselaw Access Project

author: TERRELL, Justice.

license: Public Domain

text:
    STATE of Florida and the Taxpayers, Property Owners and Citizens of Said Special Tax School District No. 1 of Dade County, Florida, Including Nonresidents Owning Property or Subject to Taxation Therein, Appellants, v. SPECIAL TAX SCHOOL DISTRICT NO. 1 OF DADE COUNTY, Florida, Appellee.
    Supreme Court of Florida. Division A.
    March 26, 1956.
    George A.' Brautigam, Miami, and John 5. Lloyd, Tallahassee, for appellants.
    Edward Boardman of Boardman & Bolles, Miami, for appellee!
   TERRELL, Justice.

This appeal is from a final decree of the Circuit Court, Eleventh Judicial Circuit of Florida, validating school bonds of Special Tax School District No. 1, Dade County, in the sum of $34,500,000. Special Tax School District No. 1 comprises all of Dade County. At the request of the Board of Public Instruction, dated August 16, 1955, the Board1 of County Commissioners, pursuant to Chapter 30682, Special Acts of 1955, called for re-registration of the freeholders in the district. The registration books were opened from September 7, 1955, through October 11, 1955, at the place designated, notice thereof having been published in the Miami Herald and the Miami Daily News September 1, 8, 15, 22, 29 and October 6, 1955.

■September 7, 1955, following receipt of a resolution and petition from the Board of Trustees of the District, the Board of Public Instruction of Dade County, in compliance with Sec. 236.37, Florida Statutes 1955, F.S.A., adopted a resolution listing projects determined by it.to be essential to the school program of the district. The Board of Public Instruction also determined that the said bond issue was essential to provide and complete said projects and meet the school needs of the district. The resolution of the Board of Public Instruction and the bond issue were approved by the , State Superintendent of , Public Instruction September 12, 1955, and on September 14 the Board of Public Instruction adopted a resolution confirming its resolution of September 7, 1955, providing for holding of the freeholders election to approve issuance of said bonds. It appears that 77,254 freeholders registered and qualified to vote in said election which was held October 25, 1955. It further appears that 66,082 freeholders voted in said , election; that 60,854 voted to issue said bonds and 5,228 voted against the bond issue.

The resolution of September 7, 1955, shows that the indebtedness of the district, including the bonds so authorized, will aggregate $51,946,000, which is less than '20 percent of the assessed valuation of the taxable property within the district. The petition to validate was duly filed, notice and order to show cause were duly entered, served and published. Answer was seasonably filed by the state attorney and at final hearing, Jánuary 10, 1956, an order was entered validating the proposed bonds and all proceedings incident to validation. This appeal is from the validating decree.

It is first contended that the bond election was not held in compliance with law because the' ballot used did not conform to the requirements of Sec. 236.40, Florida Statutes, F.S.A.

The portion of Sec. 236.40, Florida Statutes, F.S.A., relied on to support this contention is,- “ * * * the form of ballots for such election shall be: ‘For Bonds’ or ‘Against Bonds.’ ” It appears that Sec. 236.40 has reference to paper ballots to be voted by hand while the election in question was held by voting machine and the ballots used were defined and prepared as required by Sec. 101.27, Florida Statutes, F.S.A. The resolution calling the bond election provided:

“Section 6. That the ballot used at said election shall be that portion of the cardboard or paper or other material within the ballot frames of the voting machines which shall contain a statement of the question submitted, and. said voting machines shall provide facilities for qualified electors who are freeholders to vote for or against the issuance of said bonds as they may choose. Said ballot as it appears within the ballot frames of the voting machines shall be in substantially the following form:
“■Official Ballot
Bond Election October 25, 1955
Special Tax School District No. 1 of Dade County, Florida
Yes No
Shall bonds of Special Tax School District No. 1 of Dade County, Florida, be issued at one time or from time to time in the aggregate principal amount of $34,500,000 for the purposes and to mature as stated in the resolution adopted on September 7, 1955, by The Board of Public Instruction of Dade County, Florida?
“Section 7. Those desiring to vote for the issuance of said bonds are instructed to turn down the pointer or lever over the word ‘Yes’ within the ballot frame containing the statement of the question relating to said bonds, and those desiring to vote against the issuance of said bonds are instructed to turn down the pointer or lever over the word ‘No’ within the ballot frame containing the statement of the questions relating to .said bonds.’’

A similar question was before the court in State v. City of Tallahassee, 142 Fla. 476, 195 So. 402, and was decided contrary to the contention of appellants. In fact we think this case concludes the point. The test as to legality of the ballot is whether or not the voters were afforded an opportunity to express themselves fairly and did in fact exercise the privilege. A reading of the returns from the bond election quoted in this opinion can leave no doubt that this was done.

The second point with which we are confronted is whether or not re-registration of freeholders required by Chapter 30682, Special Acts of 1955, was a lawful means to determine that a majority of freeholders in Special Tax School District No. 1, Dade County, participated in the election to approve said bonds as required by Section 6, Article IX, Constitution of Florida, F.S.A.

The record discloses that Chapter 30682, providing for re-registration, was duly passed, that registration for the bond election was regularly conducted and that the proper notice and advertisement were given. The decree validating the bonds found that these things were done, that the freeholder electors were repeatedly urged to register to vote, and that no freeholder was denied the right to vote in said election, that no one complained to the State Attorney or any one else that he was denied the right to vote in said election and that no one ever heard a rumor of any freeholder being denied the opportunity to vote. The County Superintendent of Public Instruction and the Supervisor of Registration verified the fact of intensively advertising the election and the number of qualified freeholders who were registered and took part in the election. A very similar question was presented and considered in State v. County of Sarasota Fla., 62 So.2d 708, and we think the opinion in that case concludes the question here.

The third and last point presented is whether or not Special Tax School District No. 1, Dade County, is authorized by Chapter 236, Florida Statutes, and Section 17, Article XII, Florida Constitution, F.S.A., to issue the proposed bonds for the ■school purposes indicated without providing for compliance with Section 12, Article XII, Constitution of Florida, F.S.A.

Chapter 236, Florida Statutes 1955, F.S.A., defines the procedure for issuing special tax school district bonds. It is 'shown that the required procedure was followed in this case with reference to segregated schools. In voting for the bonds the freeholders had in mind the extreme necessity for the contemplated improvements as disclosed by the record. In our view the segregation question has no place in this discussion or bond issue. The question before the voters was one of urgent school necessity and the qualified electors voted for the bonds to provide better school facilities for that reason and no other. The pressing necessity for better school facilities was revealed by the record and the bond issue was overwhelmingly approved on that basis. Any reasonable pattern for desegregation that may he approved in the future will still require more and better school facilities which can be taken care of when that contingency arises. To drag it into the picture at this time is beside the question. Board of Public Instruction v. State, Fla., 75 So.2d 832; Matlock v. Board of County Commissioners, Olk., 281 P.2d 169.

The decree appealed from is therefore affirmed.

Affirmed.

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


author: DREW, Chief Justice.

text:
    Louis M. HUNTER and Florence M. Hunter, his wife, Appellants, v. UNITED STATES FIDELITY and GUARANTY COMPANY, a corporation, Appellee.
    Supreme Court of Florida. Special Division A.
    March 28, 1956.

      Martin Sack, Jacksonville, for appellants.
    Harry T. Gray, Francis P. Conroy, Sam R. Marks and Marks, Gray, Yates & Con-roy, Jacksonville, for appellee.
   DREW, Chief Justice.

This appeal is taken on an agreed statement on appeal which sets forth succinctly the question posed. Such statement is as follows:

“This is an appeal by plaintiffs from a final judgment entered June 2, 1955, by the Circuit Court for St. Johns County, Florida, granting defendant’s motion for summary judgment, and entering final judgment for the defendant.

“A copy of the judgment appealed from, and a copy of the notice of appeal with its filing date, are to he transmitted with this statement to the Supreme Court of Florida.

* * i'fi ❖ * *

“Plaintiffs, the named assureds and owners of the household goods and personal effects contained in a certain structure, occupied as their home, located in St. Johns County, Florida, sued the defendant on a policy of fire insurance issued by it to them on December 9, 1952. The total valuation clause in the policy fixed the value of the personal property at $2,000.00.

“The pertinent provisions of the policy were as follows:

“ 'Total Insurance — See form attached— Item 1, $

“ ‘Valuation Clause — See form attached —Item 1, $2,000.00 -

■ “‘Subject to Bureau Form No.(s), 263-FL herein.’

* ‡. * * * *

“ ‘This policy is made and accepted subject to the foregoing provisions and stipulations and those hereinafter stated, which are hereby made a part of this policy together with such other provisions, stipulations and agreements which may be added hereto as provided in this policy.’

