text:
    In re Petition of Martha Campbell FREEMAN to Declare Her Brother, Daniel D. CAMPBELL, Incompetent.
    Supreme Court of Florida. Special Division A.
    Dec. 2, 1955.
    Rehearing Denied Jan. 31, 1956.

      M. H. Rosenhouse, Miami, for appellant.
    J. M. Rowe, Miami, for appellee.
   ROBERTS, Justice.

This cause is before the court on the motions of appellees to dismiss the appeal and to affirm the order appealed from under Rule 38 of this court, 30 F.S.A. and other motions directed to the failure of the appellant to comply with the rules of this court respecting the procedure for perfecting appeals.

The appellant, Daniel D. Campbell, was adjudicated an incompetent in proceedings initiated by his sister, Martha Campbell Freeman, under Sections 394.20 et seq., Florida Statutes 1953, F.S.A. and filed in the County Judge’s Court of Dade County, Florida. Because of the absence of one county judge and disqualification of the other, the cause was heard by a circuit judge of that county under assignment by the Senior Circuit Judge. As noted, an order adjudging Daniel D. Campbell to be incompetent was entered by the circuit judge. Daniel appealed this order to the Circuit Court of Dade County. The appel ■ lee, the, Administrator of Veterans’ Affairs (who was a party in interest under Section 293.20, Fla.Stat.19S3, F.S.A. because Daniel is a veteran of the Armed Services), filed a motion to dismiss the appeal to the Circuit Court on two grounds: (1) that an adjudication of incompetency under Sections 394.20 et seq. is a non-appealable judgment, and (2) that, even if appealable, the appeal should have been to the Supreme Court for the reason that the circuit judge who heard the cause did so in his capacity as circuit judge and not as a substitute for the county judge. The motion was granted on the first ground stated therein and also bp-cause, as stated in the order of dismissal, “even if the order were appealable there is enough evidence to sustain the findings of the Circuit Judge declaring the said Daniel D. ' Campbell incompetent.” It is this order of dismissal that Daniel has brought to this court for review. We consider the appeal as a petition for cer-tiorari under the provision of Section 59.45, Fla.Stat.1953, F.S.A.

In support of his motion to dismiss the instant appeal, the appellee argues that the decision of this court in Hughes v. Blanton, 120 Fla. 446, 162 So. 914, 916, indicates that there is no appeal from an adjudication of incompetency. In that case, we were concerned with an appeal from an order of a circuit court entered in prohibition proceedings attacking on jurisdictional grounds a petition for an adjudication of insanity filed in a county judge’s court. In affirming the order quashing the rule nisi and dismissing the prohibition proceedings, we held that the petition was sufficient to invoke the jurisdiction of the county judge to proceed with a hearing on such petition. By way of dictum, it was said:

“Adequate provisions for the conservation of the legal rights of the supposed insane person are afforded by the mandatory statutory requirements that such person under investigation * * * shall be personally present at the insanity inquiry before the examining committee and shall be allowed the privilege of contesting the findings and report of such committee when it is presented to the county judge for his confirmation and approval. An additional safeguard is accorded the supposed insane person to invoke the remedy in chancery provided by sections 5036-5039, C.G.L. [F.S.A. §§ 62.32-62.35] * * * should he or she be dissatisfied with an unfavorable judgment rendered on the inquisition before the county judge. Ex parte Scudamore, 55 Fla. 211, 46 So. 279.”

In Ex parte Scudamore, 1908, supra, the court was concerned with an attack in habeas corpus proceedings upon the constitutionality of the original Act, Sections 1200 et seq., Gen.Stat.1906, F.S.A. § 394.20 et seq., originally enacted as Chapter 4357, Acts of 1895, upon various grounds including, among others, a charge that the Act did not provide due process of law in that an adjudication of lunacy and a commitment could be made without notice. In disposing of this contention, the court held that the Act provided for sufficient notice and, in addition (as stated in the second syllabus by the court) “Sections 1962, 1963, 1964, and 1965 of the General Statutes of 1906 [Sections 62.32 et seq., Fla.Stat.1953, F.S.A.], making provision for the filing of a bill in equity by any relative or friend of any adjudged lunatic, at any time, to have his sanity inquired into by the chancellor, and providing for his immediate release, and restoration to him of his property, if found upon such inquiry to be sane, is of itself a sufficient protection of the liberty of the subject to meet the constitutional requirements of due process of law, even though no sort of notice to the lunatic was given in the initial proceeding by which he was so adjudged.” (Emphasis added.)

It can thus be seen that there is nothing in Ex parte Scudamore to support the conclusion, implied in the dictum quoted from Hughes v. Blanton, supra, that where a person charged with lunacy or incompetency áppears and contests the charge, he cannot appeal from an order adjudicating that he is a lunatic or incompetent. Neither of these decisions is, then, controlling here.

It is also contended by appellee that, in entertaining a petition for an inquisition of lunacy, the county judge acts as a “special statutory judicial tribunal” and not as a court; and it is argued that the decision of this court in In re Palmer’s Adoption, 129 Fla. 630, 176 So. 537, Wis decisive of the question here. This contention cannot be sustained. Unlike the statutes relating to adoption proceedings which, as pointed out in In re Palmer, supra, make no reference “to any action by the circuit court as a court”, the statute in question refers to “the court” in several instances. For example, Section 394.21 (prior to its amendment by Chapter 23157, Laws 1945, and Chapter 29909, Laws 1955) provided that “in the event the committee shall find that said person is insane the person alleged to be insane shall have the right to apply to the court before whom the proceedings are had by petition for permission to contest the charge of insanity, whereupon the court shall set the case on a day certain for hearing and * * * the court shall have summoned a reasonable number of witnesses for such person * * (Emphasis added.) Chapter 29909, Laws of 1955, in the section providing for notice and hearing on a petition for an adjudication of incompetency, says that at such hearing “The court shall receive all relevant and material evidence which may be offered and shall not be bound by the rules of evidence.” In Ex parte Scudamore, supra, 46 So. 279, it was held that the Act “conferring upon county judge’s courts jurisdiction to inquire into the alleged insanity of persons” (quotation from syllabus by the court) does not violate Section 17 of article 5 of the Constitution, F.S.A. for the reason, among others, that “one of the powers usually exercised by probate courts was to commit lunatics to guardianship.” (Emphasis added.)

We hold, then, that in lunacy or incompetency proceedings the county judge is acting in his capacity as “county judge” in the exercise of judicial powers properly conferred upon such court by the Legislature under the authority of Section 17 of Article V of the constitution, Ex parte Scudamore, supra, and not as a “special statutory judicial tribunal”. This being so, his judgment adjudicating a person to be mentally incompetent is a “judgment” of the county judge’s court and is appealable to the circuit court under the provisions of Section 61.01, Fla.Stat.1953, F.S.A. That the Legislature so intended is further shown by Section 744.34, Fla.Stat.1953, F.S.A., relating to the appointment by a county judge of a guardian for an incompetent person, wherein it is specifically provided that “An order of the county judge previously adjudicating a person to be incompetent shall constitute conclusive proof of such incompetency until reversed or set aside or until the competency of such person has been restored as provided by law.” (Emphasis added.)

The appellee also contends here that, even if appealable, the judgment adjudicating Daniel to be an incompetent was appealable -only to this court, rather than to the Circuit Court. While, as noted, the order of dismissal did not specify this ground as the basis for the order, we will consider it under our settled practice to affirm a decree of the lower court, even though based on an erroneous ground, if its result is justified on any other ground appearing in the record. Haas v. Crisp Realty Co., Fla.1953, 65 So.2d 765.

The appellee contends that a decision on this question is controlled by In re Starr’s Estate, 1936, 125 Fla. 536, 170 So. 620, 622. We held there that a Circuit Judge who heard a contested wills case in the stead of a disqualified Probate Judge “was acting in the capacity of circuit judge when he took jurisdiction of the cause, instead of as a substitute county judge * * *” so that his order in the cause was appealable to this court 'rather than to the Circuit Court. The statute applicable at the time of the Starr decision was Section 5199, C.G.L.1927 (originally enacted as Ch. 154, Acts of 1848, and now appearing in a slightly amended form as Section 36.16, Fla. Stat.1953, F.S.A.) providing that “The judge of the circuit court, in case of the disqualification, absence, sickness or other disability of a county judge, is authorized to discharge all the duties appertaining to said judge in regard to the probate of wills, granting letters testamentary and letters of administration, appointing curators and guardians, * * But see Section 732.-15, Fla.Stat.1953, F.S.A. [Section 52 of Chapter -16103, the Probate Act of 1933] specifically providing that an appeal from an order of a circuit judge sitting for an absent or disqualified probate judge shall be to the circuit court and from the circuit court to the supreme court, and In re Wilkins’ Estate, 1937, 128 Fla. 273, 174 So. 412.

