author: HOBSON, Justice.

text:
    Charles VANN and Indemnity Insurance Company of North America, a corporation, Petitioners, v. STATE of Florida, Respondent.
    Supreme Court of Florida. Special Division A.
    Feb. 3, 1956.

      William McHardy Berson, of Sanders, McEwan & Berson, Orlando, and Truman E. Grason, of Grason & Blankner, Orlando, for Charles Vann.
    William McHardy Berson, of Sanders, McEwan & Berson, Orlando, for Indemnity Insurance Co. of North America, petitioners.
    Richard W. Ervin, Atty. Gen., and Joseph P. Manners, Asst. Atty. Gen., for respondent.
   HOBSON, Justice.

Charles Vann and the Indemnity Insurance Company of North America bring this petition for certiorari to review an order of the Orange County Criminal Court of Record denying petitioners’ motions to quash a certain subpoena duces tecum which had been issued by that court at the instance of the County Solicitor.

The litigation grows out of a collision between automobiles driven by Charles Vann and one Dora Lyon on December 11, 1954, in which a fatality occurred. A warrant was issued for Vann’s arrest for culpable negligence in connection with this accident, and an investigation was instituted. Acting pursuant to F.S. § 32.20, F.S.A., the County Solicitor caused two subpoenas duces tecum to issue. One was addressed to the petitioner insurance company. The other was addressed to one Robert Car-reker, who established by an uncontroverted affidavit that he had none of the desired documents in his possession, custody or control. Carreker is not a petitioner, and the subpoena addressed to him need not be further considered. Vann received no subpoena, but his standing to participate in the proceedings was apparently not questioned below, nor is it contested here, and because of the view we take of the case no issue need be made of it.

, The subpoena addressed to the insurance company commanded it to bring “any books, papers, statements, photographs or other documents which it may have in its possession or control relative to a-n automobile collision which occurred between vehicles driven by Charles Vann and Dora Lyon on December 11th, 1954.” Petitioners moved to quash this subpoena on numerous grounds, and the motions were accompanied by affidavits. At the hearing, petitioners offered to produce before the court all instruments or records referred to in the subpoena for the court’s inspection, and offered themselves for cross-examination (the insurance company acting by its General Agent, one Marion Lee) but these offers were declined by the trial judge, who denied the motions to quash without taking testimony or examining the documents.

No point is raised with respect to the designation of' the insurance company as recipient of the subpoena, and we therefore do not consider it. Petitioners first contend that the demands of the subpoena are too broad and indefinite, and hence unreasonable.

It is universally agreed that a subpoena duces tecum must specify with reasonable particularity the documents sought to be produced, in order that the witness may be informed what is required of him and may intelligently obey the command of the subpoena. See the cases from all jurisdictions collected in the annotation in 23 A.L.R.2d at page 867 et seq., including State ex rel. Everglades Cypress Co. v. Smith, 104 Fla. 91, 139 So. 794. This requirement may be satisfied if the categories of documents desired are stated, along with a reasonable period, of time covered by the documents and a statement of the subject matter, to which the documents pertain. See Brown v. United States, 276 U.S. 134, 48 S.Ct. 288, 72 L.Ed. 500. Of course, the application of these rules depends upon the facts and circumstances .of the particular case.. " ,, •

In. the present matter, the documents were categorized very broadly, and .nothing was designated with . .particularity except the subject matter. We would entertain a-serious doubt as to the validity of this subpoena, were it not for the saving circumstance that the documents were in fact offered for the court’s examination, indicating that it was understood what documents were referred to. This is a relevant circumstance to be considered on an application of this nature. See Brown v. United States, supra; Interstate Engineering Co. v. Archer, 64 Wash. 629, 117 P. 470.

Petitioners assert, and we agree, that proper practice in a case of this nature requires the trial court to examine the subpoenaed documents, on application of the witness, to determine their relevancy. Otherwise, a legal conclusion would be required of the witness in the course of complying- with the subpoena. The common law rule, to which we adhere, is well stated in 70 C. J., Witnesses, Sec. 42, p. 55. There it is said that the court, in a proper case, should examine a controversial document to determine whether it is “prima facie sufficiently relevant to justify enforcing its production; but the subpoena should not be quashed or set aside, on the ground that the evidence called for by it-is not relevant or material, in a close or doubtful case, but. only where the futility of the. process to uncover anything useful or legitimate is inevitable or obvious.”

In connection with relevancy, a further hurdle remains to be surmounted in this case, however, in that no issues have ■ yet been framed, and it cannot now be finally determined what will be material and relevant. Here, then, the test to. be applied by the trial judge must be slightly modified. In considering the documents whose relevancy is contested, the trial judge should require production only of those documents which are at least “prima facie not irrelevant to some probable issue in the cause.” Ex parte Monroe County Bank, 254 Ala. 515, 49 So.2d 161, 23 A.L.R.2d 856. This is the test of relevancy which must be applied upon remand of this cause. :

Petitioners next contend that enforcement of the subpoena would amount to an unreasonable search and seizure forbidden by the Fourth Amendment to the Constitution of the United States and Section 22 of the Declaration of Rights of the Florida Constitution, F.S.A. and would also ‘violate the self-incrimination privilege afforded by the Fifth Amendment to the Constitution of the United States and Section 12 of the Declaration of Rights of the Florida Constitution. Of course, the Fourth and Fifth-Amendments to the federal Constitution offer direct protection to the citizen only against unlawful action by agents of the federal government. They safeguard the citizen from unlawful invasions by agents of the state only indirectly, through the médium of the due process clause of the Fourteenth Amendment. In other words, it is the Fourteenth Amendment, and not the Fourth and Fifth, which affords a federally protected right to the citizen to be free from unreasonable searches and seizures, and from violation of the self-incrimination privilege, by a state or its agencies. And this federally protected right should be recognized for what it is, a component part of the concept of “due process of law”. As to the operation of this concept with respect to searches and seizures by agents of the state, see Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; as to self-incrimination, see Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, and Rochin v. People of State of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, as explained in Irvine v. People of State of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561.

Thus viewed, the question on the federal level is whether or not either of the petitioners has been denied due process of law in the proceedings we are reviewing. The answer must be in the negative. Vann is not under subpoena, nor is it intimated in this record that he has any documents in his own possession or control. The processes of law have hardly touched him at this stage! The insurance company does not raise the possibility of its own incrimination, and could not do so in any event, because a corporation has no self-incrimina-tion privilege. Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, see also Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787. And the corporation may not raise the self-incrimination privilege on Vann’s behalf, because the privilege is for the personal protection of the claimant and may not be invoked on behalf of anyone else. Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; United States v. Field, 2 Cir., 193 F.2d 92, certiorari denied 342 U.S. 894, 72 S.Ct. 202, 96 L.Ed. 670. There is no search and seizure amounting to a denial of due process as to Vann for the same, reasons we- have given above.

As to the insurance company, compare Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, where, had a subpoená' been obtained in the first instance, no problem would have been presented.

On the state level, the question Is whether the protection directly afforded by Sections 12 and -22 of the Declaration of Rights against self-incrimination and unreasonable searches and seizures, respectively, may be invoked on this record. Again, the answer must be in the negative. Vann cannot complain, because no documents 'áre shown to be in his, possession or control. Compare State ex rel. Byer v. Willard, Fla., 54 So.2d 179, where the documents seized were in the possession of relators. As for the insurance company, compare State ex rel. Losey v. Willard, Fla., 54 So.2d 183. On the showing made below, there is no valid constitutional objection, either state or federal, to the procedure which was followed;

Finally, petitioners claim an attorney-client relationship, based upon an uncon-troverted affidavit filed' by the general agent for the insurance company, which reads in part as follows;

“That each of the items listed in said' "subpoena duces tecum were obtained by and are in the possession of the aforesaid company under and by virtue' of its duties and obligations arising out of its policy of insurance number MV 558431, the same being- an automobile liability insurance policy, pursuant to its duties therein provided to defend certain suits that might be brought by reason of automobile accidents; that said items were prepared for the use of attorneys in the defense of persons insured under said policy, including Charles Vann, and are in the possession of such attorneys for said purpose.
“That by the terms of said policy, the said company was entitled to the full cooperation of the said Charles Vann in furnishing to it information with. regard to the facts and circumstances of such accident and that such items were obtained and prepared in line with the aforesaid mutual obligations of the insurance company and the said Charles Vann.” (Italics added).

This position of petitioners is well -taken. In a recent annotation at 22 A.L.R.2d 659, 660, it is stated:

“According to the weight of authority, a report or other communication made by an insured to his liability insurance company, concerning an event which may be made the basis of a claim against him covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and the communication is intended for the information or assistance of the attorney in so defending him." (Italics added).

Although the precise question has never before been passed upon by this court, we accept the rule stated without hesitation, because it is entirely consistent with the views we expressed in Seaboard Air Line R. Co. v. Timmons, Fla., 61 So.2d 426, and with our adoption of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451; in Atlantic Coast Line R. Co. v. Allen, Fla., 40 So.2d 115. See also McGee v. Cohen, Fla., 57 So.2d 658, and cases therein cited. Thus not only communications between Vann and the insurance company, for the use of the attorney, are covered by the privilege, but also documents representing the work product of the attorney or his agents. It is the task of the trial judge to examine the documents and to determine whether, if “prima facie not irrelevant”, under the test stated earlier in this opinion, they fall within or without the privilege.

The writ is granted, the challenged order quashed, and the cause remanded for further proceedings not inconsistent with this opinion.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re ESTATE of Williams Bleckley HAMMOND, Deceased.
    Supreme Court of Florida. Special Division A.
    Feb. 1, 1956.
    J. Hardin Peterson, Lakeland, for appellant.
    Clara Floyd Gehan and Jenkins & Jenkins, Gainesville, for appellee.
   PER CURIAM.