¥ ¡1» Í¡! $ ^

“ ‘Valuation Clause (Applies to Fire and Lightning Insurance Only)' — The insurable values of the structures described in this policy are fixed at the amount (s) shown in the blanks provided on the first page of this policy under this caption.’

* * * * * *

“ ‘Total insurance (Applies to Fire and Lightning Insurance only)- — Other fire insurance is prohibited unless the total amount of fire insurance, including the amount of this policy, is inserted in the blanks provided on the first page of this policy under the caption Total Insurance. This Company shall not be liable for loss while the Insured shall have any other fire insurance prohibited by this policy.’

“On June 30, 1953, the structure and all the contents were totally destroyed by fire. Proof of loss was duly furnished the defendant. Under Florida Statutes the $2,000.00 valuation could not be disputed by defendant.

“Plaintiffs’ Complaint sought recovery of the $2,000.00, interest and attorney’s fees, as provided by Florida Statutes.

“In its defense, defendant pleaded the above quoted provisions of the policy, and that the same date, December 9, 1952, but after issuance of the policy in suit, and before the fire, plaintiffs applied for and obtained a fire policy from National Fire Insurance Company of Hartford insuring the same personal property for $2,000.00, without notice to defendant, or its agents, defendant- learning of the second policy after the loss occurred.

“The National policy was introduced as an exhibit in connection with the motion for summary judgment. It contained the same provisions as those in the defendant’s policy, above set forth, and the same Total Valuation clause.

“Before suit was filed, plaintiffs were examined under oath, as permitted by the policy, and testified they had purchased the second (National) policy from a.different agent in another town, and retained it until after the fire, but did not. advise either company about another policy and neither company knew of the other policy. They said they considered and understood fire insurance to be similar to life insurance and had been advised by friends that if they had 2 policies recovery would be easier if a loss occurred. The husband was a part-time farmer and part-time laborer, the wife was employed in a mill in a nearby town. The house had been built by them by their own labor a number of years before the loss occurred.

“On defendant’s motion for summary judgment the Circuit Court considered the pleadings, admissions, the 2 policies and the foregoing sworn testimony of the plaintiffs. The issuance of the 2 policies, the total destruction of the property, the valuation of the property, the plaintiffs’ aforementioned testimony, and their ownership of the property were all admitted and undisputed. The Circuit Judge granted the motion and entered the final judgment appealed from.”

As long ago as 1904, in the case of Philadelphia Underwriters’ Insurance Co. of North America v. Bigelow, 48 Fla. 105, 37 So. 210, 211, this Court held that where a policy of insurance contains a provision that:

“ ‘This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy’,”

such provision was valid; and denied recovery thereon where it appeared that the assured procured another policy which was in existence at the time the assured’s property was destroyed by fire. Twenty years later, -in the case of Adjustment Bureau Tampa Association of Credit Men v. Equitable Fire and Marine Insurance Company, 87 Fla. 308, 100 So. 161, 162, we said on the authority of the Bigelow case, supra,

“ * * * knowledge of the insurer of other insurance upon the property insured at the time of the issuance of the policy, with the omission to insert in the concurrent or additional insurance clause of the policy the amount or that no additional concurrent insurance is permitted, is not, as to policies subsequently issued upon the property of which the insurer had no notice, a waiver, nor is the insurer as to such policies estopped from asserting or relying upon the express provisions of the policy that ‘no insurance in addition is permitted to this policy unless the ‘ total insurance, including this policy, is entered in paragraph above’ (meaning the additional concurrent insurance clause), and declaring the policy to be void if the assured ‘shall hereafter make or procure’ any other contract of insurance on the property covered unless provided by agreement endorsed on the policy.”

In the latter case we again upheld the principles laid down in the former case, that the violation of such a provision precluded the assured from recovery. In addition to the Bigelow and Equitable cases, supra, which appellee said is square and solid authority to uphold the lower court in its disposition of this cause, appellee relied principally upon the. cases of Graham v. American Eagle Fire Ins. Co., 4 Cir., 1950, 182 F.2d 500 and a later Federal case of Aetna Ins. Co. of Hartford, Conn. v. Jeremiah, 10 Cir., 1951, 187 F.2d 95. It would unduly lengthen this opinion and serve no useful purpose to quote at length from Aetna Ins. Co. of Hartford, Conn. v. Jeremiah. Our holdings in the Bigelow and Equitable cases and the rule announced and approved in Aetna Ins. Co. of Hartford, Conn. v. Jeremiah, supra, comport with better reason and logic and are more nearly in conformity with the historical views of this court in construing contracts of insurance. We have been jealous of the rights of the assured. But we have also upheld the rights of the parties to contract regarding the provisions to be included in policies of insurance, so long as they were not contrary to public policy and were not misleading or ambiguous. For instance, in the recent case of Gulf Life Ins. Co. v. Green, Fla.1955, 80 So.2d 321, 322, where we were dealing with a life insurance policy, we 'upheld a provision to the effect that the policy should not take effect unless on the date of the delivery thereof the insured was alive and in sound health. In that case we again reiterated the language contained in Gulf Life Ins. Co. v. Ellis, 145 Fla. 262, 198 So. 836, viz.: “ ‘It is certainly not an unreasonable requirement that the insured be alive and in good health on the date of the delivery of the policy.’ ”

In Aetna Ins. Co. of Hartford, Conn. v. Jeremiah, supra, the circuit court of the 10th circuit observed that the prohibition against additional insurance in a policy containing the identical language to that involved in this case was an express warranty by the insured that no other insurance would be taken out. The court there observed that such provisions have been held reasonable and valid upon the ground that concurrent policies on the same property tend toward carelessness and fraud, and cited many cases to support that observation. In disallowing recovery upon the policy in that case the court said [187 F.2d 97]:

‘A provision forbidding or limiting additional insurance is clearly intended not as prescribing something to be done by the insured but as expressing a condition upon which the company assumes liability; and the law is well settled that, upon the breach of such a condition, there can be no recovery upon the contract in which it is contained. The principle upon which this conclusion rests is elementary in the general law of contracts. See A.L.I. Restatements of Contracts, secs. 250 and 260, and illustration 1 under 260. Applied in the law of insurance, it clearly requires that a provision forbidding or limiting additional insurance be treated as a condition of the policy, breach of which will preclude recovery by the insured. See Kossmehl v. Miller Nat. Ins. Co., 238 Mo. App. 671, 185 S.W.2d 293; Plumley v. Superior Fire Ins. Co., 122 W.Va. 333, 9 S.E.2d 229; Roberts v. London & Lancashire Ins. Co., 282 Ky. 679, 139 S.W.2d 764; Elliott v. Lycoming County Mut. Ins. Co., 66 Pa. 22, 5 Am.Rep. 323; Mitchell v. Lycoming County Mut. Ins. Co., 51 Pa. 402.”’

In the instant case the contracts were clear and unambiguous, and the assured agreed that he would take out no additional insurance. It was on this condition that the insurer assumed the responsibility of the insurance. .

We recognize that there is respectable authority which holds counter to the views we express. The principle case is Sweeting v. Mutual Fire Ins. Co., 83 Md. 63, 34 A. 826, 32 L.R.A. 570, and it is this case upon which the appellants so strongly rely. In spite of appellee’s contention' that the Sweeting case is not clearly applicable to the situation here and has been modified, if not overruled, by a later Maryland case, National Union Fire Ins. Co. v. Menke, 1934, 166 Md. 513, 171 A. 719; we think it does support appellants’ contention. We simply do not agree with its logic; and prefer to follow a contrary view which we believe to be more consonant with reason and to have the support of a number of courts; in addition to being consistent with the views of -this Court in the Bigelow and Equitable cases, supra.

We are indebted to both counsel for appellants and appellee for the excellent briefs which have been furnished in this case and the concise manner in which the question has been presented.

Affirmed.

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


author: ROBERTS, Justice.

text:
    Claude DUPREE, Petitioner, v. BETTER WAY, Inc., a Florida corporation; William Lackey; Raymond Malschick and Phil Seldin, d/b/a Raphil’s, also known as Raphil’s Delicacy Shop; and Amos Charles Roundtree, Respondents.
    Supreme Court of Florida. Division B.
    March 28, 1956.
    Kelner & Lewis, Miami Beach, for petitioner.
    Ross & Reinhardt, Miami, for Better Way, Inc., and William Lackey. Wicker & Smith ■ and Harry G. Hinckley, Jr., 'Miami, for Raphil’s Delicacy Shop and Amos Charles Roundtree.
   ROBERTS, Justice.