Regardless of the propriety of the ruling In re Starr, supra, as to the judicial “duties” specifically referred to therein (and which, it should be noted, do not include adjudication of insanity or incompetency) we do not think it is controlling of the question here, for the reasons hereafter stated.

Until 1945, the statute relating to adjudications of lunacy, Sections 394.20 et seq., Fla.Stat.1953, F.S.A. (originally enacted as Ch. 4357, Acts of 1895) provided for concurrent jurisdiction of lunacy inquisitions by a county judge’s court or the circuit court. But in 1945, the Legislature enacted Chapter 23157, Laws of Florida, Acts of 1945, entitled “An Act Amending, Revising and Modernizing Sections 394.20, 394.21, 394.22 and 394.23, Florida Statutes, 1941, and Pertaining to the Adjudication of Persons Mentally or Physically Incompetent * * * ”, by which the County Judge’s Court was given jurisdiction of proceedings for the adjudication of incompetency, as well as lunacy; Sections 394.20 et seq. were amended to provide for the filing of a petition for an adjudication of lunacy or incompetency before a county judge “or in his absence or disability, the judge of the circuit court in the county in which said petition is submitted * * * ”; and Chapter 746, Fla. Stat.1941, as amended in 1943, F.S.A., providing for an'adjudication of incompetency and the appointment of a curator for an incompetent person by a circuit court was expressly repealed. It was also provided in Chapter 23157, supra, that “After the judgment adjudicating a person to be mentally incompetent is filed in the office of the county judge, such person shall be presumed to be incapable, for the duration of such in competency, of managing his own affairs * * *. The ,filing of said judgment shall be notice of such incapacity.” (Emphasis added.)

We think it was the clear intent, of the Legislature, in enacting Chapter 23157, supra, to require that all original proceedings for the adjudication of incompetency or lunacy be brought in a county, judge’s court, so that an interested person would be required to search the records of this one court, only, in order to determine the competency status of a person; and that the order of a circuit judge, sitting in an incompetency proceeding in the place of an absent or disqualified county judge, is the order of the County Judge’s Court in which such proceedings are initiated — just as the order of the circuit judge sitting for an absent or disqualified probate judge in probate matters is the order of the Probate Court in which such will is being probated.

We hold, then, that when a petition is filed in a County Judge’s Court for an adjudication of incompetency, and the cause is heard by a Circuit Judge sitting for an absent or disqualified County Judge, the judgment is that of the County Judge’s Court, and the appeal from such judgment should be taken to the Circuit Court under the provisions of Section 61.01, Fla.Stat. 1953, F.S.A. It was, then, error for the Circuit Court of Dade County to dismiss, on jurisdictional grounds, the appeal to it from the judgment of incompetency.

We have, however, carefully examined the record of the proceedings resulting in such judgment of incompetency, and find that' the evidence amply supported the judgment entered in such proceedings, as found by the appellate Circuit Judge in his order on the appeal, and that there was no such departure from the essential requirements of law as to require a quashal of the order brought here for réview.

Certiorari is, accordingly, denied.

DREW, C. J., TERRELL, J., and STANLY, Associate Justice, concur.


source: Caselaw Access Project

author: THOMAS, Justice. THORNAL, Justice HOBSON, Justice ROBERTS, Justice

license: Public Domain

text:
    Isham W. ADAMS, Appellant, v. NEWS-JOURNAL CORPORATION, Julius Davidson, Herbert M. Davidson and Tippen Davidson, Appellees.
    Supreme Court of Florida. En Banc.
    Nov. 2, 1955.
    Rehearing Denied Jan. 31, 1956.
    Adams & Judge, Daytona Beach, for appellant.
    Alfred A. Green, Daytona Beach, for ap-pellees.
   THOMAS, Justice.

A client of the appellant was about to face charges in the municipal court of Day-tona Beach after an arrest which he had evidently resisted. The appellant, in his capacity as attorney, applied to the circuit court for a writ of prohibition to prevent the municipal judge from exercising jurisdiction of the case. To support the claim that the client was entitled to the writ, certain'representations were made in the petition which was signed by appellant and verified by his client. Parenthetically, the circuit judge made the writ absolute and his action was affirmed by this court.

The editors of News-Journal Corporation took umbrage at the conduct by appellant of the prohibition case and caused to appear in papers published and circulated by the corporation an editorial on the subject.

We quote the whole editorial which the appellant claims to have caused him suffering and injury, to have damaged his reputation “in his personal, social, business and professional life” and to have exposed him to hatred, distrust, contempt and ridicule:

“THERE IS A LIMIT
“DECENT CITIZENS believe there ■should be a limit to the accusations which a defense attorney should be allowed to make against law abiding persons, including law enforcement officers, in any move to protect his client.
“What is said here in this connection refers to one particular attorney, but it applies as well to many others.
“This week Isham Adams, attorney for Henry Hanna, filed a petition in Circuit Judge Revels’ Court which challenges the attention of all citizens who believe in law enforcement. The petition sought a writ of prohibition preventing the Court from trying Hanna on charges dating back to Jan. 29, 1952. The writ was granted temporarily.
* * * * Jje *
' “ATTORNEY ADAMS made grave accusations against some of our police officers in his zeal to save his client, Hanna, from going to trial on charges growing out of a fracas on that night more than two years ago.
“We read in the lawyer’s petition that the police officers who arrested Hanna that night ‘did then and there commit an unlawful assault and battery’ and did ‘beat, bruise, wound and physically overpower and subdue him.’ The ‘him’ refers to Hanna, who is a widely known character in the night life of Daytona Beach.
“Did Attorney Adams have any right to accuse these policemen of such dastardly behavior? Was the attorney a witness of what happened that night? Did he himself see his client suffer such beating, assault, bruising and wounding as he writes of in his petition?
“On the other hand did Attorney Adams see Police Officer Marvel King suffer such a terrific blow that night that he had to have an operation, and lie for weeks in a hospital?
“Did Attorney Adams question King and the other police officers as well as his client before making those accusations? If he did, then why did he choose to believe his client rather than the officers?
“We can see case hardened attorneys smile at these questions. We can hear some of them say Attorney Adams was only repeating in the petition what his client had told him. We can hear them say the attorney was not responsible for the allegations in the petition.
##****
“BUT WE DON’T ACCEPT that view. Having read the canon of professional ethics for practicing lawyers, we take the position that the attorney in this case, as in others like it, was responsible for trying honestly and diligently to get the facts in this case before accusing these police officers of committing crimes while on the job.
“We laymen in the law are held responsible for knowing the law and the facts in all matters having to do with law enforcement. Lawyers should be held at least as responsible as laymen.
“To accuse law enforcement officers of serious crimes, in a technical move to save a client from facing trial, is a mighty serious business.
“Henry Hanna’s nocturnal doings are pretty common knowledge in Daytona Beach. If our police did nothing to discipline him they would he subjected to merited censure. For them to be subjected to criminal accusations for acting in the line of duty is revolting to decent citizens. — F. B.”

The lone question presented by the appellant and accepted by the appellee is whether or not the editorial was “defamatory of this plaintiff [appellant], a practicing attorney at law, and actionable per gg * * ¡M*

The circuit judge decided that it was not and dismissed the complaint at the cost of the plaintiff.

In a recent decision of this court certain rules were announced for our governance in determining whether or not publications are libelous per se. We held that they would be of this character when, “considered alone without innuendo,” they contain (1) charges that a person has committed an infamous crime, or (2) has contracted an infectious disease, or (3) they carry statements tending to subject a person to hatred, distrust, ridicule, contempt or disgrace, or (4) to injure a person in his trade or profession. Richard v. Gray, Fla., 62 So.2d 597.

The first two of these categories may be eliminated from this discussion leaving as our main concern the effect the editorial might have had on appellant’s professional standing, and the allied question whether or not he might have been held up to hatred, distrust, and so forth. The language used will be given neither a mild nor harsh construction but the words will be construed “in that sense in which they may be understood and in which they appear to have been used and according to the ideas which they were adopted to convey to those who hear them, or to whom they are addressed.” Budd v. J. Y. Gooch Co., Inc., 157 Fla. 716, 27 So.2d 72, 74. The task of testing the effect of the language used is not an easy one because there is no fixed rule that would guide us to a conclusion. The judgment in each case must depend upon the facts peculiar to that case and a search for two identical instances would probably be unrewarded.

