text:
    Alvin Charles DAVIS, alias Charles E. Burns, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division B.
    May 2, 1956.
    Rehearing Denied May 31, 1956.

      Joseph A. Varón, Hollywood, and Ray Sandstrom, Lakeland, for appellant.
    Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.
   THOMAS, Justice.

The appellant was convicted of breaking and entering with intent to commit a misdemeanor.

We have read the evidence in this case and judging it by the rule that circumstantial evidence in order to support a conviction must not only be consistent with guilt but also inconsistent with innocence, we decide that it meets the test and that there is no occasion to interfere with the judgment on that account.

The appellant asserts that the information was so wanting in essential allegations as to charge no action denounced as a crime by the laws of Florida. The position is based on the description in the information of the place said to have been broken and entered. It was described as “the #5 housing facility of Mr. and Mrs. Henry Drie-meyer at the Coral Shores Motel located at 17030 Gulf Blvd., North Redington Beach, in said [Pinellas] County and State [of Florida] * * * the property of Al L. Fellner * * *.” Under the applicable statute the act of breaking and entering “any dwelling” or “any building” with intent to commit a misdemeanor constitutes a felony. Sec. 810.05, Florida Statutes 1953, and F.S.A.

Appellant argues forcefully that property described as a “housing facility” does not fall in either category, and we add that that term has not received a definition in any authority we have consulted but it does not follow that the description of the place alleged to have been broken and entered rendered the information so defective that we should reverse the judgment even though no attack was made on the information by motion to quash.

The term “housing facility” and the title “motel” are of recent origin. The former has come to mean in the last decade or so a unit, usually in a sizeable development, that serves as a home; the word “motel” is a combination of the words “motor” and “hotel” and is applied to “a hotel or group of cottages which provide sleeping, and often eating, accommodations for motorists.” Thorndike-Bamhart Dictionary. When we consider the rest of the description in the information following the words “housing facility’, we come to the view that the place appellant was charged with entering was well defined as a unit, cabin or apartment, occupied by Mr. and Mrs. Drie-meyer in a motel owned by Al L. Fellner located at a particular number on a street in a certain town and county in this state.

The quoted language abundantly apprised the appellant that he was charged with the offense of breaking and entering a building with intent to commit petit larceny and we think that the sufficiency of the intelligence he gained from the description is indicated by his plea of not guilty and his failure to attack the information. At this late date and in the absence of any such assault we decline to accept appellant’s view that the information was so fatally defective that the judgment against him had no foundation. Sinclair v. State, Fla., 46 So.2d 453. We do not doubt that the information contained sufficient allegations that the appellant broke and entered a building if, indeed, they did not show that he broke and entered a dwelling. Jones v. State, 147 Fla. 677, 3 So.2d 388.

The appellant complains of the action of the court in admitting the testimony of a witness who had formerly been employed by the appellant. Briefly, this witness told of the manner in which the appellant operated while he committed his depredations on motels. The witness, serving as a chauffeur, would drive the appellant to a certain place in the late evening and leave him, whereupon he would be instructed where, at some distance away, he was to meet the appellant early the next morning. The appellant would change to work clothes in the car before they separated and would change in the car to better clothes after he was met by the witness the following day. The appellant would then reward him handsomely. The witness had pleaded guilty to charges made against both him and the appellant growing out of this nefarious business and the witness knew that the appellant’s occupation was “taking motels.”

It is true that the criminal activities described by the witness were not directly connected with the offense then being tried, but the pattern of operation followed by the appellant and the witness on former occasions corresponded with the methods used by the appellant and his accomplice in this case as they were related by the latter when he became a witness for the state.

Ordinarily in the trial of a criminal case evidence of other crimes committed by the defendant is not admissible, but such testimony may be received for the purpose of showing a criminal course that the defendant was following even though such evidence tends to prove commission of an unrelated offense. It is not admissible to prove the defendant committed the crime charged “but to show his purpose, plan, intent, or knowledge * * Suarez v. State, 95 Fla. 42, 115 So. 519, 527; Wallace v. State, 41 Fla. 547, 26 So. 713; Padgett v. State, Fla., 53 So.2d 106. Such testimony did not constitute a direct assault on appellant’s character as he contends. Jordan v. State, 107 Fla. 333, 144 So. 669.

The appellant also complains of an assault on his character in violation of the rule to which we have referred because of questions asked and answers given when his former associate was on the stand. The last two questions propounded by the attorney for the appellant on the cross-examination of the witness who had formerly been an employee and who had told of the system the appellant then was using were:

“Q. Have you ever been convicted of a crime? A. Convicted of a crime, no sir. I have pleaded guilty of a crime but I have not been convicted of it yet.
“Q. How many crimes have you pleaded guilty to? A. Seven.”

The first two questions asked by the assistant state attorney, on redirect examination, were:

“Q. What crimes did you plead guilty to? A. The same crimes Mr. Burns was tried on before.
“Q. They were crimes you and Mr. Burns were charged jointly with? A. Yes, sir.”

The surname Burns was the alias of the appellant Davis. No objection was made to these questions but after the last one had been answered, the counsel for appellant said this: “I object to the answer, if the Court please, and move it be stricken as not responsive.” (Italics supplied.) Obviously the answer was responsive and in the objection there was no reference whatever to the effect it would have upon the character of Davis, alias Burns, so the court committed no error when he announced that the motion was overruled. We do not hold that the first answer elicited by the assistant state attorney or the second question asked by him were proper but we do hold that the objection and motion did not so present to the court their objectionable features that we should reverse the judge for ruling as he did.

The last question is a challenge of the court’s ruling that property taken from an automobile owned by the appellant and driven by the accomplice was admissible in evidence. The officers had had the trailer occupied by the appellant under surveillance for several hours when the accomplice drove up to it in the car. They immediately descended on the accomplice and arrested him, and they arrested the appellant also as he emerged from the trailer. The officers handcuffed the men, searched the trailer with appellant’s consent and then searched the car. It seems to be the contention of the appellant that the search of the car was not an incident to the arrest. We think it was and that the property discovered in the car, which had been used to transport the appellant to places whence he made his criminal sallies by the man who drove him on those excursions, was definitely admissible when taken immediately after the two men had met and had been taken in custody. Italiano v. State, 141 Fla. 249, 193 So. 48.

The judgment is—

Affirmed-

DREW, C. J., O’CONNELL, J., and ANDERSON, Associate Justice, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AMERICAN CONTINENTAL INVESTMENT, Inc., Appellant, v. Jack BOROFSKY and David Hershkowitz, Appellees.
    Supreme Court of Florida. Division A.
    May 9, 1956.
    Rehearing Denied May 31, 1956.
    Rosenhouse & Rosenhouse, Miami, for appellant.
    Marks & Keith, Miami, and Leonard Pepper, Tallahassee, for appellees.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appealed from pursuant to 31 F.S.A. Rule 38 of the Rules of this court and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

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

Affirmed.

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


text:
    Rose CHAKFORD and Henry Chakford, Sr., Appellants, v. Sanford Z. STRUM, Appellee.
    Supreme Court of Florida. Special Division B.
    May 2, 1956.
    Rehearing Denied May 24, 1956.

      L. S. Julian and Shutts, Bowen, Simmons, Prevatt & Julian Miami, for appellants.
    Jeptha P. Marchant and Joseph A. Perkins, Miami, for appellee.
   PER CURIAM.

The record and briefs have been carefully examined. The case was tried by the Circuit Judge upon a waiver of the jury by the parties. His factual findings in favor of the appellee are entitled to the weight of a jury verdict and will not be disturbed unless it is shown that there is a total lack of substantial evidence to support his conclusion. The record reveals adequate support for the findings and conclusion of the trial judge.

The judgment is, therefore, affirmed on the authority of the rule announced in MacGregor v. Sachs, Fla.1952, 57 So.2d 426; Read v. Frizzell, Fla.1952, 60 So.2d 172; King v. Griner, Fla.1952, 60 So.2d 177; First Atlantic Nat. Bank v. Cobbett, Fla.1955, 82 So.2d 870.

Affirmed.

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


author: TERRELL, Justice. DREW, Chief Justice

text:
    Mrs. George F. BAKER, Appellant, v. The STATE of Florida on the relation of Johnny JONES, Appellee.
    Supreme Court of Florida. En Banc.
    Jan. 13, 1956.
    Rehearing Denied June 7, 1956.
    Ausley & Ausley, Tallahassee, for appellant. , .
    Roy T. Rhodes, Tallahassee, for appellee.-
   TERRELL, Justice.

April 30, 1941, the Trustees of Internal Improvement Fund leased to appellant Mrs. George F. Baker,

“All that part of Lake Immonia in Section 36, Township 3 North, Range 1 East lying South of existing Roadway and bridge as shown on plat attached hereto and made a part hereof.”