We here review, on common-law cer-tiorari, an' order of the lower court requiring the petitioner, plaintiff below, to answer the following interrogatory directed to him by respondents, defendants below, in the course of a negligence suit instituted by petitioner against respondents:

"Please set forth the names and addresses of any other persons believed by you or known by you or your attorney to have knowledge concerning the facts pertaining to the within accident.”

The petitioner’s, answer to this interrogatory was as follows:

“8. ■ Mike (last name not known to me) who works at George’s News,-1720 Alton Road, Miami Beach, Florida; policeman at the scene of the accident whose name I do not know. I do not know what persons with knowledge of this accident are known to my attorneys.”

The trial judge then entered the order here reviewed, directing the petitioner to “obtain from his attorneys, and his attorneys are directed to give to him, the names and addresses of all persons known to his attorneys who have any knowledge concerning the facts pertaining to the within accident, and the Plaintiff is directed to furnish said names and addresses in his answer to Interrogatory No. 8.”

The petitioner here contends that the information requested is both privileged and the work product of his attorneys, and that the lower court erred in requiring his attorneys to disclose it. This contention cannot be sustained.

The rule that an attorney cannot be compelled to divulge any communication made to him by his client without the consent of the client “does not extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation.” Hickman v. Taylor, 1946, 329 U.S. 495, 508, 67 S.Ct. 385, 392, 91 L.Ed. 451. Nor can the information be withheld on the ground that it is the “work product” of the attorney. Under Rule 1.27 of the Florida Rules of 'Civil Procedure, F.S.A., a party may be interrogated as to “any matters which can be inquired into under Rule 1.21(b)”; and under Rule 1.21(b) “any person, including a party,” may be examined “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, ’ * * * including * * * the identity and location of persons having knowledge of relevant facts.” The interrogatory here in question is well within the “Scope of Examination” permitted by Rule 1.21(b), supra, and the petitioner’s attorney could not have refused to comply with the rule, had the information been sought by proceeding under Rule 1.21 to take the deposition of petitioner’s attorneys.

No error having been made to appear, certiorari should be and it is hereby

Denied.

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


author: PER CURIAM.

text:
    D. L. STRINE, Petitioner, v. STATE of Florida, Respondent.
    Supreme Court of Florida. Special Division B.
    March 28, 1956.
    Joe D. Kinsey, Sebring, for petitioner.
    Keith Collyer, Avon Park, Gunter Stephenson, Winter Haven, and William C. Pierce, Tampa, for respondent.
   PER CURIAM.

The petition for certiorari is denied, because the judgment of the Circuit Court reversing the judgment of an inferior court and remanding cause for trial is not such a final judgment as will support certiorari. See Atlantic Coast Line R. Co. v. Gamble, 155 Fla. 678, 21 So.2d 348, and Miami Poultry & Egg Co. v. City Ice & Fuel Co., 126 Fla. 563, 172 So. 82.

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


text:
    Henry NORWOOD, Appellant, v. The STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division B.
    March 28, 1956.
    Frank Ragano, Tampa, and Finch & Mosley, Clearwater, for appellant.
    Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.
   ROBERTS, Justice.

We have carefully examined the record and briefs filed in this cause and have heard the argument of counsel at the bar of this court. We find no error requiring a reversal of the judgment convicting the appellant of the two offenses of which he was found guilty by the jury, but have concluded that the trial judge erred in imposing a separate sentence on each charge, to run consecutively. The derelictions of which appellant was found guilty were simply two facets of one transaction, so it was error to sentence him on each count. Wheeler v. State, Fla.1954, 72 So.2d 364; Williams v. State, Fla.1954, 69 So.2d 766.

The judgment of guilt is affirmed, but the sentence is vacated and the cause remanded for proper sentencing.

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


text:
    Bruce Douglas FORSYTHE, Marilyn Dale Forsythe and Norman Lloyd Forsythe, minors, by Amelia Joyce Forsythe, their Guardian, Petitioners, v. Lewis SPIELBERGER, Mary Ann Spielberger, Lois Spielberger, Henry Spielberger, Jr., Henry Spielberger, individually and as Trustee, Robert J. Duff, as Trustee and Executor under the Last Will and Testament of Jacob L. Spielberger, deceased, and The Exchange National Bank of Tampa, as Administrator de bonis non of the Estate of Jacob L. Spielberger, deceased, Respondents.
    Supreme Court of Florida. Special Division A.
    March 28, 1956.

      John P. Corcoran, Jr., and Brown, Brown & Corcoran, Tampa, for petitioners.
    Robert L. Frank and Reeves, Allen & Dell, Tampa, for Henry Spielberger, Jr.
    John R. Himes and Coles, Himes & Germany, Hugh C. Macfarlane, and Mac-farlane, Ferguson, Allison & Kelly, Tampa, for respondents other than Henry Spielberger, Jr.
   TERRELL, Justice.

June 10, 1954, Jacob L. Spielberger, hereinafter designated as settlor, executed an inter vivos trust by which he delivered to named trustees $70,000 in mortgages. The trust provided that the settlor receive the income therefrom during his life; that at his death his wife, Pauline Spielberger, should be paid the income from said trust during her life and that at her death, the trust estate be divided in four equal parts and held in trust for each of the settlor’s grandchildren, to wit, Bruce Douglas For-sythe, Marilyn Dale Forsythe, Norman Lloyd Forsythe and Plenry Spielberger, Jr., minors, until they attained the age of twenty-one years at which time the corpus of each said part be paid to said grandchildren.

August 1, 1954, the settlor was carried to the hospital by his daughter, Amelia Joyce Forsythe; upon arriving- at the hospital he delivered to said daughter for safekeeping $140 in cash, a watch and a diamond ring of substantial money and sentimental value. August 14, 1954, Amelia Joyce Forsythe delivered said diamond ring to Henry Spielberger, her brother. August 19, 1954, the settlor executed an amendment to the trust by which he revoked the gift or devise to his four grandchildren and in lieu thei-eof provided that the remainder (except a gift of $500 to each petitioner) be delivered to the settlor’s sons, Henry and Lewis Spielberger, Henry to receive three-fourths and Lewis to receive one-fourth of the remainder, the reason stated for so amending the trust being that Amelia Joyce Forsythe on August 2, 1954, the day after the ring was delivered to her at the hospital and prior to the time she had turned it over to her brother, Henry Spielberger, August 14, 1954, had caused the diamonds to be removed therefrom and replaced with zircons without the settlor’s knowledge or consent.

August 19, 1954, the date of the amended trust, Jacob L. Spielberger, executed a will by which he devised and bequeathed all his property, other than that included in the inter vivos trust “to my son, Henry Spiel-berger, my friend and attorney, Robert J. Duff, and the First National Bank of Tampa, Florida, as Trustees, to be distributed by them in accordance with the terms of a living trust agreement which I executed, together with the aforesaid Trustees, on June 10, 1954, a copy of which is hereto attached, as amended by agreement dated August 19, 1954, a copy of which is also attached hereto.”

Following recitation of this factual history, the complaint denied that Amelia Joyce Forsythe substituted zircons for diamonds in the ring; that the amendment to the trust and the will were induced by mistake of fact on the part of Jacob L. Spiel-berger and were for that reason invalid. The complaint also charged that the amendment to the trust and the will were induced by fraud and undue influence on the part of the sons, Henry and Lewis Spielberger, and their wives and for that reason were invalid. There was no assault on the trust or the will for incompetence of the settlor. The complaint charges, however, that although the amendment to the trust was executed the same day as the will, the amendment to the trust was not accepted by the trustees until August 23, 1954, and could not be legally considered as part of the will because to do so would amount to an amendment of the will by subsequent instrument not executed in accordance with the statute of wills. It is not shown, however, that the amendment to the trust was not executed in compliance with the statute of wills. It appears from the exhibits to the complaint that the amendment to the trust was executed by the settlor in the presence of two attesting witnesses on the same day the will was executed, was attached to and made part of the will by appropriate reference as was the original trust agreement which was attached to and made a part of the will.

The complaint prayed for declaratory decree adjudicating (1) that .the amendment to the trust of August 19, 1954, was executed through mistake or fraud and that the trust agreement of June 10, 1954, be reformed and corrected to strike said amendment; (2) that the will be construed to bequeath the estate of the settlor to the trustees and that respondents hold their interest under said amendment of August 19, 1954, including their interest received under the will upon constructive trust; (3) that respondents, Lewis and Henry Spielberger, Henry Spielberger, Jr., Lois Spielberger and Mary Amn Spielberger, hold their interest received under -the will upon constructive trust for the petitioners; (4) that the will devised the property to the trustees upon the trust of June 10, 1954, and that the amendment of August 19, 1954, should be treated as surplusage or as an attempt to amend the will by an instrument not executed as required by the statutes of Florida and for other relief.