The appellee has filed motion for an order affirming the judgment of the circuit court in this cause and full argument was made by attorneys for each of the parties to the cause and upon consideration thereof,.it is ordered that said motion to affirm be and the same is hereby denied and-that if said cause reaches the oral argument calendar for oral argument that attorneys for respective parties be and they are hereby limited to not exceeding fifteen minutes to the side. It is further ordered that if argument is had that the cause be set down before Division A of this Court.

DREW, C. J., THOMAS and THORN-AL, JJ., and PATTERSON, Associate Justice, concur.


author: ROBERTS, Justice.

text:
    Thomas Lee DOLAN, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Division B.
    Feb. 3, 1956.
    Carr & O’Quin, Miami, for appellant.
    Richard W. Ervin, Atty. Gen., Moie J. L. Tendrich and Jack A. Sudduth, Asst. Attys. Gen., for appellee.
   ROBERTS, Justice.

Appellant was found guilty of manslaughter and has appealed from the judgment of conviction.

At the trial, the appellant admitted that he shot and killed the deceased but testified that the shooting was accidental in the course of a struggle with the deceased over possession of the gun. His testimony in this respect was corroborated by his wife, Adelaide, the only eyewitness to the encounter. His contention on this appeal is that, in the face of such uncon-tradicted evidence, a conviction of manslaughter cannot be sustained. We do not agree.

The fatal altercation occurred late at night, when appellant’s wife (then his girl friend) returned to her trailer home, bringing with her one Johnny Bakos (soon to become “the deceased”), with whom she had spent the evening. The appellant was inside the trailer taking a nap and was clothed only in his underwear. He had a gun (a .357 caliber pistol), which he said he was going to use on a hunting trip the next day. Adelaide went inside the trailer, and Bakos stayed outside. After some conversation between the appellant and Adelaide, the appellant fired a shot into a corner of the trailer (just “showing off,” he said) and then went outside where Bakos was standing. He had the pistol in his right hand. He told Bakos that he was “in the wrong place with the wrong girl” and that he should leave. When Adelaide indicated that she was going to let Bakos have her car, the appellant objected strenuously and was given the keys by Bakos. Then, according to appellant, Bakos grabbed for the gun and they struggled over it, during the course of which Bakos was shot through the stomach and died.

We think that these circumstances were sufficient to sustain a conviction of manslaughter, within the meaning of Section 782.07, Fla.Stat.1953, F.S.A. The appellant’s actions set the stage for the tragedy which ultimately and inevitably followed, and he must be held criminally responsible therefor, even though he had no intention of killing Bakos. Cf. Williams v. State, 89 Fla. 475, 104 So. 782.

We have examined the other question presented here by appellant, and no reversible error has been found.

Accordingly, the judgment appealed from should be and.it.is hereby .

Affirmed.

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


author: TERRELL, Justice. DREW, Chief Justice

text:
    Armen POLADIAN and A. P. Construction Co., Appellants, v. Elsa JOHNSON and Border City Land Company, Appellees.
    Supreme Court of Florida. En Banc.
    Dec. 20, 1955.
    Rehearing Denied Feb. 20, 1956.
    Yonge, Whiteside & Prunty and William W. Charles, Miami, for appellants.
    Field & Spence, Miami, for appellees.
   TERRELL, Justice.

This controversy stems from a claim of Armen Poladian to certain lands in Dade County based on an unrecorded agreement for deed with the owner, Elsa Johnson, dated February 20, 1951, said agreement having been supplemented by a second agreement dated December 12, 1951. On the .theory that Poladian had not complied with the terms of his agreement, Johnson gave notice and proceeded to cancel the agreement. None of the proceedings were, placed of record as required by law. Johnson then entered into an agreement with Border City Land Company for sale of the lands in question, thinking that •'Poladian’s claim was to all -intents and purposes can-celled.

Prior to date set for closing -the latter agreement, .Poladian placed a “wild, deed” of record and shortly thereafter filed suit in equity for declaratory decree seeking adjudication of the rights of the parties to th,e. controversy. A “wild deed” is one executed by a stranger to the. record title “hung out. in air like Mahomet’s coffin.” Hart v. Gardner, 81 Miss. 650, 33 So. 442, 497. At final hearing after answer, the chancellor' entered a final decree dismissing the corn-plaint. Poladian has appealed from the final decree.

The effect of the final decree was to hold that Border City Land Company acquired title to the property involved in good faith, for a valuable consideration and without knowledge or notice, actual or constructive, of the claim of plaintiffs, or any of them, under agreement of December 12, 1951, between Johnson and Pola-dian. The cause as to Johnson was dismissed without prejudice as to any right of action Poladian might have against her.

Appellants contend that the ruling of the chancellor should be reversed because ap-pellees were on implied notice of appellants’ claim, account of the following factors: (1) warranty deed from Poladian to A. P. Construction Co. recorded eight days prior to the deed on which Border City Land Company relies; (2) the lands were made into Armen Subdivision which was named for Armen Poladian and plat thereof filed of record long prior to any claim of Border City Land Company; (3) Armen Poladian posted a bond with the county to secure installation of streets and water, part of which was accomplished at the time Border City Land 'Company ac7 quired title; (4) A. P. Construction Co. paid taxes on the land which was assessed in the name of said plaintiff; (5) Armen Poladian lived in a home .in Armen Subdivision which consisted of five blocks, on which Armen Poladian constructed most of the buildings; (6) Johnson .attempted a sale of the lands prior to her attempt to cancel Armen Poladian’s contract.

It is contended by appellants that these facts were sufficient to put a prudent purchaser on such inquiry , as would lead to Armen Poladian’s interest in the land. Sapp v. Warner, 105 Fla. 245, 141 So. 124, 143 So. 648, 144 So, 481; First Federal Savings & Loan Association of Miami v. Fisher, Fla.1952, 60 So.2d 496; Redstone v. Redstone Lumber & Supply Co., 101 Fla. 226, 133 So. 882; Farish v. Smoot, Fla.1952, 58 So.2d 534, and other cases are relied on to support this contention. We have examined these cases and they deal with questions so remote and unlike that we are confronted with here, that we do not think they can be ■ said to rule the case at bar.

Appellants rely heavily on the recordation of the “wild deed” as notice to appellees but we do not think the fact avails them anything. 2 Merrill on Notice, page 558, holds that the record of such an instrument is not notice to subsequent purchasers. Poladian nor his grantee in the “wild deed” was in possession of the lots. In fact, it would hardly be reasonable to contend that one purchasing vacant lots, as was the case here, would be required to canvass the neighborhood to ascertain the claims of others. It is common knowledge that lines or posts marking subdivision and streets are oftimes soon covered up or obliterated and then one investigating claims against proposed purchases of land is expected to exhaust the record and nothing more unless it puts him on notice of other muniments of title.

From this it follows that the decree appealed from must be and is hereby affirmed.

Affirmed.

TFIOMAS, THORNAL and ROBERTS, JJ., and ALLEN, Associate Justice, concur.

. DREW, C. J„ and HOBSON, J., dissent.

DREW, Chief Justice

(dissenting).

Because of my view that the factors set forth in the fourth paragraph" of the opinion by Mr. Justice "Terrell were sufficient to.put the purchaser on inquiry, I must respectfully. dissent from the judgment of af-firmance. With "all the red flágs flying, any prudent purchaser would have looked into the matter and, had he done so, he would have learned of the interest of Po-ladian.

HOBSON, J., concurs.


author: McNEILL, Associate Justice.

text:
    Edward W. FISHBACK, Appellant, v. B. W. YALE, Appellee.
    Supreme Court of Florida. En Banc.
    Dec. 14, 1955.
    Rehearing Denied Feb. 14, 1956.
    Charles E. Davis of Fishback, Williams, Davis & Dominick, Orlando, for appellant.
    Wilson Sanders of Sanders, McEwan & Berson, Orlando, for appellee.
   McNEILL, Associate Justice.

Appellant, as plaintiff below, filed his complaint against the Appellee, and alleged (1) that about the 10th day of January, 1953, plaintiff was riding in a Cadillac automobile being driven by the defendant in a southerly direction on a dirt road, to-wit, the Long Bluff Road, to a gate across said road where it intersects the north boundary of A. A. Fiezl’s land where it adjoins the Tosahatchee Game Preserve; (2) that defendant stopped his automobile approximately ten feet from the gate, and plaintiff got out to open a combination lock which secured the gate; (3) that while plaintiff was unlocking the gate, as aforesaid, the defendant negligently and carelessly drove and operated his car into and against plaintiff, and as a result thereof plaintiff’s left leg was crushed and pinned against a fence post and plaintiff was injured as therein alleged;

Defendant’s motion to dismiss, to strike and for definite statement was overruled and defendant by his answer admitted paragraph 1 of the complaint, and all of paragraph 2 except the words, “approximately ten feet from the gate” which he denied; and denied the allegations of paragraphs 3 and 4 of the complaint; charged that at the time and place alleged plaintiff so negligently and carelessly conducted himself that he contributed to the accident and to his injuries, if any; and by paragraph 6 of the answer he alleged, "that at the time of the alleged incident the plaintiff, Edward W. Fishback and Robert McEwan were on a hunting trip on the Tosohatchee Game Preserve and the defendant, B. W. Yale, had accompanied the said plaintiff and Robert McEwan purely for the ride. The said B. W. Yale not being a member of said Game Preserve and therefore not being able to participate in the hunting trip. The plaintiff, Edward W. Fishback, and Robert McEwan met the defendant, B. W. Yale, at Fort Christmas and rode with the said B. W. Yale to the hunting camp at the Game Preserve. At the time of the alleged incident the said Robert McEwan and B. W. Yale were returning from the hunting camp to Fort Christmas and the said Edward W. Fishback was being transported by the said B. W. Yale as a guest passenger in the automobile of said defendant. That as part of said transportation from the hunting camp to Fort Christmas it was necessary to pass through the gate referred to in the complaint, which gate was locked with a combination lock, the combination of which was known only to said members of said Game Preserve. In order to complete the act of transportation in which the said B. W. Yale was engaging it was necessary to pass through said gate in order to continue on to Fort Christmas. That under the circumstances alleged in the complaint, the defendant B. W. Yale cannot be held liable to the plaintiff, Edward W. Fishback, except for gross negligence.”