We will undertake to interpret the editor’s phraseology “as the common mind would understand it.” Loeb v. Geronemus, Fla., 66 So.2d 241, 245.

In the very beginning of the article there appears the declaration that decent citizens believe there should be a limit “to the accusations which a defense attorney should be allowed to make against law abiding persons” in his effort to protect his client. (Our italics.) It would tax the imagination to draw a conclusion that references to “decent citizens” and “law abiding persons” were slurs against the appellant. And the use of the word “allowed” seems to us to have implied that there was privilege or authority for what the attorney did in his client’s behalf even though the editor, assuming to speak for the citizenry, disapproved the process.

This is followed by a statement that but one named attorney was in mind though the criticism could be applied to many others. Then the fact of the application for prohibition, a fact of which we take judicial notice inasmuch as the prohibition case was reviewed and affirmed here, is stated and the statement is amplified by the opinion that by the petition the attention of citizens believing in law enforcement is challenged. It would be illogical to read into this part of the editorial any defamation of the appellant. Almost any criminal case, or proceeding connected with it, might challenge “attention” but the suggestion would not reflect discredit on anyone concerned, except those directly charged with an offense.

Appellant is then said to have made grave accusations against police officers, but this is only an elaboration of the first paragraph where it was inferred that what he did was “allowed.” The use of the word “zeal” was hardly libelous, for a lawyer is expected to show a keen interest in his client’s welfare and it is only when he goes beyond the bounds of propriety that his actions may be condemned.

. ■ Then ■ follow rhetorical questions about appellant’s own knowledge of the occurrence that accompanied the arrest of his client, and about his preference for the story given him by the client. How such questions are a reflection upon appellant’s integrity or professional conduct we do not comprehend.

Next is an allusion to ‘case-hardened’ attorneys and the smiles the rhetorical questions would evoke from them. As we understand the term a ‘case-hardened’ attorney would be one who had become callous or unfeeling, however, there is no need to pursue the thought that the application of the term would be libelous because as it was used it would not to the “common mind” apply to the appellant but to those of that character who would be amused by the editorial itself.

Drawing to a conclusion, the writer took the position after relating that he had read the canon of ethics that the appellant in the case in question “as in others like it, was responsible for trying honestly and diligently to get the facts * * * before accusing * * * police officers of committing crimes while on the job.” Such was the construction placed by the writer on .the canon he had examined.

The editorial concluded with the general statement that lawyers should be as responsible as laymen “for knowing the law”; that accusing “law enforcement officers of serious crimes, in a technical move to save a client from facing trial, is a mighty serious business”; and that the goings ón of the client were of such nature that the police would deserve censure if they did not curtail them.

Our study of the article brings us to the view that it constituted a criticism of a system by which the attorney acting within bounds, but within bounds the writer thought should be contracted, had succeeded in keeping a rascal from being tried. Although by the use of our “common mind” we can understand how irked the appellant may have become by the comment on the procedure that irked the editor, we do not find from the whole editorial, and such of the circumstances of its publication as are apparent in the record, the qualities which would stamp it as libelous per se. Cooper v. Miami Herald Publishing Co., 159 Fla. 296, 31 So.2d 382.

So the judgment is

Affirmed.

TERRELL and SEBRING, JJ., concur.

THORNAL, J., concurs specially.

DREW, C. J., and HOBSON and ROBERTS, JJ., dissent.

THORNAL, Justice

(concurring specially).

I concur in the conclusions reached in the opinion by Mr. Justice THOMAS for the reasons therein announced. It appears that there was additional justification for the dismissal of the complaint in that the notice served on the appellees, purportedly in compliance with Chapter 770, Florida Statutes 1953, fails to meet the requirements of the act. F.S. § 770.01, F.S.A., reads as follows:

“Before any civil action is brought for publication, in a newspaper or periodical, of a libel, the plaintiff shall, at least five days before instituting such action, serve notice in writing on defendant, specifying the article, and the statements therein, which he alleges to be false and defamatory.” (Emphasis ours.)

It should be noted that the act requires that the notice not only specify the article but also specify “the statements therein,” which are alleged to be false and defamatory. A careful examination of the notice attached to the complaint reveals that it fails completely to meet this requirement. This was one of the grounds of the motion to dismiss.

While it is true that the notice reveals a broadside attack of falsity against the editorial involved, the fact remains that this Court judicially knows that a substantial part of the factual statements contained in the editorial are true by virtue of the contents of the prohibition proceeding which was appealed to this Court and disposed of in Massfeller v. State ex rel. Hanna, Fla. 1954, 76 So.2d 304. When stripped of these statements judicially known to be true, the editorial under attack consists of little more than a series of questions and expressions of the editorial attitude of the publisher on a matter of public interest pending in the courts. Certainly the notice did not purport to separate the facts from the allegedly false statements. We cannot possibly determine from this record the statements which appellant actually contends were false.

The recognized purpose of the requirement of statutory notice to the publisher is to enable him to retract any false statements, or statements contended by the offended party to be false. It would appear that in order to meet the requirements of this statute, the notice should specify with particularity the statements in the offensive article which are alleged to be false and defamatory. See Walsh v. Miami Herald Publishing Co., Fla. 1955, 80 So.2d 669.

We find nothing in this record showing such compliance with the statute, and it is my judgment, therefore, that the notice was inadequate to sustain the complaint or to meet an essential condition precedent to the institution of the action.

TERRELL and SEBRING, JJ., concur.

HOBSON, Justice

(dissenting).

The newspaper item upon which this libel suit is brought is reproduced in the opinion of Mr. Justice THOMAS. I am in complete agreement with all of the principles of law stated in that opinion. I cannot, however, agree with the result achieved by the application of these fundamental rules to the facts of this case.

Considering the statements in this newspaper article as the “common mind’' would understand them, I cannot escape the conclusion that unethical conduct, consisting principally of making serious charges without as thorough an investigation as the ethics of the profession would demand, is clearly imputed to the plaintiff in his professional capacity. I do not believe that the “common mind” could be expected to make a shrewd and penetrating analysis of the article with a view to absolving the plaintiff from the guilt, and unfitness imputed to him.

The practice of law is not a business, but a personal right conferred by the State upon a few persons of good moral character, who are certified after long study and thorough examination by a duly appointed examining body. The obligation of an attorney to the public is as significant as his obligation to his clients. In re Clifton, 115 Fla. 168, 155 So. 324. With the emphasis upon moral fitness and public obligation which the profession demands, it follows that to ascribe unethical conduct to a lawyer is to impugn his fitness to practice his profession.

“It is ordinarily actionable to charge a lawyer with cheating or swindling, sharp practice, or with being ‘unethical,’ or engaging in unprofessional conduct, or with ignorance of the law and professional inefficiency.” 53 C.J.S., Libel and Slander, § 38 (Footnotes omitted.)

In Annotation, Libel and Slander: Defamatory Charge Relating to Conduct of Attorney in Particular Case, 144 A.L.R. 814, 817-818, numerous cases from many jurisdictions are cited holding that language employed in describing the conduct of an attorney in a particular case, as here, was actionable per se. It is stated in page 817 “in all of these cases the charge made against the attorney contained an attack against his personal integrity by alleging conduct on his part amounting to a violation of the moral laws or of his professional code of honor.”

Nothing appears in the instant case to take it out of the rules above quoted.

I believe also that the notice which was sent to the appellee herein was sufficiently specific to comply with F.S. § 770.01, F.S.A. The statute requires that the notice specify “the article, and the statements therein” alleged to be false and defamatory. The degree of particularity required by the statute, in my opinion, depends upon the character of the libel upon which suit is brought. In Walsh v. Miami Herald Publishing Co., Fla., 80 So.2d 669, we held that a notice which specified less than all of the paragraphs in a particular article was sufficient, since the matter contained in those paragraphs was actionable per se. In the present case the entire article is alleged to be defamatory, but it is from the entire article that the imputation of unethical conduct comes. The notice filed herein is therefore, to my mind, sufficient to meet the requirement of the statute. Moreover, I do not believe that we can take judicial notice of any facts not before the court in this particular case, in considering the matter now before us. To do so might be appropriate if an affirmative defense were at issue, but not where, as here, we are confronted only with the question of the sufficiency of the complaint.