Said lease expired April IS, 1951, but was renewed December 7, 1946, to run until December 7, 1956. The renewal lease enlarged the area leased to include all that part of Section 36, Township -3 North, Range 1 East, • embraced within the original meander lines of Lake Iamonia within said Section 36. The area described in the lease is locally known as Cromartie Arm of Lake Iamonia.

February 19, 1953, appellee filed his amended petition in the Circuit Court praying for declaration of his rights as a citizen of Leon County to navigate, fish, boat, bathe and similar rights on the lands described in said leases. Defendants answered the amended petition in which they admitted the execution of the leases but denied that the waters of Cromartie Arm were navigable in fact. Motion to dismiss was incorporated in the answer which was seasonably considered and overruled. A special master was appointed, testimony wás taken and final decree was entered holding that Cromartie Arm constitutes a part of Lake Iamonia, that it is navigable in fact and that petitioner has the legal right to go on its waters for the- purpose of boating, bathing, fishing and other navigable purposes. ■ Defendant Mrs. George F. Baker has appealed from the final decree.

It is -admitted by the- parties that the only question brought here for determination is whether or not the evidence is sufficient to support the decree of the Circuit Court holding that ■ Cromartie Arm of Lake Iamonia is navigable in law and fact.

In State of Oklahoma v. State of Texas, 258 U.S. 574, 42 S.Ct. 406, 411, 66 L.Ed. 771, 776, the Supreme Court held the settled rule in this country to be “that navigability in fact is the test of navigability in law, and that whether a river is navigable in fact is to be determined by inquiring whether it is used, or is susceptible of being used, in its natural and ordinary condition as a highway for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” In Broward v. Mabry, 58 Fla. 398, 50 So. 826, and Clement v. Watson, 63 Fla. 109, 58 So. 25, this court approved a similar test of navigability. In the two cases last cited, we stressed the idea that to be navigable a body of water must be permanent in character, of sufficient size and so situated that it may be used for purposes common or useful to the public in the locality before it will be regarded as navigable.

We have examined the evidence in this case and it reveals no such condition as to the area in question. One witness testified he had seen the lake “run off eight times,” had on occasion stayed dry as long as two years. The evidence as a whole shows that Cromartie Arm in its natural or ordinary state is grass or button wood prairie, traversed by a shallow stream or strand and that normally its width is from four to ten feet, and that its depth is shallow, not exceeding two feet at best. It is difficult to push a flat bottomed row boat over; one witness testified that it was so difficult to get a row boat over it that one had to “push, cuss and holler” at the same time to make it go. Cromartie Arm is about one and one-half miles long and the stream or strand connects some pot holes or gator burrows ranging in size from that of Leon County Court Room to an acre. Except during a flood stage the stream or strand could not be traversed with a “kicker” but could be negotiated with a pole.

The evidence as a whole refutes the idea that Cromartie Arm is navigable for any useful public purpose, or that it is covered with water of permanent character that is susceptible of navigation for purposes common to the public in the community where it is located or that it is of sufficient size for that purpose. It is not shown that it is desirable for navigation purposes, that anyone ever attempted to use it for commercial water transportation or that it is suitable for pleasure boating or that it is desirable for bathing or fishing. In fact, the evidence as a whole falls far short of showing navigability by the test defined in the state and federal cases cited herein. The fact that it was meandered when the government surveys were made in 1824 does not, with nothing more, establish navigability. Most of the witnesses had not traversed the strand but once or twice and that at irregular intervals. The evidence revealed a very limited knowledge of Cromartie Arm. From the pictures introduced in evidence one would designate it a cow pasture. Two or three small alligator lairs in the lap of a cow pasture could under no stretch of the imagination meet the test of navigability for useful public purposes. In our view the case is controlled by Clement v. Watson, supra, and might appropriately be reversed on authority of that case.

For the reasons so stated, we think petitioner wholly failed to prove that Cromar-tie Arm is navigable in law or fact, that the chancellor placed a wrong interpretation on the evidence, for which he must be, and is hereby, reversed.

Reversed.

THOMAS, ROBERTS, THORNAL and O’CONNELL, JJ., and STANLY, Associate Justice, concur.

DREW, Chief Justice

(dissenting).

With the greatest respect for the views of my six distinguished colleagues, I think there is ample evidence, physical and verbal, in the record in this cause to sustain the conclusion reached by the able chancellor below that Cromartie Arm, a part of Lake Iamonia, is a part of the public domain which may not be alienated by the constituted authorities. I think the evidence establishes the fact that Cromartie Arm is “navigable” in contemplation of law. The cases of Broward v. Mabry, 58 Fla. 398, 50 So. 826, which concerned Lake Jackson, and Broward v. Sledge, 58 Fla. 414, 50 So. 831, relating to Lake Miccosu-kee, are square and solid authority for the opinion and judgment of the chancellor below. My examination of these cases and the case at bar reveals no substantial differences in the factual situation. I would affirm the decree appealed from.


author: THORNAL, Justice.

text:
    Frank STRAUGHTER, Appellant, v. Irene Roberts STRAUGHTER, Appellee.
    Supreme Court of Florida. Division A.
    May 18, 1956.
    Lilburn R. Railey, Miami, for appellant.
    Aronovitz, Aronovitz & Caidin, Miami, for appellee.
   THORNAL, Justice.

Appellant, Frank Straughter, who was plaintiff below, seeks reversal of a final decree of the Chancellor denying the prayer of a complaint for divorce from the appellee Irene Roberts Straughter, who was defendant below.

The sole issue before us is the correctness of the ruling of the Chancellor who found that the appellant had failed to sustain the allegations of his complaint by a preponderance of the evidence.

The record shows that the parties were married on or about April 27, 1932. They lived together in relative harmony until the latter part of May, 1932. At that time appellant claims that appellee assaulted him, whereas appellee claims that appellant as saulted her. The testimony of neither is corroborated on this point. After the altercation, appellant testified that he arranged to move appellee’s personal belongings to a small house near his own home, and thereafter he and his children by a former marriage lived to themselves in his family residence. Appellant sought divorce from1 appellee on the ground of extreme cruelty and habitual indulgence in violent and ungovernable temper. There is some indication that the parties resumed their marital relationship until about4 August, 1932. Since that time they have not resided together as husband and wife. The testimony to support the complaint is exceedingly meager and except on the broad proposition that the parties did not get .along well together, there is no genuine corroboration of the contentions of the appellant. On the specific grounds for divorce alleged, the record merely shows that the appellant himself asserts certain facts and the appellee with equal positiveness denies them and contends that appellant was the cause of the separation.

The Chancellor heard all of the testimony himself. He had an opportunity, to' view the witnesses as they testified and to evaluate the relative weight that should be accorded the credibility of the testifying parties. At the conclusion of the hearing ,the Chancellor observed that “I think these parties ought to be divorced and I wish the law were so as to authorize the granting of a divorce but because of the law as I see it, in my findings, I. can’t grant a divorce.” The Chancellor then found that the husband had not proved by a preponderance of the evidence that the wife had been guilty of any conduct warranting the granting of a divorce and thereupon denied the divorce. At the same time he denied alimony and attorneys’ fees to the wife because of her obvious ability to provide for' herself and pay her own attorneys.

In arriving at our conclusion we do not overlook the fact that the parties have been separated for well over 20 years. The appellant is 66 years of age and the appellee is 54. We realize that there are those who might agree with counsel for the appellant as he asserts in his brief that this appeal presents “a question of practicability and whether a reasonable and logical conclusion on all of the facts in the case and the position of the parties justify the granting of a divorce.” At the same time we must remain conscious of the established law and policy that the State is a silent third party to every divorce proceeding.

We have consistently held that the marriage relationship should not be dissolved except upon certain stipulated statutory grounds which must be supported by adequate proof. Decisions in such cases cannot be grounded upon the view of a court as to what might be practicable but rather upon compliance with the requirements of orderly processes which demand the existence of a statutory ground and proof thereof by a preponderance of the evidence. The law requires this for the simple reason that the dissolution of marital ties is not to be taken lightly and the authority of the courts is limited by the showing made by the parties in the particular case.

In the case before us we are not authorized to inject into the problem our view as to what might be practicable. We are bound in our consideration of the. rights of the parties by the showing that they have made on the record. On this basis we are compelled to conclude that the Chancellor ruled correctly in finding that the appellant has failed to establish the allegations of his complaint by a preponderance of the evidence. This was the appellant’s burden and having failed to carry it,, there was no alternative to a dismissal of his complaint.

