author: THORNAL, Justice.

text:
    NORTH BAY VILLAGE, a municipal corporation, Appellant, v. T. J. BLACKWELL and Harriet G. Blackwell, his wife, and W. H. Walker, Jr., and Zoella Walker, his wife, Appellees.
    Supreme Court of Florida. Division A.
    June 8, 1956.
    Rehearing Denied July 19, 1956.

      Joseph A. Wanick, Miami Beach, for appellant.
    Blackwell, Walker & Gray, Miami, for appellees.
   THORNAL, Justice.

Appellant North Bay Village, a municipal corporation, which was defendant below, seeks reversal of a final decree declaring invalid an ordinance of the appellant municipality in a chancery proceeding instituted by the appellees, who were the plaintiffs below.

The only point for determination is the validity of a municipal zoning ordinance which reserves to the Village Council the authority to approve or disapprove the location of certain types of business without providing standards in the ordinance for the guidance and control of the council.

Pursuant to its charter powers, the municipality of North Bay Village adopted a zoning ordinance. The ordinance established certain business districts designated B-l, B-2 and B-3. Among the uses permitted in District B-3 were “Automobile service stations and gasoline and oil filling stations * * * subject to approval of location and site by action of Council”.

Appellees applied for a building permit to construct a filling station on property dis-tricted as B-3. The application was referred to the council and the permit was denied. Appellees then filed a proceeding in chancery to have the ordinance declared invalid. They particularly assaulted that portion of the ordinance which provided that a permit to construct a filling station in District B-3 was “subject to approval of location and site by action of Council” on the ground that the ordinance delegated to the council the arbitrary power to grant or deny a permit without providing adequate standards for the guidance and control of the council in arriving at its decision on any particular application.

The Chancellor held invalid the quoted provision of the ordinance. Reversal of this decree is now sought by this appeal.

Appellant contends that on the basis of certain prior decisions of this court such authorizations in municipal ordinances are valid. In similar fashion, appellee relying on prior decisions of this court contends that the provision under attack is invalid.

If it were not for the fact that there is an apparent conflict in our prior decisions, we would be inclined to affirm the decree of the Chancellor on the basis of our opinion in Drexel v. City of Miami Beach, Fla. 1953, 64 So.2d 317. However, it does appear that the position of the appellant is supported by our opinions in Harz v. Pax-ton, 97 Fla. 154, 120 So. 3, and City of Miami Beach v. State, ex rel. Ross, 141 Fla. 407, 193 So. 543.

In order to settle the law on this subject in the interest of consistency and for the future guidance of the Bar as well as municipalities, we deem it advisable therefore to state the position of the court unequivocally on the problem at hand. The development of zoning laws and zoning procedures in recent years had produced some of these inconsistencies in the decisions of various courts. This is so for the reason that in the early days of municipal zoning, there were those who doubted the authority of municipalities to exercise their police power to the extent of regulating the use of private property. Over a period of years there has been a gradual development of the rules governing municipal legislative bodies in the exercise of this power. As our cities grew and situations relating to sound zoning practices became almost daily problems of municipal government, it was only natural that some of the earlier conclusions of the courts would likewise develop to meet the requirements of changing circumstances and new conditions.

With reference to the problem before us there now seems to be little doubt that a zoning ordinance must prescribe definite standards for the guidance and control of the building inspector, the zoning officials and indeed the municipal council, when by the ordinance it reserves to itself various administrative zoning powers. An ordinance whereby the city council delegates to itself the arbitrary and unfettered authority to decide where and how a particuler structure shall be built or where located without at the same time setting up reasonable standards which would be applicable alike to all property owners similarly conditioned, cannot be permitted to stand as a valid municipal enactment.

The rule is well stated in Yolcley on Zoning Law and Practice, Vol. 1, Section 62, as follows:

“The general rule is that a zoning ordinance must prescribe definite standards and that neither the city council, the board of appeals created by ordinance or statute, nor the building inspector are properly vested with discretionary rights in granting building permits or variances in exception to the zoning ordinance unless there has been established a definite standard to guide them in the exercise of such powers.”

The reasons for the rule are well discussed in our opinion in Drexel v. City of Miami Beach, Fla.1953, 64 So.2d 317. It is unnecessary to review them here. However, in our opinion in the case last cited, we did not undertake specifically to recede from the rule announced in earlier cases on which the appellant relies. In disposing of the matter, therefore, we here hold that the case before us is controlled by the rule of the decision in Drexel v. City of Miami Beach, Fla.1953, 64 So.2d 317. See also Phillips Petroleum Co. v. Anderson, Fla.1954, 74 So.2d 544.

We hereby specifically recede from anything to the contrary appearing in Harz v. Paxton, 97 Fla. 154, 120 So. 3, and City of Miami Beach v. State ex rel. Ross, 141 Fla. 407, 193 So. 543.

For the reasons stated, the decree appealed from is—

Affirmed.

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


source: Caselaw Access Project

author: TERRELL, Justice. PER CURIAM. ROBERTS, Justice

license: Public Domain

text:
    Susie Belle McALLISTER, Appellant, v. Robert Linwood TUCKER and Seaboard Airline Railroad Company, a corporation, Appellees.
    Supreme Court of Florida. Special Division A.
    March 16, 1956.
    On Rehearing June 20, 1956.
    Further Petition for Rehearing Stricken July 5, 1956.

      'Claude Pepper Law Offices, Claude Pepper, Neal Rutledge and Jordan Bittel, Miami, for appellant.
    Smathers, Thompson, Maxwell & Dyer, Douglas D. Batchelor, David W. Dyer and L. S. Bonsteel, Miami, for appellees.
   TERRELL, Justice.

This action was brought by appellant against appellees to recover damages for the wrongful death of her husband in a railroad crossing accident near Quincy in Gadsden County, Florida. At the trial defendants moved for a directed verdict at the close of plaintiff’s case and at the close of the trial. The court reserved judgment on both motions and let the case go to the jury which returned a verdict against the Seaboard Airline Railroad Company and in favor of defendant Tucker. Defendants then moved to set aside the verdict and renewed their motions for directed verdict. The trial court granted the motion to set aside the verdict and entered final judgment for defendants. The plaintiff has appealed.

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

The answer to this question turns on the interpretation of the evidence. In reviewing the evidence the rule is that it be weighed in the light most favorable to the plaintiff. In such review, however, we are not to overlook the presumption that the trial court’s ruling was correct. Roberts v. Powell, 137 Fla. 159, 187 So. 766; Kraver v. Edelson, Fla., 55 So.2d 179; Dodson v. Solomon, 134 Fla. 284, 183 So. 825.

The primary reliance of appellant for reversal is, that this is a comparative negligence case and that the cases cited in the preceding paragraph did not arise from cases growing out of the comparative negligence, statute. It is quite true that the cited cases did not arise from cases that stem from the comparative negligence statute but the direct question involved concerns judicial review of the evidence on which the jury predicated its verdict and if in law it was not supported by substantial legal evidence, the trial court had the power to set it aside. As we understand judicial review of the verdict in a case like this is no different from what it is in other cases where the power is authorized to determine the legal effect of the evidence. It is not concerned with the jury’s power to weigh conflicting evidence.

■Section 768.06, Florida Statutes, F.S.A., is the comparative negligence statute and is as follows:

“No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence. If the plaintiff and the agents of the company are both at fault, the former may recover, but the amount of recovery shall be such a proportion of the entire damages sustained, as the defendant’s negligence bears to the combined negligence of both .the plaintiff and the defendant.”

The jury returned a verdict for $32,500, one-half of the amount laid in the ad damnum. Whether the ' jury considered the railroad company solely liable or whether it considered the deceased and the railroad company both liable and apportioned the damages as provided in the concluding sentence to the quoted statute, we are left to conjecture. Appellant contends that they found both parties guilty of negligence and apportioned the damages. In Loftin v. Deal, 154 Fla. 489, 18 So.2d 163, and in Atlantic Coast Line R. Co. v. Pidd, 5 Cir., 1952, 197 F.2d 153, this procedure was approved apparently on the theory that the verdict was much smaller than the amount claimed and being so, the jury fixed an amount pursuant to the provision of the statute.

In his final judgment the trial court set the verdict aside and entered judgment for defendants on the ground that the evidence shows “the sole proximate cause of the accident which gave rise to this action was the negligence of the plaintiff’s deceased husband.” The accident took place at the intersection of the railroad and what is known locally as Santa Lee Highway just outside the City of Quincy. At this point the railroad runs in a general east and west direction but curves to the north at a point 271 feet west of the crossing. Santa Lee Highway runs north to south crossing the railroad on the curve where the rails are banked; in other words, the outside rail is four inches higher than the inside rail. At the time of the accident, the train was traveling east and decedent was driving his truck south. Santa Lee Highway is of clay construction as was the crossing. The area near the crossing is frequented with tenant farm homes. The crossing is located about three-quarters of a mile from Quincy station. It is the second of five crossings within the last mile before reaching the Quincy station.

