text:
    WAGS TRANSPORTATION SYSTEM, Inc., a corporation, et al., Petitioners, v. CITY OF MIAMI BEACH, etc., Respondent.
    Supreme Court of Florida. Special Division A.
    July 3, 1956.
    Warren, Klein & Moore and Sibley & Davis, Miami Beach, for petitioners.
    Ben Shepard, Miami, for City of Miami Beach.
    Shutts, Bowen, Simmons, Prevatt & Julian, Miami, for Preston G. Prevatt, Tedland Realty 'Corp., Gilda Dahlberg and Polly Lux.
   PER CURIAM.

The entitlement to this petition involves the consolidation of four causes in which final decrees were entered enjoining the city from enforcing zoning restrictions upon the property described in three of them, so that it could be used only for the construction of hotels. Petitioners moved to intervene for the purpose of taking an appeal from the final decree. The petition for leave to intervene alleges that petitioners are within the same zoning district as the property described in the complaints in the consolidated causes, that the decree destroys the value of their property because petitioners have homes on said property which they use for residential purposes, therefore the decree of the lower court breaking these zoning restrictions and commercializing the district renders their property less suitable for residential purposes. Petitioners’ property was purchased on the strength of the zoning ordinance and in reliance upon the fact that all property within the zoning district would be maintained as residential property. Other grounds to support intervention were alleged but the petition to intervene was denied. We are confronted with an appeal by certiorari from that order.

The only point for determination is whether or not the trial court committed error in denying the petition to intervene.

We are conscious of the general rule that it is too late to apply for intervention after final decree has been entered, though “there are cases where in the interest of justice leave to intervene has been granted after final decree.” People’s Bank of Jacksonville v. Virginia Bridge and Iron Co., 94 Fla. 474, 113 So. 680, 682; Riviera Club v. Belle Mead Development Corp., 141 Fla. 538, 194 So. 783. See also section 63.09, F.S.1941, repealed in 1951 and succeeded by Rule 3.4, Rules of Civil Procedure, 31 F.S.A.

We think the petition to intervene showed such an interest in the res that the ends of justice require that it be granted. It was clearly within the exception to the general rule. Nothing is more sacred to one than his home and the petitioners should have been permitted to come in and bring their rights in this to the attention of the court. We do not overlook the fact that intervention is in subordination to and in recognition of the main proceeding. No new issues can be injected but none were attempted in this case. The home often has intrinsic and other values that no one knows of but the owner. In a case where it is sought to turn these values into other channels, it would be contrary to every element of due process to hold that the owner should not be permitted to intervene and bring or help bring these factors to the attention of the court.

The petition for certiorari is granted and that part of the order refusing to permit petitioners to intervene is quashed with directions to enter an amended order permitting them to intervene. If the appeal has been taken, petitioners’ names may be entered as parties appellant in this court and offer such defense as they may have to offer. It should not be in duplication of defenses presented in the main appeal.

It is so ordered.

TERRELL, Acting Chief Justice, and HOBSON, THORNAL and BUFORD, JJ., concur.


source: Caselaw Access Project

author: ROBERTS, Justice.

license: Public Domain

text:
    Reginald LALOW and Helene Lalow, Appellants, v. Sam L. CODOMO, Appellee.
    Supreme Court of Florida. Division B.
    July 13, 1956.

      Alexander S. Gordon and Nelan Sweet, Miami Beach, for appellants.
    Patton & Kanner, Miami, for appellee.
   ROBERTS, Justice.

This is an appeal from a judgment designated an “amended partial summary judgment” entered by the trial judge for the avowed purpose of providing the losing party with an opportunity to appeal from the “partial summary judgment” previously entered and as to which the appeal time had expired. The appellee has filed a motion to quash the appeal on the ground that the trial judge is without authority to extend, either directly or indirectly, the time for filing a notice of appeal. The contention is sound and must be sustained. Wieczorek v. Williams, Fla.1954, 71 So.2d 262.

No opinion is expressed as to the propriety of entering a so-called “partial summary judgment” on one of the two separate and distinct claims incorporated in the complaint, in the absence of a rule of civil procedure in this state similar to Rule 54 (b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., nor as to whether Rule 1.36 of the Florida Rules of Civil Procedure, 30 F.S.A., providing for the entry of summary judgment upon “all or any part” of a claim, contemplates more than a pretrial sifting of the issues. Cf. Biggins v. Oltmer Iron Works, 7 Cir., 1946, 154 F.2d 214; 3 Moore’s Federal Practice, 1st Ed. 1938, 3175.

The motion of the appellee to quash the appeal is granted, and the appeal is quashed.

It is so ordered.

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


author: HOBSON, Justice.

text:
    Pearl Louise McKINNON, Daniel Angus McKinnon, Jr., and Louise E. McKinnon Granger, Appellants, v. John COMMERFORD, Appellee.
    Supreme Court of Florida. Division A.
    July 6, 1956.

      R. S. Pierce, Jr., Marianna, for appellants.
    Clyde Mayhall, Marianna, for appellee.
   HOBSON, Justice.

Appellants, Pearl Louise McKinnon, Daniel Angus McKinnon, Jr., and Louise McKinnon Granger, as plaintiffs below, brought an action in ejectment against John Commerford, appellee, seeking to oust him from possession of 80 acres of land. Appellants claim under the following chain of title: A warranty deed to S. E. Booher, dated June 1, 1922, conveying one tract of 40 acres; a warranty deed to S. E. Booher, dated November 18, 1922, conveying the other 40 acres; death of S. E. Booher intestate in California in 1924, leaving his wife, Louise C. Booher, his only heir at law; and will of Louise C. Booher, who died in 1926, leaving the subject property to the appellants.

Appellee’s claim is described in the following statement from the answer:

“This defendant further states that in January 1923 one S. E. Booher, who had recently purchased said lands gave said lands to this defendant and placed him in possession thereof; that immediately thereafter this defendant constructed a home upon said lands and began to clear the same for cultivation; that he cleared approximately 60 acres of said lands and thereafter from year to year for more than seven continuous successive years before 1935 the said defendant planted, cultivated and harvested crops of farm produce from said lands; that prior to 1930 this defendant completely enclosed said lands by a substantial fence and that said lands remained completely enclosed by a substantial fence through the year 1938 and for more than seven continuous successive years. This defendant further states that he did not at any time attorn to any person as his landlord; that he went into possession of said premises as his own by virtue of the gift as aforesaid and that since that time and for approximately 32 years 'no person made, offered to make or assert any claim or right to the title or possession of said lands and during said period of 32 years, from 1923 until 1955, this defendant remained in the open, adverse and notorious possession of said lands holding the same openly, adversely and notoriously against the claims of all persons whomsoever.”

In our subsequent discussion of the case we will refer to the parties, for conven-nce, as they were styled below.

The case was tried before a jury and at the close of all the evidence plaintiffs moved for a directed verdict. This motion was denied and the jury returned its verdict for the defendant. A motion for judgment notwithstanding the verdict was also denied, and final judgment was entered for defendant. . .

The principal point raised on this appeal is whether of not the evidence was sufficient to sustain the result reached by the jury.

Since the defendant claims under' no written instrument, it is evident that his claim must be classified as “without color of title” under F.S. §§ 95.18 and 95.19, F.S.A. It is undisputed that the defendant has never returned the land for taxes, has never paid taxes thereon, and has never applied for homestead tax exemption. Taxes have been paid by or in behalf of the plaintiffs or their predecessors in title from the year 1922 to date. This is a circumstance to be considered in determining the character of defendant’s possession of the land, but it is not necessarily fatal to his position because the requirement of F.S. § 95.19, F.S.A., that the adverse occupant must have returned and paid the taxes within one year after entry and at all times subsequent thereto is inapplicable if the occupant’s adverse possession had ripened into title before 1939, at which date this requirement was inserted in F.S. § 95.-19, F.S.A. Stewart, Adverse Possession, 1 Florida Law and Practice, Sec. 19, and cases cited.

We must scrutinize carefully the circumstances surrounding the initial entry upon the land by the defendant and his status subsequent thereto as an alleged adverse occupant of the land. It appears from the testimony that in the early twenties- defendant met Mr. Booher and frequently hunted with him. They were often accompanied by one Dr. McKinnon, who was the. husband of the plaintiff Pearl Louise Mc-Kinnon (S. E. Booher was this plaintiff’s' step-father). The possibility of purchasing the land in suit was discussed one day and Mr. Booher, according to- defendant’s testimony, said “John, get an abstract deed to that place and the money is ready to pay for it. You will have a home, you won’t have to be moving from pillow to post.” One Plogg, a witness for the defendant, testified that he was present on this occasion and that Mr. Booher tol.d the defendant “to have an abstract made on that place and the money would be there to pay for it, and he wouldn’t have to move from pillow to post any more.” Thereafter, Mr. Booher purchased the land. In January, 1923, the defendant moved into'an old house on the land which he repaired to some extent. -Several years later he tore the house down- and rebuilt it, and has.lived in the rebuilt house since; He maintained a friendly relationship with Mr. Booher and Dr. McKinnon throughout their lifetimes, and took care of their hunting dogs for them.

