text:
    Emit MULDROW v. Sam JONES.
    No. 20530.
    Court of Appeal of Louisiana. Orleans.
    March 5, 1956.

      George Brooks, New Orleans, for plaintiff-appellant.
    Henry P. Dart, III, New Orleans, for defendant-appellee.
   JANVIER, Judge.

This litigation results from ill-feeling between two members of a church group. Apparently a fund was raised for the construction of a church building. The plaintiff, Emit Muldrow, was selected as one of the members of a building committee. On August 5, 1952,' he filed an affidavit in the Criminal District Court for the Parish of Orleans, as a result of which criminal proceedings were instituted against the defendant, Sam Jones, and in the said affidavit Jones was charged with wilfully and unlawfully violating “[LSA-] Rev.Stat. 14 — 47, relative to defamation of Emit Muldrow by spoken words.”

After a trial the said Sam Jones was acquitted on March 30, 1953. In the meantime, on June 5, 1952, the said Emit Mul-drow had filed this civil suit for damages ag'ainst Sam Jones, charging that the said Jones had publicly defamed him by charging that “Muldrow is building his house with Church money.” Muldrow, in this civil suit, prayed 'for judgment against Jones in the sum of $2,500.

In answer to this charge Jones denied that he had slandered Muldrow and, by reconventional demand, charged that Mul-drow had instituted the criminal proceedings against him and had filed the civil suit against him purely as the result of malice a.nd without probable cause, and he prayed for ■ judgment in reconvention against Muldrow in the sum of $1,250.

The matter was called for trial on various occasions — we are told by counsel, nine in all, and in no one of them did the plaintiff, Muldrow, appear. Finally, the Judge of the Civil District Court insisted that the matter be tried and since, even on this occasion, Muldrow was not present, a trial was had in his absence.

In addition to the documents showing the criminal affidavit and charge, the only evidence adduced was the testimony of Jones and the testimony of the pastor of the church. Judgment was then rendered dismissing the suit of Muldrow and in favor of Jones, plaintiff in reconvention, and against Muldrow in the sum of $450. From this judgment Muldrow has appealed.

As we have stated, there is no testimony in the record except that of Jones and the pastor. Jones states that at no time did he make any slanderous remarks against Muldrow, and the pastor of the church stated that he knew of no reason for the charge which Muldrow made against Jones.

When the matter was heard before us the only contentions made in behalf of the appellant are: (1) that the claim in recon-vention bears no relationship to and does not grow out of the main demand, and (2) that the claim in reconvention is premature since it was filed before the main demand had terminated unfavorably to the plaintiff therein and since it was also filed before the criminal charge against Jones had been dismissed by a verdict of not guilty.

As we view the matter, the claim in reconvention is rather closely related to the claim which is presented by the main demand. The main demand for damages for slander is based on the charge that the remarks referred to were made, whereas the demand in reconvention is based on the allegation that the charges made in, the main demand and in the affidavit which initiated the- criminal .prosecution, were made with malice and without probable cause.

The question which is presented by the contention that the reconventional demand is premature in that, when it was filed, neither the civil suit nor the criminal prosecution had terminated favorably to the plaintiff in reconvention, is a very interesting one.

There is, of course, no doubt that a claim for damages for malicious prosecution, whether civil or criminal, cannot be successful unless it is made to appear that there has been a dismissal of the proceeding which is pointed to as having been prosecuted with malice and without probable cause.

In Glisson v. Biggio, 141 La. 209, 74 So. 907, 910, the Supreme Court said:

“Plaintiff does not allege in his petition that the suit for impeachment and removal from office had terminated favorably to him. This was a necessary allegation; and the proof in the record does not show that the dismissal of the cause was a judgment favorable to the plaintiff, or an abandonment of the prosecution thereto. * * * ”

It is certain therefore that, since neither the civil action against Jones, nor the criminal prosecution which had been instituted against him had terminated favorably to him, when he filed the recon-ventional demand had the civil action been tried promptly and before the termination of the criminal prosecution, the defendant in reconvention, by a plea of prematurity or by objection to evidence, could have prevented the consideration of the recon-ventional demand since neither the prosecution nor the civil action on which the reconventional demand was based had at that time terminated favorably to plaintiff in reconvention. However, because of delay resulting from the failure of Mul-drow, the defendant in reconvention, to appear at the several fixings of the civil suit and the continuance which resulted when that matter was finally tried, the criminal prosecution had terminated favorably to Jones. Because of the then existing status .of > the litigation, we find most interesting a decision of our Supreme Court in Wolf v. Royal Ins. Co. of Liverpool, Eng., 130 La. 679, 58 So. 507. The result arrived at there is accurately and tersely set forth in Dart’s. Louisiana Digest, Malicious Prosecution, Vol. 11, sec. 12, p. 240, as follows:

“Where the same matter is made the subject of a civil action and of a criminal action, an'action for damages for malicious prosecution will lie after the .acquittal of the accused.”

As we read the opinion in that case it appears to be a holding that where, as here, a suit for damages for malicious prosecution is based on a civil action as well as on a criminal prosecution, and where, as here, there has been a dismissal of the criminal prosecution, the suit for malicious prosecution may be successfully prosecuted even though the civil action on which it is partially based has not yet terminated.

We feel that, since the civil action had not then terminated and, in fact, has not yet terminated since it is now before us on appeal, no part of the claim of Jones can be based on the charge that the civil action instituted by Muldrow was with malice and without probable cause, but we feel equally certain that that part of the claim which is based on the criminal prosecution, which has terminated successfully, may be made the basis of the claim of Jones for damages. The fact that it had not terminated favorably when the reconven-tional demand was filed is, we think, no longer of importance.

The amount allowed to Jones as damages is not excessive. He was caused considerable embarrassment and there is no evidence to contradict his statement that his business was to some extent harmed, and both he and the pastor of the church testified that apparently there was no reason whatever for the charges which Mul-drow made against him.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.


source: Caselaw Access Project

author: REGAN, Judge.

license: Public Domain

text:
    John WASHINGTON v. ATLANTIC & GULF STEVEDORES, Inc., et al.
    No. 20670.
    Court of Appeal of Louisiana. Orleans.
    March 5, 1956.
    Rehearing Denied March 19, 1956.
    Writ of Certiorari Denied May 7, 1956.
    See also, La.App., 84 So.2d 745.
    Claude F. Kammer, New 'Orleans, for plaintiff-appellant.
    Christovich & Kearney, A. R. Christo-vich, Jr., New Orleans, for defendant-appellant.
   REGAN, Judge.

Plaintiff, John Washington, employed as a longshoreman, instituted this suit against the defendants, Atlantic & Gulf Stevedores, Inc., his employer, and The Fidelity and Casualty Company of New York, the insurer thereof, endeavoring to recover workmen’s compensation at the rate of $30 per week for a period of 300 weeks, together with $1,000 for medical expenses, 12% of the amount of the judgment as penalties and $1,000 as attorney’s fees, for “total and permanent” or “permanent partial disability” caused from injuries incurred on April 16, 1954.

Defendants answered and admitted the occurrence of the accident and resulting injuries to plaintiff’s "abdominal region”, but asserted that as of May 17, 1954, he had fully recovered from the effects thereof; that the amount of compensation paid to him prior to “the medical discharge to return to work amounted to 3% weeks compensation at $30.00 per week or $95.00 and $147.25 in medical payments” which was all the compensable disability benefits that plaintiff was legally entitled to receive.

From a judgment awarding plaintiff compensation at the rate of $30 per week for a period of 24 weeks, together with 20% attorney’s fees, both plaintiff and defendants have prosecuted this appeal.

The record reveals that on the day of the accident the plaintiff was actively engaged in transporting heavy bales of burlap on a hand truck. In attempting to unload the truck a bale fell back upon the truck causing the handle thereof to strike him in the right abdominal region which simultaneously pushed his back against a “stack of burlap.” A short time thereafter he endeavored to resume work but his injuries caused him to decide to return to his home. He was then given a “slip” authorizing him to procure the services of the defendants’ physician. However, he remained at home on Friday (the day of the accident), Saturday and Sunday. On Monday he visited the offices of Dr. Samuel Romano for treatment, who testified that the plaintiff related a history of injury to the abdomen-which occurred when the handle of a truck: “jugged” him. The diagnosis was contusion of the abdomen. Dr. Romano related that the patient did not initially complain of an injury to his back or at any subsequent time during the course of ten visits to his office. However, this assertion is denied by the plaintiff. Dr. Romano did not observe any evidence of serious injury and when the patient’s complaints and his findings became irreconcilable, he discharged him on May 17, 1954, without disability. Plaintiff admitted that when this physician discharged him he was “near about well.”

In any event, on May 19, 1954, plaintiff visited the offices of a physician of his own choice, Dr. Blaise Salatich, who, through the medium of x-rays, observed rotational scoliosis, wedging and hypertrophic arthritis in the lumbar region of the back, which he conceded existed before the accident, but which he maintained was aggravated by the accident. He asserted that the plaintiff would be able to resume his occupation, but only with difficulty or on a restricted basis— that he could perform his duties one day, two days, but not day after day.