Appellant contends that the northwest corner of the intersection was obscured by a house, a tree, corn in full tassel, dog kennels, cane and weeds, making it difficult for the motorist to be seen down the track when approaching the crossing from the north. It is contended that said vegetation grew along the west side of the road to within a few feet of the railroad. The height of this vegetation was estimated by various witnesses as “real tall,” “six feet or better tall,” from “waist high” to “over my head” and “just about as high as my head and I’m 5 feet 6.” Back from the road and the track it is said the vegetation increased in height from 10 to 12 feet. One witness testified that even though a train would be taller than the weeds, they would block the view of a motorist because they would be higher than his eyes and would shut off his view from his car windows. On the basis of this showing, appellant contends that there was ample evidence for the jury to conclude that the crossing was a blind and extremely hazardous one for a motorist approaching it from the north.

The accident occurred about 1:30 P.M., June 27, 1953; it had been raining during the forenoon, the clay road was wet, slick and muddy. The witnesses agreed that when wet the road and crossing were as slippery and treacherous as ice. One witness testified that a number of motorists had skidded off the road and into the ditch that morning and that the ambulance and wrecker which came to the scene skidded into the ditch. The witness Brown stated that the road and crossing were “exceptionally slick” and “exceptionally rough and washboardy.” Other witnesses testified that this road, the crossing and the approaches were “wet and slick,” “muddy and slippery,” “full of holes,” having “ruts,” “beat out in holes,” and as “being slick,” “muddy.”

Decedent was delivering groceries and stopped his truck about 100 feet north of the crossing to make a delivery; seated on his right in the cab of the truck were two women whom decedent was giving a lift. In the rear of the truck were groceries for delivery and four children who were laughing and eating candy. After making his delivery, decedent started slowly toward the crossing at a speed estimated from one to three miles per hour. When the truck was about half over the crossing, the train traveling about 50 miles per hour struck it about the middle of the body. All the occupants were killed. The train was 630 feet long, the engine was approximately 14 feet high and ran about 2,400 feet before it came to a stop.

The evidence shows that the railroad’s right-of-way extended only eight feet from center on either side at and near the crossing so defendant had no authority to clear farther than its right-of-way extended. It is true that some of the witnesses testified that an approaching train would not be visible as one approached the crossing but the police officers who investigated the accident testified to the contrary. Deputy Sheriff Martin testified that before a driver reached the crossing he could see the rails almost to the next crossing, 1,354 feet to the west. The highway patrolman testified that a motorist could see the train approaching from the west approximately 95 feet north of the crossing. Photographs taken near the time of the accident amply support the testimony of these witnesses. It is also shown that decedent had lived on this road, near the crossing for eight months and passed over it every time he went to town and was well acquainted with it. Then as he approached the railroad, he was confronted with a standard road crossing sign with the legend, “Railroad crossing, look out for the cars,” spread all over it.

As to speed of the train at the time of the accident, the evidence shows conclusively that it was running 50 miles per hour. The crossing was in a rural community where the speed limit was 59 miles per hour. The engineer testified that he was approaching the Quincy station and was preparing to stop. Since the train was proceeding at an allowable speed, that with nothing more does not constitute, actionable negligence. It must be shown that alleged excessive speed was the proximate cause of the accident. Seaboard Airline R. Co. v. Tomberlin, 70 Fla. 435, 70 So. 437; Atlantic Coast Line R. Co. v. Timmons, 160 Fla. 754, 36 So.2d 430; Van Allen v. Atlantic Coast Line R. Co., 5 Cir., 1940, 109 F.2d 780.

It is next contended (1) that the train crew was negligent in that it failed to keep a proper lookout as the train approached the crossing, (2) that the train crew failed to give proper warning of its approach.

The evidence shows that the truck approached the crossing on the fireman’s side of the locomotive and that when he (fireman) realized that decedent was not going to stop, he warned the engineer who immediately applied his emergency brakes. It is the law of this state that the train has the right-of-way and is not required to be retarded until it becomes apparent that one approaching the track is not going to stop. Florida Cent. & P. R. Co. v. Williams, 37 Fla. 406, 20 So. 558; Atlantic Coast Line R. Co. v. Miller, 53 Fla. 246, 44 So. 247; Martin v. Rivers, Fla., 72 So.2d 789. As to whether the train crew gave ample warning, it is true that some negative testimony says no, but four impartial witnesses for defendants testified that they saw the train approach the crossing and heard it blow repeated blasts. In addition to these, the engineer and the fireman both testified that the whistle was blown repeatedly before it reached the crossing. This court is committed to the doctrine that negative testimony will not make an issue in the face of positive testimony that the signals were given. Powell v. Gary, 146 Fla. 334, 200 So. 854, and cases discussed therein.

The next question challenges the condition of the crossing. It is true that several witnesses testified as to holes in the crossing, that it was wet and slick while others testified that it was in good condition. Two police officers who arrived at the crossing to investigate shortly after the accident, testified that the crossing was in good condition. The road maintenance man of the county testified that he had worked the road a few days before the accident, that he scraped dirt off the crossing and left it smooth and in good condition. A photograph of the crossing was placed in evidence and shows that the crossing was in good condition. Only two witnesses were close enough to observe the truck and both testified that it had no difficulty in negotiating the crossing. One of these witnesses testified that he had driven a truck over the crossing earlier in the day and had no difficulty getting over. There was no other testimony from any one who had driven the crossing that day.

It is true that sec. 768.05, Florida Statutes, F.S.A., indulges the presumption of negligence on the part of the railroad but it is not an irrebuttable presumption, it is not evidence but will give way in the face of evidence showing an exercise of due care. Covington v. Seaboard Airline R. Co., 99 Fla. 1102, 128 So. 426; Atlantic Coast Line R. Co. v. Price, Fla., 46 So.2d 481; Van Allen v. Atlantic Coast Line R. Co., supra; Atlantic Coast Line R. Co. v. Voss, 136 Fla. 32, 186 So. 199. Motorists are on notice that a train has the right-of-way and that they (motorists) are required to look and listen and if necessary stop as they approach a crossing. St. Louis-San Francisco R. Co. v. Earl, Fla., 49 So.2d 324; Atlantic Coast Line R. Co. v. Timmons, supra; Germak v. Florida East Coast R. Co., 95 Fla. 991, 117 So. 391; Seaboard Airline R. Co. v. Myrick, 91 Fla. 918, 109 So. 193; Florida East Coast R. Co. v. Townsend, 104 Fla. 362, 140 So. 196, 143 So. 445.

This court early approved the universal law that the “engineer in charge of a railroad locomotive has the right to presume that an adult person whom he sees upon or beside the track ahead of his approaching engine is in possession of his faculties, and that he will obey the instinctive law of self-preservation by getting off the track if already on it, or that he will not get on it, if already off; and, in such case it would not be negligence on the engineer’s part if he failed to attempt to stop his engine, unless he knew the party, and that he labored under some disability.” Florida Central & P. R. Co. v. Williams, supra [37 Fla. 406, 20 So. 559]. Other cases could be cited but they proceed on the theory that responsibility of the railroad and motorist or pedestrian at the crossing is mutual and where either or both fails in this they will be held responsible. This rule is deeply rooted in our social structure and the reasons for it are grounded on the historic dependence of the public on the railroad and the railroad on the public. The ingenuity of the pioneer aided by the railroad has been the greatest factor in developing the country and sustaining its economy, hence this and other rules emphasizing mutuality of responsibility. All this boils down to the fact that a pedestrian or a motorist must keep his eyes open, his mind alert and take due precaution for his safety when he approaches a railroad crossing.

Decedent knew that he was approaching the railroad where trains passed constantly each way day and night; it was broad daylight and he was confronted by a standard “Railroad Crossing” sign warning him to “look out for the cars.” When the negative, the speculative, the indecisive and the inconclusive evidence is disregarded, the substantial legal evidence supports the final judgment of the trial court. It is conclusively shown that decedent could have seen the train and avoided the accident if he had looked, so the condition of the growth near the road, its alleged wet and slick condition or who slipped on it that day had no influence in causing the accident. We have reviewed the evidence at length with the view of pointing out that which is substantial and that which is not so. We are convinced that the verdict was contrary to the manifest weight of the evidence. When the trial court so finds, it is his duty to grant a new trial.

The judgment appealed from is accordingly affirmed in so far as it sets aside the verdict but with directions to grant a new trial.

Affirmed.

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

On Petition For Rehearing

PER CURIAM.

On petition for rehearing oar attention is directed to the fact that the judgment herein should be one of direct affirmance rather than one of affirmance “in so far as it sets aside the verdict but with directions to grant a new trial.” We think the point is well taken so the petition for rehearing is granted and the judgment is amended to read: “The judgment appealed from is accordingly affirmed.”

Affirmed.

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

HOBSON, ROBERTS and THORNAL, JJ., dissent.

ROBERTS, Justice

(dissenting).

There was sufficient testimony to justify the trial court in submitting the case to a jury under an appropriate charge of comparative negligence which is applicable in this case. This was done, and the jury returned a verdict for the plaintiff. This verdict was set aside by the trial court and judgment entered for the defendants. In my opinion, the judgment should be reversed with directions to enter judgment on the verdict.

HOBSON and THORNAL, JJ., concur.


author: HOBSON, Justice.

text:
    Nelson M. COOK, as a Freeholder and Taxpayer of the City of Ormond Beach, a Municipal Corporation of Volusia County, State of Florida, and Other Persons similarly situated, and City of Ormond Beach, a Municipal Corporation of Volusia County, State of Florida, for the Benefit and Use of the City of Ormond Beach, a Municipal Corporation of Volusia County, State of Florida, Appellants, v. NAVY POINT, Inc., a Florida Corporation; Ellinor Village, Inc., No. 1, a Florida Corporation; Ellinor Village, Inc., No. 2, a Florida Corporation; Ellinor Village, Inc., No. 3, a Florida Corporation; Ellinor Village, Inc., No. 4, a Florida Corporation, Appellees.
    Supreme Court of Florida. Division A.
    March 28, 1956.
    Rehearing Denied July 19, 1956.