The defendant further testified: “Aft.er the old gentleman [Mr. Booher] died I went in Dr. McKinnon’s office and I says ‘Well, Doc, Mr. Booher is dead, what about the place’, he says, ‘John, he bought that place for you, you go ahead and live on it just as you have been doing’.”

When the defendant moved on the land in 1923 there was an old rail fence on the east side, on the south there was a piece of old fence, and on the west it was fenced with “a little better than a quarter of wire”. In 1923, the defendant put up some wire. He did this again in 1925. He testified that it was all under fence from 1923 to 1939, and at the time of the trial it was “practically” all fenced. Part of the land was placed under cultivation.

On cross-examination of the defendant the following took place:

“Q. When did you first have a conversation with Mrs. McKinnon with reference to this land, when did she first, tell you they wanted possession of the land? A. Well, T can’t tell you 'the date, but I went to her house to see. her and talk to her.
“Q. Did you state to her, in effect, about the first part of this year ‘I thought Mr. Booher expected me to live on the place as long as I lived, I have lived there so long’. Did you make any statement like that to her? ■A. I expect I did.
“Q. Had you ever, at any time prior to that, made any claim to Mrs. McKinnon, Dr. McKinnon, Angus Mc-Kinnon, Jr., or Mrs. Louise Granger that you claimed title to that land? A. Nothing only I told them I felt like it was my home.
“Q. I mean did you claim to have title to it? A. I told them I thought I was entitled to it; and I do.
“Q. Have you ever made any claim to either one of those parties I have just named that you claimed to have the title to that land, or that you owned the land? A. No.”

From this record it appears that the defendant’s possession of the land admittedly originated with the consent of the owner and was permissive during the entire period for which he claims, and thereafter. The first evidence of any conceivably hostile claim by the defendant was brought to the notice of the record owners after the only period for which defendant could assert a claim had run. Obviously, he cannot claim adverse possession for any period after 1939, because it is undisputed that he has never paid taxes on the property.

It is plain that the contention of defendant that he received a parol gift of the land must fail. Proof of such parol gift must be clear and convincing, Purvis v. Malloy, 129 Fla. 191, 176 So. 71; Todd v. Hyzer, 154 Fla. 702, 18 So.2d 888, and there must have been an intention to transfer title, Hodges v. Atlantic National Bank of Jacksonville, 134 Fla. 702, 184 So. 875. By defendant’s own testimony the most that Mr. Booher ever intended was that defendant should live on the land, and this intention was expressed before Mr. Booher ever acquired title to the land. The record is absolutely barren of any intention on the part of Mr. Booher or any other record owner to transfer title to the defendant. In summary, the entire record shows nothing but circumstances consistent with permissive possession, and the adverse and hostile element which must be present to sustain a claim of adverse possession in a case of this character is wholly lacking. It follows that the judgment appealed from must be, and it is hereby, reversed and the cause remanded with directions to enter judgment for the plaintiffs.

It is so ordered.

TERRELL, Acting C. J., and ROBERTS and THORNAL, JJ., concur.


author: PER CURIAM.

text:
    ADVISORY OPINION TO THE GOVERNOR.
    Supreme Court of Florida. En Banc.
    June 21, 1956.
   PER CURIAM.

Supreme Court of Florida

Tallahassee

June 21, 1956

Honorable LeRoy Collins

Governor of Florida Tallahassee, Florida

Dear Governor:

We are in receipt of your request of May 25, 1956, for this Court’s opinion pursuant to Section 13, Article IV of the Constitution [F.S.A.] as follows:

“Honorable E. Harris Drew, Chief Justice, and Honorable Justices of the Supreme Court of Florida

“Supreme Court Building

“Tallahassee, Florida

“Re: Absence of Circuit Judge; filling of vacancy

“Gentlemen:

“Under Section 13 of Article IV of the Constitution of Florida, the Governor may at any time request the Opinion of the Justices of the Supreme Court upon any question * * * * as to the interpretation of any portion of this Constitution upon any question affecting his Executive powers and duties * * ’

“Under date of July 20, 1955,1 asked you for an opinion touching upon the same matter hereinafter discussed which was answered by your Advisory Opinion reported in 81 So.2d 778. New facts on the same matter have now come to my attention, malting it expedient that I again ask you for an opinion.

“C. E. Chillingworth for many years was a Circuit Judge of the Fifteenth Judicial Circuit of Florida, resident in Palm Beach County. In November of 1954, he was re-elected to a new term which began the following January. On or about June 15, 1955, he and his wife suddenly disappeared. To date nothing has been heard from them, or have their bodies been found. Scores of law enforcement officers have worked diligently, extremely high rewards have been posted, but nothing has happened.

“I am in receipt of official detailed reports from the Sheriff of Palm Beach County and from the State Attorney for the Fifteenth Judicial Circuit. These reports, which are attached hereto, after fully describing the circumstances surrounding the disappearance and the physical evidences present at the scene, conclude with the opinion of both officers that, based upon all the surrounding circumstances, Judge and Mrs. C. E. Chillingworth met their deaths at the hands of a person or persons unknown on or about June 15, 1955. As Governor, it is my belief that this is a correct conclusion.

“It has also been officially reported to me further that the Supervisor of Registration of Palm Beach County, under Section 98.201 F.S. [F.S.A.], has officially cancelled the voting registration of Judge Chillingworth. The official State records also show that no salary has been requisitioned by Judge Chillingworth since his disappearance.

“Since the date of the Judge’s disappearance, Palm Beach County, of course, has had the services of one less Circuit Judge than the law provides for. Since the missing Judge’s term has many years yet to run, no relief is in prospect unless new facts develop proving actual death whereby Section 114.01(1) F.S. [F.S.A.] becomes operative. I am advised by the resolution of Palm Beach County Bar Association that since 1943 Circuit Court litigation in that County has increased almost 100 percent in Common Law cases and almost 600 percent in Chancery cases and that since Judge Chil-lingworth’s disappearance it is impossible for the remaining two Judges to clear the increasing case load without long delays, even with the assistance of assigned judges from other circuits, whose dockets permit such assignments. From facts brought to my attention, therefore, it appears such disappearance has resulted in a breakdown in the prompt administration of justice in Palm Beach County which is growing worse day by day, and' will continue to grow worse in the long remaining years of Judge Chillingworth’s term unless a successor can be duly named.

“I assume the Constitution of Florida, as an organic act, provides a remedy for every failure in the machinery of government unless the clear language thereof evidences a contrary intent. Article XVI, Section 17, of the Constitution provides that ‘No person shall hold any office or trust or profit under the laws of this State without devoting his personal attention to the duties of the same.’ No one is presently carrying out the functions of the office of Judge Chillingworth in Palm Beach County. From the facts submitted to me, this is not a case of absence with an intention'to return such as illness, military duty and like matters, but is one already of almost a year’s duration, and one surrounded by facts which, in the opinion of those best able to know, point up a homicidal death on or about June IS, 1955.

“The Constitution requires the Governor to take care that the laws are faithfully executed. Article IV, Section 6. The laws o'f Florida cannot be so executed in Palm Beach County under present conditions inasmuch as long delayed justice is often no justice at all.

“The Constitution gives the Govern- or the power to fill vacancies. Article IV, Section 7, provides: ‘When any office, from any cause, shall become vacant, and no mode is provided by this Constitution or by the laws of the State for filling such vacancy,' the Governor shall have the power to fill such vacancy by granting a commission for the unexpired term.’ The Legislature has sought to implement this provision by the passage of Chapter 114 F.S. [F.S. A.] Section 114.01 of such Chapter lists some 10 specific instances where a vacancy is deemed to exist. An unexplainable disappearance as involved in the case of Judge Chillingworth, is not one of the specific instances listed in Section 114.01. However, Chapter 114, F.S. [F.S.A.] contains a flexible provision in Section 114.04, which indicates the instances detailed in Section 114.01 are not the only ones where the Governor may exercise the power to appoint a successor. Such Section 114.04 provides that in all cases such as listed in Section 114.01 and in all other cases in which a vacancy may occur, an appointment may be made.

“Therefore, reading Article IV, Section 7, ■ arid-Chapter 114 F.S. [F.S.A.] together, and considering the impact of Article XVI, Section 17 and Article IV, Section 6, and in the light of all the factual circumstances above related, I am constrained to ask your official advice upon the following questions :

“1. Is there a vacancy in the office of Circuit Judge of the Fifteenth Judicial Circuit formerly filled by C. E. Chil-lingworth ?

“2. If so, did such vacancy arise on or about June 15, 1955?

“3. If so, is it within my power to fill such vacancy by appointment for the unexpired term?