On April 13, 1954, plaintiff moved to strike the sixth paragraph of the defendant’s said answer and defendant moved for summary judgment upon the depositions of the plaintiff, the defendant and Robert Mc-Ewan theretofore filed. By order of May 31, 1954, plaintiff’s said motion to strike paragraph 6 of defendant’s answer was denied, and on the same day defendant’s motion for summary judgment was granted and final summary judgment was rendered in favqr of defendant. From this judgment this appeal was taken, and appellant assigns as error that the trial court erred : In granting defendant’s motion for summary judgment; and in entering said judgment; in finding defendant liable to plaintiff only for gross negligence; in .finding there was no evidence legally sufficient to sustain a . charge of gross negligence; in denying plaintiff’s motion to strike defendant’s sixth answer; in finding for defendant and against plaintiff and in finding plaintiff was a guest passenger in the automobile of the defendant.

It appears from the record that the judgment appealed from was rendered on the depositions of the plaintiff, the defendant and one Robert McEwan and from these depositions it appears that plaintiff and Robert McEwan were members of the To-sahatcheé Hunting Club but defendant was not a member thereof; that only members of this club could hunt on the Qub’s preserve or property; that by arrangement between McEwan and defendant, defendant met plaintiff and McEwan at Fort Christmas where plaintiff and McEwan at defendant’s invitation transferred into his Cadillac and defendant drove them to plaintiff’s hunting camp at the hunting club where they transferred to plaintiff’s jeep which plaintiff drove into the swamp where plaintiff and McEwan might hunt while defendant remained in the jeep until they returned thereto; whereupon, they then drove in plaintiff’s jeep back to plaintiff’s camp and there plaintiff and McEwan assisted defendant into defendant’s car, and with defendant driving they all started back to Fort Christmas where plaintiff had left his car, and in order to leave the hunting club property it was necessary to open a gate located across the road they were traveling locked with a combination lock, the combination whereof was known only to members of the club and on arrival at the gate, defendant was driving his car, witness McEwan was (as stated by plaintiff and McEwan) sitting in the middle and plaintiff on the right side; plaintiff dismounted, unlocked the gate which swung open in the opposite direction from -the car; it was dark and the headlights of the car were turned on, the car was stopped three to ten feet from the gate, and plaintiff was standing two or three feet off of the road to the right of the car; wbbe plaintiff was unlocking the gate witness -McEwan and defendant were talking and witness McEwan did not realize the car had moved until it struck plaintiff. The road over which the car was being driven was a dirt road and not a public road and was wet in spots; plaintiff ’ and witness McEwan did not pay defendant anything ' for ' transporting them to and from the hunting club and at the time of plaintiff’s injury he and witness McEwan were being transported by defendant back to plaintiff’s car at Fort Christmas and plaintiff testified that the car was headed straight to the gate; that he saw the car coming toward him rapidly and veering to the right; that he made an effort to move as fast as he could but before getting further than raising his left leg it was struck; that he had known the defendant about a year; that he had been places with him before; that no one was allowed to hunt on Tosahatchee except members; that defendant was not going to hunt there; and that the defendant just went along for the ride.

Witness McEwan testified in substance as above outlined except he stated they ■stopped around six feet from the gate and plaintiff got out to unlock the combination lock; that defendant turned the Cadillac so that plaintiff could see the combination better; that he turned facing defendant and was talking to him and didn’t know the car had even moved until the plaintiff yelled “back up”; that he didn’t know what action defendant took in connection with the accident so far as driving the car was concerned; that he didn’t remember any shifting of, the gears; that plaintiff was out of the car not more than two minutes working the combination and had his back toward the car; that he and plaintiff had planned to go out to roost some turkeys; that defendant liked to go in the woods; that he invited defendant to go along because defendant was a good friend of the witness and when asked, “'Just a matter of mutual pleasure?” The witness answered, “That’s right.” When asked what kind of road it was, he answered, “It is a sand road. It’s covered with grass most of the time. INot very deep. There’s ruts, but not what you would call deep ruts. It’s fairly smooth”; and further stated it was a private road and that you had to be a member of the club to know the combination of the lock; that the car was turned off toward the post because the lock was on that side ■ and the defendant turned it towards plaintiff so he could see the combination.

Defendant Yale in his deposition testified in substance that the boys Ed and Bob got in his car at Christmas and drove down to Tosahatchee, went to Ed’s camp and transferred to Ed’s jeep; that Ed and Bob wanted to go look for a turkey roost; that he sat in the jeep until they returned after dark; that it was very cold; that when plaintiff and witness McEwan returned to the jeep from the woods they went back to plaintiff’s camp. The appellant and McEwan put witness in his car and they drove possibly a hundred yards to the gate; that the car did not have time to warm up; that he turned his headlights up to the lock and plaintiff pushed the gate back and in order to turn through the gate he had to back his car; that he was close to and facing plaintiff; that he pulled his car into reverse and as he had to pull through “drive”, probably because the grease in the hydromatic was cold, the car jumped ahead; that he realized it instantly and before plaintiff had yelled defendant had it in reverse and backed up ; that it hit plaintiff’s leg against the post; that witness McEwan brought plaintiff to' the car and held him in his lap while defendant drove to the hospital; that if he had headed straight for the gate he would have just gone ahead but plaintiff had to have the benefit of the lights so he turned the car close to the lock so plaintiff could work the combination; that the car was stopped three to five feet from the gate post; that the light would not have been effective at a longer range; and defendant further testified that witness McEwan was on the lefthand side of the back seat sitting back of defendant and he and witness Mc-Ewan were “just talking” and when asked if he turned around to talk to McEwan, he answered, “Possibly. When I would, I didn’t turn all the way around. I couldn’t say whether I was talking to Bob or to Ed, I don’t know. I certainly didn’t turn around, no.” He then said he realized the car was moving the minute he shifted; that the gear shift lever worked across. The car was in neutral and in order to shift into reverse it was necessary to pass through drive and low gear, and when asked “How did three of you happen to be riding in your car?” defendant' stated, “Well, I asked the boys to ride with me.' Met them at Christmas and I said I would take them down there and they accepted and got in the car and we drove down in my car.” The witness McEwan requested him to go with them, to meet them at Christmas and take them into the woods; that defendant could be of help in blowing the horn in getting them out of the woods, and then said “not walking, as you understand. And understand the rules of the club, too, I wasn’t privileged to hunt. Well, I couldn’t have anyway.” He further testified that his car was four years old, he had driven all over the country, eighty-one thousand miles, including ninety miles in the mountains in a pouring rain and had never made a mistake while driving it and when asked, “Now, you were out there at that hunting preserve, at the invitation of Mr. Mc-Ewan? Is that the way you got started?” The witness answered, “No. No, Mr. Mc-Ewan asked if I wanted to meet them at Christmas.' The inference was, I would drive them from Christmas and they could go with me into the woods and I was glad to do it. I thought I was rendering a serv-’ ice.”

The record discloses that at the time and place of appellant’s injury defendant was operating his automobile on a private road, not a public highway or street and appellant contends that for this reason Section 320.59, Florida Statutes, F.S.A. (known as the Florida Guest Statute) is not applicable because said Section 320.59 is by Section 320.01(1), Florida Statutes, F.S.A., restricted and limited in its application to automobiles when operated on a public highway or street. , Section 320.59, Florida Statutes, F.S.A., reads,

“No person transported'by the owner or operator of a motor vehicle as his guest or passenger, without payment for such transportation, shall have a cause of action for damages , against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross- negligence or willful and wanton misconduct of the owner or operator of such motor vehicle, and unless such gross negligence or willful and wanton misconduct was the proximate cause of the injury, death or loss for which the action is brought; provided, that the question or issue of negligence, gross negligence, and willful or wanton misconduct, and the question of proximate cause, and the issue or question of assumed risk, shall in all such cases be solely for the jury; provided that nothing in this section shall apply to school children or other students being transported to or from schools or places of learning in this state.”

This section’ was first enacted as Chapter 18033, Acts of 1937, and was later brought for.ward in the compilation or codification of our statutes and now appears as Section 320.59 in identically the same form as originally enacted.