We have examined the final decree in the light of the record and. conclude that no error was committed in the entry thereof and it, therefore, must be affirmed.

Affirmed.

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


text:
    Alton LOY, Appellant, v. The STATE of Florida, Appellee.
    Supreme Court of Florida. Division B.
    May 18, 1956.
    See also 74 So.2d 650.
    Paul Lake, Tampa, for appellant.
    Richard W. Ervin, Atty. Gen., Joseph P. Manners, Asst. Atty. Gen., and Paul B. Johnson, County Sol.,’Tampa, for appellee.1
   PER CURIAM.

Reversed under the authority of Aldridge v. State, Fla.1953, 63 So.2d 194; Allen v. State, 1934, 117 Fla. 163, 157 So. 341 and Neumann v. State, 116 Fla. 98, 156 So. 237.

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


author: TERRELL, Justice.

text:
    STATE of Florida ex rel. Charlie COPELAND, Jr., Petitioner, v. Nathan MAYO, Prison Custodian of the State of Florida, Respondent.
    Supreme Court of Florida. En Banc.
    April 27, 1956.

      Releford McGriff and Ernest D. Jackson, Sr., Jacksonville, for petitioner.
    Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for respondent.
   TERRELL, Justice.

July 24, 1953, petitioner was indicted for rape in Duval County. He was tried and convicted September 23, 1953, without recommendation for mercy and was sentenced to death by electrocution. On appeal to the Supreme Court of Florida his conviction was affirmed and mandate transmitted to the Circuit Court December 16, 1954, 76 So.2d 137. Petition for writ of habeas corpus was denied by the Supreme Court of Florida March 1, 1955, 78 So.2d 399. Cer-tiorari to the Supreme Court of the United States was denied October 10, 1955, 350 U.S. 851, 76 S.Ct. 92. Petitioner alleges that petition for habeas' corpus was denied by United States District Court, Southern District of Florida, April 21, 1956, on the ground that the question, being the same as that raised here, had not been presented to the Supreme Court of Florida.

Petitioner now seeks relief in this court by writ of habeas corpus on the grounds (1) that the death sentence imposed on him is excessive and discriminatory and deprives him of the equal protection of the law in that it is violative of Section 1, Declaration of Rights, Constitution of Florida, F.S.A., and the Fourteenth Amendment to the Constitution of the United States, in that the death penalty for the crime of rape is meted out almost exclusively to defendants of petitioner’s racial identity; (2) petitioner further alleges that for a period of more than 20 years only one white defendant has been executed for rape in Florida while over twenty-three colored defendants have been executed for rape; that at least two white defendants have in recent years been convicted of rape and both received recommendations to mercy, avoiding the death penalty; (3) petitioner further alleges that the jury has for more than 20 years consistently returned verdicts without recommendation to mercy in cases where defendants were colored! citizens and the victims were white females,, “but that during the same period has almost never brought back a verdict of guilty without a recommendation of mercy where-the defendants are members of either the-colored or white race”; the jury returning the verdict in this case without recommendation to mercy, subjecting defendant to. the death penalty, is a denial of defendant’s rights to equal protection of the laws as prescribed in Section 1, Declaration of Rights, Constitution of Florida, and the Fourteenth Amendment to the Federal Constitution in that the death penalty is: meted out only to members of defendant’s-racial identity when. the victim is of different racial identity than the accused; (4) petitioner further alleges that his rights, as set forth herein have not been previously adjudicated by the Supreme Court of Florida or the Supreme Court of the United States; however, the case of State v. Jimmie Lee Thomas is now pending before the Supreme Court of Florida where the precise issue set out herein was timely raised and that to execute petitioner prior to the disposition of the Jimmie Lee Thomas case would subject him to death penalty “which may be unconstitutional”; (5) the petitioner further alleges and shows that he is without funds to pay the costs of this proceeding and cannot raise any money to pay same, and unless the costs thereof are taxed against the State of Florida, your petitioner will be unlawfully deprived of the writ of habeas corpus. The petition contains the appropriate prayer for relief and that upon final hearing petitioner’s sentence be declared null- and void and that he be returned to the proper court to be sentenced according to law.

The point for determination is whether or riot on the showing made by the petition as detailed in the previous paragraph the writ of habeas corpus should be granted.

Summarized, the sole ground relied on' for- issuance of the writ of habeas corpus is embraced in the allegation, “history-shows that the jury has, over a long and extended period of years, to wit, over 20 years, consistently returned verdicts without recommending mercy in cases where the defendants were colored citizens and: the victims were white female citizens, but during the same period of time has almost never brought back a verdict of. guilty without recommendation of mercy where the defendants are members of the white race and the victims are members of either the colored or white race; the jury returning a verdict in this case without a recommendation of mercy, and subjecting this defendant to the death penalty, is a denial of defendant’s rights to the equal protection of the laws as prescribed in the -Constitution of Florida, the Declaration of Rights, Section 1, and the United States Constitution, Fourteenth Amendment, in that the death penalty is meted out only to ■members of the defendant’s racial identity ■where the victim is of a different racial .identity than that of the accused.”

Throughout his trial in the Circuit ■Court, on his appeal to this court, including ■proceedings before the Federal Courts enumerated herein, petitioner was ably represented by competent counsel who made •available every defense known to the law in his behalf. In none of these proceedings has the question now raised been presented. Since the point now presented has not been previously raised, despite ample opportunity to - do so, under well settled rules of decisions, we are driven to the con■clusion that he has waived or forfeited the right to raise it. Baker v. State, 150 Fla. 446, 7 So.2d 792; Jennings v. Illinois, 342 U.S. 104, 72 S.Ct. 123, 96 L.Ed. 119; Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541; Cochran v. Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453; State ex rel. Linick v. Coleman, 144 Fla. 458, 198 So. 100; Skipper v. Schumacher, 124 Fla. 384, 169 So. 58, certiorari denied 299 U.S. 507, 57 S.Ct. 39, 81 L.Ed 376; Collingsworth v. Mayo, Fla., 37 So.2d 696; Harlan v. McGourin, 218 U.S. 442, 31 S.Ct. 44, 54 L.Ed. 1101, 21 Ann.Cas. 849.

In his petition for habeas corpus petitioner offers no reason for his failure to raise the point now asserted. He should have raised it in his original trial and had ample opportunity to do so. It is settled law in this country that a defendant in a subsequent proceeding whatever its nature, cannot raise issues that were previously raised and determined or that he had a fair and adequate opportunity to raise and have determined in previous proceedings. State ex rel. Johnson v. Mayo, Fla., 69 So.2d 307, certiorari denied 347 U.S. 992, 74 S.Ct. 855, 98 L.Ed. 1125; Irvin v. State, Fla., 66 So.2d 288, certiorari denied 346 U.S. 927, 74 S.Ct. 316, 98 L.Ed, 419; Washington v. Mayo, Fla., 77 So.2d 620, 621; Irvin v. Chapman, Fla., 75 So.2d 591, 593; State ex rel. Copeland v. Mayo, Fla., 78 So. 2d 399. These cases approve the doctrine that habeas corpus may not be used as a vehicle to raise for the first time questions that petitioner had a fair and adequate opportunity to raise and could and should have raised during the formal trial of the cause and on appeal.

Aside from the holdings pointed out, on the merits, we do not think there is anything to the point raised. It is not shown to have any bearing on or relation to the case at bar. The historical fact that over a period of 20 years or more one white man and 23 Negroes have been tried and convicted for rape in Florida offers no lead to the correct determination of this case. The facts in none of these cases are shown to be remotely relevant to the case at bar and the points of law raised are not shown to be parallel in the slightest. To a sociologist or a psychologist in some fields of research they would no doubt have value, but in a court of law as presented they are devoid of force or effect.

The petition for habeas corpus is therefore denied.

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


text:
    Ray GREENE, J. F. Hammond, Joe Burnett, Julian Warren and Joe B. Mallard, Members constituting the Board of County Commissioners of Duval County, Florida, Appellants, v. Florida M. GRAY and Katharine H. Lewis, Appellees.
    Supreme Court of Florida. En Banc.
    May 18, 1956.

      J. Henry Blount, Jacksonville, for appellants.
    Bedell & Bedell, Jacksonville, for appellee Florida M. Gray. ■
    Fleming, Scott & Botts, Jacksonville, for appellee Katharine H. Lewis.
   TERRELL, Justice.

The Legislature of 1955 enacted Chapter 30454 providing pension or retirement benefits for the widows of Circuit Judges in any judicial circuit embracing two or more counties, one of which has a population of more than 300,000, according to latest Federal census, provided the death of any such Circuit Judge occurred while he was eligible to retire or after he retired. The benefits provided one-third of the retirement compensation which the Circuit Judge was receiving or which he was eligible to receive at the time of his ,death, payable from the general revenues of the large county as long as the widow remains unmarried. Section 2 declares that all payments made thereunder be for a county purpose.

