text:
    Mason W. ALGER, Jefferson Davis, W. J. Plotner, Fred Z. Pelletier, John Case and Babbin & Harmon, Inc., a New York corporation, a partnership doing business as The A, B and C Company, and Earl K. Harvey, Appellants, v. Frederick C. PETERS and Berenice Todd Peters, Appellees.
    Supreme Court of Florida. En Banc.
    April 4, 1956.
    Rehearing Denied July 31, 1956.

      Evans, Mershon, Sawyer, Johnston & Simmons, Miami, for Mason W. Alger.
    J. M. Flowers, Miami, for the remaining appellants.
    McCune, Hiaasen, Kelley & Crum, Fort Lauderdale, for appellees.
   THORNAL, Justice.

The appellants named above were the “six tenants” against whom a contempt decree was entered on April 22, 1955, as described in our opinion filed this date in the case of South Dade Farms, Inc., v. Peters, Fla., 88 So.2d 891. We refer the reader to the recital of facts and statement of the case in our opinion in South Dade Farms, Inc., v. Peters, in order to present the factual basis for this opinion with reference to the six tenants who are appellants herein.

Appellants assign fourteen points for reversal. We think it necessary to consider only their contentions that the lower court was without jurisdiction to enter the original injunction decree of June 5, 1953, as to them, that the injunction decree did not bind them, and that said decree was an attempted adjudication of their property rights without due process of law.

In reaching our conclusion herein we are reminded that the six tenants were not parties to the original cause. They paid valuable cash considerations for the leases they received in good faith prior to the entry of the final decree. There is no evidence of collusion either among themselves or with South Dade Farms, Inc., the defendant in the main case. The leases to them were executed pursuant to the annual custom recognized by all parties and in accord with annual commitments for renewal of the year-to-year leases subject only to the selection of lands by appellee Peters on or before May 1st of each year. This custom had been recognized for several years. The Chancellor based the contempt decree against the appealing tenants upon a finding that they planted the potatoes with notice of the "comprehensive all-inclusive contract” of April 26,1951, and that by planting the potatoes they interfered with the contract rights of the appellees and further that in November, 1953, (six months after they obtained their leases) an agent of Peters told them about the injunctive factors of the decree of June 5, 1953.

We emphasize again that in reaching the conclusion which we have, we are not undertaking to pass upon the rights of the parties in an action for breach of contract. Whether the tenants took the leases with knowledge of the contractual rights of Peters and whether this created any liability between them under the circumstances is not our concern on this appeal and we do not pass upon it. We are here dealing entirely with the isolated problem of whether the appellants committed acts which constituted contempt of court. We could possibly dispose of this appeal by a single reference to the extended quotation from the opinion of' this court in the case of Smith v. Whitfield and Sanders, 38 Fla. 211, 20 So. 1012, set out in our opinion in South Dade Farms, Inc., v. Peters, supra. However,, the appellees insist that the entry of the contempt decree against the tenants is authorized by former Equity Rule 72, present Equity Rule 3.18, Rules of Civil Procedure, F.S.A., which reads as follows:

“Every person, not being a party in any cause, who has obtained .an order, or in whose favor an order shall have been made, may enforce obedience to such order by the same process as if he were a party; and every person, not being a party against whom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such orders as if he were a party.”

Historically, this rule has been in -effect either in the form of a rule or statute since 1842 when a substantially similar rule was adopted by the Supreme Court of the Territory of Florida. For all practical purposes, it is the same as Federal Rule 71, 28 U.S.C.A., which has its origin in the Federal Judiciary Act of September 24, 1789, 1 Stat. 73. We mention this to point out that the rule was in effect when the opinion of this court was rendered in Smith v. Whitfield and Sanders, supra, in 1896. An application of the rule in the manner contended for by the appellees would lead us to a conclusion that every person whomsoever is bound by an injunc-tive decree regardless of whether the court entering the decree ever had jurisdiction of the-party and without regard to the effect of the decree on the property rights of the individual despite the absence of due process in the orderly course of a judicial proceeding. We cannot logically be led to such a holding, and we do not find that the rule has been so applied either in the federal or the state courts.

There can be no doubt that the appellants acquired, a .property right under the six leases which they obtained before the decree.was entered and for which they admittedly paid substantial sums of money. Prior to the entry of the decree, the execution of these leases was made known to the appellees as well as to the. Chancellor. If the appellees had had any desire or intention to obtain an adjudication with reference to the property rights of these tenants, it would have been a relatively simple' matter to have brought them into the case and given them an opportunity to assert their rights in an orderly fashion according to the dictates of due process: Instead of doing this the rights of these appellants under the leases were completely ignored. They were not made parties to the main case by the service of process or in any other fashion. It is so fundamental to our concept of justice that a citation of supporting authorities is unnecessary to hold that the rights of an individual cannot be adjudicated in a judicial proceeding to which he has not been made a party and from which he has literally been excluded by the failure of the moving party to bring him properly into court. Under our system a man’s rights cannot be disposed of or otherwise determined by a judicial decree entered in absentia.

Under the particular leases in question the appellants were not acting for or in behalf of South Dade Farms, Inc., the defendant in the main case. South Dade Farms, Inc. did not represent them in the litigation. The appellants enjoyed independent property rights under the leases that could not possibly be adjudicated or otherwise tampered with absent service upon them that would have brought them into the cause and subjected them to the jurisdiction of the court. As to their rights under these particular leases, the final decree of June 5, 19S3, was brutum fulmen and they were not bound to recognize it.

An injunctive decree is a personal decree and in entering it a court of equity is usually rendering an in personam judgment that acts on the person of the party" affected. See 43 C.J.S., Injunctions, § 168, pp. 793 and" 794; and 28 Am.Jur., Injunctions, Sec. 4, p. 1-99.

While it is true that an injunction decree may affect a particular res and to that extent may in some measure assume the proportion of a decree in rem that thereafter “runs with the land”, we do not consider such an application of the decree before us as being justifiable insofar as the particular leases of these appellants are concerned. In the case at bar the rights of the appellants came into being before the decree was entered. If the leases to them had been executed after the- decree, then they would have acquired their property rights subject to the limitations of the decree. The latter, however, was not the case. Their rights were fixed and established before the decree was entered and they could not be deprived of them by the entry of a decree in a cause to which they were not parties. On the proper interpretation of Equity Rule 72 see Barron and Holtzoff, Federal Practice and Procedure, Sec. 1511; and Moore’s Federal Practice, Sec. 71.04.