In Koger v. Hollahan, 144 Fla. 779, 198 So. 685, 687, 131 A.L.R. 886, the Court in considering this guest statute said, “The sole purpose of the legislature in passing the act, as we construe the simple language which they used, was to prevent one who traveled with another in a car as a guest, or without compensation, from recovering unles.9 it .was proven that the driver of the car was guilty of the greater degree of negligence. Evidently, they were concerned with the propriety and fairness of the recovery by a free-rider, whether invitee or ‘hitch hiker’, for ordinary negligence of a driver and sought to confine the recovery of one who traveled without charge to damages cáused by negligence that was gross or misconduct that was wantoni When the act is considered as a whole the predominant feature is the degree of negligence and not the relationship between the driver and the ■owner * *

Section 320.01, Florida Statutes, F.S.A., in part reads,

“In construing these statutes, when applied to motor vehicles, where the context permits, the word, phrase or term:
“(1) ‘Motor vehicle’ includes automobiles, motorcycles, motor trucks and all other vehicles operated over the public highways and streets of this state and propelled by power other than muscular power, but does not include traction engines, road rollers and such vehicles as run only upon' a track. * * * ff

This section 320.01 was first enacted substantially in its present form as Section 1 of Chapter 7275, Acts of 1917, entitled,

“An Act to License and Regulate the Running of Motor Vehicles on the Public Highways, and to Provide for the Registration Thereof; to Fix the Amount of Annual License to be Paid into the State Treasury; to Provide for the Distribution Among the Several Counties of the Fund Thus Created and the Expenditure of Same on State and State Aid Roads and Bridges; to Provide Penalties for the Violation of Certain Sections Thereof; to Amend Chapter 5437, Acts of ■ 1905, Entitled ‘An Act Regulating the Running of Automobiles or Motor Vehicles on the Public Roads or Highways in the State of Florida;’ and also to Amend Chapter 6881, Acts of 1915 Entitled ‘An Act to Amend -Chapter 6212 of the Acts of the-Legislature of 1911, Same Being Entitled, “An Act to License Automobiles and Other Motor Driven Vehicles Using the Public Roads or Highways of the State of Florida, Either for Hire or Otherwise.” ’ ”

This Chapter 7275 originally consisted of twenty-nine sections and had to do exclusively with the -registration, licensing, equipment, dealers’ registration tags, disposition of license moneys, counterfeiting tags, failure to register motor vehicles, license plates how displayed, regulation of for-hire vehicles, maximum weight, length, width and height, rough surface wheels prohibited, crossing railway tracks, regulation of traffic on state roads, appointment of License Inspectors, denial, suspension or revocation of license, penalties for .violation, and many other regulator and licensing sections, and did not purport to limit or regulate the right-of a guest to recover damages from the owner or operator of a motor vehicle as is provided for in our guest statute, supra, or otherwise. Our guest statute is clear and unequivocal in its language and does not make the slightest reference to public highways or streets but is couched in language indicating a -clear legislative intent that it shall apply to automobiles operated on a private road or way as well as on a public highway or street and since this guest statute was not enacted until twenty years after the enactment of the aforesaid Chapter 7275 and was included in Chapter 320, Florida Statutes of 1953, F.S.A., only in the compilation or codification of our statutes, and because Section 320.01 above quoted does not by its terms apply or purport to apply to every section of said Chapter 320, but provides that in construing these statutes when applied to motor vehicles “where the context permits” (emphasis supplied) “the. word, phrase or term: (1) ‘motor vehicle’ includes automobiles * * * operated over the public highways and streets of this state * * * ”, we are unable to agree with appellant’s contention that this guest statute is by Section 320.01 limited or restricted to automobiles when operated upon a public highway or street. To give to this guest statute the construction con-, tended for would lead to many odd and inequitable situations. By way of illustration, if the owner of an automobile, while operating it on a public highway with,two guests A and B, should find the highway blocked or washed out, making it necessary to leave the highway and detour a hundred yards over private property and while making such detour guest A was injured by the simple negligence of such owner guest A would have a cause of action for simple negligence, but if the host was before leaving the highway onto such detour or immediately upon returning onto the highway guilty of simple negligence and thereby guest B was injured, guest B would have no cause of action against such operator. We are unable to agree that the legislature in the enactment of our guest statute intended to limit or restrict its application in such manner as to create situations such as above illustrated, or that it is so limited or restricted by Section 320.01, Florida Statutes, F.S.A., above quoted. See McMillan v. Nelson, 149 Fla. 334, 5 So.2d 867-870.

We are not aware of any decision of this Court and none had been cited holding that Section 320.59, Florida Statutes, F.S.A., was not applicable to cases wherein an automobile guest sought to recover damages from his host for the negligent operation by the host of his automobile on a private road or place, except in Sproule v. Nelson, Fla., 81 So.2d 478, where the following language was used:

“From F.S. Sections 320.59 and 320.-01(1) F.S.A. it appears that the guest statute will be invoked only when the motor truck is operated over the public highways,”

but by order of September 8, 1955, this quoted language was stricken from that opinion and this order will doubtless appear in a later permanent volume of the Southern Reporter.

Appellant next contends that he was not a guest of appellee at the time of his injury and was not then in appellee’s automobile but had dismounted therefrom to open a gate. From the evidence adduced before the trial judge when he entered the judgment herein appealed from, a full resume whereof is, for the purpose of clarity set forth in the fore part of this opinion, it appears without dispute that at appellee’s request appellant had been transported by appellee in his automobile from Fort Christmas to Tosahatchee Hunting Club and to appellant’s hunting camp thereon in order that appellant and witness Mc-Ewan might hunt or search for turkey roosts while appellee remained in appellant’s jeep and that on leaving said hunting camp on their return trip to Fort Christmas, where appellant had left his car appellant was riding in the car of appellee driven by appellee until they reached a gate across the. road on which they were traveling when appellant dismounted to release the combination lock on the gate and to open the gate in order that appellant, appellee and witness McEwan might continue their contemplated journey to Fort Christmas. It further appears from the record that neither appellant nor witness McEwan paid appellee anything of .value for transporting them to and from appellant’s hunting camp; that appellee was not physically able to hunt and not being a member of the hunting club was not permitted to hunt on its preserve or property and it was never contemplated by any of the parties that he would hunt on the property. The journey was not made for the transaction of any business in which appellant and ap-pellee were mutually interested or for the transaction of any business in which ap-pellee alone was interested and no benefit was conferred upon or received by appellee other than such as ■ is incidental to hospitality, goodwill and the like, and the only reason plaintiff dismounted from defendant’s automobile at the gate was to open the gate through which the automobile would pass to continue the journey contemplated by all the parties to Fort Christmas where plaintiff had left his car.

The guest statutes of many states use the language “riding in” or “while riding in” or “while riding in or upon” the motor vehicle, but our guest statute, Section 320.-59, is quite different in that it reads, “no person transported by the owner or operator” * * *, so the authorities cited by appellant where the statutes under consideration read “riding in” or “while riding in” are not applicable or controlling in the case at bar.

The statutes of Michigan and Connecticut and the Rule established by Judicial De-cisión in Massachusetts are. for,the purposes of this, the instant case,' the same as our guest statute and the Supreme Court of Michigan, in Langford v. Rogers, 278 Mich. 310, 270 N.W. 692, 695, in construing the Michigan statute, said:

“A ‘guest’ within the meaning of the Michigan statute here involved may' be defined as one who is carried or transported by the owner or operator of the motor vehicle, whether by express invitation or by implied consent or invitation. So long as the party transported accepts the hospitality of the owner or driver, or is carried or transported by reason of an implied invitation of such owner or operator of the motor vehicle, as in this case, for his own entertainment, pleasure, and enjoyment, without compensating the owner of the vehicle, he is a guest' within the meaning of the statute. * # * ”

And the Court further stated,

“Plaintiff’s decedent fastened his toboggan to the bobsled and was towed by the motor vehicle at the implied invitation of the owner or operator of the vehicle. He gratefully accepted the friendly indulgence and kindness of the driver of the motor vehicle as a means of conveyance rather than to walk. He rode the toboggan so attached for his own pleasure, for his own purposes, without making any return' to or conferring any benefit upon the driver of the motbr vehicle. He was a grateful recipient of the natural and acceptable generosity of the driver thereof. Plaintiff’s decedent was a guest within the meaning of the Michigan statute. He was a person ‘trans-' ported by the owner or operator 'of a motor vehicle as his guest without payment for such transportation,’ * * and as such, by the express terms of the statute, his personal representative is denied a right of action except for gross negligence or willful and wanton misconduct of the, owner or operator ,of such motor vehicle causing decedent’s death. Such, gross, negli--gence or wanton and willful misconduct is not claimed or proved.”

And in Castle v. McKeown, 327 Mich. 518, 42 N.W.2d 733, 734, the Supreme Court' of Michigan said,

“Plaintiff Ella Castle was injured when the car of defendant Charles McKeown ran over her. The parties, who had known each other for some years, left Lansing together one summer Sunday afternoon. They drove in the McKeown car to Lake Lansing, where they spent the remainder of the day and ate the usual park refreshments.
“While en route home, after dark, Mrs. Castle told McKeown that she was ill and asked him to stop the car. He apparently did not hear her, but did stop shortly thereafter to examine his rear tire which he thought was flat. The car was then at the side of a country road on a slight up-grade, with the motor running and the emergency brake not set. Both parties left the car. Mrs. Castle claims that she went to a shed in a nearby field. When she returned in a few minutes, McKeown was not in the car. She opened the door on the right side and put one foot on the running board. As she was about to enter, the car moved and she was thrown under it. McKeown then stopped the car, saw Mrs. Castle lying on the ground, helped her in and took her to a hospital. Her legs ‘ were seriously injured.
“Plaintiff’s declaration is based on negligence. She neither claimed nor proved wilful and- wanton misconduct or gross negligence. The trial judge, - who heard, the case without a jury,, .found McKeown negligent and Mrs. Castle -free from contributory negligence. He held, however, that she was being transported as a guest within the meaning of the Guest Act * * and denied recovery.
“On appeal plaintiff - contends that the transportation ceased when the car .was stopped and the parties alighted. She argues that the trip had not yet "been resumed when she was injured and, thetefore, at that time she was not being transported as a guest * *.
“The purpose of the guest act is to protect owners and operators of automobiles from liability for ordinary negligence arising during the gratuitous passage furnished to others. * *
“In the instant case the journey had not ended. The interruption was not. over five minutes and was for purposes directly related to the trip and mutually beneficial to both driver and passenger. Transportation from the lake to plaintiff’s home was still in progress at the time Mrs. Castle was injured. She was then a guest being transported within the meaning of the statute.”