When Chapter 30454 became effective, appellees, the only persons entitled to retirement benefits thereunder, applied to the Board of County Commissioners for such benefits as contemplated by the act. On receipt of their applications, the Board of County Commissioners filed its petition in the Circuit Court praying for declaratory decree to determine the validity of Chapter 30454, charging that the classification upon which said act was based is arbitrary and unreasonable in that it violates Sections 20 and 21, Article III, and Sections 5 and 10, Article IX Constitution of Florida, F.S.A. - Answer was filed denying the material allegations of the complaint. At final hearing the chancellor upheld the act in all respects. This appeal is from the final decree.

The point for determination is whether or not Chapter 30454, Acts of 1955, is valid against the assault made on it.

Appellant approaches the question presented on the theory that Chapter 30454 ,is a population act and that the classification on which it is based must bear a just and reasonable relationship to the subject matter affected. State ex rel. Buford v. Daniel, 87 Fla. 270, 99 So. 804; State ex rel. Buford v. Smith, 88 Fla. 151, 101 So. 350, and Waybright v. Duval County, 142 Fla. 875, 196 So. 430, and others are relied on to support thisi contention.

As heretofore pointed out, the dominant purpose of the act is to provide compensation for widows of Circuit Judges in certain circuits whose death took place while they were eligible to retire or after they retired. It is true that one of the counties in the circuit must have a population of more than 300,000 but we regard such requirement as only an incident to the main requirement of the act. At any rate, it was enacted as a general law-and being so Sections 20 and 21, Article III, of the Constitution have, no application. This court is committed to the doctrine that pensions or retirement pay for civilian services is a legitimate state expense which the legislature is authorized to grant. In re Advisory Opinion to the Governor, 98 Fla. 843, 124 So. 728; City of Tampa v. State ex rel. Evans, 155 Fla. 177, 19 So.2d 697; State ex rel. Watson v. Lee, 157 Fla. 62, 24 So.2d 798, 163 A.L.R. 862.

In the last cited case we were confronted with the state plan for county officers and employees’ retirement and among other things we held that such acts are generally upheld on the theory that the delayed payments are a part of the participant’s compensation for services already performed; that they contribute to efficiency in government ; that they oiler an added inducement to those with special skills and techniques to remain in government employment. They tend to raise the standard of government personnel and make government service a career rather than a passing interlude. This reason we held was alone sufficient to uphold the classification and sustain the validity of the act.

The fact that the largest county in the circuit is required to pay the entire amount of deferred compensation does not invalidate the act. State ex rel. Simmons v. Lee, 119 Fla. 745, 160 So. 886, 891. In this case we were confronted with Section 42, Article V, Constitution of Florida, F.S. A., providing for an additional Circuit Judge in Duval County whose salary and allowances'were paid wholly from the general revenue of Duval County. We were also confronted with an act providing additional compensation for Circuit Judges in circuits containing a county with more than 100,000 population. In this connection, we held that “in large counties circuit judges have many more duties to perform which’ serve county purposes, than do the circuit judges in the small counties, and the classification made is not unreasonable or arbitrary.” For' this and other ■ reasons there, is no showing whatever that requiring payment from revenue of the large county is unreasonable or excessive.

Following State ex rel. Simmons v. Lee, supra, the legislature has passed many acts supplementing the salary of Circuit Judges based on population. In fact there is hardly a circuit in the state at the-present time in which the compensation of Circuit Judges is not supplemented from county funds. State ex rel. Hawthorne v. Wiseheart, 158 Fla. 267, 28 So.2d 589;. Amos v. Mosley, 74 Fla. 555, 77 So. 619, L.R.A.1918C, 482. See also Chapter 22022, Acts of 1943; Chapters 22631, 22736, 22930, Acts of 1945; Chapters 24004, 24064 and 24246, Acts of 1947; Chapters 25027, 25056, 25517, Acts of 1949; Chapters 26647, 27005, 26587, 27083, 27197 and 27159, Acts of 1951; Chapters 28479, 28611, 28765, Acts of 1953;, Chapters 30004, 30399, 30123, 30200, and 30035, Acts of 1955. These acts amount to a legislative interpretation of the Constitution authorizing supplementation of Circuit Judges’ salaries from county funds, and are entitled to respect. They are in many aspects similar to the acts involved in State ex rel. Simmons v. Lee, supra; State ex rel. Hawthorne v. Wiseheart,, supra; Amos v. Mosley, supra. So many functions performed by Circuit Judges in their respective circuits are in reality nothing more than county functions that we find' no objections to the practice’ of supplementing their compensation from county funds, so the resistance based bn Sections 5 and 10, Article IX, Constitution of Florida,, F.S.A., is without merit.

While it is true that Duval County is the only county within the purview of Chapter 30454, Acts of 1955, that has-a population of more than 300,000 and that it is within a judicial circuit comprising two- or more counties, it is shown that other circuits may reasonably be expected to grow into the classification within a reasonably short time. These facts are sufficient to constitute it a general act. Anderson v. Board of Public Instruction, 102 Fla. 695, 136 So. 334; Waybright v. Duval County, supra; City of Coral Gables v. Crandon, 157 Fla. 71, 25 So.2d 1; State v. Dade County, 157 Fla. 859, 27 So.2d 283. These) cases approve the doctrine that classification, for governmental purposes that have a'reaTi sonable basis in the subject regulated will be approved even though the operation óf the act is confined to a single county, if they are potentially applicable to other counties.

The law is therefore settled in this country that the legislature has power to provide deferred compensation or pensions to officers and employees for public services rendered and that such acts should be liberally construed in favor of the grantee. Likewise we find no difficulty in approving •Chapter 30454, Acts of 1955, extending ■deferred compensation to the widows of the Circuit Judges in the manner provided. Whatever the skill or degree of service the judge performed for the. state, the wife was his indispensable helpmate. He displayed the necessity for companionship ■as soon as he was turned loose in the 'Carden; he was confused and befuddled; he ate his breakfast raw and could not find •the fig leaves to dress himself. Seeing his dilemma, God gave him a hypodermic and caused him to fall into a deep sleep, then he yanked a rib from his side and created the first wife to supplement his deficiencies. Genesis 2:21-22. Down through the ages she has been companion and helpmate and civilized men have demonstrated to no one that they can get along without her. She is the medium through which his joys and sorrows, his successes and failures are composed. The common law regarded them as one. We still cling to that heritage. Certainly if the judge was a faithful servant entitled to receive deferred compensation during the years the mind and the body have slowed down and are not so alert that they can carry the load, the wife by her contributions to his labors has earned a place that entitled her to a shield from the adversities that befall those who have contributed their all to a high calling whose compensation has not been sufficient to lay ■by that which is necessary for declining years.

The decree of the Circuit Court upholding Chapter 30454 as a valid general law ■is supported by the decisions adjudicating the validity of similar acts. Appellants have failed to carry the burden imposed on them to show that the classification complained of is arbitrary or that the legislative discretion was abused in providing that general revenue funds of Duval County be used to provide deferred compensation for widows of Circuit Judges who become . eligible for retirement.

■ It follows that the judgment appealed from must be, and is hereby,

Affirmed.

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

HOBSON, J., not participating.


author: DREW, Chief Justice. DREW, Chief Justice. THOMAS, Justice

text:
    Irma E. BLOUNT, Claimant, Widow of Dan J. Blount, Deceased, Employee, Petitioner, v. STATE ROAD DEPARTMENT of Florida and Florida Industrial Commission, Respondents.
    Supreme Court of Florida. En Banc.
    March 2, 1956.
    On Rehearing May 18, 1956.

      Thompson, McDonald & Moran, Tampa, for petitioner.

      E. P. Barber, Jacksonville, for respondent State Road Department.
    Burnis T. Coleman and Rodney Durrance, Tallahassee, for respondent Florida Industrial Commission.
   DREW, Chief Justice.

The facts in this workmen’s compensation case are not disputed.

Dan J. Blount, the deceased employee of the State Road Department, was classified as a maintenance engineer by the Department. He had supervision of maintenance in several counties in the vicinity of Tampa. His salary was $500 per month; he had no specific hours of work but was on call twenty-four hours per day. He had a right to use, and did use from time to time, various motor vehicles of the State Road Department located at the Department’s maintenance yard at Tampa. He was the custodian of all of the four counties that he covered according to the testimony of his immediate superior and he was responsible twenty-four hours in each day for, any emergency that might come up as to wrecks or broken glass on the road, dead cows, washed out bridges and things of that nature.