Dr. Edgar Little, a radiologist, appeared on behalf of defendants and stated that x-rays of plaintiff’s lumbar spine revealed scoliosis and hypertrophic changes which, in his opinion, existed prior to the accident in April of 1954 and were usual in middle-aged laborers or a man fifty-two years of age.

Dr. Mims Gage, a surgeon, appeared on behalf of defendant and related that he examined plaintiff in June of 1954, who complained of pain in the abdomen, back, thighs and legs. He could find no pathology or condition which surgery could remedy. However, he was of the opinion that “it’s possible that he did have some sacroiliac strain, but this was not due to the accident * * * except it was aggravated by it. I’m sure that there will be no permanent disability from this injury. * * * I would think that four or five months * * * would clear it up.”

Dr. Harry Morris, an orthopedic specialist, also appeared on behalf of defendants and reláted' that the plaintiff visited his office in August of 1954 and in March of 1955. This physician, predicating his opinion on the history revealed by the patient,, the x-rays and the clinical examination, asserted :

“ * * * I thought he had recovered from his aggravation of any injury, and that he was in the same condition that he was in previous to his injury and that he could go back and do the same thing in the same manner that he could do before he was injured.”

With respect to the aggravation of the preexisting condition of plaintiff’s back and the duration thereof, Dr. Morris stated “I felt that they had subsided four months after his original injury. * *

Counsel for plaintiff contends that the trial judge erred in not. awarding his client compensation predicated on ‘,‘total and permanent” or, ■' at least, “permanent partial disability.” .

Counsel'for the defendants, on the other hand, insist that the trial judge erred in awarding plaintiff six months compensation in view of the fact that the medical evidence preponderated to the. effect that the duration of plaintiff’s disability was four or five months; and that he further erred" in awarding attorney’s fees predicated on the assumption that the defendants acted arbitrary and capricious in terminating compensation payments.

The trial judge found as a fact, as reflected in his written reasons for judgment, that:

“The x-rays and medical testimony leave no doubt at the time of the accR dent plaintiff had a pre-existing scoliosis and hypertrophic'changes with osteoarthritis which is' to be expected in a man 52 years old as part of the aging process. *' * * Plaintiff actually had an aggravation due to the trauma suffered when he was working and had the injury as described. * * * The law is well settled that a preexisting organic or other ailment that is aggravated as the result of a trauma * * * is compensable.
“The medical testimony is overwhelming that any disability or aggravation of the pre-existing injury should have cleared up not later than four or five months.”

Our analysis of the record fails to disclose any error in the foregoing factual or legal conclusions, nor do we believe that the trial judge abused his discretion in awarding six months’ compensation rather than five months in view of the acknowledged fact that medicine is an inexact science and a physician’s prognosis .of four or five months disability is, therefore, not offered with such certitude or assurance that would militate against the reasonable exercise of the trial judge’s discretion in allowing.the recovery of compensation for thirty additional days beyond the physician’s forecast. However, we do believe that the trial court erred in awarding attorney’s fees as a penalty presumably in conformity with LSA-R.S. 22:658 and the case of Wright v. National Surety Corporation, 1952, 221 La. 486, 59 So.2d 695.

When plaintiff was discharged by Dr. Romano on May 17, 1954, and compensation payments terminated as of that date, there was no indication that plaintiff had even injured his back. How could the attitude of defendants, who acted upon the advice of Dr. Romano, be deemed arbitrary and capricious relative to an injury which neither they nor the doctor knew existed? When compensation ceased plaintiff’s only complaint, according to Dr. Romano, was in his abdominal region. We believe that under these extenuating circumstances defendants were justified in refusing to pay further compensation to the plaintiff after May 17, 1954.

For the reasons assigned the judgment appealed from is amended so as to disallow the .twenty percent attorney’s fees and, in. all other respects, it is affirmed.

Amended and affirmed.


author: McBRIDE, Judge.

text:
    Pearly RICHMOND v. NEW AMSTERDAM CASUALTY COMPANY.
    No. 20650.
    Court of Appeal of Louisiana. Orleans.
    March 5, 1956.
    Frank S. Bruno, New Orleans, for plaintiff and appéllant.
    Henriques & Mayo, New Orleans, for defendant and appellee.
   McBRIDE, Judge.

This is a suit .for compensation filed by Pearly Richmond against New Amsterdam Casualty Company which is the compensation liability insurer of the employer. Richmond claims that as the result of an accident on February 11, 1954, while in the course and scope of his employment with Gervais F. Favrot Co., Inc., he was rendered totally and permanently disabled from doing work of any reasonable character and prays for 393 weeks’ compensation (7 weeks were paid by defendant) at the rate of $30 per week;

Defendant, admits plaintiff was hurt on the job in an accident on the date alleged which happened when he was pulling on a wooden form which suddenly gave way and knocked him partly off the ledge of the building on which he was working, but makes the defense that plaintiff was treated for his injuries by defendant’s physicians who pronounced him physically able to return to the duties of his occupation and discharged him on March 29, 1954, and that all compensation due up to said date was paid and plaintiff is not entitled to any further compensation.

The matter comes before us on plaintiff’s appeal from the judgment below dismissing the suit.

Richmond continued to work the rest of the day after the accident and did not complain of pain or inability to continue his duties until the following day, February 12, 1954, at which time he was sent to the office of Drs. Harrison, Lyons, Baker & Paine. On his first visit there, Richmond was seen and examined by Dr. Baker, and on subsequent occasions he was treated by Dr. Baker three times, by Dr. Lyons four times, and by Dr. Paine on five occasions, the last time being March 24, 1954, when Dr. Paine discharged him from further treatment and gave him a slip to return to work on March 29, the following Monday.

It appears from the evidence that on plaintiff’s initial visit to Drs. Harrison, Lyons, Baker & Paine, he was complaining of his upper back and right knee and was treated therefor, but beginning on February 22, when the doctors thought he had recovered from the effects of the upper-back complaints, plaintiff for the first time commenced making complaints of lower back pains arid thereafter his knee and lower back were treated through March 24 when he received the medical discharge from Dr. Paine.

Dr. Paine stated that it was and is his opinion that Richmond did not need any additional treatment, hence the discharge. He testified in answer to a question propounded by the court that the X-rays showed minimal hypertrophic changes in certain lumbar vertebrae, but he stated this condition could not háve been caused by the tra'uma of February 11. He thought the arthritis predated the accident explaining that it takes á considerable time for arthritis, which is a slow process occurring over a period of years, to show on an X-ray. Dr. Painé’s Opinion was that the arthritic condition could not have developed between February 11 and 22, a period of only 11 days, nor could the trauma have aggravated any pre-existing condition.

The treatments administered by Drs. Harrison, Lyons, Baker & Paine consisted of immobilization of the back, infrared therapy and diathermy and plaintiff was instructed as to heat treatments he should render to himself at home and as to certain exercises he was advised to take.

At no time after March 10 was Dr. Paine able to find objective symptoms or any reason for continued disability and he advised Richmond that he would be sent back to work. Richmond, according to Dr. Paine, seemed to demur, so Dr. Paine decided to send him to see Dr. Lyon K. Loomis, an orthopedic specialist, for the purpose of examination. This examination was made on March 15, 1954, and Dr. Loomis found no objective evidence of an injury to the lower back or right knee which could properly be attributed to the accident of February 11. Dr. Loomis saw no further treatment to recommend and it was his opinion that Richmond could be returned to his regular duties. The X-rays showed only the old arthritic condition all previous X-rays had shown. Dr. Loomis particularly noted, however, that Richmond had flat feet and faulty posture and his thought was that these were causing Richmond’s pain. Dr. Loomis made another examination on October 1, 1954, and the X-rays then taken essentially showed what the previous X-rays had disclosed. There was no ■ evidence of an injury and Dr. Loomis stated that if Richmond did have the pains of which he complained, they could have been caused by the faulty posture and flat feet. He said: “I know of.nothing that causes low back pain any more often than those things.”

At the time of his discharge by defendant’s doctors, Gervais F. Favrot Co., Inc., had Richmond’s old job waiting for him, but Richmond would not attempt to return to his former occupation, and apparently the only time that he ever endeavored to do anything, according to his testimony, was after he went to Mississippi when he assisted his wife around the farm and picked some cotton.

Richmond professed that notwithstanding his discharge by Dr. Paine, his back and both legs continued to hurt him which forced him to see Dr. William Fisher several times.

Dr. Fisher, who is a general practitioner of medicine, first saw plaintiff on March 29, 19S4, and on the basis of the history of the case, a physical examination, and X-rays, his diagnosis was that there was an injury in the lumbosacral region and also an injury to the lower medial third of the right thigh. Dr. Fisher’s X-rays showed the marked hypertrophic arthritis of the lumbosacral vertebrae. His recommendation was “good physiotherapy treatment.” Dr. Fisher also saw plaintiff on May 1, 5, 10, 14, July 11, 21 and December 14, 1954, and March 7, 1955, which was the day before the trial, and his findings on all occasions were the same as on March 29. His opinion is that Richmond is incapable of returning to work. He states that he did not render physiotherapy because he is not equipped to do so and that plaintiff’s several visits to him were for the purpose of observation only. We notice that Dr. Fisher made one significant remark: “As far as being able to accurately determine the degree of pain that this man was expressing, I would say that it was depended upon what he had to say primarily and what he felt.”