And in Bragdon v. Dinsmore, 312 Mass. 628, 45 N.E.2d 833, 146 A.L.R. 680, decided by the Supreme Court of Massachusetts, where the rule as to the liability of an automobile host or operator to his guest is in substance the same as the Florida Guest Statute, the Court said,

“There was evidence that on October 4, 1941, the defendant drove his automobile to the plaintiff’s home where the latter and'his. wife entered the vehicle. By prearrangement, they, and the defendant were to attend a beano party, to be held in Eagles Lodge Hall on West Street, Haverhill. It' was the intention of all three ‘to attend the beano 'game in the afternoon, have supper together, and then to go home in the defendant’s car. It was a social' occasion. Each * * * was to pay his own cost for playing beano 'and eating supper.’ Arriving at a parking area on West Street adjacent 'to the ‘Lodge Hall,’ the defendant started to park his vehicle' in' a space' between two other parked automobiles. •He had some difficulty in so doing and -‘went forward and backed up a couple of times,; but1 could not get .in.’ The plaintiff said, ‘Do you want me t.o help you?’ and the defendant said ‘Yes.’ The plaintiff, then ‘got out and ■ went around to the front of the car.’ As he stood, with his face toward the front of the defendant’s vehicle and with his back to one of the parked automobiles, the defendant ‘who was stopped about four or five feet away from the plaintiff, suddenly shot forward and pinned the plaintiff to the rear of * * * (a) parked car,’ causing the injuries complained of. ‘There was evidence the defendant was negligent’ and that his negligence caused the plaintiff’s injuries.
“The judge granted all of the plaintiff’s requests for rulings to the effect, so far as here material, that the ‘host and guest relationship between the plaintiff and-the defendant had ceased at the-time of the accident.’ He denied the requests of the defendant, in substance, that at the time of the plaintiff’s injury the relationship just referred to had not ceased, and that the ‘plaintiff cannot recover unless on proof of gross negligence.’ The judge granted the defendant’s request for a ruling that -as matter of law there was ‘no evidence that the - defendant was guilty of-gross negligence.’ In connection with his action upon the requested rulings, the judge found certain of the facts hereinbefore set forth as disclosed by the evidence and further found that in ‘the act of turning the front wheels of * * * (the), automobile, the defendant’s foot slipped from the brake pedal to the accelerator,’ thus causing the ■ automobile to bound forward and injure the plaintiff. The judge also found that the ‘gratuitous undertaking, which the defendant assumed, ended when the plaintiff got out -of the automobile at * * * (the) parking area,’ that the defendant was negligent, that the plaintiff was in the exercise of due care at the -time, of the' accident, and. found for the plaintiff.
“The decisive question is whether at the time of the accident the plaintiff was a mere guest, in which event the defendant would not be liable in the absence of gross negligence; or whether that relátioñship had ceased, in which case the defendant would be liable if guilty of ordinary negligence.”

And citing cases, including Ruel v. Langelier, 299 Mass. 240, 12 N.E.2d 735, said,

“In the Ruel case *' * *, it was sáid that the ‘degree of the defendant’s duty does not depend upon the physical position of the plaintiff at the moment of the accident, or upon whether she was then in the defendant’s automobile or outside of it, or upon whether in everyday language she would be described as a guest. The degree of the defendant’s duty depends upon whether the act of the defendant claimed to be negligent was an act performed in the course of carrying out the gratuitous undertaking which the defendant had assumed.’
“In the instant case the evidence discloses that there was a definite arrangement, entirely gratuitous, to transport the plaintiff and his wife to the hall in question; that they and the defendant were to attend the beano game, have supper, and thereafter the plaintiff and his wife were to be driven home by the defendant in his automobile. It would seem obvious that the parking of the automobile was necessarily incidental to the accomplishment of the gratuitous undertaking, in order to carry out its pre-arranged purpose. * * * In the present case the outward journey had not been ended, the automobile had not been parked, and the gratuitous undertaking' had not been completed in an essential part. The action of the judge in granting the plaintiff’s requested rulings, that the relationship of host and guest between the parties had ceased at the time of the accident and that proof of gross negligence was not essential to recovery, and in denying the defendant’s request to the contrary, was erroneous.”

Appellant next contends that the trial court in entering the judgment appealed from erred in finding and holding that defendant was not guilty of gross negligence and in entering the judgment appealed from.

In Brown v. Roach, Fla., 67 So.2d 201, 203, when considering a case brought under Section 320.59, Florida Statutes, F.S.A., the Court said,

“The question of what constitutes ‘gross negligence or wilful and wanton misconduct of the owner or operator’ of a motor vehicle has been before this court many times and this court is still committed to the rule that ‘gross negligence’ and ‘wilful and wanton misconduct’ are synonymous.”

citing Cormier v. Williams, 148 Fla. 201, 4 So.2d 525; Dexter v. Green, Fla., 55 So.2d 548; DeWald v. Quarnstrom, Fla., 60 So.2d 919, and then said,

“So, the act complained of must be of such character that the operator would know, or should know, that, by doing the act in the manner done and at the time alleged, he placed others in danger of injury. All the circumstances of each particular case, that is, every act or omission must be considered in determining whether liability exists.”

Applying the above cited definition of what constitutes gross negligence and wilful and wanton misconduct under our Guest Statute to the evidence in the instant case, we think it is clear that the evidence was not sufficient to constitute gross negligence or wilful and wanton misconduct and that the trial court was without error in so holding, and having reached this conclusion, we think no error was committed by the trial court in entering the judgment appealed from without the intervention of a jury.

See, Cormier v. Williams, 148 Fla. 201, 4 So.2d 525; Koger v. Hollahan, 144 Fla. 779, 198 So. 685, 131 A.L.R. 886.

See also, Ling v. Edenfield, 5 Cir., 211 F.2d 705.

We have considered all other questions raised by appellant by his assignments of error or briefs and are of the opinion that no reversible error has been made to appear and that the judgment appealed from should be affirmed. It is so ordered.

DREW, C. J., and TERRELL, THOMAS and SEBRING,.. JJ., concur.

ROBERTS, J., dissents.

THORNAL, J., not participating.


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    The CITY OF MIAMI BEACH, a Municipality created and existing under the laws of the State of Florida, Petitioner, v. Jessie S. REID, a widow, Respondent.
    Supreme Court of Florida. Division B.
    Jan. 27, 1956.
    Rehearing Denied Feb. 20, 1956.
    Ben Shepard, Miami, and Joseph A. Wanick, Miami Beach, for petitioner.
    John M. Murrell, John M. Murrell, Jr„ and Raymond L. Wise, Miami, for respondent.
   PER CURIAM.

Certiorari granted and the order quashed on authority of City of Miami Beach v. Silver, Fla., 67 So.2d 646, with leave to respondent to file such amended pleadings as she may be advised.

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


text:
    Jay Bryon COOPER, Appellant, v. James M. BREEDING, Lawrence W. Breeding and Harvey J. Breeding, co-partners, d/b/a Breeding Economy Drug Stores, Appellees.
    Supreme Court of Florida. Special Division A.
    Dec. 2, 1955.
    Rehearing Denied Jan. 6, 1956.
   PER CURIAM.

Affirmed.


text:
    STATE FAIR, Inc., a Florida corporation, and Sunshine State Fair, Inc., a Florida corporation, Appellants, v. Walter ICHELN and Lillian Icheln, his wife, Appellees.
    Supreme Court of Florida. Special Division B.
    Jan. 13, 1956.
    Rehearing Denied Feb. 9, 1956.
   PER CURIAM.

Affirmed.


author: PER CURIAM

text:
    Robert J. SYDNOR and wife, Beryl L. Sydnor, Appellants, v. J. Stanley PECAREK and wife, Helen H. Pecarek, Appellees.
    Supreme Court of Florida. Division A.
    Jan. 25, 1956.
   PER CURIAM

Affirmed.


text:
    Theodore S. WILLIAMS, Petitioner, v. Doris R. WILLIAMS, Respondent.
    Supreme Court of Florida, Special Division B.
    Dec. 20, 1955.
    Rehearing Denied March 5, 1956.
    Anderson & Nadeau, Miami, for petitioner.
    Ward & Ward, and L. Earl Curry, Miami, for respondent.
   PER CURIAM.

By a petition for certiorari Theodore S. Williams seeks reversal of a decree supplementary to a decree of divorce which awards to respondent a lump sum settlement in lieu of permanent alimony, together with certain required weekly alimony payments pending ultimate payment of the lump sum award.

On May 9, 1955, the Chancellor awarded a final decree of divorce -to the respondent and reserved jurisdiction to' dispose of certain property rights and alimony considerations. By a supplemental decree dated May 11, 1955 the Chancellor required disposition of certain parcels of property and included in his decree the following provision:

“5. As a lump sum settlement, and in lieu of alimony or other claim for property settlement, the plaintiff is hereby awarded a lump sum settlement .of $50,000.00 to be paid by the defendant to the plaintiff in full and complete settlement of all such claims for alimony, property settlement or lump sum claims, which said sum shall be paid by the defendant on or before two years from date hereof. Until such payment is made the defendant shall continue to pay to the plaintiff as alimony the sum of $125.00' per week to be paid each and every ■week, continuing in the same manner as it has heretofore been paid, said payment to be made at least by Saturday of each week beginning with Saturday May 14, 1955, which payment shall not be charged against the lump sum settlement of $50,000.00, the court having taken into consideration. that with the sum of $50,000.00 the plaintiff will have funds for investment and for use. The obligation to make this payment shall be terminated after the $50,000.00 has been paid to the plaintiff.”

The record has been carefully considered and we fail to find any basis for denying to the decree appealed from the presumption of correctness to which it is entitled except in the particulars hereinafter pointed out. The Chancellor heard the evidence and obviously made a fair and reasonable effort to adjudicate the property rights and financial arrangements that should control in the situation that developed before him.