A motion to dismiss the complaint was overruled and a motion to strike was granted as to paragraphs 1, 2 and 4 charging that the amendment to the trust agreement was induced by mistake and that part charging that it was induced by fraud and undue influence. We are confronted with an interlocutory appeal from that decree.

The first point for determination is whether or not a mistake in the inducement is sufficient ground to invalidate the will or the trust as amended.

The chancellor gave a negative answer to both aspects of this question. The complaint and the motion to strike raised both questions but petitioners challenge' only the court’s ruling as to his refusal to invalidate the trust and support their contention with Scott on Trusts, Vol. 3, Sec. 467.2; Kiser v. Lucas, 1936, 170 Md. 486, 185 A. 441; Green v. Votaw, 1943, 192 Okl. 136, 134 P.2d 367, and Spear v. MacDonald, Fla.1953, 67 So.2d 630.

The inducement as used here has reference to the reasons that actuated the execution of the amended trust. We have examined the authorities relied on by petitioners and they appear to deal with the question of reformation of an instrument for mistake in contents. We are concerned here with the right to strike down an instrument for error in the reasons for executing it. The cases relied on by petitioners do not seem to treat this question. Mistake in wording or content of an executed instrument is quite different from the reasons for executing it. Attempt to reconcile the principle contended for by petitioners with the cases relied on drives us to what some of the expert critics elect to call semantic confusion.

The authorities generally hold that a mistake in the inducement is not sufficient ground for invalidating a will, trust or other instrument. This rule does not apply to mistakes of the testator that have to do with the proper execution of the instrument as. distinguished from the reasons for making it, neither would it apply to mistakes in naming the beneficiary or describing the property. Such mistakes relate to contents of the instrument and not to the reasons for executing it. Page on Wills, Vol. 1, page 336, Sec. 170; Martin v. Thayer, 37 W.Va. 38, 16 S.E. 489; In re Bedlow’s Will, 67 Hun 408, 22 N.Y.S. 290; In re Gluckman’s Will, 87 N.J.Eq. 638, 101 A. 295, L.R.A. 1918D, 742.

We do not think Sec. 731.08, F.S., F.S.A., has any relation to mistakes in inducement but has reference to wills secured by fraud, duress, mistake or undue influence. Page on Wills, Vol. 1, page 344, Sec. 173; Dibble v. Currier, 142 Ga. 855, 83 S.E. 949. Another reason this is true is that after the death of the settlor he can no longer make disposition of his property; hence a trust agreement like any other testamentary devise should not be modified or invalidated for mistake in the inducement.

The only other point urged for determination is whether or not the allegations of the complaint are sufficient to show that the amended trust agreement was an invalid attempt to amend the will by a subsequent instrument not executed in accordance with the Statute of Wills.

Paragraph 15 is the only provision of the complaint that sheds any light on the answer to this question. Casual examination reveals an attempt to amend a will by a subsequent instrument that has not been executed as required by the Statute of Wills. Such is the contention of petitioners but an examination of the authorities relied on by them shows a wide variance from the issue presented in this case. President & Directors of Manhattan Co. v. Janowitz, 1940, 260 App.Div. 174, 21 N.Y.S.2d 232, supports the theory that an amendable trust instrument cannot be incorporated by reference in a will. Old Colony Trust Co. v. Cleveland, 291 Mass. 380, 196 N.E. 920, and Koeninger v. Toledo Trust Co., 49 Ohio App. 490, 197 N.E. 419, support the view that an amendable trust instrument can be incorporated by reference in a will but that any subsequent amendment must be executed with the formality of a will. Petitioners’ case is predicated on the theory that the original trust agreement was a part of the will. Petitioners are not in position to urge that an amendable trust cannot be incorporated by reference in a will.

Reverting to the main issue: it is not amiss to point out that the pertinent facts determinative of this point are that Jacob L. Spielberger executed the inter vivos trust in question June 10, 1954, and that it was amended by the settlor August 19, 1954, by an instrument in the presence of two attesting witnesses. Jacob L. Spielberger executed a will August 19, 1954, wherein he referred to the trust agreement of June 10, 1954, and to the amendment thereof dated August 19, 1954. The amendment was accepted by the trustees August 23, 1954.

As pointed out by respondents, these facts show that the question resolves itself into two issues: (1) Whether the allegations of the complaint were sufficient to show that the amendment to the trust was not in existence at the time of the •execution of the will, and (2) whether the allegations of the complaint were sufficient to show that the amendment to the trust was not executed with the formality of a will, regardless of the time it came into existence. These issues are necessarily in the alternative for if the*'amendment to the trust was in existence at the time of the execution of the will, the second issue is immaterial. Conversely, if the amendment to the trust was executed with the formality of a will, it is immaterial whether •or not it was in existence when the will was executed. The burden was on petitioners to allege both that the amendment ■was a subsequent instrument and that it was not executed in accordance with the Statute of Wills. An examination of paragraph 15 shows that the complaint alleged neither of these facts. Hence it was properly stricken.

In this case the original trust .agreement was subject to amendment. It was incorporated by reference in the will. Since the complaint did not show that the amendment was! not executed with the formality required of wills, the amendment to the trust should be given effect as part of the will regardless of the time of its execution. This and, in fact, so many facets of the case at bar, were considered in Stouse v. First National Bank of Chicago, Ky.1951, 245 S.W.2d 914, and we •could with propriety rest our conclusion largely on authority of that case.

Certiorari is therefore denied.

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


text:
    MERCANTILE INSURANCE COMPANY OF AMERICA, a corporation, Appellant, v. Tom W. ANDREWS, Appellee. CENTRAL SURETY AND INSURANCE CORPORATION, a corporation, Appellant, v. Tom W. ANDREWS, Appellee. NEW HAMPSHIRE FIRE INSURANCE COMPANY, a corporation, Appellant, v. Tom W. ANDREWS, Appellee. OLD COLONY INSURANCE COMPANY, a corporation, Appellant, v. Tom W. ANDREWS, Appellee.
    Supreme Court of Florida. Division A.
    March 28, 1956.
    Brannon & Brown, Lake City, for appellants.
    C. A. Avriett, Jasper, A. K. Black and J. B. Hodges, Lake City, for appellee.
   PER CURIAM.

This cause came on to be heard on the motion of the appellee to affirm the judgments appealed from pursuant to 30 F.S.A. Rule 38 of the Rules of this Coxirt, and it appearing to the court from an ’ examination of the consolidated record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeals are without substantial merit and need no further argument;

It is accordingly ordered, adjudged and decreed that the motion to affirm the judg-merits appealed from be and the same is hereby granted, and the judgments are

‘Affirmed.

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


author: O’CONNELL, Justice.

text:
    Mae B. SEEBA and Harold F. Seeba, her husband, Appellants, v. Alice C. BOWDEN and I. Beverly Nalle, as Administrators of the Estate of James U. Bowden, deceased, Appellees.
    Supreme Court of Florida. Division B.
    March 28, 1956.
    Harry H. Martin, Jacksonville, for appellants.
    Patterson, Freeman, Richardson & Watson, Jacksonville, for appellees.
   O’CONNELL, Justice.

The appellants, Mae B. Seeba and her husband, Harold F. Seeba, were defendants in an ejectment action brought by the appellees, Alice C. Bowden and I. Beverly Nalle, as administrators of the estate of James U.. Bowden, deceased. After a jury verdict for defendants, the Seebas, appellants in this court, the appellees filed a motion for new trial. From an order granting their motion, this appeal has been prosecuted.

In view of the limited issues on such an appeal, the facts of the case need be considered only insofar as material to the alleged errors in admission and exclusion of testimony under the “Dead Man’s Statute,” F.S. § 90.05, F.S.A., upon which the court below based its order for new trial. Sec. 59.07, F.S.1953, F.S.A.

The object of the suit by the appellee administrators was to recover possession of certain property formerly owned by appellant Mae Seeba’s father, R. Fleming Bow-den. James U. Bowden, deceased, on behalf of whose estate the appellees make their claim, was a son of R. Fleming Bow-den. The property in question was the homestead of R. Fleming Bowden at the time of his death in 1934. The decedent, his son James, was the chief beneficiary under his father’s will, which provided that Mae should receive a legacy of personalty and certain other realty if she would, within six months after his death, deed her share in the homestead to her brother James. She did in fact convey her interest therein to him approximately one year after their father’s death,, but made the contention (as to which her husband Harold was permitted to testify, over appellees’ objection) that James orally reconveyed to her at the time.