Dr. Loomis made some comment on Richmond’s complaints of pain saying they were not compatible with his findings. He told of placing Richmond on a table and of having him turn over from prone to supine and from supine to prone position which maneuvers were made without complaint of pain. Had there been pain, Dr. Loomis said Richmond would have given expression to that fact.

Plaintiff’s counsel attaches much importance to the circumstance that before discharging Richmond on March 24, Dr. Paine gave him an infrared treatment, and the argument is advanced that this indicates that Dr. Paine prematurely discharged plaintiff who needed the physiotherapy spoken of by Dr. Fisher.

When asked about this, Dr. Paine went on to explain that he was unable to find any objective symptoms for Richmond’s professed continued disability and that the infrared treatment was psychotherapy rather than something of actual therapeutic value.

Be that as it may, after reading the record as a whole, we believe that if the plaintiff, a man 60 years old, has any disability it is not referable to any injuries received in the accident, but, on the contrary, flows from the pre-existing arthritic condition and perhaps also from the flat feet'and bad posture which Dr. Loomis said might cause him trouble. To reverse the judgment and decide this case in plaintiff’s favor would require that we disregard entirely the testimony of defendant’s two physicians and accept as the basis of a judgment for plaintiff the testimony given by Dr. Fisher who is a general practitioner and who merely observed plaintiff.

Our thought is that the testimony of Dr. Loomis, who is an experienced orthopedic specialist, is entitled to be given more weight than a physician who is not a specialist in said medical field, and furthermore the testimony of a physician first examining an injured person is usually accorded greater weight than the testimony of one more remotely removed therefrom. See Price v. T. L. James & Co., Inc., La.App., 53 So.2d 182; Henderson v. New Amsterdam Casualty Co., La.App., 80 So.2d 438; Roy v. Guillot, La.App., 84 So.2d 469.

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

Affirmed.


text:
    EMMCO INSURANCE COMPANY and A. Crabtree v. Pat SANDERS.
    No. 20741.
    Court of Appeal of Louisiana. Orleans.
    Feb. 20, 1956.
    Rehearing Denied March 19, 1956.
    Andrew H. Thalheim, Gretna, for defendant-appellant.
    Morphy & Freeman, New Orleans, for plaintiffs-appellees.
   REGAN, Judge.

Plaintiffs, Amiss Crabtree and his sub-rogee insurer, Emmco Insurance Company, instituted this suit against the defendant Pat Sanders (Lederic Sandras), endeavoring to recover the sum of $220.18, representing property damage incurred on September 12, 1954, at about 6:00 a. m. as a result of a collision in Fourth Street (a highway) near West Drive, Westwego, Louisiana, between Crabtree’s Chevrolet automobile and Sander’s truck.

Defendant answered and admitted the occurrence of the accident, but insisted that the proximate cause thereof was the negligence of Crabtree. Defendant then reconvened and pleaded therein the contributory negligence of plaintiff and asserted that he-was entitled to recover the sum of $45 representing property damage to his truck.

Judgment was rendered in favor of plaintiffs as prayed for and defendant’s recon-ventional demand was dismissed. Hence this appeal.

In order to avoid repetitious designation of parties plaintiff we shall hereinafter apply the appellation plaintiff to Crabtree.

Although plaintiff and defendant were the only witnesses who related the manner in which the accident occurred, the record reveals, as we have so often observed heretofore, the usual controversial" facts and disputations ad infinitum predominant in this type of litigation.

Plaintiff testified that on the morning of the accident he was driving about 25 miles per hour on Fourth Street, moving from Marrero towards Westwego and when he was near the intersection of West Drive and Fourth Street, he observed defendant’s truck approaching from his left, which he anticipated would obey the stop sign (although the existence of such a sign is disputed by the litigants) before entering the highway; he simultaneously realized that defendant -was not going to stop and it was then that he endeavored to avoid the impending collision by steering his vehicle to the right and apparently the defendant executed the same .maneuver to the left of the highway causing the property damage’ to the left and right rear sections of the respective vehicles, which is the subject matter of this litigation.

Defendant testified that he had parked his truck in West Drive adjacent to King’s Restaurant in order to procure “a cup of coffee” and upon returning to his vehicle, he failed to observe any stop sign in West Drive at the entrance to the highway, although he asserts that he came to a stop before entering Fourth Street in anticipation of driving towards Westwego; that he observed plaintiff’s vehicle “one half mile away from me”; that he then crossed the highway at an angle and was moving in the direction of Westwego when the rear of his truck was struck by plaintiff’s automobile.

Plaintiff insists that the sole cause of the collision was the negligence of the defendant in driving his vehicle into the highway without first ascertaining that it was safe to do so.

Defendant, in his endeavor to resist this assertion, maintains that the collision was not caused by his negligence, but solely by the gross negligence of plaintiff in driving while in an intoxicated condition at a speed in excess of SO miles per hour; in failing to afford defendant the right of way; in neglecting to maintain a proper lookout and thus avoid the accident.

We have carefully analyzed the actions of the plaintiff and find that he was entirely free of negligence, therefore, the only question posed for our .consideration is one of fact, and that is whether defend-ant’s negligence was the proximate cause of the accident.

The trial judge resolved the answer to this question in the affirmative and our careful examination of the record fails to reveal any error in his conclusion.

The record reflects the very evident fact that the defendant failed to stop, irrespective of the existence of a stop sign in West Drive, before entering the heavily travelled highway, designated as Fourth 'Street, which would have afforded him ample opportunity to observe the imminence of plaintiff’s vehicle, therefore, defendant’s negligence, in this respect, was the proximate cause of the accident.

The record reflects that, damages in the amount of $220.18 to plaintiff’s Chevrolet have been adequately proven.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: TATE, Judge.

text:
    Hart GALLETT, Plaintiff-Appellee, v. CITY OF SULPHUR et al., Defendants-Appellants.
    No. 4141.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.
    Rehearing Denied March 20, 1956.

      John I. Fowler, Sulphur, Benton & Moseley, Baton Rouge, for appellant.
    Elsie May Whitman, Robt. R. Stone, Lake Charles, for appellees.
   TATE, Judge.

This is a companion suit to Breaux v. City of Sulphur, La.App., 85 So.2d 723. It arises from the alleged illegal trespass by the City of Sulphur in laying a sewer line on property, the fee title to which is in plaintiff Gallett. The City appeals from judgment in favor of Gallett in the amount of $150 for damages due to the illegal trespass on his land. Gallett has not answered the appeal. (The claim against co-defendants Thelma A. Mitchell Simon et al., contractors, was settled by amicable compromise in advance of trial.)

The facts, virtually undisputed and pre-ponderately proved by the record, show: At the direction of the City the contractor dug a ditch and laid a sewer pipe 66 feet across the front of Gallett’s land in land subject to a highway right-of-way servitude. A similar trench and sewer line was constructed 2-3’ within Gallett’s land and along the full length (225') of his northern boundary, in a strip subject to a predial servitude of passage in favor of the owner of property east of plaintiff’s land, upon which a private road was constructed by the latter. No permission was secured by the City from Gallett before so doing. (Apparently, the latter sewer line was so laid through surveying error, and the former under the impression that the municipality had the power to do so in land subject to the right-of-way dedicated for road purposes.)

We have been favored with learned briefs, indicating diligent and able research, concerning whether the municipal sewer system was a proprietary or a governmental function, and whether the distinction is material for purposes of finding the municipality liable herein. But in our view, this matter is governed by Art. 1, § 2, La.Const. of 1921, LSA, which provides:

“No person shall be deprived of life, liberty or property, except by due process of law. Except as otherwise provided in this Constitution, private property shall not he taken or damaged except for public purposes and after just and adequate compensation is paid." (Italics ours.)

Essentially the allegations of the petition and the proof are to the effect that without permission of the plaintiff property owner, a sewer line was laid across between 200-300 feet of his property, and certain damages were caused his property thereby. That the laying of a sewer line across an individuals’ property amounts to a “taking” or a “damaging” within the constitutional prohibition is self-evident, and all the more readily seen when it is realized that this prohibition extends even to situations where use of a highway servitude denies or impedes access to the landowner’s property by lowering the grade or otherwise, State v. Dowling, 205 La. 1061, 18 So.2d 616; State ex rel. Gebelin v. Department of Highways, 200 La. 409, 8 So.2d 71; Britt v. City of Shreveport, La.App., 83 So.2d 476.

Without considering the alleged damages sustained by laying the sewer line over the portion of plaintiff’s land subject to the right-of-way for public road purposes within the municipality, or the alleged absence or existence of a right in the municipality to do so, we find the award of $150 damages for laying at least 225 feet of sewer line across the northern part of plaintiff’s land not manifestly erroneous.

