text:
    Mary A. SHEARN, Plaintiff, v. ORLANDO FUNERAL HOME, Inc., a Florida corporation, Defendant.
    Supreme Court of Florida. Division A.
    June 8, 1956.
    Rehearing Denied July 19, 1956.
    See also 82 So.2d 866.

      Walter E. Smith, S. Victor Tipton and R. L. Williams, Orlando, for plaintiff.
    Maguire, Voorhis & Wells, Orlando, for defendant.
   HOBSON, Justice.

Hon. Frank A. Smith, Circuit Judge of the Ninth Judicial Circuit, has certified two questions pursuant to Section 59.42, Florida Statutes, F.S.A., and Supreme Court Rule 27, 31 F.S.A. The pertinent portion of his order of certification follows:

“This cause came on for hearing, after due notice, upon motion of defendant that the Circuit Court certify the hereafter stated questions or propositions of law to the Supreme Court for instruction, pursuant to sec. 59.42, Florida Statutes and Rule 27, and it appearing to the undersigned Judge of this Court that there is involved in this cause pending in this Court certain questions or propositions of law that are determinative of the cause and are without controlling precedent in this State, and it further appearing that instruction from the Supreme Court will facilitate the proper disposition of this cause, and the Court being advised in the premises,

“It is ordered that the following questions or propositions of law be and the same are hereby certified to the Supreme Court for instruction, viz.:

“(1) Whether the former adjudication in Case No. 13542, Mary A. Shearn v. Orlando Funeral Home, Inc., is a bar to the present action; and, if not,

“(2) Whether said former adjudication is conclusive as to all issues pertaining to liability of defendant in this cause, leaving for determination only the question of the amount of plaintiff’s damages herein.

“It is further ordered and certified that the foregoing questions of law to be an- • swered arise out of the following Statement of Facts showing the nature of the cause and the circumstances, to-wit:

“Statement of Facts

“On August 31, 1952, William J. Shearn was driving his wife’s automobile in a westerly direction on Colonial Drive in Orlando, Florida. His wife, Mary A. Shearn, was riding with him in the automobile. Upon arriving at the intersection with Bumby Street, he stopped for a red traffic light, being then in the lane of traffic nearest the center line of Colonial Drive. A west bound ambulance of the defendant was transporting an unconscious patient to the hospital. As the ambulance approached the intersection at a high rate of speed, it swerved to its left, across the center line of Colonial Drive and into the east bound lane. The traffic signal turned green when the ambulance was 100 to 150 feet from the intersection. The ambulance struck the Shearn automobile on the left side as the latter was turning toward the left.

“In a collision on August 31, 1952, William J. Shearn was injured and died on September 5, 1952 and the automobile of Mary A. Shearn was damaged, and Mary A. Shearn was injured in said collision.

“On March 12, 1953, Mary A. Shearn, as Executrix of the last will and testament of William J. Shearn, deceased, filed complaint against Orlando Funeral Home, Inc., in the Circuit Court of Orange County, Florida, Law No. 13541 to recover damages for the pain and suffering of William J. Shearn.

“On March 12, 1953, Mary A. Shearn as widow of William J. Shearn, deceased, filed complaint against Orlando Funeral Home, Inc., in the Circuit Court of Orange County, Florida, Law No. 13542 to recover damages for the death of her husband William J. Shearn.

“Cases Nos. 13541 and 13542 were consolidated for trial, and were tried on December 2-5, 1953, and verdicts for plaintiff were rendered in the respective amounts of $3,-000 and $18,000. Final Judgment in favor of Mary A. Shearn in Case No. 13542 for $18,000 and costs against Orlando Funeral Home, Inc., was entered on December 10, 1953.

“On August 5, 1954, Mary A. Shearn filed her complaint against Orlando Funeral Home, Inc., in the Circuit Court of Orange County, Florida, Law No. 14209, to recover damages to her automobile and to recover damages for her personal injuries. At the time of the trial of Circuit Court cases Nos. 13541 and 13542, Case No. 14209 was not at issue and praecipe for docketing in Case No. 14209 was not served by plaintiff’s attorney until March 17, 1955.

“In each of the cases, 13541, 13542 and 14209, the allegation of the complaint as to liability of the defendant is the same, viz.: that the driver of defendant’s ambulance ‘negligently and carelessly drove said ambulance of the Orlando Funeral Home, Inc., into and against the automobile.’

“In each of the said cases, 13541, 13542 and 14209, the defenses of Orlando Funeral Home, Inc., are the same, viz.: a denial of negligence on the part of the ambulance driver, and contributory negligence on the part of the automobile driver.

“In case No. 14209, the additional defense of res judicata is interposed, the defendant contending that the final adjudication in Case No. 13542 is a complete bar; and in Case No. 14209 the plaintiff contends that the final judgment in said case No. 13542 is res judicata as to all issues pertaining to liability of defendant in case 14209.

“In Circuit Court case 13542, Mary A. Shearn as the widow of William J. Shearn, deceased, sued the Orlando Funeral Home, Inc., and recovered a judgment which was reviewed by Div. B. of the Florida Supreme Court and opinion was filed October 21, 1955 (case No. 26,630 in Supreme Court). In Circuit Court Case No. 14209, Mary A. Shearn is suing for her personal injuries and damages to her automobile, resulting from said collision. All of the damages claimed in circuit court cases 13542 and 14209 are the result of the same tort and the same evidence is admissible in both cases as to the question of liability only.”

The first question which has been posed for our consideration involves a determination of whether the doctrine of res judicata is applicable. We have concluded that such doctrine is not applicable because, although the parties are the same in the instant suit as in the former, the cause of action is different. The prior litigation was predicated upon our wrongful death statute which had for its very purpose the creation of a cause of action where none existed at common law. “It is * * * well settled that our Wrongful Death Act creates in the named beneficiaries ‘an entirely new cause of action, in an entirely new right * * *.’ ” Shiver v. Sessions, Fla., 80 So.2d 905, 907. Although no thoroughly satisfactory definition of a cause of action has been laid down by the authorities, it is generally conceded under the modern view that a cause of action is the right which a party has to institute a judicial proceeding. In this suit Mary A. Shearn is pursuing her common law right to redress for injury to her person and property. She cannot be accused of violating the rule against splitting a cause of action because she is not suing here for different elements of damage of the same cause of action, but is maintaining this separate suit on a separate cause of action arising out of the same incident or occurrence.

All the facts essential to the maintenance of the two suits under consideration herein are not identical nor would the same evidence sustain both. In the prior suit one of the essential facts to be established was the death of Mr. Shearn as a result of the alleged negligence of the defendant, Orlando Funeral Home, Inc., which showing obviously is not essential to the maintenance of the present litigation. On the other hand, it is essential to the maintenance of this suit that Mrs. Shearn establish injuries to her person and to her property, which showing was wholly unnecessary, as well as improper, in the former case predicated upon our death by wrongful act statute, F.S.A. §§ 768.01-768.04. The question of Mrs. Shearn’s right to maintain an action for personal injuries and damages to her property does not fall within the purview of the first action under the so-called wrongful death statute.

We answer the first certified question by saying that the adjudication of the prior suit (Case No. 13S42) does not constitute a bar to the present action, and we hold specifically that the defense of res judicata is not available to Orlando Funeral Home, Inc., in this action (Case No. 14209).

Since we have concluded that the parties in both suits are the same but that the cause of action in each is different, it becomes necessary only, in order to answer the second certified question, to determine whether there is in the instant suit any issue pertaining to the liability of Orlando Funeral Home, Inc., which was not presented and adjudicated in the former action.

In the order of certification we ■find the answer to this query and we quote:

“In each of the cases, 13541, 13542 and 14209, the allegation of the complaint as to liability of the defendant is the same, viz.: that the driver of defendant’s ambulance ‘negligently and carelessly drove said ambulance of the Orlando Funeral Home, Inc., into and against the automobile.’
“In each of the said cases, 13541, 13542 and 14209, the defenses of Orlando Funeral Home, Inc., are the same, viz.: a denial of negligence on the part of the ambulance driver and contributory negligence on the part of the automobile driver.”

We have held on more than one occasion that “estoppel by judgment” comes into play when the parties are the same in both actions but the causes of action are different, if the issues — that is to say the points and questions — raised in the second suit were actually presented and adjudicated in the former.

It appears from the order of certification that no issue pertaining to the liability of Orlando Funeral Home, Inc., is created by the pleadings ,in this suit which was not presented and adjudicated in the prior litigation (Case No. 13542).

Consequently our answer to the second certified question is that the former adjudication in Case No. 13542 is conclusive as to all issues pertaining to liability of Orlando Funeral Home, Inc., in this cause, leaving for determination only the question of the amount of Mary A. Sheam’s damages herein

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


source: Caselaw Access Project

author: MATHEWS, Chief Justice. HOBSON, Justice HOBSON, Justice.

license: Public Domain

text:
    ALTERMAN TRANSPORT LINE, Overseas Transportation Company, Great Southern Trucking Company & Central Truck Lines, Petitioners, v. Jerry W. CARTER, Wilbur C. King & Richard A. Mack, as members of and constituting Florida Railroad and Public Utilities Commission, Respondents.
    Supreme Court of Florida. En Banc.
    Feb. 11, 1955.
    On Rehearing June 13, 1956.

      Rodgers & Kirkland, J. B. Rodgers, 'Jr., Thomas E. Kirkland and Howard J. Clifton, Orlando, for petitioners. '
    Lewis W. Petteway and Guyte P. Mc-Cord, Jr., Tallahassee, for respondents.
    Minnet & Allsworth, Ft. Lauderdale, for intervenor.
   MATHEWS, Chief Justice.