After R. Fleming Bowden’s death, appellants and James lived at the homeplace until James’ marriage, and appellants remained in possession thereafter. The ap-pellee Nalle was called as a witness and identified certain documentary evidence, including a receipt by Mae Seeba for the above mentioned legacy under her father’s will, and a deed by her covering the realty received thereunder.

Only two grounds of the appellees’ motion were specified by the court in its order granting new trial: first, that it was error to admit the testimony of Harold Seeba under the provisions of Section 90.05, supra ; and .second, that Giles Patterson, attorney, should have been allowed to testify for the appellants, which the court refused to allow him to do.

The general rule, with respect to exclusions under Section 90.05, is clear: “To be excluded from testifying by reason of interest in the event of the action or proceeding, under this statute, the witness, must be so interested in the result of the suit that he will gain or lose directly or immediately thereby.” Applying this test to the instant case, the trial court was. correct in concluding that the testimony by Harold Seeba should have been excluded. As a defendant in ejectment, in actual possession of the premises (jointly with his wife) his interest in the result of the suit was real and substantial. Without regard to his acquiescence in his wife’s claim of title, he would obviously suffer, of necessity, a direct and immediate loss from a judgment of ouster, and in addition might be-subjected to liability for money damages. See Dorminy v. Russell, 182 Ga. 635, 186 S.E. 679; Nalley Land & Investment Co. v. Merchants & Planters Bank, 187 Ga. 142, 199 S.E. 815; Kester v. Bostwick, 153 Fla. 437, 15 So.2d 201.

Upon common-law principles, which are-preserved by the statute in this situation,. Shoemaker v. Powers, 78 Fla. 20, 82 So. 751, liability for costs alone on the part of a party of record was deemed sufficient “interest” to affect his competence as witness with regard to a transaction with a decedent. Patterson v. Cobb, 4 Fla. 481, 485. This suggests, although a decision on the point is not here required, that the .statutory disqualification of any “party to such action or proceeding,” is not limited to necessary or indispensable parties. Section 90.05, supra. Adams v. Board of Trustees, 37 Fla. 266, 20 So. 266. Cf. 58 Am.Jur. 179. Annotation 172 A.L.R. 715.

The appellants’ contentions as to an alleged waiver of the disqualification in the instant case, by a witness’ introduction of documentary evidence in the matter, can be disposed of on the general principle that “a witness may testify to facts of which he has knowledge independently of any transaction with the deceased although they may relate to or grow out of a transaction with which he is concerned.” 58 Am.Jur., Witnesses, Sec. 238; Fields v. Fields, 140 Fla. 269, 191 So. 512.

Appellants suggest that the statutory disqualification can he invoked only in proceedings :in which the class of persons protected thereby are not the moving parties. This contention is untenable, the .statute having been previously applied in many cases to exclude testimony against the representative for a decedent, where such representative was the moving party. Home Ins. Co. of New York v. Handley, 120 Fla. 226, 162 So. 516.

The remaining point, as to the exclusion of the appellees’ attorney’s testimony concerning transactions with the deceased about his will, must be. resolved in favor of the witness’ competence, upon clear rulings in prior decisions of this Court. Nelson v. Stockton Mfg. Co., 129 Fla. 69, 175 So. 770; Parker v. Priestly, Fla., 39 So.2d 210; 58 Am.Jur., Witnesses, Sec. 368, Sec. 522. Appellants urge that inasmuch as there was no proffer of the testimony of Mr. Patterson, no error can be shown by the refusal by the trial court to allow him to testify. This court has said that where there is no proffer of excluded testimony and therefore no opportunity presented to this court to determine whether the testimony was competent, material or relevant, no error is shown. Atlantic Coast Line R. Co. v. Shouse, 83 Fla. 156, 91 So. 90. However, a proffer is unnecessary “where the offer would be a useless ceremony, or the evidence is rejected as a class, or where the court indicates such offer would be unavailing. * * or that the witness is incompetent, * * 88 C.J.S., Trial, §'74, p. 180.

For the reasons above cited it is our opinion that no error was committed in granting a new trial, and therefore the order appealed from is

Affirmed.

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


text:
    J. R. HUNTER, Jr., as Director, Beverage Department, State of Florida, Appellant, v. W. L. McKNIGHT, d/b/a Webster Outdoor Advertising Company, and Lobster Bar, Inc., a Florida corporation, Appellees.
    Supreme Court of Florida. Special Division B.
    March 28, 1956.

      Richard W. Ervin, Atty. Gen., and John C. Reed, Asst. Atty. Gen., for appellant.
    H. H. Taylor and Henry H. Taylor, Jr., Miami, for W. L. McKnight, d/b/a Webster Outdoor Advertising Co.
    Irving M. Wolff, Miami, for Lobster Bar, Inc.
   ROBERTS, Justice.

This is an appeal by J. R. Hunter, as Director of the State Beverag'e Department, from a final declaratory decree entered upon stipulated facts by the Circuit Court of Dade County. ' The sole point for determination is whether, under the facts, there has been a violation of Section 561.-42(10), Fla.Stat. 1953, F.S.A. The problem is one of interpretation only, since no attack is made upon the constitutionality of the statute.

The facts are these: A retail vendor of alcoholic beverages for consumption on the. premises leased the roof of the licensed premises to an outdoor advertising company. The lease was a standard roof lease and contained no restrictions against the use of the roof for advertising alcoholic beverages. The lease was entered into “in good faith.” The outdoor advertising company, through an advertising agency, contracted for the advertisement of a well-known beer on the sign. The sign contained standard outdoor advertising material used by the beer company for advertising its product throughout the country and did not refer to the retail vendor or mention that the product was sold on the premises. The lower court held that in these circumstances there had been no violation of Section 561.42(10), supra, and we agree.

The statute with which we are here concerned, Section 561.42, Fla.Stat.1953, F.S. A., is generally known as the “Tied house evil” statute. It was originally enacted in 1935, Section 4 of Chapter 16774, Laws of Florida, Acts of 1935, and, in general terms, prohibited a manufacturer or distributor from having a financial interest in the business of a licensed vendor and from assisting such vendors “by any gift, or loan of money or property of any description or by the giving of any rebates of any kind whatsoever.” Vendors were prohibited from accepting, either “directly or indirectly”, such loans or gifts or rebates. It was provided, however, that the prohibitions of the Act should not apply to “any bottles, barrels or other containers necessary for the legitimate transportation of such beverages, or advertising materials, * * *.” In 1943 and 1947, the Legislature amended the statute so as to prohibit the extension of credit to a vendor beyond the periods designated in the amendatory Acts. Chapter 22078, Laws of 1943; Chapter 23746, Laws, of 1947. The 1947 amendatory Act also provided that “The term advertising materials as used in this section shall not include outside signs so located as to be connected with or appertaining to the vendor’s licensed premises.”' F.S.A. § 561;42(9).

Finally, in 1949, by Chapter 25260, also, by an identical provision contained in Chapter 25340, Laws of 1949, the Legislature amended the Act to add what are now Subsections (10), (11) and (12) of Section 561.42, Fla.Stat.1953, F.S.A. By this, amendment the Legislature undertook to regulate more precisely the supplying of advertising materials to a vendor by a manufacturer or distributor. Thus, under Subsections (11) and (12), the vendor is authorized to display, in the interior of his licensed premises, signs or other material advertising a brand of alcoholic beverage sold therein, and the manufacturer or distributor is authorized to supply such advertising material to the vendor. The supplying and displaying of outside signs are regulated by Subsection (10), the section with

which we are here concerned, which provides as follows:

“No manufacturer or distributor of the beverages herein referred to shall directly or indirectly give, lend, rent, sell or in any other manner furnish to a vendor any outside sign, printed, painted, electric, or otherwise; nor shall any vendor display any sign advertising any brand of alcoholic beverages on the outside of his licensed premises or on any lot of ground of which the licensed premises are situate, or on any building of which the licensed premises are a part.”