      Maurice Wagner, Daytona Beach, for appellants.
    Raymond, Wilson & Karl, Daytona Beach, for appellees.
   HOBSON, Justice.

Appellant, Nelson Cook, a freeholder and taxpayer of the City of Ormond Beach, sued Navy Point, Inc., and Ellinor Village, Inc., Nos. 1, 2, 3 and 4, all Florida Corporations, for a declaratory decree. Relief prayed for was that the chancellor declare the rights of the parties and that plaintiff is entitled to an accounting to determine the sums due and owing by the defendant corporations to the City of Ormond Beach.

The City was originally joined as a party plaintiff, but the trial court, on motion, dismissed the City from the suit. Certiorari was sought from this court to review the order, but it was denied. This appeal is taken from a summary final decree for defendants.

The chancellor granted defendants’ motion for summary decree while motions by the plaintiff to strike portions of the answer, and for leave to amend the complaint, were pending and not yet determined. Appellant contends that this was error. It appears that the motion for leave to amend was filed with the court December 14, 1954, the day of the hearing on defendants’ motion for summary final decree, and read, in its entirety, omitting formal parts and signatures, as follows:

“Comes now your Plaintiff, Nelson M. Cook, and moves this Honorable Court allow him to amend his Bill of Complaint.”

No proposed amendment was tendered, with this motion. The chancellor could have concluded that this motion was made for-dilatory purposes, and his ruling upon the motion for summary final decree without considering the motion for leave to amend was not an abuse of discretion under the circumstances.

Before the hearing was held on the motion for summary decree appellant had filed a motion to strike certain portions of appellee’s answer. This motion to strike was also undisposed of when the trial court ruled upon the motion for summary decree, and appellant urges that there was error in this procedure. In Lewis v. Lewis, Fla., 73 So.2d 72, 74, we said:

“[I]t was not error to grant defendant’s motion for summary decree before disposition was made of plaintiff’s motion to strike portions of the amended answer and cross-bill. Not only is there no showing that this motion was ever noticed for hearing, but the decision first to hear and decide defendant’s motion for summary decree lay well within the ambit of the court’s inherent power to control its docket.”

As in the Lewis case, which is controlling on this point, there is no showing here that the motion to strike was ever noticed for hearing.

The motion for summary decree was served upon counsel for the plaintiff by mail on December 3, 1954, and filed on December 6, 1954. The hearing, as stated above, was held on December 14, 1954. An affidavit upon which the summary decree was partially based was served on counsel for the plaintiff by mail on December 10, 1954, or four days before the hearing, received by plaintiff’s counsel one day before the hearing, and filed for the first time before the court on the day of the hearing. Although service of the motion was not untimely, appellant contends that the chancellor should not have considered the affidavit which was not filed with the motion.

Rule 1.36, Florida Rules of Civil Procedure, F.S.A., under which the motion for summary final decree was made, provides in part, in subdivision (b) thereof, that “A party against whom a claim * * is asserted or a declaratory judgment or decree is sought may, at any time, move with or without supporting affidavits for a summary judgment or decree in his favor as to all or any part thereof.” Subdivision, (c) provides in part that “The motion shall be served at least 10. days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits.” Other provisions of this rule make it clear that the party opposing the motion for summary judgment or summary final decree is to be accorded the right to bring to the attention of the court any evidence he may have to support his claim, or to establish that there is a genuine issue of material fact. This in turn requires time to study and if possible controvert the matters produced by the proponent of the motion. In all but extraordinary circumstances, affidavits in support of the motion, if any there are, should be filed with it to allow the opponent time to controvert them. The ten day minimum time limit prescribed for service is often none too long, considering the swift and dispositive character of the motion. A motion for summary judgment is calculated to save valuable trial time and thus to assist in securing speedy and inexpensive justice, but one object of the new rules of procedure is to prevent surprise, and this equally praiseworthy objective should not be overlooked. Appellant will not be prejudiced in this case, however, because of the view we take of points to be discussed hereafter.

The next contentions of appellant go to the merits of the case, and it is necessary to outline certain basic issues posed by the pleadings and some of the findings of the chancellor.

The complaint alleged that the defendant corporations are indebted to the city by reason of their failure to pay water meter installation, plumbing, construction and electrical permit fees, all of which fees have been charged against other taxpayers of the municipality and are required by ordinance. The defendants in their answer made a general denial but affirmatively stated, among other things, that they paid for all of the plumbing, electrical and building permits “as required” and that no effort had been made by the city to recover any sums for installation of water meters or plumbing, electrical and building permits.

. Numerous affidavits and depositions were filed. The chancellor found that during 1948 and 1949 Navy Point, Inc., built on unimproved land in the City of Ormond Beach the Ellinor Village Housing development, which consisted of 636 housing units, at a cost of nearly $3,000,000, exclusive of the cost of the land. The chancellor further found that the governing body of Ormond Beach, in order to induce Navy Point, Inc., to construct the housing project, agreed to waive the city’s portion of all building, plumbing and electrical permits, but there was no written record of this agreement. Navy Point, Inc., did, however, pay some amounts for permits, and also “advanced” to the city a sum to cover the ■cost of installation of a water distribution system. The chancellor found that all agreements entered into by the city officials and the defendants were made in good faith and there was no evidence of wrongdoing. He further found that the last act complained of by the plaintiff took place more than five years prior to the filing of the complaint and held that plaintiff was barred by laches. On these findings he entered summary judgment for the defendants.

We have reviewed the record at length. There is testimony and an affidavit making reference to the fee-waiving agreement of which there was no record. Precisely what this agreement entailed is not clear. But if the chancellor’s finding that such an agreement existed is supported by the record, it was clearly ultra vires, as appellant contends, if only for the reason that under the city charter such an agreement could lawfully have been entered only by ordinance, resolution or written contract. See Turk v. Richard, Fla., 47 So.2d 543; Beck v. Littlefield, Fla., 68 So.2d 889 and Universal Const. Co. v. Gore, Fla., 51 So.2d 429.

We do not hold that the alleged agree-, ment was void because of lack of power on the part of the city to enter into such an agreement, but it was ultra vires and therefore void because the city, in entering into the agreement, acted in an unauthorized manner.

It is argued that benefits conferred upon the city formed a consideration and inducement for the waiver agreement. As we pointed out in Universal Const. Co. v. Gore, supra, the conferring of benefits cannot be used as an excuse for unauthorized methods. The purported agreement was void, and no right was relinquished either by the city or by the appellant thereby.

One question remaining is whether or not appellant was barred by laches or in any way “estopped” to seek relief because he “acquiesced” in the conduct of which he now complains. So far as appears, the only written record of the negotiations by the defendants and the city consists of one of the results thereof, a water revenue certificate in the amount of $75,000 and a resolution whereby such certificate was issued. As we stated above, the chancellor found that defendant, Navy Point, Inc., had “advanced” to the city the money to construct a water distribution system to serve Ellinor Village. This merely means that the defendant, Navy Point, Inc., purchased from the city a callable water revenue certificate in the amount of $75,000 at face value, which represents a debt of the city to this defendant upon which it pays interest at the rate of 3^% per annum and for which it is liable for principal and interest. The issuance and sale of this certificate took place in 1949. Certainly appellant could not have been expected, merely on the basis of this ordinance and certificate, to uncover the entire course of dealing which culminated in it, including the oral agreement which it is now contended was entered. Thus only the lapse of time remains as a basis for the application of the laches doctrine, and the lapse of time alone is insufficient to support a finding of laches. City of Stuart v. Green, 156 Fla. 551, 23 So.2d 831. For the same reasons, there was no “waiver” or “estoppel” to operate against either the appellant or the city.

Finally, it appears that there are genuine issues of material fact still unresolved, and this is fatal to a summary final decree. For example, the complaint alleged that installation fees for water meters were required by city ordinance, but that defendant had not paid these charges. This allegation, as appellees concede, is denied, under the general denial in the answer.

It follows that the summary final decree from which this appeal is taken must be, and it is hereby, reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

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


author: PER CURIAM.

text:
    Bonnie Lockhart BAILEY, Appellant, v. Charles D. BAILEY, Appellee.
    Supreme Court of Florida. Special Division B.
    June 27, 1956.
    Rehearing Denied July 25, 1956.
    Carter & Carter, Orlando, for' appellant.
    Sam E. Murrell & Sons, Orlando, 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 Rule 38 of the rules of this court, 31 F.S.A., 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.

TERRELL, Acting Chief Justice, ROBERTS and O’CONNELL, JJ., and CROSBY, Associate Justice, concur.


text:
    Joseph AMANTINI, Appellant, v. Marco BASSO and Jane Basso, Appellees.
    Supreme Court of Florida. Special Division B.
    June 27, 1956.
    Robbins & Cannova, Hollywood, for appellant.
    Henry Burnett and Fowler, White, Gil-len, Yancey & Humkey, Miami, for ap-pellees.
   PER CURIAM.

Affirmed on authority of Bottom v. Rank, Fla., 70 So.2d 832, and Hickory House v. Brown, Fla., 77 So.2d 249.