A petition for writ of certiorari has been filed by a common carrier, a protestant in proceedings whereby 'another commo'n cai|-rier sought a certificate to operate in territory or on a line already served' by .the protestant, as provided for by Subsection (3) of Section 323.03, F.S., F.S.A." The particular section under which the application for a certificate was filed is as follows:

“When application is made by an auto transportation company for a certificate to operate as a common carrier in a territory or on a line already served by a certificate holder, the commission shall grant same only when the existing certificate holder or holders serving such territory fail to provide service and facilities which may reasonably be required by the commission.” (Emphasis supplied.)

The examiner appointed by the respondents took voluminous testimony and in his recommended order found, among other things, as follows:

“ * * * None of them [witnesses for applicant] had any serious complaint as to the service rendered by the protestants who appear to have the necessary authority, facilities, willingness and ability to render the service desired by the applicant’s witnesses.
“Under the circumstances, there does not appear to have been made a sufficient showing of public convenience and necessity to require the granting of the desired certificate.”

In consideration of the matter, the respondents overruled or denied the recommendation of the examiner that the application not be granted and found:

“1. Protestants have failed to adequately serve the needs of the shippers in the area here involved for the type of transportation which applicant seeks authority to perform.
******
“3. Applicant proved that public convenience and necessity require the proposed transportation serve [ice].”

Upon a mere examination of the paragraph of Subsection (3) of Section 323.03, F.S., F.S.A., it will be noted that when a common carrier makes application for certificate to operate in a territory on a line already served by the certificate holder, the commission shall grant such application only when the existing certificate holder, or holders, serving such territory fail to provide service and facilities which may reasonably be required by the commission. It is important to note that the failure to provide service and facilities does not refer to service and facilities which may suit the fancy or whims of particular individuals but it is the service and facilities which “may reasonably be required by the commission.”

The finding of the commission is that the protestants have failed to adequately serve the needs of the shippers in the area here involved for the type of transportation which applicant seeks authority to perform. There is no finding by the commission that the facilities in question have been required by it or that the protestant has failed to provide any facilities or equipment or service required by the commission. Even though the protestant may not have served a particular shipper at a particular time with the service required by the shipper would not give the commission jurisdiction to grant the application unless the commission, in the exercise of its authority, had required the protestant to provide for the particular service and facilities as requested by the shipper.

The territory in question was already being served by a common carrier holding a certificate from the commission and the mere finding of the commission that public convenience and necessity require the issuance of a new certificate to another common carrier is unauthorized unless the commission first determines that the service being rendered by the existing certificate holder (in this case, protestant) has failed to provide service and facilities which have reasonably been required by the commission.

In the recent case of Redwing Carriers v. Mack, Fla., 73 So.2d 416, 420, this Court held:

“It is our conclusion that as suggested, if not decided, in our opinion in Jack’s Cookie Co. v. Florida Railroad and Public Utilities Commission, supra [Fla., 54 So.2d 695], it is the intent of our statute to give existing carriers a reasonable opportunity to provide equipment and, if necessary, trained personnel, before the Commission grants a new certificate to another carrier. * * * ”

The existing carrier was given no opportunity “to provide equipment and, if necessary, trained personnel,” before the commission attempted to grant a new certificate to another carrier. The record fails to disclose that the respondents at any time gave the protestant any instructions with reference to service or any notice that it was required to do anything more than it was doing.

Sections 323.03 and 323.08, F.S., F.S.A., provide for a certificate holder to maintain a time schedule with the Commission and then provide that time schedules filed with the Commission shall not be changed by the auto transportation company “without an order of the commission sanctioning the same.” Prior to the hearing the petitioners could not have rendered the specialized service desired by the shippers without violating the law as to time schedules without an order from the respondents sanctioning the same. No such order by respondent Commission was shown to exist.

The petition for writ of certiorari should be and is hereby granted, and the order of the respondents complained of should be and is hereby quashed.

TERRELL, THOMAS, SEBRING and ROBERTS, JJ., concur.

HOBSON and DREW, JJ., dissent.

HOBSON, Justice

(dissenting).

Although I am fully cognizant of the language of subsection (3) of section 323.-03, F.S., F.S.A., I am of the view that Mr. Justice MATHEWS’ construction thereof is too narrow and restricted. Said section does not specifically provide when, or the manner in which, the commission “may reasonably” require an existing certificate holder to provide service and facilities essential to the public convenience and necessity. In my opinion it would be an idle or useless gesture for the commission in a case such as this wherein the existing carriers as a matter of fact have had full opportunity for a number of years to furnish the service needed in a given area and have failed to do so, to enter a special order requiring the existing certificate holders to furnish such service within a given period of time or suffer the issuance of a new certificate to a new carrier. In other words, I feel that once a certificate is issued to a carrier, it is such certificated carrier’s continuing duty to provide service and facilities necessary to the public convenience and necessity, and that when for a long period of time such existing certificate holders have failed to perform this obligation, although having had full opportunity to do so, the commission, after making such determination, might issue a certificate to a new carrier.

This case is similar to the case of Tam-iami Trail Tours, Inc., v. Carter, Fla., 1954, 80 So.2d 322, and is clearly distinguishable from the case of Redwing Carriers, Inc., v. Mack, Fla., 73 So.2d 416, for in the latter case the protesting carriers had never had the opportunity to provide the service of transporting liquified petroleum gas.

Moreover the construction placed upon the statute by the opinion of Mr. Justice MATHEWS was not argued or briefed, and before such construction is adopted I feel that the commission, which, after all, is responsible for the sound administration of the statute, should have an opportunity to be heard upon this new question.

I therefore vote for the denial of certi-orari.

DREW, J., concurs.

On Rehearing

HOBSON, Justice.

After the most extensive reconsideration of this case, in the light of the petition for rehearing and briefs filed by the parties, in connection therewith, a majority of the court has reached the conclusion that we cannot accept the construction placed upon the last sentence of F.S. Sec. ■ 323.03(3), F.S.A., by our original opinion herein. This sentence reads as follows:

“When application is made by an auto transportation company for a certificate to operate as a common carrier in a territory or on a line already served by a certificate holder, the commission shall grant same only when the existing certificate holder or holders serving such territory fail to provide service and facilities which may reasonably be required by the commission.”

In Redwing Carriers v. Mack, Fla., 73 So.2d 416, we were confronted with a situation where, by reason of technological development, a new product (liquefied petroleum gas) requiring an entirely new type of transportation service was about to be made available to the public in a particular area. Existing franchise carriers for the area had never been given an opportunity to provide the service when an out-of-state carrier, already equipped for the new transportation, applied for a certificate of public convenience and necessity. There was also the element of misrepresentation in that case, because the shipper had told the certificate holders that its plans for movement of liquefied petroleum gas had not been “finalized” after it had already entered a contract with the new applicant for a certificate. The transportation there involved was of a type which “may” reasonably be required by the commission, i. e., it was within the jurisdiction of the- commission reasonably to require such transportation. Under the facts of the case, we held that the commission should have given the existing carriers a reasonable opportunity to provide the service before granting a new certificate to another carrier.

In Tamiami Trail Tours, Inc., v. Carter, Fla., 80 So.2d 322, on rehearing, 80 So.2d 328-329, we extended the doctrine of the Redwing Carriers case to apply to a situation where there was no special equipment needed for the transportation of a new product. After reconsideration of the rule which we there laid down, in the light of the' facts of the instant case, we recede from it in its entirety and adhere to the original opinion of Mr. Justice Drew in that case.

In the case now before us, a further extension of the rule of the Redwing Carriers case is contended for. As we have stated above, we cannot accept it.

The rule of the Redwing Carriers' case must be restricted to the facts which” were there before us, as we have outlined them above. Under the last sentence of oúr statute, which we have quoted, a certificate should not be granted where there is existing adequate service over the route applied for and; if inadequate, unless the existing carrier ’has- been given an opportunity to furnish such additional service as may reasonably be “required” by the-commission. The commission need not first require, or formally require, such service. A new certificate can be granted by the commission on proof of public conven-, ience and necessity therefor if the existing, certificate holder has had an opportunity to. provide the service and has failed to do so,, and the service is within, the jurisdiction of, the commission reasonably to be required. This interpretation of the statute offers some protection to existing franchise holders, but at the same time permits the commission to be guided in all cases by its polar star: the public convenience and necessity. When a hew certificate is applied for, the certificated carrier has the burden of explaining why it has not met the need for the new service, if any such, need there is, and in the ordinary case the failure of existing carriers to meet reasonable requirements, mentioned in the last sentence of F.S. Sec. 323.03(3), F.S.A., should be considered as of the time of application for the new permit, and not at some future date. ,

In this case- the commission has' made a specific finding that public conven-i ience and necessity require the service ap-i plied -for, and the evidence supports the finding. Petitioners virtually concede; in their brief on rehearing that they are not prepared to provide such service. The service is within the jurisdiction of the commission reasonably to be required. Applying the rules which we have stated above, it is evident that the commission was authorized to grant the application below.

It follows that the petition for writ.of certiorari must be, and it is hereby, denied.

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

TERES^L, THOMAS and SEBRING, JJ., adhere to Opinion filed February 11, 1955.


author: PRUNTY, Associate Justice.

text:
    Joseph E. WILLIAMS, Augusta Walters and Pearl Counterman, Appellants, v. Ed KANE and Florida State Elks Association, Inc., a corporation not for profit, Appellees.
    Supreme Court of Florida. Special Division A.
    March 28, 1956.
    Rehearing Denied May 2, 1956.
    See also, 88 So.2d 603.
    Joseph E. Williams and F. W. Sisson, Tampa, for appellants.
    Henry E. Williams, Jr., Tampa, for Ed Kane.
    Harry B. Terrell and Charles C. Whitaker, II, Tampa, for Florida State Elks Association, Inc., appellees.
   PRUNTY, Associate Justice.