It will have been noted that the provisions regulating the supplying of advertising materials were engrafted upon the original “Tied house evil” statute, and we think there can be no doubt that they were aimed at controlling and suppressing this evil, just as much as were the earlier provisions of the Act, referred to above. The purpose of such statutory provisions is “to prevent the integration of retail and wholesale outlets and to remove the retail dealer in intoxicating liquors from financial or business obligations to the wholesaler, with the exception of ordinary commercial credit for liquors sold.” 48 C.J.S., Intoxicating Liquors, § 197, p. 329, quoted with approval in Pickerill v. Schott, Fla.1951, 55 So.2d 716. And when viewed in the light of its history and the purpose sought to be attained, it is clear that Subsection (10) of Section 561.42 does not prohibit, per sc, the location of a sign advertising an alcoholic beverage on the outside of a vendor’s premises. The purpose of the Act is to prevent the furnishing of a sign by the wholesaler to the vendor in such manner as to create a financial or business obligation from the vendor to the wholesaler. The very terms of the Act itself are susceptible to no other interpretation. The statute prohibits the manufacturer or distributor from furnishing to a vendor any outside sign, and prohibits the vendor from displaying such a sign. And in the absence of facts showing that the sign has been furnished, either directly or indirectly, by the manufacturer to the vendor, we do not think the statute has been violated.

Here, it is part of the stipulated facts that the lease from the vendor to the outdoor advertising company was entered into “in good faith,” and there is no intimation in the record that the lease was a ruse to evade the prohibition of Section 561.42(10). The sign in question was not furnished to or displayed by the vendor; it was furnished to and displayed by the vendor’s lessee or the advertising agency contracting with such lessee. There was nothing on the sign pointing to the vendor or his establishment; It was neither a “point of purchase” nor an “owner identification” sign. Whether the furnishing and displaying of a sign of the latter type would amount to an indirect furnishing and displaying of the sign, as prohibited by the statute, need not be decided, since the question is not presented.

For the reasons stated, we agree with the court below that there has been no violation of Section 561.42(10), so the decree appealed from should be and it is hereby

Affirmed.

DREW, C. J., THOMAS, J., and PATTERSON, Associate Justice, concur.


text:
    Robert Lee COLSON and Moses Lee Dunmore, Appellants, v. The STATE of Florida, Appellee.
    Supreme Court of Florida. En Banc.
    March 28, 1956.
    Francisco A. Rodriguez, Tampa, for appellants.
    Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We have examined and considered the record in this case in the light of briefs filed and have also, pursuant to subpara-graph (2) of Section 924.32, Florida Statutes 1953, F.S.A., reviewed the evidence to determine if the interests of justice require a new trial, with the result that we find no reversible error is made to appear and the evidence does not reveal that the ends of justice require a new trial to be awarded.

Affirmed.

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


text:
    Jackie Eugene LEWIS, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division B.
    March 28, 1956.
    Coe & Coe, Pensacola, for appellant.
    Richard W. Ervin, Atty. Gen., Bart L. Cohen and Joseph P. Manners, Asst. Atty. Gen., for appellee.
   ROBERTS, Justice.

Appellant was convicted of assault with intent to rape an eleven-year old girl and has appealed from the judgment of conviction. The sole question argued here is the sufficiency of the evidence to prove the identity of the appellant as the child’s assailant.

The appellant had a moustache and drove a two-tone late model Chevrolet with a spare tire arrangement on the back and a California license tag. He was picked up about a week after the date of the assault on a charge of having an improper license plate, apparently on information furnished the officers by the child. Twenty minutes later, he was placed in a line-up with six other men and was identified by the child as her assailant. She had previously advised the officers that her assailant had a moustache, and at the trial she positively identified the appellant as the man who assaulted her. The child also identified the car as the one that was driven by her assailant. A naval officer testified that he saw a car similar in appearance to appellant’s, with a spare tire arrangement and California license tag, parked on the side of the road near the scene of the assault at the time the assault occurred.

The appellant and one of his witnesses, a manager of rental property, testified that, shortly before the time of the assault, appellant had visited the witness’ office to see if he had a house or apartment for rent. The child had testified earlier, in describing the assault, as follows:

“Well, there was a car parked next to the road, and I stopped there and he asked was there any house for sale, and I said not that I knew of, and he asked were there any for rent, and I said not that I knew of, and he asked me how far did I live, and I said ‘The second row down from here’, and that’s when he took out the gun.”

This evidence, if believed by the jury, was in our opinion sufficient to identify the appellant as the child’s assailant. The jury apparently chose to believe it and to disbelieve the testimony of appellant and his witnesses by which he sought to establish an alibi. In these circumstances, the verdict and judgment must be

Affirmed.

DREW, C. J., THOMAS, J., and PRUNTY, Associate Justice, concur.


text:
    EELBECK MILLING COMPANY of Florida, a corporation, Appellant, v. Nathan T. MAYO, as Commissioner of Agriculture of the State of Florida, Appellee.
    Supreme Court of Florida. En Banc.
    March 28, 1956.
    Edward McCarthy and McCarthy, Lane & Adams, Jacksonville, for appellant.
    Richard W. Ervin, Atty. Gen., and John D. Moriarty, Asst. Atty. Gen., for appellee.
   O’CONNELL, Justice.

The appellant, Eelbeck Milling Company, sought a decree declaring its rights under Chapter 28269, Laws of Florida, Acts of 1953, determining the validity of the Act, and restraining the enforcement of its terms in connection with sale of appellant’s products in Florida.

The statute in question amended sub-paragraph (5) of Section 500.11, Florida Statutes, F.S.A., by adding this language:

“Notwithstanding any other provision of this subsection, any corn product sold or distributed in Florida shall be deemed to be misbranded unless the package or container in which it is sold ■or marketed bears a label containing •one of the phrases, ‘Milled by’ or ■‘Manufactured by,’ whichever shall be .applicable, immediately followed by the name and place of business of the miller or manufacturer.” Chapter 28269, Laws of Florida, 19S3.

By its bill the appellant avers, in part, ■“that the disclosure on the 'label of the name and address of the miller has and •could have no connection with administration or enforcement of the Florida Food, Drug and Cosmetic Act * * * and said [requirement] does not serve the public good or contribute to the preservation or promotion of the public health, public safety, morals’ or the general welfare.” The bill also alleged that the enforcement of the new provision would result in heavy financial loss to plaintiff, the appellant, not only in the • destruction •of present packages and labels, which do not conform with its requirements, but also in impairment of the value of plaintiff’s good will and tradename as a packer and distributor of uniformly high quality corn products.

Defendant filed a motion to dismiss the hill on general grounds of insufficiency, that it failed to state a claim upon which relief could be -granted, and that “it appears from the face of the said Bill of Complaint that the statute attacked * * is valid and a constitutional exercise of the police powers of the State of Florida.” The final decree entered thereon contains findings that the bill “fails to disclose a justi-ciable question * * * and that Chapter 28269 * * * is a valid exercise of the police power of the State of Florida and does not deprive plaintiff of any of its constitutional rights.” From this order that defendant’s motion be granted and the ■cause dismissed (with leave to amend within fifteen days), plaintiff has taken its .appeal.

The basic question presented by the parties concerns the propriety of the ruling of the lower court to the effect that the Legislature, in the exercise of its police power, could lawfully provide that vendors of corn products must place upon each label the name and place of business of the original miller handling the grain.

It is well settled, of course, that to avoid infringement of constitutional rights and liberties, sections 1- and 12, Declarar tion of Rights, Fla.Const., F.S.A., and Fourteenth Amendment, U.S.Const., “the exercise of police power [must be] confined to those acts which may reasonably be construed as expedient at least for the protection of public safety, public welfare, public morals, or public health.” Sweat v. Turpentine & Rosin Factors, Inc., 112 Fla. 428, 150 So. 617, 618.

“The legislative authority in this legitimate field of the police power, like as in other fields, is fenced about by constitutional limitations, and it cannot properly be exercised beyond such reasonable interferences with the liberty of action of individuals as are really necessary to preserve and protect the public health. It has been said that the test, when such regulations are called in question, is whether they have some actual and reasonable relation to the maintenance and promotion of the public health and welfare, and whether such is in fact the end sought to be attained. Not- only must every reasonable presumption be indulged in favor of the validity of. legislative action in this important field, but also in favor of the validity of the regulations and actions of the health authorities.” Varholy v. Sweat, 153 Fla. 571, 15 So.2d 267, 270; State ex rel. Reese v. Carter, 160 Fla. 180, 34 So.2d 35; Miami Laundry Co. v. Florida Dry Cleaning & Laundry Bd., 134 Fla. 1, 183 So. 759, 119 A.L.R. 956. 16 C.J.S., Constitutional Law, § 195, pp. 562-564.

The amendatory act in question contains no express legislative finding of •the public necessity for imposition of the additional requirement in connection with packaged com products, but appellee invokes the rule, so frequently enunciated as to be academic in consideration of class legislation, that if any state of facts reasonably can be conceived that would sustain it, the existence of such a.state of facts must be assumed and the party attacking the statute has the burden of showing that it does not rest upon any reasonable basis. Gandy v. Borras, 114 Fla. 503, 154 So. 248; Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693, L.R.A.1918E, 639; Ball v. Branch, 154 Fla. 57, 16 So.2d 524. No theory is advanced, however, as to what legitimate end Chapter 28269 might conceivably have been addressed, other than the contention that the court should take judicial notice of the fact that corn products deteriorate rapidly after milling, and the law sustained as designed to guarantee freshness of such products on the Florida market.

