author: HOBSON, Justice.

text:
    Dr. Robert H. MONTGOMERY and Dr. Arthur P. Buchanan, Appellants, v. Cynthia Ann STARY, an infant, by Earl E. Stary, her father and next friend, Appellee. Dr. Robert H. MONTGOMERY and Dr. Arthur P. Buchanan, Appellants, v. Earl E. STARY, Appellee.
    Supreme Court of Florida. Special Division A.
    Dec. 14, 1955.
    Rehearing Denied Jan. 13, 1956.

      T. Paine Kelly, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant for Robert H. Montgomery.
    G. T. Shannon of Shackleford, Farrior, Shannon & Stallings, Tampa, for appellant Arthur P. Buchanan.
    Cody Fowler, James E. Thompson and Margaret Deaton of Fowler, White, Gillen, Yancey & Humkey, Tampa, for appellee.
   HOBSON, Justice.

This is an appeal by defendants from adverse judgments of the circuit court in two medical malpractice cases. One of the actions was brought on behalf of an infant, Cynthia Ann Stary, by her father and next friend, Earl Stary, and the other was brought by the father, Earl Stary. The two actions were consolidated in the trial court and upon this appeal.

The complaints in both cases allege that the appellant doctors “negligently and carelessly suffered and permitted” Cynthia Ann Stary to be seriously and permanently injured, in that her left arm, fingers and hand were so severely scalded and burned that the fingers and thumb were lost.

The evidence shows that Dr. Montgomery, the Stary family doctor, took care of Mrs. Stary in her pregnancy. In June, Dr. Montgomery told Mrs. Stary that he was going on vacation the month of September, when the baby was expected. He told her he was keeping Dr. Buchanan informed of her condition and that in case she could not contact him (Montgomery) she should call Dr. Buchanan. Mrs. Stary testified Dr. Montgomery told her that if she wished him to deliver the baby she could have a caesarean operation, as a matter of convenience. Mrs. Stary agreed, the operation was performed by Dr. Montgomery, assisted by Dr. Buchanan, and the child was born about 8:20 a. m., on August 26, 1952, about 20 days before her birth would normally have occurred. It was a small baby, weighing less than seven pounds. After being cared for by the head nurse and examined by Dr, Montgomery and found apparently normal, the baby was removed to the nursery. At about 9:45 a. m. it was discovered that the child’s left arm was blanched chalk white.' Dr. Montgomery ordered hot towels, which were produced. Dr. Montgomery wrapped these towels around the baby’s hand and arm, and within three or four minutes from the time the first towel was applied the color of the baby’s arm began to improve. While he was applying the hot towels, Dr. Montgomery called Dr. Buchanan, who immediately came to the nursery, observed the treatment, and apparently concurred in it.

After several minutes of treatment. Dr. Montgomery telephoned a Dr. Hitchcock, a pediatrician, in Orlando, and had a conversation with him, after which Drs. Buchanan and Montgomery conferred outside the nursery door. The treatment was continued. By 10:30 a. m. the arm was pink to the elbow. At 11:30 a. m. the color had descended to the lower third of the forearm. Thereafter a blister appeared near the middle of the inner side of the forearm. This blister increased in size, and the hot pack treatment was discontinued at 5:00 p. m. By 8:00 p. m. of the same day, the hospital records show that the thumb and fingertips of the left hand appeared swollen and cya-notic.

The baby was born on Tuesday. On Friday of that week Dr. Montgomery left on vacation and Dr. Buchanan took over entirely. Mrs. Stary was discharged from the hospital on September 1, 1952. About September 11, Dr. Buchanan told the parents that there was a slight burn on the baby’s arm and that the' fingertips might require amputation. He suggested that they take the 'baby to a Dr. Douglas in Orlando, as they did. In Orlando, they learned that gangrene had set in. On September 19, the baby was admitted to an Orlando hospital for about a week and was thereafter taken to Orlando daily for about a month. The fingers and thumb of the left hand were virtually lost, and Mrs. Stary took the baby to Chicago in December and placed her in the care of a surgeon, a plastic surgeon, and a pediatrician. These doctors recommended future treatment and surgery to make the hand as functional as possible. The required surgery is complicated and difficult.

The jury returned verdicts in favor of Earl Stary for $5,000 and in favor of the infant for $10,000. Appellants first contend that the evidence is insufficient to sustain these verdicts. Much of the voluminous record and briefs in this case is devoted to testimony and argument as to whether or not the application of the hot pack treatment to the infant’s arm and hand under the circumstances was acceptable medical practice, or whether some other treatment should' have been used. We wish to make clear at the outset our view that the principal question to be resolved on this appeal is not whether the treatment prescribed was proper or improper. It is whether there is competent substantial evidence to support the verdicts upon the theory that the treatment was negligently applied, with the result that the fingers and thumb were needlessly lost by reason of the application of extreme heat rather than from causes which the treatment could not eliminate.

If there was negligence, it must have occurred in the course of the hot pack treatment, or between about 9:45 a. m. and 5:00 p. m. on the date of the baby’s birth, and it is upon this period that our primary attention must focus. It is not suggested that the delivery of the baby was not properly accomplished, nor is it contended, as it was in Baldor v. Rogers, Fla., 81 So.2d 658, that any action should have been taken by the doctor after the treatment selected was substantially completed.

There was testimony from which the jury could have found the following facts:

When the loss of color in the baby’s arm was discovered, Dr. Montgomery commenced to apply hot towels. The baby began to scream and wail. A nurse handed the towels to Dr. Montgomery through the window of the nursery, having soaked them at a hot water faucet which was located a few feet from the nursery. The towels were steaming hot. The nurse was “putting the hot towels under steaming hot water, wringing them out on the ends” and handing them to Dr. Montgomery, who was immediately applying them to the baby’s hand and arm. The water used was “hot faucet water as hot as you could get out of the faucet.” Dr. Montgomery personally changed the towels every two minutes for about fifteen minutes. During the call to Dr. Hitchcock and the conference with Dr. Buchanan, the nurse had applied the towels. Dr. Montgomery told the nurses that he wanted the towels hotter, he wanted them steaming hot. Before leaving the nursery, about a half hour after the treatment had commenced, Dr. Montgomery directed the nurse to change the towels about every ten minutes instead of every two or three, as had been done up to that time.

As the pink color descended, the towels were correspondingly lowered. Since the upper third of the forearm appeared normal by 11:30 a. m., it appears that the lower forearm, wrist and hand were wrapped in steaming hot towels for several hours longer than the remainder of the arm. Dr. Buchanan visited the nursery several times throughout the morning, observed the treatment, and did not change it. The nurse reported the baby’s condition from time to time. When Dr. Montgomery.left the hospital at about noon or 12:30, the baby’s arm appeared normal to the middle of the forearm, below which a blister had formed. Dr. Montgomery testified:

“A. When I left about 12 or 12:30* the baby’s arm was essentially normal down to approximately here (indicating).
“Q. When you say ‘here’ — A. Down to the middle of this lower,forearm, this is the forearm, down to the middle of the forearm. The remaining (sic) of the hand was spots of pink and spots of cyanotic or bluish pink, various shades of blue, it was mottled and it had the blister about so.”

He instructed the nurse to continue the application of hot towels every ten minutes.

The hospital records show a blister on the baby’s arm at 2:00 and at 2:30 the head nurse called Dr. Montgomery and told him about it. His orders were to apply vaseline strips (used for burns) and continue the hot towel treatment. By 3:30 the blister had increased in size. Dr. Montgomery did not return to the hospital until 5 :00, and at that time he ordered the treatment discontinued.

At 9:30 p. m. on the same day, the nurses contacted Dr. Montgomery, who ordered that the baby be given streptomycin “and continue vaseline strips, apply to left hand.” The next day Dr. Montgomery ordered Furicaine ointment, which is used for burns, "applied to the left hand and arm. On the same day (Wednesday) Dr. Montgomery admitted to the baby’s mother that he had burned the baby’s arm, but said “it-was just a slight burn and you won’t have, anything to worry about.” On Friday of that week, just before he left for his vacation Dr. Montgomery apologized to Mrs. Stary for burning the baby’s arm, but said “it isn’t anything serious, the worst that can happen is she will lose her fingernails because the blood vessels are broken under them.”