With reference to the quoted provision of the decree, however, it appears that the Chancellor fixed the lump sum settlement of $50,000 to be paid within two years and provided that pending ultimate payment the petitioner would be required to pay the respondent $125 per week which would not be credited against the lump sum. It appears to us that the petitioner should not be penalized during the period of time the Chancellor obviously allowed to him to arrange his affairs in order to enable him to make the substantial lump sum settlement. At the same time we recognize that the respondent doubtless will be in need of funds for living expenses and that she should be entitled to interest at the legal rate during the period that the lump sum payment is held in abeyance.

The particular provision of the decree appealed from should be modified so as to provide for interest on the lump sum award at the rate of six percent per annum from the date of the decree until paid within the two-year period allowed by the Court, but with the further proviso that all amounts paid to the respondent weekly as alimony under the decree shall be credited against the lump sum award with interest accrued thereon at the rate stipulated when the lump sum is ultimately paid.

The petition is therefore granted with reference to the particular provision of the decree above quoted and as to that provision the decree appealed from is quashed and the cause is remanded for modification of the decree in accordance with this opinion.

In all other respects the petition is denied.

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


text:
    The CITY OF MIAMI BEACH, a municipality created and existing under the Laws of the State of Florida, Petitioner, v. Ralph LACHMAN and Jean Lachman, Respondents.
    Supreme Court of Florida. Special Division B.
    Feb. 8, 1956.
    Ben Shepard, Miami, Joseph A. Wan-ick, Miami Beach, and Anderson & Nadeau, Miami, for petitioner.
    Ben Cohen, Miami Beach, for respondents.
   PER CURIAM.

On November 18, 1955, petition for writ of certiorari was denied without opinion. Upon petition for rehearing we have reexamined the entire record in the light of the extensive litigation affecting lands in the particular area where the land involved in this cause is situated.

The court is thoroughly familiar with the history of this litigation as reflected by our opinions in City of Miami Beach v. Hogan, Fla., 63 So.2d 493; City of Miami Beach v. Elsalto Real Estate, Inc., Fla., 63 So.2d 495; City of Miami Beach v. Lachman, Fla., 71 So.2d 148; and City of Miami Beach v. Kay, Fla., 71 So.2d 725. Upon applying the holdings of these cases to the amended bill of complaint in the case before us, we are now led to the conclusion that the amended bill of complaint failed to state a cause of action and should have been dismissed.

We, therefore, recede from our previous order denying the petition for certiorari, and the petition is hereby granted, and the order denying the motion to dismiss the amended complaint is hereby quashed, with directions to the lower court to enter an order dismissing the amended complaint.

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


text:
    H. L. CLARK, Jr., et al., Appellants, v. MIAMI SHORES VILLAGE, Appellee.
    Supreme Court of Florida. En Banc.
    Jan. 18, 1956.
    Rehearing Denied March 5, 1956.
    Marion E. Sibley, Miami Beach, Thomas Jean Ellis and S. Grover Morrow, Miami, for appellants.
    Anderson & Nadeau, Miami, for appel-lee.
   PER CURIAM.

This appeal is from a final order of the Circuit Court granting a motion to dismiss the amended complaint because it did not state a cause of action. The amended complaint sought to enjoin the enforcement of a municipal ordinance restricting the use of appellants’ property to that of “single family residences.”

A careful review of the amended complaint leads this Court to the conclusion that there is equity in the complaint and the motion should have been denied. The order appealed from is therefore reversed and the cause remanded for answer by the appellee and further proceedings by the circuit court.

Reversed. .

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

ROBERTS, J., not participating.


text:
    BAILEY’S AUTO SERVICE, Employer, and Glens Falls Indemnity Co., Carrier, Petitioners, v. Richard MITCHELL, Deceased, and The Florida Industrial Commission, Respondents.
    Supreme Court of Florida. En Banc.
    Feb. 3, 1956.
    Rehearing Denied March 5, 1956.
    Paul H. Roney and Mann, Harrison, Stone, Roney & Mann, St. Petersburg, for petitioners.
    James T. Earle, Lovelace, Earle & Deal, St. Petersburg, and Bumis T. Coleman, and Rodney Durrance, Tallahassee, for respondents.
   PER CURIAM.

This matter comes before the Court cm a petition for writ of certiorari to review an order of the Florida Industrial Commission affirming an order of the Deputy Commissioner directing payment of workment’s compensation benefits to the three minor children of Richard Mitchell, deceased.

Mitchell and one Appling were employees of petitioner Bailey. Mitchell was killed in an altercation with Appling on the premises of the employer on June 2, 1952. He was survived by a widow and three minor children. The widow remarried on February 3, 1954. On July 6, 1954, more than two years after the death of the decedent, the remarried widow filed a petition for award of workmen’s compensation benefits to the minor children, waiving any claim for benefits to herself.

The claim was contested before the Deputy .Commissioner and again before the full Commission on the ground that the Statute of Limitations, Section 440.19, Florida Statutes, F.S.A., had run inasmuch as the claim was filed more than two years after the death and on the further ground that the death of the employee did not re-suit “from an injury arising out of and in the course of employment.” See Section 440.09, Florida Statutes, F.S.A. The Deputy and the full Commission found that the Statute of Limitations had not run against the claim of the minors and further that the death resulted from an injury “arising out of and in the course of employment”, and, ’ therefore, the claim, of the children was compensable. These rulings are assigned as errors.

We hold that the claim of the minors was not barred by the Statute of Limitations. Section 440.16, Florida Statutes, F.S.A., provides the amount of compensation to be paid upon the death of an employee. Under this statute if the decedent is survived by a widow, but no children, the widow receives 35% of the average weekly wage. Under Section 440.16(2) (c), Florida Statutes, if there is -á widow and minor children, she is allowed an additional 15% on account of each child, but in the event of her remarriage, then 25% for each child. It is clear from the language used that the Legislature intended that payment to the widow be grounded entirely upon the existence of the marriage relationship and the continuance of her status as a widow. Upon her remarriage, it is also clear that the Legislature 'intended that compensation to her cease but that the amount to be paid each child should be increased.

Under Section 440.19(1), Florida Statutes, F.S.A., the right to compensation is barred unless a claim is -filed within two years after death. Paragraph 3 of this section, however, reads as follows:

“(3) If a person who is entitled to compensation under this chapter is mentally incompetent or a minor, the provisions of subsection (1) shall not be applicable so long as such person has no guardian or other authorized representative, but shall be applicable in the case of a person who is mentally incompetent or a minor from the date of appointment of such guardian or other representative, or in the case of a minor, if no guardian is appointed before he becomes of age, from the date he becomes of age.”

Our analysis of these statutes leads us to the conclusion that a minor cannot be bound by the failure of the mother to pursue a remedy that is made available by law for the benefit of the minor. The language of Section 440.19(3), Florida Statutes, F.S.A., appears to us to be a clear expression of the legislative intent that the statutory period of limitations does not begin to run against a minor until the appointment of a guardian or other representative. The right of a minor to assert his claim continues until his majority unless in the meantime a guardian is appointed or some appropriate proceeding.is taken to establish his right.

Minors are traditionally favored wards of the law and-when we apply an act such as the workmen’s compensation law liberally, as we are bound to do, it seems inescapable that every reasonable intendment is to be extended to minors and persons mentally incompetent. So far as the Statute of Limitations is concerned, therefore, the right to compensation was not barred.

Mr. Chief Justice DREW' and Justices TERRELL, TFIOMAS, HOBSON, ROBERTS, THORNAL and O’CONNELL concur in the foregoing with reference to the Statute of Limitations.

On the matter of the compensability of the claim asserted by the respondents, Mr. Chief Justice DREW and Justices TERRELL, THOMAS, ■ HOBSON and ROBERTS are of the view that the claim is compensable under the Florida Workmen’s Compensation Act and that the order of the Florida Industrial Commission affirming the order of the Deputy Commissioner awarding compensation should be affirmed. Justices THORNAL and O’CON-NELL are of the view that the claim is not compensable under the Florida Workmen’s Compensation Act.

The petition for writ of certiorari is, therefore, denied.

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


text:
    Fred WRIGHT, Petitioner, v. Nathan MAYO, as Custodian of the Florida State Prison, Respondent.
    Supreme Court of Florida. Division A.
    Jan. 6, 1956.
    Rehearing Denied March 5, 1956.
    Fred Wright, petitioner, in pro. per.
    Richard W. Ervin, Atty. Gen., and Jos. P. Manners, Asst. Atty. Gen., for respondent.
   HOBSON, Justice.

Petitioner in this habeas corpus proceeding alleges that the sentences which he is serving were improperly entered. On October 16, 1930, he was adjudged guilty, in thirteen separate cases, of breaking and entering a building with intent to commit a felony. These cases were numbered 497, 498, 499, 501, 502, 505, 506, 508, 509, 511, 513, 522 and 523. In each case he was sentenced to three years of imprisonment. In the first case, number 497, petitioner was sentenced to be “confined in the said state penitentiary at hard labor for the period of three years, from the date of your incarceration therein.” In case number 498 the sentence was stated to be “for the period of three years, from the date of your incarceration therein, and after the expiration of your sentence in number 497 of this term." Each subsequent sentence used the same language as that in case number 498, but referred to the case number preceding. In spite of the use of the language “from the date of your incarceration therein” in case number 498 et seq., we think it was plainly the intention of the court that the sentences should run consecutively, each sentence commencing with the expiration of the sentence in the previous case. Petitioner, however, contends that the sentences were so vague and indefinite as to commencement date that only the first three-year sentence was lawful. He has twice escaped from the penitentiary but has served seven and one half years under these sentences. If his contention is correct, therefore, he is unlawfully held.

