text:
    The BERT LANE COMPANY, Inc., a Florida corporation, and Automatic Industries, Inc., a Florida corporation, Appellants, v. INTERNATIONAL INDUSTRIES, Inc., a Florida corporation, Harold D. McCulloh, Jack Ratner, and S. J. Dineen, and Giffen Industries, Inc., a Florida corporation, Appellees.
    Supreme Court of Florida. Special Division A.
    Dec. 14, 1955.

      Dubbin, Blatt & Schiff, Miami, and Turnbull & Hill, Tallahassee, for appellants.
    Evans, Mershon, Sawyer, Johnston & Simmons and Thomas S. Trantham, Jr., Miami, for appellees.
   ROBERTS, Justice.

Plaintiffs manufacture and distribute a patented amusement device known as a “Mobile Musical Carousel,” which is a small merry-go-round used primarily for advertising purposes by the purchasers. They sued the defendants in the Circuit Court of Dade County, alleging that the individual defendants were former employees who in the course of their employment had become familiar with and had appropriated the plans, specifications and design of the carousel, together with the promotional and merchandising schemes developed and copyrighted by plaintiffs, and their customer list, and had formed the defendant corporation, International Industries, Inc., to manufacture a device identical with that of plaintiffs’, to be known as a “Mobile Musical Merry Go ’Round”. It was also alleged that the defendant, Giffen Industries, Inc., had for many years manufactured for plaintiffs some of the component parts of their carousel from molds specified, designed and paid for by plaintiffs, and that the defendants had employed Giffen to manufacture similar parts for their competing device, using plaintiffs’ molds. The complaint prayed that the defendants be enjoined from manufacturing, selling or in any way distributing or advertising to the public the “Mobile Musical Merry Go ’Round”, from imitating the product or device of the plaintiffs, from appropriating the ideas and methods of the plaintiffs, — all of which was alleged to be “unfair business practices and unfair competition” — and for damages. The defendants filed a motion to dismiss the complaint on the ground, among others, that the state court had no jurisdiction of the subject matter. The motion was granted on that ground, and the cause was dismissed. Plaintiffs have appealed.

The point to be decided on this appeal is whether the plaintiffs’ suit is a case arising under the patent laws of the United States. If it is, then the appropriate federal district court has exclusive original jurisdiction of the controversy under Title 28, U.S.C.A. § 1338.

It is well settled that a controversy involving patent rights does not necessarily “arise under the patent laws,” so as to be within the exclusive jurisdiction of a federal court. The statute “does not deprive the state courts of the power to determine questions arising under the patent laws, but only of assuming jurisdiction of ‘cases’ arising under those law-s.” Pratt v. Paris Gas Light & Coke Co., 1897, 168 U.S. 255, 18 S.Ct. 62, 64, 42 L.Ed. 458. Accord: Wilson v. Sandford, 10 How. 99, 51 U.S. 99, 13 L.Ed. 344; Marsh v. Nichols, 140 U.S. 344, 11 S.Ct. 798, 35 L.Ed. 413; Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 185 U.S. 282, 22 S.Ct. 681, 46 L.Ed. 910; cases collected in the annotation in 167 A.L.R. pp. 1114 et seq. The patentee may elect to waive the right to sue in a federal court for infringement of his patent and may, instead, proceed in a state court to enforce some right protected by and enforceable under general common-law and equitable principles applicable in such state. Henry v. A. B. Dick Co., 1912, 224 U.S. 1, 32 S.Ct. 364, 367, 56 L.Ed. 645, and cases there cited.

In the case last cited, the Supreme Court of the United States said that the “test” to be applied in determining whether the plaintiff had stated a “case” arising under the patent laws, is this: “Does the complainant ‘set up some right, title, or interest under the patent laws of the United States, or make it appear that some right or privilege will be defeated by one construction, or sustained by another, of those laws?’”, citing Excelsior Wooden Pipe Co. v. Pacific Bridge Co., supra; Pratt v. Paris Gas Light & Coke Co., supra; and White v. Rankin, 144 U.S. 628, 12 S.Ct. 768, 36 L.Ed. 569. A clear and concise statement of the “test” for determining jurisdiction is made by the author of the annotation in 167 A.L.R., at page 1118, in the following language:

“Reduced to its lowest terms, the correct rule is that if the plaintiff founds his suit directly on a breach of some right created by the patent laws, he makes a case arising under those laws and only a federal court has jurisdiction; but if he founds his suit on some right vested in him by the common law, or by general equity jurisprudence, he makes a case arising under state law and only a state court has jurisdiction. * * * ”

In the instant case, the plaintiffs alleged that their amusement device was patented, but they did not allege an infringement thereof by the defendants nor did they rely upon the patent laws as the' basis of their suit. The gist of their complaint was that the defendants obtained, through a confidential relationship — that of employer and employee — knowledge of plaintiffs’ secret designs, plans and prospective customers, and used that information to their own advantage and plaintiffs’ detriment. It is well settled that an employee cannot lawfully use for his own advantage and to the harm of his employer confidential information which he has gained in the course of his employment, 35 Am.Jur., Master and Servant, Sec. 97, p. 525; 28 Am.Jur., Injunctions, Sec. 111, page 304; Restatement of Torts, Sec. 757; Connelly v. Special Road & Bridge Dist. No. 5, 1930, 99 Fla. 456, 126 So. 794, 71 A.L.R. 938; cases collected in the annotation in 165 A.L.R. pages 1453 et seq. And the fact that the article may have been patented does not necessarily require a holding that ■ the case is one “arising under” the patent laws. Becher v. Contoure Laboratories, Inc., 279 U.S. 388, 49 S.Ct. 356, 73 L.Ed. 752; Eckert v. Braun, 7 Cir., 1946, 155 F.2d 517; Aronson v. Orlov, 1917, 228 Mass. 1, 116 N.E. 951; Parissi v. General Electric Co., D.C.1951, 97 F.Supp. 333; Miroflector Co., Inc., v. Kline, 283 App.Div. 1097, 131 N.Y.S.2d 614. See also Smith v. Dravo Corp., 7 Cir., 1953, 203 F.2d 369, where the federal court said that jurisdiction of a cause of action for unlawful use of confidential information by a former employee is based upon diversity of citizenship, although it appeared that the purloined ideas had been patented.

In Becher v. Contoure Laboratories, Inc., supra [279 U.S. 388, 49 S.Ct. 357], relief was sought in a state court against a former employee who had obtained a patent on the basis of confidential information obtained from the former employer. As against the contention that the suit was a patent “case”, cognizable only in a federal court, the Supreme Court of the United States said: “It is plain that [the state court] suit had for its cause of action the breach of a contract or wrongful disregard of confidential relations, both matters independent of the patent law, and that the subject matter of Oppenheimer’s claim was an undisclosed invention which did not need a patent to protect it from disclosure by breach of trust.”

And in Aronson v. Orlov, supra, 116 N.E. 951, 954, involving a similar cause of action in a state court where the article was also patented, the Massachusetts Supreme Court said: “The case at bar in our opinion does not arise ‘under the patent laws’ of the United States. The plaintiffs do not rest upon any right secured by the patent laws, and they do not assail any monopoly conferred upon the defendants by such laws. Every reference to the application for a patent and to the patent laws might be stricken from the bill, and every fact respecting that subject might be eliminated from the master’s report, without affecting or impairing the fundamental rights, upon which the plaintiffs’ case rests. * * * The question which the plaintiffs are seeking to have settled in this cause is not their right to a patent but their right to be protected from unlawful trade interference.”

In Parissi v. General Electric Co., supra, 97 F.Supp. 333, 334, a suit for damages was filed in a state court against a former employee who misappropriated confidential information respecting a clock, which was patented by the employer, and the question in the federal court was whether the state court had jurisdiction. The federal court rejected the claim that the action necessarily involved the infringement and validity of plaintiff’s patent, and stated that “The controversy most certainly appears to be a common law action based upon the theory of unjust enrichment resulting from the misappropriation of an idea obtained under a confidential relation,” and that the allegations of the complaint respecting the patenting of the idea were “of no importance.”

Whether the plaintiffs could have sued in a federal court for infringement of their patent is not necessary to be decided. The fact remains that they elected not to do so, and have based their claim solely upon general equitable principles applicable in this state. A determination of their claim does not require a construction of the patent laws nor a finding that there has been an infringement by defendants of their patent. While the plaintiffs may not be entitled to the full relief prayed for in their complaint (which is not decided, since it is unnecessary), they have certainly stated a cause of action for some equitable relief in our state court, and it was, then, error to dismiss their complaint.

Accordingly, the decree appealed from is reversed and the cause remanded for further proceedings.

Reversed and remanded.

DREW, C. J., and TERRELL and SE-BRING, JJ., concur.


source: Caselaw Access Project

author: TERRELL, Justice.

license: Public Domain

text:
    STATE of Florida and the taxpayers, property owners and citizens thereof, including nonresidents owning property or subject to taxation therein, Appellants, v. INTER-AMERICAN CENTER AUTHORITY, a public corporation and an agency of the State of Florida, Appellee.
    Supreme Court of Florida. En Banc.
    Dec. 13, 1955.