“Respectfully,

“LeRoy Collins

“Governor”

Since your request for our opinion dated July 20, 1955 (Answer, 81 So.2d 778), in re the same subject matter, the situation has changed materially. It now appears that Judge and Mrs. C. E. Chillingworth mysteriously disappeared on or about June 15, 1955, and no tidings of them have been received since, though they have been gone for more than a year and a very exhaustive search has been carried on to locate them. One of the largest rewards in the history of the country, more than $100,000, has been posted for those responsible for their disappearance or for information leading to their whereabouts but without results. The State Attorney’s office, the Attorney General’s office, the Sheriff’s office, the F.B.I. and other law enforcement agencies have run down every lead secured but without avail.

It is shown that Judge and Mrs. Chilling-worth were in excellent health, were very highly respected, were people of substantial means, were very happy in their domestic life, thoroughly enjoyed their family and friends and were loved by a wide circle of friends. The State Attorney of the Circuit (Fifteenth) points out that “the evidence clearly indicates that a desperate ■struggle occurred on the beach at his (Judge Chillingworth’s) Manalapan home near Palm Beach on the night or morning of their disappearance and foul play was apparent.” The State Attorney also points out that from the evidence and circumstances there is no basis for any theory that Judge Chillingworth voluntarily abandoned his position, home, family and friends of a lifetime, but that both Judge and Mrs. Chillingworth were the victims of a homicide and met their deaths at the hands of a person or persons unknown on or about June 15, 1955. The Sheriff of Palm Beach County has exhausted every means possible to solve the mystery and his report coincides with that of the State Attorney.

In November, 1954, Judge Chillingworth was re-elected for a full six-year term beginning in January, 1955. Section 114.01, Florida Statutes 1955, F.S.A., provides the circumstances under which an office becomes vacant and Sec. 114.04, Florida Statutes 1955, F.S.A., provides the means for filling such vacancies. If Judge Chilling-worth was the victim of a homicide, his position could be properly filled under the latter statute. While it is not positively known that he was such a victim, we think that in view of the desperate condition of the Circuit Court docket in that Circuit as pointed out in your letter, the fact that Judge Chillingworth has requisitioned no salary since his disappearance, that under Sec. 98.201, Florida Statutes, F.S.A., the Supervisor of Registration of Palm Beach County has cancelled his voting registration and for other reasons pointed out in your letter, as Governor you would be authorized to make proclamation of these facts, declare the place vacant and appoint a successor.

This advice is proffered on the theory that the office of Circuit Judge is a key position in our state government; that the administration of justice suffers immeasurably when it ceases to function and that under the circumstances the law never contemplated a hiatus in government such as is shown to exist by the disappearance of Judge Chillingworth. We realize that this advice is subject to the very rare possibility that if Judge Chillingworth should return during the term for which he was elected and show that he had been kidnapped or forcibly detained, or otherwise absent for reasons beyond his control, he could by quo warranto recover his title to the office. This would present complications that would have to be remedied by court decree or legislative act, but that possibility now seems so remote that the interest of the people of the Circuit and the constitutional duty imposed on you to see that the law is faithfully executed would justify the undertaking.

Respectfully yours

E. HARRIS DREW Chief Justice

GLENN TERRELL

B. K. ROBERTS

CAMPBELL THORNAL

STEPHEN C. O’CONNELL Justices

Supreme Court of Florida Tallahassee

June 21, 1956

To His Excellency,

LeRoy Collins,

Governor of Florida.

Dear Governor:

This is in reply to your request for an advisory opinion under date of May 25, 1956. Although I concur in the general conclusion reached by the majority of the Court in connection with your first question, the following expresses my opinion in detail with reference to the first question as well as the two remaining questions.'

Your first request for an adyisory opinion on this subject dated a little more than a month after the tragic disappearance of Judge Chillingworth, contained a showing of facts then known to you which we were constrained to hold insufficient to create a vacancy in the office which you were authorized to fill. 81 So.2d 778.

A year has now elapsed since the incident occurred, and after the most diligent and continuous search and investigation of the judicial circuit which Judge Chilling-worth was serving no trace of him has been found. His voting registration has been officially cancelled, and no salary has been requisitioned since his disappearance. Upon this showing, and the additional facts given in the inclosures to your letter, I can come to no conclusion except that this incumbent has “ceased to be an inhabitant” of the Fifteenth Judicial Circuit within the meaning of F.S. § 114.01(4), F.S.A., and that the office to which he was elected has been “abandoned”, In re Advisory Opinion to the Governor, 1942, 151 Fla. 44, 9 So.2d 172, 140 A.L.R. 1492; State ex rel. Landis v. Bird, 120 Fla. 780, 163 So. 248, 255; and is thus to be “deemed vacant” under F.S. § 114.01, F.S.A. Í therefore find it unnecessary to consider the effect of the language “and in all other cases in which a vacancy may occur * * * ” contained in F.S. § 114.04, F.S.A., to which you allude.

Of course, it would be impossible to prove conclusively that a person has “ceased to be an inhabitant” of a particular place without establishing his death or proving that he has become an inhabitant of some other place. I do not anticipate, however, that the proof needed to bring the case within F.S. § 114.01(4) must be of a conclusive nature. It will be noted that all of the evidence you present in this matter is circumstantial in character. The most stringent rule of proof by circumstantial evidence known to our law is the criminal rule, “where the inference drawn must not only be consistent with the fact sought to be proved, but wholly inconsistent with any other reasonable inference to the contrary.” City of Jacksonville v. Waldrep, Fla., 63 So.2d 768, 769. The rule in civil cases is less exacting, requiring only that “ ‘the particular inference of the existence of the fact relied on as arising from the circumstances established by the evidence adduced, shall outweigh all contrary inferences to such extent as to amount to a preponderance of all the reasonable inferences that might be drawn from the same circumstances.’ ” Voelker v. Combined Ins. Co. of America, Fla., 73 So.2d 403, 405; City of Jacksonville v. Waldrep, supra; King v. Weis-Patterson Lumber Co., 124 Fla. 272, 168 So. 858.

We have had occasion to consider the quantum of proof required to establish death in a civil case by circumstantial evidence, and have stated that “if the fact of death is proved by evidence and inferences therefrom, then no presumption as to death, common law or statutory, need be brought into play.” Johns v. Bums, Fla., 67 So.2d 765, 767. We there held that the civil rule applied, and that only a preponderance of all reasonable inferences deducible from the circumstances was required. Manifestly, it is easier to prove that one has “ceased to be an inhabitant” of a particular location than to prove that he is dead.

In summary, that Judge Chillingworth has “ceased to be an inhabitant” of the Fifteenth Circuit, and that his return is not to be expected, may be proved circumstantially, without the aid of statutory or other presumptions, and by a preponderance of all reasonable inferences. The simple fact of his cessation of inhabitancy is sufficiently established by the failure to find any trace of him after a meticulous search of the area has been conducted for over a period of a year. The other circumstances of the case, which strongly suggest foul play, are important for their bearing upon the possibility of his return, and drive me unerringly to the conclusion that so desirable an event is not reasonably to be expected. I can say, as we said in Johns v. Burns, supra, 67 So.2d 765, 767, “it is immediately apparent that the case presented is not that of a simple unexplained absence.” It can hardly be doubted that the inferences of cessation of inhabitancy and abandonment preponderate over all reasonable contrary inferences, with the possible exception of death, which would, of course, create a vacancy under F.S. § 114.01(1), F.S.A. In either case, a vacancy exists, but I have emphasized cessation of inhabi-tancy because it has a lower threshold of proof.

From the foregoing, upon the factual situation now shown to exist, your first question must be answered in the affirmative.

Your second question must likewise be answered in the affirmative. You have given facts which must be considered as present proof of a previously existing condition. Again I analogize the situation to one in which death is sought to be proved circumstantially. In Johns v. Burns, supra, 67 So.2d 765, after reviewing the authorities, we concluded that the time of death could be established, by circumstantial evidence, as having occurred on or about the time of disappearance, in spite of the presumption of death arising from seven years of simple unexplained absence and the rule that death is deemed to have occurred at the end of that period. If the time of death can be so established, a for-tiori the time of cessation of inhabitancy and abandonment may be so proved. And from the circumstances surrounding the discovery of Judge Chillingworth’s absence, viewed in the light of later events, it is most reasonable to conclude that the vacancy in office arose on or about June 15, 1955.

In connection with your third question, Article IV, Sec. 7 of the Florida Constitution grants to the Governor the power to fill a vacancy by granting a commission for the unexpired term only when “no mode is provided by this Constitution or by the laws of the State for filling such vacancy * * *. ” We have held that under this section, as implemented by F.S. § 114.04, F.S.A., persons appointed by the Governor to fill vacancies occurring in elective offices shall take and hold such office only until the same shall be filled by election as provided by law. Advisory Opinion to Governor, 1943, 152 Fla. 686, 12 So.2d 876, 878. The office of Circuit Judge was made elective by the constitutional amendment of 1942, Article V, § 46. Under Article XVIII, Sec. 6, as amended in 1944, “[t]he term of office for all appointees to fill vacancies in any of the elective offices under this Constitution shall extend only to the first Tuesday after the first Monday in January next after the election and qualification of a successor.” Thus, under the Constitution and statutes as we have heretofore construed them, your third question, as framed, must be answered in the negative, for an appointee to fill the vacancy under consideration may serve only to the day specified in amended Article XVIII, Sec. 6, after a successor has been duly elected and qualified, in the next general election, for the unexpired term of Judge Chillingworth. You do, of course, have power to malee an appointment for such period.