The appellants were named executor and principal legatees, respectively, under the purported last will and testament of Anna M. Scheidler. They appeal from an order of the Circuit Court upholding and affirming an order of the County Judge, holding this will invalid and refusing to admit it to probate on the ground that the decedent lacked testamentary capacity to execute the purported will.

Anna M. Scheidler died November 14, 1952, and left a purported will which was dated October 26, 1952. The executor named in the will filed a petition for probate; and appellee, Ed Kane, filed a caveat and defenses on the grounds that the alleged will was not the will of the deceased, that she was not mentally and physically capable of executing a will on October 26, 1952, and that the alleged will was a product of duress and undue influence. Subsequently the Florida Elks Association filed its answer and objections to the purported will.

During the hearings before the County Judge thirty-six witnesses testified. The transcript of the testimony consists of 3,105 pages, approximately one-third of which covers the testimony of the appellants. The Rules of Practice adopted for .the Supreme Court, July 19, 1954, 30 F.S.A., have apparently done little to diminish the records in cases such as this.

A review of this exhaustive record reveals that a considerable part of the testimony sheds feeble light upon the issue involved.

The sole question involved is the sufficiency of the evidence to establish lack of testamentary capacity of the testatrix to execute the purported will dated, October 26, 1952.

The probate judge heard all the witnesses except those who testified by deposition and set forth in his final order an adequate review of his actions and his findings. The pertinent portions of the order of the probate court are as follows:

“All of the testimony in this proceeding has been presented before and heard by the Court except the depositions of Joseph E. Williams, Mrs. Pearl A. Counterman and Mrs. Augusta Walters on March 10, 1953, before Nathan L. Friedman, Notary Public of the State of Florida at Large, and each of said witnesses appeared in this cause before the Court and were examined and testified at length in the hearing and presence of the Court, and in said examination they were examined at length concerning their said depositions.
“The Court permitted the examination of the two alleged attesting witnesses to the purported will by contestants and by the Court out of order of their presentation as witnesses by the petitioner, over objection of said petitioner. This objection was overruled on the view of the Court that attesting witnesses to a will on contest are more properly witnesses of the Court than of the proponent or contestants of the alleged will. And as the case unfolded it appeared to the Court that such preliminary examination of said witnesses was eminently proper.
“It appears from the evidence that Mrs. Scheidler, the decedent, was a patient at a rest home at 405 S. Boulevard during part of October, 1952, and throughout the testimony this rest home was referred to as Buzzards Roost. It seems to the Court, from all of the evidence in this cause, that this figure of speech clothed in more refined terminology might appropriately be applied to 110 North Boulevard, the home of the decedent. Instead of carrion crow let us say kindly disposed people, apparently hopeful of reward for favors bestowed on Mrs. Scheidler, were frequently crossing the threshold of the door of said sick woman’s room.
“The rights of Florida State Elks’ Association, Inc. as contestant were not prejudiced by the withdrawal of Ed Kane’s charges of undue influence by Mrs. Walters. Ed Kane only absolved Mrs. Walters and he did not exculpate Mrs. Counterman of the charges of undue influence. And, as stated, this withdrawal did not affect the contest of this ground by said Florida State Elks’ Association, Inc. against either of said principal beneficiaries.
“It is the opinion of the Court, from all the Competent, credible, relevant and material testimony in this cause that the alleged testatrix, Mrs. Anna M. Scheidler, lacked testamentary capacity on the day of the execution of the purported will, preceding and at the time of the alleged execution of the said document, or at any time thereafter.
“The contestants contended vigorously that the evidence shows that the purported will was not duly and regularly executed and attested. The evidence and legal inference logically deducible therefrom point to many instances or indicia or irregularities and discrepancies attending and in the manner, form and legal sufficiency of the execution of the purported will. But in view of the finding of the Court, hereinbefore and hereinafter stated, the Court finds it unnecessary to make any finding on this ground of contest of the petition and alleged will.
“From all the competent, credible, relevant and material testimony in this cause the Court finds, and is of the opinion, that all the essential elements of undue influence existed and are shown in the evidence in this cause except one: a mind susceptible of being influenced. The Court finds, and is of the opinion, that the alleged testatrix, Mrs. Anna M. Scheidler, lacked sufficient mental capacity at any time on the day of the alleged execution of the purported will and at the time of the alleged execution of said document and at any time thereafter to be subject to influence in the execution of a testamentary document. Except for such finding and opinion of lack of testamentary capacity of said decedent, the Court finds and would herein order and adjudge the will invalid by reason of undue influence, the Court finding and being of the opinion that undue influence is otherwise shown by the competent, credible, material and relevant testimony in this cause.
“By the preponderance of the material, relevant and credible evidence in this cause, it appears clear to the Court, and the Court finds and is of the opinion that Mrs. Anna M. Scheid-ler lacked testamentary capacity preceding, at the time of and following the execution of the alleged will.
“The record of this case is replete with improbabilities of the validity of the will of the said decedent. The following are a few of them. The testimony of Mrs. Counterman that she was surprised to learn that she was a beneficiary is not consistent with her testimony that she received no compensation for her services to Mrs. Scheidler from about the 8th of October to the 14th of November, 1952, though she said she had no other income. Mrs. Counterman testified that she spoke about compensation but was told that she would be taken care of and she did not ask again for compensation. It seems improbable from all the evidence in the case that Mrs. Walters did not know when she called Joseph E. Williams, Esq., attorney, to the Scheidler home on the afternoon of October 26, 1952, that he was coming there to draw a will for Mrs. Scheidler, as Mrs. Walters testified. Competent and credible evidence manifesting a long-continued purpose of Anna M. Scheidler to dispose of her property contrary to the purported will refute the truth of the document as a testamentary disposition of the decedent’s property. That Mrs. Anna M. Scheidler would call Ed Kane a crook and still leave him $500 in her purported will seems improbable. The evidence in this record shows that Ed Kane was a better friend and did more for Mrs. Anna M. Scheidler than did Mrs. Counterman, and that he was equally as good a friend of Mrs. Scheidler as was Mrs. Walters. It therefore seems improbable that the bequest to Kane would have been so much less than that to Mrs. Counterman if Mrs. Scheidler possessed the testamentary capacity to make said will. These indicia are cited as improbabilities and as bearing on the veracity of witnesses, and are not to be understood as being the sole basis in the record for the Court’s finding, conclusion and opinion in this case.
“The petitioner and said beneficiaries ■ seek to show that subsequent to October 26, 1952, to-wit, on November 3, 1952, Mrs. Scheidler was rational and mentally competent. This is attempted by the proferred [sic] testimony of Mrs. McMahan, a collector for Tampa Municipal Hospital. But this testimony, in the opinion of the Court, shows on the contrary that Mrs. Scheidler lacked rationality and mental competency at said time.
“As hereinabove shown, the Court heard the testimony of all the witnesses in this cause. Following the taking of the testimony the Court heard counsel for the petitioner and intervenors and contestants for a considerable length of time.
“It is therefore and upon consideration of the evidence and record in this case, and the Court’s findings and conclusions hereinbefore stated, ordered, adjudged and decreed as follows:
“1. That the motions of the petitioner, Joseph E. Williams, Esq. to strike and dismiss the defenses of the ‘ contestant Ed Kane, filed on January 12, 1953, be and the same are hereby denied.
“2. That the decedent, Anna M. Scheidler, lacked testamentary capaci-city to execute the purported will, and the contests on said ground are hereby sustained.
“3. That the alleged will of Anna , M. Scheidler dated October 26, 1952, is held and declared invalid and refused admittance to record and probate; and that the petition to record and probate said alleged will be and the same is hereby denied and dismissed.”

The record clearly demands the application of the now well established doctrine that interference with the findings of fact and conclusions of law of the Probate Court will not be indulged in unless it clearly appears that the trial court has misapprehended the legal effect of the evidence as a whole. '

This case is controlled by the holding of the Court in Zimmerman’s Estate, Fla., 84 So.2d 560, 561, wherein it was stated:

“An examination of the record before us, despite its complexity and tak-irig into consideration the merits of the analysis of the facts as well as the, principles of law so ably advanced by counsel for all of the parties, leads us again to the conclusion that there is adequate evidence to support the result reached by the probate judge and that there is no basis in this record for any conclusion on our part that he misinterpreted the legal effect of the evidence as a whole. .This obviously leads to the further conclusion that in approving the order of the probate judge, the circuit judge ruled correctly. See In re Eberhardt’s Estate, Fla. 1952, 60 So.2d 271; In re Wilmott’s Estate, Fla. 1953, 66 So.2d 465 [40 A.L.R.2d 1399]; In re Kiggins’ Estate, Fla.1953, 67 So. 2d 915; In re Baldridge’s Estate, Fla. 1954, 74 So.2d 658; In Matter of Estate of Thompson, Fla., 84 So.2d 911.”

Wc are aware that appellants have relied strongly in their argument on the case of, In re Garrett’s Estate, Fla.1952, 60 So.2d 281. We can see little comfort here for appellants,, since that case alsp approves the rule that the findings of the probate court, affirmed on appeal by the circuit court, should not be disturbed unless clearly erroneous or against the manifest weight of the evidence.

We fail-to find merit in the complaint of appellants that the-probate judge failed to act impartially- in personally conducting a rather lengthy interrogation of certain witnesses. It was the duty of all ^participants to seek to elicit' all evidence pertinent to the issue.

As in the Zimmerman cáse, the circuit judge who reviewed the probate appeal recites in his order that he has accomplished a careful inspection of the .record and listened to oral argument of counsel.