      George A. Brautigam, State Atty., Miami, and John S. Lloyd, Asst. State Atty., Tallahassee, for appellants.
    - Richard W. Ervin, Atty. Gen., and Phillip Goldman, Asst. Atty. Gen., for appellee.
   TERRELL, Justice.

The Legislature of 1951 enacted Chapter 26614, now Chapter 554, Florida Statutes, F.S.A., creating the Inter-American Center Authority (hereinafter referred to as the Center Authority) as an agency of the state, ratifying and confirming the members of said Authority, prescribing the jurisdiction, powers and duties of said Authority, authorizing it to construct, maintain, operate and provide for the establishment, construction and operation of an Inter-American Cultural and Trade Center hereinafter referred to as the Trade Center, in or near the City of Miami as a permanent enterprise, to acquire land and buildings to operate said Trade Center, to issue revenue bonds without pledging the credit of the state or any subdivision thereof to pay them and for other purposes. Said Act also authorized the State Road Department to designate all roads within the Trade Center and approaching it as a part of the state road system and to expend state road funds to construct, reconstruct, improve, repair and maintain said roads as part of the state road system.

Chapter 26614 was amended by the following acts: Chapter 29830, Acts of 1955, granting Center Authority additional powers, including the right to fix and collect charges for admission to the Trade Center, such right not to be affected by the construction or the improvement of roads in or approaching the Trade Center; Chapter 29828, Acts of 1955, F.S.A. § 554.28, providing for a foreign trade zone within the Trade Center; Chapter 29827, Acts of 1955, F.S.A. § 210.20, providing for payment to the Trade Center of cigarette taxes collected on cigarettes sold at retail on property of the Trade Center, less 2(4% for administration; Chapter 29829, Acts of 1955, F.S.A. § 561.20, amending Sec. 561.20, Florida Statutes, to permit the issuance of not exceeding three liquor licenses to qualified applicants within the Trade Center. Chapter 30990, Sp. Acts of 1955, authorizing the City of Miami to sell and convey to the Center Authority properties in Dade County known as “The Graves Tract” and then authorized said Center Authority to lease or trade any part of said property for any lawful purpose of the Center Authority and in turn authorized the City of Miami to construct any buildings or structures on the property so conveyed upon terms and conditions mutually agreeable.

In 1954 the Center Authority employed Ebasco Services Incorporated, a nationally recognized firm of consulting engineers, to prepare a report on the feasibility of constructing an Inter-American Cultural and Trade Center in Dade County. In October 1954, Ebasco Services Incorporated filed its report recommending construction of the proposed Inter-American Cultural and Trade Center . on sites including The Graves Tract at the upper end of Biscayne Bay, which recited their estimates of cost and capital requirements, their estimate of revenues it would produce, the cost of operation and maintenance expenses. The report recommended that construction of the proposed Trade Center was feasible and that it would be self-liquidating. The Ebasco report also found “the functional purpose of the proposed center is to increase trade and strengthen cultural relations among the nations of the Western Hemisphere. This objective is to be accomplished mainly through industrial, commercial, educational and cultural exhibits of countries of the Western Hemisphere and other nations. The project is to be self-sustaining and self-liquidating and to assure adequate attendance and income, concessions are to be granted and attractions provided which will result in operations with mass appeal comparable to those of the New York and Chicago World’s Fair.” The report, pages 5-6, then goes on in more detail to define the ways and means by which these results may be accomplished.

August 5, 1955, the Center Authority adopted a resolution authorizing the issuance of bonds and the execution of a trust indenture securing them, the trust indenture being included in the bond resolution. The resolution and the trust indenture provided for the issuance of $70,000,-000 in the bonds of the Center Authority to pay the cost of the Trade Center, such bonds to consist of two series, $43,000,000 to be designated “Inter-American Cultural and Trade Center Revenue Bonds, Series A” and $27,000,000 to be designated “Inter-American Cultural and Trade Center Revenue Bonds, Series B,” said bonds to be dated June 1, 1955, and to mature December 1, 1985, subject to redemption on or after December 1, 1961, Series A Bonds at premiums ranging downward from 6% and Series B Bonds at premiums ranging downward from 12%; Series A Bonds also subject to redemption on or after June 1, 1958, at a premium of 4% as defined in the trust indenture which provides the manner in which both series of bonds be expended. Notice and order to show cause was seasonably given and published,- the state attorney on behalf of the State of Florida answered and at final hearing the court entered the decree dated September 9, 1955, validating the bonds. This appeal is from the validating decree.

It is first contended that the validation decree was unauthorized and unnecessary because Chapter 554, Florida Statutes, F.S.A., enables the Center Authority to issue bonds without any other proceedings.

It is true that Sec. 554.08(2), Florida Statutes, F.S.A., provides that “such bonds may be issued without any other proceedings,” but it does not prohibit validation proceedings and Sec. 554.18, Florida Statutes, F.S.A., provides that bonds issued by the Center Authority “may be validated and confirmed by the circuit court of Dade county under the provisions of Chapter 75,' Florida Statutes,” which applies to every kind of a taxing unit known to the state' “including also state agencies, commissions and departments authorized by law to issue bonds may, if deemed expedient, determine its authority to incur bonded debt or issue certificates of indebtedness and the legality of all proceedings in connection therewith, including proper cases, any assessment of taxes levied or to be levied, the lien of such taxes, and of proceedings or other remedies for their collection.”

In State v. City of Miami, 113 Fla. 280, 152 So. 6, 8, this court reviewed the history and purpose of the validation statute, Chapter 75, Florida Statutes, F.S.A., and since that decision it appears that Sec. 75.02 was amended in 1949 to include state agencies, commissions and departments authorized to issue bonds. So whether it was "necessary” to validate the bonds in question was a matter for the Center Authority to decide and having so decided, the court was authorized to entertain jurisdiction of the validation proceedings. It is now the universal practice to validate bonds to remove questions raised as to their constitutional validity and proceedings for issuing them. See North Shore Bank v. Town of Surfside, Fla., 72 So.2d 659.

Appellants also contend that it was error for the chancellor to pronounce in his validation decree that the proposed bonds were for a 'public purpose when congress and the legislature had' passed resolutions to like effect and evidence taken at the validation proceedings indicated that private enterprise would be primarily benefitted. We do not think there is any merit to this contention. Chapter 26614 recognizes that the continued prosperity and development of the United States and the State of Florida in particular, require improved relationships and increased trade with Latin-American Republics and other countries. Hence, creation of an Inter-American Cultural and Trade Center in Florida was unanimously endorsed by Congress and the President, Joint Res. Sept. 27, 1950, Public Law 853, 64 Stat. 1075. To make the assertions charged in the validation decree was purely discretionary and did not add to or subtract from its force or validity.

It is next contended that the construction of an Inter-American Cultural and .Trade Center is not a public purpose and therefore violates Section 10, Article IX of the Constitution, F.S.A.

The functional and the overall purpose of the Trg.de Center we have alluded to in the forepart of, this opinion by quoting, from the Ebasco report. In numerous decisions of this court we have approved the imposition of taxes. as being in aid of a public purpose. State v. City of Miami, Fla., 76 So.2d 294, dealing with an international trade mart; State v. Town of North Miami, Fla., 59 So.2d 779, 783, having to do with an advertising tax; C. V. Floyd Fruit Co. v. Florida Citrus Commission, 128 Fla. 565, 175 So. 248, 112 A.L.R. 562, approving a tax on citrus fruits for advertising purposes; State v. City of Daytona Beach, 160 Fla. 13, 33 So.2d 218, in which we upheld a tax for the construction of an auditorium, stadium, boat basin and a Negro recreational center designed to enhance the attractiveness of the city as a resort center; State v. Escambia County, Fla., 52 So.2d 125, in which we approved a tax for better recreational facilities for the local and the general public; Starlight Corp. v. City of Miami Beach, Fla., 57 So.2d 6, relating to the use of the municipal auditorium. In all of these cases we approved bond issues or taxes to encourage recreational, business or other facilities for a public purpose. Since the erection of a Trade Center is designed to strengthen. cultural relations among the countries of the Western Hemisphere, it can not be said that it amounts to a pledge or loan of the credit of the state to an individual, company, corporation or association in violation of Section 10, Article IX of the Constitution. See also Kentucky Live Stock Breeders’ Ass’n v. Hager, 120 Ky. 125, 85 S.W. 738; Briggs v. City of Raleigh, 195 N.C. 223, 141 S.E. 597; Sec. 554.16, Florida Statutes, F.S.A., relating to a public purpose and Sec. 4, Chapter 29830, Acts of 1955, declaring that “the creation of the authority and the carrying out of its purposes is in all respects for the benefit of the people of this state and is a public purpose”. Saunders v. City of Jacksonville, 157 Fla. 240, 25 So.2d 648; State v. Monroe County, 148 Fla. 111, 3 So.2d 754, and State ex rel. Harper v. McDavid, 145 Fla. 605, 200 So. 100, 133 A.L.R. 360, uphold such findings.