Petitioner relies on Gillman v. Chapman, 150 Fla. 724, 8 So.2d 653; Lake v. McClelland, 101 Fla. 536, 134 So. 522, and Wallace v. State, 41 Fla. 547, 26 So. 713. The Lake and Wallace cases were decided upon clearly distinguishable facts and do not merit discussion upon this petition. The Gillman case, however, appears at first quite similar to the instant case. In that case two informations had been brought against the petitioner in cases numbered 1434 and 1437. Each information consisted of two counts, and Gillman, the petitioner, was adjudged guilty on both counts of each information. In case number 1434, Gillman was sentenced to nine years on the first count and four years on the second. There was no indication as to whether these sentences were to run consecutively or concurrently, and the sentences were entered before the passage of F.S. § 921.16, F.S.A., which was intended to clarify such a situation. In case number 1437 Gillman was sentenced on the first count to “Eight Years, and after the expiration of your sentence in the second count of the Information in this case #1434, this term * * On the second count he was sentenced to “Three Years on the second count of this Information, and after the expiration of your sentence in the first count hereof.” Since it was impossible to determine whether or not the sentences imposed in case number 1434 were intended to run concurrently or consecutively, we held that the sentences in case number 1437 were void for vagueness, inasmuch as the sentences in the latter case were dependent for their starting date upon the expiration of the uncertain sentences in the former case.

In the case at bar we do not have the same situation. Case number 497 herein resulted in a single sentence of three years. The three-year sentence in case number 498 was intended to commence at the expiration of the single sentence given in case number 497. The sentence in each subsequent case was intended to start when the sentence in its predecessor case had expired. We therefore cannot say as we did in the Gillman case [150 Fla. 724, 8 So.2d 654] that the sentences, or any of them, are “so vague and uncertain as to be of no force and effect * *

It follows that the writ of habeas corpus heretofore issued in this case must be, and the same is hereby, quashed, and the petitioner remanded to the custody of respondent.

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


text:
    Frederic C. COLLIN, Appellant, v. C. E. DE PUY, Appellee.
    Supreme Court of Florida. Division B.
    Feb. 8, 1956.
    Gibson & Gibson and Paschal C. Reese, West Palm Beach, for appellant.
    Winters, Foskett, Cook & Brackett, West Palm Beach, for appellee.
   PER CURIAM.

This cause came on to be heard on motion of appellee to affirm the judgment appealed from pursuant to Rule 38 of the rules of this court, 30 F.S.A., and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly ordered, adjudged and decreed that the motion to affirm the judg-memt appealed from be and the same is hereby granted, and the judgment is

Affirmed.

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


text:
    A. J. TURNER and Johnnie M. Turner, husband and wife, doing business under the trade style of Bert Tire Company, Appellants, v. POWER BRAKE & EQUIPMENT COMPANY, a Florida corporation, and L. R. Holton, as Sheriff of DeSoto County, Florida, Appellees.
    Supreme Court of Florida. Special Division B.
    Feb. 10, 1956.
    Halley B. Lewis, Arcadia, for appellants.
    Cooper, Cooper & Killian, Tampa, for ap-pellees.
   PER CURIAM.

Affirmed on authority of Greenfield Villages, Inc., v. Thompson, Fla., 44 So.2d 679, it appearing that the appellant has an adequate remedy at law. As explained in Fair v. Tampa Electric Co., 158 Fla. 15, 27 So.2d 514, and Kellerman v. Commercial Credit Co., 138 Fla. 133, 189 So. 689, there is no time limit imposed on the motion for stay of execution provided for in Section 55.38, Florida Statutes, F.S.A. Compare Atlantic Coast Line R. Co. v. Lake County Citrus Sales, Inc., Fla., 48 So.2d 922.

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


author: STANLY, Associate Justice.

text:
    STATE of Florida ex rel. The FLORIDA BAR, Complainant, v. W. Cecil GRANT, Respondent.
    Supreme Court of Florida. En Banc.
    Feb. 10, 1956.

      Chester Bedell, Jacksonville, for The Florida Bar, complainant.
    Raymond & Wilson, Horn & Ossinsky, Adams & Judge and. Charles E. Booth, Daytona Beach, for respondent.
   STANLY, Associate Justice.

The question submitted is whether the amended complaint filed by the Florida Bar against one of its members for alleged professional misconduct is sufficient to withstand the attack levelled against it by the respondent. Paragraph 3 of such complaint alleges the acts of misconduct charged against the accused. Briefly stated, subparagraph (a) is a general charge which says in substance that respondent specialized in handling divorces and, during the period May 2, 1953, to December 2, 1953, filed in excess of 250 divorce suits-, some of which originated outside of the State of Florida; that “in many instances” the testimony given and procured by respondent’s clients to establish- jurisdictional residence of 90 days was false and untrue and was known, or should have been known, by respondent to be false and untrjie. Respondent’s motion to strike that, portion of the complaint should be granted for lack of definiteness in failing to place respondent on notice of the specific acts of alleged misconduct which he will be called upon to defend against. State ex rel. Fowler v. Finley, 30 Fla. 302, 11 So. 500;. Gould v. State, 99 Fla. 662, 127 So. 309, 69 A.L.R. 699. See also Vol. 3 Florida Jurisprudence, Sec. 108, page 435.

However such criticism of lack of definiteness does riot apply to the remaining subparagraphs (b), (c) and (d) of paragraph 3 of the amended complaint. Each of these subparagraphs specifically charges, the respondent with procuring in the courts of this state through fraud, deceit and misrepresentation a final decree of divorce for a client, particularly identified as to name of parties, times and courts wherein maintained. In each of these 3 instances it is alleged that respondent filed a bill' of complaint alleging his" respective client to have been a bona fide resident of this state continuously for more than 90 days prior to filing thereof, and that sa'id allegation was false and untrue, and at such time' was known by respondent to • be false and untrue; and that he thereafter prosecuted said cases through the customary stages ending in entry of a final decree of divorce for his client with personal knowledge, at all times and stages of the cases, that the testimony introduced and representations made to the court concerning residence of the respective client involved were false and untrue. Those facts are set forth in clear, direct and unambiguous language and with great particularity and exactness. The language employed not only places the respondent squarely on notice of the misconduct charged against him, but also pin points each specific act, with accompanying dates, names and circumstances, alleged to have been wrongfully engaged in by the respondent, and leaves nothing to surmise or conjecture concerning the accusation which he is called upon to defend. The conduct charged is in shocking contrast to the standards approved by this court, and if capable of being proved by competent evidence would constitute a flagrant violation of the code of ethics for which appropriate disciplinary action would be fully warranted. A few of the cases involving charges of similar misconduct wherein this court approved disciplinary action against the offending attorney are: In re Harrell, 156 Fla. 327, 23 So.2d 92; In re Stoller, 154 Fla. 864, 19 So.2d 312, 313; Weinstein v. State, 151 Fla. 287, 9 So.2d 710.

The respondent has filed a verified as well as unverified motion to dismiss and an answer, all addressed to the amended complaint (which for the remainder of this opinion will be treated as though subpara-graph 3(a) has been deleted therefrom) by which he contends such complaint, and the proceedings leading up to its filing, are defective on account of the following: (1) the alleged charges of misconduct were not initiated in the form of an affidavit, (2) he has not yet been confronted by the complaining witnesses, and (3) he has been deprived of his right to cross-examine the witnesses. The arguments advanced in support of those points appear to overlook and disregard the particular portion of Amended Article XI of the Integration Rule, 31 F.S.A., under which this proceeding is maintained.

Amended Article XI of the Integration Rule, which became effective July 1, 1951, provides two separate or alternate methods whereby the Board of Governors, or a Grievance Committee of the Florida Bar, may properly invoke disciplinary proceedings against a member of that bar for alleged professional misconduct. The first method outlined in the rule contemplates that the power to invoke its investigative authority would be exercised only after charges of professional misconduct may be brought to their attention in the form of an affidavit. So far as this controversy is concerned it may be conceded that an essential preliminary requirement to a proper investigation by the board or committee under such first method is that the charges to be so investigated must be presented under oath by affidavit or deposition by some person desiring to initiate the charge. But that is not the exclusive method authorized by said Article XI. Other parts of said Article XI, which were invoked by the Florida Bar in this case, provide for an entirely separate or alternate method, as follows:

“The Board of Governors and the Grievance Committees may initiate such investigations at such time and place as deemed by them advisable; * * *

That last quoted portion of the rule prescribing the second or alternate method for exercising such investigative authority conspicuously omits, and refrains from including, any provision whereby a charge under oath by affidavit or deposition is contemplated or required as an indispensable prerequisite thereto.

The word “initiate” is defined by Webster to mean “to introduce by a first act; to make a beginning with; to set afoot; to originate; commence; begin”. Hence the rule unquestionably authorizes the Board of Governors and the Grievance Committee to “introduce * * * set afoot, originate, commence (or) begin” such investigations at such time and place as deemed by them advisable. Furthermore the plain, simple and clear statement that such board or committee “may initiate such investigations at such time and place as deemed by them advisable” is so entirely foreign and contradictory to the thought of other conditional preliminaries as to effectively exclude any inference that such board or committee must numb themselves into acting like the three little monkeys who “see no evil, hear no evil, and speak no evil” unless and until some other person with less reason or obligation to speak out, (and more often than not — possessed of less knowledge on the subject) is shocked out of his human state of reluctance into presenting them with a formal affidavit or deposition charging a lawyer (schooled in the business or prosecuting libel and slander suits) with professional misconduct. It is convincingly clear that the rule itself respecting the second or alternate method of exercising such investigative authority (which is the portion of the rule under which the Florida Bar acted in this case) affords no support for respondent’s contention that complainant’s jurisdiction to investigate his alleged misconduct was dependent upon charges being first made against him in the form of an affidavit. However respondent argues that the rulings in the cases of Hogan v. State, 89 Fla. 388, 104 So. 598 and State ex rel. Wolfe v. Kirke, 12 Fla. 278, support his contention. But that argument cannot be reconciled with the more recent case of Richardson v. State, 141 Fla. 218, 192 So. 876, 877, where this Court’s latest expression on that subj ect states:

“ * * * we cannot agree with State ex rel. Wolfe v. Kirke, supra, or with the dicta in Hogan v. State, supra, that a complaint against an attorney ought not to be received unless made on oath.”