Concerning the enforcement of an injunction decree against one not a party to the cause, we can do no better than to refer to the case of Alemite Mfg. Corp. v. Staff, 2 Cir., 1930, 42 F.2d 832, from which we quote the following by no less an authority than Judge Learned Hand, to-wit:

“We agree that a person who knowingly assists á defendant in violating an injunction subjects himself to civil as well as criminal proceedings for contempt. This is well settled law. Ex parte Lennon, 166 U.S. 548, 17 S. Ct. 658, 41 L.Ed. 1110; Conkey Co. v. Russell, C.C., 111 F. 417; Wellesley v. Mornington, 11 Beav. 180, 181; Seaward v. Peterson, (1897) 1 Ch. 545. On the other hand no court can make a decree which will bind any one but a party; a court of equity is as much so limited as a court of law; it cannot lawfully enjoin the world at large, no matter how broadly it words its decree. If it assumes to do so, the decree is pro tanto brutum fulmen, and the persons enjoined are free to ignore it. It is not vested with sovereign powers to declare conduct unlawful; its jurisdiction is limited to those over whom it gets personal- service, and who therefore can have their day in court. Thus, the only occasion when a person not a party may be punished, is when he has helped to bring about, nqt merely what'. the decree has forbidden, because it may have gone too far, but what it has power to ’forbid, an act of a party. This means that the respondent must ' either abet the defendant, or must be legally identified with him. Strictly, therefore, the addition of such words as" the plaintiff here relies on, adds nothing to the decree. Without them any one is liable who knowingly does what the court has properly enjoined; with-them nobody is liable who does not.”

Appellees strongly urge that'the contempt decree against the six tenants is supported by the opinion of this court' in Savage v. Winfield, 152 Fla. 165, 11 So.2d 302. They quote the published headnote to sustain their position. Because of the apparent similarity between the case before us and the Savage case, as reflected by the recitation of facts in the dissénting opinion in the latter case, we have carefully examined the original record in the case cited. Our examination leads us to the conclusion that the Savage case is easily distinguishable on the facts. The original transcript, shows that the injunction proceeding was'- brought against Charles Savage while he -was a partner of Richard Savage. It further shows that the partnership continued during the injunction litigation and that Richard Savage who was ultimátfely cited for contempt of court actively participated in the defense of the main case. He furnished witnesses, paid a part of the attorney’s fees and in fact at one point he appears to have actually engaged in the defense of the injunction suit. The facts in the Savage case clearly reveal that the defendant who was served with process was in reality defending the case for himself and his brother and partner who was not a nominal party but in a very real sense participated in the litigation.

Respondents likewise refer us to Ex parte Lennon, 166 U.S. 548, 17 S.Ct. 658, 41 L.Ed. 1110. The Lennon decision clearly illustrates the distinction which we make in the case at bar. Lennon was cited for contempt for violating an injunction decree, against his employer. Although Lennon was not a party to the injunction suit he was an employee of the principal injunction defendant. He had full knowledge of the in-junctive order and, contrary to the instructions of his employer, he wilfully ignored the injunction which was expressly made binding upon him as an employee of the injunction defendant. The same distinction with reference to Ex parte Lennon, supra, was.apparently noted by Judge Hand in Alemite Mfg. Corp. v. Staff, supra.

Appellants contend that the injunction decree of -June 5, 1953, was absolutely void for the asserted reason that the appellants were “indispensable” parties to the original case and that the court could not proceed to a valid final decree in the absence of indispensable parties. They cite Martinez v. Balbin, Fla.1954, 76 So.2d 488. On this point their position might be well founded if they were indispensable parties. However, we are of the view that while they were “necessary” parties to any proceeding involving an adjudication of their rights, they were not indispensable- to an ultimate adjudication of the relative rights of Peters and South Dade Farms, Inc. In other words the original cause could properly proceed to a final decree as between Peters and South Dade Farms, Inc. Nevertheless, in the absence of the appellants as parties to that cause, their rights could not be determined by the final decree and as to them the decree was ineffective and of no force.

The rule announced in Milton v. City of Marianna, 107 Fla. 251, 144 So. 400, 402, is applicable. We quote from the opinion in that case as follows:

“The joinder of parties in equity is largely a matter of discretion of the court, and therefore the misjoinder of parties in such suits cannot always be detected with definiteness. The general rule in equity as to parties defendant is that,'if the interest of those present and those absent are inseparable, the case mtist fail, but, if the interest of the parties present are separable, and the decree may be made without affecting the interest of those not present, the case may be decided on its merits as between those who are regularly before the court. 20 R.C.L. 703, § 44. See, also, Johnson v. Benbow, 93 Fla. 124, 111 So. 504; Mountein v. King, 75 Fla. 12, 77 So. 630.”

See also Shields v. Barrow, 17 How. 129, 15 L.Ed. 158; and Moore’s Federal Practice, Vol. 3, Sec. 19.07.

If the record before us indicated that the appellants, regardless of tenancy or their absence from the main casé, had acted in concert with South Dade Farms, Inc. in a wilful effort to stultify or otherwise disregard the decree of the Chancellor,, or if the facts showed that they were merely the agents, employees or alter ego of South Dade Farms, our conclusion might be otherwise. On the contrary, this record clearly and definitely reveals that these appellants were acting independently in good faith, under claims of right for which they had paid substantial sums of money. Accepted standards of judicial procedure do not permit that these rights be taken away from them in a- cause in which they had had no opportunity to defend.

As pointed out above, the matter comes before us on a direct appeal from the contempt decree. It is our view that the contempt decree herein was interlocutory in nature (see Sec. 59.02(3), Florida Statutes, F.S.A.) and the appropriate method of obtaining review thereof would be by petition for writ of certiorari. However, in accord with Section 59.45, Florida Statutes, F.S.A., the notice of appeal will be regarded by us as a petition for certiorari.

With this construction the prayer of the petition is granted, the contempt order appealed from is quashed and the cause is remanded with directions to dismiss the rule nisi.

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

ROBERTS and O’CONNELL, JJ., not participating.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida ex rel. Jefferson DAVIS et al., Relators, v. Stanley MILLEDGE, as Circuit Judge of the Eleventh Judicial Circuit In and for Dade County, Florida, Frederick C. Peters and Berenice Todd Peters, Respondents. STATE of Florida ex rel. Mason W. ALGER, Relator, v. Stanley MILLEDGE, as Circuit Judge of the Eleventh Judicial Circuit in and for Dade County, Florida, Frederick C. Peters and Berenice Todd Peters, Respondents.
    Supreme Court of Florida. En Banc.
    April 4, 1956.
    Evans, Mershon, Sawyer, Johnston & Simmons, Miami, for Mason W. Alger.
    J. M. Flowers, Miami, for the remaining relators.
    McCune, Hiaasen, Kelley & Crum, Fort Lauderdale, for respondents.
   PER CURIAM.

The relators are the “six tenants” described in our opinion filed this date in South Dade Farms, Inc., v. Peters, Fla., 88 So.2d 891. By their petition for an alternative writ of mandamus which has heretofore been issued, they attack the injunction decree of June 5, 1953, described in the companion case above cited on the ground that it is totally void because of alleged lack of indispensable parties to the cause.

We have this day quashed the contempt order under attack by our opinion in the companion case of Alger v. Peters, Fla., 88 So.2d 903. In view of our decision in the companion case, the question raised by the petitions for the alternative writ therefore becomes moot and the mandamus proceedings are hereby dismissed without passing upon the merits thereof.

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

ROBERTS and O’CONNELL, JJ., not participating.


author: O’CONNELL, Justice.

text:
    Hannah GOLDSTEIN, Appellant, v. Lillian SABELLA, Appellee.
    Supreme Court of Florida. Division B.
    July 20, 1956.
    Joseph H. Ganz, Miami, for appellant.
    Dunn & Hickey, Miami, for appellee.
   O’CONNELL, Justice.