The doctrine of the foregoing cases is perhaps the best answer to this question. In other words, is the construction of an Inter-American Cultural and Trade Center violative of Section 10, Article IX of the Constitution which inhibits loaning or pledging the credit of the state to any individual, company, corporation or association or to become a stockholder in one ? A thorough reading of the text and preamble to Chapter 26614 is also a good answer and' the following from the Ebasco report (pp. 5, 6) should remove any doubt as to correctness of the answer:

“The over-.all plan of the Center will be that of an . unexcelled subtropical -garden which will permit advantage to be = taken of the area’s natural beauty and Florida’s exotic flora. Spectacular results will be . possible with modern techniques of garden landscaping and 'structural lighting. Low average building elevations will result in an integrated blending of gardens, buildings, walkways and roads. Layout, planning, landscaping and lighting effects will reduce the awareness of the visitor that he ijs passing from building to building as he moves throughout the exhibitions.
******
“The theme point of the Center will contain a lagoon area with a multipurpose amphitheatre, and will be surrounded by circular levels of exhibition buildings. A canal system will wind throughout the grounds and a canal moat will protect the Center on all land fronting sides. Projected also are an amusement section, picnic and bathing grounds, horticultural and agricultural displays, gardens for religious activities and meditation, birds and animals in natural habitat, children’s playground, etc.
******
“The project is expected to have particular appeal to the large number of tourists and vacationers who each year are attracted to the State of Florida’s natural beauty, climate and unsurpassed recreational facilities. It is estimated that attendance at the Center for each of the first three years of operation will range from 12,000,000 persons to 15,000,000 persons. Thereafter it is expected that average annual attendance for the life of the project will average about 10,000,000 persons. These estimates take into account Florida’s tremendous population and tourist growth, population characteristics, incidence of attendance at various other Florida attractions and the appeal of the Center itself.
******
“(P. 24) : The tourist trade is Florida’s principal source of income. Its importance to the State may be measured by the fact that it almost equals the combined income from agriculture and manufacturing. The State Chamber of Commerce has estimated that 5,100,000 tourists came into Florida in 1953 marking an increase from 1,730,-000 persons in 1930 or a gain of 200%. At the present rate of growth, the tourist population of the State will increase to 5,500,000 persons by 1958, the proposed opening year for the Center.”

As to the third point raised, appellants contend (a) the provisions of the trust indenture requiring the approval of the consulting engineers for action by or on behalf of the Center Authority constitute an unlawful delegation of power; (b) the provisions of the trust indenture with respect to a management division and managing director constitute an unlawful delegation of power by the Center Authority.

Section 554.07(5), Florida Statutes, F.S.A., provides that the Center Authority may “employ consulting engineers, architects, superintendents or managers, accountants, inspectors and attorneys, and such other employees as may be deemed necessary, and to prescribe their powers and duties and to fix their compensation”. Section 554.10, Florida Statutes, F.S.A., provides that the resolution authorizing the issuance of the bonds, the trust indenture may contain such provisions for protecting and enforcing the rights and remedies of the bondholders as may be reasonable, proper and not in violation of law, including covenants setting forth the duties of the authority in relation to the construction, acquisition, improvement, maintenance, operation, repair and insurance of the Trade Center properties acquired and may also provide that such Trade Center, or any part thereof, shall be constructed and paid for under the supervision and approval of consulting engineers employed or designated by the Authority and satisfaction to the original purchasers of the bonds.

The duties imposed on the consulting engineer by the trust indenture have been examined and are concerned primarily with estimates that require technical skill and knowledge necessary to construct, finance and operate a project of the proportions of the. Trade Center, We are familiar with the rule that in the absence of statutory-authority, a public officer can not delegate his powers, even with the approval of the court. We do not think the duties imposed on the engineer in this case went further than was necessary to protect the bondholders and the Center Authority to carry out the objectives of the act and to assure a correct, economical and successful operation of the enterprise on a self-liquidating basis. Section 708 of the trust indenture recognizes and makes extra provision for the protection of the bondholders in the employment of key personnel. This is necessary because the Authority is a continuing one and requires extraordinary skill in managing and accounting. Section 554.10, Florida Statutes, F.S.A., recognizes that the Authority will require managerial and promotional ability of the highest order and makes the usual but exacting provision to secure it. This is not alone necessary to protect the bondholders, it is essential to protect the Center Authority. State v. City of Key West, 153 Fla. 226, 14 So.2d 707. The executive management of a project the proportions of this must have a very competent staff and we do not find that the Authority given the staff in this case exceeds that required of good business management.

The next question for determination is whether or not the bonds of the Center Authority constitute a debt of the State of Florida in violation of Section 6, Article IX of the State Constitution.

The trust indenture as well as the face of each bond provides that “the Authority is not obligated to pay this bond or the interest thereon except from revenues of the Authority, and neither the faith and credit nor the taxing power of the State of Florida or of any municipality or county in the state is pledged to the payment of the principal of or the interest on this bond. No holder of this bond shall ever have the right to compel any exercise of the taxing power on the part of the Authority or of any municipality or county or of any other agency possessing the taxing power to pay this bond or the interest thereon or to enforce the payment thereof against property of the Authority or of any municipality or county in the state.”

Section 101 of the trust indenture provides that the bonds of the Authority are payable from (1) admission fees and revenue producing services; (2) cigarette taxes collected on cigarettes sold at retail on the property of the Center Authority; (3) certain excise taxes collected by the Center Authority; (4) beverage and other license taxes authorized to be collected by the Center Authority; (5) operating or leasing property of the Center Authority. In State v. City of Miami, Fla., 63 So.2d 333, we held that the purpose of Section 6, Article IX of the Constitution was to prohibit counties, districts or municipalities from issuing any bonds, except refunding bonds, unless such bonds were approved by a vote of the freeholders. Bonds or certificates of indebtedness payable solely from revenues derived from facilities provided by the proceeds of the bonds were excepted. State v. City of Winter Park, 160 Fla. 330, 34 So.2d 740; Schmeller v. City of Fort Lauderdale, Fla., 38 So.2d 36. Appellant relies on these cases to defeat the bonds.

Appellee contends on the other hand, that State v. City of Tampa, Fla., 72 So.2d 371; State v. City of Miami, Fla., 72 So.2d 655, 656, and State v. City of Coral Gables, Fla., 72 So.2d 48, 49, approve the rule that the cigarette tax imposed by Chapter 210, F.S.A., is an excise tax and may be used or appropriated by municipalities as the legislature directs without an approving vote of the freeholders as required by Section 6, Article IX of the Constitution. See also cases cited in State v. City of Coral Gables, last cited. The acts detailed in the second paragraph of this opinion follow the line defined in State v. City of Coral Gables and cases therein cited in applying the tax collected on cigarettes to payment of principal and interest on the bonds. Other excises mentioned in the preceding paragraph are not directly challenged and are not treated in this opinion.

The next question is whether or not the provisions of the trust indenture, including those of Chapter 30990, Special Acts of 1955, authorizing the Center Authority to lease, exchange or trade any part of The Graves Tract for payment or satisfaction of any bonds or other obligations of the Authority, under which provision the Authority may lease said property as residential, commercial or industrial uses for a period of years, are not in violation of Section 10, Article IX of the Constitution.

Appellants contend that the power granted the Authority under Chapter 30990 and Sections 412 and 403 of the trust indenture do not serve a public or municipal purpose and consequently violate Section 10, Article IX of the Constitution. State v. Town of North Miami, Fla., 59 So.2d 779, is relied on to support this contention. The Inter-American Cultural and Trade Center will provide means to display the industrial, commercial, agricultural and other products of the state. The place or means so provided will be owned, operated and administered by the Center Authority, all of which is authorized by the statute fer a public purpose. Any leases or rentals to concessionaries or other lessees to accomplish the purpose of the Center Authority could in no sense be said to be a loan on the credit of the state to any individual, company, corporation or association, State v. Dade County, Fla., 62 So.2d 404.

The Graves Tract consists ©f approximately 1,652 acres. In addition the Authority contemplates acquiring 185 acres from private owners adjoining The Graves Tract. These lands revert to the city in event construction of the Trade Center be abandoned and that all bonds of the Authority, including refunding bonds, be fully paid and. discharged. Section 554.07, Florida Statutes, F.S.A., expressly authorizes the Authority to “lease and dispose of real and personal property for its authorized purposes.” Chapter 30990, and other applicable acts vest power in the Authority to do all things necessary to accomplish the purpose of the Authority on businesslike basis. In many instances it proceeds on the advice of the engineer; to discuss all of these provisions would require a very lengthy opinion. We have examined them in detail but find nothing that could be said to violate Section 10, Article IX of the Constitution, the purpose and scope ©tf which was discussed in Bailey v. City of Tampa, 92 Fla. 1030, 111 So. 119. See also State v. City of Miami, Fla., 76 So.2d 294, 297, where we considered bonds of the City of Miami for an International Trade Mart, and North Carolina State Ports Authority v. First-Citizens Bank & Trust Co., 242 N.C. 416, 88 S.E.2d 109.

