text:
    Sidney FAVA v. JACKSON BREWING COMPANY, Inc.
    No. 20306.
    Court of Appeal of Louisiana. Orleans.
    March 19, 1956.

      Richard Dowling, New Orleans, for plaintiff-appellant.
    Deutsch, Kerrigan & Stiles, Marian Mayer, New Orleans, for defendant-appel-lee.
   REGAN, Judge.

The plaintiff, Sidney Fava, a laborer, instituted this suit against the defendant, his employer, Jackson Brewing Company, Inc., endeavoring to recover workmen’s compensation at the rate of $30 per week for a period of four hundred weeks, together with " attorney’s fees, for total permanent disability as the result of a back and leg injury which he incurred on or about January 20, 1950 at four o’clock a. 'm., when he “slipped and fell on a conveyor” located on the loading platform of defendant’s brewery.

Defendant answered and, in effect, denied that an accident occurred or if it did occur, that plaintiff incurred any com-pensable disability as a result thereof.

■From a judgment in favor of defendant dismissing plaintiff’s suit he has prosecuted this appeal.

We were not favored with an oral argument in this Court by either counsel, the case being submitted on their respective briefs. ,

The record reveals that the plaintiff was employed by the defendant from May 19, 1947 through May 9, 1950. The nature of his work required him to stock, load and unload beer cases. He related that he could not remember the date and hour that the accident occurred but “he thinks” that “it was somewhere around” January 20, 1950, between 12:45 and 4:15 a. m. and it occurred as he was walking towards the St. Louis end of defendant’s loading platform, when he slipped and fell on a conveyor injuring his back and right leg.' He requested Sam Graffeo, a fellow employee to “paint” the scratches on his back with methiolate. The record reflects that while he immediately reported seven or eight minor accidents affecting him, he excuses himself for not reporting the accident of January 20th, until May, 1950, because Mrs. Elma Gitz, a registered nurse employed by the defendant, to whom such reports were usually made was not present at the time nor did he report it the following day or during the months that followed because he had no further trouble. However, on May 9, 1950, he was admitted to the Veterans’ Administration Hospital in New Orleans (Orthopedic Department). He complained of a recent back pain. He was hospitalized and treated for a lumbo sacral strain from May 9, 1950 until June 3, 1950. A history was taken from the plaintiff when he was admitted to the hospital and no mention was made therein of an accident. When plaintiff entered the hospital his absence from work was reported to be' due to illness, however, on May 25, 1950, or sixteen days after he was admitted to the hospital, he notified his employer, through its registered nurse, Mrs. Gitz, of the alleged accident of January 20, 1950.

On June 3, 1950, he was discharged from the hospital with instructions “to refrain from heavy lifting, to continue exercise and to return to his usual activities some six weeks from now.” Shortly after plaintiff was discharged from the Veterans Hospital, or on June 16, 1950, he filed an application with the Prudential Life Insurance Company for health benefits under a policy also provided by the defendant, which specifically excludes recovery for any condition arising from employment. In the application he represented to this Company that his disability was not “due in any way to a condition arising from * ' * * occupation.” This claim was abandoned according to George Gray, personnel manager of the Jackson Brewing Company, because the plaintiff, subsequently “changed his attitude” and decided to pursue compensable disability benefits.

Dr. H. O. Ernst was the only expert produced by the plaintiff and he testified that he first saw the plaintiff on July 10, 1950, and that while he was not a specialist in orthopedics, he had “made an academic diagnosis based entirely on history, distribution of pain, the fact that he had muscle spasm on the left indicating definitely some pathology in that region causing the muscles to go in spasms. It looked like a text book picture of a (ruptured in-tervertebral) disc to me from my experience.” He then referred the plaintiff to Dr. Karr. Dr. Ernst expressed .no opinion with respect to the relationship of the May, 1950 back complaint to the alleged accident at the brewery in January, 1950, except to say that the patient had related to him, in the course of procuring his history, the occurrence of such an accident.

Dr. Lee C. Schlesinger, an orthopedist, appeared on behalf of the defendant and related that he had occasion to examine the plaintiff twice, initially on June- 23, 1950 and on April 13, 1951. He was of the opinion that a man with either a lum-bo sacral strain or a ruptured disc could not perform the work which the plaintiff did from January until May, 1950; that he did not have a ruptured intervertebral disc and as of the date of the last examination his “back appeared to be sound, strong and capable of performing his work.”

Dr. Howard Karr, a neuro-surgeon, who was selected and consulted by the plaintiff on July 14, 1950, and April 19, 1951, but who testified on behalf of the defendant, related that plaintiff was not afflicted with a ruptured disc and if he had been it would have incapacitated him “then and there” after his fall of January 20, 1950. It was his opinion that there existed no causal relation between the incident of January 20, 1950 and the complaints emanating from plaintiff in May of 1950.

While plaintiff initially insisted upon recovering for total and permanent disability, in brief he now claims that he is entitled to compensation “from May 9th, 1950, at least, to the date of the trial of this case which was on June 22nd, 1953, a period of approximately 150 weeks.”

Defendant, on the other hand, maintains that no accident occurred or if one did occur that the plaintiff did not suffer any compensable disability as a result thereof.

The only question which the pleadings and the evidence has posed for our consideration is one of fact and that is whether the accident which is alleged by plaintiff to have occurred on January 20, 1950, caused the disability of .which he complained on May 9, 1950? '

The trial judge answered this question in the negative and our examination of the record fails to disclose any error in his conclusion. He obviously was of the opinion that the plaintiff has failed to prove any causal connection between the accident in January, 1950 and the disability suffered by plaintiff in May, 1950.

We have carefully analyzed the record and we are of the opinion that the whole context thereof convinces us that if an accident did occur it produced no com-pensable disability as a result thereof.

The legal philosophy which has permeated our jurisprudence with liberal rules of evidence and procedure applicable to compensation cases does not apply to proof that the accident caused the disability. Plaintiff must, therefore, establish his case by a preponderance of competent evidence as in any other civil suit. This he failed to do.

We are, therefore, of the opinion that the accident which plaintiff is alleged to have suffered on January 20, 1950, produced no compensable disability.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


source: Caselaw Access Project

author: ROBERTS, Justice.

license: Public Domain

text:
    Oscar L. VETZEL and Florence Vetzel, his wife, Appellants, v. Howell L. BROWN, Marjorie D. Brown, his wife, Melvin R. Wilson, Ermal L. Wilson, his wife, Robert W. Christy, Connie W. Christy, his wife, Harold A. Robinson and Bernice A. Robinson, his wife, Appellees.
    Supreme Court of Florida. Division B.
    March 2, 1956.
    Rehearing Denied April 2, 1956.

      Hall, Farnsworth & Rousseau, Tampa, for appellants.
    Bucklew & Ramsey, Tampa, for appel-lees.
   ROBERTS, Justice.

Mr. and Mrs. Vetzel, plaintiffs below and appellants here, are the owners of a parcel of unimproved land consisting of three and a fraction lots in Unit No. 4 of Bel-mar Subdivision in the 'City of Tampa, County of Hillsborough, Florida. The' defendants own and occupy homes in'the same unit of the same subdivision. All parties deraign their title, but not immediately, from a common grantor, one Rosemary Stearns. The purpose of plaintiffs’ suit was to cancel, as against defendants and all other persons similarly situated, certain restrictions on the use of their property contained in an agreement executed in 1947 by Miss Stearns and a Mr.- and Mrs. Crabb. <

Miss Stearns owned lots in Units No. 4 to 7 inclusive, and the Crabbs owned lots in Units No. 8 and 9 of Belmar Subdivision. By their 1947 agreement, they mutually covenanted on behalf of themselves, their heirs, legal representatives, successors and assigns, to restrict the use of such lots to the purposes therein mentioned, and expressly provided that the covenants therein contained should run with the land and “be'binding upon all persons hereto, and all persons, firms or corporations claiming through or under them.” The agreement designated certain lots in Unit No. 4 as business lots and restricted all the others to residential usage, either single-family or duplex. It contained other restrictions as to set-back lines, building heights, and the like.. It was recorded in the public records of ' Hillsborough County. One of its effects — and the one with which we are here concerned — was to establish a business or commercial zone on each side of Manhattan Avenue, including the west half of the block in which the Vetzels’ lots are located. The lots in the east half of this block were restricted to residential usage, and the Vetzels’ lots lie on the south end of the east half of this .block, adjoining on the west the western, or commercial, side of the block.

The Vetzels bought their lots in 1955 under a deed that expressly provided that the title was “subject to easements and restrictions of record.” There was a grocery store with parking area and loading platform directly across the street, and a church on the corner diagonally across the street, from their lots. They were advised by their grantor that the property was zoned for business usage, and a check with the City of Tampa zoning officials confirmed their statement. They did not check the record title to the property: and had • no actüal notice of 'the restrictions contained in the 1947 Stearns-Crabb agreement until after they had bought the' property and were attempting to Obtain a loan to ■ construct a store building on it. They contended in the lower court, and argue here, that the. restrictive covenants' of the 1947 agreement cannot be enforced against them because (1) there was no privity of estate between Miss Stearns and the Crabbs to support a covenant running with the land and binding upon subsequent purchasers, and (2) the change in the character of the neighborhood since the 1947 agreement, was executed would make it inequitable to enforce its restrictive covenants against them. The lower court heard the testimony and found against them on both issue§.' They have appealed from the final decree dismissing their complaint.