Respectfully yours,

T. FRANK HOBSON, Justice.


author: THOMAS, Justice. DREW, Chief Justice

text:
    Mary Delsie JENSEN, also known as M. D. Jensen, a widow, Appellant, v. Grace H. LANCE, as Administratrix of the Estate of Ray O. Lance, Deceased, Appellee.
    Supreme Court of Florida. En Banc.
    July 11, 1956.

      Carr & O’Quin, Miami, for appellant.
    George Everett, Miami, for appellee.
   THOMAS, Justice.

This litigation began with the presentation by the appellant of a claim against the estate of Ray O. Lance. The administra-trix disallowed the claim whereupon the appellant brought suit in the circuit court to enforce its payment. ' In the trial when the testimony of the son of the appellant was offered, the appellee objected on the ground that the witness was an interested person as contemplated in Section 90.05, Florida Statutes 1951, and F.S.A., and the objection was sustained.

The question now posed is whether or not the son of the appellant should have been precluded from testifying because his claim against the same estate was so closely connected with his mother’s and arose out of the same transaction.

Under the statute no person who is a party to an action or who is “interested in the event thereof” and no “person from, through or under whom” such party or interested person “derives any interest * * shall be examined as a witness in regard to any transaction or communication between such witness and a person at the time * * deceased * * * against the * * * administrator * * * of such deceased person * *

The admissibility of the testimony would not be governed by the blood relationship between the appellant and the witness, Fields v. Fields, 140 Fla. 269, 191 So. 512, but that is a circumstance which should be considered in this particular case as will be seen when we state the facts surrounding the origin of both claims. It is the general rule that to justify exclusion of testimony under the statute it must appear that the witness will “gain or lose directly * * * or that the record * * could be used as legal evidence * * * for * * * or against him, in some other suit” to establish or disestablish the matters about which he testified; and the interest must be certain, legal and immediate. Adams v. Board of Trustees of Internal Impr. Fund, 37 Fla. 266, 20 So. 266, 267.

Bearing in mind this gauge of the interest that will disqualify, we examine the facts relevant to the objection and the ruling. The testator was constructing a building and he and the witness were negotiating for a lease of the property to the witness for use as a liquor store. At the same time the prospective lessor, the decedent, represented that he could obtain a liquor license for use. of the witness, and the appellant deposited with the decedent more than $10,000 for that purpose. The witness paid to the decedent $3,600 on account of rent. Although the negotiations seem to have been contemporaneous, the payments by appellant and her son were made at different times. It was their plan to form a corporation and to operate the business in its name so both were working toward the same end, the establishment of a commercial enterprise. One was advancing money for rental of a place where it might be conducted, the other, money for a license so it could he carried on legally. Their investments were eventually to be exchanged for stock in the corporation.

Because of circumstances not necessary to relate the building was never occupied by the witness. The lessor died, and eventually appellant, the mother, and witness, the son, filed claims against the estate. When the claims were denied each brought suit.

We revert now to the question whether or not the son could testify in the mother’s suit.

It is true that the son categorically denied that he had any pecuniary interest in the appellant’s recovery and this we do not doubt, but he had, it seems to us, a vicarious interest entirely aside from sentiment. We agree with the circuit judge that the son was barred from giving his version of the transaction, because we think he was so closely allied with his mother in the transaction that to permit either to testify in behalf of the other would amount to circumvention of the law. Though different parties paid different amounts for different purposes, there was a single transaction and from its very nature the bases of claims could not be separated. If the son could testify in his mother’s behalf then, obviously, the mother could testify in the son’s behalf and the practical effect would be the same as if each had testified in his own behalf.

In a strict technical sense the witness was not directly interested in the outcome of this particular suit but when the purpose and the spirit of the act are considered, we conclude that his interest so blended with his mother’s that the judge was justified in holding that these interests could not be divorced from each other.

The purpose of the statute was to remove the “stringent” common-law inhibition against testimony by a person “ ‘interested in the event’ of a suit * * Adams v. Board of Trustees of Internal Impr. Fund, supra. The reason for the exception, that such person could not, however, testify about a transaction between him and a person deceased, was to prevent the former from taking advantage of his adversary by giving testimony that could not be refuted because the other party to the transaction had died. It has been said by this court that it is “only just, fair and equitable in a case such as this wherein death has sealed the lips of one party, that the law should as effectively silence the voice of the other.” Mayer v. Mayer, Fla., 54 So.2d 105, 106.

The disadvantage sought by the law to be prevented would have, in our opinion, occurred if the testimony of the son in the circumstances peculiar to this case had been admitted.

We agree with the ruling, therefore, the judgment is — ■

Affirmed.

TERRELL, HOBSON and ROBERTS, JJ., concur.

DREW, C. J., dissents.

THORNAL and O’CONNELL, JJ., dissent on basis of Farrington v. Richardson, 153 Fla. 907, 16 So.2d 158.

DREW, Chief Justice

(dissenting).

I cannot agree the witness’s “interest” was a disqualification to testify. It was too remote. He was suing for his money. The mother for hers. This is particularly true under the circumstances here. The results in one case could have no immediate or direct result in the other case which might be before a different judge and jury, etc. The statute was designed as a shield — not a sword.


author: THORNAL, Justice. PER CURIAM.

text:
    Robert F. BEDENBAUGH, R. P. Dicks, P. M. Sandlin, J. H. Melton and Van Giebeig, as members of and constituting the Board of County Commissioners in and for Columbia County, Florida, Appellants, v. Emory T. ADAMS, Appellee.
    Supreme Court of Florida. Division A.
    May 23, 1956.
    On Rehearing July 20, 1956.

      Richard W. Ervin, Atty. Gen., Fred M. Burns, Asst. Atty. Gen., and W. J. Ferguson, Lake City, for appellants.
    Milo I. Thomas, Jr., Lake City, for ap-pellee.
   THORNAL, Justice.

Appellants who were defendants below seek reversal of the final decree which granted an injunction against appellants in a proceeding brought by the appellee to enjoin the expenditure of county funds in connection with the hog cholera inoculation program in Columbia County.

The principal question to be settled is whether the County Agent of Columbia and his assistant, neither of whom is a licensed veterinarian, can legally inoculate hogs against cholera.

Alleging himself to be a taxpayer and citizen, the appellee filed a complaint against the appellants as the Board of County Commissioners of Columbia County seeking an injunction to prohibit them from supplementing, out of county funds, salaries of the County Agent and the Assistant County Agent both of whom had been designated by the Florida Livestock Board to inoculate hogs in Columbia County against the disease commonly known as hog cholera. The supplemental salary of each agent was $35 per month.

The Florida Livestock Board had delegated the responsibility to the County Agent and the Assistant County Agent by identical letters which read as follows:

“You are hereby granted temporary permission by the Florida Livestock Board to use the simultaneous treatment for the prevention of hog cholera in Columbia County, Florida.
“It is understood that the Board is to have your cooperation and support and to this end it will be necessary for you to promptly make out all reports required by the Board.”

Neither of the agents was a licensed veterinarian.

Appellee grounded his complaint on Section 474.07, Florida Statutes, F.S.A., which defines a practitioner of veterinary medicine as one “who shall operate on, or prescribe for, or administer any medicine, or any biologic preparation to, either as a cure or preventive for any disease, * * * ” of any animal. The statute exempted certain people but county agents were not included within the exemption.

Section 474.08, Florida Statutes, F.S.A., provides a penalty for one who practices veterinary medicine without having qualified under the Act.

Appellants defended by relying on Section 585.32, Florida Statutes, F.S.A., which in part authorizes the Florida Livestock Board to “distribute” hog cholera serum “through employees of said board, licensed veterinarians and recognized and approved agents of the state and federal governments * * *.”

Appellee contended in his complaint that the expenditure of public funds to supplement the salaries of the County and Assistant County Agents was illegal because under the cited statutes they could not legally inoculate the hogs.

The Chancellor agreed with the appellee and entered an injunction prohibiting the further expenditure of public funds for the stated purpose. Appellant seeks reversal of this order.

Although we have not been favored with a brief by the appellee, a practice which we do not approve, the appellants tender the same contentions in this court as they did to the Chancellor below.

We are impressed by the careful and thorough analysis of the situation reflected by the final decree of the able and experienced Chancellor. In the decree he recognized the importance of the cholera serum inoculation program to the farmers and hog owners of the state and stated his personal satisfaction with the competence and ability of the County Agent and his assistant. Relying, however, on the statutes which were evidently the only statutes cited to him by the parties below, he entered the injunction order. Admittedly, if these were the only statutes involved, we would be inclined to concur in the conclusion reached by the Chancellor for the simple reason that Section 585.32, Florida Statutes, F.S.A., relied upon by the appellants merely authorizes the Florida Livestock Board to “distribute” the cholera serum through employees of the Board. This section does not authorize the Board or its agents to inoculate the hogs.