In sum, the jury could have found that for seven and one half hours the baby’s hand, wrist and lower arm were wrapped in steaming hot towels continuously, every two or three minutes for the first half hour and every ten minutes thereafter, and that the treatment was continued without respite in spite of increasing ' evidence of burns. The jury could further have found from the medical testimony that the skin of a premature baby, such as this, is thinner and offers less protection than the skin of a baby delivered at the end of the natural period of gestation. It could also have found that wet heat continuously applied to tissue is cumulative, that the baby’s tiny thumb and fingers would have been heated through more rapidly and thoroughly than the remainder of the arm, that Dr. Montgomery admitted the burns, and that subsequent treatment was entirely consistent with the theory that the arm and hand had been burned.

Appellant Buchanan contends that his own participation in the administering of the treatment was insufficient to justify the verdicts against him. It will be recalled that he concurred in the treatment given, and was present in the early stages when Dr. Montgomery was applying the towels. This of itself might not have been a predicate for liability. But he admitted on the stand that he came back and examined the baby once in the middle of morning, and Head Nurse Birmingham testified that Dr. Buchanan came back several times during that morning. He did not apply or feel of the towels. The jury could have found that by his actions Dr. Buchanan elected to participate in supervising the treatment given the child, and that he failed to use due care in not checking the temperature of the hot applications.

This brings us to the question of whether it was sufficiently proved that the heat which was applied proximately caused the loss of the fingers and thumb.

The original blanched appearance of the arm was caused by a failure or restriction of the blood supply to that member, occurring from unknown causes. Appellants contend that it was failure of circulation, and not the heat, which caused the gangrene and sloughing off of the lost members.

Gangrene is merely the death of tissue, and thus, by definition, may be caused by burning as well as by continued failure of circulation. The medical testimony as to the cause of the death of tissue in this case is in conflict. The jury must have found that it was proximately caused by burning, and our inquiry must be directed to whether this determination is supported by competent substantial evidence.

Dr. Nicholas, a surgeon from Chicago, called as a witness by plaintiff-appel-lees, had examined the baby three times, the first occasion being about three months after her birth. His qualifications as a surgeon were extensive and unquestioned. In connection with his first examination of the child, he testified in part as follows:

“Q. Did the baby have any scars on her left arm at that time? A. Yes there was a deep scar present on the forearm in this case and the scar of course was recent and showed the appearance of a burned scar.
“Q. Was it in your opinion a burned scar ? A. It was, yes I have seen many children with burns and I had the opportunity. to work on burned surfaces in military hospitals for a year and a half in England where we had cases sent from all over the United Kingdom and Europe and I would say this is a burn scar. In addition to that, the fingers had just at this time separated and come off and the ends where the bones had fallen off were just at the point of healing and that was when I saw this baby for the first time.
“Q. Were there any burn scars on the hand? A. Yes there are burn scars on the hand, they can be seen at this time although they are not so prominent as they were close to the time of the burn.”

He further testified that he had caused x-rays to be made, and that there was bone damage from heat, and he gave his opinion that “the scars and the loss of fingers and thumb were due to burning.” Upon cross-examination, Dr. Nicholas was asked for facts upon which his opinion was based, and he testified that the history of the case given him by the family was one relevant factor. Examined about this history, he said he had been told that the baby’s fingers were swollen and blistered some time earlier than other evidence shows them to have been. This other evidence was not brought to his attention for its possible effect upon his opinion, however, and we do not consider the disparity sufficient to necessitate a reversal.

Several doctors called as witnesses by appellants expressed the opinion that the loss of the fingers was caused by the original interruption of circulation, but this was a jury question which was resolved in favor of appellees. Compare Roberts v. Wofford Beach Hotel, Fla., 67 So.2d 670.

It follows, and we hold, that the jury was authorized to find, on this record, that the towels were applied too hot, as the appellant doctors knew or should have known, and that the injuries to the infant were proximately caused by this negligence. There was no testimony that it was necessary to bum off the extremities to save the child’s arm. To the contrary, the consensus of medical testimony was to the effect that where the heat treatment is used, the temperature should not be excessive. Generally the recommended temperature was placed at or near normal body temperature.

Appellants next contend that the trial court erred in ruling that Dr. Montgomery could not testify as to what Dr. Hitchcock, the Orlando pediatrician, told him over the telephone shortly after treatment was commenced. Dr. Hitchcock was not called as a witness. The question objected to was “Will you tell us, please, what Dr. Hitchcock told you with reference to further treatment of the child?” The trial court sustained a hearsay objection. Appellants argue that the testimony sought to be adduced was not hearsay, because it was not offered to prove the truth of the matter asserted. It was not, however, made clear to the trial judge, nor is it clear to us, precisely what it was offered to prove. After the ruling on the objection, there was no proffer of expected testimony. No unobjectionable purpose was apparent from the question, and the question itself did not suggest an answer which would have been relevant for any purpose aside from such independent testimonial value as the answer may have had as tending to approve the treatment administered by Dr. Montgomery. For such purpose Dr. Hitchcock should have been called as a witness. Under similar circumstances we have held that we cannot review the ruling of the trial court. Berger v. E. Berger & Co., 76 Fla. 503, 80 So. 296. See also Atlantic Coast Line R. Co. v. Shouse, 83 Fla. 156, 91 So. 90. On its face, the question sought to elicit hearsay, and would have deprived appellees of their right to cross-examine Dr. Hitchcock. No error in this ruling has been made to appear.

Appellants next urge that the trial court erred in overruling their objections to testimony by three physicians from Chicago and its environs as to the propriety and acceptability of the treatment administered to the infant in this case, in the absence of a showing that they had practiced in a community similar to Lake County, Florida. The rule contended for, as stated by counsel for appellant Montgomery, is that “no expert testimony is admissible to show a failure on the part of a physician to employ a proper or acceptable treatment unless the expert is first qualified regarding his knowledge of the practice and treatment u'sually employed by physicians in the particular lo-. cality involved, or at least some similar community.” Appellees point out that this rule was originally formulated when communications were slow or virtually non-existent, and that it has lost much of its significance today with the increasing number and ex-, cellence of medical schools, the free interchange of scientific information, and the consequent tendency to harmonize medical standards throughout the country. We believe appellees’ arguments to be well taken, but we do not in any event consider the rule to necessitate a reversal under the facts of this case. Of all of the testimony of the three Chicago doctors, (two testified by deposition and one, Dr. Nicholas, in person) only that of Dr. Nicholas, on proximate cause, was needed to sustain the verdicts of the jury. Proximate cause does not change with the locality. The jury could have found, as a matter of their own common knowledge and experience, and independent of expert testimony as to acceptable medical practice, that the fingers and thumb of a premature infant were needlessly burned off, and that this could not be considered acceptable medical practice in any community. See Benson v. Dean, 232 N.Y. 52, 133 N.E. 125; Vergeldt v. Hartzell, 8 Cir., 1 F.2d 633; Wilson v. Martin Memorial Hospital, 232 N.C. 362, 61 S.E.2d 102; Richeson v. Roebber, 349 Mo. 132, 159 S.W.2d 658, 141 A.L.R. 1; Mehigan v, Sheehan, 94 N.H. 274, 51 A.2d 632; and Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818.

Appellant Montgomery next contends that the trial court erred in refusing to give certain' requested charges. We have examined the charge given as a whole, Dowling v. Loftin, Fla., 72 So.2d 283, and find that it adequately covers the law relevant to the issues in this case. There is no error.

These are extremely difficult cases, and pathetic in their implications. The principal questions, however, have been resolved by the jury under proper instructions. It follows that the judgments appealed from must be, and they are hereby,

Affirmed.

DREW, C. J., TERRELL, J., and STAN-LY, Associate Justice, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ermine M. OWENBY, etc., et al., Appellants, v. CITY OF QUINCY, a municipal corporation, Appellee.
    Supreme Court of Florida. Special Division A.
    Dec. 20, 1955.
    W. J. Oven, Jr., Tallahassee,, for appellants. ;
    Alton M. Towles, Quincy, for appellee.
   PER CURIAM.