The order of the chancellor appealed from apparently followed the previous pronouncements of this cqurt in sustaining the order of the probate trial court and is free from error and is therefore

Affirmed.

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


text:
    Joseph E. WILLIAMS, Appellant, v. Ed KANE and Florida State Elks Assoc., Inc., Appellees.
    Supreme Court of Florida. Special Division A.
    March 28, 1956.
    Rehearing Denied May 2, 1956.
    Joseph E. Williams, Tampa, for appellant.
    Henry E. Williams, Jr., Harry FS. Terrell, C. 'C. Whitaker, II,; Tampa, and Victor O. .Wehle, St. Petersburg, for appellees.
   PRUNTY, Associate Justice.

...Appellant having, been named executor under a purported will offered the will for probate. The probate was refused by the Probate Judge who found that the testatrix -' lacked' requisite -testamentary capacity,

The appellant appealed to the circuit court where the order of the Probate Judge was affirmed and this order of the chancellor was likewise affirmed by this court. See, Williams v. Kane, Fla., 88 So.2d 599.

The appellant sought to have attorney fees and costs allowed under the provisions of F.S. § 732.14, F.S.A. Under this statute recovery of attorney fees and costs by an executor under a will can be sought only where it appears that the named executor was prima facie justified in offering the purported will for probate and the purported will instrument must be in proper form.

Appellees filed cross-assignments of error, claiming that the appellant acted in bad faith and that the court erred in allowing him any fees at all.

The probate court by its order found the appellant to be entitled to fees and costs and allowed an attorney’s fee of $1,000 plus costs of $120. This order and award was affirmed by the circuit court.

The County Judge in his order stated that contentions of counsel had been carefully considered and while indicia of irregularities existed they were not sufficient to show such bad faith as would disqualify the appellant from applying for compensation.

Therefore, on the basis of the holding of this court in the case of In re Zimmerman, Fla., 84 So.2d 560, it does not appear the county judge misapprehended the legal effect of the evidence as an entirety in his findings and likewise the order of the chancellor appealed from was not in error.

As to the amount of the fee, the evidence disclosed the gross válue of the estate to approximate $19,500. The testimony as to attorney’s fees ranged from $1,000 to $6,250. The appellant who filed the petition for probate was the same attorney that drafted the will in question.

The Probate Judge was in much better position to evaluate the services performed by the attorney executor than in this Court. There appears to have been no abuse of the sound discretion of the probate trial judge and this obviously leads to the determination that the Circuit Judge likewise ruled correctly.

Accordingly, the decree appealed from should be and is hereby

Affirmed.

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


author: TERRELL, Justice.

text:
    Alice G. COLLINS, Appellant, v. Arnold COLLINS, Appellee.
    Supreme Court of Florida. Special Division A.
    June 20, 1956.

      Forsyth Caro, Pensa-cola, for appellant.
    Richard P. Warfield of Fisher & Hepner, Pensacola, for appellee.
   TERRELL, Justice.

Appellant, as plaintiff, brought a suit against appellee for separate maintenance alleging that defendant left her and their two minor children without cause and was living apart from them without fault on her part. Appellee countered with an answer or counterclaim for divorce alleging extreme cruelty and habitual indulgence in a violent and ungovernable temper. At final hearing the chancellor granted a divorce on the counterclaim, gave custody of the two minor children to the wife, gave her exclusive use of the home and beach cottage at Oriole Beach, in Santa Rosa County, and required the husband to pay her $45 per week for support of herself and the children. This allowance was to be reduced $10 per week as the children became self-supporting or as they reached the age of 21. The wife has appealed from that part of the decree granting the divorce.

The commissioner and the chancellor found the evidence ample to support the counterclaim for divorce and gave an affirmative answer to the question. The evidence is diffuse and conflicting; the challenge to it turns on the point of whether or not it shows that the parties, or either of them, engaged in nagging, public arguments, quarrels and brawls, and whether or not appellant falsely charged appellee with keeping company with other women to that extent that his health was undermined, that he often became extremely nervous and upset and at one time was confined in the hospital for a period. Such was the end result of the parties’ bickerings.

As we pointed out in Diem v. Diem, 141 Fla. 260, 193 So. 65, what causes mental torture, undermines the health or tends to dethrone the reason may be different among spouses, depending on the degree of their culture, emotions, nervous reaction or moral response. The commissioner had the parties before him and the chancellor had the advantage of his appraisal of the testimony and was in much better position to determine whether or not the charges and coun-tercharges were sufficient to make the husband boil inside and cause his blood pressure to mount to the extent that his health was undermined, his reason dethroned, and which of them was the major offender.

It is conclusively shown that the parties had been married more than twenty years and that the husband vamoosed from the home by night, did not return and did not leave his forwarding address. If he was seen with the “other woman” as often as some of the evidence shows, that would doubtless be sufficient to make his wife’s blood pressure rise-and might soften the reproval administered if she did in fact provoke the controversies referred to. Despite all of this and more, the chancellor was confronted with an unfortunate marital tragedy that occurs too often. So many of the incidents out of which it grew were peculiarly within his province to determine and his knowledge .of them was so much superior to ours that we do not dare pit our judgment against his. The decree is therefore affirmed.

The matter of attorney’s fees for appellant presents a different question. We think counsel for appellant is entitled to a reasonable fee for bringing the case to this court. He is accordingly allowed a fee of $250 for that purpose, which appel-lee is hereby ordered to pay within 30 days from the date the judgment herein is filed in the court below.

In all other respects the judgment is affirmed.

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


author: THORNAL, Justice.

text:
    Lionel S. HAMILTON, Appellant, v. The STATE of Florida, Appellee.
    Supreme Court of Florida, Special Division B.
    June 29, 1956.
    Rehearing Denied July 16, 1956.
    Joseph L. Wolf, Branch •&. Goff and Taitón A. Branch, Tampa, for appellant.
    Richard W. Ervin, Atty. Gen., Jos. Man'ners'-and Bi Jay OWen, Asst'. Attys. Gen., for appellee.
   THORNAL, Justice.

Appellant, ' who was defendant below, .seeks reversal of .a-judgment.of'conviction pursuant to a jury verdict .finding him guilty of the offense defined by Section 800.04, Florida Statutes, F.S.A., condemning the fondling of á child under 14 years of. age in a lewd' or indecent manner.

Several points are raised by the appeal but the' only question that merits detailed consideration is whether the trial judge committed a fundamental error, which . would be reviewable in the absence of objection below, by referring to a written statement by. the appellant as a “confes- . sion” when in actuality it was not confession. . ...

The appellant was tried and convicted of violation of Section 800.04, Florida Statutes, F.S.A. He was charged with the offense. of lewd and indecent fondling of a 12-year old girl. The information alleged with sufficient exactness the particularities of the offense and our decision in the case does not require any detailed delineation of the unpleasant facts as they appear in the record.

While ' under investigation, the ' appellant furnished to a deputy sheriff a written statement expressing his ' version of the facts of the matter. The statement, however, was in no sense a' confession. This much is conceded by the State. At the conclusion of his instructions to the jury, the trial judge ended his charge with the remark, “There is, I believe, .a confession here and a photograph, .too.” No objection to this remark was offered by appellant’s counsel at the- time it was made and no assignment, of error is grounded thereon. , . , -

In his brief on appeal, appellant contends that the error was of such a fundamental nature that it deprived him of his right to a fair trial and justifies reversal despite the fact that it was not objected to at the time it occurred and was not thereafter assigned as error on appeal. It is the contention of the appellant that the judgment should be reversed because of the alleged fundamental error.

The State contends that the error did not reach the ultimate validity of the trial itself and in the absence of objection or assignment grounded thereon, reversal is' not justified.

To sustain his position, appellant relies entirely on our opinion in Harrison v. State, 149 Fla. 365, 5 So.2d 703, 707. In that opinion we held that under the circumstances of that particular case, it was error for the trial judge to fail to charge the jury on the weight to be given to a confession even though no such charge' was requested. Harrison v. State, supra, was a capital case in which the State relied entirely upon a confession to sustain a verdict of guilty of murder in the first degree. There was no other supporting evidence or testimony. The alleged confession was the entire foundation on which the State constructed its case against the accused. We held that under such circumstances the trial judge had the responsibility to charge the jury on the “‘law of the case’ ” which included the weight to be given to a confession upon which the State relied entirely for conviction. The error was fundamental for the reason that without the confession, the conviction could not have been obtained and with the confession the accused was fundamentally entitled to an appropriate charge with reference thereto.

We distinguished Harrison v. State, supra, in Thompson v. State, 154 Fla. 323,. 117 So.2d 395, which also was a capital case wherein we took note of the fact that although the trial judge committed error in failing to charge the jury with reference to the weight to be given a confession,' nevertheless, there was other evidence, of- • fered at the trial which was sufficiently' convincing to sustain the verdict without the confession and in the presence of such, evidence, the failure to charge with reference to the confession did not constitute > reversible error. See also Boston v. State,-. 153 Fla. 698, 15 So.2d 607; and Kelly v.. State, 145 Fla. 491, 199 So. 764.

Applying the rules of these decisions to the case before us, we find that testimony offered from the witness stand, if believed, was adequate to sustain the vérdict of the jury. The appellant himself testified under oath to substantially the same facts that were incorporated in the written statement. In other words, the case did not stand or fall on the written statement or the judge’s reference thereto.

We do not here intend to hold that: it was not error to refer to the .statement as a confession when in actuality it was not a confession. We do, however, hold that,, in view of the record, the error was: not-such as to justify a reversal in the absence-of a timely objection and an assignment grounded thereon.

We do not consider an error to- be of such fundamental nature as to justify a reversal in the absence of timely objection unless it reaches down into the'legality of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the error alleged. See Harrison v. State, supra.