In a prior action in the Civil Court of Record, Dade County, Lillian Sabella brought a suit to evict Hannah Goldstein from an apartment, which action resulted in a judgment for Sabella as plaintiff therein and against Goldstein, the defendant therein. On appeal to the Circuit Court, Dade County, the judgment was reversed. This Court denied certiorari. Sabella v. Goldstein, Fla., 79 So.2d 295.

Thereafter Goldstein, the appellant here, sued Sabella in the Circuit Court of Dade County for malicious prosecution for bringing said eviction suit. In her complaint Goldstein alleged:

(1) The filing of the eviction suit by Sabella;
(2) That judgment was rendered for Sabella therein;
(3) That said judgment was subsequently reversed on appeal; and
(4) That said eviction suit was brought maliciously and without probable cause.

There was no allegation that the judgment for Sabella and against Goldstein in said eviction suit was obtained by fraud, perjury, or other corrupt means.

The record before us does not reflect all of the pleadings but it does appear that the plaintiff Goldstein amended her complaint at least once and that thereafter, on motion to dismiss filed by the defendant Sabella, the court entered an order dismissing plaintiff’s amended complaint with prejudice. The court stated in its order that plaintiff had indicated she did not wish to plead further. This appeal is taken from said order of dismissal of said suit for malicious prosecution.

In his order of dismissal the trial judge stated:

“* * * I am of the following opinion : That the entry of a final judgment by the Court of Competent jurisdiction in favor of the defendant herein, (Plaintiff in that action), as alleged in paragraph 4 of Plaintiffs Amended Complaint, indicates that, as a matter of law, there was probable cause for the institution and prosecution of that eviction action; * *

The question to be determined by us on this appeal is the effect of a judgment of conviction, subsequently reversed, as evidence of the existence of probable cause for instituting an action or prosecution.

There appear to be three well developed views on the question:

“ * * * There are three lines of cases dealing with the effect of a judgment of conviction on the question of probable cause for instituting the prosecution.
“(1) It is conclusive evidence thereof.
“(2) It is conclusive evidence thereof unless it was obtained by fraud, perjury, or other corrupt means. This is the rule of the majority of the cases and is that adopted in 3 Rest.Tort, Section 667.
“(3) It is only prima facie evidence thereof and may be rebutted by any competent evidence which clearly overcomes the presumption that arises from the fact of the defendant’s conviction. * * * ” Brooks v. Super Service, Inc., 183 Miss. 833, 183 So. 484, 185 So. 202.

This Court has not heretofore been asked • to rule on the precise question presented in.this appeal and we have not therefore 'specifically aligned this Court to either view, however, in Lewton v. Hower, 35 Fla. 58, 16 So. 616, we held that the committal and binding over of the defendant in a criminal case was a determination that probable cause existed for instituting the prosecution, although on trial the defendant was found not guilty. This holding would 'support the first of the three views above-mentioned, although there was not a trial and judgment of conviction.

In Ward v. Allen, 152 Fla. 82, 11 So.2d 193, we held that proof of the issuance of a warrant and the filing of an indictment in a criminal proceeding did not conclusively establish the presence of probable cause, but did tend to refute the absence thereof. Because of the difference in the circumstances, i. e., neither a trial nor preliminary hearing, this case cannot be considered as support for either of the three views.

Probable cause is defined as “A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.” Dunnavant v. State, Fla., 46 So.2d 871, 874. This, as well as other acceptable definitions of the term, indicates that one need not be certain of the outcome of a criminal or civil proceeding to have probable cause for instituting such an action.

In our opinion a trial in a court of competent jurisdiction, which results in a judgment of conviction, or verdict for plaintiff, is a sufficient legal determination of the existence of probable cause and there would appear to be no valid reason to have that question determined again in another action. Nor does the fact that the judgment be subsequently reversed affect such determination. The reasoning and conclusion of this Court in Lewton v. Hower, supra, supports this view, as does Laughlin v. St. Louis Union Trust Co., 330 Mo. 523, 50 S.W.2d 92. The case of Brooks v. Super Service, Inc., supra, supports our holding that a subsequent reversal of a judgment of conviction does not destroy the effect of a judgment of conviction.

If however it be shown that the judgment was obtained by fraud, perjury, or other corrupt means, the determination loses its aura of legality and validity and logically should no longer be considered as evidence of the existence of probable cause.

Our research has convinced us that the views and line of decisions which constitute the weight of authority hold that a judgment of conviction is conclusive evidence of probable cause, unless the judgment was obtained by fraud, perjury, or other corrupt means. This view is in accord with our thinking and, we believe, with logic. We do therefore adopt this view as the holding of this Court on this question. We further hold that a subsequent reversal of the judgment of conviction does not destroy the validity and effect of the determination of the question of probable cause, unless it be reversed for fraud, perjury, or other corrupt means.

Having determined the question of law, as we have above stated it, it is necessary now to determine whether or not the learned trial judge committed error in entering the order of dismissal appealed from.

While it is true that the trial judge followed what is considered to be a minority rule, that a judgment of conviction is conclusive evidence of probable cause, yet under the allegations of the complaint, as amended, which he dismissed, he would nevertheless have been required to dismiss the same under the rule of law which we have adopted hereinabove, since the plaintiff Goldstein alleged that there had been a judgment of conviction against her which had been subsequently reversed, but she did not allege that such judgment had been obtained by fraud, perjury, or other corrupt means. The effect of the allegation that the defendant had obtained a judgment of conviction against the plaintiff, in an action complained of, and the absence of an allegation of fraud, perjury, or other corrupt means in the procuring of said judgment, is conclusive, on the face of the pleadings, that probable cause did exist for instituting the action. We have held in Tatum Bros. Real Estate & Investment Co. v. Watson, 92 Fla. 278, 109 So. 623, that the lack of probable cause is one of the six elements which must be alleged and proved in a suit for malicious prosecution. When conclusive evidence of probable cause appears in the complaint, as here, the complaint is insufficient in law and on motion timely made is properly dismissed.

We, therefore, conclude that the Circuit Judge did not err and that the order appealed from should be and is therefore—

Affirmed.

TERRELL, Acting Chief Justice, and THOMAS and ROBERTS, JJ., concur.


author: ROBERTS, Justice.

text:
    Jeanne Bridge VAN SCIVER, Appellant, v. MIAMI BEACH FIRST NATIONAL BANK, a banking corporation, as executor and Trustee of the Estate of J. Howard Van Sciver, deceased, Appellee.
    Supreme Court of Florida. Special Division B.
    July 18, 1956.

      Padgett & Teasley, Miami, for appellant.
    Shutts, Bowen, Simmons, Prevatt & Julian, Miami, for appellee.
   ROBERTS, Justice.

The controlling question here is whether the claim of a former wife against the estate of her deceased ex-husband, arising out of a separation and trust agreement executed prior to their divorce, is required to be filed in the manner and within the time specified by Section 733.16, Fla.Stat.1955, F.S.A., for claims against the estates of decedents.