For the above and foregoing reason, the judgment of the District Court herein is affirmed; defendant-appellant, being a public body, is relieved of the costs of this appeal.

Affirmed.


author: TATE, Judge. PER CURIAM.

text:
    Alphonse L. BREAUX, Plaintiff-Appellee, v. CITY OF SULPHUR et al., Defendants-Appellants.
    No. 4142.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.
    Rehearing Denied March 20, 1956.

      John I. Fowler, Sulphur, Benton & Moseley, Baton Rouge, for appellants.
    Elsie May Whitman, Robert R. St.o-ne,, Lake Charles, for appellee.
   TATE, Judge.

This suit arises from the alleged illegal, trespass of the City of Sulphur in laying a sewer line on the property belonging to plaintiff .herein, including over a predial servitude in his favor, and for resulting damages. This. suit is a companion suit to Gallett v. City of Sulphur, La.App., 85 So.2d 721. From judgment in favor of plaintiff in total amount of $942, the City of Sulphur has appealed. Plaintiffs have answered this appeal, seeking an increase in the award.

At the outset this Court must take notice of its own motion that it apparently lacks appellate jurisdiction, since the amount in dispute in this non-personal injury suit exceeds $2,000; Art. 7, § 10, La. Const, of 1921, LSA.

By amended petition, the amount demanded by plaintiff is itemized in article 27 as follows:

"(a) Estimated cost to rebuild, including the replacing .of the. foundation, •£ the private road.$ 800.00
*‘(b) Estimated cost of shell to adequately cover, said private road. 400.00
"(d) Estimated cost to re-dig drainage ditches on each side of road and correct stoppage thereof. 200.00
* * * , * * « * * *
"(i) Inconvenience and annoyance caused by being deprived of use of private road for approximately .15 days. 250.00
"(j) Unlawful invasion and trespass on private property and rights of petitioner in laying the said sewer line. 1000.00
"(k) Mental distress, humiliation and vexation in using force and intimidation to enter petitioner’s private road against his protests and committing depredations thereon as alleged in supplemental petition herein. 1000.00
"(Z) Pees of attorney for bringing and prosecuting this action, which petitioner alleges as an item of exemplary damages to which he is entitled on the facts alleged in this suit. $1000.00
"Total of above damages. $4775.00”

The District Court awarded judgment for: (1) $692, a contractor’s estimate of the cost of returning the private road to its condition before the alleged trespass; and (2) for $250 for illegal trespass. The first item apparently included items a, b, and d, above; the second item was an award for item j above. In the ansswer to the appeal, appellee Breaux prays that the damages for unlawful trespass be raised from $250 to $1,000, and that in addition appellee be awarded the items of damage set forth above as i, k, and l. — that is, prays for $3,000 in addition to the amount already awarded.

In an able effort, in response to the suggestion from the bench that this Court may lack appellate jurisdiction, counsel for appellant has filed a supplementary brief, urging that the Court of Appeal can accept jurisdiction even in a suit demanding in excess of our appellate limit .of $2,000, where it is apparent that the alleged damages are greatly exaggerated and inflated, and that the true amount is well within its jurisdiction, citing Givens v. Town of Ruston, 219 La. 672, 53 So.2d 833, appeal transferred, La.App., 55 So.2d 289; Bensel v. Kuhlman, 154 La. 150, 97 So. 347; Beasley v. Glassell, 110 La. 230, 34 So. 434; Greco v. Live Oak Properties, Inc., La.App., 1 So.2d 841; and Turner v. Charlton, La.App., 1 Cir., 197 So. 187.

However, punitive damages may be recovered when the trespass is shown to be intentional or willful or wanton, Nickerson v. Allen Brothers, 110 La. 194, 34 So. 410, see also, Grandeson v. International Harvester Credit Corporation, 223 La. 504, 66 So.2d 317, and La.App., 61 So.2d 550.

Under the facts shown by this record, there is at least a substantial question as to whether or not plaintiff-appellee is entitled to punitive damages, where it is admitted that despite the plaintiff-landowner’s advance warning, at the. direction of defendant-appellant the contractor dug a ditch and laid a sewer line along almost 500 feet of a private road built and maintained by plaintiff on a predial servitude in his favor, and where there is substantial evidence in the record that an additional 166 feet of sewer line was laid across his land and his fence was cut to do so, despite his express warning in advance. There is also evidence of substantial inconvenience caused plaintiff through this alleged illegal trespass. We are therefore unable to say that the items of damages requested i, j, and k are so obviously inflated as to destroy the Supreme Court’s appellate jurisdiction.

Likewise, as to the claim for attorneys fees, defendant-appellant urges with considerable effect that in accordance with Miller v. Welsh, La.App., 66 So.2d 25, and authorities cited therein, attorney’s fees in civil cases are not collectable, and the recent rule has been to disallow them where not proven in the record. But there is also jurisprudence supporting an award of attorneys’ fees as an item of damages arising from trespass, Cooper v. Cappel, 29 La.Ann. 213; and Vidrine v. Vidrine, 1 Cir., 14 La.App. 484, 130 So. 244. See also where attorneys’ fees allowed as damages in possessory action, Williams v. Harmanson, 41 La.Ann. 702, 6 So. 604; DeGraauw v. Eleazar, La.App., 1 Cir., 24 So.2d 180.

Thus we feel that we are not entitled to usurp the appellate jurisdiction of the Supreme Court by deciding these questions which go to the merits, in the guise of deciding whether we have appellate jurisdiction, where the petition demands $4,775, the answer to the appeal requests a total of $3,942, and where to determine whether these amounts demanded are excessive requires determination of substantial matters of law and of fact.

For the foregoing reasons the appeal is ordered transferred to the Honorable, the Supreme Court of Louisiana, and plaintiff is allowed 60 days from the final date of this judgment within which to perfect the appeal by filing proper transcript in said Court; otherwise the appeal shall be considered as dismissed. Since defendant-appellant is a public body, it is not assessed with the costs of this appeal. All other costs to await final determination of this cause.

On, Application for Rehearing.

PER CURIAM.

Inadvertently in our -original opinion transferring this appeal to the Supreme Court, we allowed the plaintiff-appellee sixty days within which to perfect the appeal by filing proper transcript in said court, rather than the defendant-appellant, and accordingly the appeal is amended to allow sixty days from date of finality hereof to either party within which to perfect the appeal by filing proper transcript in said court.

, As . thus amended, our original decree herein is reinstated.

Rehearing denied.

      . Givens v. Town of Ruston, 1951, 219 La. 672, 53 So.2d 833, where the Supreme Court refused to exercise appellate jurisdiction despite the petitioner’s demand, for $4,000 damages, is cited to us in support of the proposition that the changes requested herein are obviously exaggerated. This case involved a trespass in a windstorm emergency by the City of Rus-ton, during which nine large shade trees were allegedly damaged. There was no question therein of punitive damages to be awárdéd for willful trespass, and we do not believe the case analogous.


author: HOBSON, Justice.

text:
    Felton SEYMOUR, Appellant, v. Richard Henry SEYMOUR, Administrator of the Estate of Euphemia Seymour, Appellee.
    Supreme Court of Florida. Division A.
    March 2, 1956.
    Holland & Smith, West Palm Beach, for appellant.
    F. Malcolm Cunningham, West Palm Beach, for appellee.
   HOBSON, Justice.

Euphemia Seymour opened a savings account in the First National Bank of Palm Beach, Florida. The signature card bore the statement: “Euphemia Seymour in trust for Felton Seymour.” The passbook bore an identical statement. Felton Seymour is Euphemia Seymour’s son.

Euphemia Seymour made deposits and withdrawals from this account from time to time. She died on or about August 20, 1955, leaving $2,055.34 in the account, which the administrator claimed as part of the estate of Euphemia 'Seymour, whereupon Felton Seymour petitioned for a decree declaring that he was entitled to the monies on deposit in this account.

The controversy was decided upon the facts set up in the complaint, answer, and exhibits, and after argument of counsel. The chancellor entered a final decree directing that the savings account be paid to the administrator of the estate of Eu-phemia Seymour. From the decree so entered, Felton Seymour takes this appeal.

Appellant contends that a tentative trust was created by his mother during her lifetime which became irrevocable upon her death, since no showing was made that she had revoked the trust before she died. F.S. Sec. 659.30, F.S.A., reads as follows:

“Bank or trust company deposits made by any person describing himself and making such deposit as trustee for another, and no other or further notice of the existence and terms of a legal and valid trust than such description shall have been given in writing to such bank, in the event of the death of the person so described as trustee, such deposit, or any part thereof, together with the dividends or interest thereon may 'be paid to the person for whom the deposit was thus stated to have been made.”

As the circuit judge pbserved, and as we have held, the banking laws, of which the foregoing is a section, were designed primarily to regulate banks and are not necessarily conclusive of the ownership of deposited money. In this case, however, the situation with which we are confronted is a typical “Totten trust”. The “Totten trust” doctrine was definitely stated in In re Totten, 179 N.Y. 112, 71 N.E. 748, 752, 70 L.R.A. 711. In that case the operation of the doctrine was described as follows:

“A deposit by one person of his own money in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the passbook or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust •was created as to the balance on hand at the death of the depositor.” (Emphasis added.)