The next question is whether or not Chapter 29830, Acts of 1955, exempting bonds, charges for admissions and other excises levied by the authority, pursuant to .law, including property acquired by it and revenues received therefrom, violates Section 1, Article IX of the Constitution.

Section 1, Article IX of the Constitution, has to do with exemptions from taxation. The substance of it is that the legislature shall prescribe regulations to secure just valuations of property for taxation except property exempt by law for municipal, educational, literary, scientific and other purposes. In order to implement this provision, Sec. 192.06, Florida Statutes, F.S.A., provides:

“The following property shall be exempt from taxation:
“(1) All property, real and personal, of the United States and of this state, except such property of the United States as shall be subject to taxation by this state or any political subdivision or municipality thereof under any law of the United States.
“(2) All public property of the several counties, cities, villages, towns and school districts in this state, used or intended for public purposes, including both real and personal property of all fire, hose and hook and ladder companies, except lands sold for taxes for the use of any counties, cities, villages, towns or school districts.”

Section 554.01, Florida Statutes, F.S.A., speaking of the Inter-American Cultural and Trade Center, .says “There is hereby created and constituted, as an agency of the State of Florida the inter-American center authority * * The members of the Authority are the Governor who is ex officio chairman, and ten others appointed by the Governor. Section 554.16, Florida Statutes, F.S.A., exempts the Authority and its property from tax assessments and declares, “that the creation of the authority and the carrying out of its purposes is in all respects for the benefit of the people of this state and is a public purpose and that the authority will be performing an essential governmental function in the exercise of the power conferred upon it by this Act.” A like' determination was made by Chapter 29830, Florida Laws 1955, which provides that the bonds of the Authority, shall at all times be free from taxation within the state and exempts the Authority from all admissions and other excise taxes.

In Bancroft Inv. Corp. v. City of Jacksonville, 157 Fla. 546, 27 So.2d 162, 170, this court pointed out that exemptions from taxation enumerated in Sec. 192.06, Florida Statutes, F.S.A., are on the theory that the property so' exempted, including Federal and State property, is held and used for municipal, educational, scientific, literary, religious or charitable purposes. This doctrine was affirmed in State v. Escambia County, supra; Saunders v. City of Jacksonville, supra. In Briggs v. City of Raleigh, supra [195 N.C. 223, 141 S.E. 599], speaking with reference to the purpose of a state fair as an educational agency, the court said, “promote the general welfare of the people, advance their education in matters pertaining to agriculture and industry, increase their appreciation for the arts and the sciences, and bring them in closer touch' with many things which otherwise might remain in reserve”.

The criterion for exemption from taxation is the character of the use to which the property is put and not the character of the ownership. State ex rel. Cragor Co. v. Doss, 150 Fla. 486, 8 So.2d 15; City of Lakeland v. Amos, 106 Fla. 873, 143 So. 744. Such' exemptions being in the nature of special privileges should he strictly construed against the claimant and m favor of the taxing power. Lummus v. Florida-Adirondack School, 123 Fla. 810, 168 So. 232; Lummus v. Miami Military Academy, Inc., 123 Fla. 832, 168 So. 241; Steuart v. State ex rel. Dolcimascolo, 119 Fla. 117, 161 So. 378.

The exemption in this case was in behalf of the Inter-American Cultural and Trade Center. The legislature found that its properties came within the terms of the Constitution and provided for their exemption. The legislature’s finding was based on the policy of the state to “foster and develop international and domestic trade for the benefit of the state and nation, particularly trade in the natural; processed and manufactured products of the state and country, accompanied by an exchange of skills, the promotion of cultural understanding, and the creation of friendship and solidarity between the nations and peoples of the Western Hemisphere.” The scheme proposed was approved by the Congress and the President of the United States and what it will accomplish in an educational, cultural or scientific line is for the future to reveal.

The most valuable part of my medical training, said a young intern, was selling vacuum' cleaners in the summer between terms. His reasons, though logical and convincing, I do not detail but use the illustration to point the necessity for expanding the orthodox concept of what the makers of the Constitution had in mind when they authorized the legislature to exempt from taxation property used for “education,” “scientific” and other purposes. Certainly “educational” and “scientific” use can not now be limited to what one’s certificate of graduation from high school and college or university connotes. In the establishment of an Inter-American Cultural and Trade Center for the purpose of intermingling the cultures, the friendships, the trades, crafts, processed and manufactured products, the “know how” and other skills of the people of the Western Hemisphere, the legislature precipitated an unusual experiment. It was conceived as having great educational and scientific potentialities and as an encouragement of the legislature proposes to exempt its properties from taxation. It is not for this court to say that its constitutional prerogative was exceeded or that its discretion was abused in so doing.

It is last contended that Chapter 29830, Acts of 1955, authorizing the Authority to fix and collect charges for admission to the Trade Center and for the privilege of entering or staying in any exhibition, place of amusement or other facility such power not to be affected by the improvement of roads within the Trade Center does not violate Sections 1 and 12, Declaration of Rights, Constitution of Florida.

Appellants contend that not one penny of the admission fees paid to the Authority inures to the state. The facts are that such admissions will be paid to the Authority under the trust indenture to retire the bonds so long as they, or any of them, are outstanding, but when they are retired, all such charges inure to the state. Masters v. Duval County, 114 Fla. 205, 154 So. 172, and Bogart v. Westchester County, 185 Misc. 561, 57 N.Y.S.2d 506, appear to conclude this question.

We have examined Sections 1 and 12, Declaration of Rights, and there is no showing that the guaranties in either will be invaded by Chapter 29830, Acts of 1955. This court does not consider suggestions invoking constitutional guaranties on mere abstract questions. Such adjudication must derive from one affected by the point raised. Here we have nothing but a bald asserted invasion directed to no one in particular which is far from sufficient to evoke an adjudication by any court.

After all, the question here goes to the power of the legislature to create an Inter-American Center Authority and authorize it to establish and operate an Inter-American Cultural and Trade Center. From the land authorized to be acquired, approximately 1,900 acres, the bonds proposed, $70,000,000, and the layout recommended by the Ebasco report, the Trade Center proposed is of immense proportions, rivaling the Chicago and New York World’s Fairs of the 1930’s. We find no inhibition in the Constitution against provision for such a project, neither do we find any invalidity to the taxes proposed in so far as they are challenged here. We express no opinion as to questions that may lurk in the challenged acts that are not presented. As to the policy and means of fostering such an experiment, the courts have nothing to-do. We are concerned only with whether the bonds and proceedings leading to their issue comply with the law. State v. Florida State Turnpike Authority, Fla., 80 So.2d 337.

The decree appealed from is, therefore,

Affirmed.

DREW, C. J., THOMAS, ROBERTS, THORNAL and O’CONNELL, JJ., and CRAWFORD, Associate Justice, concur.


author: W. A. STANLY, Associate Justice.

text:
    Forrest B. LINDLEY, Appellant, v. Katherine P. LINDLEY, Appellee.
    Supreme Court of Florida. Special Division A.
    Dec. 14, 1955.

      Sheppard & Roberts, Fort Myers, for appellant.
    Blackwell, Walker & Gray, Miami, for appellee.
   W. A. STANLY, Associate Justice.

This appeal challenges the propriety of certain provisions incorporated in a Final Decree rendered in a divorce action. In the lower court the plaintiff wife, who is the appellee here, was awarded a divorce from her husband, who is the appellant here, and also custody of their two minor children, and to that extent the final decree goes Unchallenged. However, among other assignments of error which need not be discussed, the husband contends that the chancellor below committed reversible error by decreeing in substance, that: (a) the wife was joint owner of two automobiles disposed of by husband without her consent, and awarding the wife a personal judgment against the husband for one-half of the proceeds he derived therefrom; (b) the wife was the owner of a promissory note in the peincipal sum of $5,000 originally given by the husband to the wife’s father, who undertook to transfer same to the wife, and awarding the wife a personal judgment against the husband for principal and interest due thereunder; (c) the husband shall maintain unencumbered a $20,000 life insurance policy payable to the two minor children until the youngest becomes twenty-one years old; and (d) that husband shall convey his undivided one-half interest in an eight unit apartment building located in Naples, Florida, referred to as the “Town House”, and the furnishings, fixtures and appliances situated thereon, and also deposits of money held by the Bank of Naples, Florida, and utility companies incident to the operation of said Town House, to the wife as a lump sum settlement of her claim for alimony, subject to the burden of applying one-half of the income derived therefrom toward support and maintenance of their minor children.

