text:
    Rosalie QUICK, formerly Rosalie Schrammel, Appellant, v. E. B. LEATHERMAN, as Clerk of the Circuit Court of Dade County, Florida, Appellee.
    Supreme Court of Florida, Division A.
    June 26, 1957.

      Samuel J. Rand and Leland B. Feather-stone, Miami, for appellant.
    Ward & Ward, Miami, for appellee.
   THORNAL, Justice.

Appellant Quick, who was plaintiff below, seeks reversal of a decree of the Chancellor dismissing her complaint in a proceeding for an accounting and payment of the surplus proceeds of a county tax sale.

The determining point is whether the appellee as Clerk of the Circuit Court properly disbursed a surplus remaining after the sale of a parcel of land for delinquent taxes.

The cause was heard on the complaint, the answer and a stipulation of facts. By the stipulation we are advised that appellant Quick was formerly married to one Frank Schrammel. During coverture they acquired title to the land in question as an estate by the entirety. They were divorced in 1949. The divorce decree incorporated the provisions of a stipulation by which the parties provided for the disposition of other properties held by them, but no specific mention was made of the lot referred to in this proceeding. The divorce decree also Contained the following provision:

“The said Rosalie Schrammel hereby releases, relinquishes and waives any. and all other claims, dower rights or other rights s'he might have against the plaintiff, Frank Schrammel.”

It was further stipulated that on September 20, 1955 the appellee Clerk sold the lot in question for delinquent taxes. Upon disbursing the proceeds of the tax sale by payment of taxes, costs and expenses, there remained a surplus of $2,250.98. On October 12, 1955 the appellee Clerk thereupon disbursed this surplus to Frank Schrammel, the former husband of appellant. The instant case was heard by the Chancellor on the basis of a stipulation between the parties whereby it was agreed that there was no dispute as to the facts and no genuine issue on any material fact. The stipulation then pin-pointed the issue presented to the Chancellor in the following language:

“10. That the sole issue in this cause is a question of law as to the legal effect of that certain paragraph, to-wit:
“ ‘The said Rosalie Schrammel hereby releases, relinquishes and waives any and all other claims, dower rights or other rights she might have against the plaintiff, Frank Schrammel.’
as contained in the Stipulation filed in this Court on April 7, 1949 in Chancery Cause No. 123268.
“11. That upon final hearing of this cause, if the Court finds that the portion of the said Stipulation quoted above, did not transfer, convey, or assign the interest of Rosalie Schram-mel in said vacant lot (Lot 22, Block 49, etc.) to Frank Schrammel, then a Final Decree may be entered herein in favor of the Plaintiff.
“12. That if this Court finds that said Stipulation transferred all the property rights and interest of Rosalie Schrammel in said vacant lot to Frank Schrammel, then a Final Decree may be entered herein in favor of the Defendant.”

The language quoted in paragraph 10 of the stipulation was the provision which had been incorporated in the divorce decree entered in the divorce proceeding between appellant and her former husband. The Chancellor apparently concluded that the quoted provision of the divorce decree justified the payment to the former husband of the appellant the entire surplus proceeds of the tax sale. He entered a decree on final hearing dismissing the complaint. Reversal of this decree is now sought.

The appellant contends that the provision in the divorce decree merely relinquished claims which she had against her former husband and did not transfer to him any rights which she enjoyed in her own property.

The appellee on the other hand contends that the provision of the decree substantially eliminated any interest which appellant might have had in the parcel of land owned by the entireties.

At the outset we emphasize that our consideration of this matter is limited to the sole issue presented to the trial judge by the stipulation filed in the cause. Although by her brief appellant seeks to present questions as to the good faith of the appellee in disbursing the money as well as his liability as a public official under the ■circumstances, we are compelled to point out that the stipulation on which the cause was tried restricted the issue to the sole point presented to the Chancellor. An appellate court will customarily review only those issues presented for consideration by the trial judge. We think this proposition especially applicable to a case where the parties themselves have restricted the issues by stipulation as was done here. See Mariani v. Schleman, Fla.1957, 94 So.2d 829. We therefore pretermit any discussion of any other propositions of law that otherwise might be raised.

Our consideration of this issue leads us to the conclusion that error was committed in the entry of the decree dismissing appellant’s complaint. We find nothing in the provisions of the divorce decree which could lead us to the conclusion that the appellant had transferred to her former husband any independent property right which she held in her own name. It is true that upon the entry of the divorce decree any title then held as an estate by the entirety would become a tenancy in common in the absence of a specific provision in the decree to the contrary. An examination of the provisions of the decree reveal that appellant released her former husband from all claims, dower rights or “other rights she might have against” him. The interest of a wife in an estate by the entirety is not a “claim” or “right” against her husband. Obviously it is not a “dower right.” An estate by the entirety is a peculiar type of tenancy enjoyable only by a husband and wife. Each owns and controls the whole. When the marital relationship is dissolved the union of control is dissolved and the former spouses thereupon become tenants in common.