As to their first contention, 'that is, that the “privity of estate” which is one of the essentials of a covenant running with the land means a mutuality or succession of interest between the original covenantor and covenantee, it must be conceded that there are cases so holding. See Clark, Covenants and Interests Running with Land, 2d Ed. p. 111 et seq. Mr. Clark, however, criticizes this view as being supported neither by ancient law nor modern policy. He says in his work, supra, at page 117, that “The requirement of privity is designed to furnish a connecting link between the parties. That is already supplied between covenantor and covenantee by the promise itself. The need is to justify the transfer of the right or duty created by the promise, not to justify the promise itself.” And he concludes that “privity in the sense of succession to the estate of either party to the covenant is the only historically justifiable requirement * * * ” Clark, ibid., page 131. See also 165 Broadway Building v. City Investing Co., 2 Cir., 120 F.2d 813, 816, to the same effect.

But we do not think it is necessary to decide this question in the circumstances here present. For we are not here concerned with a suit at law on the covenant; we have here- a suit, in equity, by remote grantees against other grantees .from a common grantor, to be relieved of restrictions as to use placed upon their land by their common grantor for the benefit of all of the grantees of such common grantor, and as a part of a general scheme of development and improvement of the lots owned by her and an adjoining landowner. Such use restrictions have long been enforced by courts of equity against a grant-tee taking title with notice of the restrictions, without regard to the technicalities of law relating to covenants running with the land. Cf. Osius v. Barton, 109 Fla. 556, 147 So. 862, 88 A.L.R. 394; Meade v. Dennistone, 1938, 173 Md. 295, 196 A. 330, 114 A.L.R. 1227; Trustees of Columbia College v. Lynch, 70 N.Y. 440, 448, 26 Am.Rep. 615; cases cited in the annotation in 89 A.L.R. pp. 812 et seq.; Oosterhouse v. Brummel, 1955, 343 Mich. 283, 72 N.W.2d 6; Maxwell v. Smith, 1955, S.C., 89 S.E.2d 280; Bullock v. Steinmil Realty, 1 Misc.2d 46, 145 N.Y.S.2d 331; O'Neil v. Vose, 1944, Okl., 145 P.2d 411; Turner v. Brocato, 1955, 206 Md. 336, 111 A.2d 855, 860; 26 C.J.S., Deeds, § 167, p. 543; Clark, Covenants and Interests Running with Land, 2d Ed., pp. 170 et seq.

The Vetzels had notice of the restrictions on the use of their property. They had the constructive notice imputed to them by the recordation of the 1947 agreement, and they had “implied actual notice” because of the typed-in statement in their deed (which was on a printed form) that the title was “subject to easements'and restrictions of record.” See First Federal Savings & Loan Ass’n of Miami v. Fisher, 1952, Fla., 60 So.2d 496, 499, for a discussion of “implied actual notice.” The restriction on their property was a part of a general plan to segregate business properties in one area of Unit No. 4 and to restrict the remainder of the lots owned by the cov-enanters in Units, No. 5 to 9, inclusive, to residential purposes. Such restrictions are favored by our public policy today, and must be protected by “the activities of courts of equity in preventing fraud and unfair dealing by those who take land with notice of a restriction upon its use, so that in equity and good conscience they should not be permitted to act in violation of the terms of such restrictions.” Osius v. Barton, supra, 109 Fla. 556, 147 So. 862, 867. The defendants testified that they bought their property relying on the covenants restricting the Vetzels’ property to residential use, and it was stipulated that other homeowners in the area would testify to the same effect. There was evidence that the value of the defendants’ homes would decrease, if the Vetzels’ property were devoted to a commercial use. In these circumstances, we agree with the Chancellor that in equity and good conscience, the Vetzels should not be permitted to act in violation of the terms of such restrictions.

As to their second contention respecting the change in the character of the neighborhood, this was essentially a question of fact that was determined adversely to their contention by the trier of the facts, and we see no reason to disturb his findings in this respect — particularly in view of the fact that the only two changes (the grocery store and church, referred to above) had taken place before the- Vetzels acquired title to their lots. Cf. Allen v. Avondale, 135 Fla. 6, 185 So. 137.

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

Affirmed.

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


author: TERRELL, Justice.

text:
    H. R. GOLDTRAP and wife, Verna Mae Goldtrap, Appellant, v. Joseph A. MANCINI, Appellee.
    Supreme Court of Florida. Special Division B.
    Jan. 11, 1956.
    Rehearing Denied April 2, 1956.
    Lefferts L. Mabie, Jr., Wauchula, for appellant. ■ .
    John Savage, Wauchula, for appellee.
   TERRELL, Justice.

The plaintiff, appellee here, filed complaint in the Circuit Court of Hardee County to quiet title to Lots 23, 24, 25 and 26, Block C, Melrose Place Subdivision, ■Wauchula, Florida. Title was déraigned from Elva Wilson who died in September, 1949, at which time there was pending In the Circuit Court suit by Coody E.- Bennett against her to recover a claim of $245.90.'■ No administration of her estate was undertaken by her daughter and sole heir, but in January, 1951, . Coody E. Bennett, as creditor, made application in the Probate Court for appointment of an administrator for the estate and Lonnie Shackleford was appointed. No notice of said application was given and no citation was served on the sole heir or any other person, nor did the petition contain “statement of the names, ages and resi* dences of the surviving.spouse and-heirs at law of the decedent and their ■ respective relationships to decedent, or averments showing that reasonable search has been made and that such information cannot be ascertained * * * ” as required by Sec. 732.43, F.S., F.S.A.

Coody E. Bennett then filed his claim against said estate for $245.90, and in September, 1951 the Probate Court approved and confirmed sale of the above described property and other lands by the administrator to said claimant in consideration of his claim. Plaintiff claims title as a bona fide purchaser or grantee of Coody E. Bennett. Defendants claim title as grantees of the daughter and sole heir of decedent Elva Wilson. Defendants tendered'an answer challenging the legal effect of the administration, the administrator’s deed and conveyance to the plaintiff on the ground that no notice or citation was given when 'application was made for appointment of an administrator and that petition for 'such appointment contained no statement of the names, ages, residences of the heirs and their relation to decedent or an - averment of reasonable search for them as required by Sec. 732.43, F.S., F.S.A.

Louraney Peters, the sole heir at law of decedent, and husband, C. M. Peters, being defendants’ grantors by warranty deed, moved to be permitted to intervene as parties to the cause. Both parties moved for summary decree. The court • heard said motions and the petition to intervene February 15> 1955, and denied the petition to intervene but granted plaintiff’s motion for summary judgment. The court also found that the Probate Court had jurisdiction to administer the estate of Elva Wilson, that the regularity of proceedings could.not be collaterally attacked, that defendants’ answer raised no question of fraud, that no bona fide question of fact was presented and that plaintiff was entitled to a final decree. He -accordingly quieted title in said lands in the plaintiff against the claim of defendants. From this decree, dated January 24, 1955, defendants on April 14, 1955, entered their appeal. On June 17, 1955, they filed their assignments of error.

At the outset it appears that there was no appeal or challenge otherwise to the correctness of the administration proceedings. The chancellor, we think, correctly found that the attack on them in the Circuit Court was collateral and that inquiry into the administration proceedings could not be made in that manner. It may well be that if the administration proceedings had been moved against directly, a different result would have been secured. State ex rel. Everette v. Petteway, 131 Fla. 516, 179 So. 666; In re Estate of Bush, Fla., 80 So.2d 673; Robinson v. Epping, 24 Fla. 237, 4 So. 812.

We are also confronted with the question of whether or not the pending appeal was properly perfected. It appears that defendants did not file their assignments of error in this court until the sixty-fourth day following the filing of the notice of appeal. Rule 34, subd. 1, of the Supreme Court, 30 F.S.A., requires that they be filed within ten days’ after the notice of appeal with the clerk of the court whose order, judgment or decree is appealed from.' The appeal was therefore not perfected as required by the rule. In re Lofton’s Estate, 152 Fla. 626, 12 So.2d 587. It is not amiss to call attention to the fact that the assignments of error are too general. Stearns & Culver Lumber Co. v. Adams, 55 Fla. 401, 45 So. 847.

Since the attack on the administration was collateral and avails nothing and the appeal was not properly perfected, we have nothing to review so the judgment is

Affirmed.

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


author: HOBSON, Justice.

text:
    C. A. STEWART, Thomas H. Wakefield, Ann D. Yates, J. C. Hill and Transport Rental Systems, Inc., a corporation, Appellants, v. Richard A. MACK, Jerry W. Carter and Wilbur C. King, as members of and constituting the Florida Railroad and Public Utilities Commission, Appellees. STEWART EQUIPMENT COMPANY, a corporation, C. A. Stewart, D. P. Rose and Antoinette Stewart, Appellants, v. Richard A. MACK, Jerry W. Carter and Wilbur C. King, as members of and constituting the Florida Railroad and Public Utilities Commission, Appellees.
    Supreme Court of Florida. Division A.
    March 16, 1956.