Illustrating the rule which we here- announce is the opinion of the Supreme Court of the United States in Brown v. .State of-Mississippi, 297 U.S. ,278, 56 S:.Ct.. 461, 465, 80 L.Ed. 682. There, as in Harrison v. State, supra, the State in a prosecution for first degree murder depended entirely upon a confession as the basis for a conviction. Aside from the confession,-there was no evidence sufficient to warrant submitting the case to the jury. ’The record revealed that the confession was obtained; by coercion and brutality. On appeal to the United States Supreme Court, it was held that even in the absence of a proper motion for the exclusion of the confession, the appellate court could nevertheless consider the error committed in admitting the confession into evidence in view of its obviously involuntary character. The Court pointed out that the complaint was not for the commission of a mere error “but of a wrong so fundamental that it made the whole proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void.” See also Orfield, Criminal Appeals in America, pages 95-98.

In a case such as the one before us where there was abundant admissible testimony before the jury which, if believed, would justify the conviction, the error could well have been corrected upon a timely objection. However, even though the error was committed, the testimony that was offered aside from the written statement was adequate to sustain the conviction and a failure to object and assign on appeal leads us to the conclusion that error, such as there was, was waived. It did not so permeate the proceeding as to convert it into “a mere pretense of a trial” nor did it strike at the fundamental legality of the trial itself.

We have considered the other points raised by the appellant with reference to the sufficiency of the evidence, the admissibility of the photograph, instructions of the court and the sufficiency of the information. Some of these alleged errors were waived also by a failure to offer a timely objection. We have considered them all, however, and even if proper objections had been made, we do not find therein justification for reversal.

The judgment appealed from is therefore—

Affirmed.

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


author: PER CURIAM.

text:
    C. B. PORTERFIELD and Morris Margulis, Appellants, v. Ben MARDEN, Sonny G. Marden, J. J. Pass and National Steel & Copper Plate Company, Appellees.
    Supreme Court of Florida. Division A.
    June 8, 1956.
    Rehearing Denied July 19, 1956.

      Anderson & Nadeau, Miami, for appellants.
    Ward & Ward and Marx Faber, Miami, for appellees.
   PER CURIAM.

On petition for rehearing it is suggested that the opinion of the court is not supported by the record. This is a common rehearing complaint but nothing is accomplished by contraverting the point. The petition for rehearing is granted and the original opinion is redrafted with paraphrased, excerpts from the bill of complaint inserted in the appropriate place on pages two and three. As thus amended, the opinion is approved and substituted for the original opinion which is withdrawn. As amended the opinion reads as follows:

Appellants were plaintiffs and appellees were defendants below. In their second amended complaint the plaintiffs alleged that they owned 50 percent of the stock of Metal Extrusions, Inc., and that the balance of the stock in said corporation was owned by Sam Walderman and Ellis Lip-sitz; that each of said named persons contributed $40,000, by way of purchase of stock and loans to the corporation, and constituted its board of directors. The complaint further alleged that in July, 1953, defendants Ben and Sonny Marden and J. J. Pass acquired 250 shares of the capital stock of Metal Extrusions, Inc., from Walderman and Lipsitz; that they paid Walderman $25,000 and Lipsitz $30,000, and they also purchased from said stockholders at face value the obligations of Metal Extrusions, Inc., for money loaned to it by Walderman and Lipsitz.

The complaint then alleged that at a special stockholders meeting held August 3, 1953, Porterfield was elected president, Margulis, vice-president, Sonny G. Marden, secretary and J. J. Pass, treasurer, and that said officers were elected directors of the corporation. The complaint charged that after August 1, 1953, Ben Marden loaned the corporation $30,000, on the security of plaintiffs’ endorsement of a note given by the corporation to Marden, who promised that he would obtain an open line of credit for the corporation in the sum of $100,000 if he were elected chairman of the board of directors. Relying upon this, the number of directors was increased from four to five. Marden was elected as the fifth member and the chairman of the board.' It is charged in the complaint that Marden never intended to perform the promise which was relied upon by plaintiffs; that his representations were false and were made to secure his election as director so he, Sonny Marden, and Pass could control the affairs of the corporation and put it into bankruptcy, as a step in a conspiracy to secure complete ownership of the assets for the benefit of National Steel & Copper Plate Co., the corporate defendant. The two Mardens and Pass excluded plaintiffs from any part in managing the corporation, deliberately and wilfully neglected the business, and interfered with its operations so that the plant closed down. On August 26, 1953, petition in voluntary bankruptcy was filed and an adjudication in bankruptcy was entered same date in United States District Court. On December 21, 1954, an order dismissing the amended complaint was entered, from which order this appeal was prosecuted.

The parties are wide at variance as to the questions presented. Appellants raise two questions, one of which proceeds on the theory that one group of persons acquired stock in the corporation, secured their election as directors, increased the number of directors so as to give them control and then proceeded to force the corporation into bankruptcy and the sale of its assets. The second question of appellants proceeds on the theory that the factual situation in the first question being true, the adjudication in bankruptcy and sale of assets by the bankruptcy court was not res adjudicata of plaintiffs’ claim against the other stockholders and directors for damages. Appellants argue in their brief that the decision of the lower court was not predicated upon this point, but appellants state question in anticipation of appellees’ argument thereon.

So much of these questions is drawn from presumption from what may or may not have been before the court when he dismissed the complaint that we are not satisfied the court had in mind the answer to these questions or that ¡hey were presented by the pleadings. For -all the record shows, the bankruptcy sale was regular and the complaint charges no fraud in connection with the sale. It would be trite to say that the rights of creditors must first be protected in such a proceeding. The whole proceeding easily resolves itself into one where two stockholders of a corporation are seeking to protect themselves by a judgment against the directors to the exclusion of creditors absent any showing that the directors have preferred creditors, secluded assets or were otherwise guilty of fraud. Waller v. Waller, Md., 49 A.2d 449.

In this holding we do not overlook the contention of appellants that “as stockholders in a corporation, they have a cause of action as individuals against the directors who conspired to place the corporation in bankruptcy (when it was not insolvent) and cause its assets to be sold to a new corporation owned by them with resulting damage to plaintiffs.” It is enough to say that as heretofore pointed out we do not find allegations in the complaint sufficient to support this contention.

Unquestionably a wronged stockholder may bring an action against the corporation or its directors when fraud has been perpetrated on him or them. There may be other instances in which he (stockholder) is authorized to bring such an action but a careful study of the pleadings and the record in this case shows no basis for such an action. Then there is another aspect to the case. It was brought when an adjudication in bankruptcy was and is still pending. We are not convinced that plaintiffs should not have applied to the bankruptcy court for relief. There is no showing whatever that if they have a bona fide claim, they are in a preferred class or that they are otherwise different from other creditors. There is dearth of clear showing that the court below committed error.

It is contended on petition for rehearing that this case is controlled by Porterfield v. Gerstel, 5 Cir., 222 F.2d 137, copy of which was included in the record. It appears^ however, that the order appealed from was dated December 21, 1954, while the opinion of the United States Circuit Court of Appeals relied on was dated March 30, 1955, three months later. It is, therefore, apparent that the latter opinion was not before the chancellor and can have no influence on the disposition of the case at bar. The judgment is therefore affirmed.

Affirmed.

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


text:
    Frank D. WAGNER, Harry L. Robinson and W. L. Wheeler, as Members of and Constituting the Civil Service Board of Escambia County, Florida, Appellants, v. Frances BOTTS, as Tax Assessor of Escambia County, Florida, Appellee.
    Supreme Court of Florida, Special Division B.
    June 29, 1956.
    W. H. Watson, Watson & Brown and Forsyth Caro, Pensacola, for appellants.
    William Fisher and Fisher & Hepner, Pensacola, for appellee.
   THORNAL, Justice.

Appellants, who were defendants below, seek reversal of a decree of the Chancellor construing a provision of the Escambia County Civil Service Act.

The only point for determination is whether the Chancellor correctly construed a provision of Chapter 27537, Laws of Florida, Special Acts of 1951, defining the “unclassified service” as it relates to Civil Service for Escambia County employees.

Frances Botts, as Tax Assessor of Es-cambia County, being in doubt as to the proper application of the Act, filed a complaint for declaratory decree asking for the interpretation of section 3(g), Chapter 27537, Laws of Florida, Special Acts of 1951, a local Act establishing a Civil Service system for Escambia County. Appellee Botts had employed a cartographer, or map-maker, who, she contended, was a “person of highly technical or professional training” and was, therefore, in the “unclassified .service” defined by the Act in question. .The Civil Service Board had previously construed the provision in question as being applicable only to employees of the Escambia General Hospital.

If this employee was in the unclassified service, he does not receive Civil Service benefits. On the contrary, if he was in the “classified service,” he was entitled to the benefits of the Act.

The appellants, all members of the Civil Service Board, contended that the mapmaker was not excluded from the classified service. As we shall see, the whole problem evolves around interpretation of the Act.

The Chancellor decreed that the mapmaker was a person of highly technical training and, therefore, in the unclassified service, as defined by Section 3(g) of the Act which is hereafter quoted. Reversal of this decree is sought by this appeal.

The contentions of the parties to the appeal vary with their several interpretations of the Statute. There is no contest here over the conclusion that the mapmaker was a person of highly technical training. We do not pass on this conclusion. The sole question is whether, as such, he is excluded from the “classified service” by Section 3(g) of Chapter 27537, quoted below.