We think our opinion in Powell v. Metz, Fla.1952, 55 So.2d 915, is controlling of the situation before us. It was there held that when a mortgage was taken by a husband and wife as an estate by the en-tireties and the mortgagees were subsequently divorced without specific mention of the mortgage in the divorce decree, then the divorced spouses became tenants in common with each entitled to one-half of the proceeds of the mortgage when paid. In the last cited case certain provisions were made for the wife in the final decree and it was expressly stated that such provisions were “in lieu of all further payments” by the husband to the wife. This Court held that this language in the decree could not be interpreted as being a waiver, discharge or disclaimer of the wife’s interest in the mortgage as a tenant in common.

Inasmuch as the parties have stipulated that the sole issue is the one which we have herewith disposed of and further inasmuch as they stipulated that a determination of this issue would be determinative of the cause between them, we are bound to conclude that the decree dismissing the complaint was erroneous and that the relief sought by the complaint should have been granted.

The decree is reversed and the cause remanded for further proceedings consistent herewith.

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


source: Caselaw Access Project

author: ROBERTS, Justice.

license: Public Domain

text:
    Robert M. MORGAN et al., as and constituting the State Board of Accountancy, Appellants, v. O. J. OOSTERHOUDT, Appellee.
    Supreme Court of Florida, En Banc.
    May 31, 1957.
    Rehearing Denied July 17, 1957.

      Lazonby, Dell, Graham & Mills, Gaines-ville, and J. Lewis Hall, Tallahassee, for appellants.
    McCarthy, Lane & Adams, Jacksonville, for appellee.
   ROBERTS, Justice.

The issue here is whether a Florida certified public accountant is authorized under the provisions of the Florida Public Accounting Act, Ch. 473, Fla.Stat.1955, F.S.A., to act as the resident partner of a New York accounting firm, none of whose members is licensed to practice public accounting in Florida, and to hold out to the public that such firm is qualified to practice public accounting under the laws of the State of New York. The question arose in a suit for a declaratory decree filed by the plaintiff-appellee against the defendant-appellants, as members of the Florida State Board of Accountancy, and was answered by the Chancellor in the affirmative. The defendants have appealed.

The decision of the lower court was based on the proviso contained in Subsection (3) of Section 473.23 of the Florida Public Accounting Act. Section 473.23 lists fifteen specific actions that constitute a violation of the Act, including in subsection (3) thereof:

“Any person: * * * (3) Who shall, when practicing as a member of a firm, announce either in writing or by printing, or represent verbally, that the firm is practicing as ‘Certified Public Accountants’, unless all members of the firm are holders of valid and unrevoked certificates as certified public accountants issued by the state board of accountancy of this state; provided, that any person holding a certificate in good standing as a certified public accountant or as a public accountant granted by the state board of accountancy of this state, when acting as a representative, partner or manager of an individual or firm, properly qualified to practice public accounting under the laws of a state, or states, other than Florida, may hold out to the public that such individual is or that such individuals are, so qualified; * * * ”.

It is contended on behalf of the defendant State Board of Accounting that the proviso in the above-quoted provision must be read and construed in the light of other provisions of the Act in pari materia therewith; and that, when so read, the proviso relied upon by the plaintiff can only refer to out-of-state firms that come under the “grandfather clause” of Section 473.16, Fla.Stat.1955, F.S.A. This section, as well as Section 473.23, was enacted as a part of Ch. 15637, Acts of 1931, and reads as follows:

“It is unlawful for any person holding a certificate as a certified public accountant * * * to act as the representative, agent or manager, in the State of Florida, in connection with the practice of public accounting, of any person not authorized under the provisions of this chapter to practice public accounting in this state, or of any firm or association of persons, unless each member of such firm or association of persons shall be authorized to practice public accounting in this state under the provisions of -this chapter; provided, that any certified public accountant or firm of certified public accountants residing beyond the limits of the State of Florida, who was or were represented on June 25, 1931, in the State of Florida, by a representative, agent or -manager, shall be permitted to continue to be represented in this state by such representative, agent or manager, but no new or sue-cessor representative, agent or manager in the State of Florida shall he appointed, employed or selected for such certified public accountant or firm of certified public accountants without the approval in writing of the board first being had and obtained.”

Also pertinent here are the provisions of Section 473.17, authorizing the registration of a firm name and the use of the designation “Certified Public Accountants” in connection therewith if every member is a certified public accountant; and Section 473.26, prohibiting a person from practicing accountancy as a member of a firm unless he is a licensed Florida accountant.