According to Webster’s New International Dictionary “distribute” means “To divide among several or many; to deal out; allot.” We, like the Chancellor, do not believe that authority to “distribute” includes authority to “inoculate” which is defined by Maloy’s Medical Dictionary for Lawyers to mean “ * * * to inject or insert serums, vaccines or antigens for preventive or curative purposes”.

Apparently, the parties in the trial court and in this court have overlooked the provisions of Sections 585.15 and 585.16, Florida Statutes, F.S.A. By Section 585.15, Florida Statutes, F.S.A., the Legislature defined certain dangerous transmissible diseases of animals as including hog cholera. Section 585.16, Florida Statutes, F.S.A., in part provides:

“585.16 Powers of board in connection with certain diseases' *
“Whenever any of the diseases enumerated in § 585.15 or any disease now or hereafter proclaimed by the Florida livestock board to be of a dangerous or transmissible nature, shall exist anywhere within the state, or whenever it is deemed necessary or advisable to dip, examine, test, treat or destroy, the board may, or through its representatives and agents, dip, examine, test, treat or destroy, any infected, exposed, suspected or susceptible animal * * (Emphasis added.)

We read all of these statutes as being in pari materia but even if they were not, Section 585.16, Florida Statutes, F. S.A., is an enactment subsequent to Section 474.07, Florida Statutes, F.S.A., relied upon by the appellee and to the extent applicable to the matter before us would supersede the provisions of the earlier Act.

It is clear from Section 585.16, Florida Statutes, F.S.A., that the Florida Livestock Board through its representatives and agents may “examine, test, treat or destroy” any animal susceptible of a dangerous transmissible disease which by the legislative definition includes hog cholera. Since hogs are susceptible to hog cholera and since it requires no stretch of the imagination to hold that inoculation of the anti-cholera serum is merely treating the animal by the use of preventive medicine, we are then logically led to the conclusion that the Florida Livestock Board may “through its representatives and agents” inoculate hogs with the anti-cholera serum regardless of the provisions of Chapter 474 regulating the practice of veterinary medicine.

We do not overlook the proposition that under this holding, the County Agent and his assistant are technically considered to be representatives of the State Livestock Board under authority of the letters described above and that the appellee is seeking to enjoin the expenditure of county funds. This is not a problem of any great concern. We have on several occasions held that a state agency may serve a local purpose as well as a state purpose and that under such circumstances to the extent that the county purpose is served, a county may expend county funds to supplement the expenditure of state funds in accomplishing the county purpose which in the particular case happens to be part and parcel of the state purpose. See Florida Power Corporation v. Pinellas Utility Board, Fla. 1949, 40 So.2d 350; and State ex rel. Simmons v. Lee, 119 Fla. 745, 160 So. 886.

Although admittedly the control and prevention of dangerous transmissible animal diseases is an appropriate function of the State Livestock Board, it is likewise of vital consequence to the hog owners of any particular county that the disease be prevented. To that end the county serves the hog owners within its jurisdiction by supplying funds to provide the inoculation service. We can see no valid objection to the expenditure of county funds to accomplish this desirable objective.

As stated above and in fairness to the Chancellor, it is apparent that the statutes on which this decision has been turned were evidently not brought to his attention by the parties below. Nonetheless, they are the law of this state and appear to control the matter before us. We have no alternative but to follow them.

For the reasons stated, the decree appealed from is reversed and the cause remanded for appropriate proceedings in accordance with this opinion.

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

On Petition for Rehearing

PER CURIAM.

Petition for rehearing represents that this cause involves a matter of public interest and that the brief of appellee was not filed and oral argument was not requested because of a misunderstanding between counsel.

The unusual circumstance prompted us to allow the filing of briefs by appéllee and the cause has now been fully argued before the court.

Appellee contends that under our opinion in Campoamor v. State Live Stock Sanitary Board, 136 Fla. 451, 182 So. 277, the Livestock Board can exercise the powers granted to it by Sections 585.15 and 585.16, Florida Statutes, F.S-.A., only in the event of an emergency of epidemic proportions. We find nothing either in the cited decision or the Statutes that so limits the Board’s . powers. Such a limitation might be read into the Act as a reasonable prerequisite to the enforced destruction of a farmer’s animals to prevent the spread of a disease but in the administering of hog cholera serum nothing is forced upon the farmer. As a matter of fact we are told by competent text writers that there is little known as a _successful cure for hog cholera once the hog is infected. Hence the consistent policy of the Florida Legislature in making substantial bi-annual appropriations to provide anti-hog cholera serum for the use of Florida farmers at no cost to the farmer. The passage of the hog cholera serum act every two years has become almost a legislative tradition.

Appellee argues that the County Agent and Assistant County Agent charge the farmers ten cents per hog to inoculate the animal and that this should be stopped. The answer denies this. We did not, and do not pass upon the point because the County Agent and his Assistant are not parties to the cause. We might observe, however, that the history of hog cholera legislation suggests that under existing laws it is apparently not contemplated that a public agency charge the farmer for the service.

It is argued finally that administering hog cholera serum through a state agency is a form of socialized veterinary medicine and as such is contrary to the fundamentals of our free enterprise system and should therefore be nullified by this court despite legislative sanction thereof. Regardless of our own philosophy on the subject, we are not so empowered. Relief from the practice, if it is to be obtained, must come from the Legislature and not from the courts. It is not within the province of the judiciary to question the ■wisdom of a valid enactment of the legislative branch of the government.

In the ultimate this case presents a problem for the Legislature to solve. As the law now stands the courts can do nothing about it so long as the Florida Livestock Board sees fit to authorize the practice.

We have carefully studied the helpful briefs but fail to find any reason to recede from our original opinion to which we now adhere on rehearing.

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


author: TERRELL, Justice. TERRELL, Justice.

text:
    Myron WIDETT, Appellant, v. Frances Joy WIDETT, Appellee.
    Supreme Court of Florida. Division A.
    June 6, 1956.
    Rehearing Denied July 20, 1956.

      George B. Everett, W. O. Mehrtens, Evans, Mershon, Sawyer, Johnston & Simmons, Miami, for appellant.
    Paty, Downey & Paty, West Palm Beach, for appellee.
   TERRELL, Justice.

Frances Joy Widett sued Myron Widett for divorce, alimony and custody of their minor child, a girl six years old. In his answer Myron Widett denied the material allegations of the complaint and counterclaimed for divorce on the ground of adultery, extreme cruelty and habitual indulgence in a violent and ungovernable temper. At the conclusion of the trial, the chancellor made the following findings:

“The proof is clear that she committed adultery not only with one man, but with several others at various times and places. Her conduct, without attempting to recite it here, evidences that she was wholly without any good faith in resuming the marital relations with her husband. She has intentionally failed to treat him with conjugal kindness, since they resumed marital relations.
“Upon the proof, she is guilty of adultery, which has not been condoned. She is also guilty of extreme cruelty. She is entitled to no alimony.
“No useful purpose would be served in reciting the evidence upon which the court bases the conclusion that she is quite unfit to have the custody of the child. This is disclosed by the record.
“The father is a fit person to have custody. But, regardless of that, the father has no home in which to raise this girl, except with hired help in complete charge during his many absences.
“One must hope that the mother will change her ways upon the entry of this decree and that she will provide the care, affection and wholesome atmosphere that this girl is entitled to in her childhood days. Reluctantly, the Court determines that the welfare of the child requires her present custody with her mother.”

On the basis of these findings the chancellor entered a final decree dated February 10, 1955, granting the husband’s prayer for divorce, awarding custody of the child to the wife and required the husband to pay the wife $200 per month for maintenance. The mother was also awarded possession of the home where the parties had lived.

Pending disposition of the appeal this court on February 3, 1956, relinquished jurisdiction temporarily to enable the Circuit Judge to hear and determine a petition to change custody of the minor child. February 21, 1956, this court, on motion of petitioner, vacated its order of February 3, and upon hearing argument for both sides ordered, “ex mero motu nunc pro tunc February 3, 1956,” that the Circuit Judge of Palm Beach County was authorized to hear petition re custody of the minor child. Prior to said order the chancellor entered his order on February 6, 1956, changing custody from the mother to the father. Appeal by certiorari was taken from the latter order. This appeal was on May 4, 1956, consolidated with the original appeal for the purpose of oral argument. On motion of petitioner, the appeal by certiorari was dismissed on the last named date so the original appeal is all that is before us at this time.

The only point involved in the appeal has to do with custody of the minor child.

Appellant contends that the chancellor abused his discretion in awarding custody of the child to the mother after finding that the father “is a fit person to have custody” and that much of the testimony of the mother was “wholly unworthy of belief,” was guilty of adultery with numerous men and was unfit to have custody of the child. Appellee points out on the other hand that the appendix to appellant’s brief contains no testimony or excerpts from testimony establishing the facts on which the chancellor predicated his decision and being so, it should not be disturbed.