On the day of the fatal accident, he returned to the base of his operations in Tampa about 5:30 in the afternoon. He worked at his desk until about 9:00 o’clock that evening. He then got in a pick-up truck and started toward his home by the most direct and convenient route. Shortly thereafter, he was killed in an accident between the vehicle he was driving and another vehicle.

Claim was duly filed and hearings conducted before the Deputy Commissioner where the above- evidence was produced, none of which was controverted and all of which is admitted by the respective parties to this appeal to be without conflict. - The Deputy Commissioner denied compensation finding and holding:

“4. That on November 18, 1954, in Hillsborough County, Florida, the employee Dan J. Blount was killed, in a collision between a pick-up truck, the property of the State Road Department of Florida, which he was driving, and a motor bus.
“5. That at the time of the accident, the decedent was an employee of the State Road Department of Florida, classified as a maintenance engineer, having supervision of maintenance in several counties in this vicinity; that his salary was $500.00 per month; that the employer furnished transportation; that the employee had no specific hours of work, but was on call at all times.
“6. That at the time the accident occurred, the decedent was on his way home, having completed his duties for the time, and was not traveling in answer to any specific call or assignment; that the accident cannot be said to have been ‘in the course of the employment’ as required by the Florida Workmen’s Compensation Act, and is therefore not compensable.”

We are of the view that -the Deputy Commissioner misconceived the legal effect of the evidence and that the Full Commission erred in approving the order of the Deputy Commissioner.

A person injured while going to and coming from work as a general rule is not protected by the provisions of the Workmen’s Compensation Act, F.S.A. § 440.01 et seq. This is commonly referred to in the books as the “going and coming” rule. To this rule, however, there are many exceptions. Obviously, in those cases where the journey to and from work is a part of the, service of the employee to the employer, the employee is protected by the provisions of such act. Larson’s Workmen’s Compensation Laws, Volume 1, paragraph 16, page 222. The exception to this rule is more commonly applied to injuries sustained by traveling salesmen but is not limited to such class. Other types of work may well fall within the exception, the test being primarily one of-fact.

Another exception to the “going and coming” rule is where the journey is made in the employer’s conveyance, the basic reason being that the risks of the employment continue throughout the journey. See .Larson’s Workmen’s Compénsation Laws, Volume 1, paragraphs 17, 17.10, page 233; 58 Am.Jur. Workmen’s Compensation, paragraphs 217,, 2Í8. Whether the exception just announced which protects the workman in his journey to or from work when made in the employer’s conveyance is broad enough to cover a situation such as that with which we are here involved where the ■conveyance was furnished by the employer but driven by the employee, the Supreme Court of the United States in Cardillo v. Liberty Mut. Ins. Co., 1946, 330 U.S. 469, 67 S.Ct. 801, 809, 91 L.Ed. 1028, held that in either case the result was the same. There it was held that whether the employer supplies the vehicle, hires it of an independent contractor, makes arrangements with a common carrier or reimburses his employee for the use thereof is immaterial. The Court summarized its view by stating:

“In other words, where the employer has promised to provide transportation to and from work, the compen-sability of the injury is in no way dependent upon the method of travel which is employed. From the statutory standpoint, the employer is free to ■carry out its transportation obligation in any way the parties desire; and the rights of the employees to compensation are unaffected by the choice made.”

As to whether an agreement existed to furnish the transportation to Blount and whether the service of going to work and returning from it was within the scope of his employment and covered by the Act, this Court in Bowen v. Keen, 154 Fla. 161, 17 So.2d 706, 709, adopted with approval the language of the Supreme Court of the United States in Voehl v. Indemnity Ins. Co., 288 U.S. 162, 53 S.Ct. 380, 77 L.Ed. 676, 87 A.L.R. 245, viz.:

“While service on regular hours at a stated place generally begins at that place, there is always room for agreement by which the service may be taken to begin earlier or elsewhere. Service ' in extra hours or on special errands has an element of distinction which the employer may recognize by agreeing that such service shall commence when the employee leaves his home on the duty assigned to him and shall continue until his return. An agreement to that effect may be either express or be shown by the course of business. In such case the hazards of the journey may properly be regarded as hazards of the service, and hence within the purview of the Compensation Act.” (Emphasis added.)

In the instant case the established facts concerning which there is no controversy, are sufficient to show that going and coming from work under the circumstances shown in this record was within the scope of the employment and covered by the terms of the act. The employee was required to answer -any call from his superior twenty-four hours of the day. The very nature of his duties required him to go to and from all sorts of situations within the realm of his authority. The proper performance of his duties would require that transportation suitable to the trip should be immediately available in the event of emergency calls. Clearly, under such circumstances, the employee in this case was acting within the scope of his employment and in the furtherance of his master’s business when the fatal accident occurred.

This Court held similar employment to be an exception to the “going and coming” rule in Sweat v. Allen, 145 Fla. 733, 200 So. 348, 349. There we were dealing with a deputy sheriff, performing the functions of a jailer with specific hours of employment but subject to call at all other hours. He was injured while walking on the public street from his home to the bus line shortly after 6:00 o’clock in the morning, about an hour before the commencement of his regular hours of work but when he was on the way to begin the performance of his regular duties. In disposing of the contention that the jailer was not protected by the provisions of the act, we said:

“By the nature of his employment, the claimant, a .deputy sheriff, was subject to being called to duty at any hour of the day or night by notification from one of his fellow employees or the sheriff, his employer, for which he was paid a straight salary per month regardless of the number of hours he worked. Under his contract, it was shown that his employer could assign him to any task in the line of law enforcement at his pleasure.
******
“The case at bar is not that of an ordinary workman going to work; for by the very nature of the service the claimant performed, he was continuously intrusted with certain duties, namely, to protect the peace and safety of the community and apprehend those guilty of its violation. His personal life was subservient at all times to call of official service; he was, so to speak, on guard twenty-four hours a day, with no increase in salary in proportion to the time devoted. This high duty of the office rested upon the claimant and was a part of his employment notwithstanding the fact that he was immediately assigned-as the jailer, for the word ‘employment’, as used in the Workmen’s Compensation Act, refers to the whole period of time or sphere of activities, regardless of whether the employee is actually engaged in doing the thing he was employed to do. Wirta v. North Butte Mining Co., 64 Mont. 279, 210 P. 332, 30 A.L.R. 964.
“As shown by the record, the claimant’s employment did require him to be upon the street upon occasion. And while he was not there in response to an order on the morning of his injury, he was within his ■ employment for he was still charged with a duty or task connected therewith. We do not believe it would be denied or controverted that the injury arose out of and in the course of claimant’s employment had he on that occasion been attempting to arrest a drunken driver and been run down. Yet, there is the same ‘causal connection’ of the employment to the injury between the facts in the illustration and those in the case at bar.
“To us, the conclusion that claimant’s injury arose out of and in the course of his employment is inescapable, and is sustained in other jurisdictions. In the case of Mayor and Aldermen of Town of Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 804, compensation was awarded to the wid•ow of a policeman whose hours of patrol duty were from noon to midnight, and who was struck by a car while on his way home shortly after midnight. And, it was held that the death of a policeman, .assigned primarily to guard a particular colliery, was com-pensable although the,fatal injury occurred in a motor car collision while deceased was on his way home after completing his regular assignment. Healey v. Hudson Coal Co., 130 Pa. Super. 462, 198 A. 684.”

See also Povia Bros. Farms v. Velez, 1954, Fla., 74 So.2d 103.

In Bowen v. Keen, supra, wé recognized another exception to the “going and coming” rule in the instance of an employee of a grain company who had no fixed hours of employment and who was injured while walking down a public highway from his home on his way to his place of employment.

Certiorari is granted, the order of the Full Commission and the order of the Deputy Commissioner are quashed with directions to enter an order allowing compensation in accordance with the provisions of the Act. "

TERRELL, HOBSON, ROBERTS, THORNAL and O’CONNELL, JJ., concur.

THOMAS, J., dissents.

On Rehearing Granted

DREW, Chief Justice.

At the hearing before the Deputy Commissioner the claim of Mrs. Irma E. Blount, the widow of Dan J. Blount, for compensation was controverted by the State Road Department on three grounds, viz.:

a. The alleged accident resulting in the death of the deceased employee did not arise out of and in the course of his employment with the State Road Department of Florida.

b. The death of the employee, Dan J. Blount, was occasioned primarily by the intoxication of the employee at the time of the alleged accident.

c. The death of the employee was occasioned by his wilful refusal to observe a safety rule as required by Statute.