By Section 473.16, supra, the Legislature has in clear and unambiguous words made it unlawful for a licensed Florida accountant to act as the “representative, agent or manager” in this state of a non-resident accounting firm unless each member of the firm is licensed under Florida law to practice public accounting. The proviso, or “grandfather clause” of this section was added by the Legislature for the usual purpose, that is, to preserve an existing right or status and not to create a new right or status — in this case, to preserve for non-resident accounting firms having a “representative, agent or manager” in this state at the time of the enactment the right to continue to have such representation, but prohibiting a “new or successor” appointment of a representative by the firm without the written approval of the State Board of Accountancy. See State Board of Accountancy v. Webb, Fla.1951, 51 So.2d 296, 300.

The purpose of Section 473.23(3), supra, is to declare specifically that which is merely implied by other provisions of the Act, that is that it is unlawful for a member of an accounting firm to represent that his firm is a firm of “Certified Public Accountants” unless all members are licensed Florida certified public accountants. And, in our opinion, the only logical and reasonable construction of the proviso of this section is that it is also of the “saving clause” type, enacted for the purpose of protecting the representative in this state— whether a partner, agent or manager — of a non-resident accounting firm in the exercise of the rights preserved for him and for the firm by the “grandfather clause” of Section 473.16, supra.

This must be so because the proviso of Section 473.23(3) applies to a licensed Florida accountant “when acting as a representative, partner or manager■” of a nonresident firm (emphasis added) and authorizes such person to hold out to the public that such non-resident firm is qualified to practice public accounting under the laws of another state; but, as has been noted, under Section 473.16 a non-resident firm whose members are not licensed Florida accountants is prohibited from having a “representative, agent or manager” in this state unless the firm was so represented on June 25, 1931. It is therefore obvious that insofar as a resident “representative” or “manager” of a non-resident firm is concerned, the proviso of Section 473.23(3) could be applicable only to non-resident firms that were entitled to have such representation in this state under the “grandfather clause” of Section 473.16. And it is neither logical nor reasonable to infer that by the proviso in question the Legislature intended to save the rights of non-resident firms and their representatives who come under the “grandfather clause” of Sec. 473.16, and, at the same time and almost in the same breath, to authorize non-resident firms to be represented in this state by a resident partner without regard to whether they were so represented at the time of the enactment. Such a dichotomy, if intended, should be clearly and expressly stated and not left to inference.

The use of the word “partner” in the proviso of Section 473.23(3) instead of the word “agent” used in Section 473.16 does not require a different conclusion, as here contended by the plaintiff-appellee. In Section 473.16 the statute was dealing with the “representatives, agents or managers” of accountants and accounting firms; in Section 473.23(3) the statute was dealing with the members of accounting firms. The difference in the wording of the provisos of these two sections was necessitated by the difference in their context and, in our opinion, does not have the further import here contended for by plaintiff-appellee.

It was, then, error to hold that the plaintiff-appellee was authorized by Sec. 473.23(3) to act as the resident partner of a New York accounting firm whose members are not licensed Florida accountants, and to hold out to the public that such firm is qualified to practice public accounting under the laws of the State of New York.

The plaintiff-appellee raises the point that to construe the statute as we have would be an unreasonable restraint on freedom of contract and unconstitutional, contending that “it is palpably unreasonable to say that appellee, a Florida CPA in good standing, may practice alone, or that he may practice as a member of a firm only if all firm members hold Florida certificates, but that he is barred from practice in Florida if he has a partner residing and practicing outside the State who does not hold a Florida certificate.”

We do not think the statute prohibits a licensed Florida accountant from practicing public accounting in this state in his own name, even though he may have an interest in a non-resident firm of accountants; he is simply prohibited from practicing in this state as a member of such firm and from representing that such firm is practicing as “Certified Public Accountants” unless the members thereof are Florida CPA’s. This does not appear to be unreasonable in view of the fact that the qualifications prescribed for certified public accountants and the administration of such Acts must necessarily vary from state to state. Accordingly, this contention cannot be sustained.

For the reasons stated, the decree appealed from is reversed and the cause remanded for the entry of a decree not inconsistent with the opinions herein expressed.

TERRELL, C. J., and TFIOMAS, THORNAL and O’CONNELL, JJ., concur.

HOBSON and DREW, JJ., not participating.


author: PER CURIAM.

text:
    CITY OF MIAMI BEACH, a Florida municipal corporation, et al., Appellants, v. Grace E. WEICHELT, Appellee.
    Supreme Court of Florida, Division A.
    June 5, 1957.
    Rehearing Denied July 8, 1957.
    Ben Shepard, Miami, and Joseph A. Wanick, Miami Beach, for appellants.
    Klein, Moore & Kline, Miami Beach, for appellee.
   PER CURIAM.

The decree of the Chancellor is affirmed, except insofar as it authorizes recovery of attorney’s fees by the appellee, who was plaintiff below. The provision authorizing attorney’s fees is reversed.

Affirmed in part and reversed in part.