Specifically, the plaintiff claimed a right to be reimbursed out of her deceased ex-husband’s estate in an amount equal to the difference between the sum of $3,000 (as specified in the separation agreement) and the annual income of a trust established in her favor by her deceased ex-husband pursuant to the terms of their separation agreement. The husband paid the deficiency each year prior to his death, as required by a decree of a Pennsylvania court, see Van Sciver v. Van Sciver, 337 Pa. 390, 12 A.2d 108; and the defendant, as executor of his estate, paid to plaintiff the amount of the deficiency that accrued during the last year of the decedent’s life. No claim for the deficiency for the year following his death was made by the plaintiff until after the expiration of the eight-month period prescribed by Section 733.16, supra. Her suit against the executor to recover the claimed deficiency was dismissed by the lower court on the grounds that (1) the obligation did not survive the death of the decedent, and (2) the claim was barred because not filed in the Probate Court within the eight-months period specified by Section 733.16, supra. Plaintiff has appealed.

Assuming, arguendo, that the obligation is one that is binding upon the exec-rttor of the decedent’s estate, we think the order of dismissal was properly entered on the second ground stated therein. It is true that thé obligation to pay the deficiency is a “continuing contract,” as found by the Pennsylvania court in Van Sciver v. Van Sciver, supra, 12 A.2d 108; but the obligation remains a purely contractual one arising out of the promise voluntarily made by the decedent during his life with the intention of binding his executor after his death. Without such a contractual obligation, the plaintiff would have had no claim at all, since any right to support arising out of the pre-existing marital status would have been extinguished upon the death of the husband. Allen v. Allen, 111 Fla. 733, ISO So. 237. Accord: Guinta v. Lo Re, 1947, 159 Fla. 448, 31 So.2d 704, as to support money for children awarded by a divorce decree.

Counsel for plaintiff has cited no case in which it has been held that a former wife, suing on such an agreement, is in any better .position than any other creditor of the decedent’s estate, and we have found none. This court has said, however, that as a general rule “property settlement agreements are no different from other agreements in their legal aspects,” Haynes v. Haynes, Fla.1954, 71 So.2d 491, 493, and we have also stated that a claim for alimony that accrued during a deceased husband’s lifetime, must be collected from his estate “in the manner and by the method provided by law for the enforcement of any other claim or demand against the estate of a decedent.” Blocker v. Ferguson, Fla.1950, 47 So.2d 694, 697. See also In re Goeclcel’s Estate, 1938, 131 Pa.Super. 36, 198 A. 504, where it was held that a surviving wife claiming under an antenuptial agreement occupies the status of a creditor and must present her claim against her deceased husband’s estate as any other creditor.

Nor does the contingent nature of the plaintiff’s claim remove her from the bar of the statute, Section 733.16, supra, which specifically applies to any “claim or demand, whether due or not, direct or contingent, liquidated or unliquidated”. A “contingent claim” within the meaning of this section is one where the liability depends on some future event, which may or may not happen, which renders it uncertain whether there ever will be a liability. Such a claim must be filed within the statutory period, as any other claim. American Surety Co. of New York v. Murphy, 151 Fla. 151, 9 So.2d 355.

The fact that the defendant had knowledge of the claim will not relieve the claimant from presenting it within the statutory period, since the statute provides that a claim not so filed is void “even though the personal representative has recognized such claim or demand by paying a portion thereof or interest thereon or otherwise; * * * ” Cf. State Bank of Orlando & Trust Co. v. Macy, 101 Fla. 140, 133 So. 876, 78 A.L.R. 1119. We have also considered the plaintiff’s contention that she was not required to file a claim under the rule of Sewell v. Sewell Properties, 159 Fla. 570, 30 So.2d 361, that a beneficiary is not required to file a claim against the estate of a deceased trustee. We find none of the elements of a trust in the claim here sued upon. The Pennsylvania Court, in Van Sciver v. Van Sciver, supra, 12 A.2d 108, held merely that the plaintiff’s former husband was “indebted” to her for the deficiencies accruing within six years of the date of her suit against him to recover them. And even if it be assumed that plaintiff has some equitable right to proceed against her deceased husband’s estate, as distinguished from her legal right under the separation agreement, there is still no equitable right in specific identifiable property which is easily separable from the corpus of the decedent’s estate, such as was upheld by this court in Hodges v. Logan, Fla.1955, 82 So.2d 885, although the claimant there did not comply with Section 733.16, supra. See also Cooey v. Cooey, 132 Fla. 716, 182 So. 202, 205, approving the rule that “ ‘where the fund or property cannot be traced and the cestui que trust seeks redress as a general creditor of the estate, he must present his claim.’ ”

Since the plaintiff’s claim, even if it survived, was required to he filed within the time specified by the statute, there was no error in dismissing her complaint; and the decree appealed from is, accordingly,

Affirmed.

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


author: TERRELL, Justice.

text:
    Elsa BERG, Appellant, v. NEW YORK LIFE INSURANCE COMPANY, a New York corporation, Appellee.
    Supreme Court of Florida. Division A.
    May 23, 1956.
    Rehearing Denied July 19, 1956.
    See also 81 So.2d 630.
    • Roland W. Granat, Miami Beach, for appellant.
    Leo S. Julian -and Shutts, Bowen, Simmons, Prevatt- & Julian, Miami, for appel-••lees. ■ - : ■ .
   TERRELL, Justice.

New York Life Insurance Company sold two policies of insurance with double indemnity on the life of Ahram Berg. The first policy was in the sum of $10,000, dated January 20, 1923. The second policy was in the sum of $30,000, dated April 17, 1928. Mr. Berg paid premiums on these policies until 1947, when he became totally and permanently disabled; premiums were then waived and he accepted the disability benefits provided by the policies. April' 29, 1949, Abrám Berg riiarried the plaintiff-appellant and moved to Miami Beach, “Fannie” his first wife having passed away. July 1,' 1951, Mr. and Mrs. Berg attended a card party in Miami Beach and when they returned home about midnight, they were confronted by two masked robbers who had broken into their home. The robbers held guns on the Bergs and warned them to be quiet. One of them grabbed Mr. Berg from the rear, placed his hand over his mouth, roughed him up and pulled him into a chair. The robbers then demanded money and jewelry from the Bergs, pulled a ring from the hand of Mr. Berg and compelled Mrs. Berg to give them her jewelry, after which they forced her into a closet and closed the door. Considerable money was secured by them and they left the premises; the police were called; an investigation ensued but it disclosed neither hair nor hide of the robbers. Mr. Berg continued in shock that night and the next day, and went to bed early the following-night. His behavior was confused and erratic and a doctor was called at 3:30 or 4:00 A.M. He was treated and carried to the hospital where he died at 8:00 A.M. the following morning, without having regained consciousness.

Demand for payment as provided by.the double indemnity clause of the policies was refused. This action for recovery was instituted; a master was appointed; testimony was taken and the master found that the provisions of the double indemnity clause in the policies were not available to the plaintiff. Exceptions to the master’s report were overruled and final decree was entered for defendant. The complaint was dismissed at the cost of the plaintiif. This appeal is from the final decree.

The point for determination is whether or not under the circumstances related, the double indemnity provisions of the policies we're available to the plaintiff. Stated otherwise, did Mr. Berg’s death result directly and independently of all other causes from bodily injury effected solely through external, violent ;and accidental cause or was it caused directly or indirectly from infirmity of mind or body, from illness or disease ?