Section 3, Chapter 27537, Laws of Florida, Special Acts of 1951, reads as follows:

“The Civil Service is hereby divided into the unclassified and classified service. The unclassified service shall comprise:
“(a) All officers elected by the people or appointed by the Govenor.
“(b) Members of- any Board or Commission.
“(c) The County Attorney and any assistant attorneys or other persons employed by or under him.
“(d) Practicing attorneys-at-law retained or employed by the County or County Solicitor or State .Attorney.
“(e) Persons of highly technical or professional training maintaining an independent practice in their chosen profession and employed on part time basis by the County.
“(f) All persons who are required to have a teacher’s certificate employed by the Board of Public Instruction.
“(g) Persons of highly technical or professional training including registered nurses employed by Escambia General Hospital.
“The classified service shall comprise all officers, positions or employments, now existing or hereafter created, in or under the County of Es-cambia, or any departments, Boards, or Commissions thereof which are not specifically included in the unclassified service.”

The problem before us involves the interpretation of paragraph (g) of the above quoted statute. The Chancellor was of the view that this paragraph should be interpreted exactly as it is written and when so interpreted it applies to all “Persons of highly technical or professional training” whether or not they were employed by the Escambia General Hospital, but of course including registered nurses employed by said hospital.

The appellants contend the provision should be interpreted as if it were punctuated as follows: “Persons of highly technical or professional training, including registered nurses, employed by Es-cambia General Hospital.” In other words, it is the view of the appellants that the disputed section applies only to persons of a defined category employed by the hospital as if the Act read: “Persons of highly technical or professional training employed by Escambia General Hospital, including registered nurses.”

Unless a statute is ambiguous or permits of more than one interpretation, the courts are not permitted to superimpose their own views upon the clear legislative intent. Where the Legislature by clear and unambiguous language announces its own intention by the Act in question, it is the duty of the courts to follow the plain meaning of the statute and not to depart therefrom. Under such circumstances, we are not permitted to apply our own construction or re-arrange the words or add punctuation marks that will result in a departure from the natural meaning of the language used. Osborne v. Simpson, 94 Fla. 793, 114 So. 543; Fine v. Moran, 74 Fla. 417, 77 So. 533.

The problem before us involves more a question of punctuation than it does the supplying or disregarding of words. The Act, as enacted, did not contain the commas that the appellants would insert. By re-arranging the words or inserting commas which the Legislature itself did not employ, we would change entirely the meaning of the section in dispute. We realize that punctuation is considered to be the most fallible and the least reliable indication of the legislative intent in interpreting a statute. Historically, parliamentary enactments originally were not punctuated at all. However, the Legislatures of our country have consistently attempted to follow the rules dictated by the grammar books with the result that statutes now are punctuated prior to enactment.

The better rule now seems to be that the punctuation is a part of the Act and that it may be considered in the interpretation of the Act but it may not be used to create doubt or to distort or to defeat the intention of the Legislature.

Subsection (g) of Section 3 of Chapter 27537, supra, is clear and unambiguous as enacted by the Legislature. We have no authority to insert punctuation marks which are not there in order to en-graft upon the Act our notion of what the Legislature intended or should have intended. Vol. 2, Sutherland Statutory Construction, 3rd ed., Sec. 4939; Statutory Construction by Crawford, Sec. 199. The application of this simple rule impels us to the conclusion that the Chancellor ruled correctly. We deem it proper to adhere to what now appears to be the better rule which is to treat the rules of punctuation on a parity with other rules of interpretation.

We might add that we have .examined the original Bill as introduced in the Legislature and as ultimately enrolled as Chapter 27537, supra, and find that it was introduced and enrolled exactly as published in the Special Acts of 1951.

Applying these rules to the Statute before us, the Chancellor concluded that a map-maker was a person of “highly technical or professional training” and that the section of the Act under consideration excluded him from the classified service even though he worked for the Tax Assessor. This decision was clearly consistent with the unambiguous language of the Statute.

Having held that the courts are without authority to change or vary the clear and definite language of the Statute, we are, therefore, bound to hold that the Chancellor ruled correctly.

The decree appealed from is

Affirmed.

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


text:
    STATE of Florida ex rel. William J. ARNOLD, Appellant, v. Thomas J. KELLY, Sheriff, Dade County, Florida, Appellee.
    Supreme Court of Florida. Special Division A.
    June 20, 1956.
    Michael F. Zarowny, Miami, for appellant.
    Richard W. Ervin, Atty. Gen., Jos. P. Manners and George R. Georgieff, Asst. Attys. Gen., for appellee.
   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 THOR-NAL, JJ., and WALKER, Associate Justice, concur.


text:
    DEPARTMENT OF PUBLIC SAFETY, Travelers Insurance Company, Petitioners, v. Agnes DEAL, Florida Industrial Commission, Respondents.
    Supreme Court of Florida, En Banc.
    July 11, 1956.
    James Whitehurst, Brooksville, for Department of Public Safety.
    Roy T. Rhodes and Horne & Rhodes, Tallahassee, for Travelers Ins. Co.
    Steve M. Watkins and Truett & Watkins, Tallahassee, for Agnes Deal.
    Burnis T. Coleman, Tallahassee, for Florida Industrial Commission.
   PER CURIAM.

The petition for certiorari is granted and the order of the Full Commission is quashed on the authority of Consolidated Growers Ass’n v. Kruse, 159 Fla. 405, 31 So.2d 545.

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

ROBERTS and THORNAL, JJ., dissent.

TERRELL, J., not participating.


text:
    Rose SCHWARTZ, Appellant, v. Lake F. RUSSELL and Lillian Siegel, Appellees.
    Supreme Court of Florida, Special Division A.
    July 13, 1956.
    Walterman & Touby, Miami, for appellant.
    Fowler, White, Gillen, Yancey & Hum-lcey and Henry Burnett, Miami, for Lake F. Russell. Brown, Dean, Adams & Fischer and George B. Pomeroy, Miami, for Lillian Siegel.
   PER CURIAM.

This cause came on to be heard on the motions of appellees, Lillian Siegel and Lake F. Russell, 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 motions to affirm the judgment appealed from be, and the same is, hereby granted, and the judgment is

Affirmed,

TERRELL, Acting Chief Justice, and ROBERTS, THORNAL and O’CON-NELL, JJ., concur.


text:
    Thelma H. COOPER, Appellant, v. Arthur L. PERPER, Appellee.
    Supreme Court of Florida, Special Division B.
    July 11, 1956.
    Rosenhouse & Rosenhouse, Miami, for appellant.
    Wicker & Smith, Miami, for appellee.
   PER CURIAM.

This cause came on to be heard on the motion of 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, and ROBERTS, THORNAL and O’CON-NELL, JJ., concur.


text:
    Clara Gropper BARON, Appellant, v. Osias BARON, Appellee.
    Supreme Court of Florida. Special Division A.
    June 20, 1956.
    Hylan H. Kout, Miami Beach, for appellant.
    A. J. Kaplan, Miami Beach, for appellee.
   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 THOR-NAL, JJ., and WALKER, Associate Justice, concur.


text:
    ATLANTIC COAST LINE RAILROAD COMPANY, Appellant, v. Sarah BALL, etc., Appellee.
    Supreme Court of Florida, Division B.
    July 13, 1956.
    Norman C. Shepard, Wilmington, N. C., LeRoy Allen, Ralph C. Dell, Tampa, for appellant.
    Raymond Sheldon and Fred T. Saussy, Jr., Tampa, for appellee.
   PER CURIAM.

Affirmed on authority of Atlanta & St. Andrews Bay Railway Co. v. Welch, 85 Fla. 203, 95 So. 570 and Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land, Transportation & Manufacturing Co., 27 Fla. 1, 157, 9 So. 661, 17 L.R.A. 33, 65.

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


author: ROBERTS, Justice.

text:
    Tina ARNOLD and Winifred Arnold, her husband, Appellants, v. MIAMI BEACH KENNEL CLUB, Inc., a Florida corporation, Appellee.
    Supreme Court of Florida, en Banc.
    July 13, 1956.
    Russell C. Gay and Melvin Schaffer, Miami, for appellants.
    Blackwell, Walker & Gray, Miami, for appellees.
   ROBERTS, Justice.

The sole point for determination here is whether plaintiffs’ complaint stated a cause of action for damages against the defendant.

The suit was brought for injuries sustained by plaintiff wife when, as a business visitor at defendant’s dog track, she slipped and fell on a one-step stairway located in an archway between the betting room and the approach to the grandstand. The gravamen of plaintiffs’ fourth amended complaint was that

“* * * Defendant was under a duty to maintain and provide a reasonably safe place for its patrons to walk and Defendant breached this duty in that the Defendant was careless and negligent in creating a wet and slippery condition on said premises by painting the forward edge of the one-step stairway * * * and as a result therefor (sic) when Plaintiff stepped on said step, said Plaintiff was thrown down and severely injured.”

Rule 1.8 of the 19S4 Rules of Civil Procedure, 30 F.S.A., provides that the complaint “shall set forth a short and plain statement of the ultimate facts on which the pleader relies, and if it informs the defendant of the nature of the cause against him, it shall be held sufficient.” There can be no doubt that the defendant was apprised of the exact nature of the negligent act (one of commission, and not of omission) charged against it.

Reversed and remanded for further pro-ceeedings.

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

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

TERRELL, J., not participating.


text:
    COLONY HOTEL, Inc., a Florida corporation, and Charles Martel, Petitioners, v. Louis N. POKRESS, Respondent.
    Supreme Court of Florida. Special Division A.
    June 20, 1956.
    Patton & Kanner, Miami, for petitioners.
    Morehead, Forrest, Gotthardt & Orr, Miami, for respondent.
   THORNAL, Justice.

Petitioners, Colony Hotel, Inc., a Florida corporation, and Charles Martel, by a petition for certiorari seek review of an order of the Chancellor denying their motion to dismiss a complaint in equity filed by respondent Pokress seeking the declaration of a constructive trust in connection with a claimed real estate commission.