The motion to affirm judgment which was filed in this cause is grounded upon the proposition that an inspection of the record will affirmatively show “that the findings of the' trial' court are supported by the evidence, and that there is sufficient and substantial evidence in the record to support the findings of the trial judge”. We deem it pertinent to observe that we do not consider it appropriate to file a motion to affirm judgment in a case such as this wherein it is necessary for this court to examine the entire transcript and consider the case as fully as would be ultimately necessary for proper disposition of the matter. Our rule permitting.' a motion to affirm judgment does not, as we construe it, contemplate a motion of the character here under consideration which requires that we give the same attention to the case as would be necessary for us to give to it should it follow its regular course on appeal.

The motion to affirm judgment is hereby denied.

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


author: TERRELL, Acting Chief Justice.

text:
    The STATE of Florida, Appellant, v. DADE COUNTY, Appellee.
    Supreme Court of Florida. Special Division A.
    Dec. 20, 1955.
    George A. Brautigam, Miami, for appellant.
    J. Mark Wilcox/ Miami, for appellee.
   TERRELL, Acting Chief Justice.

This appeal is from a decree validating a proposed bond issue of Dade County Port Authority. The purpose of the bonds is to construct addjtional hangars and an office building for National Air Lines pursuant to the same lease agreement we were confronted with in State v. Dade County, Fla., 62 So.2d 404. The said lease agreement provided for additional construction from time to time upon request of National Air Lines.

The appeal having been perfected, ap-pellee moves to affirm the judgment as provided by 30 F.S.A. Rule 38 of the Rules of this Court. We have examined the record and in our opinion the questions raised are concluded by State v. Dade County, supra. Since this is the case, it is manifest that they require no further argument so it becomes appropriate to invoke the provisions of Rule 38 to affirm the judgment. Cooksey v. Zimmerman, Fla., 85 So.2d 593.

The motion to affirm is accordingly-granted on authority of Cooksey v. Zimmerman, supra, and the judgment appealed from is affirmed on authority of State v. Dade County, supra.

Affirmed.

O’CONNELL and BUFORD,. JJ., and DICKINSON, Associate Justice, concur.


author: TERRELL, Justice.

text:
    B. Babe SHARGAA, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division A.
    Dec. 20, 1955.
    Taylor, Boehme & Yocom, Miami, for appellant.

      Richard W. Ervin, Atty. Gen., Bart L. Cohen, and Jos. P. Manners, Asst. Atty. Gen., for appellee.
   TERRELL, Justice.

Appellant was tried and convicted in the Criminal Court of Record, Broward County, on the following information:

“ * * * that B. Babe Shargaa on the 24th day of December A.D. 1953, in the County and State aforesaid, did then and there unlawfully utter, issue and deliver to Bernard Goldman a check and written order on a bank for the payment of money, which said check and written money order is in words and figures following, to-wit:
“No. 2359
Miami Beach, Florida
Dec. 24, 1953
Pay to the Order of Bernard Goldman $100.00
The Sum .... 100 Dols 00 Cts Dollars
Miami Home Improvement Company
/s/ B. Babe Shargaa
The Miami Beach First National Bank Miami Beach, Florida the said defendant well knowing at the time of so uttering, issuing and delivering such check and written order that the maker and drawer thereof did not have sufficient funds on deposit in or credit with such bank sufficient to meet and pay the same on presentation, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.”

He was adjudged to be guilty, was sentenced to serve three months in the county jail and has appealed from that judgment.

The first question is whether or not in a prosecution for uttering a worthless check, when the state’s only witness testified on direct examination as to a “business arrangement” with defendant, should the court on cross-examination preclude defendant from further examination as to said arrangement.

The record does not justify the question proposed but rather tends to show that the attorney for appellant was permitted to submit the “business arrangement” of defendant and the witness to the jury. The evidence shows that defendant managed the financial affairs for repair and remodeling several houses owned by a Miss Annie Johnson. It appears that appellant paid the prosecuting witness from week to week certain amounts to cover weekly bills and payroll for construction work. Appellant did not show the relevance of the business arrangement. The transcript shows that he was permitted to go into the business arrangement sufficiently to satisfy said requirements on cross-examination. If he wanted more, he should have made the prosecuting witness his own.

The second question is whether or not the evidence of guilt under the statute was such that the court should have directed a verdict for the defendant.

Section 832.05(2), Florida Statutes, F. S.A., is as follows:

“It shall be unlawful for any person, firm or corporation to draw, make, utter, issue or deliver to another any check, draft, or other written order on any bank or depository for the payment of money or its equivalent, knowing at the time of the drawing, making, uttering, issuing or delivering such-check or draft that the maker or drawer thereof has not sufficient funds on deposit in or credit with such bank, or depository with which to pay the same on presentation; * * *.”

The state proved the issuance of the check in question, that the prosecuting witness deposited'it in his bank account and that it was returned marked “insufficient funds.” It was offered in evidence. This was sufficient to prove the state’s case under the quoted statute.

Section 832.05(5), Florida Statutes, F.S.A. (1953 worthless check act), also has a bearing on the question, the pertinent portion of which is as follows:

“ * * * In all prosecutions under this section, the introduction in evidence of any unpaid and dishonored check, draft or other written order, having the drawee’s refusal to pay stamped or written thereon, or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or uttering of said check, draft, or other written order, * * * or the drawing, making, uttering or delivering of a check, draft or written order, payment of which is refused by the drawee, shall be prima facie evidence of knowledge of insufficient funds in or credit with such drawee; * *

Under this statute, it is immaterial whether any consideration was given for the check or whether it was ultimately redeemed by appellant. The statute also makes the introduction of the check prima facie proof of scienter. Appellant contends that the information fails to charge a crime, in that it does not allege affirmatively that the money to meet the check was not in fact on deposit. There is no merit to this contention. The information alleges that “said defendant well knowing at the time of so uttering, issuing and delivering such check and written order that the maker and drawer thereof did not have sufficient funds to meet and pay the same on presentation.”

It is last contended by appellant that the “meat” of the case is the distinction between the utterance of a civilly and a criminally worthless check. If there is a difference appellant does not point it out.

Section 832.05(5), Florida Statutes, F.S.A., appears to answer this contention. The constitutional validity' of the worthless check act or the prima facie presumption created therein is only indirectly raised though the question is not materially different from the second question raised. The constitutionality of a “prima facie presumption” statute was recently discussed in Jefferson v. Sweat, Fla., 76 So.2d 494, 497. In that case, on petitition for rehearing, appellant was released for failure of the state to prove corpus delicti but the applicable part of the opinion to the present case was not disturbed. There is no question that the corpus delicti was proven here. Prima facie presumption goes only to establish guilty knowledge and not corpus delicti.

The judgment appealed from must be, and is hereby,

Affirmed.

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


author: WILLIAM P. ALLEN, Associate Justice.

text:
    Al BRENNER, Harvey Brenner, Abe Danches, Mabel T. Brenner, Alice Danches, and Louise Brenner, Appellants, v. Charles SMULLIAN, Appellee.
    Supreme Court of Florida. Special Division A.
    Dec. 14, 1955.
    Rehearing Denied Jan. 26, 1956.

      Milton M. Ferrell and J. M. Flowers, Miami, for appellants.
    Irwin E. Kott, of Myers, Heiman & Kap-lan, Miami, for appellee.
   WILLIAM P. ALLEN, Associate Justice.

This case is an appeal from the Circuit Court of Dade County, enforcing certain liens against the owners of the property in the City of Miami Beach, Florida.

The bill of complaint was brought to foreclose eight mechanics’ liens aggregating approximately $24,000. All of the liens' prior to suit were assigned to the pláintiff below, appellee here, Charles ' Smullian, The appellants, as lessors, leased the real property involved to Alton Road Catering Company, which lease contained a covenant upon the part of the lessee not to make any changes or alterations without the consent of the lessors. The original lessee assigned the lease to Ciro Operating Company, a Florida corporation. The sub-lessee began to make improvements without the consent of lessors and was stopped by the lessors from proceeding with the work of repairing and altering the premises.

The sub-lessee and the lessors entered into a modification of the lease, after which the sub-lessee, Ciro Operating Company, proceeded with the changes that had been stopped by the lessor.

The liens in this case accrued primarily from the furnishing of materials to the job in question and certain specialized work done on the premises.