This argument entirely overlooks the character of the labeling provision, as one requiring the miller’s name and place of business as opposed to time or date of milling, and the fact that in our present distributive economy the first item of information could not logically be said to serve as an indication to the public of the freshness or safety of any particular food package. Nor does it, as in the case of milk products, enable the public to rely upon local regulations controlling production in particular states of areas. Nobel v. Carlton, D.C., 36 F.2d 967. Nor does it otherwise, so far as we can see, bear any relation to the public health or welfare.

Appellee deans heavily upon the last cited case, and an earlier decision upon which it was impart predicated. Savage v. Jones, 225 U.S. 501, 32 S.Ct. 715, 56 L.Ed. 1182. Neither decision, nor subsequent cases following them in various analogous factual situations, would appear to have .any controlling effect.in the case at bar, fpr the reason above stated with reference tp - the Noble case, and because the court in Savage v. Jones .was concerned almost exclusively with the basic validity of a statute requiring designation of contents of a product- Nowhere in that opinion is there an indication that any attention was given to the specific point here involved, the requirement that the original manufacturer’s name and place of business be stated on the label, or whether such a requirement in the circumstances of that case could have had a reasonable relation to public health or welfare.

A consideration of the foregoing points indicates that the court below erred in concluding that the bill, upon its face, showed the statute attácked to be valid, and in granting the motion to dismiss upon that ground. The. facts alleged in the bill appear sufficient to make a justiciable issue, so that at this stage of the cause a decree undertaking to make final disposition of the constitutional questions was premature. Rosenhouse v. 1950 Spring, Term Grand Jury, Fla., 56 So.2d 445.

The order appealed from is reversed and this cause remanded for further proceedings in conformance with this opinion.

TERRELL, THOMAS, HOBSON and THORNAL. JJ„ concur.

DREW, C. Jv agrees to conclusion.

ROBERTS, J., not participating.


author: TERRE LI., Justice. DICKINSON, Associate justice

text:
    Sheila Joyce WADFORD, a minor, by her next friend, Janice S. Wadford, Appellant, v. ATLANTIC CO., a corporation, Appellee.
    Supreme Court of Florida. En Banc.
    March 7, 1956.
    Rehearing Denied April 20, 1956.

      Raymond Sheldon and Fred T. Saussy, Jr., Tampa, for appellant.
    T. Paine Kelly, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for ap-pellee.
   TERRE LI., Justice.

About 1:30 P.M., November 23, 19S3, a clear day, Clyde Wadford was driving easterly on Highway 580 in Hillsborough County. He saw friends approaching in the opposite direction and stopped, parked his car from 30 to 36 inches off the pavement and crossed the road for a word with his friends. He returned to his automobile in a few minutes and saw defendant’s ice truck driven by James Sylvester Becton approaching from the west. The evidence is in conflict as to how fast Becton was driving. It appears that decedent’s automobile was a 1941 Chevrolet two-door convertible, the doors measuring 40 to 42 inches in width. It is alleged that decedent was standing by the side of his car in a position of safety but as the truck passed, he opened the door in the path of the truck, was struck down and killed.

The paved road was more than 26 feet wide at the point of impact and decedent’s car was parked parallel to the road. The car door was approximately 9 inches wider than the distance from the car to the edge of the pavement and the truck bed extended slightly beyond its - front fender and running board.- .It is contended that when the truck struck the door to the car, it was pulled beyond its maximum opening range against the left front fender from where it sprung back in a half opened position and either struck the decedent or the force of the impact threw him against the side of the truck resulting in his death. There are other theories as to how the accident came to pass but they are not explored. His body came to rest on the shoulder of the road, his left foot on the edge of the pavement, his right foot off the pavement and his head under the edge of his car at a 40-degree angle from the pavement. Apparently no. other traffic was passing, nor were there other witnesses to the accident.

The testimony as to most of these allegations, the speed of the truck, as well as other elements of the tragedy, was in hopeless conflict. Appellant contends that it is' evident from the photographs in evidence that the point of impact was about one inch inside the right front corner of the body of the 'truck where there is a mark which establishes the point of impact. This is .not an unreasonable deduction. It is certain that if the driver of the truck had veered slightly to the left as reasonable caution would dictate, the accident would have been avoided. The plaintiff . requested a charge on the “last clear chance” which' was refused. The jury returned a verdict for defendant,’ new trial was denied and the plaintiff appealed.

Account of the hopeless conflict in the evidence on so many material points and for other reasons not essential to expand, we think the charge on last clear chance should have been given. Wawner v. Sellic Stone Studio, Fla., 74 So.2d 574, and Merchants’ Transp. Co. v. Daniel, 109 Fla. 496, 149 So. 401. This court has long been committed to the doctrine that a motor car is a dangerous instrumentality and that those who take them on the highway are charged with that knowledge. 'The truck driver in this case- had more than 26 feet of pavement on-which to drive and there was no other traffic near at the time. Common prudence would have suggested veering to the left under the circumstances. Mutual responsibility of motorists on the highway contemplates that eveiy expedient available be exercised to save human life. It is unreasonable to contend that one proceeding on a 26-foot highway had no chance to miss a motorist who was standing by his car parked approximately three feet off the pavement and no other traffic was in sight. To so hold would abrogate the doctrine of mutual responsibility.

The judgment is reversed and a new trial Is awarded.

Reversed.

DREW, C. J., and THORN AL and O’CONNELL, JJ., concur.

THOMAS, J., and DICKINSON, Associate Justice, dissent.

ROBERTS, J., not participating.

DICKINSON, Associate justice

(dissenting).

I cannot go along on a reversal of this case. A careful examination of the record indicates to me that this decedent was struck back of the right-hand cab door of the truck when he, the decedent, opened his. car door into the road. The decedent’s car was at least thirty inches off the highway and the truck driver motorist had a right to assume that the decedent would remain off the highway and not open his door into the face of oncoming traffic. I see no applicability of the doctrine of last clear chance in this case, and I think that the lower court was correct in denying a charge on it. The truck driver had no chance to avoid the decedent because the cab of his truck had already cleared arid passed the pedestrian. After he has passed a person he has a right to assume that that person will not do anything to cause himself injury. To hold the truck driver liable in this case would be equivalent to making a motorist an insurer of every pedestrian on or off the road, and whether in front of him, to either side of him, for instance, especially “the right or blind side” if his cab had passed the motorist, or to the rear of him, and this is placing an impossible burden on a driver as long as we have motor vehicular traffic. The mere fact that a man was killed and that a minor child is bringing the suit should not alter the, proposition that motorists and pedestrians have reciprocal rights in the use of the highways and that each must respect the rights of the other. Even if the charge had been given in this case, I do not believe that the jury, or any jury for that matter if the case is retried before another jury, could or would have arrived at any different conclusion than the one in which they did in this case. I therefore respectfully dissent from the majority opinion and would affirm the judgment.

THOMAS, J., concurs.


text:
    CITY OF MIAMI BEACH, Appellant, v. Anna WIESEN, Appellee. Harry L. HANSLEY and Jacob Cohn, Appellants, v. CITY OF MIAMI BEACH, Appellee.
    Supreme Court of Florida. En Banc.
    March 14, 1956.
    Rehearing Denied April 20, 1956.

      Ben Shepard, Miami, and Joseph Wanick, Miami Beach, for appellant and appellee City of Miami Beach.
    Anderson, Scott, McCarthy & Preston, Robert H. Anderson and George F. Gille-land, Miami, for appellee Anna Wiesen and -Harry L. Hansley and Jacob Cohn, appellants.
   DREW, Chief Justice.

The property involved in this zoning litigation consists of three lots located facing Collins Avenue at the northwest corner of Collins Avenue and 75th Street in the City of Miami Beach, Florida. It is bounded on the south by 75th Street, having a width of approximately sixty feet; on the east by Collins Avenue; on the north by 76th Street and on the west by a line in the approximate center of the block.

Prior to the commencement of the litigation, the subject lands were zoned “RD” (single-family residence). The property lying across 75th Street and for a great distance south thereof on both sides of Collins Avenue is classified under the zoning ordinances as. “BA” (business). The land lying adjacent to and immediately west of the subject property is classified under the zoning ordinances as “RE” (hotels and apartments). The land immediately across 76th Street to the north and for many blocks is zoned “RD” (single-family residences). The land across Collins Avenue immediately to the east is zoned “RD” (single-family residences).