It is true that the appendix to appellant’s brief contains nothing as to the character of appellee and her fitness or unfitness to be guardian of the minor child. The appendix does show that on March 11, 1955, appellant filed a petition for modification of the original decree as to custody of the child. It also contains a narrative of testimony to support the premise that appellant had changed his method of life since the final decree; that he had acquired a comfortable home in Miami Beach; that he had employed a governess to look after the child; that he employed help to look after the home and that he was then prepared to remain at home whereas before he had been away from home most of the time. The chancellor denied this petition by order of March 23, 1956, on ground that no sufficient showing had been made to warrant a change in the final decree. The appellant attempted to appeal from both the final decree and the order to denying modification, the latter not being properly be-for the court on appeal.

There is evidence in the record to support the chancellor’s finding but in the appendix to the brief there is no basis for reversal. We have concluded that under the circumstances recited, the decree appealed from should be and is hereby affirmed but on condition that such affirmance determines status up to final decree only. Affirmance is also without prejudice to petition the court below for change of custody of the minor child on the basis of changed circumstances alleged to have taken place after the final decree. Nothing said herein is to be construed to be res adjudicata as to any application for change of custody.

Affirmed.

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

On Petition for Rehearing

TERRELL, Justice.

A careful reading of the petition for rehearing convinces us that counsel or this court is completely “messed up” on the question of procedure. It is not essential to the disposition of the cause to decide at this time which is. When we granted the motion of petitioner June 6, 1956, to dismiss the petition for certiorari to review an order of the chancellor entered subsequent to the final decree, nothing remained for us to consider but the main appeal from the final decree, the only question in which had to do with the custody of the minor child. We affirmed the'chancellor as to that but on “condition that such affirmance determine status up to final decree only.” We further held that “nothing said herein is to be construed to be res adjudicata as to any application for change of custody.”

It was our view then, and is now, that when the mandate went down if the circumstances of appellant in his judgment had changed since the final decree so as to warrant him in doing so, he would be at liberty to apply for change in custody of the minor child. Whether or not the chancellor would grant such change in custody would depend on conditions shown to exist at that time. Nothing in this holding is contrary to Sections 59.45, 59.34, 59.35, Florida Statutes, F.S.A., or any statute or decision of this court. It becomes unnecessary to discuss the difficulties anent the petition for rehearing.

The petition for rehearing is therefore denied.

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


text:
    The STATE of Florida ex rel. The FLORIDA BAR, Complainant, v. Leroy BARKSTROM, Respondent.
    Supreme Court of Florida. En Banc.
    July 18, 1956.
    William C. Steel, Miami, for complainant.
    .No appearance for respondent.
   PER CURIAM.

The Florida Bar issued a complaint on October 8, 1954, charging Leroy Bark-strom with professional misconduct as an attorney, under amended Article XI, Integration Rule of The Florida Bar, 31 F.S.A. The complaint alleged the respondent fraudulently converted to his own use certain sums within his control by reason of his employment, which violated Canon 11, Rule B, Section (I) and Canons 27, 28 and 32 of Rule B, Section (II) of the code of ethics governing attorneys, 31 F.S.A.

A referee, appointed under the Integration Rule, made the following recommendation:

“The examination of the transcript and exhibits attached thereto had at the hearing before the Referee established prima facie case of misconduct which would be grounds for disbarment. It is, therefore, recommended that Leroy Barkstrom be permanently disbarred from the practice of law in the State of Florida and the said Leroy Barkstrom’s name be stricken from the roles of the Integrated Bar.”

The Board of Governors of The Florida Bar concurred in and approved the findings of the Referee, and recommended disbarment. A certified copy of the Board of Governors’ recommendation, together with the transcript of evidence and the other proceedings of the cause, were filed in this court on April 4, 1956; and the respondent has not filed a petition to review the matter before the Supreme Court within the sixty days allowed.

Having duly considered the record in the cause and the recommendation of the Board of Governors, this court adopts the Board’s recommendation, and orders the respondent, Leroy Barkstrom, permanently disbarred from the practice of law in the State of Florida.

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


text:
    Betty L. FRAZIER, Appellant, v. Jennie L. FRAZIER, Appellee.
    Supreme Court of Florida. Special Division A.
    June 27, 1956.
   PER CURIAM.

Affirmed.


text:
    WOFFORD SIGHTSEEING COMPANY, Inc., a Florida Corporation, et al., Appellants, v. Olive WOFFORD, Appellee.
    Supreme Court of Florida. Special Division A.
    July 6, 1956.
   PER CURIAM.

Affirmed.


author: VIOSCA, Justice ad hoc.

text:
    230 La. 406
    REDI-SPUDS, Inc. v. William W. DICKEY.
    No. 42502.
    Supreme Court of Louisiana.
    June 11, 1956.
    William J. Wegmann, Racivitch, Johnson, Wegmann & Mouledoux, New Orleans, for defendant-appellant.
    Howard W. Lenfant, Lenfant & Villere, New Orleans, for plaintiff-appellee.
   VIOSCA, Justice ad hoc.

This is a suit on a promissory note in the sum of $4,000, dated July 3, 1953, payable ninety days after date, with interest at five per cent per annum from maturity until paid and ten per cent attorney’s fees. The note contains the following provision:

“The vendors privilege on machinery per list attached sold to me by Redi-Spuds, Inc. on 6/25/53 is hereby recognized by me in favor of the vendor, and of any and all future holders of this note, and I bind and obligate myself not to sell, pledge or dispose of said machinery to the prejudice of this privilege.”

When the note was filed with the petition, the list of machinery was not attached.

Defendant filed an exception of no right or cause of action, which was referred to the merits. He then answered, admitting his signature to the note, but he plead want of consideration and, in the alternative, failure of consideration.

This appeal is from a judgment of the trial court in favor of plaintiff for the full amount claimed.

The -defendant, owner of Dickey’s Potato Chip Company, New Orleans, Louisiana, visited in California during the first half, of 1953. While there he had Paul Friorovich, who handled Dickey’s potato purchases in Watsonville, introduce him to C. M. Beard, President of Redi-Spuds, Inc., a corporation incorporated under the laws of California and engaged in the processing of potatoes.

Defendant purchased from plaintiff, through its President, C. M. Beard, a franchise, trade-name, regular trade-mark, and the equipment for semi-processing potatoes — the franchise being exclusive for the City of New Orleans and within a radius of fifty miles from the City of New Orleans. The consideration agreed upon was $10,000, of which $6,000 was paid in cash.

The equipment was shipped to the defendant in New Orleans, and Beard came to New Orleans during June, 1953, for the express purpose of assisting the defendant in setting the machinery in operation. After several conferences and viewings of the machinery, Beard returned to California. Defendant decided to purchase the machinery outright, and some two weeks later he had his auditor draw up the note herein involved, which he signed and mailed to Redi-Spuds, Inc. in preference to signing a royalty agreement.

After commencing actual operation of the equipment, defendant found that his output was only 25 to 30 one hundred pound sacks per day, which was not profitable to him. Beard testified that he had told defendant that the machinery would turn out around 160 sacks per day, if efficiently operated. However, there .was no written guarantee to this effect, and apparently this statement was based on his California operations.

Defendant made several complaints to plaintiff by telephone, and there is testimony that a written complaint was made. However, he made no demand for repair or adjustment of the price. Fie sold the equipment when he could not realize what he had anticipated, and this controversy followed.

Defendant’s exception of no cause or right of action is leveled at plaintiff’s right to sue in the courts of Louisiana without complying with LSA-R.S. 12:211.

The trial judge was correct in overruling the exception. We agree with him that the instant transaction was a single sale in interstate commerce, and that Redi-Spuds, Inc. was not doing business in Louisiana within the meaning of LSA-R.S. 12:211. Therefore, it was not necessary that it pay excises, taxes, and licenses to the State before it could present a judicial demand in the courts.

Defendant’s pleas of lack and failure of consideration are based upon the alleged misrepresentation of the product sold, failure of the equipment delivered to perform as represented by plaintiff, and failure of plaintiff to deliver certain items of equipment.

Counsel for the defendant relies upon the case of Moss v. Robinson, 216 La. 295, 43 So.2d 613, which holds that where a plaintiff introduces a note in evidence he is not required in the first instance to produce any further proof of consideration, even though the defendant has pleaded a want of consideration; but, if the defendant offers evidence which overcomes the prima facie case — -that is, casts doubt upon the reality of the consideration — the ultimate burden of proving consideration, by evidence that preponderates, is on the plaintiff. He also relies on the case of Bernard Brothers v. Dugas, 229 La. 181, 85 So.2d 257 (to the same effect as Moss v. Robinson, supra), and also on LSA-R.S. 7:28, which reads:

“Absence or failure of consideration is a matter of defence as against any person not a holder in due course; and partial failure of consideration is a defence pro tanto, whether the failure is an ascertained and liquidated amount or otherwise.”