While substantial evidence appears in the record relating to all three of the above issues, the Deputy Commissioner, contrary to the rule which we laid down in Hardy v. City of Tarpon Springs, Fla., 81 So.2d 503, failed to make adequate findings of fact, concluding “that the first ground of controversy (that the death did not arise out of and in the course of deceased’s employment) being upheld it is .unnecessary to consider the other two grounds offered by the employer.”

The Road Department in its petition for rehearing argues that inasmuch as defenses b and c above have never been passed upon by the Deputy Commissioner, the cause should be remanded to the Deputy for a decision on these specific points.

This case presents a situation which clearly demonstrates why adequate, full and complete findings of fact by the Deputy Commissioner on every controverted issue is. essential to a speedy and orderly review of these workmen’s, compensation cases. Cf. Hardy v. City of Tarpon Springs, supra; Ball v. Mann, Fla.1954, 75 So.2d 758. Unreasonable and unjustifiable delays in the administration of justice in criminal and civil cases are condemned in' section IV of the Declaration of Rights of the Florida Constitution, F.S.A. This section of the Constitution is particularly applicable to compensation cases. The act is designed to afford a speedy and summary disposition of claims and we know the working man ordinarily cannot afford to wait indefinitely to receive compensation for himself and his family when he has been injured and forced to quit work. Nor is it usual to find a working man’s widow who is financially able to take care of herself and her children for an indefinite period of time while the question of compensation is being decided.

This case must now be remanded to the Deputy Commissioner and will in all probability follow the tortuqus and slow path back through the Full Commission and back to this Court before it can be finally disposed of. We repeat that all of this time and' expense could have been avoided had the Deputy Commissioner performed his full duty according to the rules laid down by the Legislature in Section 440.25(3) (c) and this Court in the cited cases.

The opinion of March 2 is adhered to on rehearing. The judgment, however, is vacated and the cause is hereby remanded to the Deputy Commissioner with' directions to make findings of fact on the additional points in controversy and for further proceedings in accordance with the views herein expressed.

The order allowing attorneys’ fees is vacated.

TERRELL, HOBSON, ROBERTS, THORNAL and O’CONNELL, JJ., concur.

THOMAS, J., dissents.

THOMAS, Justice

(dissenting).

It is my opinion that the petition for certiorari should be denied.


author: HOBSON, Justice. THORNAL, Justice

text:
    John SMOAK, Appellant, v. The STATE of Florida, Appellee.
    Supreme Court of Florida. En Banc.
    May 18, 1956.
    Byrd V. Duke, Jr., Miami, for appellant.
    Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.
   HOBSON, Justice.

The appellant Smoak was informed against for grand larceny, tried before the court without a jury (jury trial having been waived) and found guilty.

The State produced two witnesses, Miss Acerra and Miss Gottshall. The record discloses that the appellant Smoak was visiting Miss Gottshall at her apartment during the early hours of the morning on Sunday, November 21, 1954. Miss Acerra, Miss Gottshall’s apartment mate, returned home from work at approximately 1:00 A. M., and placed a sum of money under a couch in the living room. The appellant Smoak and Miss Gottshall were lying on this couch. Smoak saw where the money was placed. When Miss Acerra arose at 7:00 A. M., Smoak was gone and the door, which had been locked, was unlocked. Miss Gottshall had retired to bed at about 3:30 or 4 o’clock in the morning and had left the appellant on the couch in the other room. The appellant had left the apartment about six o’clock in the morning. Miss Acerra discovered that the money was gone shortly before five o’clock on the following afternoon.

The State proved, and the appellant admitted, that he was in the apartment from which the money was later found to be missing, but the State did not prove that the theft could not have been the work of someone else, occurring before five o’clock on the following day, when the money was discovered to be missing. All of the evidence tending to establish the guilt of Smoak was circumstantial in character, and it does not foreclose all reasonable inferences of innocence. We think that the evidence here is not so strong as in Cross v. State, 96 Fla. 768, 119 So. 380. In Bargesser v. State, 95 Fla. 401, 116 So. 11, there was present the additional element that the appellant was found in possession of the automobile he had allegedly stolen, and the jury was authorized to discredit the explanation which he gave of such possession. That is not the case here.

We therefore conclude that the appellant was not proved to have been guilty, beyond a reasonable doubt, of the offense with which he was charged. Accordingly, the judgment and sentence must be reversed.

It is so ordered.

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

THORNAL, Justice

(dissenting).

The case was heard below by the trial judge without a jury. I am of the view that his conclusion is entitled to the same weight given to the verdict of the jury in cases where reasonable men might differ in their proper conclusions which might be drawn from the evidence submitted.

It is my view that there is adequate evidence to support the conclusion of the trial judge and he should be affirmed on authoi»ity of the rule announced in Cross v. State, 96 Fla. 768, 119 So. 380; and Bargesser v. state, 95 Fla. 401, 116 So. 11.

TERRELL and ROBERTS, JJ., concur.


text:
    CLUTTER CONSTRUCTION CORP. et al., Appellant, v. George TOSTI, d/b/a Ace Carpentry and Builders, Appellee.
    Supreme Court of Florida. Special Division A.
    April 25, 1956.
   PER CURIAM.

Affirmed.


text:
    STATE ex rel. Ethel M. PARK, Appellant, v. BOARD OF PUBLIC INSTRUCTION OF DUVAL COUNTY, FLORIDA, a Body Corporate, and Iva T. Sprinkle, as County Superintendent of Duval County, Florida, Appellees.
    Supreme Court of Florida. Division B.
    May 2, 1956.
    Rehearing Denied May 24, 1956.
   PER CURIAM.

Affirmed.


text:
    Mario RASTRELLI, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division A.
    April 11, 1956.
    Rehearing Denied May 24, 1956.
   PER CURIAM.

Affirmed.


author: McCALEB, Justice.

text:
    229 La. 1017
    J. E. BODDIE v. J. C. DREWETT et al.
    No. 42317.
    Supreme Court of Louisiana.
    March 26, 1956.
    Rehearing Denied May 7, 1956.
    Madison, Madison, Files & Shell, Trous-dale & Oliver, Monroe, for plaintiff-appellant.
    Barham, Elder & Wright, Ruston, Oliver & Oliver, C. T. Munholland, Monroe, William Greene, Blanchard; Goldstein, Walker & O’Quin, Shreveport, for defendants-ap-pellees.
   McCALEB, Justice.

Plaintiff seeks a declaratory judgment recognizing him as owner of the minerals underlying a 12-acre tract of land in the Ruston Oil Field. This tract, which is situated in the' extremé1 southwest corner of Section 17, T. 19 'N./R. 2 W., Lincoln Parish, was conveyed on December S, 1941, to Mrs. Carrie Brock Martin by Ruston State Bank & Trust’ Company, the latter reserving all of the minerals. Plaintiff purchased these mineral • rights from Mrs. Martin on July 18, 1952, on the theory that the mineral servitude created by the bank’s mineral reservation had prescribed because of non-usage for ten years.

On March 31, 1949, the Commissioner of Conservation promulgated Order No. 164 pursuant to Act 157 of 1940, R.S. 30:1 et seq., specifying two 640-acre drilling units, one comprising Section 17, T. 19 N., R. 2 W., for the Bodcaw and Vaughn sands and the other covering the West half of Section 17 and the East half of Section 18 for the “D” sand. Both of these units embrace the 12 acres in dispute. The order directed that all wells drilled on the units be located within 330 feet of the center of the' unit unless special exceptions be granted. The 12-acre tract is not within the area designated for the drilling of the wells.

On December 2, 1949, Arkansas-Louisiana Gas Company, having received a permit to drill within the designated area, spudded in a well which proved to be dry. It was plugged and abandoned on March 3, 1950. Reworking operations of this well, which was known as the Josie M. Colvin No. A-l well, were commenced on December 4, 1950, and were unsuccessful, the well being again plugged and abandoned in January of 1951.

On March 10, 1952, the Commissioner of Conservation issued an “Exception Permit” for the drilling of the Josie M. Colvin No. 2 well at a point 660 feet north of the south line and 660 feet east of the west line of Section 17. In due course, this well, which is located some 400 feet north of the 12 acres in controversy, was completed as a producer of oil and gas from the Bodcaw and Vaughn sands. On September 2, 1952, the Commissioner of Conservation issued another permit for the drilling of the Josie M. Colvin No. 3 well which was completed as a producer of gas from the James Lime formation on October 31, 1952, at a point also about 400 feet north of the 12-acr'e tract. Subsequent to the completion of this well as a producer, the Commissioner of Conservation issued Order No. 164 — A, prescribing rules and regulations for the James Lime Reservoir.