The parties were married in 1946 while the husband was serving as a captain in the United States Air Force. He had been previously divorced by two former wives, but the instant marriage was the first such venture for the appellee wife. Upon being mustered out of the service the husband availed himself of an attractive business opportunity created for him by the wife’s father, who was the founder and dominant head of a business firm engaged in the manufacture of bakery supplies and equipment at Columbus, Ohio. The previous growth and prosperity of that business had enabled the father-in-law to constitute it into a family partnership in which his other three children, together with their respective spouses, already held profit sharing interests. Although the husband had no previous business experience of any consequence his father-in-law soon guided him into positions of Purchasing Agent, Director of Installation of Service, and Credit Manager of the company, yielding an income of approximately $15,000 per year. In addition, the father-in-law arranged for both his daughter and her husband, the parties to this suit, to buy profit sharing interests in the family partnership. To accomplish such purchase the husband paid $3,300 for his share and loaned his wife $5,600 to purchase her share. The wife repaid the loan soon afterward.

Two children were born to the parties, and with the aid of a $5,000 advance from the wife’s father, they purchased an attractive home and enjoyed a standard of living comparable to their friends' and relatives. This setup in Columbus, Ohio, appeared conducive to marital tranquility but after approximately six years of it the husband prevailed upon his wife to liquidate their holdings there and invest the proceeds derived therefrom in construction of an eight unit apartment building in Naples, Florida. According to that plan each withdrew from the aforementioned partnership, whereupon the husband received approximately $22,000, and transfer of title to a Buick and Cadillac automobile for his interest in the partner- , ship, and the wife received $22,000, together with a promissory note of the partnership in the amount of $40,000, bearing interest at five per cent per annum, for her interest in the partnership. The $44,000 cash thus derived by the parties, plus approximately $6,000 more advanced by the husband, was in turn invested by the parties in the aforementioned Town House project. An additional $30,000 raised by mortgage loans was required to complete the construction, furnishing and equipping of said project.

It had been contemplated that the parties would also sell their Columbus home and move to the Town House, but while the wife and children were remaining temporarily in Columbus pending sale of the home there, the procuring of suitable family accomodations in Naples pending completion of the Town House, and arranging of other details incident to an orderly move, the husband became infatuated with a divorcee in Naples. Thereafter he lavished his attentions on her and openly indulged in adulterous living with her, humiliating his family and squandering his money in a fashion demonstrative of an immoral, selfish and unstable person.

The wife brought this suit for divorce and other incidental relief. The chancellor below heard the testimony of the parties and thereafter entered final decree in favor of the wife. We are asked by the husband to set aside portions of the final decree.

One of the assignments of error relates to paragraph 5(1) of the decree wherein the lower court decreed “That said , parties jointly owned two automobiles, a Cadillac and a Buick, notwithstanding that the title to said automobiles was held in the name of defendant (husband).” The husband testified the vehicles were transferred to him individually from the partnership in partial consideration of his surrender of his partnership interest, in consumation of which the partnership not only delivered the actual possession of both vehicles to-him individually, but also executed and delivered to him appropriate title registration certificates designating him alone to be the new owner of the vehicles involved. He maintained and controlled them at all times thereafter. The burden of proof to establish, to the exclusion of reasonable doubt, that the wife acquired either a legal or equitable interest in the vehicles rested upon the wife but it is our interpretation of the evidence that she failed to meet, or satisfy, that burden. Accordingly, it was error to hold the husband accountable to the wife for the sum of $1,432.50, representing one-half of the proceeds derived from the sale of such vehicles, and to include said sum in the amount of the personal judgment against the husband provided for in the final decree.

Another assignment of error relates to paragraph 5(2) of the decree wherein it adjudged the wife to be the owner of the promissory note, dated November 3, 1949, in the principle sum of $5,000 given by the husband to the wife’s father and payable on demand. Both the wife and father testified that nothing of value passed between them at the time of its transfer. The husband insists that he and the father-in-law had a clear understanding that the note would not be regarded as evidence of any debt between them. Many years had elapsed without any previous call for payment being made. Until the transfer occurred on the eve of this- litigation, it had never occupied the status of an alleged property right existing between the parties to this suit. Notwithstanding the alleged transfer the wife stated that if, and when, she might collect something on the note she would in turn transmit such collections, up to $2,500 on to her father. The circumstances of the transaction preclude us from concluding that the wife became the unconditional owner and holder of the note in due course so as to create•a present property right existing between husband and wife which should be an appropriate subject of litigation in this divorce proceeding.' Hence it was error to undertake to adjudicate the matter in this suit, or include the amount thereof, together with interest- thereon, in ■ the personal judgment against the husband provided for in the final decree.

The husband assigns as error paragraph 7 of the decree requiring him to maintain a $20,000 life insurance policy for the benefit of the children, and to refrain from obtaining loans of money secured by said policy or otherwise impairing the value thereof until the younger child shall become twenty-one years old. In consideration of the impact which other approved provisions of the final decree will have upon the financial status of the husband and the remoteness of tangible benefit accruing to the children as a result thereof we conclude that the circumstances prevailing in this case render it inequitable to impose that requirement upon the husband.

Complaint is levelled at the chancellor’s method of providing for alimony for the wife and support money for the minor children. No contention is made that the evidence fails to show actual needs of the wife and children for such an award to the full extent which the husband’s means may reasonably permit. It was a matter for the chancellor in the exercise of his discretion to determine from the circumstances found to exist in this case. The evidence showed that the husband had a teenage daughter by a former marriage, and that notwithstanding a court order requiring him to contribute toward her support he had neglected to do so even when he was able to accumulate substantial savings. In the instant case he was found to be in contempt for his wilful failure to comply with the order for temporary support and maintenance of the wife and minor children. After his infatuation with the divorcee he tapped every source of money available to him, and it is reasonable to assume that if 'he had been able to cash in his equity in the Town House property he would have done so with result that much, if not all of it, may have been squan- ■ dered or placed beyond the reach of his needy family. Section 65.08, Florida Statues, F.S.A., confers jurisdiction to ord'er lump sum payment of alimony. ' Although the case Of Yandell v. Yandell, Fla., 39 So.2d 554, 555, 556, cited by appellant admonishes against the award of a lump sum allowance where to do so would unreasonably deplete the husband’s financial position or endanger his economic status or business or professional activities, that case likewise indicates that there are “those instances where some special equities might require it or make it advisable; for instance, where the wife may have brought to the marriage, or assisted her husband in accumulating, property * *

From the facts of this case it is evident that the wife, and through her, the benefactions of her father in arranging for her husband to acquire a profit sharing interest in their family partnership, assisted her husband in accumulating the identical funds which were used to acquire his interest in the Town House property. Furthermore the findings of fact made by the chancellor fully warranted his determination to require security from the husband to assure future support of the wife and minor children. Section 65.14, Florida Statues, F.S.A. His interest in the Town House property afforded the only source of security that could be provided in the matter. Paragraph 6 of the final decree dealing with that particular subject, in substance, required the husband to convey his one-half interest in the Town House property to the wife as a lump sum settlement of her claim for alimony, provided that her acquisition thereof shall be burdened with the specific requirement that she apply one-half of the net income derived therefrom toward the support and maintenance of the minor children, and further required that in event of sale of same by the wife, then one-half of the •net proceeds of said sale shall be invested and applied to provide support and maintenance for said children during minority, or until marriage at an earlier date.

In the drafting of that provision it would .appear that the chancellor aptly applied the principles which we heretofore approved in Bezanilla v. Bezanilla, Fla., 65 So.2d 754. It is not shown that the overall purpose to 'be accomplished by such provisions of the •decree were either unreasonable or clearly erroneous. Such portion of the decree is therefore affirmed.

The remaining assignments of error have been considered and found to be without merit. We think the decree appealed from should be revised to omit the objectionable matters pointed out above, but in all other respects should be and is hereby affirmed. The case is remanded with directions to revise the final decree in conformity herewith.

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


author: THORNAL, Justice.

text:
    ADVERTECTS, Inc., Appellant, v. SAWYER INDUSTRIES, Inc., Appellee.
    Supreme Court of Florida. Special Division B.
    Dec. 14, 1955

      Sibley & Davis and Milton E. Grusmark. Miami Beach, for appellant.
    Marx M. Faber, Miami, for appellee.
   THORNAL, Justice.

Appellant seeks reversal of an order of the trial Judge refusing issuance of a rule nisi which would require the stockholders of appellee corporation to show cause why a judgment held by appellant against the corporation should not be satisfied out of the assets of the individual stockholders. This cause has been before this Court on three previous occasions. See 53 So.2d 671; 54 So.2d 692; and 64 So.2d 300.

Appellant, who was plaintiff below, recovered a money judgment against ap-pellee corporation, which was defendant below. Writ of execution issued and was returned unsatisfied because of the inability ■of the sheriff to find any assets of • the defendant. Thereafter in a proceeding supplementary to execution authorized by F.S. § 55.52 et seq., F.S.A., the statutory affidavit was filed and a Commissioner was appointed to hear testimony and report his findings in the supplementary proceeding.