      Thomas PI. Wakefield and Graham C. Miller, Miami, for appellants.
    Lewis W. Petteway and R. Y. Patterson, Jr., Tallahassee, for appellees Florida Railroad and Public Utilities Commission.
    Wayne K. Ramsay (of Milam, Mcllvaine, Carroll & Wattles), Jacksonville, for inter-venor-appellee Great Southern Trucking Co., Inc.
    M. Craig Massey (of Macfarlan'e, Ferguson, Allison & Kelly), Tampa, for inter-venor-appellee Central Truck Lines, Inc.
   HOBSON, Justice.

The appellees, as members of the Florida Railroad and Public Utilities Commission, filed similar complaints in the Circuit Court in each of the above cases, charging appellants with certain acts alleged 'to constitute a- subterfuge contravening the provisions of Chapter 323, Florida Statutes, F.S.A., and certain rules of the Commission. The complaints further charged that appellants were continuing such acts, and appellees sought an injunction and an accounting for the purpose of seeking payment of mileage taxes claimed by the State of Florida. The acts charged were that although appellants rented trucks pursuant to a written lease, a copy of which was attached to the complaint, such leases were a sham and appellants actually furnished drivers, trucks and other services which characterized them as an auto transportation company subject to regulation under the statute.

After the complaints were filed, Great Southern Trucking Company and Central Truck Lines petitioned for intervention in the cause, adopting the complaints filed by the Commission. Their petitions were granted by the chancellor.

Appellants moved to dismiss the complaints for failure to state an actionable claim and upon the ground that Chapter 323, Florida Statutes, was unconstitutional. On denial of these motions, appellants petitioned for certiorari to this court. We sustained the chancellor, held the statute constitutional, and directed appellants to answer. See Stewart v. Mack, Fla., 66 So.2d 811.

Appellants answered, and filed “cross, bills” alleging a conspiracy and seeking to enjoin appellees from enforcing the provisions of Chapter 323 with respect to the conduct of their business. The “cross bill's” were dismissed with prejudice.

On appellees’ motion for reference, over objection by appellants, the chancellor ordered that the cases be consolidated for trial and referred to a special master to take testimony the entire week of July 19, 19S4. The special master officiated at the taking of testimony on July 19 and 20, but on July 21 the chancellor was advised of the decision of this court in Slatcoff v. Dezen, Fla., 74 So.2d 59, whereupon by nunc pro tunc order he appointed the special master as a hearing examiner and ordered that the testimony adduced before him be transcribed. The chancellor-adjourned the proceedings, and no recommendations were made to the-chancellor by the examiner. The case was tried before the chancellor on March 22-24, 1955, and resulted in the final decree .appealed from.

Appellants first contend that the chancellor erred in granting the petitions for intervention, on the primary ground that intervenors asserted no rights or claims in the litigation. From a procedural standpoint, the rules pertaining to intervention were followed. A substantive right is set out in the grounds contained in each of the petitions. In their petitions, intervenors contend that they are certificated common carriers subject to state and federal regulation, and the activities of the appellants as described in the complaints are detrimental to the intervenors and that these activities directly reduce the amount of lawful carriage available to the intervenors. Each of the intervenors adopted the complaints filed by the Commission and was satisfied with the relief as prayed for in such complaints because it would have the effect of terminating the allegedly unlawful activities which were operating to the detriment of the inter-venors. There was no error in granting the petitions under these circumstances. We do not read Morgareidge v. Howey, 75 Fla. 234, 78 So. 14, cited by appellants, as requiring petitioners for intervention tp filé separate complaints in each case when the complaint already on file seeks the very relief which they desire. There is no error in this aspect of the case.

Appellants next contend ■ that it was error for the chancellor to dismiss the “cross bill” with prejudice. They do not argue this point in their brief, however, and we therefore deem the point to be abandoned. Dalton v. State, Fla., 42 So.2d 174, certiorari denied 339 U.S. 923, 70 S.Ct. 612, 94 L.Ed. 1346; Cannon v. State, 62 Fla. 20, 57 So. 240; Phoenix Ins. Co. of Brooklyn, N. Y. v. Bryan, 58 Fla. 341, 50 So. 576; Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656; 30 F.S.A. Supreme Court Rules, 1955, Rule 36, subd. 6(d). The bare statement that the action of the court was error does not constitute “argument”.

The next contention of appellants is that the chancellor erred in overruling the1 objections to the use at the trial of. the testimony of . witnesses taken before the “special master”. The question is whether the nunc pro tunc order reducing the special master to the status of trial examiner cured the defect which would otherwise have existed in the proceedings under Slatcoff v. Dezen, supra, 74 So.2d 59. We are of the opinion that this action of the trial court was correct and was not prejudicial to appellants. In Slatcoff v. Dezen, at 74 So.2d at pages 61-63, we said:

“The petitioner concedes that a special master may be appointed to perform a ministerial service even over the objection of one of the parties, * * *_
“From our study of the history of masters in the judicial system and from our examination of statutes enacted from time to tithe, and the present Court rules, having at all times regard for the constitutional provision vesting unqualified power in the Court, we conclude that special masters may be appointed to serve in a ministerial capacity to perform a ‘particular service,’ if the chancellor in his discretion decides that such action is necessary to aid the court in an accurate and expeditious determination of the cause. The validity of these appointments for limited service will not be affected by the want of agreement on the part of the litigants, or even their protest, and the reports of special masters in such cases shall be advisory.”

Appellants have pointed out to us no difference between the function of the person appointed by the court in this case, in the limited service he performed herein, whether he is called a special master or a trial examiner. He made no recommendations to the chancellor, and merely presided over the taking of testimony by some witnesses. It is substantially the same as if this testimony had been taken by deposition. This procedure was clearly authorized by the Slat-coff case. Appellants suggest that they were prejudiced because these witnesses, whose testimony was favorable to appellants, were not before the chancellor. It does not appear, however, 'that they were deprived of an opportunity to present these witnesses at the trial for what effect their demeanor might have had on the chancellor. Perhaps the principal point which they make in connection with this part of the case is that they will he needlessly put to added expense in that the costs incident to the examiner’s performance will be taxed against them. The examiner’s fee was settled at $200. Counsel for the Commission conceded below that this fee should be taxed against the plaintiffs, but the chancellor was of the tentative opinion that it should be taxed against the losing party. On This appeal, counsel for the appellees make the flat statement in their brief that “the costs incurred in the iuatter before the hearing examiner were borne by the plaintiffs and will not be taxed as costs.” We are entitled to accept this statement and are sure that the chancellor will not tax the examiner’s fee against the appellants.

Appellants next argue that the chancellor erred in overruling their objection to the deposition of one Jesse P. Lott, on the ground 'that insufficient notice of the taking of this deposition was given. It would serve no useful purpose to detail the facts concerning the notice which was given blit, under the circumstances, we consider it “reasonable” within the meaning of Rule’ 1.24(a), Florida Rules of Civil Procedure, F.S.A.

The next contention of' appellants is that the chancellor erred in denying defendant’s motion to strike the testimony of the witness Paul Burkhart. This witness testified at length upon vehicle registrations of equipment involved in leases by the appellants. Appellants argue that this testimony was irrelevant and prejudicial. The testimony, however, was relevant when viewed with the whole case for its tendency to prove the falsifications of records by the defendants as part of a plan to evade the statute.

Finally, appellants argue in effect, under the last two points they present on this appeal,'that the chancellor’s denial of their motion to dismiss at the close of the plaintiff’s case and the entry of his final decree were against the weight of the evidence. But the real question is whether the findings entered in connection with the final decree are supported .by competent substantial evidence, and we hold that this question must be answered in the affirmative and that the case is controlled, as the chancellor held, by Bruce’s Juices, Inc., v. King, Fla., 61 So.2d 175. Appellants say that the evidence shows that hundreds or thousands of leases were issued by them, and go on to state that “if out of this mass of business there were only two or three violations of the Statute, would such be the basis for a restraining order?” There is adequate evidence of a pattern of operation here. Moreover, appellants appear to misconceive the effect of these proceedings. This is not a criminal case, nor is the question at issue whether all of the activities of appellants are legal or illegal. It is sufficient that the court below found that some of the activities were illegal, and it is only such activities which are enjoined by the final decree appealed from.

Affirmed.

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


author: DREW, Chief Justice. PER CURIAM. HOBSON, Justice

text:
    J. W. FOXWORTH, Petitioner, v. FLORIDA INDUSTRIAL COMMISSION, and the Fidelity & Casualty Co. of New York, Respondents.
    Supreme Court of Florida. En Banc.
    May 27, 1955.
    Rehearing Denied Oct. 12, 1955.
    Motion for Leave to File Extraordinary Petition for Rehearing Denied Jan. 6, 1956.

      C. J. Hardee, Jr., Tampa, for petitioner.
    R. Corbin Glos and Shackleford, Farrior, Shannon ■& Stallings, Tampa, Burnis T. Coleman and Rodney Durrance, Tallahassee, for respondents.
   DREW, Chief Justice.

The petitioner, J. W. Foxworth, brings this proceeding for a writ of certiorari to review an order of the Florida Industrial Commission which affirmed an order of the Deputy Commissioner denying compensation to Foxworth. He challenges the sufficiency of the evidence under the law to support the findings of fact and denial of his claim for compensation.