This well-known cemmon-law doctrine has been adopted in many jurisdictions. See Annotations, 38 A.L.R.2d 1244, Sec. 1, and 91 A.L.R. 105; 7 Am.Jur., Sec. 438, pp. 309-310, and Restatement of Trusts, Sec. 58. We accept it without hesitation. Thus in the present case even if there were no statute the prevailing common-law doctrine would, upon the showing made here, require the money on deposit to be paid to the beneficiary, Felton Seymour.

'Nothing in Cerny v. Cerny, 152 Fla. 333, 11 So.2d 777, pertaining to a joint account, is inconsistent with this result. The considerations here are different, and it appears that Euphemia Seymour unequivocally expressed an intention to create a trust and took no steps during her lifetime, revealed by this record, which would rebut the presumption which arose by virtue of her initial act.

It follows that the final decree appealed from must be, and it is hereby, reversed and the cause remanded with directions to pay the amount on deposit in the subject account to the appellant, Felton Seymour.

It is so ordered.

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


author: TERRELL, Justice.

text:
    In re GUARDIANSHIP of Stanley KRECL, Incompetent. Henry W. JEWETT, as Guardian of the Property of Stanley Krecl, Incompetent, Appellant, v. Tully SCOTT, Appellee.
    Supreme Court of Florida. Division A.
    Feb. 8, 1956.
    Rehearing Denied March 12, 1956.

      Farish & Farish, West Palm Beach, for appellant.
    William H. Cook, West Palm Beach, for appellee.
   TERRELL, Justice.

July 3, 1953, appellee was employed as law clerk in the office of Farish & Farish, hereinafter referred to as Farish. On the same date he was (1) appointed guardian of the property of Stanley Krecl, an incompetent, (2) qualified as such guardian and (3) letters of administration were issued to him. February 19, 1954, he resigned as said guardian, and the Probate Court entered an order discharging him, but on condition that he continue liable as guardian until relieved by further order of the court.

May 19, 1954, having examined and approved appellee’s first and final return, the Probate Court entered an order discharging him as guardian of the property of Stanley Krecl, incompetent. Letters of discharge were entered finding that appel-lee had faithfully discharged his duties as guardian, made disposition of the ward’s assets as required by law and rendered a true account of his guardianship. May 25, 1954, appellee petitioned the Probate Court for advance of guardian’s fees. Appellant moved to dismiss said petition and filed answer thereto May 28, 1954. The motion to dismiss was denied.

June 2, 1954, at the hearing on petition of appellee for guardian’s fees, appellant, joined by Farish, filed a second petition for guardian’s fees which alleg'ed that Farish was in reality the guardian of the property of Stanley Krecl; that notwithstanding appellee was appointed as guardian by order of July 3, 1953, he was only the “nominal guardian.” Appellant’s petition prayed the Probate Court to allow them guardians’ fees from the estate of Stanley Krecl, incompetent. Said petition also prayed that petition of appellee for guardian’s fees be denied and that any such fee foe applied to the guardian’s fees to foe paid appellant. On the date of hearing, June 2, 1954, appellant urged that his petition be given prior consideration because- no fees were due and owing to appellee hut were due and owing to appellant. The Probate Court ruled that the petition of appellant injected ,a new issue in the case and that foe should first decide the question of “who is entitled to the guardian’s fee.”

The Probate Court then took testimony in support of the petition of appellant and on June 23, 1954, entered an order finding that appellee was lawfully appointed-guardian; that at the time of such appointment appellee was a law clerk in the firm of Farish and was being paid the monthly compensation that was agreed to be paid him to perform any and all duties assigned to him and that he was not entitled to any compensation for services as guardian of the estate of his ward. July 16, 1954, the latter order was appealed to the Circuit ■Court who on December 23, 1954, denied the motion of appellant to dismiss the appeal.

January 14, 1955, the appeal was heard by the Circuit Court who found that there was neither allegation nor proof of an agreement between Farish and appellee as to guardian’s fees;' that if such an agreement had been alleged and proven, it would have been immaterial as to guardian’s fees since appellee was appointed guardian by the Probate Court, .was an officer of the court, acted for the court, occupied a highly fiduciary relationship and was not, in this respect, employed by petitioners- Farish and Jewett to act as guardian, nor did such guardian act for said petitioners, but for the Probate Court. The court further found that one appointed to serve as guardian and who faithfully performed his duties as such was entitled to have an award paid to him directly as compensation from his ward’s estate. What course the compensation took when paid to the guardian was no concern of the court and that no law authorized a law firm to employ a guardian and require him to pay his fees into the firm account.

Based on these findings, the Circuit Court reversed the order of the Probate Court of June 23, 1954, and directed that appellee’s petition for allowance of guardian’s fees be granted and that just and reasonable compensation for his services as guardian be paid him. We are confronted with an appeal from the latter order.

The parties are wide apart as to the questions presented but in our view the real points for determination have to do with (1) the correct interpretation of the statute governing appeals from the Probate Court to the Circuit Court in probate, matters-; (2) has the Probate Court power to farm out the administration of estates and permit that duty to be done by a third party or some one designated by a third party.

Appellant contends that the Circuit Court was without jurisdiction to consider the appeal in this cause because the record on appeal from the Probate Court was not filed in the Circuit Court for five months. and six days after the filing of the assignments of error, no cross assignments having been filed by appellee. Ap-pellee counters with the contention that appeals from orders of the' Probate Court in guardianship matters are governed by Section 746.16, Florida Statutes, 1953, F.S.A., the pertinent part of which requires' that provisions of the probate law governing appeals as set forth in Chapter 732, Florida Statutes, F.S.A., shall govern appeals in guardianship matters.

Section 732.15(1), Florida Statutes, 1953, F.S.A., provides in substance that all orders, judgments or decrees of the county judge determining the rights of parties in the administration of estates, may, as matter of right, he appealed to the Circuit Court and from the Circuit Court to the Supreme Court. Section 732.16(2), same statute, provides that appeals from the Probate Court to the Circuit Court as contemplated by the preceding statute shall be taken within 30 days from the date on which the order or judgment appealed was filed in the office of the Probate Court. Section 732.16(3), same statute, details the manner of taking such an appeal. Section 732.16(4) (a), same statute, requires that assignments of error in such appeals be filed within 10 days after filing the notice of appeal. Section 732.16(6) (a), same statute, provides that after these requirements have been accomplished, the County Judge shall deliver, or cause to be delivered, to the Clerk of the Circuit Court the original records in the cause, thus constituting the record on appeal. Section 732.16(7), same statute, provides for hearing such appeals and Section 732.17(1) (a) and (b), same statute, provides the manner and grounds for which such appeals may be dismissed.

The statutes detailed in the preceding paragraph are clear and unambiguous. They were designed to govern appeals like this and it appears that they have been complied with. It is true that appellant moved to dismiss the appeal for various reasons but in view of the grounds for dismissal contained in the last cited statute, we find no error in the order overruling the motion to dismiss. It is true that five months is a long time to let an appeal lie dormant, but any party to such an appeal may move against it at any time. Appellant did not do this and he does not allege that he was prejudiced by the delay. The statute contemplates that the Probate Court will transmit the record to the Circuit Court as promptly as possible. If he does not do this, either party may call on him to do so. Since neither party moved for prompt transmission of the record and no one is shown to have been prejudiced, there is no ground for complaint.

We see no escape whatever from the Circuit Court’s answer to the second phase of the question. Appellant contends that he and the law firm with which he is connected are the real guardians of Stanley Krecl and should be paid the guardian’s fees allowed by law; that appellee was a “mere nominee or dummy” guardian entitled to nothing for his services account of compensation paid him by the firm. This despite the fact the record shows that ap-pellee wa9 duly appointed guardian, took the required oath, filed his bond and letters of administration were issued to him. He later resigned and was discharged as guardian on condition that he is liable on his accounts until further order of the court. He was finally discharged as guardian May 19, 1954,.and letters of discharge were issued to him. In both instances it appears that he faithfully performed his duties as guardian and rendered a complete and accurate account of his doings as such.

How can it now be said that he was a “mere nominee or dummy” ? There is no charge or suggestion of mismanagement or wrongdoing on the part of anyone connected with this guardianship, but if one’s estate can be handled in the manner proposed, then the Probate Court can farm out the administration of every estate that comes under his jurisdiction. The law does not contemplate any such thing. It places many safeguards around the administration of estates and contemplates that only those of approved integrity shall be designated to handle them. Appellee was so designated in this case and is entitled to such compensation as the law and the court allow him from the ward’s estate. The law in fact knows no person as guardian but the one lawfully appointed for that purpose.

It is accordingly our view that the court below correctly refused to dismiss the appeal to the Circuit Court. Moreover, when one is lawfully appointed an officer of the court, in a fiduciary capacity and assumes the responsibilities imposed on him by law,-there being-no waiver of compensation or a breach of fiduciary duty, he is entitled to be paid in person for his services. Any other procedure for administering estates would be in violation of the letter and spirit of the law.