TERRELL, Acting C. J., and ROBERTS, THORNAL and O’CONNELL, JJ., concur.


text:
    Everett William ANDERSON, Appellant, v. Henry YUNICK, as proprietor of Smokey’s Automotive Service, Appellee.
    Supreme Court of Florida. Special Division B.
    June 27, 1956.
    Maurice Wagner, Daytona Beach, for appellant.
    Raymond, Wilson & Karl, Daytona Beach, for appellee. .
   PER CURIAM.

Affirmed on authority of rule announced in Kessler v. Thomas Corp., Fla.1954, 73 So.2d 415; Carls Markets, Inc., v. Leonard, Fla.1954, 73 So.2d 826, and Becksted v. Riverside Bank of Miami, Fla.1956, 85 So.2d 130.

TERRELL, Acting C. J., and ROBERTS, THORNAL and O’CONNELL, JJ., concur.


author: ROBERTS, Justice.

text:
    In re ESTATE of Samuel McCOLLUM, Deceased. In the Matter of Petition of Kenneth McCOLLUM.
    Supreme Court of Florida. Division B.
    June 13, 1956.

      Frank T. Cannon and Charles A. Powers, Jr., Jacksonville, for appellants.
    Horace E. Hill and Norton Josephson, Daytona Beach, for appellee.
   ROBERTS, Justice.

This is an appeal from an order of a circuit court affirming an order of a probate court finding that the appellee, Kenneth McCollum, is entitled to share in the estate of Samuel McCollum, deceased, as the illegitimate son of the deceased. The appel-lee’s claim is based on the provision of Section 731.29, Fla.Stat.19SS, F.S.A., declaring that an illegitimate child is the heir of his mother and “also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father.”

In support of his claim under the statute, the appellee offered and the trial judge admitted in evidence oral testimony concerning a letter purportedly written by the deceased to the appellee, which was said to have contained the salutation “Dear Son,” or “My dear Son,” and to have been signed “Your Father, Sam McCollum.” The letter was not introduced in evidence for reasons hereafter explained. It is first contended on behalf of the appellants, who are the lawful heirs of the deceased, that it was essential to the pleading and proof of ap-pellee’s claim that the written acknowledgment of paternity be filed in the cause— either the original, or a copy thereof after it had been re-established in the Circuit Court in accordance with the requirements of Chapter 71, Fla.Stat.19S5, F.S.A., relating to the re-establishment of lost instruments.

This contention cannot be sustained. While the question was not presented in In re Horne’s Estate, 149 Fla. 710, 7 So.2d 13, which is the leading case in this state construing Section 731.29, supra, the clear import of that opinion is that the statute simply requires a particular evi-dentiary fact (that is, an acknowledgment of paternity in writing) as one of the prerequisites to establishing a claim of heirship to a putative father’s estate. See also Wall v. Altobello, Fla.1950, 49 So.2d 532. As shown in those cases, the claimant under the statute is required to prove three things: (1) the fact of paternity, and (2) the fact of written acknowledgment of paternity, and (3) in the presence of a competent witness, all equally essential to the establishment of a claim thereunder. Counsel for appellants has cited no case holding that the fact of written acknowledgment of paternity can not be shown by secondary evidence when the best evidence (the written acknowledgment itself) has been lost or destroyed, as in the case of other lost writings. We have noted, however, that the courts of other jurisdictions have considered secondary evidence of such a lost writing under statutes similar to ours, cf. Lind v. Burke, 56 Neb. 785, 77 N.W. 444; Moore v. Flack, 77 Neb. 52, 108 N.W. 143; Burns v. Lawson, 188 Old. 181, 107 P.2d 555; Watson v. Richardson, 110 Iowa 673, SO N.W. 407, although it might also be noted, parenthetically, that in none of these cases did the claimant succeed in establishing his claim. And it was stated in Teague v. Wilson, 1941, 220 N.C. 241, 17 S.E.2d 9, 10, that “the consensus of judicial opinion is to the effect that it must appear from the writing itself, or from competent evidence of its contents when lost, that there was a clear and unequivocal acknowledgment in writing of the paternity of the illegitimate child by the father.” (Emphasis added.)

We hold, therefore, under the authority of In re Horne’s Estate, supra, and the other cases above cited, that the fact of written acknowledgment of paternity may be established by secondary evidence under the general rules relating to the admissibility of secondary evidence of lost or destroyed writings.

This brings us to the next contention of the appellants, that is, that the ap-pellee’s explanation of the circumstances under which the letter was destroyed was insufficient to justify the admission of secondary evidence of its contents, and that the trial judge erred in doing so. The rule here, as stated in 32 C.J.S., Evidence, § 824, p. 752, is that

“Where it appears that a party seeking to establish a fact has voluntarily destroyed a writing constituting or containing the best evidence of that fact, he cannot introduce secondary evidence thereof, especially where the suit is in his own behalf and is founded on the writing, without first introducing evidence to explain his destruction of the writing and to repel all inference of fraudulent design arising therefrom. If, however, it appears that the loss or destruction occurred through accident or mistake, or on an erroneous impression of its effect, or under other circumstances free from a suspicion of intended fraud, there is no impediment to the introduction of secondary evidence.”

The letter relied upon by appellee as “written acknowledgment of paternity” under the statute was purportedly written to the appellee by the deceased at a time when appellee was a student in college, and some two or three years before the death of deceased. The appellee testified that he kept all his letters and other papers in a suitcase and from time to time would clean out the suit case and throw everything away, and that this letter had been destroyed during such a periodic cleaning. Fie did, however, place in evidence the envelope in which the letter was allegedy enclosed and mailed to him by the deceased but offered no explanation as to why he saved the envelope and destroyed the letter.

There is some doubt in our minds as to whether in these circumstances the appel-lee’s explanation' was adequate, but we do not decide the question since the order must be reversed for a reason hereinafter explained.

The envelope was placed in evidence as a basis for the testimony of one Hall, whose role in the case was that of the “competent witness” in whose presence the written acknowledgment of paternity was purportedly made. Hall testified that he was a close friend,and business associate of the deceased; that “several” times the deceased had written to the appellee and used Hall’s name and address as the return address on the envelope; that the appellee would write to the deceased and enclose the letter in an outer envelope addressed to the witness Hall, with the inner envelope marked “Give to Dad”; that this was done because the deceased did not want his wife to see the letters from the appellee. As to the particular letter here relied upon as compliance with the statute, Hall testified that the deceased sat at a desk in his (Hall’s) office and wrote it, placed it in an envelope and wrote the appellee’s address on it, (or vice versa, he could not remember which) and then gave it to Hall; then Hall wrote his own name and address in the upper left hand corner of the envelope for the return address. Hall said he was in and out of the room while the deceased was writing the letter and that the deceased signed it “in his presence.” He testified that the letter began “Dear son,” or “My dear son,” and was signed, “Your father, Sam McCollum.” His “recollection” of the contents of the letter was to the effect that the deceased was sending appellee some money for clothes and wanted him to come and live on the farm and that he would come to see him as soon as he could. He did not testify that the deceased exhibited the letter to him either while he was writing it or after he had signed it, nor did he indicate how he knew that the letter began “Dear son” and ended “Your father,” nor how he gained hi9 knowledge of the contents of the letter.

It was also shown that, at a previous trial, in response to the question “You did say, did you not, that Sam McCollum would write Kenneth McCollum many times as his son?”, Hall answered, “I said he would write him, I said he would write Kenneth an ordinary letter. I did not see him write Kenneth as his son.” At that time he was also asked the question, “You never did see him write Kenneth McCollum as his son ?”, and he replied, “It was that way. It was just by word of mouth, I never said it was written. He told me, and lots of people, Kenneth was his son by word of mouth, that’s all.”

This court is committed to the rule that an informal -writing in the presence of a competent witness is all that is required by the statute in question — that is, that a formal written acknowledgment of paternity, in so many words, subscribed to by the witness in whose presence it was signed, is not necessary. In re Horne’s Estate, supra, 7 So.2d 13; Wall v. Altobel-lo, supra, 49 So.2d 532. Where the written acknowledgment relied upon is introduced in evidence, it is sufficient if it directly, unequivocally and unquestionably acknowledges the paternity of the illegitimate child, in such terms and under such circumstances as may “be construed as a formal acknowledgment of parenthood.” In re Horne’s Estate, supra, 7 So.2d 13, 16. And where the writing relied upon is not introduced in evidence but is sought to be proved by secondary evidence, we think the evidence should be of the same character; it should be so clear, strong and unequivocal as to remove every reasonable doubt as to the existence of the writing relied upon, its contents, and its signing in the presence of a competent witness. This is the rule applicable to the establishment of constructive trusts by parol evidence, Lightfoot v. Rogers, Fla., 54 So.2d 237, and we think it is the rule that should be applied in the situation here.

There can bé no doubt that the evidence adduced by the appellee in support of his claim of an acknowledgment of paternity in writing by the deceased, does not meet this test. In addition to the fact that Hall’s testimony at the second trial is not, to our minds, clear and convincing, there is also the fact that his testimony at the first trial is somewhat at odds with that given at the second trial. Moreover, there is a complete lack of evidence as to just how the letter was signed “in the presence of” Hall; and we think the requirement of the statute that the written acknowledgment be signed “in the presence of a competent witness” means, at least, that the putative father must be conscious of the fact that the writing relied upon as a declaration of paternity is being made “in the presence of”, meaning to the knowledge of, the person in whose presence it was inscribed. We pass over the contention that Hall’s credibility is questionable, in view of his admittedly unlawful business activities, but note that there is some merit to the contention that he was not a completely disinterested witness. Wé are also troubled by the fact, still unexplained, that the appellee admittedly destroyed the deceased’s letter acknowledging paternity but preserved intact the seemingly worthless envelope in which it was said to have been mailed.