For the above reasons I would hold that the complaint states an actionable claim for libel per se. Accordingly I would reverse the judgment below for further proceedings not inconsistent herewith.

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

ROBERTS, Justice

(dissenting).

This case should be reversed under the authority of Walsh v. Miami Herald Pub. Co., Fla., 80 So.2d 669, the petition for rehearing now having been denied; and further supporting a reversal is the case of Richard v. Gray, Fla., 62 So.2d 597. It is noteworthy that Mr. Justice Thomas and myself dissented in the Walsh case, and if the within opinion by Mr. Justice Thomas had been adapted to and filed as a dissenting opinion in the Walsh case I .think I would have agreed to it as a dissenting opinion. However, I can not agree with it 'now as, in my opinion, both Mr. Justice Thomas and myself, although dissenters in the Walsh case, are bound by it; and being bound by it, I feel compelled to dissent in this case.


author: THOMAS, Justice.

text:
    Joseph C. ZUKOR, Appellant, v. Herbert HILL and A. G. Garcia, Copartners, Appellees.
    Supreme Court of Florida. Division B.
    Jan. 11, 1956.

      Billie B. Bush, Tampa, for appellant.
    T. Paine Kelly, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appel-lees.
   THOMAS, Justice.

In this appeal the propriety cjf the court’s order allowing the filing of an additional plea, and the validity of a summary judgment are questioned. A chronology of the proceedings is necessary to an understanding of the points presented.

The appellant instituted an action against the appellees 10 August 1951 and motions to dismiss were made by the respective defendants the twenty-fifth and twenty-eighth of that month. Nothing further was filed for a day longer than a year and on 29 August 1952 the circuit judge dismissed the cause for want of prosecution. Later the appellant started a new suit against the appellees, obtaining service on Flerbert Hill but not on A. G. Garcia, and on 22 April 1954 he filed an amended complaint which the appellee-Hill moved to dismiss' on grounds testing the sufficiency of its allegations. After this motion was denied this appellee filed an answer setting out seven defenses-. Neither in the motion nor the answer appeared any reference to the order entered more than two years before dismissing the case for lack of prosecution.

Three months after the answer of ap-pellee-Hill was filed he obtained permission of the court to present the added defense that the dismissal for failure of the appellant to prosecute was “res adjudicata of the issues involved in this cause.” Meanwhile, the case had been docketed for trial. The history of the first case was detailed in a supporting affidavit. Upon motion of appellee-Hill the judge then entered a summary judgment against the appellant, and incorporated in the judgment an order permitting the additional defense.

We are asked whether or not the court erred in allowing the belated defense after motion and answer directed to the merits of the amended complaint and after the case was set for trial. We think we need not pause to decide whether or not the judge abused the discretion granted him under the liberal terms of Rule 15(a) of the Common Law Rules, 30 F.S.A., providing that “leave shall be freely given) when justice so requires,” because inherent in the problem we encounter is the effect of the dismissal of the original suit. To solve that problem we must determine the relationship, if any, between Common Law Rule 35(b) and Sec. 45.19, Florida Statutes 1947, and F.S.A.

Although the circuit judge did not in express language hold that the dismissal was an adjudication of the case on the merits, this is the effect of his judgment because he held that there was no dispute as to any material fact. From the plea and the supporting affidavit arose a pure question of law, that is, the effect of the dismissal.

The appellee-Hill took the position that under Common Law Rule 35(b) the dismissal amounted to an adjudication upon the merits and the judge accepted his View. That part of the rule which it is insisted affects the present case is a provision that a dismissal not mentioned in the rule — and, of course, dismissal under the statute, Sec. 45.19, supra, is not specified — “shall operate as an adjudication upon the merits” unless the court orders otherwise. This rule is not implemented by the statute and does not amend the statute by engrafting on it the power of the court to dismiss conditionally. The first case was dismissed pursuant to the statute and by the statute will the court’s ultimate action be judged.

This law requires unconditional dismissal, on motion, of a cause that has been dormant for a year and the only method of revival is a showing of good cause'within a month. We announced in Ivy H. Smith Co. v. Moccia, Fla., 59 So.2d 629, 630, -that “the order of dismissal became final and the jurisdiction of the court came to an end when the motion to reinstate was not made within one month.” We repeated the statement with emphasis In B & L Trucking Co., Inc. v. Loftin, Fla., 63 So.2d 276. The dismissal becomes absolute, then, after the passage of one month, at least, so far as the then case is concerned. This contrasts with the provision in the rule permitting conditional dismissal. In other words, when the first case was dismissed and one month passed, the court, according to these decisions, lost jurisdiction of that particular case.

The dismissal could not be considered an adjudication of the merits because the month allowed for application for reinstatement on a showing of1 “good cafise” is a period for the presentation of a valid excuse for the delay, and we do not construe the law to mean that adjudication of the merits is suspended for the grace period, and that upon its expiration an adjudication results from failure of the plaintiff to attempt revival of his action. We have held that such a dismissal under Sec. 45.19 supra, “is not a bar to a subsequent suit on the same subject matter in the absence of a statute, decision or rule of practice to the contrary.” Hassenteufel v. Howard Johnson, Inc., of Florida, Fla., 52 So.2d 810, 813. We know of no statute or decision to the contrary, and we hold that Rule 35(b) is not a rule to the contrary.

Reversed.

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


author: HOBSON, Justice.

text:
    Louise ST. GERMAIN and her husband, Rialbeau St. Germain, Appellants, v. William Harold CARPENTER, Appellee.
    Supreme Court of Florida. Special Division A.
    Jan. 11, 1956.

      Eli Breger, Miami Beach, and Harvey St. Jean, Miami, for appellants.
    F. E. Gotthardt of Morehead, Forrest, Gotthardt & Orr, Miami, for appellee.
   HOBSON, Justice.

This is an appeal by plaintiffs from judgment entered consequent upon a directed verdict for defendant in a negligence case growing out of an automobile accident.

The complaint alleged that on October 1,. 1952, defendant was the owner of a motor vehicle operated by his wife, Pauline, with his knowledge and consent; that this motor vehicle was being operated in a westerly direction, on Biscayne Drive at or near its intersection with Krome Avenue, a State highway; that plaintiff Mr. St. Germain was the .owner and operator of a motor vehicle traveling north on Krome Avenue at or near its intersection with Biscayne Drive; and that defendant,' acting by and through his wife, Pauline, negligently drove, or caused to be driven, his automobile so as to cause it to collide with plaintiffs’ automobile.

In his answer appellee admitted ownership and operation of the vehicle as described in the complaint at the time of the accident, but denied all allegations of negligence on his part, as well as all allegations pertaining to damages. Appellee also pleaded contributory negligence.

The trial court was of the opinion that defendant by this answer had admitted only the description of the defendant’s vehicle,' and not that it was being operated in a westerly direction. Appellants contend that this was error, and we agree. Under Rule 9(e) of the Florida Common Law Rules, 30 F.S.A., in effect when this action was hied, [presently Rule 1.8(e), 1954 Florida Rules óf Civii Procedure, 30 F.S.A.,] facts in a complaint’ well pleaded and not denied, other than allegations of damages,’ are deemed to be admitted. Thus defendant plainly admitted that his vehicle was being operated in a westerly direction on Biscayne Drive. It is admitted on this appeal that Biscayne Drive is a stop street.

At the closé of plaintiff’s case, the trial c.o.urt granted defendant’s motion for a directed verdict on the ground that plaintiffs had not made out a prima facie case of negligence.

At the trial it appeared. that ap-pellee’s wife, who was alone in the car at the time of the accident, had died the following day as a result of her injuries. There were no surviving witnesses to the accident except the plaintiffs (Mrs. St. Germain had accompanied her husband as a passenger). Mr: St. Germain testified that he saw a blur coming from his right (i. e., to the east of him) an instant before the impact. He testified that the Carpenter car was-being operated at great speed, and that he was going aibout 35 miles per hour when the crash occurred.