The answer to this question is governed by the double indemnity provisions of the policies. The double indemnity provision of the first policy was as follows:

“New York Life Insurance Company agrees to pay to Fannie, wife of the insured, * '* * beneficiary, * * *
—Ten Thousand Dollars—
upon receipt of due proof of the death of Abram Berg, the Insured; or * * * upon receipt of due proof that the death of the Insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause, * * *.
“This Double Indemnity Benefit will not apply if * * *; Insured’s death resulted from physical or mental infirmity; or directly or indirectly from illness or disease of any kind * * (Emphasis supplied.)

The double indemnity provision of the second policy was as follows:

“The Double Indemnity provided on the first page herewith shall be payable upon receipt of due proof that the death of the Insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means * * *.
“Double indemnity shall not be payable if the Insured’s death resulted * * *; directly or indirectly, from infirmity of mind or body, from illness or disease, * * (Emphasis supplied.)

The gist óf these provisions is that death must have “resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause,” but that if death results “directly or indirectly from infirmity of mind or body, from illness or disease,” double indemnity is not available to the insured, neither is it available if these causes combine to produce death.

For double indemnity to be available to the beneficiary, the evidence must show that death resulted directly from the robbery or its incidence; that it will not be available if death results from physical or mental infirmity or directly or indirectly from illness or disease of any kind.

In sum the doctors testified that insured’s blood vessels were diseased; that he had cerebral arteriosclerosis and that, said one of the doctors, “in terms of probability, I would say he most probably would not have ■died had he not had diseased vessels.” Arteriosclerosis is a degenerative process which makes the blood vessels harden, thicken and more brittle. The evidence also shows that deceased had diabetes which contributes to the hardening of the bipod vessels, that the robbery must have precipitated death, but that the primary cause was disease and' illness of long standing, except for which the robbery would have had no ill effect.

Despite the fact that deceased was examined by his doctor two days before his death and pronounced able to. take a trip north, two eminent internists testified that the robbery was a secondary cause of death and that the primary cause or causes were the infirmities or diseases he had prior to the robbery. He was shown to have had two prior strokes besides recent cerebral vascular damage, general and vascular arteriosclerosis in addition to other illnesses. The death certificate shows that the cause of insured’s death was “cerebral hemorrhage due to cerebral arteriosclerosis.” The pathologist who testified at the trial and who performed the autopsy described the cause of death as “cerebral vascular thrombosis.” Dr. Nathan, appellant’s physician, testified that her husband “most probably would not have died had he not had diseased blood vessels.”

Double indemnity policies imposing liability when death results from bodily injury effected solely by external, violent and accidental means generally contain an exemption from such liability if death results directly or indirectly from disease or bodily infirmity. When such provisions are construed together or if the accidental injury and the preexisting disease or infirmity cooperate in causing the death of insured, doubled indemnity can not be recovered even though the injury is an active, efficient and procuring cause, provided the disease or infirmity contributes either directly or indirectly to causing insured’s death. The Maccabees v. Terry, Fla., 67 So.2d 193; Couch on Insurance, Vol. 5, page 4011.

Appellant also contends that she was entitled to have the issue in this case submitted to a jury. It is settled that the submission of a factual question in an equity case to a jury is one in the discretion of the chancellor. We find no abuse of discretion in refusing to do so in this case. Smith v. Croom, 7 Fla. 180.

The decided weight- of the evidence shows that Mr. Berg’s death resulted primarily from infirmity and disease rather than directly or independently of other .causes from bodily injury effected solely |through external, violent and accidental means, so the decree appealed from must be and is hereby—

Affirmed.

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


author: THORNAL, Justice.

text:
    Leonard C. ANGLIN, Appellant, v. Nathan MAYO, Custodian, Florida State Prison, Appellee.
    Supreme Court of Florida. Special Division A.
    July 13, 1956.
    Leonard C. Anglin, in pro. per., for appellant.
    Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.
   THORNAL, Justice.

Appellant Anglin, who was petitioner below in a habeas corpus proceeding, seeks reversal of an order of the trial judge denying the writ and remanding him to the custody of the- appellee, Custodian of the Florida State Prison.

The point for determination on this appeal is the legality of the sentence of the appellant in view of the apparent inconsistencies between Section 811.021, Florida Statutes, F.S.A. and Section 817.01, Florida Statutes, F.S.A.

Appellant Anglin was informed against in the Circuit Court for Franklin County by an information in two counts, reading in part as follows :

“Leonard C. Anglin, did then and there designedly by false pretense, and with intent to defraud, obtain from another person property, to-wit: $10.00 from Ella Livingston and $10.00 from Gertrude Lee and $5.00 from Donella Beverly by promising to heal their illness and infirmities and then obscond-ing [sic] with their money, knowing that his promises to heal were false.
“Second Count:
“Leonard C. Anglin, did then and there practice the healing art without first having obtained a certificate or proficiency in the basic sciences, by professing to heal Ella Livingston for the sum of $10.00 and Gertrude Lee for the sum of $10.00 and Donella Beverly for the sum of $5.00.”

Upon arraignment he pleaded guilty to the offense condemned by the first count and the second count was nolle prosequied. On September 26, 1955, he was sentenced to five years imprisonment in the State Prison under the first count of the information. When he began serving the sentence does not appear from the record. On March 26, 1956, appellant, without benefit of counsel, filed in the Circuit Court for Union County his petition for writ of habeas corpus contending that the information pursuant to which he was convicted was defective and that he had been denied counsel as well as a trial by jury. After hearing the matter, the Circuit Judge on April 14, 1956, found that the questions raised by the petition w.ere not sufficient to justify the issuance of the writ of habeas corpus. The Judge thereupon denied the writ and granted to the appellant the right of appeal. Reversal of this order denying the writ is sought by this appeal.

By his brief filed in propria persona the appellant contends that the writ should have issued. By its original brief, the State contended that the court below properly denied the writ. However, by a supplemental brief, as we shall see, the Attorney General, with an admirable sense of justice, concedes that error was committed in the original sentence.

We have carefully reviewed the record presented to the trial judge in the habeas corpus proceeding. In fairness to him it should be stated here that the proposition of law announced by this opinion as the basis for reversal was not presented for his consideration. We find that on the questions actually presented to him, he ruled correctly. However, when the record and briefs came to this court for consideration, our examination thereof indicated that there was implicit in the original sentence an error which requires reversal even though the point was not presented below and was not originally argued here. It was at this stage that the appellant and the State were requested by this court ex mero motu to submit briefs on the legal problem which we hereafter discuss, and by the supplemental brief filed pursuant to this request, the State now concedes error in the sentence.

Ordinarily this court considers on appeal only those questions tendered by the record and argued by the parties in their briefs on the basis of errors properly assigned. However, historically, habeas corpus is a high prerogative writ. It is as old as the common law itself and is an integral part of our own democratic process. The procedure for the granting of this particular writ is not to be circumscribed by hard and fast rules or technicalities which often accompany our consideration of other processes. If it appears to a court of competent jurisdiction that a man is being illegally restrained of his liberty, it is the responsibility of the court to brush aside formal technicalities and issue such appropriate orders as will do justice. In habeas corpus the niceties of the procedure are not anywhere near as important as the determination of the ultimate question as to the legality of the restraint. So it is in the case at bar that this court felt justified in raising on its own initiative the question of law hereafter discussed.