In that case an attorney who had been suspended from the practice of law pursuant to statutory proceedings before a Circuit Judge sought a reversal of the judgment on the ground was without authority to receive and act upon a motion to disbar made pursuant to statute when said motion is not sworn to. But there the court said:

“The absence of an oath of the State attorney to a motion to disbar made under the statute is not ground for reversal.”

In so holding the court reasoned as follows:

“There is no statutory authority which compels a State attorney to file his motion to disbar under oath. In Gould v. State, 99 Fla. 662, 127 So. 309, text page 311 [69 A.L.R. 699], it is said, ‘the court exercises a jurisdiction over attorneys which is to be exercised according to law and conscience, and not by any technical rules’. While it was formerly the practice to require all pleadings of any kind whatever, both in equity and in law, to be under oath, the old technicalities of pleading are being done away with, and rightly so, including the elimination of the oath in most actions.”

This Court’s above quoted refusal to adhere to the earlier statements made in the above cited Hogan and Kirke cases to the effect that a “complaint against an attorney ought not to be received unless made on oath” was sound. Of such statement the Court said that its appearance in the Hogan case “ * * * was mere dicta”; and likewise a review of the case of State ex rel. Wolfe v. Kirke, supra, reveals that its appearance in that case was also dicta because that case was actually reversed upon the ground that the lower court “ * * * has decided erroneously on the testimony * * Thus it appears the main support for respondent’s argument stems from dicta appearing in two cases which dicta was expressly overruled in the later case of Richardson v. State, supra.

Safeguards to assure against an accused party being subjected to trial without appropriate determination that probable cause exists are included in that portion of the rule in question which provides:

“The Board of Governors and the Grievance Committees shall in every instance give the accused attorney an opportunity to explain or refute the charges made against him. Unless the Grievance Committee finds that there is no reasonable or probable ground to believe that the accused attorney is guilty of professional misconduct, it shall file with the Board of Governors a report, with necessary-supporting papers, containing such Grievance Committee’s findings and recommendations as to each such charge. Upon receiving the report of a Grievance Committee, the Board of Governors may direct that a further investigation be made by such Grievance Committee or by the Board, or that no complaint be filed. In every instance wherein the Board of Governors receives a report of a Grievance Committee recommending any action against any accused attorney, the Board of Governors shall give notice to and afford such accused attorney a reasonable opportunity for a private hearing upon the charges, with the opportunity to the accused attorney to be heard and to present testimony and evidence. ' If the Board of Governors finds from the report of a Grievance Committee, or from any investigation made by or under the direction of the Board, that there is reasonable ground to believe that the accused attorney has been guilty of professional misconduct, it shall cause a complaint in writing to be prepared by such Grievance Committee or by an active member of the Bar. The complaint shall set forth the specific facts constituting the alleged misconduct, and a copy thereof shall be served upon the accused attorney personally or by registered mail.”

Before a formal- complaint can be filed as here the accused is in every instance first given “opportunity to explain or refute the charges made against him” and later given another “opportunity * * * to be heard and to present testimony and evidence.” The complaint filed against respondent alleges that “all conditions prerequisite to the filing of same, required by said Rules, have been fulfilled”. And the complaint is signed by an able and respected member of the bar as attorney for the Florida Bar, which according to rule 1.5 Florida Rules of Civil Procedure, 30 F.S.A., “shall constitute a certificate by him that he has read the pleadings; that to the best of his knowledge, information, and belief there is good ground to support it”.

In Lambdin v. State, 150 Fla. 814, 9 So.2d 192, this Court held:

“It appears that the complaint which is the gist of the motion to disbar was filed by the Grievance Committee of the St. Petersburg Bar Association. It was addressed to one of the Circuit Judges under oath and stated that the contents ‘are true to the best of affiant’s knowledge and belief’. On this point, the only requirement of the statute is that the motion to disbar be in writing and in the name of the State. No particular form of verification is required. Under such circumstances, we have held that it does not have to be under oath. Richardson v. State, 141 Fla. 218, 192 So. 876. In Worthen v. State ex rel. Verner, 189 Ala. 395, 66 So. 686, the Supreme Court of Alabama has approved the like rule affecting a statute almost identical with ours. Other decisions are to like effect.”

Although respondent’s verified motion to dismiss admits that prior to the institution of these proceedings an appropriate Grievance Committee investigated alleged charges of misconduct made against him and in such connection afforded him opportunity to explain or refute such charges; and also admits that thereafter such Grievance Committee made its findings and recommendations to the Board of Governors of the Florida Bar, who thereafter notified respondent and afforded him opportunity for private hearing before it, yet he contends that the proceeding must be ruled out as a nullity because the alleged charges of misconduct were not made in the first instance in the form of an affidavit. It should be borne in mind that the preliminary , investigative procedures authorized by the rule are for the sole purpose of determining whether “there is reasonable ground to believe that the accused attorney has been guilty of professional misconduct”. Obviously no “trial” of the charges is attempted during the mentioned investigative stages and none is contemplated unless and until it is determined by this Court that a proper complaint has been filed. •

It is nowhere suggested by respondent that he was not fully informed of the facts forming the basis of the complaint in advance of the opportunities afforded him “to explain or refute the charges”, or “for a private hearing upon the charges, with the opportunity * * * to be heard and to present testimony and evidence”, or that such facts as were developed during the investigation were not carefully and rationally analyzed by both the Grievance Committee and Board of Governors and successively found to constitute probable cause for the filing of the complaint. From aught that appears from the record the actions of the committee and board were determined upon only after hearing respondent’s explanation and considering any and all sworn testimony and evidence as was presented on behalf of either side of the matter. From a practical standpoint it is difficult to conceive how the course of the actual investigation, or any rights of the respondent, could have been materially affected in this case by reason of the fact that it has not been affirmatively shown that the Grievance Committee actually received an affidavit concerning the alleged misconduct prior to embarking upon the investigation.

Certainly it is serious business to charge an attorney with professional misconduct, but nevertheless wisdom dictates, and no one questions, the necessity for reasonable and practical diciplinary rules to protect the court itself and relieve the public against transgressions from those who may succumb to mischievous temptations created by the cloak of trust and confidence reposed in members of the honorable profession. If the courts and the bar are to retain the confidence and respect of the public the machinery created to assure adherence to the standards proclaimed by the decisions of this court must not be stalled by unsound arguments claiming denial of due process of law. The right to a fair trial vests equally as much in the complainant as in the respondent.

In Lambdin v. State, supra, this court said:

“The administration of justice .is a • service rendered by the State to the public and exacts of those who engage in it the highest degree of confidence and good faith. No service furnished by the State mpre vitally affects the public. We practice law by grace, not by right. ■ The privilege to practice . law is in no sense proprietary. The State may grant it or refuse it, or it may withdraw it from those who abuse it.”

To the same effect see Holland v. Flournoy, 142 Fla. 459, 195 So. 138. Respondent remains submissive and amenable to the Integration Rule and such disciplinary procedures provided for therein as are not in conflict with the constitution or laws of the state. The Florida Bar, upon being alerted to the1 alleged corrupt practices which became the subject of the formal charges made in paragraph 3 (b), (c) and (d) of the amended complaint was authorized, both by tire Integration Rule and applicable decisions referred to above, to initiate the investigation conducted in this case irrespective of whether the conduct complained of was set down in affidavit form. The fact that another method of procedure was available to the Florida Bar did not exclude it' from using the one it chose.

Respondent also complains that he has not yet been confronted by the complaining witnesses, and that he has been deprived of his right to examine and cross-examine such witnesses. He points to no requirement of the Integration Rule in support thereof. In the absence of any such requirement in the rule it appears that the general rule as stated in 73 C.J.S., Public Administrative Bodies and Procedure, § 133, p. 459, should govern. The pertinent portion of that rule is:

. “The constitutional requirement of a hearing does not require a hearing at the initial stage, or at any particular point, or at more than one point in an administrative proceeding as long as the requisite hearing is held before the final order becomes effective. Where opportunity for a full and adequate hearing is available within the administrative process, no fundamental rights are transgressed when the hearing action of the administrative agency. Where there is provision for a hearing before the administrative body before it acts on recommendations, a hearing before the recommending body is not required. * * * ”

A preliminary affidavit could not have satisfied the respondent’s desire for confrontation and cross examination of the witnesses. As yet respondent has not been placed on trial. Moreover, he will not be tried — in fact cannot be tried until this court appoints a referee to conduct the trial. When a trial ensues it will be incumbent upon the complainant to establish its allegations by sworn testimony of witnesses and other competent evidence. During such trial the respondent will then be entitled to confront the witnesses and cross-examine them. Until then the insistence upon such rights are prematurely asserted.

Respondent’s motion to strike subpara-graph (a) of paragraph 3 of the amended complaint is granted, and the respondent’s verified and unverified motions to dismiss the amended complaint as it would stand after the deletion of said subparagraph (a) is denied. Respondent having filed answer to such amended complaint a referee to conduct a hearing upon the issues raised thereunder, will be forthwith appointed by the Chief Justice.

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

ROBERTS, J., dissents.

TERRELL, J., heard the argument but did not participate in opinion or judgment.