The first question involved in this case is whether or not under the original lease, the amendments thereto and the facts involved in the case, the sub-lessee was required by the lessor to do the work out of which these liens accrued.

Section 84.03(2), Florida Statutes, F.S.A. provides:

“Except as provided in §§ 84.12 and 84.13, such liens shall extend to, and only to, the owner’s right, title or interest existing at the time of the visible commencement of operations or thereafter acquired in the real property (not exceeding forty acres of land). When an improvement is made by a lessee, in accordance with a contract between such lessee and his lessor, liens shall extend also to the interest of such lessor, If any part of the real property subject to such liens be removed before the discharge thereof, such removal shall not affect the rights of lienors in respect to either the remaining real property or the part so removed.”

The above section has been construed by this court to make the lessor’s interest in the property liable for any construction work done by the lessee only if the lease agreement required the lessee to make the alterations or to effect the improvements involved. An acquiescence on the part of the lessor to the improvements does not render the interest of the lessor liable but affects only the interest of the lessee in the premises.

In the case of Masterbilt Corporation v. S. A. Ryan Motors, Inc. of Miami, 149 Fla. 644, 6 So.2d 818, this court held that an instrument whereby the lessor authorized lessee to remodel leased premises which had been used as automobile display room to a place suitable for a restaurant in accordance with plans prepared by an architect was insufficient to establish a “lien” in favor of the contractor which contracted with sub-lessee for the remodeling, where signature of neither the contractor nor the sub-lessee appeared on the instrument and consent to remodel did not grant to contractor authority to do the work and it was not shown that lessor or lessee knew or had negotiations with the contractor incident to the alterations. In the above case the repairing of the premises was done by a sub-lessee and the contract was between the plaintiff contractor and the sub-lessee. In its opinion, the court said, 6 So.2d at page 820:

“The owner’s consent for alterations of the building so that the same could be used as a restaurant was first to be obtained in writing as a prerequisite.. The owner simply examined the plans and specifications as prepared by the architect and granted its formal approval. The consent of the owner for the improvements according to the plans did not confer on or grant to the Masterbilt Corporation the authority to do the work. In fact, it nowhere appears that the owner of the property, or its lessee, knew or had negotiations with it in any manner incident to the alterations. If the owner was to obligate its property to the lien of the act, certainly some instrument in writing should have been prepared and signed. Subsections (1) and (2) of Section 3 of Chapter 17097 provide an attaching date of the lien and the extent thereof.
“The Masterbilt Corporation had no agreement or contract with the owner, or its lessee, for the furnishing of labor and materials and the construction work necessary to convert the show room into a place suitable for a restaurant. If the appellant desired to create a lien on the property as against the owner, notice to the owner was necessary in accordance with the several provisions of Section 4, in the absence of a contract between the contractor and the owner.”

There is no contention on the part of the parties to this action that the original lease authorized or permitted the lessee to alter the premises. After construction had been started in violation of the original lease and the sub-lessee and his contractor had been stopped, the parties agreed on a modification of the lease. On page 24 of the transcript, shown as plaintiffs’ Exhibit A, appears a modification of the lease which recites that the lessor had previously entered into a lease dated October 11, 1950, with the Alton Road Catering Company as lessee, and the said lease had been assigned to Ciro Operating Company, and that the parties now desire to make certain modifications. Paragraph 3 of the contract, Tr. 25, provides:

“The lessee has asked permission of the Lessor to make certain additions and alterations to the demised premises and the parties hereto are about to enter into an agreement simultaneously herewith to cover that matter.”

This paragraph then proceeds to cover certain questions involving taxation, etc.

On page 27 of the transcript appears plaintiff’s Exhibit C, which was the agreement entered on the same date between the original lessors and owners of the property and Ciro Operating Company, the sub-lessee. This agreement provides :

“Whereas, the parties hereto have this day entered into a Modification of Lease covering premises at 1827 Al- . ton Road, Miami Beach, Florida, and
“Whereas, the second party desires to make certain additions and alterations to said premises, and
“Whereas, the first parties will consent to said alterations and improvements being made upon the terms and conditions hereinafter set forth.”

The lease then provides that the second party at its own cost and expense will make and complete alterations in accordance with plans and specifications prepared by an architect who had drawn these plans before this instrument was entered into. Section 2 required the sub-lessee to enter into a fixed contract with the G. E. Construction Company, who had been selected by the second party for the completion of said construction at a cost of approximately $30,000, and, as a part'of the agreement, the second party, the sub-lessee, was immediately to make payment to the said G. - E. Construction Company of an aggregate sum of not less than $25,000, and that the contractors would specifically agree to accept the personal credit of the second party for the difference between said sum of $25,000, and the actual cost of said alterations, and, in addition thereto, the sub-lessee would deliver a duly executed release of lien from the general contractor for the protection of the first parties, the owners. The contract in Section 3, on page 28 of the transcript, provided that all additions, alterations and improvements made to the premises should belong to and become the property of the owners (the original lessors) and should not be removed from the premises. Paragraph 4, on page 29 of the transcript, provides :

“The south wall of the demised premises as described in the original lease has been disrupted by the severance of said property from the previously existing Alton Dade Hotel, which was a connecting structure. As a result of said severance a. portion of the premises originally demised was removed and as a consequence said space .allocated for waiter’s dressing rooms was made not available to the lessee. Consequently the second party shall provide the additional construction necessary to provide the waiter’s dressing rooms and upon the completion of said structure and satisfactory proof that the same has been paid for, the Lessee shall become entitled to a credit in the sum of $2,000.00 upon the next maturing installment of rent. * * * ”

Paragraph 5 on page 30 of the transcript provides:

“Prior to termination of the lease between the parties and removal by the Lessee from the premises, the Lessee (who is also the second party hereunder) shall/ at its own cost and expense, erect a partition within the demised premises approximately four feet from' the existing north wall so as to provide a service doorway entering from Alton Road and continuing through an enclosed passageway to the rear of.the existing building. The second party is about to proceed with construction which does not include this passageway, and therefore, the first parties shall be entitled to require the second party to reconstruct and alter the premises to provide said enclosed passageway at or before the termination of the Lease.”

The record shows that the cost of improvements involved in this job increased from the original estimate of $30,000 to a final total of $62,894 plus a ten per cent overall cost, most of which, it was testified to, was because of the owner’s, appellants, requirements. The Master’s report on page 50 of the transcript states:

“Mr. Brenner insisted that provisions be made too for a direct entrance-from the street on the north side .of the building; that dressing rooms along the south side should be removable for future stores should the lease terminate; that space should be provided for a dressing room and toilet facilities for the employees, which required the erection of a new building on the rear of the premises, installation of doors, and other items. These matters were not contemplated under the original plans of Ciro Operating Company, its Architect, or G. E. Construction Co.
* * * * * *
“Ample testimony was produced before the Master to the effect that A1 Brenner took an active participating interest in’ the renovation, alterations and additions made to the premises under lea§e and covered by the agreements referred to, and not only acquiesced in the improvements being placed thereon, in addition to those originally contemplated, but also insisted that the additional improvements and alterations referred to above be installed and erected on the premises in the manner desired.by Mr. Brenner. * * *
“ * * * The erection of a new building, together with other facilities required by Mr. A1 Brenner, and also complications which ensued through discovery of faulty and outworn plumbing and electrical facilities, which had to be corrected in accordance with the City of Miami Beach Code requirements, practically doubled the cost of the job.”

The Circuit Court approved the Master’s report and required the payment of the liens to the assignee, Charles Smullian.

We are of the opinion that under the amended lease and the testimony produced in the record that the decision of the lower court in construing the original agreement, the new agreement, and other contracts herein, requiring the sub-lessee to complete the contracts was correct.

The appellants in their brief state this question: “Were liens in equity actually paid by general contractors who released to appellants?” In this brief and in the oral argument before this court, the attorney representing the appellants argued that equity will grant no relief to any party who does not come into equity with clean hands and that the final decree should be reversed as the record showed such fraudulent acts of the general contractors acting in connection with and through the appel-lee, as plaintiff, as to bar any relief to them.

The appellee argued that no pleadings, are shown in the case that justify this action, nor is any assignment of error based thereon. The appellant replied that there plaintiff did not come into equity with clean hands, it is not necessary to plead the matter and that the court could deny relief to the plaintiff on its own motion.