The amended complaint, on which the case was tried, sought a decree declaring that the subject property was not suitable for residential purposes as then zoned but ■ was suitable for business purposes only and that its classification under the zoning ordinances was unreásonable, arbitrary and confiscatory. In disposing of the original litigation, the lower court held the single-family residential zoning unreasonable and that such classification deprived the property owners of their property without due process and was unconstitutional and void. The decree enjoined the defendant City from enforcing such zoning regulation but held “that the court should not substitute its judgment for that of the local zoning authorities in the matter of placing the plaintiffs’ porperty in a proper zoning classification and therefore the defendant City of Miami Beach is allowed thirty days from the date of this order to rezone the property hereinabove described and to put the same in classifications for which it is suitable and would not deprive the plaintiffs of their legal rights.” The court retained jurisdiction for the entry of such other ■and further orders as may become necessary or expedient.

Certiorari was taken to this court to review the foregoing decree hut was denied without opinion. See City of Miami Beach v. Wiesen, Fla., 73 So.2d 713.

Shortly after certiorari was denied in this Court, the City Council of the City of Miami Beach met and rezoned the subject property from “RD” (single-family residences) to “RE” (hotels and apartments) and on April 14, 1954 filed in this cause “certificate of compliance” to which was attached a copy of the ordinance rezoning said property. Thereafter the landowners filed a “supplemental petition for declaratory decree” in the same cause alleging that such new classification was “unreasonable, arbitrary and confiscatory and deprives the plaintiffs of their property without due process of law” and prayed that such ordinance be held unreasonable, arbitrary and confiscatory, that a mandatory injunction be issued directing the. defendant City to change the zoning on the • subject property from “RE” to business and enjoining the defendant City from interfering with the landowners in the use of their property for business purposes. The cause was thereafter submitted to the lower court on stipulation of the parties that- neither side would offer any additional evidence and that a final decree could be entered on the supplemental bill and the evidence theretofore adduced and upon which the original decree was based. The court then entered a final decree in which it enjoined the City from enforcing the provisions of the amendatory ordinance changing the zoning to “RE” and directing the Council to rezone the south two lots of the subject property for business purposes leaving the north lot in “RE” classification. This decree is now before us for consideration.

In City of Miami Beach v. Silver, Fla.1953, 67 So.2d 646, 647, we held that “When a city council, after being duly authorized by legislative grant, enacts a comprehensive zoning code, the ordinance is presumptively valid.” We further' said in that case that “One who assails such legislation must carry the 'burden of both alleging and proving that the municipal enactment is invalid * * * ” and that “the burden of one who attacks such an ordinance has been called an extraordinary one.” These principles of the law o.f zoning are' fundamental.

It. has long been a firmly established principle of zoning that the courts do not have the right nor the authority to substitute their judgment for that of the municipal legislative body which possesses the power and is charged with the duty of enacting zoning legislation where the question is fairly debatable. In City of Miami Beach v. Lachman, Fla.1953, 71 So.2d 148, we discussed at length the “fairly debatable” rule and there held, as we had in cases before that and in many cases thereafter, that if the particular regulation being considered by the court is a fairly debatable one, the action of the municipal authorities in passing it should be upheld.

Prior to the commencement of this litigation in the lower court, 75th Street was the dividing line between business and one family residential districts. The record shows that the City authorities selected this wide street, which did not extend all the way to the ocean, as the logical dividing line between districts. It is trite to observe that in zoning a city into various use districts there must be a dividing line somewhere. The selection of such a line involves the exercise of the legislative power and is a problem peculiarly within the power of the legislative body of a municipality. It involves a high degree of legislative discretion and an acute knowledge of existing conditions and circumstances. If the fairly debatable rule is a sound one, and we have so held, there is no situation in the field of zoning in which it is more applicable than that involving the decision of where the dividing line between use districts should 'be placed. Recognizing the fundamental premise that there must be a line somewhere, the courts should be highly respectful of the decision of the legislative body which, under the law, is vested with the power and charged with the duty of zoning. The courts should tread lightly in this field and then only-where the actions of the City Council are so unreasonable and unjustified as to amount to confiscation of property. In Wilkins v. City of San Bernardino, Cal.App., 162 P.2d 711, 714, the court said:

“It is also established that drawing the boundary lines of the zones must of necessity be more or less arbitrary for in the nature of things there cannot be much difference between property on one side of an imaginary line and that on the other. Brown v. City of Los Angeles, 183 Cal. 783, 192 P. 716; Zahn v. Board of Public Works, supra [195 Cal. 497, 234 P. 388], Increasing or diminishing the value of property by restricting its use under a valid zoning ordinance does not render the ordinance void as it is one of the incidents which may follow the valid exercise of the police power which permits property to be taken or damaged for public ■use under that power, when properly exercised, without condensation to the owner, Patrick v. Riley, 209 Cal. 350, 287 P. 455; Graham v. Kingwell, 218 Cal. 658, 24 P.2d 488; Coelho v. Truckell, 9 Cal.App.2d 47, 48 P.2d 697. This is one of the penalties, or benefits, depending on the point of view, incident to the privilege of living under the conditions of modern society where some of the personal and property rights that may be enjoyed by an isolated person must be surrendered to and circumscribed by the welfare of the larger group.”

See also the lengthy discussion of this subject in Chapter 9 of Volume 1 of The Law of Zoning and Planning, 3rd Edition by Rathkopf. Also paragraph 55, Zoning Law and Practice by E. C. Yokley.

The lower court in its original decree recognized that it should not substitute its judgment for that of the local zoning authorities and very properly directed such authorities to make a suitable classification of the subject property. After the legislative body had exercised its judgment on this highly debatable subject and had reclassified the subject property so as to allow hotels and apartments and had certified such action to the court, the amendment was entitled to be judged by the same rules as the ordinance originally attacked. The effect of the court’s decree appealed from was to substitute its judgment for that of the legislative council on a subject which the record, abundantly establishes was, to say the least, highly debatable.

The evidence offered at the original hearing was directed to the question of whether the subject property should be zoned for one-family . residences or business. None the evidence related to the question of the suitability of the land for hotels and apartr ments. The only reference to that particular question in the testimony is that of a witness for the defendant who testified that it was his opinion that the highest and best use of such property would be for multiple-family dwellings. Another witness testified that in his opinion the highest and best use would be for “RDE” (four apartment units). Most of the testimony related to traffic conditions, change in condition of the neighborhood and the small number of vacant lots that remained' in the eight square miles of land which Miami Beach consisted of and the value of the land for single-family residential purposes. The substance of what the plaintiffs’ witnesses said about the land was that it was not suitable for residential purposes and would be worth about twice as much for business purposes. The showing made is far short of that which is required to overcome the presumptive validity of the ordinance reclassifying the property for hotel and apartment purposes pursuant to the court’s order.

Mr. Justice Thomas, speaking for the Court in the case of City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364, 366, said:

“At the juncture of these streets property which may be devoted to business abruptly ends and that which may be used for hotels and apartments as suddenly begins but there must be a line of demarcation between them somewhere. * * * The fact that his land is situated across the street from that on which commercial enterprises may be operated was not alone enough to support plaintiff’s position that he should be given the same latitude in the use of his property. Were this the case it would be but a matter of time before alterations of the whole scheme by successively liberalizing the use of abutting property would result in disintegration and disappearance of the whole plan of zoning.”

The foregoing observations are particularly pertinent to this situation. It is evident that if the subject property be rezoned to business, the property to the north and across the street would have to be treated similarly and on and on as to other property until by a process of “judicial erosion”, the entire zoning plan would be destroyed. This situation illustrates more than any other the wisdom of the rule that courts should not substitute their judgment for that of the zoning authorities in matters of this kind.

The decree appealed from is reversed.

TERRELL, TPIOMAS, ROBERTS and THORNAL, JJ., and ALLEN, Associate Justice, concur.

HOBSON, J., not participating.


text:
    MIAMI BEACH RAILWAY COMPANY, a Florida corporation, Appellant, v. June MARCUS and Theodore Marcus, her husband, Appellees.
    Supreme Court of Florida. Division A.
    March 28, 1956.
    Blackwell, Walker & Gray, Miami, for appellant.
    Krystow & Johnson, Miami, for appellees.
   PER CURIAM.

This cause came on to he heard on the motion of the appellee to affirm the judgment appealed from pursuant to 30 F.S.A., Rule 38 of the Rules of this Court, and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly Ordered, Adjudged and Decreed that the motion to affirm the judgment appealed from he and -the same is hereby granted, and the judgment is

Affirmed.

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