Claimant was employed as an inspector in the Tampa area by the Florida Industrial Commission. For more than ten years prior to the subject injury he suffered from arthritis. He was wholly incapacitated by that disease from 1943 to 1947. This action is to recover for an injury due to a fracture of the hip alleged to have been suffered by him on November 18, 1952 as the result of a fall in the lobby of the Casa Blanca Hotel while he was in Miami Beach attending a convention of the Industrial Commission, At the hearing before the Commissioner claimant testified that’ on the morning of Monday, ’ November 18, 1952, well before the time of the 10:00 a. m. meeting, he was sitting on the arm of an upholstered chair in the hotel lobby talking to other persons, including his superior. He then obtained permission, from his superior, to go to Lincoln Road to get something for his grandchildren and started to leave. In his own words, “I got off of the arm of th'e chair, made a couple of steps from there is my impression and the last thing I remember is my daughter walking over to me on my left side because we were-about to leave there together.”

Seven eyewitnesses testified to the events which took place at the time of the alleged fall. One of these, who was twenty-five to thirty feet away from claimant, did state that he saw the claimant’s right rear hip in the area of a man’s right rear trouser pocket come in contact with the front of the left arm of a chair which was upholstered. The other six witnesses, however, testified either that they did not see claimant come in contact with the chair or any object or that he did not do so. All agreed that the claimant suddenly had severe muscle spasms, “blacked out” and started to fall, and was caught by those close to him before he struck the floor.

Claimant was taken to the hospital and remained unconscious for several days. He was treated there for about ten days and has ever since been wholly disabled. About a month later x-rays were taken which revealed a fracture to claimant’s hip which, according to the experts, could have occurred within about thirty to sixty days last past. All the doctors agreed that 'it would take a severe trauma and extreme force to have caused the fracture. One doctor stated in his opinion that a blow to have caused the fracture must have come from “the direct outer portion of the hip area in the thigh rather than the posterior hip area such as you described as the hip pocket area.” Two of the doctors stated that the muscle spasms which took place at the time of the stroke could have caused the fracture.

The evidence before the Deputy Commisssioner was not only sufficient. to support a finding that there was no fall occurring or that, if there were one, the fall did not cause the injuries for which compensation is sought. Moreover, the evidence overwhelmingly supported that conclusion.. In this connection the findings of fact of the Deputy Commissioner are loosely drawn, but if they are deemed not adequate to support the award, the cause should be remanded with instructions ■ to the Deputy to make adequate findings of fact from the evidence. Ball v. Mann, Fla.1954, 75 So.2d 758. In no event should this Court grope through the record to make findings of fact thereby doing the task which by statute and our decisions is solely that of the Deputy Commissioner. This Court is an appellate court,, not a trier of the facts. Laney v. Holbrook, 150 Fla. 622, 8 So.2d 465, 146 A.L.R. 202, especially in certiorari proceedings. See Wilson v. McCoy Mfg. Co., Fla.1954, 69 So.2d 659, 665.

The instant case, on its facts, is squarely within the holding of Four Branches, Inc., v. Oechsner, Fla.1954, 73 So.2d 222. In that case the claimant sought compensation for injuries alleged to have been sustained when the elevator she was operating fell into a pit and landed on its buffer springs. The Deputy Commissioner found that the elevator at the time in question slid fifteen inches below the ground level and came to rest on the buffer springs, without bouncing and without noticeable injury to any one. He found further that there was no accident and, if there were, the injuries complained of did not result therefrom. His denial of the award was affirmed by the full Commission but reversed by the Circuit Court. In reversing the holding' of the circuit court and thus affirming the order of the Deputy Commissioner, we observed that there was evidence sufficient to support the findings of facts and that neither the full Commission nor this Court is “authorized to overthrow that finding thereby merely substituting its view of the evidence for that of the officer charged under the law with the finding duty.”

The claimant urges that this case is within the rule providing that when a serious injury is conclusively shown and a logical cause for it is proven the burden is on the carrier or employer to overcome this proof by showing that another cause of the injury was more logical and consonant with reason. He relies upon such cases as Lyng v. Rao, Fla.1954, 72 So.2d 53; American Airmotive Corp. v. Moore, Fla. 1952, 62 So.2d 37; Sanford v. A. P. Clark Motors, Inc., Fla.1950, 45 So.2d 185. What is overlooked by the claimant is that in these cases the evidence pertaining to the accident and the injuries for which compensation was sought was undisputed. It remained only to determine whether the accepted facts were sufficient in law to justify an award of compensation, — in other words, to determine the legal effect of the conceded facts. For example, in Lyng v. Rao [72 So.2d 54], the claimant while in perfect health was sitting at a typewriter in a room where there was water on the floor. Her feet were wet. There suddenly occurred a tremendous flash of lightning. She became immediately ill and was hospitalized. The evidence in all respects 'was undisputed. The Deputy Commissioner found that there was “no testimony whatever of traumatic injury,” but this Court held that he “fell into, error because the effect of his construction of the word ‘trauma’ limited it to an outwardly visible bodily injury”. We held that the undisputed facts were sufficient to establish a claim because “the only logical explanation of the cause of the injury was that the claimant was struck by lightning.” And we said, “Under such circumstances, the burden was on the carrier or employer to overcome this proof by showing that another, cause of the injury was more logical and consonant with reason.” Thus in that case we held the deputy erred in applying the law to the facts. The other two cited cases .are to the -same effect.

In the case of Lyng v. Rao, supra, and the others last cited, there was no dispute about, the material facts" with reference to whether the accident for which compensation was sought did occur. ' In the instant case, however-, at the very least, there is decided conflict in the evidence —first, as to whether or not there did occur the very accident for which recovery was sought and second, if any accident did occur as to whether the alleged injuries could have resulted therefrom. These conflicts in the evidence presented disputes in material questions of fact which were to :be resolved by the Deputy Commissioner and by no other person. He did resolve them. He found no accident causing the injuries complained of. Therefore, the rule urged by claimant has no application. Instead, this case is clearly within the rule that where there is evidence both ways about whether the alleged accident did occur or whether the injuries claimed resulted from an asserted accident, the findings of the Deputy Commissioner are conclusive. Smith v. Packer Display, Inc., Fla.1953, 67 So.2d 323; City Ice & Fuel Division v. Smith, Fla.1952, 56 So.2d 329; Four Branches, Inc., v. Oechsner, supra. In each of these cases the evidence was in conflict either as to whether an accident had occurred or whether a claimed injury resulted from an asserted accident. And, in each case we affirmed the denial of compensation, observing that, while the evidence was in conflict, there was ample evidence to support the Deputy Commissioner’s findings of no accident or no injury. ■

What is presented- here is simply a finding by the Deputy Commissioner that there was no accident and, if .there were, that the injury which occurred could not have . resulted from the ■ accident. Ther.e is evidence to support this finding which in turn supports the denial of award. These circumstances appearing, the task of this Court as a reviewing authority is completed.

There is another plain and indisputable reason why this claimant is not entitled to compensation on the record presented here. Compensation coverage is confined to an injury “arising out of and in the course of employment.” Section 440.09(1), F.S.1951, F.S.A. Both circumstances must appear before an award is permissible. Yet in the instant case all of the evidence, even when viewed in the light most favorable to claimant, falls far short of satisfying either one of these statutory requirements.

In substance claimant seeks compensation for a fall occurring, while he was in the lobby of the Casa Blanca Hotel, as a result of a cerebral vascular accident, in other' words — a stroke,, brought about solely through his own personal state of health. There is not one word of evidence in the record to show that this stroke was caused by circumstances other than those personal to the claimant; and the claimant in this action does not seek compensation for the effects of the stroke but only for the effects of the fall. Concededly, any fall against the chair which may have occurred was the sole result of claimant’s personal physical condition.

It is well settled that injuries which arise out of risks or conditions personal to the claimant do not arise out of the employment unless the employment contributes to the risk or aggravates the injury. Cleary Bros. Constr. Co. v. Nobles, 1945, 156 Fla. 408, 23 So.2d 525; Williamson v. Roy L. Willard, Inc., Fla.1952, 59 So.2d 865; Martin v. Board of County Commissioners, Fla.1955, 79 So.2d 513, opinion filed April 13, 1955. See 1 Larson, Workmen’s Compensation (1952) 158, Section 12.00. Courts agree that there is a basis for recovery for injuries resulting from a fall caused by personal physical conditions where the injuries from the fall can be attributed to some increased hazard attendant to the job such as where the fall is onto dangerous objects; examples are falls onto such things as a sawhorse, National Automobile & Casualty Insurance Co. v. Industrial Accident Commission, 75 Cal.App.2d 677, 171 P.2d 594; an iron motor box, Varao’s Case, 316 Mass. 363, 55 N.E.2d 451; a hot stove, Reynolds v. Passaic Valley Sewerage Commr’s, 130 N.J.L. 437, 33 A.2d 595, affirmed 131 N.J.L. 327, 36 A.2d 429; a spot welding machine, Industrial Commission of Ohio v. Nelson, 127 Ohio St. 41, 186 N.E. 735; a sharp corner of a wooden table, United States Casualty Co. v. Richardson, 75 Ga.App. 496, 43 S.E.2d 793; a fire built by a night watchman, Ervin v. Industrial Comm., 364 Ill. 56, 4 N.E.2d 22.