The judgment appealed from is, therefore,

Affirmed.

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


text:
    T. K. LARKIN and Ida M. Larkin, his wife, Appellants, v. John E. TSAVARIS, Appellee.
    Supreme Court of Florida, Division A.
    March 2, 1956.
    Finch & Mosley, Clearwater, for appellants.
    James M. Stevens, Tarpon Springs, for appellee.
   HOBSON, Justice.

Defendants here appeal from so much of a final decree in an equity suit as was favorable to the plaintiff-appellee.'

This is a case wherein the chancellor heard all of the testimony and observed the witnesses. His findings are therefore entitled to the highest degree of respect, and we regard all factual disputes with great circumspection. Moreover, the chancellor has favored us with an opinion containing detailed findings, and, in addition thereto, the final decree is prefaced with basic findings in summarized form.

The final decree, omitting formal parts, reads as follows:

“1. The evidence shows, and the court finds, that the deféndants have maintained multiple dwelling units in their dwelling house but inasmuch as it appears to the court that said dwelling house was used for multiple dwelling units prior to the time defendants purchased said property and also that' such use is made of other homes in the immediate area, no material deterioration in the value of the plaintiff’s property has been caused thereto.
“2. The evidence shows, and the court further finds, that the outbuilding situated on defendants’ property has been converted to an apartment and operated for commercial purposes in violation of the zoning laws of the City of Tarpon Springs, Florida, then and now in effect; and the court finds that the plaintiff’s property has materially deteriorated in value as a result thereof.
“3. The evidence shows, and the court further finds, that the defendants’ arbitrary action in removing the wheels from the house trailer and attaching said house trailer to defendant’s home thus providing an additional room without first obtaining permission of the City of Tarpon Springs was in violation of the ordinances of the City of Tarpon Springs, Florida; and the court finds that the attachment of said house trailer to defendants’ dwelling has caused plaintiff’s adjoining property to deteriorate in value.
“4. The evidence shows, and the court further finds, that the construction and maintenance of the log fence between plaintiff’s and defendants’ property is unreasonable and serves no useful purpose but to annoy plaintiff and the members of his family; and the court finds that said log fence at its present height has caused plaintiff’s property to deteriorate in value.
“It is therefore ordered, adjudged and decreed:
“1. That plaintiff’s prayer for an injunction against the use of the dwelling house of defendants as a multiple dwelling unit, be, and the same is, hereby denied.
“2. That the defendants be, and they are, hereby restrained and permanently enjoined from using the converted outbuilding on their property for rental purposes for the production of income or in any manner for commercial purposes.
“3. That the defendants be, and they are, hereby restrained and permanently enjoined from using and maintaining the house trailer so long as same is attached to their dwelling house, or for habitation in any manner on their property, and defendants are hereby ordered and directed to remove forthwith said house trailer from the dwelling house where it is presently attached.
“4. That the defendants are hereby ordered and directed forthwith to reduce the height of the log fence situated between plaintiff’s and defendants’ house to a height of not more than five (5) feet.
“It is further ordered, adjudged and decreed that one-half of the plaintiff’s court costs be paid by the plaintiff, John E. Tsavaris, and one-half of said costs shall be paid by the defendants, T. K. Larkin and Ida M. Larkin.”

Appellants seek to interpret finding number 1 and certain portions of the opinion of the chancellor as an adjudication that the neighborhood had so materially changed that the city zoning laws were no longer effective, and to reason from this premise that appellants were making a “lawful use of their property” throughout, which it was error to enjoin. But a careful reading of finding number 1, and paragraph number 1 of the final decree entered consequent, thereupon, demonstrates that the chancel--lor refused to enjoin the use of the dwelling' house as a multiple dwelling unit- not because such usé was unlawful under the ordinance, but because “no material deterioration in the value of plaintiff’s property has been caused thereby.”

We note parenthetically that insofar as this suit partakes of the nature of a suit to enjoin a private nuisance, the validity of the chancellor’s consideration, in finding number 1, of the fact that “said dwelling house was used for multiple dwelling units prior to the time defendants purchased said property” might be questionable under Lawrence v. Eastern Air Lines, Fla., 81 So.2d 632, 634, wherein we held it no defense that the plaintiff “ ‘came to the nuisance.’ ” But this point is not raised, and can have no effect upon the outcome of this appeal.

Appellants contend that injunction is a drastic remedy and should not have been granted to restrain a “lawful use” of property. But the uses restrained were determined by the chancellor to be unlawful in each instance, in that they violated the zoning ordinance as well as depreciated the value of appellee’s property. The one exception was the “spite fence” alluded to in finding number 4 which could, of course, be enjoined as a private nuisance. No abuse of discretion has been shown.

Although we have considered all points raised, the only one remaining to which we find it necessary to refer is the contention of appellants that this suit should have been held barred by laches. It appears from the record that plaintiff-appellee acted with all due diligence as soon as he discovered the facts upon which he ultimately sued. Plaintiff’s first efforts, however consisted of attempts to persuade the city officials to enforce the city zoning ordinance. The chancellor’s refusal to apply the laches doctrine is adequately supported by the record. ■ .

Affirmed.

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


author: PER CURIAM.

text:
    Abe FRANKEL, Trustee, Appellant, v. E. S. HENRY and Violet Ford Henry, Appellees.
    Supreme Court of Florida. Division A.
    March 2, 1956.
    Anderson & Nadeau, Miami, for appellant.
    Ward & Ward and Myers, Heiman & Kaplan, Miami, for appellees.
   PER CURIAM.

The record and briefs in this cause have been examined and the judgment appealed from is affirmed on authority of Sumter County State Bank v. Hays, 68 Fla. 473, 67 So. 109.

Affirmed.

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


author: ROBERTS, Justice.

text:
    Harry E. SCHUMACHER and Marie Caroline Schumacher, Appellants, v. Fred Hans PASSOW, Appellee.
    Supreme Court of Florida. Division B.
    March 2, 1956.
    Wm. J. Pruitt, Miami, for appellants.
    Morehead, Forrest, Brown & Gotthardt and F. E. Gotthardt, Miami, for appellee.
   ROBERTS, Justice.

Plaintiffs, appellants here, sued to recover damages for injuries suffered by the plaintiff wife when the car she was driving collided at a street intersection with that of defendant, appellee here. The first trial of the cause resulted in a jury verdict and judgment in favor of defendant, 'but this court reversed the judgment and remanded the cause for a new trial (see Schumacher et al. v. Passow, Fla., 68 So.2d 899 for reasons) under the authority of Tampa Water Works Co. v. Mugge, 60 Fla. 263, 53 So. 943; Richbourg v. Hilton, Fla., 56 So.2d 539; and Schneider v. Cohan, Fla., 59 So.2d 644.

The cause was tried before a jury a second time, and the plaintiffs were again unsuccessful in persuading that body that the defendant’s negligence was the sole proximate cause of the accident. Their motion for new trial was denied, and this appeal followed.

On this appeal, it is again contended that the verdict of the jury is against the manifest weight of the evidence, and also that the trial judge erred in charging the jury on the law of contributory negligence. While the evidence on this point adduced at the second trial varies little from that presented at the first trial, we think there was sufficient evidence to go to the jury, and that no useful purpose would be served by submitting the cause to a jury for the third time.

Accordingly, the judgment appealed from should be and it is hereby

Affirmed.

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


text:
    J. Willard DURDEN, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division A.
    March 2, 1956.
    Sam E. Murrell, Sam E. Murrell, Jr., and Robert G. Murrell, Orlándo, for appellant.
    Richard W. Ervin, Atty. Gen., and Jos. P. Manners, Asst. Atty. Gen., for appellee,
   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 be and the same is hereby granted and the judgment is

Affirmed.

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


author: MILLEDGE, Associate Justice.

text:
    Anthony ROSBOUTH, Appellant, v. A. M. CROWELL, Appellee.
    Supreme Court of Florida. Special Division A.
    March 2, 1956.
    Henderson, Franklin, Starnes & Holt, Fort Myers, for appellant.
    W. H. Carmine, Jr., Fort Myers, and Mabry, Reaves, Carlton, Fields & Ward and E. B. Rood, Tampa, for appellee.
   MILLEDGE, Associate Justice.

The defendant below seeks a reversal of a judgment, after a jury trial, for the plaintiff in a negligence action involving the collision of two automobiles. The issue of contributory negligence was submitted to the jury and decided favorably to the plaintiff. The defendant contends that the plaintiff was guilty of contributory negligence as a matter of law. There is no point in discussing the evidence in detail. The evidence as to contributory negligence was in conflict and the issue is one of fact which has been settled by the jury.

Affirmed.

DREW, C. J., and HOBSON and THOR-NAL, JJ., concur.


text:
    Marilyn Zint DONAHUE, Appellant, v. Jean STRATTON, alias Jean Zint, Appellee.
    Supreme Court of Florida. Special Division A.
    March 2, 1956.
    Francis K. Buckley and Buckley & Bland, Fort Lauderdale, for appellant.
    Carr & O’Quin, Miami, for appellee.
   PER CURIAM.