In the original brief filed here the State contended that the appellant pleaded guilty of the offense defined by Section 817.01, Florida Statutes, F.S.A., which reads in part as follows:

“Whoever designedly by a false pretense, or by a privy or false token, and with intent to' defraud, obtains from another person any property, or obtains with such intent the signature of any person to a written instrument, the false' - making whereof would be punishable as forgery, shall be punished by imprisonment in the state prison not exceeding ten years, or by fine not exceeding five hundred dollars.”

It should be noted that the penalty for violation of this Statute is imprisonment for not more than ten years or fine not exceeding $500. This Act was in the books for many years prior to 1951. Our own examination of the record, however, suggested a consideration of the effect of the passage of Chapter 26912, Laws of Florida, 1951, now cited as Section 811.021, Florida Statutes, F.S.A., upon the pre-existing Statute which we continue to cite as Section 817.01, Florida Statutes, F.S.A., and which continues to be included in the biennial revision of the Florida Statutes through 1955. Chapter 26912, Laws of Florida, 1951, Section 811.021, Florida Statutes, F.S.A., reads in part as follows:

“(1) A person who, with intent to deprive or defraud the true owner of his property or of the use and benefit thereof, or to. appropriate the same to the use of the taker, or of any other person:
“(a) Takes from the possession of the true owner, or of any other person; or obtains from such person possession by color or aid of fraudulent or false representations or pretense, or of any false token or writing; or obtains the signature of any person to a written instrument, the false making whereof would be punishable as forgery; or secretes, withholds, or appropriates to his own use, or that of any person other than the true owner, any money, personal property, goods and chattels, thing in action, evidence of debt, contract, or property, or article of value of any kind; * * *
‡ ‡ ‡ ‡
“(3) If the value of the property stolen as mentioned in the preceding section is less than fifty dollars the offender shall be deemed guilty of petit larceny and upon conviction, shall be punished by imprisonment in the county jail not exceeding six months or by fine not exceeding three hundred dollars.”

It is perfectly clear that Chapter 26912, supra, was a legislative revision of the laws condemning the offense of larceny by redefining various offenses theretofore defined by certain sections of our Statutes. It is also clear that the offense condemned by paragraph (1) (a) of Section 811.021, Florida Statutes, F.S.A., is a comprehensive revision of the offense previously condemned by Section 817.01, Florida Statutes, F.S.A., as well as other pre-existing Statutes. In other words, insofar as Section 817.01, Florida Statutes, F.S.A., is concerned, Section 811.021, Florida Statutes, F.S.A., a later Act, defines and comprehends the same offense. The primary difference is that under Section 817.01, Florida Statutes, F.S.A., the penalty was a maximum of ten years in prison or a fine of $500, whereas, under subsection (3) of Section 811.021, Florida Statutes, F.S.A., where the amount involved is less than $50, the offense is defined as petit larceny and the prescribed punishment is a maximum of six months in county jail or a fine not to exceed $300.

The resultant importance of this situation to the appellant is obvious. If Section 817.01, Florida Statutes, has been superseded by Section 811.021, Florida Statutes, then the appellant could not have been legally sentenced upon his conviction under the first count of the information to a period of more than six months in county jail because the amount involved was less than $50. Actually, he was sentenced to five years in the State Prison.

We are of the view that the offense condemned by Section 817.01, Florida Statutes, F.S.A., is clearly comprehended by the offense condemned by Section 811.021, Florida Statutes, F.S.A., and that Section 811.021, supra, being a later enactment as well as a revision of the laws theretofore applicable to various offenses supersedes Section 817.01, Florida Statutes, F.S.A., and insofar as the appellant is concerned had the effect of providing a maximum penalty of six months in the county jail rather than five years in the State Prison.

We do not overlook the fact that both sections of the Statutes cited have been included in the biennial revisions of the Florida Statutes. However, we have held that where there is an inconsistency between sections of the Revised Statutes, we may look behind the revision to ascertain which Act was the latest directive of the Legislature on the particular subject. Lykes Bros. v. Bigby, 155 Fla. 580, 21 So.2d 37.

We have also consistently followed the well settled rule of statutory construction to the effect that where a Statute covers the whole subject matter of an earlier Act and it is .evident that it was intended to be a revision of or a substitute for the earlier Act, then the later Statute operates as a repeal of the earlier Statute to the extent that its provisions are revised and supplied. This is so even though the later Statute contains no express words of repeal and despite the rule that implied repeals of Acts of the Legislature are to be invoked only under the most circumspect consideration and when no other conclusion can be reached. Sparkman v. State, 71 Fla. 210, 71 So. 34; State ex rel. Palmer v. Stoutamire, 98 Fla. 486, 123 So. 834. See also, People v. Borgeson, 335 Ill. 136, 166 N.E. 451; Sutherland Statutory Construction, 3rd ed., Sections 2011 through 2014; and Statutory Construction by Crawford, Section 326.

It is here pertinent to note that Section 6 of Chapter 26912, supra, specifically saves from repeal certain sections of the pre-existing Statutes and Section 7 of the same Act provides:

“All other laws except as specifically enumerated in the preceding section, inconsistent or in conflict herewith, be and the same are, hereby repealed.” (Emphasis ours.)

Section 817.01, supra, was not one of the Acts specifically saved from repeal. Customarily, the general repealing clauses repeal prior Statutes “in conflict” with the subsequent Act. We deem it to be of some consequence that the repealing clause in Chapter 26912, supra, repealed not only prior Acts which were “in conflict” therewith but also prior Acts “inconsistent” therewith. Certainly Section 817.01, Florida Statutes, F.S.A., providing a penalty up to ten years in the State Prison was inconsistent with the later Act which prescribed a maximum jail sentence of six months in the county jail for the same offense.

Although admittedly not binding upon us as a precedent, we respect for its persuasive value the reported opinion of the Circuit Judge in Thomason v. American Fire & Casualty Co., 5 Fla.Supp. 129, wherein Section 811.021, Florida Statutes, F.S.A., was involved and wherein with reference thereto it was stated:

“The real purpose of the statute was to eliminate technical distinctions between the offenses of larceny, embezzlement and obtaining money under false pretenses. Prior to the enactment thereof in 1951 it was not uncommon for a criminal prosecution to become confused and sometimes result in a miscarriage of justice because of the fine line of demarcation between these offenses as they had previously been defined by the legislature and the courts. The history of the times and of the particular legislation involved clearly indicates that the intent of the legislature was to eliminate this confusion and to simplify prosecutions involving the wrongful and criminal acquisition by one person of the property of another.”