It has been held by this court that the doctrine of clean hands need not be pleaded in order to be available where the evidence disclosed its applicability. See State ex rel. Harris v. Gautier, 108 Fla. 390, 146 So. 562, 147 So. 240; Dale v. Jennings, 90 Fla. 234, 107 So. 175.

The Alabama Supreme Court in the case of McInnis v. Sutton, 260 Ala. 432, 70 So.2d 625, held that the court might apply the doctrine sua sponte.

The appellants contend that the record shows that the general contractors themselves bought the claims of the lienors and had them assigned to the plaintiff below, the appellee, who was the father of one of the general contractors; that the purchase of the liens was handled through one of the associates of the firm of attorneys who represented the general contractors; that the general contractors were financially responsible, were primarily liable for the payment in full of all of the liens, had released the appellants from such liens, and had paid all of their debts on all jobs with the exception of the one here involved, and were attempting indirectly to profit on this job at the-expense of the lessors who had secured a. release of all liens from the said general, contractors.

Gerlernter, one of the two contractors,, testified that he and his partner owned all1 of the stock in the G. E. Construction Company; that they owned all of the stock in. Atlantic Consolidated Builders Supply, Inc., which latter company employed the appel-lee, plaintiff below, Charles Smullian, who had allegedly purchased all of the liens involved in this suit. He further testified that the Atlantic Consolidated Builders Supply, Inc., advanced the money with which the appellee purchased the liens foreclosed by the lower court.

Jerome Elson, the other partner, testified that the plaintiff was his father, although having a different name. He further testified that the plaintiff borrowed the money and said further, “He has an open account with us, and we have an open account with him.” The lien of the Atlantic Consolidated Builders Supply, Inc., owned by the two partners was assigned to plaintiff without consideration. No money was paid to two of the lienholders for their assignment to the plaintiff because each of them owed money to the Atlantic Consolidated Builders Supply, Inc.

The record shows that a default was entered against the G. E. Construction Company, although they were primarily liable for the liens in question and were solvent. The appellant, in his brief, page 25, stated that an aggregate sum of $5,285.23 was paid for an aggregate of liens of some $23,817.-38.

Looking at the record below in the light of the above testimony casts doubt, to say the least, upon the interest of the plaintiff below, appellee here, Charles Smullian, but Smullian himself testified that while some of the money was advanced by a company which he worked for and which was owned by the two partners of the G. E. Construction Company, that it was his money that was paid for the liens, that the same was borrowed by him as he had done before from this company, that if it was not reimbursed by the court holding the owners liable under the liens the loss would fall on him and not on the partners, his employers in the construction firm.

The Master below heard the testimony of the witnesses, and his report in effect held that Smullian was the bona fide purchaser and assignee of the liens in question, which report was confirmed by the lower court. On appeal this court does not decide a case based upon how they would have decided the case had they heard the original testimony, but only whether there was sufficient evidence in the record to justify the lower court’s decision.

Therefore, the decision of the lower court is hereby affirmed.

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


text:
    Al BRENNER, Harvey Brenner, Abe Danches, Mabel T. Brenner, Alice Danches and Louise Brenner, Appellants, v. TROPICAL GLASS AND MIRROR COMPANY, Inc., a corporation, Appellee.
    Supreme Court of Florida. Special Division A.
    Dec. 14, 1955.
    Rehearing Denied Jan. 26, 1956.
    Milton M. Ferrell and J. M. Flowers, Miami, for appellants.
    Warren, Klein, Lehrman, Shorenstein & Kline, Miami Beach, for appellee.
   WILLIAM P. ALLEN, Associate Justice.

This case was consolidated on appeal with the case of Brenner v. Smullian, 84 So.2d 44 which was this day affirmed by this court.

The facts in the present case were similar to the facts in the Smullian case with the same defenses by the appellants, with the exception that Tropical Glass and Mirror Company, Inc. did not assign its lien to Charles Smullian, and therefore was not afflicted with the vices alleged in the Smul-lian case.

It would serve no useful purpose to discuss the facts and the law of this case, as it should be affirmed based on the opinion in the case of Brenner v. Smullian, Fla., 84 So.2d 44.

Affirmed.

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


author: THORNAL, Justice.

text:
    Emmett CARAKER, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division A.
    Dec. 20, 1955.
    Rehearing Denied Jan. 13, 1956.
    Oxford & Oxford, Lakeland, for appellant.
    Richard W. Ervin, Atty. Gen., Moie J. L. Tendrich and Jack A. Sudduth, Asst. Attys. Gen., for appellee.
   THORNAL, Justice.

Appellant seeks reversal of a judgment and sentence of ten years imprisonment entered pursuant to the verdict of a jury finding him guilty of the crime of assault with intent to commit murder in the first degree.

The principal ground assigned for reversal is that the evidence is insufficient to prove the intent essential to sustain conviction of the crime of assault with intent to commit first degree murder. The record shows that the night before the offense the appellant telephoned the home of one Jennings and in a conversation with Jennings’ wife with reference to her husband told her that he, the appellant, “was going to kill him and that he had come around to kill him * * * ” He repeated the threat several times. The next morning appellant entered the bakery of Jennings, armed with a loaded shotgun and a loaded pistol. He approached Jennings with the loaded shotgun pointed directly at him, called him by name and said, “I come to kill you”. Jennings then undertook to disarm appellant, whereupon the latter drew the loaded pistol from his belt, but with the assistance of a customer who happened to be in the shop Jennings succeeded in disarming appellant before the threat to kill could be executed.

Appellant contends that the fact that he did not actually fire the gun when he had an opportunity to do so is conclusive on the proposition that he could not have had the necessary intent to commit murder when he assaulted Jennings. The actual pointing of the gun constituted the assault. F.S. § 784.06, F.S.A., under which appellant was convicted, makes no requirement that a battery accompany the assault as an element of the offense. The assault being present, it is not necessary that the weapon be discharged or that there be an actual physical injury of the assaultee in order to establish the intent to commit murder. . The intent to kill may be established by a number of circumstances, such as, the fact that the weapon is directed at some vital spot on the assaultee’s body as was done here, or the intent may be affirmatively shown by the actual expressions of the one committing the assault, such as, “I am going to kill you.” See Fortner v. State, 119 Fla. 150, 161 So. 94.

Whether the use of the weapon in a particular case and the manner in which it is used and the intent indicated by the manner in which it is used, or simultaneous expressions of the one committing the assault indicate an intent to commit murder, are all questions to be decided by the jury under proper instructions by the judge. This rule applies, of course, unless the record is totally lacking in any evidence indicating the murderous intent. The record before us contained abundant evidence to justify submitting this question to the jury. Likewise, the evidence was adequate to sustain the jury’s conclusion of guilt.

We have considered the other assignments but find no errors in the rulings of the lower court.

The judgment appealed from is affirmed.

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


author: THOMAS, Justice.

text:
    PURE FOODS, Inc., et al., Appellants, v. SIR SIRLOIN, Inc., Appellee.
    Supreme Court of Florida. Special Division B.
    Dec. 2, 1955.
    Rehearing Denied Jan. 13, 1956.

      Joe Creel, Miami, for appellants.
    Burton Young, Marshall H. Ader, Miami Beach, and Leonard Pepper, Tallahassee, ifor appellee.
   THOMAS, Justice.

This case was here on an appeal from a decree of the chancellor dismissing the bill tof complaint and we held that the facts alleged warranted consideration of the merits of the dispute so we reversed the decree with directions to hear testimony relevant to issues that might be formed by appropriate pleadings and to “enter a final decree in accordance with law in the light of his findings of' facts.” Sir Sirloin, Inc., v. Pure Foods, Inc., Fla., 66 So.2d 593.

The chancellor did as directed and it is on an appeál from his eventual decree that we again study the litigation. We go to the first record, used in the present appeal by order of this court, to get the averments the appellee represented that it could prove, and which proved, should entitle it to relief.

The appellee is a corporation engaged in preparing and selling frozen and fresh meat, called in the bill “specialty products.” Immediately it entered the business, it began through its agents to compile a list of customers, a list that lengthened with the passage of time. All employees were cautioned not to disclose the names of customers appearing on the roll.