The question for our determination is whether under the circumstances hereafter summarized a real estate broker can proceed in equity against the buyer in a real estate transaction by way of a complaint seeking the declaration of a constructive trust.

Pokress, a real estate broker, alleged by his complaint in equity that he was employed by one Charles Henry, individually and on behalf of Florida Hotel Corporation and Emerald Isle, Inc., to find a purchaser for the Emerald Isle Flotel for the price of $1,500,000. He alleged further that Charles Martel employed him to find a hotel to purchase and that after a great deal of effort, he brought the parties together. The complaint further states that “in an effort to defraud plaintiff Pokress of his commission rightfully earned,” the seller and the buyer consummated a deal for $1,450,000, paying another broker a commission of $5,-000 and thereby “saving for themselves a total of $70,000, in just commissions, of which the buyer saved $50,000, and the seller saved $20,000.” The transaction was closed and the title was taken in the name of Colony Hotel, Inc., which allegedly Martel owned and controlled. The broker sought a decree declaring that he had earned his commission and that “the defendants and each of them be decreed to be trustees of a constructive trust to the extent of $70,000 gained by them.” The buyer filed a motion to dismiss the complaint on the ground that it failed to state a claim for relief and the Chancellor, after hearing, entered an order denying the motion to dismiss. Review of this order is sought by the petition for certiorari.

Petitioners contend that the complaint failed to state any cause of action against them and further that if under any conditions the realtor had a right of action against the petitioners, it would be one at law and not in equity. ,

The respondent realtor contends that he grounded his complaint on an alleged fraud and that there is adequate basis in the allegations to justify the declaration of a constructive trust. Although the complaint alleged that the buyer “employed the plaintiff for the purpose of finding a hotel,’’.the respondent in his brief specifically stated that, “It is admitted by the plaintiff that there was no binding contract between the. plaintiff and the Buyer defendant to pay the plaintiff any commission for the sale of the property involved.”

An examination of the record suggests' that we have before us another case in which a real estate broker is attempting to establish through an equitable proceeding a claim for a commission against the buyer in the transaction which the broker asserts he brought into being. This situation has been the source of recurring litigation in this court since our decisions in Moss v. Sperry, 140 Fla. 301, 191 So. 531, 125 A.L.R. 909, and Moss v. Sperry, 147 Fla. 86, 2 So.2d 123. The allegations of the complaint before us do not parallel those in the complaint in Moss v. Sperry, supra. Here there was no claim that there was an agreement to pay the broker out of the first,, monies paid. In fact there was no allegation whatsoever as to the amount of commission which the seller allegedly agreed to pay the broker. There were no allegations as to the inadequacy of a legal remedy and as a matter of fact .except for one bald conclusion the complaint was completely devoid of allegations showing that the parties knowingly combined, conspired and colluded to consummate the sale in a manner intended to evade the payment of commission. See Moss v. Sperry, 147 Fla. 86, 2 So.2d 123. Here the transaction was completely closed before the broker moved to> assert his claim. There is no showing in the complaint that because of the efforts of the broker the buyer was willing to consummate the deal bn the terms presented to him by the broker for the seller. For all that appears, the original terms could have been unsatisfactory to the buyer and he ultimately closed on other terms agreeable to him. There is, furthermore, no showing of a trust res upon which a constructive trust could be founded. There were no factual allegations to support even an inference of a tortious interference with a contract.

In fairness to the Chancellor below as well as to counsel for both parties in the proceedings here, our opinion in Borinsky v. Cohen, Fla.1956, 86 So.2d 814, had not been filed when the order under review was. entered. It is our view that insofar as these petitioners are concerned, their position is supported by the decision of this court in Borinsky v. Cohen, supra, and the cases there cited. An extended discussion of the rule of law applicable here would be without justification in view of our recent pronouncements on the subject. Reference to Borinsky v. Cohen, supra, is hereby made as support for our conclusion that the order of the Chancellor denying the motion to dismiss was erroneous. See also, Nicol v. Bressler, 159 Fla. 668, 32 So.2d 457, and Robertson v. Williams, 158 Fla. 163, 28 So.2d 114.

For the reasons stated, the prayer of the petition is granted, the order appealed from is quashed, and the cause remanded for further proceedings consistent with this-opinion.

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


text:
    David S. HENDRICK, III, Appellant, v. D. H. REDFEARN, as Administrator ad litem of the Estate of David S. Hendrick, Deceased; Helen H. McKenna and Martha H. Edmonston, Appellees.
    Supreme Court of Florida, Special Division B.
    July 13, 1956.
    Anderson & Nadeau, Miami, for appellant.
    James R. Sharp, Washington, D. C., and Walter E, Dence, Miami, for appellees.
   THORNAL, Justice.

Appellant Hendrick, who was plaintiff below, seeks reversal of a summary final decree dismissing his complaint in a declaratory judgment proceeding whereby he sought to establish himself as owner of one-half of his deceased father’s estate.

The problem to be resolved requires a determination of the binding effect of a compromise and settlement agreement executed by appellant and appellees, McKenna and Edmonston.

In 1923, appellant’s father and mother entered into a property settlement agreement whereby the mother waived all claims against the estate of the father, received custody of two children of the parties, one of whom was appellant, and the father, among other things, agreed that by his last will and testament he would “so provide that upon his death said children shall receive and be entitled to one-half of any and all estate, real, personal and mixed, which he may leave”. Appellant’s sister, the other child who would have participated in the father’s estate, died in 1934. The father of appellant died February 22, 1953, and contrary to the commitment made with his wife in 1923, made little or no provision for appellant in his will and left substantially all of his estate to his two sisters, appellees McKenna and Edmonston.

About two months after the death of his father, the appellant in April, 1953, entered into a comprehensive settlement agreement with his two aunts, appellees McKenna and Edmonston. The agreement recited the complicated nature of the decedent’s estate, the fact that administrations would probably have to be effected in three or more states, the fact that appellant claimed an interest in the estate under the agreement between his mother and father, and that appellees contested his right to participate. It was recited that all of the parties agreed that litigation over the estate would be extremely expensive in both money and time and would prevent settlement of the estate for an interminable period to the prejudice and damage of the estate and the parties, and further that the parties agreed that all present and potential issues between them in regard to the estate should be settled amicably. It was thereupon agreed that appellant would receive $175,000 in addition to certain gratuities from the American and New York Stock Exchanges as his share of the estate, that he would serve as administrator cum testamento annexo in Florida and that his attorneys would serve as attorneys for the estate. It was further agreed that any and all claims against the estate, including estate taxes, would be paid out of the share of the estate that would go to the appel-lees and that no part thereof would be charged against the amount which would go to the appellant.

When the settlement agreement was executed no inventory had yet been filed and the parties did not know the gross value of the estate and obviously had no indication at all as to what its net value would be. Thereafter, in accordance with the agreement, appellees in February, 1954, petitioned the Probate Court for approval of the compromise and authority for the payment of the amount agreed to be paid to appellant. Appellant filed a formal answer to this petition, admitting the agreement, waiving notice of hearing and consenting to the entry of an order granting the prayer of the petition. On April 29, 1954, the compromise and settlement was approved by the Probate Judge under Section 733.21, Florida Statutes.

Thereafter, on May 24, 1954, appellant filed in the Probate Court a motion to vacate the order approving the claim, asserting as his sole reason that such order “may be prejudicial to the rights of David S. Hendrick, III, to prosecute the action pending in the Circuit Court”. In the meantime, the appellant had filed in the Circuit Court his original complaint in the chancery proceeding which is presently before us. The County Judge denied the motion to vacate. Plis order of denial was appealed to the Circuit Court and affirmed. The affirming order of the Circuit Court was appealed to this court by the present appellant and the appeal was dismissed without opinion, pursuant to motion of the present appellees, who were appellees in that appeal, grounded on the assertion that the appeal was frivolous. See Hendrick v. Edmonston, Fla.1955, 79 So.2d 294, Case No. 7.

In the Circuit Court proceeding requesting that the compromise and settlement agreement be set aside, appellant recites the background facts summarized above and contends that the settlement agreement with the appellees was executed without consideration for thé reason that when his father died he was a constructive trustee for the benefit of the appellant to the extent of one-half of his estate as of the date of his death in view of the provisions of the 1923 agreement with appellant’s mother, and that inasmuch as the compromise between the appellant and his aunts, the appellees, provided that the money to be paid to the appellant would be paid out of the assets of the estate, such was tantamount to paying appellant out of his own funds and therefore the transaction lacked consideration to support it. Pie further asserts that when he executed the settlement arrangement with his aunts, he labored under a mistake as to his own legal rights in the premises. He requested the Chancellor to declare the settlement agreement inoperative and not binding upon him and to grant him specific performance of the provisions in the 1923 agreement be-. tween his mother and father.

Appellees filed an answer and on motion for summary judgment, the Chancellor recognized the settlement agreement between appellant and his aunts, the appel-lees, as binding and concluded that all questions raised in the chancery suit had been adjudicated by the Probate Judge adversely to the appellant and that there was no genuine material issue to be tried. The summary decree was entered in the suit. Reversal of this decree is sought by this appeal.

Appellant contends that under the 1923 agreement his father was a constructive trustee to the extent of one-half of his estate for the benefit of appellant at the time of the father’s death, that the Probate Judge had no authority to adjudicate the existence or non-existence of a trust and that inasmuch as appellant took a vested interest in his father’s estate upon the death of his father, then the amount which' was to be paid to him out of the estate was actually being paid to him out of his own funds and that such does not constitute valuable consideration for a settlement.

Appellees contend that the whole matter was resolved and adjudicated in the Probate Court, whose judgment was in the ultimate approved by this court and that regardless of all of that the compromise and settlement between appellant and ap-pellees was for a valuable consideration and therefore binding.