Defendants in the case, who are the transferees by mesne conveyances (and in various capacities) from Ruston State Bank & Trust Company, deny that the servitude created on December 5, 1941, has prescribed. They contend, primarily, that there was a user of the servitude and that the dry hole drilled by their lessee in December of 1949 effected an interruption of the running of prescription, notwithstanding that the drilling was not conducted upon the 12-acre tract which formed part of the unit. They further allege that the order of the Commissioner of Conservation prohibited them from drilling on the land covered by the servitude and that, therefore, the running of prescription was suspended as long as the obstacle was in existence.

Following a trial below, the judge dismissed plaintiff’s suit, being of the opinion that the dry hole drilled in the area specified by the order of the Commissioner of Conservation was a user of the servitude! which interrupted the running of prescription. Hence this appeal.

We think that the judge erred in maintaining defendants’ primary position that prescription was stopped in 1949 by the drilling of the dry hole in the area designated by the order of the Commissioner of Conservation. To use !a servitude so as to effect an' interruption of prescription is'to exercise the right in the manner contemplated by the grant or reservation. Louisiana Petroleum Co. v. Broussard, 172 La. 613, 135 So. 1. With' respect to a mineral servitude, it is essential that there be exploitation of the land, either by good faith drilling operations thereon, albeit unsuccessful, or by the extraction of the minerals lying under the land by draining or otherwise removing them through operations conducted from outside of the land. It has been many times held that mineral leases are maintained beyond their primary terms by obtaining production in paying quantities from operations on units established by the Commissioner of Conservation embracing the leased tracts even though no drilling is conducted on the. tracts themselves. The same result obtains when a servitude is involved for it is plain’ that an actual use of the minerals occurs when they are extracted from under the land and, hence, it is immaterial whether the operations are conducted on the land burdened by the servitude or from without. Therefore, it cannot be doubted that, since the minerals underlying the 12-acre tract were being withdrawn by the operation of the Josie M. Colvin No. 2 well, which was dually completed within the- drilling unit in the' Bodcaw and Vaughn sands on October 1, 1952, such extraction constituted a user of the servitude and the running of prescription was interrupted as of that date, if prescription had not already accrued.

On the -other hand, jve do not regard the dry hole drilled on the unit in December of 1949 as a user of the servitude as there was neither production from nor drilling on the land burdened therewith. Accordingly, unless the order of the Commissioner of Conservation constituted an obstacle to the user of the servitude which effected a suspension of the running of prescription, plaintiff must prevail.

At the outset, we take cognizance of plaintiff’s contention that no question of suspension of prescription is at issue, it being claimed that defendants have not specially pleaded that there was an obstacle preventing their use of the servitude. However, we think that a reading of defendants’ answer suffices to dissipate plaintiff’s position. ín paragraph (h) of Article 3 of the answer, it is specifically stated, inter alia, that, by reason of Order No. 164 “ * * * respondents were prohibited from locating a well on the property involved in this litigation which would permit them to produce gas and condensate from the Bodcaw, Vaughn or ‘D’ Sand Reservoirs in the Rus-ten Field * * * While it is true that defendants erroneously conclude from the facts that their servitude was not lost as prescription was interrupted, the allegations of the answer are adequate to justify a consideration of the question of whether prescription did not accrue as a consequence of its suspension prior to the obtention of production from the tract.

Article 792 of the Civil Code provides:

“If the owner of the estate to whom the servitude is due, is prevented from using it by any obstacle which he can neither prevent nor remove, the prescription of nonusage does not run against him as long as this obstacle remains.”

A review of the jurisprudence in mineral cases dealing with this Article reveals that, in most instances, the Court has found that the facts pleaded as constituting obstacles were insufficient to support a suspension of the running of prescription. But, when the facts exhibit a real obstacle to the use of the servitude, such as the lawful orders of the Commissioner of Conservation, the codal provision applies and the running of prescription is suspended by operation of law. This was recognized in Hardy v. Union Producing Co., 207 La. 137, 138, 20 So.2d 734, 737, and more recently in Sohio Petroleum Co. v. V. S. & P. R. R., 222 La. 383, 62 So.2d 615, 620.

In the case at bar, we think it evident that thé-order of the Commissioner of Conservation of March 31, 1949, imposed an effective obstacle to the use of the servitude. It provided that every well upon the drilling units was to be located not more than 330 feet from the center of each unit and that not more than one well on each unit would be allowed to produce from the “D” sand or the Vaughn and Bodcaw sands. Thus, drilling operations on the 12-acre tract were prohibited by the order which, being based on geophysical and scientific findings and entered for the purpose of avoiding waste and preventing the unnecessary drilling of wells, was a valid conservation measure authorized by the Constitution and laws of this State. Article VI, § 1 of the Constitution and R.S. 30:1-30:20.

Counsel for plaintiff, nevertheless insisting that an obstacle did not exist in fact, declare that the best evidence of this is that two producing wells, Josie M. Colvin Nos. 2 and 3, were drilled a few hundred feet north of the 12-acre tract subsequent to the issuance of Order No. 164.

This proposition is not sound. The fact that wells were drilled in other areas after the abandonment of Josie M. Colvin No. A-'l under exception permits issued by the Conservation Commissioner (either with or without a hearing) affords no ground' for holding that the obstacle did not exist but only that it was subject to removal following the unsuccessful exploration in the area designated by Order No. 164. Indeed, we think'it apparent that there was nothing to prevent the resumption of the running of prescription within a reasonable time after the abandonment of the first well as the failure of production opened the door -to the initiation of proceedings for the allowance of drilling in areas theretofore prohibited by the order. Hence,-' in determining whether prescription has accrued, it is appropriate to conclude that it was suspended for a period of at least 336 days, that is, from March 31, 1949 (the date Order No. ,164 was promulgated) until March 3, 1950 (when Josie M. Colvin No. A-l well was first plugged and abandoned).

' Counsel for plaintiff also profess that defendants could have prevented the existence of the obstacle by opposing the application of Arkansas-Louisiana Gas ' Company for the formation of drilling units.

This argument does not impress us as it would require the adoption of an inflexible and unrealistic view of the entire conservation program of this State. Manifestly, it would be Unreasonable to 'exact tókén opposition to a unitization order of the Commissioner of Conservation aS a condition' precedent- to the preservation of a servitude owner’s'right to plead suspension of prescription by reason of the obstacle created by the order. .

Counsel further take the po'sition that defendants have failed to prove that they could not have removed the obstacle by obtaining an exception to the order, of the Commissioner of Conservation respecting the drilling operations.

This point likewise appears to be without • merit in view of Section VII of the original order, pertaining to special exceptions' and hearings. It declares:

“If any party of interest can show that any part of this order, as applies to his interest, will result in waste or is . unreasonable, the Commissioner of : Conservation may enter such an order, as a special exception to the provisions ■ of this order, as will prevent waste or eliminate such unreasonable restraint, after due notice and hearing.” ,

It is difficult to perceive upon what basis' defendants would have been able to show that the Commissioner’s order, which wás founded on the best available geophysical data for recovery of production from proven sands, would result in waste or was unreasonable. The law does not require anyone to pursue a useless course or to- initiate groundless proceedings.

Counsel have submitted a supplemental brief in which they assert that, in any event, the obstacle existed for a period of not more than, 128 days. By adding the 128 days to December 5,, 1951 (the date prescription would normally have accrued) it is concluded that the servitude prescribed on April 12, 1952, or eight days prior to the commencement of the drilling of Josie M. Colvin No. , 2, which was subsequently brought in as a producer.

This contention is not tenable. It is predicated on the faulty premise that the obstacle did not come into being until operations were commenced on the first well drilled under the order of the Commissioner. It was not the drilling of the well that .created the obstacle but, rather, the order of the Commissioner fixing the area for the drilling of wells and prohibiting exploitation for minerals in any other part of the units. As we have heretofore stated, this obstacle remained in existence at least until March 3, 1950, when the Josie M. Colvin No. A-l well was first plugged and abandoned, a period of 336 days, thus extending the life of the servitude well beyond the time when prescription was interrupted by the completion of Josie M. Colvin No. 2 well as a producer- from the Bodcaw and Vaughn' sands.

The judgment appealed from is affirmed.

FOURNET, C. J., and PONDER, HAMITER and SIMON, JJ., concur in the decree.

      . It is to be noted that defendants’ claim of suspension, although factually alleged in their answer, was not briefed in this Court but was argued orally after some of the members of the Court suggested that the Commissioner’s Order might be an obstacle which prevented the use of the servitude,

      . Lee v. Giauque, 154 La. 491, 97 So. 669; Keebler v. Seubert, 167 La. 901, 120 So. 591 and Hunter v. Ulrich, 200 La. 536, 8 So.2d 531.