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


text:
    Jerry VAUGHN, Appellant, v. Thomas M. SMITH, and B. A. Barth and R. A. Barth, d/b/a Barth Construction Company, Appellees.
    Supreme Court of Florida, Special Division A.
    April 10, 1957.
    Rehearing Denied July 17, 1957.
    Robbins, Cannova’ & Franza, Hollywood, for appellant.
    Blackwell, Walker & Gray, Miami, for appellees.
   PER CURIAM.

Appellant filed his amended complaint against Nathan R. Cannon, Thomas M. Smith and B. A. Barth and R. A. Barth, d/b/a Barth Construction Company, to recover damages for personal injuries resulting from his being run over by a truck driven by Cannon in the course of construction work being performed for the Gulfstream Park Race Course, appellant’s employer. There is no dispute that Barth Construction Company was the general contractor. The amended complaint alleged that Cannon was an employee of both Thomas M. Smith and Barth.

The trial judge entered a final summary-judgment for defendant Thomas M. Smith on October S, 1955. An appeal from that judgment was subsequently dismissed by this, court on June 19, 1956, because of failure to file notice of appeal within 60 days as required by Rule 12, 31 F.S.A.

On January 6, 1956, following a pre-trial conference, the trial judge entered an order in the cause reading in part as follows:

“Nathan R. Cannon was an independent trucker hauling rock for the use of Barth Construction Company in the construction of said paving. The court has determined in this cause that Nathan R. Cannon was an independent contractor and that Barth Construction Company is only liable for its own negligence or breach of duty to the plaintiff and is not liable for the negligence, if any, of Nathan R. Cannon. The court will so instruct the jury upon request at the time of trial.”

The case then proceeded to jury trial on two issues as pronounced by the pre-trial order. First, whether the negligence of Nathan R. Cannon, an independent contractor, was the proximate cause of appellant’s injury. Second, whether Barth Construction Company assumed such control over Cannon, an independent contractor, when delivering rock to the job site so as to make it [Barth Construction] liable for its own negligence to Cannon.

The trial judge, in keeping with his order at pre-trial conference, instructed the jury that Cannon was an independent contractor, that Barth Construction Company was liable only for the negligence of Cannon while operating the truck under the direction and control of Barth Construction Company or its employee, and that both Cannon and Barth Construction Company would be jointly liable if the injury resulted from both the negligence of Barth Construction Company in directing the truck, and from the negligent operation by Cannon while under such direction.

The jury returned a verdict in favor of appellee Barth Construction Company and against Nathan R. Cannon in the sum of $45,000. Appellant’s motion for a new trial as to appellee Barth Construction Company was denied. Final judgments for appellee Barth and against Cannon were duly entered. Cannon did not appeal. Vaughn appealed from the judgment for Barth Construction Company entered February 11, 1956, and from the final summary judgment for Smith entered October 5, 1955, the latter appeal being dismissed as heretofore stated.

The first point for consideration is whether or not appellant preserved his right to attack the ruling of the trial judge that Nathan R. Cannon was an independent contractor as a matter of law. Appellee contends"' that appellant not only acquiesced in such ruling but made no contention that it was error in his motion for new trial. Appellant concedes that the question of whether Cannon was an independent contractor was not an issue at trial, but contends that error as to the determination of this by pre-trial order was preserved by assignments of error Nos. 1 and 2.

Assignment No. 1 charged error in the entry of summary final decree in favor of Smith. The appeal as to this judgment was seasonably dismissed and cannot be considered.

Assignment No. 2 is:

“The Court erred in deciding as a matter of law that the Defendants, B. A. Barth and R. A. Barth, d/b/a Barth Construction Company were independent contractors.”

No mention of the trial judge’s ruling concerning Nathan R. Cannon is present in the above assignment. This Court cannot speculate as to what appellant intended to assign as error. We must take the record as we find it.

A trial judge can be reversed only for errors presented by the assignments. Red Top Cab & Baggage Co. v. Dorner, 159 Fla. 538, 32 So.2d 321. The very nature of the pleading in court of review requires a proper assignment of error. St. Andrews Bay Lumber Co. v. Bernard, 106 Fla. 235, 143 So. 160. The function of an assignment of error is to point out the specific error claimed to have been committed by the court below in order that the reviewing court and opposing counsel may see on what point the appellant seeks reversal, and to limit argument and review to such point. A point made that is not based on or shown by the brief to be within the scope of some quoted assignment is futile and will be considered as moot. See Redditt v. State, Fla.1955, 84 So.2d 317.

Under the most liberal construction of the assignments of error, we are not able to see where error was assigned as to the court’s ruling that Cannon was an independent contractor.

The trial judge, acting under Rules of Civil Procedure 1.16, 30 F.S.A., entered pre-trial order holding that Cannon was an independent contractor and that the jury would be so instructed at the trial. This rule serves to expedite litigation by simplifying the issues to be tried. The rule specifically provides that a pre-trial order shall control the subsequent course of the action unless modified at the trial to prevent manifest injustice.

Nowhere in the record do we find any motion on the part of appellant to modify the pre-trial order which was entered over three weeks before the trial.