An increased hazard also may be found where there is an idiopathic fall from heights, Gonier v. Chase Companies, 97 Conn. 46, 115 A. 677, 19 A.L.R. 83; noting authority to the contrary, but allowing recovery -where a painter fell eleven feet. But where the idiopathic fall occurring on the job is merely onto a level floor, compensation for effects of the fall is extremely difficult to justify and the relevant decisions are in decided conflict. In this highly controversial area, this court has favored the more liberal view allowing recovery. Protectu Awning Shutter Co. v. Cline, 1944, 154 Fla. 30, 16 So.2d 342. Accord Employers Mut. Life Ins. Co. of Wisconsin v. Industrial Acc. Comm’n, 41 Cal.2d 676, 263 P.2d 4 (4-3 decision); Savage v. St. Aeden’s Church, 122 Conn. 343, 189 A. 599 (3-2 decision); Barlau v. Minneapolis-Moline Power Implement Co., 214 Minn. 564, 9 N.W.2d 6. Contra Bibb Mfg. Co. v. Alford, 51 Ga.App. 237, 179 S.E. 912; Sears, Roebuck & Co. v. Industrial Commission, 69 Ariz. 320, 213 P.2d 672; Riley v. Oxford Paper Co., Me., 103 A.2d 111; Henderson v. Celanese Corp., 16 N.J. 208, 108 A.2d 267 (4-3 decision); Andrews v. L. & S. Amusement Corp., 253 N.Y. 97, 170 N.E. 506; Stanfield v. Industrial Commission, 146 Ohio St. 583, 67 N.E.2d 446 (6-2 decision); Remington v. Louttit Laundry Co., 77 R.I. 185, 74 A.2d 442. In the Cline case we upheld recovery for effects of. a fall caused by the heart attack of the claimant who as a result fractured his skull on the concrete floor. This: decision is justified on the basis that the hardness of the floor was an increased hazard attributable to the employment, but that case represents the outer limits of the doctrine. To extend the rule further would be to eradicate completely the statutory requirement that the injury must be one arising out of the employment. The employment in some manner must contribute an increased hazard peculiar to the employment.

The evidence in the instant case wholly fails to meet any of these tests to show that the claimant’s employment in any way. served to increase the hazard of his alleged fall. An upholstered chair is not a dangerous object. And the presence of such a chair in the hotel lobby was not in. any view of the circumstances a special hazard peculiar to the claimant’s employ-tnent. Nor in an idiopathic fall against the stuffed arm of such a chair in the hotel lobby can there be found exposure to a hazard peculiar to the employment and beyond what is ordinarily experienced by the public as a whole. We can conclude only that any effects from such a fall, even under the claimant’s version of the event, could not be held to arise out of his employment.

Finally, the claimant was not in the course of his employment at the time of the alleged fall. At that time, claimant, by his own words had started to' leave the lobby of the public hotel with the intention “to go to Lincoln Road to get something for his grandchildren.” ■ Therefore his activity at the time of the stroke concerned only a purely personal errand in no way connected with or beneficial to his employment.. These circumstances brought him wholly within the rule that an accident is not, compensable when it occurs “at a time when the employee was engaged in the pursuit- of his own private and personal affairs.” Duval Engineering & Contracting Co. v. Johnson, 154 Fla. 9, 13, 16 So.2d 290, 292; Accord Industrial Commission v. Ahern, 119 Ohio St. 41, 162 N.E. 272, 59 A.L.R. 367.

The general principles applicable here were recently stated in Martin v. Board of County Commissioner, supra, where, in affirming a Deputy Commissioner’s denial of compensation, we pointed out that the “substantial evidence” rule also applies to medical testimony given in workmen’s compensation cases and we reaffirmed that the claimant has the burden to establish causal connection between his injury and his employment and must show that “his injury occurred within the course of his employment and was directly attributable to some event or circumstance connected with his work.”-

In summary, we conclude that the order of the full Commission must be affirmed because, although- there were conflicts in the evidence, there was competent, substantial evidence to support the findings of the Deputy Commissioner whose order based on those findings denying the award 'was' correct under the law. Further, claimant’s own version of the event shows conclusively that the effects of any fall were not from an injury arising out of the employment because the fall was caused by conditions purely personal to him and because any effects were not aggravated by any hazard peculiar to his employment; also the fall was not in the course of his employment because at the time claimant was engaged in an activity purely private in nature and in no way connected with his work.

The order of -the full Commission was correct and certiorari is denied.

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

HOBSON and ROBERTS, JJ., dissent.

On Petition for Rehearing.

PER CURIAM.

Counsel for. petitioner having filed in this cause Petition for Rehearing and having been considered, it is ordered by the Court that said Petition be and the same is hereby denied.

DREW, C; J., and THOMAS,. TPIORNAL and SEBRING, JJ., concur..

• TERRELL, HOBSON and ROBERTS,. JJ., dissent.

HOBSON, Justice

(dissenting).

Petitioner, J. W. Foxworth, brings this-proceeding for a writ of certiorari to the Florida Industrial Commission, which affirmed an order of the Deputy Commissioner denying compensation to Foxworth. The-order of the Deputy, insofar as the same is-pertinent to the consideration involved here,, read as follows:

“2. That on November 18, 1952, the claimant, J. W. Foxworth, was an employee of the Florida Industrial Commission, and was on that date in Miami, Florida, in his'official capacity as Inspector. ’ •
“3. That on said date he sustained a ■cerebral vascular accident the éxact cause of which is unknown.
“4. That it is the consensus .of all medical opinion offered that the hip and. back injury complained of by the claimant could only happen as the result of severe trauma.
“5. That the testimony of all eyewitnesses was to the'effect that claimant did not strike the floor at all, or come in contact with any other obj ect with sufficient force to have resulted in the back injuries and the acetabular fracturé of the right hip discovered- in x-rays made' within a few weeks after he became disabled.” ■

On appeal to the Full Commission this order was affirmed, in the following language.: ' • ■

“The claimant has attempted to show that the injuries suffered by him were the result of a fall which occurred in the course of his employment on the date of November 18, 1952. Undoubtedly the claimant suffered the injuries to his hip between the morning of November 18, 1952 and December 15, 1952, when x-rays were taken which established that the claimant had a hip injury. The injury to the back of the claimant was not discovered by x-ray until the month of March, 1953. Of the seven eye witnesses who testified concerning the occurrence of November 18, 1952, only one witness would testify that he saw the claimant strike anything when the claimant suffered his ‘blackout’. The value of the testimony of this witness was partially discounted by medical testimony which indicated that for the noted injury to result, the trauma would have to be in a different area of the body than the area to which the trauma allegedly occurred according to this witness. The other witnesses either testified positively that the claimant did not strike any object or testified that they could not say whether or not the claimant did strike any.object. It is the opinion of the Commission that' the claimant failed to prove to the satisfaction of the Commission that the injuries complained'of resulted from an accident arising out of and in the course of his employment.”

From the language I have italicized above it is plain that the Commission was of the view that the claimant’s injury was traceable to an accident intervening between, the accident which occurred on the morning of November 18, 1952, and the time at which xrrays were -taken, namely, December 15, 1952. It is ■ equally clear that the Deputy was so convinced.

As I interpret the record it conclusively establishes that claimant - suffered- a fractured hip at the time he blacked out on November 18, 1952. Uncontroverted' evidence, ip, the record shows that the type of fractured hip-that, claimant suffered is immediately painful and totally disabling, that claimant suffered immediate severe pain in his .hip after' regaining consciousness approximately an. hour after he blacked.out, and that claimant became imrnediately totally disabled and immobile . following his blackout. . All, the doctors who testified agreed that the x-ray taken December 15, 1952 disclosed a serious hip fracture that was at least two to three weeks old at that time.

The testimony of the seven eye witnesses conflicted in material respects concerning a factual situation that took place in extreme confusion and five to eight months prior to the hearing. The witnesses thought claimant was dying of a heart attack and were almost falling over each other in trying to get him to a sofa and then to the hospital. It is my opinion that the Full Conimission and the Deputy laid too great emphasis upon the fact that the majority of the seven eye witnesses did not see claimant fall to the floor op against any object which would have caused claimant’s hip and back fractures at the time the claimant “blacked out” in the hotel lobby on November 18, 1952, and that they,, as well as- the majority of this court, gave too little weight to, or, completely ignored, the documentary evidence in the form of notes made every few hours by the nurses at St. Francis Hospital where claimant was immediately taken following his accident on the morning of November 18, 1952.' The first entry on these notes, contained in Claimant’s Exhibit 7, shows claimant “complaining of pain in right leg.” Throughout the four days claimant was in the hospital, November 18th to 21st, entries in the nurses’ notes periodically show “complains of pain in back and right leg”, “painful spasm of right leg occurred”, “much difficulty due to spasm in right leg”, “complaining of pain in left posterior chest and painful spasms of right leg at intervals”, etc. The hospital records further show that during his four days in the hospital claimant was given large amounts of Demerol, a drug given exclusively for the relief of severe pain.

This documentary evidence should have been considered in connection with the expert testimony to the effect that the type of injury [fractured hip] that claimant suffered is immediately painful and totally disabling. When so considered it, to my mind, completely refutes the conjecture that claimant was injured at some time or place other than when he fell in the hotel lobby.