This cause came on to be 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 the only substantial questions presented on this appeal were answered adversely to appellant’s contention in the case of Hill v. Morris, Fla., 85 So.2d 847, and it, therefore, appearing to the court that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

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

Affirmed.

DREW, €. J., and HOBSON and THORNAL, JJ., and PRUNTY, Associate Justice, concur.


text:
    The CASEMENTS, Inc., a corporation, Appellant, v. Edward W. RUSCOE, doing business under the firm name and style of Norman & Edwards, Appellee. The CASEMENTS, Inc., a corporation, Appellant, v. WILLIAMS MEAT CO., a corporation, Appellee.
    Supreme Court of Florida. Special Division A.
    Jan. 4, 1956.
    Rehearing Denied March 13, 1956.
    Millard B. Conklin, Daytona Beach, for appellant.
    Curtis Basch and J. Kermit Coble, Day-tona Beach, for appellee.-
   TERRELL, Justice.

These are companion cases, the pleadings, the questions raised and all other material elements being substantially identical and controlled by the same principles of law. They will accordingly be disposed of in one opinion.

Williams Meat Co. tendered its amended complaint in the Circuit Court of Volusia County seeking to recover damages from The Casements Inc., a nonprofit corporation organized under Chapter 617, F.S., F. S.A., in the sum of $1,500. The complaint alleged that during 1953 the plaintiff sold meats and other foods to Fellowship Foundation, Inc., a nonprofit corporation authorized to do business in Florida. To the original complaint was attached a list of invoices showing the dates and amount of goods purchased. The amended complaint also alleged that in McConnell v. Fellowship Foundation, Inc., a chancery case, The Casements, Inc., represented by its attorney, stipulated July 28, 1953, to assume and agree to pay the obligations of Fellowship Foundation, Inc.

Motion for more definite bill of particulars and motion to dismiss wore denied and The Casements, Inc., filed answer denying the material allegations of the complaint. Williams Meat Co. then filed motion for summary judgment alleging that there was due and owing by The Casements, Inc., to the plaintiff the sum of $1,037.95, plus interest and costs. Reference was again called to McConnell v. Fellowship Foundation, Inc. So the trial judge had before him the articles of incorporation of The Casements, Inc. The same judge had on June 18, 1953, approved the charter of The Casements, Inc., the names of the incorporators being L. S. McConnell, C. H. Pratt, Terese M. Traver, Margie Benbow and C. C. Ehr-hardt. The court also had before him his order in McConnell v. Fellowship Foundation, Inc., which in part recited as follows:

«* * * that the said Stipulation, and the various provisions thereof be, and the same are hereby, approved; also that the Warranty Deed dated July 30, 1953, executed by Fellowship Foundation, Inc., a corporation not for profit to The Casements, Inc., a corporation not for profit, transferring and conveying the Casements property therein described, be, and the same is hereby, approved; and that the Agreement, including Bill of Sale, dated July 30, 1953, executed by said Fellowship Foundation, Inc. and said The Casements, Inc., be and the same is hereby approved; also all other papers therewith submitted for the purpose of carrying into effect the said stipulation be, and the same are hereby approved.
“Done and Ordered in Chambers at Palatka,' Florida, this 1st day of August, A.D., 1953'.” . .

. The stipulation referred to in the quoted order, in so far -as pertinent to the present appeal is as follows:

“1. That the plaintiffs have organized a new, separate and distinct corporation not for profit, known as ‘The Casements, Inc.’ which' said corporation is organized for the benefit of and on' behalf of all the room' owners at said , Casements.
* * * * * *
“4. The Casements, Inc., will assume and agree to pay all outstanding amounts due on contracts and open accounts hereafter listed; provided, however, any unpaid accounts for materials, supplies, and services furnished and used at The Casements project, which are not listed herein, because unknown at this time, will be assumed and paid by The Casements, Inc. * $ $»

Said stipulation was signed by the plaintiffs, Margie Benbow, C. C. Ehrhardt, L. S. McConnell and James Lambert. Except Lambert, these were the same persons appearing in the charter as incorporators in The Casements, Inc. The trial judge accordingly entered summary judgment for appellee in the amount of $1,037.95, plus interest and costs.

Appellant contends that the entry of summary judgment was error. Three questions are urged to support this contention but in our judgment but one primary question is obvious and the answer to that turns on whether or not the trial judge had sufficient evidence before him to show that The Casements, Inc., assumed the obligations of Fellowship Foundation, Inc., as revealed by the statement of account attached to the complaint.

So, the court had before him the stipulation signed by plaintiffs showing that they had formed a new corporation, The Casements, Inc., and that The Casements, Inc., had assumed certain obligations of its predecessor, Fellowship Foundation, Inc. The final decree in McConnell v. Fellowship Foundation, Inc., recited the transfer of assets of Fellowship Foundation, Inc., realty and personalty, to the successor, The Casements, Inc. From this evidence the court was warranted in finding that there was no genuine dispute of fact and that the successor corporation, The Casements, Inc., took the assets of Fellowship Foundation, Inc., charged with the debt due by appellant who was liable for the goods sold the predecessor corporation. Wolff v. Shreveport Gas, Electric Light & Power Co., 138 La. 743, 70 So. 789, L.R.A.1916D, 1138; Galatis v. Plasman, Fla., 80 So.2d 918; 13 Am.Jur., Corporations, Secs. 1236 and 1239.

The judgment in each case is, therefore, affirmed.

Affirmed.

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


text:
    Willie COHENS, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division B.
    Feb. 15, 1956.
   PER CURIAM.

Affirmed.


text:
    F. T. DORN, alias F. T. Dawn, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division B.
    Feb. 15, 1956.
   PER CURIAM.

Affirmed.


text:
    Willie HARDY, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division B.
    Feb. 15, 1956.
   PER CURIAM.

Affirmed.


text:
    HYBOB DRIVE-IN, Inc., Appellant, v. James V. CHRISTY, Appellee.
    Supreme Court of Florida. Division B.
    Feb. 15, 1956.
   PER CURIAM.

Affirmed.


text:
    Samuel A. KIRBY, alias S. A. Kirby, alias S. A. Kerby, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division B.
    Feb. 15, 1956.
   PER CURIAM.

Affirmed.


text:
    Florence MANNES, Robert Rockway and Belle Rockway, Appellants, v. Dorothea A. LOCKSHIN, Appellee.
    Supreme Court of Florida. Special Division A.
    Feb. 15, 1956.
   PER CURIAM.

Affirmed.


text:
    Clarence NELSON, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division B.
    Feb. 15, 1956.
   PER CURIAM.

Affirmed.


text:
    Arthur J. TODD and Theresa Todd, his Wife, Appellants, v. Arthur S. CULVER and Shirley Culver, his Wife, Appellees.
    Supreme Court of Florida. Division A.
    Feb. 15, 1956.
   PER CURIAM.

Affirmed.


text:
    C. R. ASHLEY et ux., Appellants, v. R. W. EDWARDS et al., Appellees.
    Supreme Court of Florida. Special Division B.
    Dec. 14, 1955.
    Rehearing Denied March 14, 1956.
   PER CURIAM.

Affirmed.


text:
    WATERHOUSE v. PRINGLE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    POMERANTZ v. SUN ‘N’ SEA, Inc.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    COLONA v. COLONA.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    Jesse EMMONS v. STATE.
    (Ct.Ct. 1176-B)
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    Jesse EMMONS v. STATE.
    (Ct.Ct. 1177-B)
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    William Howard GASKELL v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    Carl B. CARVER v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    DIESNER v. HOLLYWOOD AIR PARK.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    BLACK v. UNION FINANCE CO.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    SLATKO v. REED.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    HINTON v. CARL’S MARKETS, Inc.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    SCHWARTZ v. MOFFETT.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    STEIN v. ALTMAN.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.'


text:
    NELSON v. ZIEGLER.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    FLORIDA TELEPHONE CO. v. OWENS.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    FIACRE v. CHECKER CABS, Inc.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    Albert GINSBERG v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    CITY OF MIAMI v. FELL.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    COHRONE v. TINDALL.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    TEVANDER v. TEVANDER.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    Aaron Frank TAYLOR v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    Bland WALTERS v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    Charles William LAWRENCE v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    OSCEOLA GROVES v. HUFFMAN (two cases).
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    C. Lester JONES v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    HOULDSWORTH v. CONRAE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    CASMINSKI v. CARMICHAEL.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    GEORGE JOHNSON CONSTRUCTION CO. v. COOPER.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    HARALSON v. EDWARDS.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    MARTIN v. MADDOX.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion...


text:
    LAMBERT v. LAMBERT.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    MAYFLOWER OPERATING CO. v. EPSTEIN.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    NUZUM v. NUZUM.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion..