The other questions presented have been considered and are found to be without merit.

Therefore the judgment must be, and is, hereby affirmed.

Affirmed.

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


text:
    Kathleen C. MILLER, as Guardian of the Estate of Charles David Miller, a minor, Appellant, v. INTERSTATE LIFE AND ACCIDENT INSURANCE COMPANY, a corporation, and Harold A. Miller, Jr., Appellees.
    Supreme Court of Florida, Division B.
    June 12, 1957.
    Rehearing Denied July 17, 1957.
    McCarthy, Lane & Adams, Jacksonville, for appellant.
    Knight, Kincaid, Young & Harris, Jacksonville, for Interstate Life and Accident Ins. Co.
    Robert E. Hucker, Jacksonville, for Harold E. Miller, Jr., appellees.
   PER CURIAM.

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

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

Affirmed.

THOMAS, Acting Chief Justice, and HOBSON, DREW and O’CONNELL, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    ARMENIAN HOTEL OWNERS, Inc., and Diran Papazian, Appellants, v. John KULHANJIAN, individually and as a stockholder of Armenian Hotel Owners, Inc., suing on behalf of said corporation, Appellee.
    Supreme Court of Florida. En Banc.
    Nov. 28, 1956.
    On Rehearing May 22, 1957.
    Rehearing Denied July 8, 1957.
    Anderson & Nadeau, Miami, for appellants.
    Daniel L. Ginsberg, Miami, for appellees.
   PER CURIAM.

We have carefully considered the record and briefs filed in this cause and have heard the oral argument of counsel for the parties at the bar of this court. We find no reversible error in the decree appealed from.

It is contended, however, that the decree is ambiguous. We find no ambiguity here. When read as a whole, it is clear that the decree awarded to the corporation the total sum of $37,176 as its damages, the first $26,000 of which was the joint and several liability of the three individual defendants, Moonjian, Terzian and Papazian, and the remaining $11,176 of which was the joint and several liability of the defendants Moonjian and Terzian, only.

Accordingly, the decree appealed from should be and it is hereby

Affirmed.

DREW, C. J., HOBSON, ROBERTS, THORNAL and O’CONNELL, JJ., and MORROW, Associate Justice, concur.

THOMAS, J., dissents.

On Rehearing Granted.

PER CURIAM.

This was a suit in equity filed by a minority stockholder individually and on behalf of the corporation against the directors of the corporation and one Papazian for an accounting and for damages arising out of the allegedly fraudulent assignment by the directors to Papazian of the corporation’s principal asset, a leasehold interest in hotel property. The lower court found that the three defendants had unlawfully conspired to deprive the plaintiff and the corporation of its principal asset and entered a money decree in favor of the corporation and against the three defendants jointly in the amount of $26,000. Papazian appealed from this portion of the decree, and we affirmed it in our former opinion. An appeal taken by the defendant directors was not perfected and was dismissed.

On rehearing granted we have reconsidered the argument of the defendant-appellant Papazian directed to the sufficiency of the complaint and its prayer for relief against Papazian, as well as the sufficiency of the evidence to establish any liability on the part of Papazian. We have again concluded that the evidence showed a guilty participation by Papazian in the assignment to him of the leasehold interest sufficient to hold him accountable, as a constructive trustee, for the corporate losses resulting therefrom. See Restatement, Agency, Sec. 314. The decree of the Chancellor holding Papazian liable to the corporation was well within the framework of the pleadings. Cf. Chasin v. Richey, Fla.1957, 91 So.2d 811. Accordingly, we adhere to our former decision in this respect.

We have also reconsidered the question of the propriety of that portion of the decree awarding the corporation $26,000 and holding Papazian jointly liable with the other defendants for this amount, which was apparently based on the actual value of the leasehold interest at the time of its assignment to Papazian. We have concluded there was no basis in the pleadings and evidence for such an award against Papazian — although, as noted, Pa-pazian may be held fully accountable, as constructive trustee, for his trusteeship of the corporate asset in accordance with the principles of law applicable to such a trust relationship. Insofar as the decree assesses “damages” against Papazian in the amount of $26,000, we recede from our former decision and hold that this portion of the decree should be reversed.

Affirmed in part and reversed in part and the cause remanded with directions to. require Papazian to account for his trusteeship of the corporate assets and thereafter to enter such decree as in justice and' equity may be required.

It is so ordered.

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

THORNAL, J. not participating.


text:
    CITY OF MIAMI BEACH, a Florida municipal corporation, et al., Appellants, v. Lillian GAPINSKI, Appellee.
    Supreme Court of Florida, Division A.
    June 5, 1957.
    Rehearing Denied July 8, 1957.
    Ben Shepard, Miami, and Joseph A. Wanick, Miami Beach, for appellants.
    Gramling & Gramling, Miami, for ap-pellee.
   PER CURIAM.