In these circumstances, it must be held that the probate judge misapprehended the legal effect of the evidence adduced before him as to the written acknowledgment of paternity and that the evidence was insufficient under the rule cited above. And since written' acknowledgment of paternity in the presence of a competent witness is the sine qua non of heirship under the statute, it is of no avail to the appellee that the evidence was ample to show that he was, in fact, the illegitimate son of the deceased.

For the reasons stated, the .order appealed from should be and it is hereby

Reversed.

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


text:
    George WRIGHT, Appellant, v. I. D. MacVICAR, Jesse H. Yarborough, Hugh Peters, Preston B. Bird and Grant Stockdale, as the Board of County Commissioners of Dade County, Florida, Appellees.
    Supreme Court of Florida. Division A.
    June 13, 1956.
    Carr & O’Quin, Miami, for appellant.
    Hudson & Cason, Miami, for appellees.
   HOBSON, Justice.

Appellant, a constable of Dade County, was informed against by Dade County officials, and, pending disposition of these charges, the then Governor of Florida suspended appellant from office. The charges were ultimately dismissed, the gubernatorial suspension was revoked, and appellant was reinstated as constable. Appellant timely filed a claim with the Board of County Commissioners of Dade County for compensation lost by him during his suspension, in the amount of $3,216.40, the same being the total net amount received as compensation by the person who had acted as constable during appellant’s suspension period. The claim was denied, and appellant petitioned the circuit court for a writ of mandamus to compel the county officers to pay the amount demanded.

The peremptory writ which was issued as a result of these proceedings, and from which this appeal is taken, commanded respondents, as the Board of County Commissioners of Dade County, to pay only $499.30 of the sum petitioned for. The mathematics and some of the reasoning upon which this result was predicated are expressed in the following excerpt from the peremptory writ:

“The only two sources to which a Constable looks for ‘compensation’ are the County Commission of the County in which he holds office and individuals for whom he has performed services. According to the report of receipts, expenses and net income filed by [Acting] Constable Baker (admitted in evidence as Respondents’ Exhibit No. 1) for the period ending December 31, 1954, the receipts of that office from governmental agencies (county) totalled $4,215.71. Receipts from individuals totalled $2,717.10. Petitioner would have been entitled to payment of the former amount by the Respondent had he not been under suspension during that period in which payment was made to the Acting Constable. Respondents, however, are under no legal duty to reimburse Petitioner for fees paid by individuals to the Acting Constable during this period of time, and I cannot consider this total in the decision of this case. I must take the amount the Petitioner is legally due from the County ($4,-215.71) and subtract the expenses of the office as shown by Exhibit No. 1 ($3,716.41) and arrive at the compensation as defined in this opinion. This sum is $499.30.”

The constitutional right of appellant to be compensated in full for the period of his suspension is not in question here. It is granted by Art. IV, § 15 of the Florida Constitution, F.S.A., which provides in part that “[n]o officer suspended who shall under this section resume the duties of his office, shall suffer any loss of salary or other compensation in consequence of such suspension.”

F.S. § 145.01, as amended, Laws 1953, c. 28041, effective January 1, 1953, F.S.A., which applies to respondent, reads as follows :

“Each county official whose compensation for his official duties is paid wholly or partly by fees or commissions, shall receive as his yearly compensation for his official services from the whole or part of the fees, or commissions so collected, the following sum only: All the net income from his office not to exceed seven thousand five hundred dollars.”

F.S. § 116.03, F.S.A., requires the filing of financial reports by state and county officers paid by fees or commissions. A report filed under this section by the Acting Constable is the Exhibit No. 1 to which the circuit judge refers in the.portion of his order quoted above.

From the basic figures of the circuit judge, which are unquestioned, the gross receipts of the office for the critical period, from both county and private sources, to-talled $6,932.81 ($4,215.71 from the county, plus $2,717.10 from individuals). Subtracting expenses of $3,716.41 from this total figure, we have $3,216.40, the amount petitioned for, representing the total net receipts of the office from both county and private sources. That this latter figure is the amount to which appellant is entitled under the Florida Constitution we have no doubt, nor is it seriously contended otherwise. The only question is whether the county is liable for that portion of the total net receipts which represents compensation from private sources and it is this issue which the circuit judge resolved against the appellant.

The constitution is silent as to the source from which repayment of compensation is to come. Appellant contends that a state officer under the circumstances may look to the state, while a county officer may look to the county. While, as Mr. Justice Holmes once remarked, “[i]t is hard to exhaust the possibilities of a general proposition”, Jas-ter v. Currie, 198 U.S. 144, 148, 25 S.Ct. 614, 615, 49 L.Ed. 988, and consequently we will not now hold that the principle contended for will apply in all situations, its logic as well as its justice commend it to us in this case. We are therefore firmly of the view that there was no error in the command of the alternative writ as far as it went, but we think it did not go far enough.

Appellees contend, and urged below, that the legislature in 1953 passed a special act for the relief of a justice of the peace, in circumstances similar to those presented here, Chapter 28641, Laws of Florida, 1953, indicating that the legislature considered no other relief available under the law. If we accepted this argument as persuasive in the case at bar, we would come dangerously close to declaring a special act to be a general act. This would amount to abdication of the judicial role and usurpation of a legislative function. It would also be inconsistent with our holding in State ex rel. Williams v. Lee, 121 Fla. 815, 164 So. 536, that a suspended officer was entitled to full compensation irrespective of the amount specified in a legislative appropriation for the payment of such claim.

As the circuit judge held, the sum of $2,717.10 was received by the Acting Constable from “individuals”. But these emoluments were paid and received only by virtue of the county office to- which appellant had been duly elected and was duly qualified before his suspension. The right to any and all authorized compensation was an incident of the office, Hanchey v. State, Fla., 52 So.2d 429.

It would seem to us highly technical to hold, when dealing with a clear constitutional command that “[n]o officer * * * shall suffer any loss of salary or other compensation * * * ”, that a county officer in these circumstances, entitled to compensation solely by virtue of his office, may look to the county only for part payment of his claim and must appeal to the legislature for the balance because he cannot obtain full relief in court. We hold, therefore, that appellant is entitled to be compensated from county funds in the full amount claimed. This holding is not intended to be penal in nature, as appellees suggest. It is designed only to give practical effect, as a matter of construction, to a principle which seems to us implicit in the clear constitutional mandate..

Reversed and remanded for further proceedings not inconsistent with this opinion.

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


author: THOMAS, Justice.

text:
    Claudia EDWARDS, Appellant, v. JACKSONVILLE COACH COMPANY, a corporation, Appellee.
    Supreme Court of Florida. Special Division B.
    June 13, 1956.

      Bedell & Bedell, Jacksonville, for appellant.
    Rogers, Towers, Bailey & Jones, Jacksonville, for appellee.
   THOMAS, Justice.

The circuit judge granted the motion of the defendant, now appellee, to dismiss the second amended complaint of the plaintiff, now appellant, reciting in his order that the plaintiff declined further to amend.

The sole question presented to this court is whether or not the cause of action was-so well stated that the attack upon the-pleading should have failed. According to its allegations the appellant paid her fare and became a passenger on one of appellee’s buses and was bound for a visit to her physician at Five Points. The appellant was 67 years of age and weighed 210 pounds. One of her arms had been recently broken and she carried it in a cast.

When the time came for appellant to alight, the bus had stopped at an angle to the curb so that the front was but a few inches way while the rear door was from 18 to 24 inches distant. The front door of the bus was so arranged that it would remain open for the free entrance and exit of passengers; the rear one was so constructed that a passenger leaving had to hold it open in order to pass. When the bus stopped, the appellant undertook to leave through the forward door but was ordered by the driver to use the rear door. She tried to follow his instruction, but could not, because of the space between the step and the curb and her disability, hold the door open and step down at the same time. Consequently, the door closed upon her dress, her step missed the curb, she fell into the street and was injured.

We think the appellant should have been permitted to prove what she alleged for the factual situation set out in her complaint was the antithesis of the care which she was entitled to receive as a passenger of the appellee-common carrier. Florida R. Co. v. Dorsey, 59 Fla. 260, 52 So. 963, 966. It was held in that case that a “common carrier is required to exercise the highest degree of care, foresight, prudence, and diligence reasonably demanded at ány given time by the conditions and circumstances then affecting the passenger and the carrier.” The appellee dismisses this authority, with the simple statement that it did not involve a situation where the passenger was sick or infirm. But we do riot understand how the principle announced there would be inapposite here. The fact that the appellant was infirm would be the more reason for application of the rule to the present controversy.

The appellant directs us to the decision of this court in Tampa Electric Co. v. Fleischaker, 152 Fla. 701, 12 So.2d 901, 902, in which it was held that the high degree of care imposed on a carrier requires it to take notice of a pássénger’s mental or physical disability and to act accordingly. In that case an elderly passenger was “invited * * * to get off” a street car without assistance and without warning that the place was unsafe. In referring to that decision in its brief, the appellee observes merely that the declaration was not attacked, but it is difficult for us to understand how the discussion of the prevailing principle could have been affected by the lack of an assault on the declaration.