text:
    FEINBERG v. LIPSKY.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    HAUSER v. HAUSER.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    CASE LAND CORPORATION v. KERR.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    KAPLAN v. HARDEN.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    BOURGEOIS v. CITY OF MIAMI.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    BERNSTEIN v. JOHNSON SONS, Inc.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    MacDERMID v. MacDERMID.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    CERF v. LUDMAN CORPORATION.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    STATE ex rel. WEIDNER v. KELLER.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    SCHEUERMANN v. SCHEUERMANN.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    SCHMIDT v. WOOD.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    SHOTKIN v. CITY OF MIAMI BEACH.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    In re ESTATE of C. W. PARNELL.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion,.


text:
    BAUGHMAN v. WINN LOVETT GROCERY CO.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    STATE ROAD DEPARTMENT v. PARKS.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    Harry SHAMIS et al. v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    COUNNE v. SAFFAN.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    GERMANO v. ARROW CABS, Inc.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    GREENBERG v. AMALGAMATED CLOTHING WORKERS OF AMERICA.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    COPELAND v. THOMAS.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    BROWN v. BROWN.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without'opinion.


text:
    HOLLYWOOD, Inc. v. BROWARD COUNTY.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    PIRATES, Inc. v. McKinney, Jr.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    WATERMAN v. WILLIAMS.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    YOST v. MIAMI TRANSIT CO.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    ST. LUCIE RIVER CO. v. NEFF-THOMAS MACHINERY.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    TRINITY COLLEGE v. COE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    VON HALL v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    NETTLES v. McLEAN.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    SILEO v. SILEO.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    RIGHTS OF CITY OF CORAL GABLES v. ERVIN.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    Matter of GOODINGS, Inc.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    RIFKIN v. LANGER.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    STATE ex rel. HICKEY v. WELLS
    (Ct.Ct. #33245, 33226-F) (2 cases).
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    ESTATE OF Mattie Kate DAVIS.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    Jackie Eugene LEWIS v. STATE (2 cases).
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    James Floyd BRANHAM v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    ESTATE OF HELMICH.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    SNYDER v. BROWN.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    UNITED STATES of America v. PERMACRETE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.-


text:
    Raymond E. TILGHMAN v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    CARSWELL v. BROWN.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    WARRINER v. PALMQUIST.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    EDENFIELD v. McEUEN.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    YEARWOOD v. YEARWOOD.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    JONES v. JONES.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    NATIONAL UNION LIFE INSURANCE CO. v. 1955 SPRING TERM GRAND JURY.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    GIOIA v. LEVINE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    SMITH v. DWELLE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    ESTATE OF FERGUSON.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    GEEKER v. HUNTER.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without- opinion.


text:
    GOLDWYN v. STEVENS.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    HOLLENBECK v. HOLLENBECK.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    ULIUS v. UNDERHILL.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    SILVERMAN v. SPIEVACK.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    DARDIS v. LITTRELL.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion,,


text:
    VANIMAN v. PIERATT.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    CADENHEAD v. HUDSON.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    RAWLSON & CO. v. SMITH.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    EBNER v. FLORIDA INDUSTRIAL COMMISSION.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion. -


text:
    TROUSDALE v. CITY OF ST. PETERSBURG.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    BLUE v. SPIRES.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    PADGETT v. CARTER.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    Robert FULTON v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    Smalley PALMER v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    MEYER v. FIRST NATIONAL BANK IN ST. PETERSBURG.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    MILLER v. GULF LIFE INSURANCE CO.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    CELEBRITY HOMES, Inc. v. TERRY HOMES, Inc.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    EDWARDS v. WARNER.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    BACON v. BACON.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    Andrew KINSEY v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    JOYNER v. FRIEND.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    GEDALOWITZ v. LEVITAN.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    HANEL v. DANKO.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    ALBERT v. CITY OF MIAMI.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    Andre ANDREWS v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without, opinion.


text:
    RYAN v. BLACKBURN.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    CARPENTER v. CURLEE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    George H. McGEE v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    McKinley v. ANCHORS.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    Alma M. SMITH v. Maynard L. SMITH.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    BRAUN v. GREENBERG.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    PARK v. SHUSTERMAN.
    Supreme Court of Florida.
    June Term 1955.
   Dismissed without opinion.


text:
    McLEOD v. TAMPA TIMES CO.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari dismissed without opinion.


text:
    STEWART v. MACK.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari dismissed without opinion.


text:
    CUNNINGHAM v. LOWRY.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari dismissed without opinion.


text:
    FLOWERS v. SOUTHSIDE BAPTIST CHURCH.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari dismissed without opinion.


text:
    ATLANTIC COAST LINE R. CO. v. KING.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari dismissed without opinion.


text:
    CARROLL v. CUNNINGHAM.
    Supreme Court of Florida.
    June Term 1955.
   «Certiorari dismissed without opinion.


text:
    PEOPLES MEAT SUPPLY v. LOFTIN.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari dismissed without opinion.


text:
    RICHARDSON v. McMILLAN and Florida Industrial Commission.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari dismissed without opinion.


text:
    DURDEN v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari dismissed without opinion.


text:
    HELSEL v. PREU.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    McELROY v. PEASE.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    BABIJUICE CORPORATION v. PRESLEY and Florida Industrial Commission.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    TIME FINANCE SERVICE v. MAUND.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    GUNTER v. GREEN.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    BOARD OF PUBLIC INSTRUCTION v. PLATT.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    ROSEN v. YUSKOWITZ.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    POLLACK v. LEWIS.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    EDGE v. FLORIDA INDUSTRIAL COMMISSION.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    Sam H. BRUSS v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    THOMPSON v. PELL.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    James NELSON v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    JONES v. STATEWIDE TERMITE CONTROL.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    DAOUD v. MATZ.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    ROTHMAN v. GLOBE & RUTGERS FIRE INS. CO.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without.opinion.


text:
    GRAHAM AVIATION v. STANLY.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    JONES v. JONES.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    HERSH v. MIAMI TRANSIT CO.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    REDWING CARRIERS v. LOCAL UNION NO. 79 OF INTERNATIONAL BROTHERHOOD.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    FLORIDA PULP & PAPER CO. v. FLORIDA INDUSTRIAL COMMISSION and Daniell.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    BARONE v. BARONE.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    BISCAYNE OSTEOPATHIC HOSPITAL v. STAUF.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    WOLFE v. HILL and Florida Industrial Commission.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    COLLIER v. CITY OF HOMESTEAD.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    CAPE SABLE CORPORATION v. COLLINS.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    BUNKER v. KRONER.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    WOOD HOPKINS CONTRACTING CO. v. KING.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    BIBER v. CITY OF MIAMI.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    FOOD FAIR STORES v. ASHBURN.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    HASKELL v. HASKELL.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    PUCKETT v. CARRIGAN & BOLAND, Inc.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    AMMONS v. AMMONS.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    GREEN v. KING.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    LIEBERBAUM v. HALPERN.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    COHEN v. TEITELBAUM.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    BROWN v. SYNDER.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion,


text:
    AUFFMORDT v. LODER.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    DE CONTI v. SEA ISLE HOTEL.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    CARPENTERS LOCAL UNION NO. 2139 v. WINCHESTER.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    ROBERTS v. HENRY C. BECK CO.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion,


text:
    TANNER v. CARSON.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    GRAVES v. FIELDS.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    AMERICAN BRIDGE DIVISION v. CALDWELL.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    WOOD HOPKINS, Inc. v. KING.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    MARSIGLIA v. EASTERN AIR LINES, Inc. and Florida Industrial Commission.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion,


text:
    BALL v. MANN.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    KAY v. ACOLITE SIGN CO.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    GREGORY v. ZINNSER.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    STANDARD ACCIDENT INS. CO. v. GRADY.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    WOLFSON v. MORAN.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    HOLIDAY HOUSE v. HOTEL & RESTAURANT EMPLOYEES UNION.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    FINNARD v. CARMEN LAND CO., Inc.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    CABOT v. MOWLOG.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    CULLOTTA v. GIFFEN INDUSTRIES, Inc.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion,


text:
    SCHULTZ v. NELEN FLOCKED FOLIAGES, Inc.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    HUTCHINSON v. WHITEHURST (2 cases).
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    STRICKLAND v. WHITEHURST.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    C. & N. CONSTRUCTION CORPORATION v. A & B PIPE CO.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    CARL’S MARKETS, Inc. v. ATWELL.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    COCHRANE v. STATE BOARD OF ACCOUNTANCY.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    SCHUROWITZ v. CITY OF MIAMI.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    AVERILL v. PEZZA.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    HOUSER v. WILSON.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    WOOTEN v. LYKES BROTHERS, Inc.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    COTURE MOTOR CORPORATION v. HOLLAND.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    SILBERSTEIN v. SANDACK.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    STEPHENSON v. TROPICAL AWNING & SHUTTER CO.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    NATIONAL FIRE INS. CO. v. ANNIS.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    GRIM v. WARE.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    PRUSZ v. CITY OF FT. LAUDERDALE.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    BAILEY’S AUTO SERVICE v. MITCHELL.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    ORDER OF RAILWAY CONDUCTORS v. KING.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.


text:
    George W. MASON v. STATE.
    Supreme Court of Florida.
    June Term 1955.
   Certiorari denied without opinion.