The decree of the Chancellor is affirmed, except insofar as it authorizes recovery of attorney’s fees by the appellee, who was plaintiff below. The provision authorizing attorney’s fees is reversed.

Affirmed in part and reversed in part.

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


author: HOBSON, Justice. THOMAS, Justice

text:
    Joe A. YATES, Jr., as Chairman of the Civil Service Board of the City of Miami, a municipality of and in Dade County, Florida, Woody Kepner, as Director of the Department of Publicity of the said municipality, and E. A. Evans, as City Manager of the said municipality, Appellants, v. Michael PALMINTIERO, Appellee.
    Supreme Court of Florida, Special Division A.
    June 19, 1957.
    Olavi M. Hendrickson, John H. Smith and Robert M. Haverfield, Miami, for appellants.
    Britton, Hodges & Hyman, Miami, for appellee.
   HOBSON, Justice.

Appellee, at the time he was laid off from his job by appellants, had five years of service with the city of Miami and had attained permanent civil service status. Section 295.07, Florida Statutes 1947, F.S.A., provides that “preference shall be given to” certain veterans in retention in position by all municipalities in Florida; Appellee is a veteran within the purview of said statute, and contends that he was not given the preference mandatorily required thereby. Appellants, on the other hand, assert that appellee was given a preference.

Although F.S. § 295.07, F.S.A., was in full force and effect when appellee was laid off, ten other employees in his department were retained, although seven of them were non-veterans. The preference allegedly given appellee in determining who was to be laid off appears to have been based solely on the “lay-off score” comprised of the last “efficiency rating” a percentile figure of which one hundred would be the maximum, to which one point and a fraction was added for each year and part of each year of service. Under this method of determining who should be laid off, if a tie in lay-off scores existed it would be broken in favor of the employee with the longest employment with the city of Miami to a day, and if such tie should still remain unresolved, it would be broken in favor of the employee with the highest service rating average throughout his employment with the city.

Appellants alleged in their answer that on February 10, 19SS, which was seven months after appellee’s lay-off, and administrative interpretation was adopted as follows : “ * * * they take into consideration veterans’ status of employees to be laid off only when the lay-off score of two or more employees is identical, in which case they do place the veteran ahead of other employees with like scores who have no veterans’ status.”

It was agreed by the parties that the question before the circuit judge was whether this practice was a compliance with F.S. Section 295.07, F.S.A. and the Civil Service Rule (which is a verbatim copy of the statute) or whether this practice in fact was only a gesture which gave no real preference as contemplated by the statute and the Civil Service Rule.

In his petition for writ of mandamus, appellee charged that the lay-off order directed to him was illegal in that a preference, directed mandatorily by F.S. Section 295.07, F.S.A., was not accorded to him, and he prayed for a writ commanding a rescission of the alleged illegal lay-off order and further commanding the payment of lost wages.

As has been stated, appellee contends that the lay-off order, dated May 18, 1954, was illegal in that he had been given no preference although he is an ex-serviceman. The trial court agreed with this contention and issued a peremptory writ of mandamus directing Woody Kepner, as Director of the Department of Publicity of the city of Miami, “forthwith to rescind and cancel that certain lay-off order, dated May 18, 1954, insofar as it affects petitioner * *

The circuit judge further ordered the said Kepner, Joe A. Yates, Jr., as Chairman of the Civil Service Board of the city of Miami, and E. A. Evans, as City Manager of said municipality, “forthwith to do any and all things and to take any and all action which shall be necessary to effect the reinstatement of petitioner to his position as Custodial Worker I * * * and to pay to the petitioner, the sum of Three Thousand Eight Hundred Three Dollars and Fifty-two cents ($3,803.52) minus Five Hundred Eleven Dollars and Eighty cents ($511.80) representing the sum earned by the petitioner during period that petitioner was laid off by the respondents * * * ”

The question before this court is whether appellee was shown any preference whatsoever as required by F.S. Section 295.07, F.S.A.

It is clear that appellee sought as his first step a peremptory writ of mandamus directing that the lay-off order of May 18, 1954, be rescinded. The subsequent commands of this writ in our opinion were properly placed therein to give force and effect to the original command of the writ directing the rescission and cancellation of the said lay-off order.

Appellant contends that the trial court, by mandamus, sought to control the discretion of the Civil Service Board in ordering the reinstatement of the appellee. In La Gorce Country Club v. Cerami, Fla., 74 So.2d 95, the procedural situation was identical with that which now confronts us. Appellee in that case had been expelled from a club without notice or hearing and the trial judge had ordered him reinstated to membership because notice and hearing were required by statute as a prerequisite to expulsion. We affirmed the judgment below with the observation that the peremptory writ, commanding reinstatement, was in no way prejudicial to the position of the club on the merits of the controversy, i.e., the peremptory writ commanded reinstatement only because the mandatory requirements of the statute had not been observed. In the case before us it appears that the situation is the same and that the appellee should be reinstated at least unless and until the Civil Service Board can show that some preference was accorded to him which would comply with the requirement of the statute. We do not anticipate that this requirement is satisfied by the vague formula previously set forth herein, if only because this formula does not appear to apply to the appellee, and produces the result that no preference whatever is accorded to him.