The appellee, according to the bill, also acquired many “trade names,” and “trade secrets” which were revealed only to trusted employees and were used in the preparation of products that became widely known as “Steakies,” “Chuck Wagon Steaks,” “Sir Sirloin Juniors,” “Sir Sirloin S.eniors,” and so on. In processing these articles, secret batters and mixtures were used and these, too, were disclosed only to trusted employees.

Among appellee’s confidants were George Kirby, George Dennis and David Rowan, salesmen, and Jessie Smith, its office manager.

The appellee charged that Rowan started a campaign to persuade other employees to leave appellee’s service and work for the appellant, Pure Foods, Inc., and that he was successful in inducing Kirby, Dennis and Smith to do that. Smith then began to win customers from appellee and persuade them to trade with the competitor, Pure Foods, Inc.

As soon as Rowan entered the service of the appellant corporation, the corporation began marketing products similar to those of appellee under the trade names “Beef Fillets,” “Sirloin Steaks,” and the like.

The appellant-corporation could . not process its goods, 'charged the appellee, had it not taken advantage of the secrets conveyed to it by appellee’s former employees, and could not have learned of appellee’s list of customers had the list not been given it by them. ' " ■

Such duplicity, averred the appellee, developed unfair competition that brought it irreparable injury.

All the individual defendants became owners of an interest in Pure Foods, Inc., when they left the employ of Sir Sirloin, Inc., but all except Jessie Smith have since disposed of their interest so she is the only one now a party to this appeal.

After the chancellor considered the testimony, he decreed that the appellant had completely failed to show sufficient damage to justify a monetary award. He decided that the methods and products of appellant had been so extensively imitated and used in the area by other firms that an injunction would serve no purpose, but he did undertake to relieve the appellee from “future unfair competition” by restraining the appellant-corporation from “[cjopying any packages * * * [appropriating any trade lists * * * [and] [ejmploying any meat processing secrets used by the Plaintiff [appellee].” Following this language appears this qualifying sentence: “This does not mean that the corporate [defendant] may not continue in its present business nor employ its present merchandising processing or packaging methods.”

Costs in an amount approximating $1,000 were taxed against the original defendants and the placing of this burden on the appellant seems to be the appellant’s main complaint here.

The decree of the chancellor follows almost verbatim the recommendations of the special master which were upheld after exceptions were filed by all parties. The only substantial difference was the chancellor’s rejection of the master’s proposal that a nominal judgment for one dollar be entered against the appellants.

As we analyze the decree, the salient parts of which we have quoted, we come to the conclusion that its terms neutralize one another and that in effect the appellee was denied all the relief it was seeking. If the methods and products of the appellee were so extensively used that an injunction would be feckless, and if the present operation of appellant’s business and its use of present merchandising, processing and packaging methods should not be disturbed, it seems to us the appellants were actually exonerated from all charges of wrongdoing, although by his approval of the special master’s report the chancellor seems to have accepted the statement that appellants had indulged in unfair competition. This “unfair competition” had been defined by the master as the imitation of packaging and processing secrets and the appropriation of lists of customers, in the language we have quoted from the decree. But the recommendation and the part of the decree adopting it appear counteracted by the provision that the appellant could continue its then course of doing business. This being our view we conclude, on this point, that when the appellee brought the appellants into court and failed to prevail both in a quest for damages and for injunctive relief, except from improper trade practices in which the appellants might indulge in the future, the appellee and not the appellants should pay the cost of the failure.

We now proceed, at the instance of the appellee on the cross assignments, to determine whether the chancellor was correct in his deductions from the testimony that ap-pellee was not entitled to more relief than was granted.

We are not aware of any evidence that any list of customers was taken physically by the departing employees, and although we understand that according to some authorities, Colonial Laundries, Inc. v. Henry, 48 R.I. 332, 138 A. 47, 54 A.L.R. 343, one may not divulge a trade list simply because.it is not carried away in writing, but mentally, there is authority to the contrary, El Dorado Laundry Co. v. Ford, 174 Ark. 104, 294 S.W. 393. But we do not think the circumstances of this case justify further exploration of the law on that subject or a condemnation of appellee’s erstwhile employees because they undertook to sell to customers whom they had come to know during their former employment. Both corporations were wholesalers and their products were sold to retailers of food such as restaurants and 'drive-ins.’ Certainly the names of such concerns were easily obtainable from classified telephone directories and like sources, and surely the employees of appellee who became owners of an interest in the appellant-corporation could not be precluded from attempting to sell all customers whom they had known in their former positions. Newark Cleaning & Dye Works v. Gross, 97 N.J.Eq. 406, 128 A. 789.

No questions of a contract not to compete, or of trade-marks, copyrights, fraud or misrepresentation have been established in this litigation.

So much for the trade list.

The matter of trade secrets, relating to preparation of meats, as it was set out in the bill appeared to have some importance, enough, we thought when we considered the pleading in the former appeal, to withstand a motion to dismiss. But now that testimony has been taken, we find that. sustaining proof is lacking. It is true that the general character of the products of Pure Foods, Inc., and Sir Sirloin, Inc., was the same, but as the chancellor observed, the products are so widely in use “that any injunctive relief [on that score] * * * would be of no avail.” And the similarity of two packages containing a given amount of meat would not of itself raise a suspicion even that the new user was encroaching on the rights of the old.

The trade names adopted by Pure Foods, Inc., bore no resemblance to the ones being used by Sir Sirloin, Inc. According to one of appellee’s own witnesses, any imitation of the trade name of Sir Sirloin, Inc., was studiously avoided and the words “Bunk House” were selected by the appellant-corporation as a brand for its goods. We think the facts here are such as to give appellee no comfort from our decision in Sentco, Inc., v. McCulloh, Fla., 68 So.2d 577. The appearance of the packages produced by appellant, as they were described by witnesses, would not support the charge of unfairness by imitation of any features of appellee’s products so that a customer would be lead to buy a package produced by appellant thinking he was getting one produced by the appellee, a situation that was discussed by the Circuit Court of Appeals in Crescent Tool Co. v. Kilborn & Bishop Co., 2 Cir., 247 F. 299, which we cited in. Sentco, Inc., v. McCulloh, supra.

We open the package and examine the contents. The meats were ‘tenderized,’' dipped in batter, and wrapped. The machines used to pierce the meat and make it tender were purchasable in the open market. The enzymes applied to the meats for-the same purpose were also available commercially. So there seems to have been no secrets in this respect that could have been taken from the appellee. Although the ingredients of the batter used by the ap-pellee were known to its employees, who. were made defendants in the suit, there was. no showing that these employees were familiar with the proportions in which the-ingredients were used. Moreover the un-contradicted testimony established the fact that, during the time relevant to this controversy, batter obtainable on the market was used by the appellant, except during two short periods when batter mixed by a. person who is a stranger to this litigation was used.

We conclude that inasmuch as the decree,, in effect, denies relief to the appellee, and seems only to be effective to prevent anticipated transgressions by the appellants, the cause should be dismissed, and that all costs, should be assessed against the appellee.

Reversed.

DREW, C. J., and HOBSON and THORNAL, JJT.j concur.


text:
    A. H. JACKSON, individually and as Administrator of the Estate of Harold Doyle Jackson, a minor, Deceased, Appellants, v. TAMIAMI TRAIL TOURS, Inc., a corporation, Appellee.
    Supreme Court of Florida. Special Division A.
    Nov. 18, 1955.
   PER CURIAM.

Affirmed.


text:
    Dr. George P. SORVAS, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division B.
    Dec. 7, 1955.
   PER CURIAM.

Affirmed.


text:
    Julia RAY, Appellant, v. CITY OF ORLANDO, a municipality, Appellee.
    Supreme Court of Florida. Special Division A.
    Dec. 14, 1955.
   PER CURIAM.

Affirmed.


text:
    Clinton BRETELL, Appellant, v. Horace O. WRIGHT, Appellee.
    Supreme Court of Florida. Special Division B.
    Dec. 14, 1955.
   PER CURIAM.

Affirmed.


author: SIMON, Justice.

text:
    228 La. 713
    STATE of Louisiana v. Donnie WARE.
    No. 42428.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.