Considering the admissions made by defendant-appellee with the evidence at the trial, there was proof from which the jury could have inferred that the decedent had passed a stop sign at -great speed, had attempted to cross the intersection, and had struck the vehicle of the plaintiffs, which had been proceeding ón a State highway at a moderate speed. We think that a prima facie case of negligence was made out, and that it was error to direct a verdict for the defendant. The case is close on its facts to Dehon v. Heidt, Fla., 38 So.2d 39, which is relied upon by appellants. Appellee seeks to distinguish this case on the ground that there was circumstantial evidence as to skid marks and point of impact, whereas in the instant case there was no proof of skid marks or that the point of impact could be definitely ascertained. We, think,, however, that in view of the admissions which have been made herein, and the testimony at the trial, the case was sufficient to: go to the jury even in the absence of additional circumstantial evidence.

Appellant, Mr. St. Germain, had a' conversation with the decedent following the accident, but was not permitted to testi-' fy as to decedent’s statements during this ’ conversation. Appellants contend that exclusion of this evidence was error. The record shows, however, that an insufficient foundation was laid for the reception of this evidence as part of the res gestae, in that the extent of the time interval between the accident and the statements át'the hospital was not made clearly to appear. Moreover, the circumstances surrounding the giving of the statements sought to be introduced in evidence were not explored. Since the case must be remanded for a new trial, the plaintiffs will have another opportunity to lay a foundation in order that the trial court may determine accurately whether or not the statement may be received as part of the res gestae.

A police officer had visited the decedent at the hospital on the night of the accident, and he also had received a statement from her which’ was excluded from evidence. So' far as appears, any statement made by the decedent under these circumstances was in the nature of an accident report and it was properly excluded from evidence under F.S. Sec. 317.17, F.S.A., Stevens v. Duke, Fla., 42 So.2d 361.

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

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


author: TERRELL, Justice.

text:
    Norman KAPLAN, Appellant v. Peter S. ROTH, Appellee.
    Supreme Court of Florida. Special Division A.
    Jan. 13, 1956.
    J. Ben Watkins, of Truett & Watkins, Tallahassee, and Roland W. Granat, Miami Beach, for appellant.
    Irving Dunn, of Lowenstein & Dunn, Miami, for appellee.
   TERRELL, Justice.

Appellee instituted this action against appellant to recover damages for personal injuries received in an automobile accident. It is charged that the accident was caused by the negligence of George Mendel, an employee and agent of defendant. The answer denied negligence on the part of defendant or his agent and alleged that the sole proximate cause of the accident and injury was the negligence of the plaintiff. At the trial a verdict and judgment for $7,-‘845-was secured. This appeal is from that judgment.

In the course of an investigation of the accident by police officers, Mendel, the driver of defendant’s automobile, admitted that he was at fault for the accident. Later at a hearing in the police court in Miami Beach, Mendel again admitted responsibility for the accident and pleaded guilty to a charge of reckless driving. Mendel died before this action matured and Kaplan was not present when any of these proceedings took place. The admissions of Mendel were uncontradicted and were admitted in evidence over the objection of defendant. They were not made in Kaplan’s presence and were beyond the scope of the agent’s (Mendel’s) authority.

-To reverse the judgment, appellant relies on Stevens v. Duke, Fla.1949, 42 So.2d 361, where we approved the rule that a judgment of conviction in a criminal case should not be introduced as evidence in a civil action to establish the truth of the facts on which it was brought. In Moseley v. Ewing, Fla.1955, 79 So.2d 776, this rule was extended to include any questions which-were directed to defendant during the course of the civil trial relative to his conviction in the criminal case growing out of the accident. See also Myrick v. Lloyd, 158 Fla. 47, 27 So.2d 615.

The controversy centers around the interpretation of these cases, including Sec. 317.17, Florida Statutes, F.S.A. We are of the view however, that the judgment must be reversed on authority of the cases cited. See also Herbert v. Garner, Fla.1955, 78 So.2d 727. Section 317.17, Florida Statutes, F.S.A., forbids the use in evidence at any trial, civil or criminal, of reports of an accident made by the person involved to the Department of Public Safety. We cannot escape the conclusion that the doctrine of the cited cases and the cited statute was violated.

It is also contended that the verdict was excessive but since the cause is reversed for other reasons, it becomes unnecessary to discuss this question.

The judgment is, therefore, reversed and a new trial awarded.

Reversed.

DREW, C. J., HOBSON, J., and STANLY, Associate Justice, concur.


author: THORNAL, Justice.

text:
    In re ESTATE of Wm. F. ZIMMERMAN, Deceased. T. G. MIXSON et al. Appellants, v. Roland ZIMMERMAN et al., Appellees.
    Supreme Court of Florida. Special Division A.
    Jan. 13, 1956.
    W. K. Zewadski, Holland, Betts & Holland, St. Petersburg, and Whitaker, Whitaker & Terrell, Tampa, for appellants.
    J. F. Baya, Tarpan Springs, and Hill, Hill & Dickenson, Tampa, for appellees.
   THORNAL, Justice.

The proponents of the last will and testament and codicil of Wm. F. Zimmerman appeal from an order of the Circuit Judge affirming an order of the County Judge denying probate of the will and codicil on the ground that at the time the documents were signed, the decedent lacked testamentary capacity.

Common to cases of this kind, the record is voluminous. This one is perhaps unusually so. Indicating the energy and ingenuity with which counsel for the respective parties advocated the causes of their clients, there have been filed in this court 10 folios of testimony, consisting of 3,005 typewritten pages; depositions of witnesses were taken in Manchester, Iowa, New Orleans, Louisiana, Miami Beach, Florida, and Council Bluffs, Iowa; 13 volumes of the daily reports of a particular police officer; 342 pages of legal cap summarizing point by point and item by item the life history of the decedent from the time of his birth on August 2, 1872 until he died at the age of 82, on August 8, 1951; the original record of the probate court consisting of 119 pleadings and documents; the testimony of 106 witnesses; and literally hundreds of exhibits, many of them consisting of almost innumerable composite parts. We make reference to the size of this record to indicate that this cause was obviously strenuously contested, both in the probate court and on appeal before the circuit judge. The order of the probate judge denying the probate of the will and codicil and finding that the decedent was lacking in testamentary capacity at the time of the signing of the documents indicates to this court a thorough, conscientious and almost minute analysis of the testimony and the arguments offered by counsel.

The probate judge heard all of the witnesses, except those who testified by deposition, and, as we have observed in similar' cases, he was in a much better position than we are to evaluate the effect of their testimony, and fit into the complex puzzle that confronted him the various pieces that went to make up the entire picture. Many of the witnesses he apparently knew personally or by reputation; he had an opportunity to view their reactions and the directness or apparent lack of sincerity of particular witnesses in giving their replies to questions. Through his direct contact with the case he was in a position to carry in his own mind the continuity of events as they unfolded before him on the witness stand. In fact, this record in our judgment clearly justifies the application of the rule which we have consistently followed that we will not interfere with the findings of fact or the conclusions of law reached by the probate judge on the basis of such factual findings unless there is an absence of substantial competent evidence to support the findings or the trial court misapprehends the legal effect of the evidence as a whole.

The circuit judge who heard the appeal likewise obviously gave thorough consideration to this record and, according to his order, heard oral arguments of counsel for the better part of three days. As an appellate judge, he properly followed the previous pronouncements of this court in adhering to the rule which we have above summarized.

An examination of the record before us, despite its complexity and taking into consideration the merits of the analysis of the facts as well as the principles of law so ably advanced by counsel for all of the parties, leads us again to the conclusion that there is adequate evidence to support the result reached by the probate judge and that there is no basis in this record for any conclusion on our part that he misinterpreted the legal effect of the evidence as a, whole. This obviously leads to the further conclusion that in approving the order of the probate judge, the circuit judge ruled correctly. See In re Eberhardt’s Estate, Fla.1952, 60 So.2d 271; In re Wilmott’s Estate, Fla.1953, 66 So.2d 465; In re Kiggins’ Estate, Fla.1953, 67 So.2d 915; In re Baldridge’s Estate, Fla.1954, 74 So.2d 658; In Matter of Estate of Lizzie Thompson, Fla., 84 So.2d 911.

Despite the prodigious record and briefs lodged in this court, the kernel of appellants’ contention is that the testator, Wm. F. Zimmerman, had testamentary capacity at the time he executed his will of January 5, 1949, and the codicil thereto of December 22, 1949. Appellants who are the proponents contend that Hooper v. Stokes, 107 Fla. 607, 145 So. 855, 146 So. 668, rules the instant case, while appellees contend that it is ruled by Newman v. Smith, 77 Fla. 633, 667, 688, 82 So. 236. It is true that there are parallels in these cases to the case at bar but it is also true that it contains • aspects that distinguish it from them.