As in La Gorce Country Club v. Cerami, supra, 74 So.2d 95, we do not mean to say that appellants do not have the right under the statute to promulgate a formula which in fact gives a preference to the ex-serviceman in the matter of being laid off as a city employee, but only that the showing made by the appellants in this case falls short of meeting the requirements of the statute. We are of the view that the learned circuit judge was eminently correct when he directed that the illegal order be rescinded, and that it was entirely proper to make the order effective by directing the appellee be reinstated and paid his back salary.

Affirmed.

ROBERTS, THORNAL and O’CON-NELL, JJ., concur.

TERRELL, C. J., and THOMAS and DREW, JJ., dissent.

THOMAS, Justice

(dissenting).

The appellee was awarded a peremptory writ of mandamus by the circuit judge commanding the appellants to reinstate him as “Custodial Worker I in the Publicity Department of the classified civil service with a permanent appointment and with1 permanent civil service status” and to pay him a sum of money equal to the amount-he would have earned between the time he-was laid off and the date of reinstatement,, less any money he earned in other employment during that time.

The salient facts may be taken from those-statements in the alternative writ which were admitted in the answer. The appellee was employed 20 June 1949 and on 19 January 1950 was permanently appointed' to the position of Custodial Worker I in the publicity department which made himi a member of the classified civil service. He received periodic advancements in salary until his compensation amounted to $297" monthly at the time his services were discontinued. On 18 May 1954 he was notified' by the Director of the Department of Publicity that, effective the last day of the following month, he would be laid off as am economy measure, the budget submitted for the year 195^1 — 1955 having been reduced’ from 85 to 65 thousand dollars. This-curtailment had made it necessary, so the director regretfully explained, to lay off two Custodial Workers I, of whom appellee was one.

The appellee was entitled to all the privileges and advantages of the classified civil service including the guarantee of Sec. 295.-07, Florida Statutes 1947, F.S.A., providing that “in retention in position in all * * * municipalities of the State of Florida, preference shall be given to * * * ex-servicemen * * * who have served on active duty in any branch of the armed forces * * * during any war” and who have been honorably discharged. Appellee had served in the United States Air Force from 9 August 1917 to 8 May 1919, when he was separated under honorable conditions.

He contended that no preference was shown him in recognition of his service in the armed forces, and the circuit judge agreed with him.

It was stipulated by the parties that in the event the discharge of one employee was contemplated and his “lay-off score” was the same as that of another employee and one was a veteran and the other a non-veteran, the Civil Service Board followed the procedure of retaining the former because of the preferential position given him in recognition of his service to his country.

The appellants take the position that inasmuch as the legislature, after directing, in Sec. 295.07, supra, that preference be given veterans in appointment and reemployment, and in retention of position, then specified in companion sections, 295.08 and 295.09, how the preference be applied in cases of appointment and promotion, but did not particularize about the manner of granting preference with reference to retention of a position once attained, the matter of preference in the case of lay off, or retention of position, was one left entirely to the discretion of the Civil Service Board. “Therefore” to quote from appellants’ brief, “the quantity of preference to be granted to veterans in retention in position, is entirely within the discretion of the Civil Service Board and mandamus will not lie to control that discretion.”

Adopting this premise, appellants devote considerable space to argument and citations relative to judicial control of an act that requires the exercise of judgment or discretion as distinguished from judicial control of an act that is purely ministerial.

It seems unnecessary to explore a legal principle that is so thoroughly established. The immediate question is whether or not the appellee was given any preference over a co-employee when it was necessary to discontinue the services of one of them. We should sympathize with the view that a board may not, in the face of a statute securing an advantage to ex-servicemen in the retention of their positions, properly exercise a discretion by withholding any preferential treatment at all.

Clearly under the statutes already cited, the ex-serviceman who applies for a position is given a certain number of points on his entrance examination and is likewise entitled to a certain number of points in an examination for promotion.

The rule adopted by the Civil Service Board of Miami to govern lay-offs appears to ignore the advantages secured to a former serviceman by Sec. 295.07, supra. It is provided in the rule that when the need arises to reduce the number of employees within a class in any department, they shall be laid off in the following order: “(1) Duration, emergency, or temporary appointees. (2) Probationary employees. (3) Permanent employees.”

The order of dealing with permanent employees is fixed by a “lay-off” score computed as follows: “The percentage grade of the last service rating is determined for all employees in the particular class and department.” To this is added a credit for seniority of 1% for each of the first five years and “for each year employed more than five (5) years.” Next comes this language: “A tie in said scoring shall be broken in favor of the employee with the longest service record.” “Should a tie still exist [presumably because of service records of the same length] it shall be broken in favor of the employee with the highest service rating average for the period employed” and the employee having the lowest “lay-off” score shall be discharged.