As pointed out in the forepart of this opinion, the Attorney General, by his supplemental brief, concedes that as to the crime charged in count one of the information before us, Section 811.021, Florida Statutes, F.S.A., must control. As stated above, the record shows that count two was nolle prosequied on order of the Circuit Judge after arraignment. We agree that there can be no question as to the guilt of the appellant under count one inasmuch as he actually pleaded guilty to the offense of petit larceny as defined by the applicable Statute, 811.021, supra. We do hold, however, that the maximum sentence that could be imposed upon him was imprisonment for not more than six months in the county jail or a fine not to exceed $300. We are not informed as to the amount of time that the appellant has been confined in the State Prison. However, it is obvious that his sentence was illegal for the reason that it exceeded the maximum allowed by law for the offense involved. It must therefore be corrected.

For the reasons hereinabove stated the order denying the issuance of the writ of habeas corpus is hereby reversed, with directions to the lower court to issue the writ and thereby direct that the appellant be immediately presented before the Cir? cuit Court of Franklin County for proper and legal sentencing in accordance with this opinion. If the appellant has already served the maximum time prescribed by lav/, he will of course be discharged from custody by appropriate order of the Circuit Judge of Franklin County when the matter is presented to him.

Reversed and remanded.

TERRELL, Acting Chief Justice, and HOBSON and ROBERTS, JJ., concur.


author: DREW, Chief Justice.

text:
    Angeles DE LA CONCHA, Appellant, v. Herculano PINERO, Jr., Appellee.
    Supreme Court of Florida. En Banc.
    June 6, 1956.
    Rehearing Denied July 27, 1956.

      Gray, Chandler & O’Neal, Gainesville, for appellánt.
    Lazonby, Dell, Graham & Mills, Gaines-ville, for appellee.
   DREW, Chief Justice.

This is an appeal from a final judgment dismissing a Second amended complaint without leave to amend. The pertinent allegations of the bill of complaint with reference to negligence are as follows:

“1. That on or about October 10, 1950, at approximately 5 p. m. the Defendant Herculano Pinero, Jr. was the owner and operator of a certain Cadillac motor vehicle which he was then and there operating in a Northerly direction on a certain public highway in Levy County, Florida designated as U. S. Highway No. 19 or State Road No. 55 in the Town of Otter Creek, Florida, and that attached to the rear of and being pulled by said motor vehicle was a four-wheel house trailer.

“2. At said time and place the Plaintiff Angeles de La Concha was an invited guest passenger in the motor vehicle of the Defendant and was riding on the right side of the front seat thereof.

“3. That at said time and place the Defendant drove and operated his motor vehicle in a grossly negligent manner in this, to-wit: That upon entering the community of Otter Creek on the aforesaid highway, the Defendant was confronted with visable signs of habitation such as dwelling houses and business establishments, and there were clearly visoble signs erected by the State Road Department of the State of Florida upon the right of way of the aforesaid highway indicating that the Defendant was entering an inhabited community and that an intersecting highway known as State Road No. 24 crossed said highway. There were other buildings and structures north of the aforesaid intersection which the Defendant knew, or by the exercise of slight care should have known, indicated that pedestrians and motor vehicles would be entering, crossing, or turning off the highway upon which the Defendant was driving. Nevertheless, the Defendant drove his vehicle past the aforesaid signs, intersection, and buildings at a dangerous and excessive rate of speed, to-wit: in excess of 65 miles an hour knowing at the time that the house trailer which he was pulling made it more difficult for him to reduce his speed, or maneuver his vehicle, and despite the warnings and protestations of the Plaintiff that his speed was excessive under the circumstances and conditions then existing. The Defendant failed to reduce the speed of his vehicle despite the warning and protests of the Plaintiff, and despite the fact that he was rapidly overtaking a Chevrolet truck which was headed in a northerly direction about two tenths of a mile north of aforesaid intersection and whose driver was sig-nalling his intention to make a left turn off of said highway, which signal was seen by the Defendant, or could have been seen by the Defendant by the exercise of slight care within sufficient time to, and at a point sufficiently distant from said truck, for the Defendant to have brought his vehicle under control despite the excessive speed at which he was then traveling. And Defendant then 'and there recklessly, or willfully, or wantonly disregarded the signal being given by the driver of the aforesaid Chevrolet truck, and despite a request of the Plaintiff not to do so, attempted to overtake and pass said Chevrolet truck on the left or westerly side of the highway, thereby failing to yield the right of way to the driver of said Chevrolet truck to which said driver was lawfully entitled. Upon seeing that the driver of the Chevrolet truck was beginning to turn to his left, the Defendant suddenly swerved his vehicle back to his right and towards the easterly side of the highway and collided with the left rear of the Chevrolet truck.”

Measured by the rule laid down in Bridges v. Spear, Fla.1955, 79 So.2d 679, and Faircloth v. Hill, Fla., 85 So.2d 870, the complaint stated a cause of action under the guest statute, F.S.A. § 320.59. The lower court was in error in dismissing it.

Reversed.

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

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


text:
    Cecil E. TAYLOR, Appellant, v. UNIVERSAL C. I. T. CREDIT CORPORATION, Appellee.
    Supreme Court of Florida. Special Division A.
    June 20, 1956.
    Rehearing Denied July 19, 1956.
    Carroll Dunscombe, Stuart, for appellant.
    Fisher, Dickinson & Prior, West Palm Beach, and Thad H. Carlton, Fort Pierce, for appellee.
   PER CURIAM.

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

It is accordingly Ordered, Adjudged and Decreed that the motion to affirm the judgment appealed from be, and the same is, hereby granted, and the judgment is

Affirmed.

DREW, C. J., TERRELL and THOR-NAL, JJ., and WALKER, Associate Justice, concur.


author: ROBERTS, Justice. DREW, Chief Justice O’CONNELL, Justice.

text:
    Harvey Sylvester PORTER, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. En Banc.
    April 18, 1956.
    On Rehearing July 25, 1956.

      Clarence J. Stokes, Sr., and Thomas H. Stokes, Sarasota, for appellant.
    Richard W. Ervin, Atty. Gen., and Joseph P. Manners, Asst. Atty. Gen., for appellee.
   ROBERTS, Justice.

Appellant was convicted of manslaughter for causing the death of a human being by culpable negligence in the operation of his automobile, and has appealed from the judgment of conviction. The point for determination on this appeal is the sufficiency of the evidence to support the conviction.

The accident resulting in the death of the decedent occurred at 9:30 a.m. on a Saturday morning at a street intersection on the outskirts of the city of Bradenton, but apparently outside the city limits. The appellant was proceeding north on a street which was well marked with “stop” signs prior to its intersection with the street upon which the decedent was travelling in a westerly direction, and which was marked only with a “slow” sign. The right front of appellant’s car collided with the left front and side of the decedent’s car. There was ample evidence from which the jury could find that the appellant was driving at the rate of 60 or 65 miles per hour and did not stop before entering the intersection.

“Culpable negligence”, within the meaning of our manslaughter statute, Section 782.07, Fla.Stat.1953, F.S.A., means negligence of “a gross and flagrant character, evincing reckless disregard of human life or of the safety of persons exposed to its dangerous effects; or that entire want of care which would raise the presumption of indifference to consequences; or such wantonness or recklessness or grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them.” Savage v. State, 152 Fla. 367, 11 So.2d 778, 779.