A serious traumatic injury- was-conclusively proven to have occurred at the time claimant blacked out and fell. The record is devoid of any suggestion by the employer/carrier as to the cause of injury. Neither the Commision nor this Court should delve into the realm of speculation on behalf of the employer/carrier. In my opinion we must presume, under these circumstances, that the injury arose out of and in the course .of claimant’s employment in the absence of any evidence to the contrary. This is in accord with the well established rule that all doubts should be resolved in favor of the claimant and that our Workmen’s Compensation Act should be liberally construed in favor .of the employee. ■

I agree with the majority opinion that the findings of fact of the Deputy are loosely drawn. In fact it is 'impossible to tell from the Deputy’s order the precise reason for his denial of compensation. We can only presume from the wording of the order that he felt that claimant had failed to prove that he was injured at the time of his hiackout and fall. The Deputy made no finding, and we should not on this record find, that claimant had departed from his employment at the time of the fall or that his injuries resulted from a cause, to wit: a stroke, which was entirely unrelated to his employment. Claimant sought to show that the blackout or stroke was precipitated by his employment but was precluded from doing so by the Deputy. We should reverse this cause outright or at least reverse the order of the Full Commission on these points and remand the cause for taking additional -testimony and making specific findings of fact on these questions after a full and complete hearing on such issues.

I do not agree with the majority that claimant left the course of his employment by arising from the place where he was seated and taking two steps toward his daughter with the intention of joining her in a shopping trip to Lincoln Road to purchase gifts for his grandchildren. When claimant fell it was his immediate superior who was first to reach him and who caught him as he fell. Certainly he was still subject to the orders of. his superior and had not left his place of employment. Even if claimant had commenced a temporary break acquiesced in and permitted by liis supervisor, his recovery would not be barred. Heller Bros. Packing Co. v. Lewis, 155 Fla. 430, 20 So.2d 385; and Naranja Rock Co. v. Dawal Farms, Fla., 74 So.2d 282.

I have examined the voluminous ’ record at length, and find no suggestion therein contained of any accident other than that which occurred on the morning of November 18, 1952, at which time the claimant fell in the lobby of the Casa Blanca Hotel. Although all witnesses agree that he did not strike the floor when he fell, there was testimony that in falling he struck the arm of a chair. His injuries were abundantly proved. Even with due regard to the medical testimony that a severe blow was required to cause these injuries, we should not presume, and neither the Deputy nor the Full Commission should have presumed, that the injuries were caused by an intervening accident of which there is not a scintilla of evidence and in the face of the documentary evidence [nurses’ notes — hospital records] heretofore outlined and discussed. On the whole record it was logical to find only that the accident which was proved caused the injuries, although it may have been thought to be minor when it occurred. It is a matter, of common knowledge that accidents which are apparently minor may result in serious injuries.

I would quash the challenged order.

ROBERTS, J., concurs.


author: PER CURIAM.

text:
    The STATE of Florida, Appellant, v. FLORIDA DEVELOPMENT COMMISSION, an Agency of the State of Florida, Appellee.
    Supreme Court of Florida. En Banc.
    March 14, 1956.
    William D. Hopkins, Tallahassee, and William M. Smiley, Bradenton, for appellant.
    Ford L. Thompson, Tallahassee, and J. Turner Butler, Jacksonville, for appellee.
   PER CURIAM.

Affirmed on authority of State v. Florida Development Commission, Fla., 84 So.2d 707, which case involved the validation of issuance of certain Citrus- Commission Bonds proposed to be issued by appellee-,' and in which case the opinion of this Court was filed on January 20, 1956, but is not yet reported.

DREW, C. J., THOMAS, HOBSON, ROBERTS, THORN AL and' O’CON-NELL, JJ., and PATTERSON, Associate Justice, concur.


text:
    The STATE of Florida, Appellant, v. FLORIDA DEVELOPMENT COMMISSION, an Agency of the State of Florida, Appellee.
    Supreme Court of Florida. En Banc.
    March 14, 1956.
    William D. Hopkins, Tallahassee, and Edward F. Wicke, Pensacola, for appellant.
    Ford L. Thompson, Tallahassee, and J. Turner Butler, Jacksonville, for appellee.
   PER CURIAM.

Affirmed on authority of State v. Florida Development Commission, Fla., 84 So.2d 707, which case involved the validation of issuance of certain Citrus Commission Bonds proposed to be issued by appellee, and in which case the opinion of this Court was filed on January 20, 1956, but is not yet reported.

.DREW,-C. J., THOMAS, HOBSON, ROBERTS,- THORNAL -and O’CON-NELL, JJ.;' and PATTERSON, Associate Justice, concur.


text:
    CAPITOL INDEMNITY INSURANCE COMPANY, a corporation, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. En Banc.
    March 14, 1956.
    P. Donald DeHoff, Jacksonville, for appellant.
    Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for ap-pellee.
   ROBERTS, Justice.

We here consider the constitutionality vel non of Section 903.28, Fla.Stat.1953, F.S.A., providing for the entry of judgment on a forfeited bail bond without notice to the surety. Pertinent provisions of the statute are as follows:

“ * * * The prosecuting attorney shall file a certified copy of the order of the court or judge forfeiting the same, in the office of the clerk of the circuit court of . the county wherein such order shall have been made, and ..thereupon, the judge of the circuit : court in said county shall enter judgment against the person bound by the undertaking for the amount of the penalty of said undertaking, and execution shall be issued to collect the amount of said undertaking.”

Also pertinent to the problem here presented are the provisions of Sections 903.29 and 903.30, ibid., authorizing the court to set aside-the judgment of forfeiture within thirty days “for- a reasonable cause shown” and, “upon such terms as are just * . * ” and prescribing the procedure for remission of the forfeiture.

It is the contention of appellant, a surety-company against whom a judgment of forfeiture of a bail bond has been entered under the above-quoted statute, that the. entry of judgment against it without notice and an opportunity to present its defenses was a denial of the due process of law guaranteed by Section 12 of the Declaration of Rights of our Constitution, • F.S.A., and that the provisions for a remission of the forfeiture made by Sections 903.29 and 903.30 are inadequate protection, since the 30-day period during which it can apply for a remission of the forfeiture may expire without its having had notice of the judgment entry.

This question has not heretofore been presented to this court. In other jurisdictions, such statutes appear to have been uniformly upheld in all cases wherein their constitutionality was attacked. Cf. Gildersleeve v. People, 10 Barb., N.Y., 35; People v. Lott, 21 Barb., N.Y., 130; People v. Quigg, 59 N.Y. 83; People v. Cowan, 146 N.Y. 348, 41 N.E. 26; Lang v. People, 14 Mich. 439; Risser v. Hoyt, 53 Mich. 185, 18 N.W. 611; Isgrig v. United States, 4 Cir., 109 F.2d 131; People v. Hodges, 205 Cal. 476, 271 P. 897.

In the Isgrig case, the court said [109 F.2d 133]:

“A final judgment entered against a bondsman on forfeiture of the bond cannot be said to be lacking in due process for lack of notice to the bondsman; for the bondsman makes himself a party to the cause by filing the bond as a part of the record therein, and it is a fiction of the common law that the surety is personally in attendance' upon the court whenever the accused, by ór- ’ der of the court, is bound to appear personally.”

This court has, however, upheld the validity of what is now Section 55.35, Fla.Stat.1953, F.S.A., providing for the entry of summary judgment on forthcoming bonds filed to release property from forced sale in execution proceedings, as against the contention that the statute was “unconstitutional in allowing the entering up of judgment forthwith ex parte against, the sureties thereon without any trial thereon and without giving them a chance to be heard in court.” Archibald v. Donald, 1929, 98 Fla. 698, 124 So. 175. The court said that “By executing and filing such bond, the sureties accepted the terms of the statute above quoted as a part of their contract and agreement and, by causing the bond to be filed in the cause then pending, they voluntarily made themselves .parties to such cause and brought themselves within the jurisdiction of the court for the purpose of the application of the statute in this regard.” Accord: State ex rel. Fulton Bag & Cotton Mills v. Burnside, 153 Fla. 599, 15 So.2d 324. We have also held valid the statute (now Section 78.19, Fla.Stat.1953, F.S.A.) authorizing the entry of judgment on a forthcoming ■ bond in a replevin suit without notice to the surety. Evans v. Kloeppel, 72 Fla. 267, 73 So. 180; Fariss v. Holly, 95 Fla. 360, 116 So. 763. In the Evans case the court, speaking through Mr. Justice Ellis, said [72 Fla. 267, 73 So. 187]: “The great weight of authority is to the effect that the surety by signing the undertaking becomes a quasi party to the suit and is held to have notice of all the proceedings thereafter in the suit that may affect his liability on the undertaking.”