Among other things, the Commissioner found that A. Neil Sawyer and his wife, Kay Sawyer, hereinafter described as “the stockholders” organized Sawyer Industries, Inc. as a convenient method of doing business without subjecting themselves to personal liability and recommended to the Court that a rule nisi be issued directing the stockholders “to show cause why they should not be held personally liable for the judgment heretofore entered against defendant corporation and be impleaded as parties to the cause”.

After an examination of the record, the trial Judge declined to follow the recommendation of the Commissioner and refused the issuance of the rule. He also refused on request to include in his order of denial that it was “without prejudice of plaintiff’s right to seek appropriate relief in equity”.

Appellant seeks reversal on the proposition that the issuance of the requested rule is merely procedural and that the ultimate question of whether the stockholders should be impleaded and a personal judgment entered against them is one that would have to be determined upon the filing of an answer and the taking of testimony after the rule to show cause was issued and served upon them.

Appellee contends that testimony offered before the Commissioner is insufficient to sustain the issuance of the requested rule for the reason that there is no showing that there are any corporate assets in the hands of the stockkholders or that there was any fraud or bad faith either in the organization or in the handling of the assets of the corporate entity.

We have held that the proceedings supplementary to execution authorized by F.S. §§ 55,52-55.61, F.S.A., are intended to afford to a judgment creditor the most complete relief possible in satisfying his judgment. Actually, such a proceeding constitutes a separate legal cause from that of the main suit in which the judgment is procured and it may be employed as a substitute for a creditor’s bill in equity. Due process is provided by the opportunity given to the stockholders to answer the allegations of the rule nisi. See Johnson v. Merry Go Round, Inc., Fla.1950, 45 So.2d 181; and Riley v. Fatt, Fla.1950, 47 So.2d 769.

In the instant case, however, we are confronted with the problem of whether the factual situation developed by the testimony offered before the Commissioner’ supports the issuance of such a rule as a procedural approach to piercing the corporate veil and destroying the corporate barrier standing between the judgment creditor and the individual stockholders of the corporation. •The corporate veil w-ill not be penetrated either at law or in equity unless it is shown that the corporation was organized or employed to mislead creditors or to work a fraud upon them.

Every corporation is organized as a business organization to create a legal entity that can do business in its own right and on its own credit as distinguished from the credit and assets of its individual stockholders. The mere fact that one or two individuals own and control the stock structure of a corporation does not lead inevitably to the conclusion that the corporate entity is a fraud or that it is necessarily the alter ego of its stockholders to the extent that the debts of the corporation should be imposed upon them personally. If this were the rule, it would completely destroy the corporate entity as a method of doing business and it would ignore the historical justification for the corporate enterprise system.

We therefore hold that in order to justify the issuance of a rule directing individual stockholders to show cause why they should not be held personally accountable for the corporation’s debts, there should should be a preliminary showing that the corporation is in actuality the alter ego of the stockholders and that it was organized or after organization was employed by the stockholders for fraudulent or misleading purposes, or in some fashion that the corporate property was converted or the corporate assets depleted for the personal benefit of the individual stockholders, or that the corporate structure was not bona fidely established or, in general, that property belonging to the corporation can be traced into the hands of the stockholders.

It isn’t sufficient merely to show that the corporation exists and that there are a limited number of stockholders doing business in good faith through the corporate entity. From a procedural standpoint we hold that a showing similar to that suggested in summary above be made before the rule nisi is issued and directed against the individual stockholders. If this requirement were not made then every judgment against a corporation could be exploited as a vehicle for harassing the stockholders and entering upon fishing expeditions into their personal business and assets.

In the case at bar while it was shown before the Commissioner that Sawyer and wife were the sole stockholders of Sawyer Industries, Inc., and that they had almost habitually operated through numerous corporations, many of which had been quite unsuccessful, nevertheless, the present record also shows that the organization of Sawyer Industries, Inc. came about on the recommendation of the officers of the appellant corporation, that there was no fraud or improper conduct in the inception of the defendant corporation and that although its business affairs had been rather poorly handled, there is no showing at all that the stockholders had improperly converted any of its property to their own use or in any fashion fraudulently or inequitably abused their relationship with the corporate entity.

So far as this record shows, the corporation has no property and there is no indication at all that any of the funds or assets of the corporation have reached the individual stockholders or been consumed by them for their personal use. In the state of the record before us, we, therefore, conclude that the trial Judge was correct in holding that the requested rule to show cause should be denied. We construe his ruling refusing to include in his order that it was “without prejudice of plaintiff’s right to seek appropriate relief in equity” to be grounded merely on the view that such a provision in the order would be totally unnecessary and that, as a matter of law, the refusal to issue the- rule was in actuality without prejudice to such right as the plaintiff might establish in equity. As so construed we find no objection to this conclusion of the trial Judge.

The order appealed from is, therefore, affirmed without prejudice to the appellant to inquire further into the whereabouts of any assets of the corporation if they can be found or to pursue such other appropriate remedy in law or in equity as may to appellant seem advisable and as the complete facts might justify. See Riley v. Fatt, Fla.1950, 47 So.2d 769.

Affirmed.

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


text:
    Nelson Filmore WOODFORD, Appellant, v. The CITY OF ST. PETERSBURG, a Florida Municipal Corporation, Appellee.
    Supreme Court of Florida. Special Division A.
    Dec. 14, 1955.
    Robert G. McNulty and McNulty & Mc-Nulty, St. Petersburg, for appellant.
    Lewis T. Wray, Harry I. Young, Frank D. McDevitt and John Robert Terry, St. Petersburg, for appellee.
   THORNAL, Justice.

Appellant Woodford, plaintiff below, seeks reversal of an order sustaining a motion to dismiss his complaint with prejudice.

The complaint alleged in substance that the appellee City owned, maintained and regulated a public park known as “Crescent Lake Area,” which park included a baseball diamond known as “Huggins Field.” Appellant’s homeplace, including his yard, adjoined Huggins Field on the south. It is alleged that appellee permitted and invited the New York Yankee Baseball Club, a professional major-league baseball team, to conduct “daily Spring training” in the area described as Huggins Field; that daily practice of the Yankees attracted great numbers of spectators, including groups of young men and boys who chased baseballs which were hit or thrown beyond Huggins Field onto adjoining lands. It is specifically alleged that frequently each day various groups of boys organized themselves into “flying squadrons,” possibly best described as “football formations.” These groups included blockers and tacklers who would precede the flying wedge and tackle and block out any person interfering with the objective of the group to retrieve the baseballs. It is further alleged that this practice constituted a nuisance dangerous to persons and property; that the nuisance had continued for several weeks prior to the date of plaintiff’s injury; that the City knew or should have known -of the nuisance and its dangerous potentialities, but that despite the existence of the nuisance and the knowledge thereof by the City, the City failed “to use reasonable and prudent care to protect the persons or property of adjacent landowners.”

It is further set out that on the day in question, the appellant was lawfully in his backyard during the time that the New York Yankees were practicing, that one of the heavy hitters hit a ball outside the field into appellant’s yard, whereupon the usual flying squadron was organized in appellee’s park, pursued the ball onto appellant’s adjoining property and in the process of retrieving the ball, ran into and upon the plaintiff, knocked him down, fractured his second lumbar vertebra and generally caused plaintiff to suffer considerable bodily injuries. Hence, this suit against the City.

The trial judge sustained a motion to dismiss the complaint o» the stated ground that even admitting the existence of the alleged nuisance, any effort on the part of the City to have abated the nuisance and prevent the trespass to appellant’s property would have involved an exercise of the police power calling into action the municipal police force and that under the established law of this state, a municipality cannot be held liable for the negligence of its police department whether for acts of commission or omission.

We have consistently held that in the performance of strictly governmental functions a Florida municipality enjoys a sovereign immunity from liability for damages resulting from torts. Although there has been a tendency in recent years to limit the doctrine, we continue to recognize the rule that a municipality in this state is not liable for damages resulting from the negligent acts of its police force. It requires no peculiar construction of the rule to agree that similarly a municipality should not be liable for the negligent failure of its police force to act when action would appear to 'be indicated.

At the same time we have also held that in the operation and maintenance of playgrounds and recreation areas a city exercises a proprietary, as distinguished from a governmental, function and that in the exercise of its proprietary function a municipal corporation can be held liable for the negligent conduct or negligent failure of its employees in the same manner that liability is imposed on private corporations. See Ide v. City of St. Cloud, 150 Fla. 806, 8 So.2d 924; and Pickett v. City of Jacksonville, 155 Fla. 439, 20 So.2d 484.