      . Ohio Oil Co. v. Kennedy, La.App., 28 So.2d 504, 505, certiorari denied January 24, 1947; Sanders v. Flowers, 218 La. 472, 49 So.2d 858; Smith v. Holt, 223 La. 821, 67 So.2d 93 and Union Oil Co. of California v. Touchet, 229 La. 316, 86 So.2d 50.

      . Hood v. Southern Production Co., 206 La. 642, 19 So.2d 336; Hardy v. Union Producing Co., 207 La. 137, 20 So.2d 734; Crichton v. Lee, 209 La. 561, 25 So.2d 229; Hunter v. Shell Oil Co., 211 La. 893, 31 So.2d 10; Hunter Co., Inc., v. Vaughn, 217 La. 459, 46 So.2d 735; Le Blanc v. Danciger Oil & Refining Co., 218 La. 463, 49 So.2d 855; Everett v. Phillips Petroleum Co., 218 La. 835, 51 So.2d 87 and Sohio Petroleum Co. v. V. S. & P. R. R., 222 La. 383, 62 So.2d 615.

      . In the following cases relief was denied on the ground that no obstacle existed to the exercise of the mineral servitude: McDonald v. Richard, 203 La. 155, 13 So.2d 712 (Art. 792 does not permit a landowner to suspend the prescriptive period by selling his so-called rever-sionary interest in a mineral servitude which he previously imposed upon his land); Deas v. Lane, 202 La. 933, 13 So.2d 270 (the oversale of minerals by a landowner is no obstacle to the exercise of a prior recorded mineral servitude); Gayoso Co. v. Arkansas Natural Gas Corp., 176 La. 333, 145 So. 677 (the lease by a landowner of his reversionary interest in the minerals prior to the expiration ■ of the servitude held no obstacle since the lease did not prevent the mineral owner from using the servitude); Coyle v. North Central Texas Oil Co., 187 La. 238, 174 So. 274 (where there is a purchase of minerals already subject to a mineral lease, the lease is no obstacle to the exercise of the servitude); Gailey v. McFarlain, 194 La. 150, 193 So. 570 (prior recorded mineral lease on land upon which mineral servitude is subsequently created does not constitute an obstacle); Hightower v. Maritzky, 194 La. 998, 195 So. 518 (held no obstacle where landowner in selling minerals reserved the power to lease and the right to receive bonus and delay rentals therefor); Perkins v. Long-Bell Petroleum Co., 227 La. 1044, 81 So.2d 389 (filing of jactitation suit by landowner no obstacle to use of servitude since mineral owner always had free access to the land for exploration purposes). But see White v. Hodges, 201 La. 1, 9 So.2d 433, holding that an oversale of minerals by a landowner became a mineral servitude on the date on which liberative prescription returned the minerals to the owner and that the existing servitude operated as an obstacle to the running of prescription on the after-acquired servitude.

      . It was there stated: “In other words, the right of defendants to drill a well on the 47-acre tract covered by the lease was in effect taken away from them by the orders of the Commissioner of Conservation, with, however, the right reserved to them, as well as to .the plaintiffs, to share in the production of the gas produced from the unit in proportion to their ownership. Defendants’ hands were literally tied as a result of the orders issued by the Commissioner of Conservation and they could do nothing what-' soever to prevent the primary term of the lease from expiring without drilling a well thereon.”

      . It was said:- “In fact, another well could not have' been drilled on this same unit without specific authorization, as secured in this case, i. e., by obtaining an order from the Commissioner of Conservation, following a full hearing and based upon, his findings, warranting such exception to basic Order No. 96. It necessarily follows that the lease did not terminate for failure to pay rentals”.

      , Calculated by adding the 91 days intervening between December 2, 1949 (when drilling commenced on Josie M. Colvin No. A-l) and March 3, 1950 (when this well was plugged and abandoned) to the 37 days intervening between December 4, 1950 and January 11, 1951 (the period during which the well was reworked).


author: FOURNET, Chief Justice.

text:
    229 La. 1029
    Edna Clarice JOHNSON, Wife of George F. Indest, Jr., and George F. Indest, Jr. v. F. Irvin DYMOND and Charles A. Levy, Jr.
    No. 41667.
    Supreme Court of Louisiana.
    March 26, 1956.
    Rehearing Denied May 7, 1956.

      Frederick G. Veith, New Orleans, for plaintiffs-appellants.
    George W. Reese, Jr., New Orleans, for defendants-appellees.

      . Those allegations were quoted in excerpt form: “that for over two years your petitioner’s husband has physically abused, her;” “your petitioner’s husband punched or slapped petitioner in the'face, knocking her to the floor;” “he has cbn-.tinually harassed, ; cursed, .vilified and' beaten your petitioner with his hands, subjecting her' to extreme cruel and ex- . cruciating pain and unbeatable [sic] mea- ' tal pain.” • ■

   FOURNET, Chief Justice.

Mrs. Edna Clarice Johnson, having effected a reconciliation with her husband, George F. Indest, Jr., the day following the judgment and order of the district court awarding her the temporary custody of their minor child and awarding her alimony pen-dente lite in her suit for separation from bed and board, joined her husband in this suit for damages against the attorneys representing her‘in thé separation suit, claiming that certain allegations of the petition in that suit were false, unauthorized, and libelous; and from an adverse judgment by the trial court based on the verdict of a jury they prosecute this appeal.

A review of the pleadings and the evidence in the record shows that the plaintiffs have conspicuously failed to bear the burden that was theirs, and that no other conclusion in the case was possible. No useful purpose would be served in answering arguments raised in plaintiffs’ brief, or 'in making a detailed analysis of the evidence. 'Suffice it to say, as to the claim concerning the false and libelous character of the allegations im the separation suit, that their truth was substantially established by the testimony of the plaintiffs themselves; and as to the claim that the statements were unauthorized, we think that .the evidence clearly establishes that the defendant attorneys, in preparing the petition for separation from bed and board, made the allegations complained of in accordance with the information given them, and with the authority of their client, the plaintiff Mrs. Indest.

For the reasons assigned, the judgment appealed from is affirmed.


text:
    229 La. 1032
    STATE of Louisiana v. Robert ELIAS, alias “Bobby” Elias.
    No. 42765.
    Supreme Court of Louisiana.
    March 26, 1956.
    Rehearing Denied. May 7, 1956. ' -

      J. Minos Simon, Lafayette, for defendant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., Bertrand DeBlanc, Dist. Atty., Lafayette, J. Nolan Sandoz, Asst. Dist. Atty., Abbeville, for the State.
   FOURNET, Chief Justice.

The defendant, Robert Elias, who was convicted 'in the Fifteenth Judicial District Court, Parish of Lafayette, on the 21st of October, 1955, on the charg-e of illegal sale of narcotic drugs and was sentenced on the 28th of the same month and year, to be incarcerated in the State pentitentiary for a period of 12 years, having failed to apply for an appeal until his motion was read in open court on the 16th day of November, at Abbeville, Parish of Vermilion, the State has filed a motion to dismiss on the ground that the defendant’s motion for appeal was not timely.

The controlling law on the subject matter is Article 542 of the Code of Criminal Procedure, to be found under the heading “Appeal,” now LSA-R.S. 15:542, which declares: “The party desiring to appeal in a criminal case shall make in open court a motion for an appeal verbally or in writing, within ten judicial days after the rendition of the judgment complained of; * * *.” (Italics ours.)

A judicial day is one “on which court is actually in session” (Black’s Law Dictionary (DeLuxe Ed.) p. 507; State ex rel. Davis v. Judges of First Circuit Court of Appeals, 48 La.Ann. 1079, 20 So. 282; State ex rel. Marcade v. City of New Orleans, 216 La. 587, 44 So.2d 305, and under the mandatory provisions of the Constitution of 1921, LSA, district courts “hold continuous sessions during ten months of the year. * * * ”, Art. 7, § 43. This provision, as construed by the Legislature of 1950, “means that district courts shall be open always * * * ”, LSA-R.S. 13:503, except on Sundays and legal holidays, and during court vacation, LSA-R.S. 13:501 and 13:502; and LSA-R.S. 13:503 further declares that “proceedings shall be deemed held in open court while the judge is on the bench. * * * ”

Under the facts above stated it would appear that sentence was passed on Friday, October 28; omitting the dies non that follow, i. e., two half holidays, Saturday, October 29, and Saturday, November 5, and the Sundays which fell on October 30 and November 6, would make the tenth judicial day after sentence fall on November 10; but inasmuch as it appears from a certified copy of the Minutes of Court that no one of the three judges was “on the bench” at Lafayette on that day, the next day available to defendant to offer his motion in open court was November 14, and having- failed to perfect his appeal on that day, the motion for appeal came too late.

For the reasons assigned the appeal is dismissed.