A study of the pertinent cases reveals that the precise conditioii of the testator’s mental health at the time he executed his will may be established in more ways than one. It may be established by direct proof as to its condition when the will was executed or it may be established by inferences from proof of his mental condition leading up to and following the execution of the will when such proof is properly related and connected. The evidence shows that the testator was afflicted with arteriosclerosis, a progressive disease of the arteries which seriously affects and may ultimately dethrone the reason, judgment and power of the victim to bear in mind the status of his property or those who would be the natural subjects of his bounty. The evidence here shows that sometime in 1947 or 1948 the testator was in a serious condition as a result of this affliction. What the condition of his mental health was when he executed his will and codicil in 1949 was the immediate problem confronting the probate court. “Before hand” and “afterward” proof of the testator’s mental behavior would certainly be a lead to this and would be proper for the court to consider in making up his judgment as to whether or not the will was made during a lucid interval as appellants contend or whether it was made when the mind was incompetent to .do so.

Then there are other factors that the court could take- into consideration. The fact that the will and the'codicil were unnatural in that it virtually disinherited the testator’s children (gave them $50' each) and named 32 beneficiaries and the codicil 35, some of whom were casual acquaintances and had no claim on the testator’s bounty, one of whom never existed, another was a college that had ceased to exist, others had never been in his home or he in theirs. “Spells,” escapades and insane delusions before and after execution of the will and codicil were recounted to support the court’s judgment that both were the product of a mind devoid of testamentary capacity. The environment out of which such evidences emanated determine their probative value but it is the court’s prerogative to weigh them and determine this. There is in fact so much in the record that supports the - finding of the probate court that to reverse him would amount to nothing more than substituting our judgment for his on a matter exclusively within his province which we are not authorized to do. Gardiner v. Goertner, 110 Fla. 377, 149 So. 186; In re Starr’s Estate, 125 Fla. 536, 170 So. 620; In re Wilmot’s Estate, Fla.1953, 66 So.2d 465; Hooper v. Stokes, 107 Fla. 607, 145 So. 855, 146 So. 668.

In this determination we have not overlooked the force of Appendices 1 and 2 of appellants’ brief. Appendix 1 having to do with activities of the testator from the cradle to the grave and Appendix 2 relating to testimony before the probate court in the case of In re Garrett’s Estate, Fla.1952, 60 So.2d 281, which, among others, approves the well settled rule that the finding of the probate court affirmed by the circuit court in a will contest is conclusive on appeal unless clearly erroneous or against the manifest weight of the evidence. Appellants contend that the testator was sane except when confined to St. Joseph’s Hospital several days in 1949. The probate judge did not so find and we find ample support for his finding. We find very little support'for the lucid interval contention but we find ample support for the finding of the probate court and feel impelled to uphold his finding and judgment which was approved by the circuit court.

The cause has been thoroughly considered and finding no error, the order appealed from, the decree of the Chancellor, is

Affirmed.

DREW, C. J., TERRELL, J., and DICKINSON, Associate Justice, concur.


text:
    F. G. VOSS, Appellant, v. A. E. FORGUE, Appellee.
    Supreme Court of Florida. Special Division A.
    Jan. 4, 1956.
    Noble C. Doss, ’Gulfport, for appellant.
    Charles J. Schuh and Son, St. Peters-burg, for appellee.
   TERRELL, Justice.

Prior to May IS, 1954, appellee acquired title to Lots 14 and 15, Block 1, F. J. Burn’s Realty Company’s Replat as recorded in the Public Records of Pinellas County. Appellant acquired title to Lot 16, Block 1, same subdivision. On or about May 15, 1954, appellee secured a building permit to construct a dwelling on Lot 15 and immediately commenced construction on Lot 16, thinking he was on Lot 15. On June 16, 1954, he discovered his mistake and undertook to purchase Lot 16 from the owner but continued construction of the dwelling. July 8 he received notice from the owner to do so and suspended construction.

Appellee then filed suit in equity alleging the mistake and prayed that appellant be permitted to purchase the improvements placed on Lot 15 at a fair value or to convey said lot to appellee at its reasonable value. An answer was tendered denying. the material allegations of the complaint and praying that defendant be awarded the improvements without compensation to the plaintiff, or in the alternative, that the plaintiff be required to remove all improvements from the property. At final hearing the chancellor ordered appellant to convey all his right, title and interest in Lot 16 to appellee and that appellee convey all his right, title and interest in Lot 15 to appellant. The final decree also ordered plaintiff to pay defendant $150 and court costs. We are confronted with an appeal from this decree.

The question for determination challenges the correctness of the chancellor’s decree.

Appellant contends that this question should have a negative answer because the action was non-statutory, that appellee was grossly negligent in looking to the location of his property, that he did not have color of title to Lot 16 and there was complete absence of fraud or acquiescence with knowledge on the part of the true owner. This contention is supported by the common law rule, the effect of which is that improvements of a permanent nature placed on or attached to land without the consent of the owner, become part of the realty and title thereto is vested in the owner. McCreary v. Lake Boulevard Sponge Exchange Co., 133 Fla. 740, 183 So. 7. See also Annotations, 81 Am.St.Rep. 166.

We have, not before been called on to adjudicate this point but investigation reveals respectable authority both ways, depending largely on the circumstances and the equities shown in the particular case. Our attention is directed to what appellant contends to be the majority rule in 104 A.L.R. 580, as follows:

“In a bare majority of the jurisdictions of this country wherein the question has clearly received consideration, support has been given to the rule that, not even in equity can one who has made • improvements on the land of another, believing himself to be the owner, recover therefor, as plaintiff, where the owner has been guilty of no fraud, or acquiescence with knowledge, or other inequitable conduct.”

Appellant also calls our attention to what he contends the same authority (104 A.L.R. 588) designates as the minority rule as follows:

“Even in the absence of fraud, acquiescence with knowledge, or other inequitable conduct on the part of the owner of land, one who, mistakenly believing himself to be the owner, in good faith makes improvements on premises, may, as plaintiff, recover therefor, by way of lien or otherwise, where the circumstances render such relief just and equitable.”

An examination of 19 Am.Jur., Equity, Secs. 33 and 47, 3 Pomeroy’s Equity Jurisprudence, Improvements, Sec. 856b (5th ed.), the cases cited in 104 A.L.R., supra, and others discloses that equitable considerations have generally controlled the disposition of such cases. It is true that equity will -not always relieve one from the result of this carelessness, negligence, or laches. The rule approved by the best considered cases is that the neglect, carelessness or acquiescence with knowledge must be in contravention of a positive legal duty.

In this case appellee was notified after more than a month that he was building on land that belonged to appellant but at the time he had hundreds of dollars worth of material on the land and the building was near completion at a cost of $8,500 to $11,000 as found by the chancellor. The chancellor also found that Lots 15 and 16 were of substantially the same value, that they were adjacent, that ap-pellee was innocent of wrongdoing and that he should not be required to forfeit his expenditure. There is no contention that either of the lots had any peculiar or intrinsic value. We do not approve appel-lee’s carelessness or laxness in looking to the location of his lot but there is no showing that appellant was- harmed and being so we find no good reason to reverse the chancellor.

His decree is, therefore, affirmed.

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


text:
    Helen MESZAROS and Leo Bonifay, Appellants, v. J. Edwin HOLSBERRY, as Administrator of the Estate of Augusta Petry, deceased, et al., Appellees.
    Supreme Court of Florida. Special Division A.
    Jan. 4, 1956.
    Coe & Coe, Pensacola, for appellants.
    Fisher & Hepner, Pensacola, for appel-lees. • ' -
   THORNAL, Justice.

Appellants who were plaintiffs below seek reversal of a decree of the Chancellor construing a will.

• The salient provisions of the will involved are the following:

“We, Jacob J. Petry and Augusta Petry, husband and wife, of the county and state above written, being of sound and disposing mind and memory, mindful of the uncertainties of life and the certainty of death, and in anticipation of death by a common disaster, do hereby malee, publish and declare this to be our mutual last will and testament, hereby revoking all wills and codicils by us and either of us heretofore at any time made.
“The undersigned, husband and wife, are cognizant of and satisfied with the provisions of the Laws of Descent and Distribution of the State of Florida and it is the intent and desire of the undersigned that this will is to be effective •only upon and to cover only death of both the undersigned by a common disaster and if either of the undersigned shall survive the other for a period of more than one calendar month then the provisions of this will are to be void and of no force and effect whatsoever.
1.
“In the event death do occur to the both of us simultaneously in a common disaster or in the event one of us should not survive the other for a period of more than •one calendar month, but not otherwise, we make the following legacies, devises and bequests, to-wit (Emphasis ours.)