There can be no doubt that the surety on an appearance bond in a criminal case becomes a “quasi party” in the cause. Our constitutional and statutory provisions relating to release on bail in criminal cases were designed to secure to an accused person the right to be' in the custody of a friendly jailer of his own choice rather than in' the- cold-and uncomfortable atmosphere of a prison cell. As stated in 6 Am.Jur., (Rev.) Bail, Sec. 6, p. 61, the object of bail in a criminal case “is to relieve the accused of imprisonment, and the state of the burden of keeping him, pending the trial, and at the, same time, to put the accused as much under the power of the court as if he were in custody of the proper officer, and to secure the appearance of the accused so as to answer the call of the court and do what the law may require of him.” The “dominion” of the surety over the person under bail is “a continuance of the original imprisonment.” Register v. Barton, Fla.1954, 75 So.2d 187, 188. By executing an appearance bond, the surety voluntarily assumes the technical custody of the accused person and the responsibility of making sure that such person appears to-answer the charge ' against him. This is the primary undertaking of the surety; and the purpose of the provision for the payment of a penal sum if the surety fails in this undertaking is, as in the case of all penalties, to secure the performance of the principal obligation — in this case “ ‘to secure the presence of the principal before the court for the purpose of public justice’ ”, Varholy v. Sweat, 153 Fla. 571, 15 So.2d 267, 270, and only incidentally to fatten the public coffers. Thus, the very nature of the obligation assumed by the surety is such that it should not be heard to complain that it has not had its “day in court” when it fails to produce the prisoner in court at the- appointed' time or legally excuse the default and when, by the express terms of its undertaking, it is “bound” to pay the penal sum specified therein upon such failure — particularly where, as here, provision for the remission of the forfeiture is expressly made by the statute, Section 903.29, supra.

In any event the surety in the instant case, appellant here, cannot be heard to complain of lack of due process, since the language of the court in Archibald v. Donald, supra, 124 So. 175, above quoted, would seem to be equally as appropriate to a judgment of forfeiture of an appearance bond as to a judgment of forfeiture of a forthcoming bond in execution proceedings.

The other questions presented have been carefully considered, and no reversible error has been found.

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

Affirmed.

DREW, C. J., and TERRELL, THOMAS, HOBSON, THORNAL and O’CONNELL, jj., concur.'


text:
    In re ADVISORY OPINION TO THE GOVERNOR.
    Supreme Court of Florida. En Banc.
    March 14, 1956.
   Supreme Court of Florida

E. Harris Drew, Chief Justice

Tallahassee

March 8, 1956

Division A' Division B

Justices Justices

Glenn Terrell Elwyn Thomas

Tl Frank Hobson B. K. Roberts ■

Campbell Thornal Stephen C. O’Connell

Guyte P. McCord, Clerk D. B. Mayo, Jr., Marshal

Honorable LeRoy Collins

Governor, State of Florida

The Capitol

Tallahassee, Florida

Sir:

We have your letter of 2 March 1956,. requesting, by virtue of Sec. 13 of Article IV of the Constitution, our opinion as to the interpretation of the Constitution upon a question affecting the duty imposed upon you by Sec. 6 of Article IV to see that the laws are faithfully executed.

We understand that the Judge of the Civil and Criminal Court of Record of Pinellas County has entered an order of disqualification in a case pending in that court, in which the plaintiffs are seeking damages in the sum of $4,999; that there is but one other Civil Court of Record in the State having jurisdiction of cases at law in which the amount involved does not exceed, “exclusive of interest and cost,” five thousand dollars.

We undertake to answer your questions whether or not (a) the Judge of the Civil Court of Record of Dade County may be assigned to try the case in the Civil and Criminal Court of Record of Pinellas County, and (b) whether or not a circuit judge may be designated to hear the cause.

We dealt with a similar problem in our Advisory Opinion to the Governor reported in Fla., 58 So.2d 319. A judge of a small claims court was disqualified and the act creating the court contained no provision for assignment of judges in cases of disqualification. We expressed the opinion that Sec. 38.09, Florida Statutes 1951, and F.S.A., furnished the authority for the assignment of the judge of another small claims court, provided the court over which he presided had jurisdiction as extensive as tlie court to which he was being assigned.

Although both the Civil and Criminal Court of Record of Pinellas County and the Civil Court of Record of Dade County have jurisdiction to try cases involving amounts up to $5,000, the Civil and Criminal Court of Record of Pinellas County has broader jurisdiction than the Civil Court of Record of Dade County. The former has “jurisdiction to try and determine all violations of the Criminal laws of the State of Florida constituting misdemeanors, which arise in Pinellas County”, Chapter 27258, Laws of Florida, Acts of 1951, while the latter has no criminal jurisdiction. Secs. 33.02, 33.14, Florida Statutes 1951, and F.S.A. Consequently a decision that the Judge of the Civil Court of Record of Dade County could be assigned to try a case in the Civil and Criminal Court of Record of Pinellas County would not harmonize with the opinion we have cited.

But we think that the section of the statutes which we held authorized such transfers is ample authority for your designating a circuit judge to decide the case in question. It contains no restrictions with reference to the judge to be assigned but simply provides that in the event of disqualification, the governor shall designate “another judge.” It is our view that your difficulty may in this way be overcome. Certainly no hiatus should prevent the litigants in the case from securing a prompt adjudication and we think such a situation may be avoided by the designation of a circuit judge to preside at the trial in the Civil and Criminal Court of Record in Pinellas County.

Respectfully yours

E. HARRIS DREW, Chief Justice

GLENN TERRELL,

ELWYN THOMAS,

T. FRANK HOBSON,

B. K. ROBERTS,

CAMPBELL THORNAL,

STEPHEN C. O’CONNELL, Justices.


text:
    Scott M. LOFTIN et al., Appellants, v. Ozie Lee NOLIN, a widow, Appellee.
    Supreme Court of Florida. En Banc.
    Feb. 10, 1956.
    Loft in, Anderson, Scott, - .McCarthy & Preston, Don G. Nicholson, Miami, and Russell L. Frink, Jacksonville, for appellants.
    Fowler,-White, Gillen, Yancey & Hum-key, Walter Humkey and Henry Burnett, Miami, for appellee.
   ROBERTS, Justice.

This is a railroad crossing accident case in which the jury returned a verdict in plaintiff’s favor, and the defendant railroad company has appealed. The defendant here contends (1) that the evidence showed that the negligence of the plaintiff’s decedent was the sole' proximate cause of the accident and (2) that the lower court erred in charging the jury on the doctrine of the . last clear chance. The defendant’s first contention cannot be sustained, but we have concluded that there is merit in the second.

The evidence shows that the plaintiff’s decedent was travelling at a high rate of speed — from 40 to 60 miles per hour — toward the railroad crossing. The defendant’s employees saw him coming • but thought that he was travelling fast enough to get across the track ahead of the train, which was proceeding very slowly. The conductor was in the caboose where there was an emergency brake which he was .authorized to use, and first saw the decedent when he was about 500 feet from the crossing. He thought it would be close, but that plaintiff’s decedent would “get by”. The fireman, who was sitting in the cab with the engineer (but who was not called as a witness at the trial) made a casual remark to the engineer that a car was coming when the train was at the fouling point, some 400 feet from the crossing. The engineer did not change his.rate of speed at that time. When the train was about 50 feet from the crossing, the fireman shouted to the engineer, “Hold it, he is going to hit us!”; the engineer then applied the emergency brake, but it was too late to avoid the collision. The testimony relating to the blowing of the whistle and ringing of the bell by the engineer, was contradictory, even among each party’s own witnesses.

While it is true that, ordinarily, the mere fact that a pedestrian or vehicle is approaching a railroad crossing does not require the engineer to slow up or stop the train, since the engineer’has the right to assume that the pedestrian or driver of the vehicle is in possession of his faculties “and that he will obey the instinctive law of self-preservation, by getting off the track if already on it, or that he will not get on it if already off * * * unless he sees that the party will not or cannot get or keep out of the way”, Florida Cent. & P. R. Co. v. Williams, 37 Fla. 406, 20 So. 558, 564, we think that, in all the circumstances here, it cannot be said os a matter of law that the defendant’s employees were entirely free of fault in the matter. Remembering that the defendant railroad company must overcome the presumption of negligence imposed upon it by the statute, Section 768.05, Fla.Stat. 1953, F.S.A., and that it must respond for its proportionate part of the damages, even though the plaintiff’s decedent was also negligent, Section 768.06, Fla.Stat. 1953, F.S.A., the trial judge properly refused to withdraw the case from the jury apd direct a verdict for the- defendant. Cf. Seaboard Air Line R. Co. v. Martin, Fla. 1952, 56 So.2d 509.

We are of the opinion, however, that the 'cause must be reversed for a new trial because of the error of the trial judge in charging the jury on the doctrine of the last clear chance. We have carefully reviewed our prior opinions with reference to the last clear chance doctrine, and particularly the opinions in the cases of Merchants’ Transportation Co. v. Daniel, 109 Fla. 496, 149 So. 401; Poindexter v. Seaboard Air Line R. Co., Fla., 56 So.2d 905; Seaboard Air Line R. Co. v. Martin, Fla., 56 So.2d 509.

We cannot consider the last clear chance doctrine without also considering F.S. §§ 768.05 and 768.06 F.S.A., which sections read as follows:

“768.05 Liability of railroad company
“A railroad company shall be liable for any damage done to persons, stock or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employ and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.
“768.06 Comparative negligence
“No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence. If the plaintiff and the agents of the company are both at fault the former may recover, but the amount of recovery shall be such a proportion of the entire damages sustained, as the defendant’s negligence bears to the combined negligence of both the plaintiff and the defendant.”

In addition to a review of the cases from this court with reference to the last clear chance doctrine in comparative negligence cases, we have also reviewed articles by eminent text writers on the subject, including, 16 Harvard Law Review 365 (1903); 52 Harvard Law Review 1187 (1939); 53 Harvard Law Review 1225 (1940); 47 Yale Law Journal 704 (1938). The consensus of these eminent writers is that justification for the doctrine of last clear chance passes with the adoption of a comparative negligence statute.