      Watson & Williams, Natchitoches, for -defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-"ligan, Asst. Atty. Gen., Fred L. Jackson, .Dist. Atty., Homer, for appellee.
   SIMON, Justice.

The defendant, Donnie Ware, prosecutes 'this appeal from his conviction for selling intoxicating liquor for beverage purposes in the Parish of Claiborne in violation of a Local Option Ordinance of the Police Jury -of said parish.

On March 31, 1955, the defendant was tried, adjudged guilty and sentenced to serve 30 days in the parish jail. Immediately following said sentence the defendant, through counsel, without having perfected the bills of exception reserved during the course of trial, orally and in open court, moved for a suspensive appeal, which was granted.

On May 17, 1955, the defendant submitted his bills of exception to the trial judge, who signed them and attached his per cur-iam.

Under our Code of Criminal Procedure an accused shall make in open court a verbal or written motion for an appeal within ten judicial days after the rendition of the judgment complained of; provided, however, that if the trial judge has not acted upon the bills of exception before the expiration of the last day of said ten-day period, a defendant shall be entitled to an additional delay prescribed therein. In applying this rule we have consistently held that after an appeal has been granted, the trial court is divested of jurisdiction, and bills of exception thereafter presented for the judge’s signature and per curiam come too late.' Such bills are considered invalid before this court and present nothing for review, unless there are errors patent on the face of the record. State v. Hauser, 112 La. 313, 36 So. 396; State v. Ruffin, 117 La. 357, 41 So. 647; State v. Griggsby, 117 La. 1046, 42 So. 497; State v. Barrett, 137 La. 535, 68 So. 945; State v. Young, 153 La. 605, 96 So: 275; State v. Cole, 161 La. 827, 109 So. 505; State v. Allen, 167 La. 798, 120 So. 372; State v. Carlson, 192 La. 501, 188 So. 155; State v. Calvin, 209 La. 257, 24 So.2d 467; State v. Brown, 214 La. 18, 36 So.2d 624; State v. Honeycutt, 218 La. 362, 49 So.2d 610; State v. Dartez, 222 La. 9, 62 So.2d 83.

Counsel for the State make no objection to our exercising, jurisdiction over this appeal, nor have they formally moved for its dismissal, .notwithstanding the conclusive invalidity of the bills of exception. However, in written brief and in oral argument, the district attorney takes cognizance of the palpable invalidity of these bills, but urges no objection to our considering their respective merits should we desire to do so.

The Constitution and amending statutes have expressly defined the jurisdiction of the Supreme Court. When it is manifest that this court has no jurisdiction of a cause, it will notice that fact ex pro-prio motu, whether or not the question has been raised by either side. Maginnis Land & Improvement Co. v. Marcello, 168 La. 997, 123 So. 653; Town of Springhill v. Murphy, 170 La. 1054, 129 So. 634; State v. Green, 210 La. 190, 26 So.2d 693. It necessarily follows that the jurisdiction of this court cannot be conferred or bestowed by the- consent of the parties nor by the failure or waiver of any objection thereto.

Counsel for the defendant contend that irrespective of the jurisdictional question, to which they attach no import, there is properly before us for our determination the validity vel non of the bill of information and the legality and constitutionality of the ordinance under which this prosecution was conducted.

Paragraph 5, section 10 of Article 7 of the Constitution, LSA, provides that this court shall have appellate jurisdiction in cases “where the legality, or constitutionality of any fine, forfeiture, or penalty imposed by a parish, municipal corporation, board, or subdivision of the State shall be in contest, whatever may be the amount thereof, and in all cases wherein an ordinance of a parish, municipal corporation, board, or subdivision of the State, or a law of this State has been declared unconstitutional.” In connection with these provisions it is to be noted that the legality and constitutionality of the bill of information under which this prosecution was brought was raised by a motion in arrest of judgment filed below.

Although the bills of exception reserved by the defendant are invalid and present nothing before us to review, it does not follow that the invalidity of the bill reserved to the court’s ruling on the motion in arrest of judgment deprives us of the right to inquire into the issues presented by said motion. We have consistently recognized the principle that a motion to arrest is open to our consideration without the necessity of a bill, so far as it is founded on an alleged error of law patent on the face of the record. State v. Anderson, 42 La.Ann. 590, 7 So. 687; State v. Cox, 52 La.Ann. 2049, 28 So. 356; State v. Williams, 111 La. 1033, 36 So. 111; State v. Peterman, 121 La. 620, 46 So. 672; State v. Anderson, 164 La. 696, 114 So. 598; State v. Louviere, 169 La. 109, 124 So. 188; State v. Lewis, 183 La. 824, 165 So. 1.

Our Louisiana Code of Criminal Procedure defines an error patent on the record to be “An error * * * discoverable by the mere inspection of the pleadings and proceedings and without any inspection of the evidence, though such evidence be in the record.”

The bill of information states as follows : “* * * Wilfully and Unlawfully Did Sell, for Beverage Purposes, Intoxicating Liquor, to-wit: * * * One half pint of Early Times Whiskey In Violation of an ordinance of the Claiborne Parish Police Jury, * * *”

A motion in arrest of judgment applies itself solely to the sufficiency of the bill of indictment or information. As to the indictment or bill of information, it can be sustained when all that is alleged therein may be true and yet the person convicted may not have committed any public offense. Such a motion lies only when it appears on the face of the record that no judgment can be legally entered, as when the facts stated in the bill of information or indictment do not constitute a crime or as when the charge fails to state essential and necessary elements of the crime of which the defendant was found guilty.

The validity of a motion in arrest can be adjudged from the face of the bill of information alone — or in other words —within its four corners, without resorting to the record to establish its validity or invalidity. Alleged defects apparent on the face of the record do not include the evidence, documentary or oral, forming part of the record. Evidence admitted or excluded over objections cannot be reviewed in a motion to arrest; nor can the motion raise an objection to a variance between the charge and the proof. The absence of evidence or its insufficiency to support a conviction is not a ground for arresting the judgment.

In the instant case, the motion in arrest of judgment is founded upon two complaints, namely: (1) that the bill of information should have specifically stated the fact that Claiborne Parish is dry and that the sale of intoxicating liquors is prohibited in said parish; and (2) that the penalties provided for in said parish ordinance under which the prosecution is brought are greater than those authorized by the Local Option statute of the state.

Upon examining the bill of information as quoted above, we must conclude that the contentions made in support of the motion to arrest are untenable. The bill of information affirmatively alleges that the defendant sold intoxicating liquor for beverage purposes, in violation of an ordinance of the Claiborne Parish Police Jury and contrary to the form thereof. Such a bill charging one with having committed an act in violation of a prohibitory law is equal to saying that the act committed is prohibited by a specific law as charged therein. The bill of information specifically states the essential and necessary elements of the offense of which the defendant was found guilty and was sufficient to sustain the judgment according to the verdict. Its face is devoid of any defects which would warrant the setting aside of the judgment rendered and the sentence imposed.

There being no errors patent on the face of the record and no valid bills before us for review, the conviction and sentence are affirmed.

      . LSA-R.S. 15:542.

      . Art. 7, § 10, Louisiana Constitution, LSA.

      . LSA-R.S. 15:503.

      . Aet 17 of 1935, 1st Ex.Session, LSA-R.S. 20:581 et soq.


author: SIMON, Justice.'

text:
    228 La. 723
    STATE of Louisiana v. Donnie WARE.
    No. 42429.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.
    Watson & Williams, Natchitoches, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Fred L. Jackson, Dist. Atty., Homer, for appellee.
   SIMON, Justice.'

This is a companion case to that of State of Louisiana v. Donnie Ware, No. 42,428 of the docket of this court, 84 So.2d 56. In this instance the defendant, Donnie Ware, was charged in a bill of information with selling intoxicating liquor for beverage purposes in Claiborne Parish in violation of an ordinance of the Claiborne Parish Police Jury on a date different from that charged in the companion case.

The legal issues presented in both cases are identical. The reasons assigned by us in support of our holding in case No. 42,428, this day delivered, are applicable and controlling here.

Accordingly, for the reasons assigned, there being no errors patent on the face of the record and no valid bills of exception presented for review, the conviction and sentence are affirmed.