The last case cited by appellant is Loftin v. Florida Cities Bus Co., 159 Fla. 514, 32 So.2d 166, 167. It appears that the plaintiff in that case, who was pregnant, attempted to alight from a bus. Her condition was so obvious as to serve notice on the operator of the bus that she was in need of assistance. It was held that “[w]hen a common carrier assumes responsibility for transporting a passenger in an obviously delicate condition it is charged with the exercise of a degree of care commensurate with condition of the passenger, to the end that [the passenger] be transported and delivered to destination safely.” That degree of care, continued the court, “may require personal assistance in boarding or alighting from the bus or other vehicle.”

The appellee undertakes to distinguish between the last two cited cases and the present case on the ground that they “involved situations where the passenger was disabled” while, presumably, that element is not present here, and points to the presence in the declaration filed in the case last cited • of averments both that the passenger was plainly enceinte and in need of aid in leaving the bus.

' When the fundamental principle is borne' in mind,- the attempts at distinction seem futile.

The appellant relied on these three decisions and well she might. It was plain to the operator of the bus that she was handicapped by a combination of age, weight and injury. At a time when she needed help she seems to have met hindrance. She tried to leave through the door of the bus that remained open and at a place where she could have easily stépped to the curb. She was sent to the door that had to be held' open, and forced to take a step that was hazardous. According to the allegations of. her complaint she was not given the attention she deserved as a passenger, and we have detected in them nothing justifying the construction that she was guilty of contributory negligence.

We conclude that a cause of action was stated in the complaint and that it was error to dismiss it and enter judgment for the appellee.

The judgment is reversed with directions to proceed accordingly.

Reversed.

DREW, C. J., ROBERTS, J., and’’ CARROLL, Associate Justice, concur.


text:
    Mary Agnes MAHAN, Appellant, v. James J. MAHAN, Appellee.
    Supreme Court of Florida. Division A.
    June 29, 1956.

      Sam B. Wilson, Jacksonville, for appellant.
    Albert Datz, Jacksonville, for appellee.
   THORNAL, Justice.

Appellant Mary Agnes Mahan, who was plaintiff below, seeks reversal of a decree of the Chancellor denying the annulment of her marriage to appellee James J. Mahan, who was defendant below.

The sole question before us is whether the evidence was sufficient to sustain the allegations of the complaint.

The complaint sought annulment of the marriage on the ground that at the time of the alleged ceremony the appellant was so intoxicated by the use of “alcoholic stimulants” that she was not in possession of her mental faculties and was incapable of forming conscious consent to the alleged marriage. The defendant answered that he could neither admit nor deny the allegations of the complaint because at the time of the alleged marriage, he was so intoxicated that he could not even state whether he was ever married to the plaintiff. The parties stipulated for the appointment of a Special Master to hear the testimony and report his findings.

There was no conflict in the testimony and if it is to be believed, it would appear that the allegations of the complaint were proved.

The record shows that on July 2, 1955, after an afternoon and evening devoted to drinking a combination of such stimulants as beer, whiskey and gin at an establishment bearing the foreboding name of “The Caribbean,” the parties, accompanied by another man, in some fashion wound up in Folkston, Georgia, late in the evening. At this point they we.re united in wedlock by an Ordinary of the State of Georgia. Folkston, Georgia, incidentally, appears to be the “Gretna Green” of Florida couples who are either not inclined to comply with the requirements of our laws stipulating various conditions precedent to matrimony, or for other reasons find themselves incapable of completing the marriage contract in our state. Experience has suggested that, although there are of course fortunate and happy exceptions, many of these “Folkston-Green” marriages terminate as did this one. Be this as it may, the record shows that the plaintiff was not conscious of the fact that she was married until she came to her senses at the home of her mother the afternoon of July 3, 1955.

The testimony of the parties as to their drunken stupor at the time of the alleged ceremony was corroborated by the witness who traveled with them and appellant’s inebriate condition on the day following the marriage was confirmed by other witnesses. Her knowledge of her marriage was conveyed to her by her mother who received the information from the attending witness. There is testimony also that the marriage did not culminate in cohabitation of the parties and that they had never lived together as husband and wife.

After hearing all of the witnesses, the Master found that the allegations of the complaint had been sustained by the evidence and recommended annulment. At final hearing, the Chancellor declined to approve the recommendations of the Master and dismissed the complaint with prejudice to the plaintiff, who now seeks reversal of that decree.

The appellant contends that the evidence adequately supported her complaint. The appellee appears willing to rely on the record alone for the reason that he has filed no brief.

Conceding that the decree of the Chancellor is entitled to a presumption of correctness, we are nevertheless likewise confronted with the rule that where the parties to a cause consent to the reference of their cause to a Master in Chancery, the findings of the Master are entitled to the weight of a verdict of a jury in a common law action. They are presumptively correct and are not to be lightly regarded. Kent v. Knowles, 101 Fla. 1375, 133 So. 315.

One condition precedent to a valid and binding marriage contract is that the parties be mentally competent to enter into the contractual engagement. A party lacking the essential requirement of mental capacity may in a proper case obtain the annulment of the contract absent ratification or confirmation during a lucid interval, or upon regaining mental competency. The general rule is well stated in 35 Am. Jur., Marriage, Sec. 116, p. 254, as follows:

“Intoxication at the time of entering into a marriage, where such intoxication renders one non compos mentis and incapable of knowing the nature of the contract and its consequences, voids or invalidates the marriage or renders it voidable, depending on the effect of mental incapacity on marriage in the particular jurisdiction. Intoxication to a less degree, however, has no such effect on the marriage.”

This court approved this general rule in the early case of Prine v. Prine, 36 Fla. 676, 18 So. 781, 785, 34 L.R.A. 87. Although in the Prine case it was held that cohabitation subsequent to the recovery of reason precluded annulment, nonetheless, the rule as to the effect of intoxication on the validity of the marriage contract was stated as follows:

“ * * * As to the law applicable to the facts, it cannot be doubted that if the party, at the time of entering into the contract, is so much intoxicated as to be' non compos mentis, and does not know what he is doing, and is for the time deprived of reason, the marriage is invalid; but it is .not invalid if the intoxication is of a less degree than that stated.” (Emphasis added.)

We reaffirmed the rule and granted annulment because of disqualifying intoxication in Martin v. Martin, 157 Fla. 835, 26 So.2d 901.

Although by her complaint the appellant alleged that the appellee fraudulently induced her to get drunk, the proof does not sustain the alleged fraud. However, reluctant as we always are to' disturb the conclusions of a Chancellor on the sufficiency of the evidence, we cannot in this case escape a decision that the uncontra-dicted evidence established the allegations to the effect that at the time this marriage was performed the appellant and, for that matter apparently, the appellee were so thoroughly and completely dethroned of their mental faculties by the use of alcohol that they were not conscious of what they were doing and that they were mentally incapable of forming the intent to enter into the contract which was essential to its validity.

The marriage contract is one of the most sacred of compacts. It should not be set aside or dissolved in the absence of clear and substantial proof that annulment or dissolution is justified under the law.

So far as this record reveals, however, the proofs met the requirement that the condition of intoxication had reached the point that at the time of the wedding the appellant was non compos mentis, and therefore incapable of entering into a binding arrangement.

Finding as we do, and finding further that there is no evidence of ratification of confirmation of the marriage, it is our view that the prayer of the complaint for annulment should have been granted. While the conduct of these parties is certainly not to be approved as acceptable social procedure, the record does sustain the conclusion that the appellant was entitled to the relief for which she prayed.

The decree appealed from must be reversed and the cause remanded for further proceedings consistent with this opinion.

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


text:
    John A. VANN and his wife, Annie L. Vann, Appellants, v. ACCOUNTS SUPERVISION COMPANY, a corporation doing business as Time Loan Company, Appellee.
    Supreme Court of Florida. Special Division B.
    June 29, 1956.

      Hazard & Thames, Jacksonville, for appellants.
    Robert E. Hucker, Jacksonville, for ap-pellee.
   ROBERTS, Justice.

The plaintiff-appellee, a small loan company, was successful in its suit to foreclose a chattel mortgage on household goods securing a loan of $280 made by it to the defendants, Mr. and Mrs. Vann, and the Vanns have appealed from the final decree of foreclosure.

The note and mortgage were the last in a series of eighteen transactions between the plaintiff and the Vanns, starting in 1946 with a loan of $60. The plaintiff’s records were incomplete, so it could not be said with certainty that the Vanns ever “paid out” any one loan completely, although the plaintiff’s manager, Widemier, testified that he didn’t think they did. In any event, the record shows that, as of November 12, 1949, the original indebtedness had increased from $60 to $300. At that time, the Vanns executed what Widemier referred to as a “renewal” note and mortgage in the amount of $300, out of which sum $230.79 was deducted to pay the balance due on a prior obligation; $12 for insurance; $2.15 for recording fee and documentary stamps; and $55.06 in cash to the Vanns. The obligation carried interest at the rate of 31/2 percent per month “on unpaid principal balance until 24 months after Date of Loan, and thereafter at maximum rate permitted by Florida Law.” This same pattern was followed in the subsequent renewals — seven in all — shown by this record. Each renewal paid off an existing indebtedness, and the old notes and mortgages were marked “paid” and returned to the Vanns. Each time, the Vanns were charged with the amount of the documentary stamps and the fee for recording the new obligation and, sometimes, for insurance; and after deducting these items and the balance due under the old obligation, a small amount in cash was paid over to them. The obligation here sued upon was executed on January 26, 1955, in the amount of $280, payable in 24 monthly installments of $17.44 each. It paid off an old balance of $250.29 due on the previous obligation; and after deducting this amount, $11.20 for insurance, and 40 cents for documentary stamps, $18.11 remained, which was paid to the Vanns in cash, according to Widemier.