No good purpose could be served by quoting at length from the authors on this subject but to those who are interested, we refer them to the articles mentioned, and to 13 NACCA Law Journal 196, article é by Roscoe Pound, Editor-in-Chief, on Comparative Negligence, also Handbook of Torts, p. 408, by William L. Prosser.

We have, therefore, concluded that the doctrine of last clear chance does not apply in this case and in cases where the doctrine of comparative negligence applies. The application of the doctrine of the last clear chance in such cases .is without, reason or justification, and what we may have said in the cases of Poindexter v. Seaboard Air Line R. Co., supra; and Seaboard Air Line R. Co. v. Martin, supra, in respect to the applicability-of the doctrine of last clear chance in comparative negligence cases is hereby overruled.

For the reasons stated, the judgment appealed from is reversed and the cause remanded for a new trial.

Reversed and remanded.

DREW, C. J., and TERRELL, THOMAS, PIOBSON, THORNAL and O’CON-NELL, JJ., concur.


text:
    In re ADOPTION OF Gladys Inez SHEA, sometimes known as Gladys Inez Pridgen, a minor, by Adam D. Sheftall, Jr., and wife, Beatrice H. Sheftall.
    Supreme Court of Florida. Special Division A.
    March 14, 1956.
    Ed P. Malmberg, Daytona Beach, and J. Lewis Hall, Tallahassee, for appellants.
    Raymond, Wilson & Karl, ■ Daytona Beach, for appellees.
   HOBSON, Justice.

The situation which gave rise to these proceedings had its inception when custody' of a child was awarded by the county probation officer and the sheriff to persons who subsequently petitioned for adoption of the child, and who are appellants herein'. This award of custody was entirely without authority since it was accomplished without the sanction of the county judge, as required by Secs. 415.04 and 415.05, Florida Statutes 1949, F.S.A., then in effect.

A consent was executed by the mother of the child, and appellants filed their petition for adoption. Voluminous testimony was taken before’ a special examiner appointed by the circuit court. The adoption proceedings terminated in an order dismissing the petition. This order was based upon findings that “the welfare of the minor child sought to be adopted does not warrant depriving her natural parents of her custody” and that the natural parents “are fit and proper persons to have custody of the said minor child and are able to give her the care required.” It was ordered that the petitioners deliver custody of the child to its natural parents. The order of the circuit court was based upon the testimony reported by the special examiner, depositions filed in the cause, and recommendations of the State Welfare Board.

Appellants contend that the welfare of the child will best be served by the granting of the petition for adoption, that the mother is bound by the consent which she executed, and that there is not sufficient evidence in the record to sustain the mother’s contention that the consent was obtained by fraud. We have reviewed the record and find that it contains competent substantial evidence that the consent was obtained by fraud, duress, or both. Since we have made this determination, the case is controlled by Lambert v. Taylor, 150 Fla. 680, 8 So.2d 393, and the child is therefore shown not to have been a proper subject for the adoption proceedings. Moreover, we find that the record amply supports the findings of the chancellor which we have stated above.

Affirmed.

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


text:
    Dorothy H. FITZGERALD (Lovvern), Appellant, v. Madison J. FITZGERALD, Appellee.
    Supreme Court of Florida. Division A.
    March 14, 1956.
    Maurice Wagner, Daytona Beach, for appellant.
    J. Robert Durden, Louis Ossinsky, and Horn & Ossinsky, Daytona Beach, for ap-pellee.
   PER CURIAM.

This cause came on to be heard on the motion of appellees to affirm the judgment appealed from pursuant to 30 F.S.A. Rule 38 of the Rules of this- court and- it appearing to the court from an éxamination 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., and TERRELL, HOB-SON and THORNAL, JJ., concur.


text:
    R. L. FAUST, Appellant, v. Myrtle LONG, Mary Edna Brooks and Clifford H. Long, Appellees.
    Supreme Court of Florida. Special Division B.
    March 14, 1956.
    A. G. Campbell, Jr., De Funiak Springs, for appellant.
    William Eisher of Fisher & Hepner, Pensacola, for appellees.
   PER CURIAM.

Affirmed on authority of Wells v. Thomas, Fla., 78 So.2d 378.

DREW, C. J., THOMAS and ROBERTS, JJ., and PATTERSON, Associate Justice, concur.


text:
    STATE of Florida ex rel. Mary FREEMAN, Appellant, v. Thomas J. KELLY, as Sheriff of Dade County, Florida, Appellee.
    Supreme Court of Florida. Division A.
    March 16, 1956.
    Carr & O’Quin, Miami, for appellant.
    Richard W. Ervin, Atty. Gen., and David ■U. Tumin, Asst. Atty. Gen., for appellee.
   TERRELL, Justice.

Appellant was arrested on a warrant charging murder in the first degree. At a preliminary hearing she was bound over for appearance before the Circuit Court on condition that she post bond in the sum of $10,000, which she promptly did. Soon thereafter she was indicted for murder in the first degree. She voluntarily surrendered to the sheriff and promptly petitioned the appropriate court for writ of habeas corpus to allow her bond on the ground that proof of guilt was not “evident or the presumption great.” The writ was issued, return thereto was entered and counsel stipulated that in lieu of calling witnesses, the charge be considered on the transcript of testimony taken at the preliminary hearing. On consideration the court quashed the writ and remanded appellant to custody. Appeal was granted and the cause was accelerated under 30 F.S.A. Rule 43 of the Rules of this court.

The sole point for determination is whether or not the trial court committed error in quashing the writ of habeas corpus and remanding the appellant to custody of the sheriff without bail.

Appellant is charged with a capital offense but if proof of guilt is not “evident or the presumption great”, she is entitled to bail. Section 9, Declaration of Rights, Constitution of Florida, F.S.A. We have examined the evidence and we do not think there is a clear showing that appellant was guilty of the degree of homicide for which she was charged. State ex rel. Young v. Kelly, Fla., 66 So.2d 252; State ex rel. Connor v. Sullivan, 160 Fla. 844, 36 So.2d 828; Deeb v. Gandy, 110 Fla. 283, 148 So. 540; Russell v. State, 71 Fla. 236, 71 So. 27; Mayo v. State, Fla., 71 So.2d 899.

The last cited case is apposite because we there held that defendant’s version of the homicide can not be ignored where there is absence of other evidence legally sufficient to contradict his explanation. Appellant and deceased were the only witnesses to the homicide and the tenor of appellant’s evidence is that she shot in self-defense.

We think appellant was entitled to the relief prayed for so the cause is reversed with directions to grant bail.

Reversed with directions.

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


author: THOMAS, Justice.

text:
    A. B. CONNOLLY, Petitioner, v. Mary Z. CONNOLLY, Respondent.
    Supreme Court of Florida. Division B.
    March 14, 1956.
    Ray M. Watson, Miami, for petitioner.
    No appearance fo-r respondent.
   THOMAS, Justice.

On 20 June 1940 the appellee was granted a divorce from the appellant and was awarded the custody of the three sons of the parties. It was decreed, in accordance with the stipulation of the litigants, that the appellee should receive no alimony,- but the appellant was ordered to pay to her the sum of $75 each month until “all of the said children have- reached their majority.”

Almost fifteen years later the appellant petitioned the court for a modification of the final decree representing that in 1944 the periodic payments had been reduced to $50 monthly, one of the sons having become of age, and that meanwhile another son had also reached his majority. The youngest son, according to the petition, had enlisted in the navy for a period of two years, was receiving from the government food, housing, clothing, medical care and compensation of $200 a month, and at the conclusion of his enlistment would be twenty-one and entitled to five years’ schooling at the expense of tire government.

The petitioner prayed relief from any further payments. The chancellor denied the petition.

The appellant filed a notice of appeal which because of the provisions of Section 59.45, Florida Statutes 1953, and F.S.A., we will consider a petition for cer-tiorari, inasmuch as the order attacked was entered subsequent to the final decree, Section 59.02(2) and (3), Florida Statutes 1953, and F.S.A.

The appellant argues that by the very terms of the decree the allotment was made for the “support of the children” and that, clearly, the appellee is no longer put to any expense for the purpose so the reason for the award has ceased.

The argument is forceful but it lacks support in the record. It is based solely on representations in the unsworn petition for modification without regard for the recital in the chancellor’s order. He stated that he had “read and considered the * * * petition” and had “heard the sworn testimony of the plaintiff [appellee] and her witness * * No record of this testimony is brought to us and, as we construe the order, no testimony was introduced by the defendant, appellant, which could have been brought.

Under the rule relative to certio-rari the petition “shall be accompanied by a certified transcript of the record of the proceedings the petitioner seeks to have reviewed or so much thereof as is essential.” Supreme Court Rule No. 22, 30 F.S.A. It was the appellant’s duty to exhibit to this court a transcript of the testimony to which the chancellor referred. For aught this court knows the allegations of the petition were disproved. One challenging in this court the correctness of a chancellor’s ruling is bound to show error and this cannot be accomplished if we are not shown the record on which the decision was founded.

The matter is resolved into the question whether or not we may upset the ruling of a chancellor based on testimony of which we are ignorant by accepting at face value the unverified averments of a petition. We think not. Such procedure would be opposed to our numerous decisions on the subject. Cohen v. Cohen, Fla., 70 So.2d 362.

The petition for certiorari is denied.

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