      . 228 La. 713.


author: LOTTINGER, Judge.'

text:
    Ewell BICKHAM et al. v. WAX LUMBER COMPANY et al.
    No. 4087.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 22, 1955.
    Rehearing Denied Dec. 30, 1955.
    Writ of Certiorari Denied Feb. 23, 1056.
    William T. Bennett, Clinton, for appellants.
    Leon A. Picou Jr., St. Francisville, for appellees.
   LOTTINGER, Judge.'

This is a tort action wherein the plaintiffs seek damages for an alleged timber-trespass which occurred on _ certain property owned by them in the Parish of West-Feliciana. The original petition named as-the party defendant the Wax Lumber Company, a Mississippi corporation, asserting-that this company had purchased from “Norvell Meeks and Harold Meeks, or Norvell Meeks” timber which was unlawfully removed from plaintiffs’ land; subsequently, a supplemental petition was filed! wherein there were named as additional-parties defendant Dorothy Bourgeois-Meeks, Administrator of the Succession, of Norvell Meeks, Mary Madeline Donaldson, Administrator of the Succession of J.. F. Meeks, Mrs. Margaret Meeks Vernon,. Liquidator of the Meeks Lumber Company- and Harold Meeks. As a result of a compromise agreement which was reached! with various of the defendants, this suit, on the day the case was set for trial, was-dismissed as to all defendants except Harold Meeks. An exception of prescription-, which was filed on behalf of the defendants, was overruled by the lower court and as the question has not been raised on-appeal, we presume that it has passed from' the case. The matter was duly tried on>. the merits in the court below and is now-before us on an appeal taken by the defendant, Harold Meeks, from a judgment-which was rendered against him in the amount of $1,055.56, less the sum of $500’ which the plaintiffs had accepted from the-estate of Norvell Meeks in the compromise-agreement previously referred to.

The record clearly establishes that at-the time of the alleged trespass, timber-was being removed from property belong--ing to the Meeks family which was located adjacent to property belonging to the plaintiffs. Also, it is clear from the record that a trespass did in fact occur and that timber was removed from the plaintiffs’ property. It is clearly shown that the decedent, Norvell Meeks was in charge, more or less, of these timber operations, that he sold the timber so removed from both tracts to the Wax Lumber Company and that payment for same was made by the latter by means of checks to his own personal order. The sole question presented, therefore, is what connection, if any, the defendant, Harold Meeks, had with these operations.

The principal evidence introduced by the plaintiffs centers around the testimony of a Mr. Rogers, who lived in the area and who was familiar with the property lines in the vicinity. This gentleman stated that on several occasions he visited the property and that each time Mr. Harold Meeks was on the road in his automobile near the scene but not in the woods and not dressed in working clothes. In addition to the testimony of this witness, the plaintiffs introduced the testimony of two Negro woodsmen, each of whom testified that their wages had been paid them on two occasions in cash by Harold Meeks. In spite of this, however, one of these men stated that although he had seen Harold Meeks in the vicinity, that he had been hired' by and worked for Norvell Meeks, who went into the woods, showed them where to cut and in general conducted the operations.

The principal other evidence which was sought to be introduced to show some connection between the two Meeks brothers, with respect to the timber business, was that of a Mr. Ewell Spillman, an employee of the Wax Lumber Company. This employee, over objection of counsel for the defendant, testified that Norvell Meeks had stated to him that his brother, Harold Meeks, was to receive one-half of the money from the sale . of the timber. While the trial judge stated that he did not take into consideration this testimony, we think it clear that same was inadmissible. See Miller v. Miller, 226 La. 273, 76 So.2d 3, 4, wherein the Supreme Court stated that “the only declarations by a person since deceased, which are admissible as exceptions to the hearsay rule, are dying declarations, statements against interest and in rare instances pertaining to family history, relationship and pedigree, where they are received as a matter of necessity.”

We find a stipulation in the record to the effect that if Mr. Lewis Wax, who is president of the Wax Lumber Company, were present he would testify that “Mr. Harold Meeks, one of the defendants herein, had no connection whatever with the Wax Lumber Company’s contract involving timber alleged in this suit to have been cut from plaintiffs’ land and sold to Wax Lumber Company.” We note, however, in Mr. Spillman’s testimony wherein he states that Mr. Lewis Wax did not have anything to do with the contract as he, Mr: Spill-man, is the one who handled the transaction. We note further, however, wherein he states that, “I made a deal, with Nor-vell Meeks to buy this timber. I mean that Meeks sold it in stumpage. Mr. Harold Meeks was not in -the deal with me.”

Without going into unnecessary detail with respect to the testimony of Harold Meeks, we think it sufficient to state that he emphatically denied any connection whatsoever with the timber operations or that there existed any agreement between him and his brother whereby he would share in the proceeds of the sale of timber. He admitted going to the locality on various occasions and stated that he had done so for various reasons, none of which wére connected with the timber business. He admitted on one occasion having' paid one of the employees but stated that he did this as an accommodation for his brother.

Following the trial, the lower court dictated his reasons for judgment into the record, which said reasons read in part as follows:

“The position of the Court is that the Meeks Lumber Company "definitely is liable (in) bad faith for the manu-factored value of the timber. Mr. Rogers showed Mr. Norvell Meeks the line; this negro man showed Mr. Norvell Meeks the line and he must have known where it was. They went the entire distance of the boundary line. Mr. Rogers said that he rode horseback and Mr. Meeks walked. Now since the counsel on both sides have entered into a stipulation absolving the J. F. Meeks Lumber Company of any fault relative to this stipulation entered into that they were not involved, the Court takes the position that Mr. Meeks, Mr. Harold Meeks was involved. The Court takes a dim view that all these trips up there were for swimming and picking plums and such as that. I believe that Mr. Meeks was involved and I don’t believe that from the testimony from Mr. Spill-man. I disregard that completely. The only thing I understood relative to that testimony is what Mr. Picou said. I never did understand anything that Mr. Spillman said and I disregard that completely * * *. Mr. Meeks was up there for something besides swimming and picking plums. There has been 2 negroes that have testified here that they were paid by Mr. Meeks. (Harold Meeks.) One of these negroes I have known all of my life and I believe whether Mr. Meeks remembers it or not I believe he paid them off on one or two or three occasions whatever it was, and I believe that Mr. Meeks stood to gain from this operation. * * * It is the position of the Court that Mr. Harold Meeks is personally involved in some way and he derived some remuneration out of it or he wouldn’t have always been up there where they were bunching the logs up. Mr. Rogers testified that he was there when he was there, every time he went down the road he saw Mr. Meeks (Harold) there in his car. Mr. Meeks (Harold) had to have a reason to be there. We have two ne-groes’ testimony that said he paid them off on two or three occasions. One said two and one said two or three. It stands to reason even though the checks were issued to Mr. Norvell Meeks and cashed by him it is the position of the Court that he stood to gain some remuneration that he (Mr. Harold Meeks) stood to gain some remuneration from those timber operations. This time let the minutes of the Court show that judgment will be granted against Harold Meeks for reasons given personally, not to Meeks Lumber Company because they have been stipulated out of it, that the Judgment be in the amount of Mr. Butler Lawrason’s testimony according to the footage that he testified and according to the manufactured value that he testified.”

It is with great reluctance that we ever reverse a trial judge’s findings of fact, but in this case we feel compelled to do so. It might be that the trial judge did not believe the testimony of Meeks, but the plaintiff is nonetheless bound to prove his case by a preponderance of the evidence. We do not believe that the evidence introduced here and commented upon above is sufficient proof to show such a relationship existed between Harold Meeks and Norvell Meeks in the timber operations here conducted on plaintiffs’ property such as to render*the former liable for damages. The circumstantial evidence relied upon here is hardly sufficient to prove that Mr. Harold Meeks had anything to do with the trespass. It has been held by the courts of this state that a plaintiff relying upon circumstantial evidence is required to produce evidence which excludes, with a fair amount of certainty, every other reasonable hypothesis but the one relied on. Marcel v. DePaula Truck Lines, La.App., 70 So.2d 772; Lanoix v. Home Indemnity of New York, La.App., 13 So.2d 501, and Arceneaux v. Louisiana Highway Comm., La.App., 12 So.2d 733.

For the reasons assigned, the judgment appealed from is reversed and the plaintiffs’ suit dismissed at their costs.

Judgment reversed.