We could labor this opinion with many complicated principles of res judicata and collateral attack on judgments of courts of competent jurisdiction. We find, however, no justification for doing so.

We recognize the rule that a contract to make a will is in proper case enforceable. 57 Am.Jur., Wills, Section 168 et seq., and Section 192 et seq.

Although equity will sometimes give relief against the release of an inheritance improvidently made, See Barnett v. Douglas, 102 Old. 85, 226 P. 1035, 39 A.L.R. 188, Annotation page 194, we likewise take cognizance of the established proposition that settlement of disputes and particularly the amicable disposal of family arguments over the settlement of estates is highly favored by courts of equity 16 Am.Jur., Descent and Distribution, Section 145, p. 925; and 3 Pomeroy’s Equity Jurisprudence, 5th Ed., Section 850.

While we have thoroughly considered the able brief supporting appellant’s ingenious argument for reversal of the decree of the Chancellor, we cannot find either in the record or in the authorities cited any support for a conclusion that would justify either the Chancellor or this court in completely disregarding the formal compromise and settlement agreement which, obviously after extensive negotiations, was entered.into in good faith by all parties with advice of counsel and- for a valuable consideration. True it is that appellant contends that the advice of his then counsel was legally unsound. However, the record fails to point out any actual mistake of law and certainly there is no allegation of any mistake of fact.

We find nothing in this record to establish an independent equity of any sort that would justify disturbing the settlement agreement. The essence of appellant’s contention is simply that in view of the ultimate determination of the value of the estate, he could or should have settled his claim for a larger amount than he agreed on and he, therefore, wishes to be relieved of his bargain.

We find implicit in the compromise and settlement agreement numerous doubts and potentials for litigation that made it of considerable value and importance to all parties to compromise and settle. The right of appellant to enforce the contract on which he relied was dubious as a matter of law. The extent of the ultimate interest that might vest in the appellant and the monetary value of the interest which he claimed all appeared to be doubtful and uncertain when he agreed to accept a fixed and definite sum for his alleged interest in the estate of his father. When the settlement was made, he readily admitted the potentiality of extensive and expensive litigation over the estate and confirmed in writing his willingness to accept the fixed sum net, free and clear of estate debts and free of obviously substantial estate taxes. This in itself was a valuable consideration. Appellant received a certainty for an uncertainty.

In addition to all of this, shortly after the compromise was approved, appellant himself was appointed administrator cum testamento annexo of the estate and he proceeded to disburse to himself a substantial sum in accord with the compromise agreement. In view of all of these circumstances, it appears to us it would be completely unconscionable to set aside such an arrangement where there is a total lack of showing of any fraud, undue influence, mistake of fact, or any other peculiar circumstances that would justify equitable interference.

We have not overlooked the other questions raised by the appellant. They have been cautiously and carefully evaluated but we find in none of them any basis for reversal.

For the reasons stated the decree of the Chancellor is—

Affirmed.

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


text:
    Napoleon MILLER and Mildred Walker, Appellants, v. STATE of Florida, Appellee.
    Supreme Court of Florida, Division A.
    May 18, 1956.
    Rehearing Denied July 9, 1956.
   PER CURIAM.

Affirmed.


text:
    Roberta JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, Special Division B.
    May 9, 1956.
    Rehearing Denied July 17, 1956.
   PER CURIAM.

Affirmed.


text:
    Vincent D’AGOSTINO, Appellant, v. PEOPLES WATER & GAS COMPANY, a Delaware Corporation, Appellee.
    Supreme Court of Florida, Division B.
    June 13, 1956.
    Rehearing Denied July 19, 1956.
   PER CURIAM.

Affirmed.


text:
    John D. LUNDY, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, Special Division A.
    June 13, 1956.
    Rehearing Denied July 19, 1956.
   PER CURIAM.

Affirmed.


text:
    F. A. HOFFMAN, as Tax Assessor for Franklin County, Florida, et al., Appellants, v. Martha Kate DRENNEN, Appellee.
    Supreme Court of Florida. Division A.
    May 30, 1956.
   PER CURIAM.

Affirmed.


text:
    Alexander G. CANN, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Division A.
    April 11, 1956.
   PER CURIAM.

Affirmed.


text:
    Bert BARRY and Mildred Barry, d/b/a Lauderdale Refrigeration Service, Appellants, v. A. E. DOWNWARD, Appellee.
    Supreme Court of Florida. Special Division B.
    March 28, 1956.
    Rehearing Denied April 20, 1956.
   PER CURIAM.

Affirmed.


text:
    Paul R. GREENFOGEL, Appellant, v. Albert D. HUBBARD, Appellee.
    Supreme Court of Florida. Division B.
    June 13, 1956.
   PER CURIAM.

Affirmed.


text:
    GRASSY KEY INVESTMENT CO., a Florida corporation, Appellant, v. John W. SHAVER and Faye Shaver, et al., Appellees.
    Supreme Court of Florida. Special Division A.
    April 18, 1956.
    Rehearing Denied May 21, 1956.
   PER CURIAM.

Affirmed.


text:
    Mayo M. JOBSON, as Executrix of the Estate of Philip M. Jobson, deceased, Appellant, v. MIAMI TRANSIT COMPANY, Appellee. Mayo M. JOBSON, a widow, Appellant, v. MIAMI TRANSIT COMPANY, Appellee.
    Supreme Court of Florida. Special Division B.
    April 11, 1956.
    Rehearing Denied May 21, 1956.
   PER CURIAM.

Affirmed.


text:
    George KREHBIEL, Appellant, v. Mayo M. JOBSON, as Executrix of the Estate of Phillip M. Jobson, deceased, Appellee. George KREHBIEL, Appellant, v. Mayo M. JOBSON, a widow, Appellee.
    Supreme Court of Florida. Special Division B.
    April 11, 1956.
    Rehearing Denied May 21, 1956.
   PER CURIAM.

Affirmed.


text:
    CITY OF LAKE WORTH, Florida, a municipal corporation organized and existing under the laws of the State of Florida, Appellant, v. J. P. COCHRANE, Appellee.
    Supreme Court of Florida. Special Division A.
    June 8, 1956.
   PER CURIAM.

Affirmed.


text:
    Walter Lee McDANIEL, alias “Lucky” McDaniel, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division B.
    June 6, 1956.
   PER CURIAM.

Affirmed.


text:
    Olin E. WATTS, Chairman, Nathaniel J. Klein, W. J. Daniel, Weldon G. Starry, Bert H. Lane, Charles R. Scott, T. T. Turnbull, A. Mack Wing, A. Z. Adkins, as and constituting the State Board of Law Examiners of the State of Florida, and Guyte P. McCord, as Secretary of the said Board of Law Examiners of the State of Florida, Appellants, v. Edward C. SMITH, Appellee.
    Supreme Court of Florida. Division B.
    June 13, 1956.
   PER CURIAM.

Affirmed.


text:
    DRUMMOND v. STATE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    CLEMENTS v. STATE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    CRAFT v. STATE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    THOMPSON v. STATE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    WHITE v. STATE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    CAMPBELL v. STATE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    BROOM v. STATE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    TUCKER v. STATE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    EDGE v. STATE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    PALUMBO v. STATE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    WICHERS v. CANNON.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    TERRY v. WATKINS.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    TEEMER v. SLAWTER.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    In re ESTATE of PARKER.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    OCCIDENTAL LIFE INS. v. MALOY.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    WESTINGHOUSE ELECTRIC SUPPLY CO. v. SULLIVAN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    HIGGINBOTHAM v. HAMLIM.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    TAHAKA v. DEERING.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    WILLIAMS v. SHAW.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    HARRIS v. FORT MASON FRUIT CO.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    MOSER v. HYLAND.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    PAN AMERICAN SURETY CO. v. KROLL.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    STARRAK v. DOUSSOURD.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    SHEPHERD v. ROUNDTREE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    SHEPHERD v. BEARDEN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    SHEPHERD v. BRYCE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinan.


text:
    WEIZER v. PALM BEACH SPEEDWAY.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.-


text:
    CITY OF NEW SMYRNA BEACH v. PEATROSS.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    JONES v. JONES.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without' opinion.


text:
    BRULL v. PAGLIERY.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    UNITED STATES of America v. WELLS.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    FLEMING v. HILLSBOROUGH COUNTY.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    CITY OF JACKSONVILLE v. SEAMAN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    WEST v. BRYCE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion,


text:
    REDDING v. LEWIN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    HOWARD v. FABIAN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    PLESE v. PLESE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    MAVIGLIA v. FIRST FEDERAL SAVINGS & LOAN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    WINN v. CITY OF COCOA.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    WINN v. TITUSVILLE STAR ADVOCATE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    BROOKINS v. H. E. WOLFE CONSTRUCTION CO.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    COLBERT v. WARD (two cases).
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    OLIVER v. SOUTHERN STATES LIFE INSURANCE CO.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    ARD v. BEESLEY PACKING CO.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    GREENBERG v. CITY OF ORLANDO (two cases).
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    MOOTY v. MOOTY.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    STATE ex rel. WINN v. SIMMONS.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    MALOY v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    TYNER v. ALLEN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    MEANS v. MEANS.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    ROBERTS v. LEE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    BUTTER v. CAUSEWAY ISLE, Inc. et al.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    COAKLEY v. COAKLEY.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    HAAG v. WILSON.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    WASHINGTON v. WASHINGTON.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    SCALLI v. BOARD OF PUBLIC INSTRUCTION.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    STATE ex rel. SMITH v. KELLY.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    KIRBY v. STATE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    SEA VIEW OPERATING CO. v. SEA VIEW HOTEL, Inc.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    SCHON v. SCHON (two cases).
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.