While excessive speed alone is not sufficient to support a conviction of manslaughter by culpable negligence, Maxey v. State, Fla., 64 So.2d 677; Smith v. State, Fla., 65 So.2d 303, we think that appellant’s action in “running” a stop sign at a high rate of speed was, in the circumstances shown by this record, negligence of a “gross and flagrant character” within the definition of culpable negligence, quoted above.

Accordingly, the verdict and judgment of guilty of manslaughter should be and it is hereby

Affirmed.

TERRELL, THOMAS and O’CON-NELL, JJ., concur.

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

DREW, Chief Justice

(dissenting).

I cannot agree that the evidence in this cause sustains the verdict of manslaughter.

The accident occurred outside the city limits on a county road in the daylight. There is no evidence in the record establishing the speed limit in this area so we must presume that it was sixty miles per hour. The evidence in the light most favorable to the State establishes the speed of the car at about sixty miles per hour. The driver was perfectly sober and there is no suggestion to the contrary. The sole evidence of reckless driving is that he failed to stop or slow down at a stop street which crossed the highway on which he was travelling. The record shows there was a stop sign on the right side of the road 112 feet from the intersection but there is no evidence in the record that the defendant had ever traversed this road before or was familiar with the locality.

To sustain the conviction of the defendant in this case is tantamount to a holding that if a person is killed because of the failure of a driver of an automobile to stop at a stop sign, such conduct constitutes in itself negligence of such a gross and flagrant character that it evinces a reckless disregard of human life.

There are few, if any, of us who have not through momentary lapse of attention— particularly on strange roads — been guilty of traversing stop streets without slowing down. Such, no doubt, constitutes such negligence as to support a damage action, but I do not think it was ever intended that negligence of that kind was sufficient to support a verdict of manslaughter. It is exceedingly doubtful that such negligence would be sufficient to support an action for punitive damages. I think the case should be reversed on the authority of Miller v. State, 75 So.2d 312, and Koger v. Hallahan, 1.44 Fla. 779, 198 So. 685, 131 A.L.R. 886.

HOBSON and THORNAL, JJ., concur.

On Rehearing Granted

O’CONNELL, Justice.

This cause is before us now on petition for rehearing of our opinion affirming the verdict and judgment of guilty of manslaughter.

Appellant, who will hereafter be referred to as defendant, was convicted of manslaughter for causing the death of a human being by culpable negligence in the operation of an automobile. The facts are set forth in the opinion and dissenting opinion rendered by this Court and filed on April 18, 1956 and will not be repeated herein.

From the evidence in this cause it appears that the only evidence of culpable negligence is that the appellant failed to stop at an intersection which was marked by (1) a perpendicular “stop” sign on the side of the road defendant was traveling and by (2) the word “stop” painted on the road. There is no evidence of heavy traffic, weather conditions or other unusual circumstances surrounding the accident or its locale, which was not in the corporate limits of any municipality. There is no evidence of or suggestion that the defendant was drinking or intoxicated. The accident happened in broad daylight. The speed limit we assume to be 60 miles per hour, and the evidence shows that the jury could have found the defendant to have been going between 60-65 miles per hour.

We feel that to sustain the conviction of the defendant under the facts in this cause will be tantamount to a holding that the death of a human being caused by the failure of the driver to stop at an intersection marked by a stop sign constitutes, in and of itself, negligence of such a gross and flagrant character that it evinces a reckless disregard of human life. We do not believe that such was the intent of the legislature in enacting the statute in question. Section 782.07, F.S.A.

There are few, if any, persons who drive automobiles who have not, through momentary lapse of attention, error of judgment, failing to see what they should have seen, particularly on roads not in municipalities, been guilty of running a stop sign at an intersection without slowing down. Such, no doubt, constitutes negligence sufficient to support a damage suit based on simple negligence. We doubt that it would support a verdict under our guest statute. Section 320.59, F.S.A. Nor do we believe that it is sufficient to support a verdict of manslaughter.

True the jury was entitled to consider as evidence, all inferences which would logically flow from the proven facts. It does not follow logically, that one who runs a “stop” sign on a country road while traveling at a speed at or near the limit prescribed by law has exercised the entire want of care which would raise the presumption of a conscious indifference to consequences. Defendant was required to be proved guilty of culpable negligence beyond and to the exclusion of a reasonable doubt.

We feel that the evidence before the jury, taken with all inferences to be logically drawn therefrom, was insufficient to meet the required proof and to overcome the presumption of innocence of the defendant.

The decisions of this Court in the cases of Miller v. State, Fla., 75 So.2d 312, and Koger v. Hollahan, 144 Fla. 779, 198 So. 685, 131 A.L.R. 886, are in accord with our conclusion in this opinion.

The verdict and judgment appealed from is — reversed, on rehearing granted, and we recede from the majority opinion on April 18, 1956.

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

THOMAS and ROBERTS, JJ., dissent.


text:
    Bessie Mae BURCH, Appellant, v. Charles B. SMITH, Appellee.
    Supreme Court of Florida. Special Division B.
    July 11, 1956.
   PER CURIAM.

Affirmed.


text:
    Carrine GOKEY, Appellant, v. Jane PRESCOTT, Appellee.
    Supreme Court of Florida. Special Division A.
    July 11, 1956.
   PER CURIAM.

Affirmed.


author: |,PER CURIAM.

text:
    STATE of Louisiana v. Lawrence JACOBS.
    No. 2003-KK-3349.
    Supreme Court of Louisiana.
    June 25, 2004.
   |,PER CURIAM.

Granted in part; denied in part. In the event that retrial of this case reaches a penalty phase at which Ghebrab and Ase-ghedec Ghebrziharb may testify with regard to prior crimes committed against them by the defendant, the state is directed not to question either witness about the emotional impact those crimes may have had on their lives. Such testimony is not sanctioned by La.C.Cr.P. art. 905.2(A) because it does not “inform[ ] the sentencing authority about the specific harm caused by the crime in question ... necessary to determine the proper punishment for a first degree murder,” Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 2608, 115 L.Ed.2d 720 (1991), and does not relate to the defendant’s character and propensities, as otherwise revealed by his actions in committing those crimes for which he has been convicted. See People v. Dunlap, 975 P.2d 723, 745 (Colo.)(“Evidence regarding the impact of a capital defendant’s prior crimes on the victims of those crimes ... is not admissible because it is not relevant to the actual harm caused by the defendant as a result | gof the homicide for which he is being sentenced.”), cert. denied, 528 U.S. 893, 120 S.Ct. 221, 145 L.Ed.2d 186 (1999).

In all other respects, the application is denied. Subject always to the trial court’s discretion in regulating the presentation of evidence, witnesses at a capital penalty phase may present their testimony augmented by prepared statements or literary creations such as poems to express the pain of their loss without depriving a defendant of a fundamentally fair sentencing hearing. See, e.g., Noel v. State, 331 Ark. 79, 960 S.W.2d 439, 446-47 (1998)(“Finally, [the witness] read a poem to the jury titled ‘Wishes from the Heart,’ that she had written about her [dead] children and that she ‘used as a tool to suppress the hurt and pain because sometimes it is so overwhelming....’ The trial court did not abuse its discretion in allowing this testimony.”).

KNOLL, J., recused.

TRAYLOR, J., would deny the writ.