Each time the loan was renewed, the Vanns were required to pay the interest due on the unpaid balance of the old loan, apparently at the rate of Z]/z percent per month. There is nothing in the record to show exactly how this was done, although counsel for the Vanns would have us assume that the Vanns would pay the unpaid interest due on the old balances out of the proceeds of the new loans paid over to them in cash. Counsel then argues, on this assumption, that the net effect of this procedure is the compounding of interest, as prohibited by Section 516.14, Fla.Stat.1955, F.S.A., of the Small Loan Act, and relies on Madison Personal Loan v. Parker, 2 Cir., 124 F.2d 143, 146, as authority for his contention that the note and mortgage are thus void. There, the borrower entered into a renewal note in the amount of $287 at the maximum rate allowed under the New York Small Loan Law, Banking Law, McKinney’s Consol.Laws, c. 2, § 340 et seq., and the principal amount and interest due under the old obligation were deducted from the principal amount of the new obligation and the balance paid over to the borrower. Thus, the records of the insurance company reflected conclusively the payment of interest on interest at the small loan rate, which was held to be a violation of a section of the New York Small Loan Law almost identical with Section 516.14, supra. Whether the company’s records reflect it or not, if a small loan company does, in fact, advance to a borrower the cash to pay the delinquent interest and incorporate this amount in the new loan, it would seem that this would violate the spirit of the Small Loan Act, if not the letter. As stated in Madison Personal Loan v. Parker, supra, “Interest at 3 per cent a month soon becomes substantial, and, constant renewal of the loans would increase the principal until the interest on the original principal would reach the proportions formerly found when only loan sharks operated. Loopholes in statutes are best closed by complete closing.”

Here, however, in addition to the fact that there was no proof that this was the procedure followed by the plaintiff, it has also been pointed out by counsel for plaintiff that no issue on this point was made by the pleadings. “If unlawful demands, charges, or exactions dehors the face of the mortgage itself have been perpetrated under guise of a contrary construction of the mortgage by the lender in violation of section 13 of the statute, so as to render void the obligation under that section, such invalidity must be set up as an affirmative defense in an answer, and duly established by proofs, in order to avail defendant.” Mason v. City Finance Co., 1933, 113 Fla. 73, 151 So. 521, 523.

The Vanns’ defenses to the foreclosure suit were (1) that the note and mortgage were executed in blank by Mr. Vann, one of the comakers, as prohibited by Section 516.16, Fla.Stat.1955, F.S.A.; and (2) that the note and mortgage covered the period from January 26, 1955 to February 1, 1957 and “constitute contracts for a loan for a period of longer than 24 months after making the loan in violation of Section 516.20 Florida Statutes [F.S.A.], * * * ”

As to defense numbered (1) above, it appeared that Mrs. Vann signed the note and mortgage after they were filled in, and the statement of the indebtedness was given to her. In these circumstances, and in the absence of an express statutory provision that non-compliance in this respect will invalidate the contract or loan, it must be held that the failure of the plaintiff to comply with this requirement of the statute did not make the note and mortgage “void and unenforceable”, as alleged by the Vanns. Cf. Giles v. Family Finance Service, 155 Fla. 506, 20 So.2d 805.

As to defense number (2), supra, Section 516.20, Fla.Stat.1955, F.S.A., provides that “No licensee shall enter into any contract for a loan for a period of longer than twenty-four months after making the loan.” Clearly, this provision was intended to limit the period during which the loan company could charge interest at the rate of 3J^ percent per month on any one obligation; and since the note and mortgage here sued upon expressly provided that, after 24 months, the interest rate should be “at maximum rate permitted by Florida law,” there was no violation of this section of the Act.

No issue was made below, nor here, as to the propriety of the procedure here followed by the plaintiff of issuing “renewal” obligations on an original indebtedness, in the guise of new loans, which, when added together, far exceed the 24-month period in which a small loan company is authorized to charge interest of percent per month. We mention this out of an excess of caution, for fear that our failure to do so might be construed as an approval of this procedure. This opinion is not to be so construed.

No error on the part of the Chancellor having been made to appear, the decree appealed from should be and it is hereby

Affirmed.

TERRELL, Acting C. J., and THORN-AL and O’CONNELL, JJ., concur.


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    CHARLES SALES CORP., a Florida corporation, Petitioner, v. Ben ROVENGER, Respondent.
    Supreme Court of Florida. Special Division A.
    June 15, 1956.

      Kommel & Rogers, Miami Beach, for petitioner.
    Patton & Kanner, Miami, for respondent.
   HOBSON, Justice.

This is a petition for certiorari filed by Charles Sales Corporation, defendant below, to review an order of the circuit court, sitting in chancery, overruling certain objections to interrogatories propounded by the plaintiff. For an understanding of the matter involved, it is first necessary to review what has thus far transpired in the case.

The plaintiff in this equity suit seeks an accounting, to determine and recover money due under certain alleged employment contracts with the defendant. The complaint alleges that from July, 1951, to November, 1952, the parties agreed that the plaintiff, as a salesman for defendant, was to receive a commission to be calculated on a sliding scale of percentages based upon gross profits to the defendant corporation. It is alleged that in November, 1952, the plaintiff discovered that the defendant had not paid the proper rate of commission based upon the gross profit derived from the sale of certain articles. It is further alleged that the defendant admitted the improper calculation of the commissions and agreed to give the plaintiff an accounting, and that although the promised accounting was never rendered, the defendant in July, 1953, paid the plaintiff $2,000 on account of the extra amount due him.

In November, 1952, the complaint continued, the parties expressed dissatisfaction with the terms of the employment because of the necessity for the many computations upon individual sales, and a new agreement was entered for the year 1953, whereunder the plaintiff was to be paid a weekly salary and expense • account plus 20% of the net profits before the computation of corporate income taxes at the end of the calendar year. The plaintiff states that during 1953 he received $5,000 on account of his right to 20% of the profits but that he never received the promised accounting.

It is further alleged that at the end of the year 1953 the parties altered the salary and expense account agreement but adhered to the 20% commission agreement, and that plaintiff received a payment of $2,000 in 1954 on account of his commissions but never received the promised accounting.

An accounting is sought in equity because of the alleged complexity of the transactions extending over a long period of time, the necessity of discovering facts known only to defendant, and the fiduciary relationship which existed between the parties.

Defendant moved to dismiss the complaint for failure to state a claim cognizable in equity and because plaintiff had an adequate remedy at law. The motion was denied, and defendant answered, denying that the contracts of employment were those set forth in the complaint and alleging that the sums paid to the plaintiff during 1953 and 1954 in addition to salary were bonuses voluntarily given. Defendant also filed a counterclaim, which need not concern us here.

Subsequently, plaintiff propounded to defendant the interrogatories in question, requesting, in substance, that defendant state the following:

(a) The cost for the period from July 1, 1951 to November 30, 1952, of every item sold by the defendant through the agency of the plaintiff, the preferential discounts obtained by defendant from its suppliers and the percentage of profit derived by the defendant from each sale.

(b) For the period from January 1, 1953 to December 31, 1953, and also for the period from January 1, 1954 to December 31, 1954.

1. Gross sales (with supporting schedules)

2. Returned sales and allowances (with supporting schedules)

3. Net sales

4. Costs of goods sold, indicating:

a. Inventory as of January 1, 1953, 1954
b. Merchandise purchased
c. Inventory as of December 31, 1953, 1954

5. Gross profit on sales

6. Selling expenses (with supporting schedules)

7. Net profit on operations before computation of corporate income taxes.

To these interrogatories defendant filed objections which, when stripped of verbiage, reveal two main grounds: (1) that the interrogatories are oppressive and unduly burdensome, and (2) that they are irrelevant to the issue in the cause, which is the nature of the contract of employment between plaintiff and defendant. As stated above, these objections were overruled, after hearing, by the order challenged here.

30 F.S.A. Rule 1.27, 1954, Florida Rules of Civil Procedure, under which the interrogatories were propounded, is similar to Rule 33 of the Federal Rules of Civil Procedure, 28 U.S.C.A., and contains

similar cross-references to other rules which make it clear that the permissible scope of discovery by interrogatories to parties as wide as that available by deposition upon oral examination. Thus “any matter, not privileged, which is relevant to the subject matter involved in the pending action” may be inquired into. Rules 1.27 and 1.21(b), 1954 Florida Rules of Civil Procedure. It will be noted that the test is relevancy to the subject matter of the action rather than to the precise issues framed by the pleadings. See 4 Moore’s Federal Practice, Sec. 33.15, p. 2296 and Gutowitz v. Pennsylvania R. Co., D.C. E.D.Pa.1945, 7 F.R.D. 144. With this broad scope of discovery, however, safety-valves must be and are provided. On. seasonable objection by the party interrogated, the court may enter an appropriate protective order. Dilatory tactics by the use of such objections are not to be encouraged, and the trial court has a wide discretion in its treatment of discovery problems which we will not ordinarily disturb.