The appellee City, however, contends that the alleged injury to the plaintiff did not occur on the city park nor did it result from the plaintiff having been struck by a flying missile, the projectory of which originated in the city park. The briefs in some measure concede that if plaintiff had been struck by a ball batted or thrown from within the park, even though at the time the plaintiff had been struck by a ball batted or thrown from within the park, even though at the time the plaintiff was on his own property, nevertheless, there might be some area for holding the City liable. Actually, this is the rule. See Salevan v. Wilmington Park, 6 Terry 290, 72 A.2d 239, 16 A.L.R.2d 1450. The case last cited and the annotation thereto support the rule that “Municipalities have generally been' held liable for their negligence in operating or maintaining pub-lie parks in such a manner as to increase the hazard to persons on adjoining streets or premises of being hit by batted or thrown baseballs.”

Furthermore, we have applied to municipal corporations the same obligation that we have imposed upon private corporations that they so use or employ their own property as to do no unnecessary injury to others beyond the limits of that property. This rule is announced in 38 Am.Jur., Municipal Corporations, Sec. 607, p. 303, as follows:

“In general, a municipal corporation owning property as a private owner is chargeable with the same duties and obligations, and is liable in the same way for injuries arising from neglect, as a private owner. Thus, a municipal corporation holding property for its own profit or gain is liable for negligence in its management to the same extent that business corporations or individuals would be. The duty of a municipality so to use its own property as to do no unnecessary injury to others extends to effects produced by the use, beyond the limits of the property. * * * a

See also Bray v. City of Winter Garden, Fla.1939, 40 So.2d 459, on the general proposition.

We return to a consideration of the facts of the instant case armed with the principles of law above announced. We find that the appellant relies upon the broad proposition that the appellee City was conducting a nuisance on its property by permitting the organized groups to form and to use the municipal playground as a sort of springboard or launching area from which to project what might be described as a “human missile” across the lot-line onto the adjoining property of appellant to the injury and damage of appellant. Appellant says that the City knew about this and that it failed “to use reasonable and prudent care” to protect persons and property of adjoining landowners.

We can agree with the conclusion of the trial judge that if the sole method of abating the nuisance, should the facts reveal that it was a nuisance, would have required calling out the municipal police force, then the City could not be held liable. On the other hand, if the plaintiff can prove all of the essential allegations of his complaint and can prove that in some other manner, such as the construction of a protective fence around the playing-field, the City could have prevented the formation and ensuing activities of the gangs of baseball retrievers, then we can see in the complaint a potential area of negligence for which the City might be held liable should it be proven that it has failed to exercise appropriate care commensurate with the circumstances, which it knew or should have known to exist. While at the trial of the cause the appellant obviously must discharge itself of the burden of proving the allegations of his complaint within the limits announced by this opinion, nevertheless, in the present state of the record we are led to the conclusion that the complaint at least states a cause of action that saves it against the motion to' dismiss.

The judgment appealed from dismissing the complaint is, therefore, reversed for further .proceedings consistent with this opinion.

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


text:
    Lloyd F. HEDGES, Appellant, v. Francis E. LYSEK and Lucille P. Lysek, his wife; John B. Matthews and Kathryn I. Matthews, his wife; Mayer C. Kohn and Dora Kohn, his wife; W. F. Dingus and F. I. Grey, trading and doing business as Grey & Dingus, Appellees.
    Supreme Court of Florida. Special Division B.
    Dec. 14, 1955.

      Marshall & Rives, Clearwater, for appellant.
    W. H. Brewton, Dade City, H. H. Bas-kin and H. H. Baskin, Jr., Clearwater, for appellees.
   THORNAL, Justice.

Appellant Hedges, who was plaintiff below, seeks reversal of a summary decree in favor of appellee, Kohn, in a declaratory judgment proceeding in which plaintiff also sought reformation of a deed and other incidental relief.

On May 24, 1951, Lysek and wife agreed to sell to Hamil the following described property, to-wit:

“All that part of the NW*4 of the NWJ4 of Section 34, Township 24 South, Range 16 East, Pasco County, Florida: less the North 410 feet thereof, lying West of U. S. 19 Highway”

For brevity we shall hereafter refer to this property as “Black Acre”.

On August 11, 1951, Lysek and wife agreed to sell to Matthews a tract of land which included the NWj4 of the NW(4 of Section 34, Township 24 South, Range 16 East, lying East of U. S. Highway No. 19, and Tracts 29 and 30 (among others) in the same Section. For brevity we shall refer to this tract as “White Acre”.

Neither agreement was recorded.. On August 16, 1951, Matthews conveyed White Acre to Kohn by warranty deed and on August 18,' 1951, Lysek conveyed White Acre to Matthews by warranty deed. The last two deeds were recorded respectively on September 18, 1951, and August 20, 1951.

On March 31, 1952, Hamil agreed to sell Black Acre to Hedges and on April 28, 1952, Hamil reconveyed Black Acre to Lysek by quitclaim deed, who thereupon immediately conveyed the same tract by warranty deed to Hedges.

The problem presented to us arose out of the apparent location'of U. S. Highway 19 as superimposed on an old plat of the area. Prior to the original agreement to sell to Hamil, Lysek had started construction of a small house on the West side of U. S. No. 19 upon what he thought was a part of Black Acre. He then thought that White Acre was entirely on the East side of the road. Actually, a small triangular portion of White Acre lying in a part of so-called Tracts 29 and 30 was West of the highway, and it was in this small triangle that the house was actually built.

Until appellant Hedges bought Black Acre, thinking that the house was located thereon, and, shortly after his purchase, had a survey made which revealed the error, every party’ to this cause sold and bought the respective parcels with reference to the location of the road as reflected by the old map above mentioned. Ly-sek thought he was selling the house to Hamil and later to the plaintiff Hedges on the West side of the road, and they thought they were buying it when they bought Blapk Acre. Lysek thought he was selling unimproved acreage to Matthews and both Matthews and his grantees, Kohn and wife, thought they were buying unimproved acreage East of the road and actually so intended.

Appellee, Kohn, relied on the same inaccurate map that all of the others relied upon and although the map does not reflect the location of Highway U. S. No. 19 correctly, the parties also dealt on the basis of the road as constructed on the ground as being the East and West boundaries of the property which they intended to purchase and which they thought they had purchased. No one had any idea that the small house was on a part of the-land actually conveyed to Kohn, obviously through error, until appellant Hedges had the survey made on May 16, 1952, subsequent to his purchase. Kohn himself testified by deposition that he did not realize that the house was on .the' description conveyed to him until after he had a survey made in September, 1952, about thirteen months after he bought the land, all of which he assumed to be on the East side of the highway. Kohn bargained for and paid for vacant land according to the map supposedly entirely East of the road. Hedges bargained for and paid for land with a house on it entirely West of the road.

There is not the slightest doubt indicated by this record that the small house was constructed on the triangular portion of White Acre completely through mistake. and the original mistake thereafter permeated all of the transactions with all of the parties. The original grantor Lysek and the realtor, who handled every one of the transactions, unequivocally sustained by affidavit the position of the appellant that the problem before us was conceived in a bona fide mistake and nurtured into fruition by the continuity of the mistake that was preserved in all of the dealings.

The obvious mistake is thoroughly supported by the deposition of appellee Kohn himself who admits the error and merely in effect relies on the proposition that he has a warranty deed covering the description that happens to include a house which he, in truth and in fact, did not bargain for and did not pay for. The facts before us present an almost perfect case of mistake which is one of the historic incentives for the application of equitable doctrines. We mention at this point that when appellant Hedges was negotiating with Hamil for the purchase of Black Acre he learned through an abstract examination that the fee title to Black Acre remained in the original grantor Lysek. It was because of this fact that at that time Hamil recoaveyed Black Acre by quitclaim deed to Lysek who thereupon conveyed it to Hedges by warranty deed.

In the' quitclaim deed Hamil specifically stated that it was the purpose of the deed to convey back to Lysek “all right, title and interest of the grantor under and by virtue of” the unrecorded agreement which Lysek had executed in favor of Hamil.

The chain of events should be briefly reviewed. When Hamil executed the quitclaim deed to Lysek intending to re-convey to him the land on which the small house was located, in fact Lysek had previously conveyed White Acre to Matthews and the latter had conveyed it to Kohn, both by warranty deeds. Before the trial Court and in this Court Kohn contends that even though the record sustains the conclusion that Hamil was in possession of the house located on the small triangle of White Acre, when Lysek conveyed all .of White Acre to Matthews by warranty deed, nevertheless, the subsequent quitclaim to the original grantor of both parties eliminated the effect of the occupancy by Hamil and restored to Lysek the title unencumbered by the occupancy of Hamil.

To support his contention appellee relies upon the so-called doctrine of “after acquired title”, which simply stated means-that even though at the time Lysek conveyed White Acre to Matthews (Kohn’s grantor), Hamil was in possession of the house, nevertheless, when Lysek subsequently obtained a quitclaim deed from Hamil, the elimination of Hamil’s apparent interest in White Acre by virtue of his occupancy alone immediately inured to the benefit pf Kohn under the warranty deed. He then contends that Lysek and all those claiming under him likewise immediately became estopped to question the title which he, Kohn, received by virtue of the warranty deed, strengthened by the “after acquired title” obtained by Lysek under the quitclaim deed from Hamil. To support his position appellee relies on Moralis v. Matheson, 75 Fla. 589, 79 So. 202; Farrington v. Greer, 94 Fla. 457, 113 So. 722; and similar cases.