(Here follow certain devises and bequests.)

Jacob J. Petry died from natural causes and sixteen days later was followed in death by his widow, Augusta Petry, also from natural causes. If the will from which we have quoted above became effective, appellant, Mrs. Meszaros, would be a substantial beneficiary and appellant, Bonifay, would be the Executor. If the will did not take effect, then both Mr. and Mrs. Petry died intestate and under the laws of descent, Mrs. Petry inherited all of his property and upon her death, all of the property descended to various relatives which do not include Mrs. Meszaros, and Mr. Bonifay would not be the personal representative.

The Chancellor construed the will as being conditional to the extent that he determined that the testators intended that the will should become effective only upon their simultaneous deaths, resulting from a common disaster, or their deaths likewise produced by a common disaster but resulting within thirty days of each other. In other words, he held that in order for this will to take effect a common disaster must have been the cause producing death of both parties. Inasmuch as the parties died from natural causes even though within thirty days of each other, the Chancellor concluded that the will did not take effect and that therefore Mrs. Meszaros is not a beneficiary of the estate and Mr. Bonifay is not the personal representative.

After a careful examination of the will, we have concluded that the Chancellor ruled correctly and must be affirmed. Admittedly, the will is in some respects unusual and possibly on a casual examination one might be led to the conclusion that the effectiveness of the will was subject to either one of two alternative conditions; that is, either death from a common disaster or death of both testators from any cause occurring within thirty days of each other. However, a more cautious scrutiny of the will seems to lead inescapably to the conclusion that the testators were providing for disposition of their estate in accordance with this will solely “in anticipation of death by a common disaster” as they themselves stipulated.

Appellant urges that the language contained in paragraph numbered “1.” of the will was in the alternative rather than the conjunctive and that one of the alternative conditions has occurred with death of the wife within one calendar month of the husband. They then contend that this is the last provision of the will indicating the testamentary intent and that under recognized rules of construction, it should control prior provisions inconsistent therewith. While the rule contended for by the appellants has its application in its proper place, we cannot agree that it is applicable to the matter before us.

Admittedly, in construing a will, the guiding light is the intent of the testator. Furthermore, it is equally well settled that the intent of the testator should be ascertained by a consideration of the entire instrument and not some isolated segment of the document. Lowrimore v. First Savings & Trust Co. of Tampa, 102 Fla. 740, 140 So. 887, 891; In re Williams’ Estate, Fla.1952, 59 So.2d 13.

While the rule contended for by the appellants might be applicable where two provisions of a will are completely and hopelessly irreconcilable, it has no place in the construction of a will if it is at all possible to reconcile and harmonize apparently conflicting clauses. When faced with provisions of a will seemingly in conflict, it is the responsibility of the court to harmonize the conflicts in order to give full measure to the testamentary intent if harmony is possible and within the bounds of reason. In re McMillan’s Estate, 158 Fla. 898, 30 So.2d 534.

Applying these rules to the will before us it is perfectly clear from the introductory paragraph that the will was executed “in anticipation of death by a common disaster”. By the second unnumbered paragraph the joint testators expressed their satisfaction with the laws of descent and again stated that it was their intent and desire that the will be effective “only upon and to cover only death of both the undersigned by a common disaster and if either of the undersigned shall survive the other for a period of more than one calendar month * * * ” the will should not take effect. Up to this point the will is clear and unequivocal. Like the Chancellor, we are of the view that this unequivocal introductory expression of the intent permeates the remainder of the will. The language of paragraph numbered “1.” does not in any way militate against this view. Bearing in mind the intent expressed in the introductory paragraph, it then becomes apparent that the use of the alternative “or” in paragraph numbered “1.” does not detract from the conjunctive requirements of the remainder of the will.

By paragraph “1.” it was clearly intended that the disposition that followed was to be made only upon the event of the deaths of the testators in a common disaster either simultaneously or within one calendar month of each other both as a result of a common disaster. Necessity for a common disaster, however, controls both alternatives and without death resulting from a common disaster, either simultaneously or within a calendar month, the testamentary disposition of the estate could not come into being.

Finding that the Chancellor ruled correctly, his decree is therefore affirmed.

DREW, C. J., TERRELL, J., and DICKINSON, Associate Justice, concur.


author: ROBERTS, Justice.

text:
    FLORIDA HOTEL AND RESTAURANT COMMISSION and Richard Edgerton, as and constituting the Florida Hotel and Restaurant Commission, Petitioners, v. MARSEILLES HOTEL CO., a Florida corporation, Respondent.
    Supreme Court of Florida. Special Division B.
    Jan. 4, 1956.

      Richard W. Ervin, Atty. Gen., James L. Graham, Jr., Asst. Atty. Gen., and Edward J. Nelson, Sp. Asst. Atty. Gen., for petitioners.
    Alexander S. Gordon, Ader & Young and Rivkind & Marger, Miami Beach, for respondent.
   ROBERTS, Justice.

We here review on certiorari an order of the lower court denying a motion to dismiss a complaint for a declaratory decree and injunctive relief filed in the lower court by the Marseilles Hotel Co., respondent here and plaintiff below. The facts are, briefly, as follows: One Herman L. Berr, an employee of the Marseilles Hotel, was arrested for allegedly taking bets on the hotel premises and has been charged with a violation of our gambling laws. The Florida Hotel and Restaurant Commission, petitioner here and defendant below, then initiated proceedings against the Hotel under Section 511.051, Fla.Stat.1953, F.S.A., to revoke the Hotel’s license on various grounds, including a charge that the Hotel “did knowingly give space in said hotel for gambling purposes, in that one Herman L. Berr, an employee of said hotel, was knowingly permitted and suffered to take bets and wagers” on the Hotel premises. The Hotel filed the instant suit, labelled a “Complaint for Declaratory Decree, Injunction and other Relief”, to enjoin the Commission from holding a hearing on its Rule to Show Cause issued against the Hotel, basing its right to such relief on the fact that Berr had advised its counsel that, at such hearing, he would refuse to testify as to the Hotel’s knowledge of his gambling activities under a plea of self-incrimination and alleging that to have the hearing without the testimony of such witness would deny to it due process of law. The lower court granted a temporary injunction and denied the Commission’s motion to dismiss the complaint. It is this order that we review on the Commission’s petition for the writ of certiorari.

No cases have been cited by counsel for the respondent Hotel in support of his contention that the injunctive, processes of the lower court may properly be set in motion in the circumstances here present and, indeed, we think that none could be found. The provisions for judicial review of an order of revocation of a hotel license provided by the statute, Section 511.05, Fla.Stat.1953, F.S.A., are adequate to protect the Hotel against a denial of due process of law even if it be assumed, ar-guendo, that the Hotel would be denied this constitutional guaranty if compelled to defend the Rule to Show Cause without the testimony of Berr.

Nor can the Hotel gain admittance into our equity court via the “declaratory relief” route. To be entitled to such relief, the moving party must show a doubt as to the existence or nonexistence of some right, status, immunity, power or privilege. Bryant v. Gray, Fla., 1954, 70 So.2d 581. No such doubt is alleged, and it is clear that the real and only purpose of the suit was to enjoin the hearing on the Rule to Show Cause. This court “cannot permit an unauthorized extension of the Declaratory Decree Statute to a point where it might be substituted for another normally appropriate action in the absence of a bona fide foundation for a declaratory decree as contemplated by Sec. 87, Florida Statutes, 1941, F.S.A.” Bowden v. Seaboard Air Line R. Co., Fla.1950, 47 So.2d 786, 787.

We hold, then, that no cause of action for injunctive or declaratory relief was stated and that it was error to deny the Commission’s motion to dismiss the complaint.

Certiorari is granted and the order denying the motion to dismiss is quashed, with directions to dismiss the complaint.

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


author: PER CURIAM.

text:
    GEORGIA-FLORIDA MOTOR EXPRESSS COMPANY, a corporation, Appellant, v. James F. USHER, a minor, by his next friend, Newton D. Usher, Appellee.
    Supreme Court of Florida. En Banc.
    Jan. 6, 1956.
    T. Malcolm Kirby and Howell & Howell, Jacksonville, for appellant.
    Walter G. Arnold, Jacksonville, for ap-pellee.
   PER CURIAM.