In the case before us, we cannot say that, as a matter of law, the interrogatories, or any of them, showed on their face that the party interrogated required the protection of the court from “annoyance, expense, embarrassment, or oppression" under Rules 1.27 or 1.24(b). The burden of proving the validity of objections is, of course, upon the objecting party. Kainz v. Anheuser-Busch, Inc., D. C.N.D.Ill.1954, 15 F.R.D. 242; Pappas v. Loew’s Inc., D.C.M.D.Pa.1953, 13 F.R.D. 471; Mall Tool Co. v. Sterling Varnish Co., D.C.W.D.Pa.1951, 11 F.R.D. 576; Glick v. McKesson & Robbins, Inc., D.C. W.D.Mo.1950, 10 F.R.D. 477; Bowles v. Safeway Stores, Inc., D.C.W.D.Mo.1945, 4 F.R.D. 469; Blanc v. Smith, D.C.S.D. Iowa 1943, 3 F.R.D. 182. We have before us no record of what transpired below at the hearing on the objections. We are therefore unable to determine what, if any, showing was made by the defendants as to the size of its business, or the magnitude of the task of furnishing the information sought by the plaintiff. The record thus falls far short of that which would be required to show an abuse of discretion upon this aspect of the case.

Since there is no claim of privilege, the only point remaining to be considered is that of relevancy of the interrogatories at the present stage of the litigation. The defendant petitioner contends that the plaintiff is prematurely seeking discovery as to items of account before it has been established that he is entitled to an accounting. Is such discovery “relevant to the subject matter” of the action? This resolves itself into the broader question of the propriety of allowing discovery before trial as to the relief sought.

The Supreme Court of the United States had occasion to consider this question in 1933 in Sinclair Refining Co. v. Jenkins Petroleum Process Co., 289 U.S. 689, 53 S.Ct. 736, 737, 77 L.Ed. 1449. Professor Moore quotes the following enlightening language from the opinion in that case, which, he states, is still good law under the Federal Rules (4 Moore’s Federal Practice, Sec. 26.18, p. 1072):

“The remedy of discovery is as appropriate for proof of a plaintiff’s damages as it is for proof of other facts essential to his case. * * *
******
“There are times when a suit is triable in separate parts, one affecting the right of liability, and the other affecting the measure of recovery. In suits of that order a discovery as to damages will commonly be postponed till the right or liability has been established or declared. * * *
“A different situation is presented where the action is at law and is triable by judge and jury. There interlocutory judgments are unknown * * *. In such circumstances damages may be proved with the aid of a discovery, if the complication of accounts or other practical impediments make it necessary that the evidence be sifted in advance. * * *
******
“To hold that the plaintiff in an action at law may have discovery of damages is not to say that the remedy will be granted as of course, or that protection will not be given to his adversary against impertinent intrusion. * * * It is all a matter of discretion. * * * ”

As an example of a suit triable in separate parts, Professor Moore refers to a patent infringement suit where the plaintiff seeks an injunction and an accounting. In such a suit, the court will not ordinarily permit the plaintiff to obtain discovery as to the accounting until after the question of whether the plaintiff has a right to an accounting has been determined. See Zenith Radio Corp. v. Dicto-graph Products Co., Inc., D.C.D.Del.1947, 6 F.R.D. 597, and the numerous federal cases in accord cited in 4 Moore Section 26.18, p. 1072, n. 2.

Is the instant case, like a patent case, triable in two separate parts ? In Manning v. Clark, Fla., 56 So.2d 521, 523, we said, speaking of the ordinary equity suit for an accounting:

“It is well settled that in suits for an accounting, where the answer does not admit the allegations of the complaint and there is no consent to entry of a decree, the proper practice is for the court to determine the initial question of plaintiff’s right to an accounting, and an accounting may then be decreed if the finding is in favor of plaintiff upon the preliminary issue. Warden v. Richardson, 203 Okl. 474, 223 P.2d 338; Ewalt v. Hudson, Mo. App., 223 S.W.2d 132; Larson v. Crescent Planing Mill Co., Mo.App., 218 S.W.2d 814; Jackson v. Elmont Cemetery, Sup., 80 N.Y.S.2d 407; Harris v. Young, 298 Ill. 319, 131 N. E. 670; 1 Am.Jur. 306; 1 C.J.S., Accounting, § 40, p. 680.”

It thus appears that the question must be answered in the affirmative, and that discovery as to the accounting must be deferred until the preliminary issue of the right to the accounting is settled.

Plaintiff contends, however, that he must prove, among other things, the complicated nature of the account, to remain in equity, and that the interrogatories are directed to this end. But a review of the interrogatories reveals that they are directed to actual money amounts, not to the nature of the contracts or the number of sales or character of the records kept. The complicated nature of the accounts may be subjected to discovery and proved without seeking compilations of figures which anticipate the accounting and which will be useless if the plaintiff cannot prevail upon the preliminary issue. We are constrained to hold, therefore, that the order overruling the objections at this stage of the case was in error.

Certiorari is granted, the challenged order is quashed, and the cause is remanded for further proceedings not inconsistent with this opinion, without prejudice to the plaintiff to propound further interrogatories or employ other methods of discovery not in conflict with the principles we have stated above.

So ordered.

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


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    CITY OF MIAMI BEACH, a municipal corporation, Appellant, v. Oliver P. WASHBURN, Appellee.
    Supreme Court of Florida. Special Division A.
    March 14, 1956.
    Rehearing Denied July 25, 1956.

      J. Ben Watkins (of Truett & Watkins), Tallahassee, and Roland W. Granat, Miami Beach, for appellant.
    Henry G. Simmonite (of Walsh, Simmon-ite, Budd & Walsh), Miami, for appellee.
   HOBSON, Justice.

This is an appeal by defendant, the City of Miami Beach, from a final judgment of the circuit court entered consequent upon a verdict for plaintiff (appellee here) in a personal injury suit

It appears that plaintiff, a musician, came to a partially completed city bandshell to enlist the aid of the manager of this band-shell in securing, for plaintiff’s orchestra, a contract of employment with the city. Plaintiff was injured by falling into an unlocked stage light pit.

One Joseph Mooney was the assistant supervisor of recreation for the city and was in charge of the bandshell at the time the accident occurred. Counsel for plaintiff requested at the trial that the rule relative to the exclusion of witnesses be invoked. Defense counsel stated that Mooney was a witness, but that he was present as the duly designated representative of the city, a municipal corporation. The court nevertheless excluded him from the courtroom under the rule, denying an appropriate objection made by defense counsel. The rule was invoked after the jury had been selected and sworn.

Although other questions are presented upon this appeal, and we have considered them all, we deem it necessary to discuss only that which relates to the exclusion of Mooney, as above related. Appellant contends that this ruling of the court was reversible error, since it was tantamount to the exclusion of a party.

In essence, appellant contends that Mooney was primarily the representative of a party and only incidentally a witness, while appellee urges that Mooney was a witness first and foremost and that by its ruling the court “refused to allow a witness for the municipal corporation to remain in the courtroom in the guise of a representative.” We think that the appellee has the better of this argument, on the record presented here. Mooney was an eyewitness to the accident. He testified that he “grabbed” the plaintiff when he fell, and administered first aid to the plaintiff after the accident. No special importance of Mooney which would have rendered him an indispensable representative of the city for this case, aside from his value as a witness, was demonstrated or offered to be shown to the trial court, so far as appears. At least presumptively, Mooney was primarily a witness, in the absence of a contrary showing, and the trial court could judicially notice, as can we, that a city the size of Miami Beach is well provided with possible representatives. A pre-trial conference was held in this case, at which time this matter could have been fully explored. We think the burden was on the city to establish by an appropriate showing, preferably before trial, the point it seeks to make here. So intimately was Mooney connected with the case as an eyewitness that the invocation of the rule as to him was an almost inevitable eventuality. As it was, he was permitted to remain in the courtroom until after the jury was im-panelled and sworn, as we have stated, and, the benefit of his advice was available to defense counsel at this critical time.

As we have held, the matter of exclusion of witnesses from the courtroom during a trial is a matter peculiarly within the discretion of the trial court, New Amsterdam Casualty Co. v. Utility Battery Mfg. Co., 122 Fla. 718, 166 So. 856; Romano v. Palazzo, 83 Fla. 243, 91 So. 115. There is an insufficient showing in this case to warrant the conclusion that the discretion thus vested in the trial judge has been abused.

No harmful or reversible error having been made clearly apparent, this cause should be, and it is hereby,

Affirmed.

DREW, C. J.,- THORNAL, J., and MILLED GE, Associate Tustice, concur.


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    Bernice ROBINSON, Appellant, v. Eugene H. ROBINSON, Appellee.
    Supreme Court of Florida. Special Division A.
    May 23, 1956.
    Rehearing Denied July 19, 1956.
    Charles J. Kapfer, Palatka, for appellant.
    Angus W. Harriett, Palatka, for appel-lee.
   PER CURIAM.

This cause came "on to be heard on the motion of appellee to affirm the judgment appealed from pursuant to 31 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., TERRELL and THORNAL, JJ., and CARROLL, Associate Justice, concur.