Admittedly, the doctrine of “after acquired title” is thoroughly grounded in our system of jurisprudence and we recognize it. However, it does not control the case before us. In the instant case no one questions Kohn’s title to the property we have described as White Acre. He has the title free and clear so far as the record shows. The problem before us involves merely the question of the ownership of the house which was placed on the land that ultimately reached Kohn through a mistake of fact which was mutual to all of the parties in that all of them, including Kohn, labored under the same erroneous impression as to the exact location of the property which he purchased.

Appellee further contended that his warranty deed covering White Acre was of record when appellant made his purchase of Black Acre and that by searching the records appellant could have ascertained this fact. This leads then to the contention that appellant was negligent in failing to do so. However, the record shows that appellant had the title to Black Acre searched and the mere fact that the title to White Acre was in appel-lee’s name adds nothing toward a solution of the problem because the mistake was not one of title but rather one relating to the location of house which could have been revealed only by an accurate survey and which was revealed by the survey obtained by appellant. We cannot find from the record that the appellant was guilty of negligence that would preclude calling upon a court of equity to relieve against a mistake of fact under which all parties labored.

The able Chancellor declared that there was no mutual mistake, that the doctrine of “after acquired title” applied and controlled, and that Kohn, being the owner of the land described as White Acre, also ipso facto owns the house erroneously constructed on the land. It is reversal of this decree that appellant seeks.

After a thorough consideration of this record, we are impelled to the conclusion, that the Chancellor was in error in finding that there was no mistake of fact and by applying the doctrine of “after acquired title” to the exclusion of the broad but equally well founded principle that when parties involved in a transaction have all labored under a mistake of fact common to all of them, equity should and will step in and restore each of the parties to the condition intended by them as if the mistake had not occurred. Historically, courts of equity came into being in order to provide a forum for the granting of relief in accordance with the broad principles of right and justice in cases where the restrictive technicalities of the law prevented the giving of relief. Inherent in equity jurisprudence is the doctrine that equity will always move to prevent an injustice engendered by fraud, accident or mistake. In the case before us we can see no equitable justification for permitting appellee Kohn to retain a building which he originally had no idea at all that he owned, which he never bargained for and which he never paid for. He intended to buy the land East of the road on the basis of the same map and the same notion as to the location of the road that led the appellant to buy the land West of the road. When the purchases were made all parties acted in absolute good faith. There was an unfortunate mistake that afHicted all of them and each of the transactions in which they were involved. Under such circumstances it is particularly appropriate that equity grant relief consistent with the rights of all parties concerned and suitable to the circumstances before the Court.

It is not appropriate under the facts of this particular case to decree a reformation of the deed to appellee Kohn. This is so for the reason that there was no error or mistake in the description of the property conveyed to him, there is nothing really to “reform” and he is therefore entitled to retain the title to all of the land which he bargained for by description and which his grantor intended to convey. Insofar as the description of the land is concerned there was therefore no mutuality of mistake between appella-nt Hedges and appellee Kohn. See Holley w. May, Fla. 1954, 75 So.2d 696. For the .same reason there was no equitable area for rescission or cancellation.

Among the alternative prayers for relief, however, appellant sought the right to remove the building from the land of .appellee Kohn. Based on the facts appearing in the record this can easily be ■done at no great expense and it would .seem without substantial damage to the freehold. In this regard our decision in McCreary v. Lake Boulevard Sponge Exchange Co., 133 Fla. 740, 183 So. 7, 9, would appear to be persuasive, if not controlling. In the case last cited we quoted with approval from Trunnell v. Tonole, 104 Or. 628, 208 P. 583, to support the following statement, to-wit:

“ ‘One who by mistake has erected a building on the land of another may by proper proceeding have leave to remove the building on payment of any damage to the freehold.’ ”

The procedure approved in McCreary v. Lake Boulevard Sponge Exchange Co., supra, was reaffirmed by us in Holley v. May, Fla., 75 So.2d 696, as the proper procedure to be followed in a case of this nature. Our solution to the present problem has likewise received the stamp of legislative approval by F.S. § 70.06, F.S.A.

We, therefore, hold that the final decree .appealed from should be reversed and ■that upon further hearing the appellant Hedges should be allowed a reasonable ■time within which to remove the building in question from the land of the appellee Kohn with provision for the payment to Kohn for any damages to his freehold re•sulting from the removal.

Reversed for further proceedings in accordance with this opinion.

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


author: THORNAL, Justice. .

text:
    D. Edward WOOD, Appellant, v. Myrtle B. WILSON, Appellee.
    Supreme Court of Florida. Division A.
    Dec. 14, 1955

      W. Shannon Linning, Jacksonville, for appellant.
    Crawford & May and Tyrie A. Boyer, Jacksonville, for appellee.
   THORNAL, Justice. .

Appellant Wood, who was plaintiff below, appeals from an order of the Chancellor sustaining a motion to dismiss a complaint seeking a declaration of a lien for furnishing labor and materials for the improvement of real estate.

On and prior to October 30, I9S3, Wood furnished labor and materials for the ,im-, provement of a parcel of real estate allegedly owned by Myrtle B. Wilson,'a single woman, which said real estate is also alleged to have been her homestead. A claim of lien was served upon Miss Wilson on December 27, 1953, but the complaint in the instant case was not filed until March 9, 1955, more than twelve months after the last item of materials was furnished and after the service of the claim of lien.

Appellee attacked the complaint by motion to dismiss on the grounds that it failed to state a claim to support relief and further that it affirmatively appeared from the allegations of the complaint that the action had not been instituted within the period of limitations prescribed by F.S. § 84.21 and § 86.11, F.S.A. These statutes respectively require that- an action to enforce a materialman’s or laborer’s lien shall be instituted within twelve months after the claim of lien is recorded or within twelve months of the performance of the work if notice of the lien has not been recorded. The Chancellor granted the motion to dismiss the complaint. From this order an appeal was taken.

Appellant contends for reversal on the proposition that Article X, Section 1, of the Florida Constitution, F.S.A., defining a homestead and.homestead exemption provides that a homestead shall not be exempt from obligations “for the erection or repair of improvements on the real estate exempted”1 and that inasmuch as he is merely seeking the declaration of a lien rather than the enforcement of a lien, he should not be bound by the time limitations prescribed by the mechanic’s lien law. To support his position he cites cases dealing with separate property of married women as defined by Article XI of the Florida Constitution. Appellant reasons from these cases that since the Constitution requires specifically that property of a married- woman “be charged in equity” that the same fule ap-, plies to the alleged homestead of a- single woman.

We cannot agree with appellant’s process of reasoning. The two sections of the Constitution are separate and distinct and, insofar as the factual situation before us is concerned, have no elements of similarity. We have consistently held that absent special or peculiar equities justifying the imposition of a.11 equitable lien as typified by the case of Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 43 A.L.R. 1409, an action to enforce a materialman’s or mechanic’s lien must be brought within the period of limitation stipulated in the applicable statute. See Kimbrell v. Fink, Fla.1955, 78 So.2d 96.

Appellant attempts to make some distinction between the “declaration of a lien” and the “enforcement of a lien”. Again, we cannot agree with the distinction attempted. A lien “declared” could be of no value whatsoever and the employment of the judicial process to declare it would be a completely useless gesture if the lien were not enforceable when declared.

The constitutional provision with reference to homesteads defines the exemption and then delineates the particular claims for which a homestead may be made liable. These include claims for repairs or improvements. The Constitution does not prevent the Legislature from stipulating additional prerequisites to the enforcement of a materialman’s lien even though a homestead is involved. This the Legislature has done and it has required that the proceedings to enforce the lien be instituted within a stipulated time. Having failed to start his suit within the time prescribed by law, the appellant is, therefore, barred from enforcing the lien in equity.

It is contended further on appeal that the Chancellor should have transferred the cause to the law side of the Court and awarded appellant a judgment for the amount of his claim. We find no request in the complaint that a judgment be entered nor do we find any motion or other evidence on record that the appellant, as plaintiff below, requested the Chancellor to take the action suggested by the appeal.' We do1 not consider it the responsibility of the trial Judge under such circumstances to transfer the cause ex mero motu. It is the duty of a party to bring to the attention u>f the trial Court his contentions relating to his claims for relief. When he fails to do so, he cannot assert that a trial Judge was in error for failure to anticipate his desires. See Edmun Realty Corporation v. Kearns, 158 Fla. 558, 28 So.2d 834.

The decree appealed from is, therefore, affirmed, but without prejudice to 'the appellant to proceed in the appropriate forum to enforce his rights at law, if any he has.

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