Affirmed on authority of Merchants’ Transportation Company v. Daniel, 109 Fla. 496, 149 So. 401; Povia v. Melvin, Fla.1953, 66 So.2d 494; Miami Transit Co. v. Karses, 146 Fla. 163, 200 So. 372; also Miller v. Ungar, 149 Fla. 79, 5 So.2d 598; Brandt v. Dodd, 150 Fla. 635, 8 So.2d 471.

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

THOMAS and O’CONNELL, JJ., dissent.

ROBERTS, J., not participating.'


text:
    TRUEMAN FERTILIZER COMPANY, a Florida corporation, Appellant, v. Hans J. STEIN, as Administrator of the Estate of Hans Stein, deceased, Appellee.
    Supreme Court of Florida. Division A.
    Jan. 6, 1956.
    Chas. J. Regero and Fred S. Rizk, Jacksonville, for appellant.
    E. M. Baynes and Sam D. Phillips, Jr., West Palm Beach, for appellee.
   TERRELL, Justice.

This appeal is from a final judgment secured by the plaintiff, appellee, against defendant, appellant, in an action for malicious prosecution. A large record and briefs have been lodged here and considered but the facts and gravamen out of which the case arose were adequately summarized in the order of the trial court disposing of the motion for new trial and are as follows:

“The theory of plaintiff’s claim is that defendant brought successive civil actions against plaintiff upon the same cause of action, after a previous adverse decision had been rendered which should have then and there settled the controversy. See Shedd v. Patterson, 302 Ill. 355, 134 N.E. 705, 26 A.L.R. 1004; Annotation 26 A.L.R. 1008.

“Plaintiff’s complaint charges that the following civil actions, lately pending in the Circuit Court of Palm Beach County, were prosecuted maliciously and without probable cause, and that each terminated in plaintiff’s favor: C.L. 9190; C.L. 13,105; Ch. 22,292, and Ch. 23,716.

“By an amendment to the complaint, plaintiff further charged that after this action had been brought for malicious prosecution, defendant initiated a proceeding in C.L. 9190 to amend the final judgment entered therein, and that the attempt to so amend the final judgment likewise terminated in plaintiff’s favor. It is not charged that defendant acted in that particular effort maliciously or without probable cause. (R-737)

“In addition to the several suits thus mentioned in the complaint as amended, two others were referred to by the plaintiff at the pretrial conference, viz., C.L. 11,319 and C.L. 11,601.

“The circumstances leading up to the bringing of this action for malicious prosecution stated in historical order are:

“On October 28, 1940, Trueman Fertilizer Company brought an action at law against Hans J. Stein, as Administrator of the Estate of Hans Stein, deceased, upon a promissory note given by the intestate during his lifetime. Final judgment in favor of Trueman Fertilizer Company was entered June 30, 1941. This case is identical [sic] as C.L. 9190. The sheriff levied execution upon certain real estate which had been previously sold, pursuant to an order of the County Judge, to Fritz Stein, brother of Hans J. Stein.

“On August 3, 1942, Fritz Stein and his wife brought a suit in Chancery against L. R. Baker, as Sheriff of Palm Beach County, and Trueman Fertilizer Company, to enjoin the execution sale of such real estate. This case is identified as Ch. 17,689.

“On November 13, 1942, Trueman Fertilizer Company filed a counterclaim in that action seeking to have the conveyance of the real estate to Fritz Stein vacated on the ground of fraud and misconduct of Hans J. Stein as Administrator. On August 16, 1945, the Circuit Court entered a final decree granting a permanent injunction, and dismissing the counterclaim. An appeal was taken to the Supreme Court of Florida by Trueman Fertilizer Company, and the Decree was affirmed July 19, 1946. See Trueman [Fertilizer Co.] v. Stein, 157 Fla. 769, 26 So.2d 893.

“On August 27, 1946, Trueman Fertilizer Company brought suit in Chancery against Fritz Stein and wife, Hans J. Stein, individually, and as Administrator, Emil Stein, and Mrs. J. C. Cherry, seeking substantially the same relief, and upon the same grounds, as stated in the counterclaim filed by Trueman Fertilizer Company in Ch. 17689. This action is identified as Ch. 22,-292. On January 7, 1947 the Circuit Court dismissed the action and Trueman (R. 738) Fertilizer Company took an appeal to the Supreme Court of Florida. The Order of Dismissal was affirmed April 3, 1947. See Trueman Fertilizer Co. v. Stein, 159 Fla. 131, 30 So.2d 548.

“On July 17, 1947, Trueman Fertilizer Company brought another suit in Chancery against Hans J. Stein individually and as Administrator, and Fidelity and Casualty Company of New York. By this suit True-man Fertilizer Company sought an accounting. The issues presented by the pleadings were new and somewhat different from previous suits between the parties. This action is identified as Ch. 23,716. On December 17, 1947 the action was dismissed, and Trueman Fertilizer Company appealed to the Supreme Court of Florida. The Order of Dismissal was affirmed July 16, 1948. See Trueman [Fertilizer Co.] v. Stein, 160 Fla. 789, 36 So.2d 449.

“On March 29, 1949, Trueman Fertilizer Company brought an action at law in the name of Fuller Warren as Governor of the State of Florida against The Fidelity and Casualty Company of New York. This action is identified as C.L. 11,319. It was a suit on the Administrator’s bond of Hans J. Stein, but the latter was never made a party to the suit and took no part therein. The action was dismissed July 20, 1949. An appeal was taken by Trueman Fertilizer Company to the Supreme Court of Florida. The appeal was dismissed November 21, 1949. See Warren v. Fidelity, etc., Co., Fla., 43 So.2d 719.

“On September 21, 1951 Trueman Fertilizer Company filed a motion in C.L. 9190 to disallow certain credits claimed by Stein as Administrator and to surcharge him because of misconduct and maladministration of the estate. On October 25, 1951 the Circuit Court denied the motion, and True-man Fertilizer Company appealed to the Supreme Court of Florida. The Order of Dismissal was affirmed June 3, 1952. See Trueman [Fertilizer Co.] v. Stein, Fla., 59 So.2d 365. (R-739)

“On July 31, 1952 Trueman Fertilizer Company brought an action at law against Hans J. Stein as Administrator, and The Fidelity and Casualty Company of New York. This action is identified as C.L. 13,-105. The complaint charged misconduct of Stein as Administrator substantially as charged in the motion to surcharge him previously filed in C.L. 9190. On October 16, 1952 the action was dismissed, and Trueman Fertilizer Company appealed to the Supreme Court of Florida. The appeal was dismissed January 5, 1953. See Warren v. Stein, Fla., 64 So.2d 792.

“On March 11, 1953 Trueman Fertilizer Company filed another motion in C.L. 9190 to amend the Final Judgment entered therein June 30, 1941. The motion was based on the ground that the original judgment should have been ‘a judgment de bonis properis’. On July 10, 1953 the motion was denied by the Circuit Court, and Trueman Fertilizer Company appealed to the Su^ preme Court of Florida. The appeal was dismissed September 17, 1953. See True-man [Fertilizer Co.] v. Stein, Fla., 71 So.2d 913.

“The remaining cause mentioned at the pretrial conference, viz., C.L. 11,601,. can have no bearing on this controversy. It was an appeal by Trueman Fertilizer Company from a judgment of the County Court of Palm Beach County, in a suit brought in the latter court upon the injunction filed ■by the plaintiff in Ch. 17,689. The appeal was determined favorably to Trueman Fertilizer Company by a reversal of the Judgment of the County Court.

“When the several suits mentioned in the complaint are carefully analyzed, it will be found that only two of them, viz., Ch. 22,292 and C.L. 13,105 fall in the category of ‘successive suits against the same person upon the same cause of action,’ brought after a previous adverse decision which should have ended the controversy. There is insufficient evidence to support a finding that the other suits were brought ‘without probable cause.’ (R-740)

“In such state of the record, the verdict is excessive.

“Thereupon, it is ordered and adjudged that if the plaintiff shall, within 10 days after the date hereof, enter a remittitur in the sum of $2,000.00, the verdict will stand for $2,325.00, otherwise a new trial is granted on the question of damages alone.”

The remittitur was entered as ordered and final judgment proceeded accordingly, from which the appeal was prosecuted. We have given thorough consideration to the questions raised, but in view of the long and vexatious period it continued and the various aspects it developed, we think there was a sound predicate for the judgment entered.

It is, therefore, affirmed.

Affirmed.

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