We do not believe that the defendant has offered evidence that overcomes the prima facie case. There is no evidence that the machinery was being operated at a maximum efficiency, coupled with skilled and efficient labor. There is testimony that the machine was very dangerous to operate, but we have no evidence showing that this resulted in actual loss. We 'are presented with no accounting testimony to show a realistic loss, and there is no concrete written guarantee for our consideration — only oral testimony.

Defendant testified that he was to receive two peelers, two conveyors, scales and a handtruck. He contends that he was entitled to the additional peeler and conveyor, which he values at $1,500. Beard testified that it was not agreed that his company would include this additional equipment in the sale price of $10,000. There is direct conflict as to whether the extra peeler and conveyor were to be furnished, but the testimony of Beard, President of Redi-Spuds, Inc., leads us to believe that the scales and handtruck were to be furnished as a part of the agreement and that their value is $80. The defendant, therefore, is entitled to a credit of $80 for the scales and handtruck which were not delivered to him.

A correct list of the machinery agreed upon, which, according to the terms of the note, was said to be attached to the note, was not presented during the trial. However, question arose at the end of the trial concerning a slip of paper (found in the files of one of the counsel), which contained a list of the equipment allegedly purchased by defendant. No one could explain where the list came from, and it did not list the additional peeler and conveyor. It bore hole perforations similar to those in the note. Over the objection of counsel for the defendant, to the effect that the document had not been properly identified, the trial judge reopened the case to take testimony with respect to the list. Beard testified that he did not recall whether or not the list had been attached to the note. Defendant testified that the list could have been prepared in his office, but that it was incorrect in not listing the additional equipment. The trial judge concluded that the list contained a proper enumeration of the equipment and admitted it in evidence. He was of the opinion that the extra equipment was not a part of the agreement.

We believe that the trial judge’s conclusion was predicated in part upon the list, but, irrespective of the list, defendant has not borne his burden of showing that his purchase included the additional peeler and conveyor. Therefore, it is immaterial whether the trial judge admitted the document in evidence without proper identification.

While defendant averred that he suffered financial losses of $20,000, and testified to that effect, he did not testify whether he received a profit or suffered a loss on the sale of the equipment. His testimony was speculative, and we have no accounting records for our review. The instant case is not similar to that of J. E. Beaird Co., Inc., v. Burris Bros., Limited, 222 La. 579, 63 So.2d 4, where a reduction in the purchase price was allowed for a defective sweet potato machine.

For the reasons assigned, the judgment of the trial court is amended, so as to allow the defendant a credit of $80 for the scales and handtruck not delivered to him. In all other respects, the judgment is affirmed. The costs of appeal are to be borne by plaintiff-appellee, and the costs of the district court are to be borne by defendant-appellant.

HAMITER, J., absent.

      . “Q. Seales and handtruck were also missing? 'A. Xes, sir. The scales and handtruck were worth about $40.00 apiece. If you wanted me to buy in California and ship to New Orleans and pay the freight, it’s a little bit ridiculous; cheaper to buy in New Orleans.
      “Q. But Mr. Dickey did feel that was part of the oral agreement? Did you agree with him on that? A. That was that. What’s that?
      “Q. Did the scales and handtrueks form part of the agreement? A. Scales and handtrueks are in the agreement.
      “Q. And they were never delivered? A. No, not from California.” (Tr. p. 71)


author: McCALEB, Justice.

text:
    230 La. 414
    STATE of Louisiana v. Floveal LEONARD, Jr., alias Bubbie Hall.
    No. 42819.
    Supreme Court of Louisiana.
    June 11, 1956.
    Edwin C. Schilling, Jr., for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., Duncan S. Kemp, Dist. Atty., Amite, W. M. Dawkins, Asst. Dist. Atty., Denham Springs, Leonard E. Yokum, Asst. Dist. Atty., Hammond, for plaintiff-appellee.
   McCALEB, Justice.

Appellant, a Negro, was prosecuted for the murder of Claude Bean, another Negro, whom he shot and killed on March 13, 1954. After the killing-, appellant signed a statement in which he declared, among other things, that the deceased, who was a collector for a burial insurance company in which appellant’s wife had a policy, came to his home located two miles west of Greensburg, Louisiana; that, while there, he made physical advances on his wife, finally jamming her behind a heater in the front room; that, at this point, appellant emerged from a back room with a single-barrel 20-gauge shotgun and told Bean to clear out but the latter began tussling with appellant and that, during the affray, the gun went off, hitting Bean in the left shoulder.

The theory of the State, on the other hand, was that Bean was murdered and robbed by appellant; that, at the time of the shooting, Bean had in his possession a considerable sum of money he had collected in insurance premiums and that only 97‡ was found on his person after the shooting.

After a trial, appellant was found guilty as charged and sentenced to death. During the proceedings below, he reserved 29 bills of exceptions and, on this appeal, he is stressing all of the bills, contending that they exhibit prejudicial error entitling him to a new trial.

After scrutinizing the bills with care, we find that at least one of them presents a question which gives us serious concern. We therefore address our immediate attention to a consideration of this bill (Bill No. 22) which was reserved to the refusal of the trial judge to give to the jury the following special charge requested bv defense counsel (Special Charge No. 1) :

“The term ‘admission’ is applied to those matters of fact which do not involve criminal intent; the term ‘confession’ is applied only to an admission of guilt, not to an acknowledgment of facts merely tending to establish guilt”.

Upon the presentation of this. special charge in writing, the judge remarked to the jury:

“Charge No. 1, the Court is not going to give it as written in the request but it is going to charge you that the terms ^Admission’ and ‘Confession’ have been used interchangeably insofar as the admission of the facts are concerned, depending on the facts admitted, in other words, the admission or the confession whichever you call it, is to be governed by the facts set out in it as to whether or not it was an admission of a fact or the admission of the commission of a crime”.

We think the judge erred in refusing the requested charge. Article 390 of the Code of Criminal Procedure (R.S. IS :390) provides in part, that “the judge must give every such requested charge that is wholly correct and wholly pertinent, unless the matter contained in such charge have been already given, or unless such charge require qualification, limitation or explanation.”

It is clear that the charge requested by appellant was wholly correct, as it was couched in the language of Article 449 of the Code of Criminal Procedure (R.S. 15:449), which sets forth the definition of a confession and an admission. And it cannot be doubted that it was wholly pertinent to the issues.in the case.

The prosecution, after laying the proper foundation, had introduced in evidence the typewritten, signed statement given by appellant to the sheriff on March 17, 1954, to which we have adverted above,. and in which appellant set forth his version of the shooting. The district attorney, in his opening statement to the jury, had referred to appellant’s statement as a “confession” on four occasions and the sheriff, in his testimony, had also spoken of it as a “confession”. Hence, since appellant was contending that the statement was an exculpating admission and not an acknowledgment of guilt, it was vital to him that the jury not be misled to believe that it was a confession as it had been thus termed by the district attorney and the State witness. Under the circumstances, appellant was entitled to have the jury instructed as to the difference between an admission and a confession.

Accordingly, since the requested charge was wholly correct and wholly pertinent, the judge had no alternative but to deliver it unless it had already been given or unless it required qualification, limitation or explanation. An examination of the general charge given by the judge exhibits that he merely instructed the jury that confessions, admissions and statements should be considered by it in connection with all other facts of the case and be given the weight as in its judgment they deserve. He makes no mention of the legal meaning of a confession or of the difference between a confession and an admission.

And, although it appears from the remarks of the judge to the jury (above quoted) that he was of the opinion that the requested charge required qualification, limitation or explanation, we do not think that he was justified in thus appraising it for the charge, as heretofore stated, is in the language of the statute defining admissions and confessions. Indeed, it strikes us that the instructions given by the judge in substitution of the requested charge do not inform the jury of the difference between a confession and an admission, which is what appellant requested, but instead intimate that the two terms are synonymous.

In State v. Burris, 204 La. 608, 16 So.2d 124, 126, the accused reserved a bill of exceptions to that portion of the charge of the judge which stated the law governing admissions and confessions, contending that there was no evidence to show that he had made a confession. Upon finding that certain admissions and exculpatory statements had been offered in evidence, we upheld the ruling of the judge, stating:

“Whether or not a statement made by a defendant is a confession or admission or an exculpatory statement depends entirely on the nature of the statement. In order that the jury might clearly understand the nature of the statement made by the defendant, it is not only proper for the trial judge to instruct the jury on the law governing admissions, confessions and exculpatory statements, but it would appear to us that it would be the better practice to do so in order that the jury might ascertain its nature and the effect to be given it.”

So we say here that it was incumbent on the judge to give the requested charge and that his failure to do so constituted reversible error.

In view of our finding on Bill No. 22, it is unnecessary to consider the other bills of exceptions as the matters complained of in those bills are not likely to recur at another trial.

The conviction and sentence are reversed and appellant is granted a new trial.

      . When the sheriff stated that appellant had “confessed that he drug him from under the house”, defense counsel requested the trial judge to instruct the jury to disregard the remark. The judge refused to comply with this request and, instead, told the jury to take the sheriff’s statement “in the light of all the other testimony and weigh it accordingly, whether it is an admission or a confession”. This alleged error is made the subject of Bill of Exceptions No. 16.


author: SIMON, Justice.

text:
    230 La. 422

    Christelle FERGUSON v. BELCHER AND SON.
    No. 42589.
    Supreme Court of Louisiana.
    June 11, 1956.

      Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for defendant-appellant.
    Meadors, Shaw & Meadors, Homer, for plaintiff-appellee.
    Cook, Clark, Egan, Yancey & King, Shreveport, for defendant-appellee in call in warranty.
   SIMON, Justice.

Plaintiff, as owner of a building located in the commercial section of Homer, Louisiana, seeks to recover damages allegedly caused to said building by defendant, Bel-cher and Son, when it was engaged in demolishing a building adjacent to that of plaintiff’s.

In answer, the defendant denied liability and called the Maryland Casualty Company in warranty, alleging that said insurer had issued a comprehensive insurance policy, insuring defendant against liability in connection with its business operations; that under the terms of said policy the insurer agreed to defend all suits for damages brought against defendant growing out of its business operations; but that in spite' of amicable demand, the áaid insurer has failed to join in this litigation, as a result of which defendant, being forced to retain counsel, seeks to recover attorney fees in the sum of $750 against the said insurer.

By supplemental and amended answer and call in warranty, defendant pleads in the alternative that in the event the court should find by virtue of the endorsement that the policy excludes any property damage liability arising from the demolition work done by defendant, then in that event the said endorsement does not express the true intent of the agreement of the parties to the insurance policy and that said policy should be reformed to express the true intent of the parties by deleting the exclusion clause and reforming the contract so as to cover the claim asserted by plaintiff herein.

Exceptions of no cause and no right of action to the call in warranty filed by the insurer were referred to the merits. Whereupon the insurer filed an answer and categorically denied the allegations of plaintiff’s petition; and in answer to the defendant’s call in warranty also categorically denied liability and alleged that the policy issued to the defendant contained an endorsement specifically providing that the coverage afforded therein with respect to the operations of the insured does not apply to damages as the result of excavating, moving, shoring, underpinning, razing, or demolition of any building or structure or removal or rebuilding of any structural support thereof while such operations were being performed by the named insured.

Upon trial on the merits the trial court rendered judgment in the sum of $2,163 in favor of plaintiff and against the defendant, Belcher and Son. The trial court also entered judgment dismissing the call in warranty, holding that the damage herein was not covered by the policy. Defendant has appealed.

The defendant is a partnership engaged in the general contracting business, including the demolition and erection of buildings. Defendant was employed by the Homer National Bank to remodel its present building, to demolish the one-story masonry structure adjoining same, and to reconstruct a new building thereon. The bank building, the masonry structure to be demolished, and plaintiff’s building had a common easterly front with common party walls.

The front or east wall of plaintiff’s building consisted primarily of a door and of plate glass for the display of merchandise. Three pieces of flat metal, referred to as “I” beams, hooked or welded together, extended horizontally across the width of the building immediately above the display window at an approximate height of a one-story building. Above and resting upon the horizontal “I” beams was a brick wall serving as an ornamental parapet.

Just below this parapet and above the plate glass window, a wooden canopy extended at right angles from the building over the sidewalk and which is shown to have been in place for many years. This canopy weighed about 2000 pounds and was suspended by tension rods running from its outer edge to the parapet. Two metal advertising signs, having a combined weight of approximately 300 pounds, were likewise attached to the parapet. It is further shown that the parapet butted against the front wall of the masonry structure and was connected therewith by means of a small thin piece of metal.

Upon the masonry structure being demolished, the condition of the brick parapet became exposed, showing not only that the parapet had “bowed out” and had separated from the building proper, but also that it was insecurely balanced upon the three “I” beams.

Plaintiff alleges that the demolition of the old masonry structure caused the parapet on her building to crack and to become separated from the building proper, requiring its demolition and the rebuilding of its entire front. It is noted, and the fact is undisputed, that the parapet did not fall or crumble at any time during the course of or after the demolition work.

Our appreciation of the entire record, including the physical characteristics of the buildings clearly shown by the photographic evidence, constrains us to conclude that the contention of the defendant was fully supported by a preponderance of the evidence and that plaintiff has not carried the burden of proving her claim to the certainty required by law.

It is conclusively shown that many years prior to this demolition work, a fire occurred in plaintiff’s building. The smoke and soot had penetrated between the bricks forming the thickness of the parapet and covered the entire crevices therein. It is manifest that had the parapet bowed out and the brick separated from plaintiff’s building at any time after the fire, the crevices would not have been blanketed with smoke and soot. We must necessarily conclude that this bowing out and the crevices existed prior to the fire and were not the result of the demolition work done many years thereafter.

There is evidence that considerable repairs for cracks and leaks had been made on plaintiff’s roof and parapet several years prior to the entrance of defendant on the adjoining building. The top of this parapet was covered with a thin layer of mortar, which served to conceal the burned' condition and discoloration thereof caused by the fire. It is significant that this thin veneer of mortar was not cracked after defendant had finished the demolition of the adjoining building, thus conclusively demonstrating to us that had the demolition work caused the damage complained of, this thin layer of mortar would have been shaken loose or cracked.

The civil engineer employed by defendant to inspect the premises, including adjoining buildings, prior to the demolition work, testified that at that time he observed with the naked eye the then-existing bow at the top of and in the center of the parapet. At the time of this inspection he also observed the unequal lengths of the chains supporting the two advertising signs attached to the parapet, from which he concluded that the “bowed out” condition of the parapet had existed at the time the signs were attached thereto.

The demolition work exposed the fact that the actual party wall between the two structures, which was originally 13 inches in thickness, had, on plaintiff’s side of the wall, been cut or hollowed out to a depth of slightly more than half of that thickness for a height of approximately 8 feet. We find it conceivable that the “I” beam on which the parapet rested was thus deprived of slightly more than half of its support by the lessening of the thickness of the party wall, and that same was a contributing factor to the bowing out of the parapet long prior to the commencement of work by defendant.

The evidence discloses that when the south end of the parapet wall was exposed it was shown that it was not attached to the wall of plaintiff’s building either on its north end or on its south end, but was simply precariously balanced and, as stated, plaintiff's parapet was held onto the masonry structure on its south end by a small piece of metal.

We are cognizant of the general law that in matters involving purely issues of fact the judgment of the lower court should be affirmed unless there be manifest error; however, upon an examination of the record we are convinced and constrained to hold that plaintiff’s old brick parapet was not damaged by any activity of defendant and its workmen on the adjoining masonry structure, but that the damaged and dangerous condition of said parapet existed prior thereto and was simply exposed thereby.

The remaining questions are: (1) whether defendant is entitled to receive $750 attorney fees as claimed; and (2) whether the insurance policy should be reformed.

Defendant contends that this attorney fee is due because Maryland Casualty Company breached its contract and refused to defend this suit as its contract required it to do, and that said refusal compelled defendant to retain its own counsel.

The insurer contends that the coverage claimed by the defendant is specifically excluded in its policy, and therefore no liability whatsoever attaches thereunder.

Needless to say, attorney fees as damages are ordinarily not allowable, and we do not think that this is a case calling for the imposition of the penalty of attorney fees imposed on the insurance company under the provisions of Act 310 of 1910, LSA-R.S. 22:213, 22:657. The contention of the insurer in the case at bar is not unfounded or unreasonable. An examination of the policy and the endorsement thereon clearly shows that said policy coverage imposes an obligation upon the insurer to defend suits initiated against the insured under its applicable terms and conditions. But this obligation is non-existent when suit is brought against the insured under the specific acts enumerated and made exclusive in the endorsement, which is the case at bar.

Not having borne the burden of proof of his alternative demand in that the policy does not reflect a true intention of the parties thereto, the alternative demand of defendant for a reformation thereof must be held without merit.

It is an established rule of law that in a suit between the parties to a contract, either party is always permitted to correct any error in the instrument purporting to evidence the contract so as to make it express truly and correctly the intention of the parties. However, the error or the mistake must be mutual. The burden is on the one seeking the reformation to prove the error, and he must carry said burden by clear, and the strongest possible proof. See Reynaud v. Bullock, 195 La. 86, 196 So. 29.

Accordingly, for the reasons assigned, the judgment of the district court is reversed, annulled and set aside; and it is now ordered, adjudged and decreed that there be judgment herein in favor of defendant Belcher and Son and against plaintiff, Christelle Ferguson, dismissing plaintiff’s suit.

It is further ordered, adjudged and decreed that there be further judgment herein in favor of defendant Maryland Casualty Company and against the defendant Belcher and Son, dismissing the call in warranty filed herein. All costs to be borne by plaintiff.