There does not appear in the rule a word referring to veterans but it appears in the transcript that it was the “practice” to give a veteran the preference if, after following the complicated procedure outlined, a tie should still exist between a veteran’s and a nonveteran’s score. So, according to the record, the veteran would eventually receive an advantage if in the final computation his score should be identical with that of a fellow employee who had not served in the armed forces.

The appellee contends that the preference granted a veteran by the procedure outlined in the rule is illusory and he exclaims: “When in heaven’s name would such a precise tie occur?” His consternation is easily understood but he has not shown clearly the right to the writ that was issued in this case. Even if it be assumed that he was entitled to more credit than he got for his service, it cannot be determined from the record why he had a right to retain his position when on the list showing total grades his score was 80, 75 for efficiency and S for seniority, while the score of the man whose name appeared immediately above his was 83, 80 for efficiency and 3 for seniority.

To say what method should have been used, in recognizing the appellee’s service in the armed forces, so that the margin of 3 should be overcome with the result that he would be preferred to the man whose name appeared ahead of his on the list, would require pure speculation.

From the very nature of mandamus indulgence in conjecture cannot avail one who must show a clear legal right to such a writ in order to be awarded one.

It is my view that the writ was improperly issued so I dissent.

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


text:
    CONSOLIDATED SHRIMP COMPANY, a corporation, Appellant, v. Robert ALLEN, Appellee.
    Supreme Court of Florida, Special Division A.
    June 19, 1957.
    Fred B. Noble, Jacksonville, for appellant.
    L. B. Vocelle, Vero Beach, and Will O. Murrell, Jr., Jacksonville, for appellee.
   PER CURIAM.

Affirmed on authority of rule announced in Southern Shell Fish Co., Inc., v. Plaisance, 5 Cir., 1952, 196 F.2d 312, and Hudgins v. Gregory, 4 Cir., 1955, 219 F.2d 255. Also see 46 U.S.C.A. § 688 and Sears Roebuck & Co. v. Pixler, 140 Fla. 677, 192 So. 617.

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


text:
    Mary Rose McCUTCHEN, Appellant, v. The STATE of Florida, Appellee.
    Supreme Court of Florida, Special Division A.
    June 19, 1957.

      Paul Lake, Tampa, for appellant.
    Richard W. Ervin, Atty. Gen., and Jos. Manners, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant having been charged with first degree murder, seeks reversal of a verdict of guilt with recommendation of mercy and sentence to life imprisonment.

The appellant raises three questions to be decided by this Court, the first of which we quote: “Was the evidence conclusive that a premeditated design existed in the mind of the defendant at the time of the commission of the alleged crime, i. e., was the evidence conclusive that the defendant was guilty of a capital offense, since she was attacked by the deceased ?”

The record shows that the appellant and the deceased, who was her husband, had a quarrel in the kitchen of their home and that the deceased slapped appellant, whereupon she stated “you will be sorry”, then she' left the home and went across the street and returned to the home, going into the kitchen where she had left her husband, and there she shot him twice with a revolver, and, according to some of the witnesses stated as she did so, “I told you you would be sorry.” According to the appellant’s own testimony, it was some five minutes after the deceased slapped her that she returned and shot the deceased.

A premeditated design to effect the death of a human being is a fully formed and conscious purpose to take human life, formed upon reflection and deliberation, entertained in the mind before and at the time of the homicide. The law does not prescribe the precise period of time which must elapse between the formation of and the execution of the intent to take human life in order to render the design a premeditated one; it may exist only a few moments and yet be premeditated. If the design to take human life was formed a sufficient length of time before its execution to admit of some reflection and deliberation on the part of the party entertaining it, and the party at the time of the execution of the intent was fully conscious of a settled and fixed purpose to take the life of a human being, and of the consequence of carrying such purpose into execution, the intent or design would be premeditated within the meaning of the law although the execution followed closely upon formation of the intent.

We think there was sufficient time between the act of slapping and the act of killing for the appellant to form a premeditated design, and the statements made by the appellant before and after the homicide bear this out.

The second question posed by the appellant has to do with the length of time the jury deliberated before rendering a verdict. The record discloses that the jury deliberated approximately twenty-three minutes before coming into Court to ask the judge a question, and having asked the question, returned to the jury room to continue their deliberation. The record does not disclose how long the jury deliberated.

The third question posed by the appellant has to do with the admission into evidence of a statement made by the appellant after her arrest. The record discloses that the portion of the statement admitted into evidence was admitted by stipulation of counsel.

Finding no reversible error we conclude that this cause should be, and it is, hereby affirmed.

Affirmed.

TERRELL, C. J., ROBERTS and THORNAL, JJ., and WELCH, Associate Justice, concur.


author: SANDLER, Associate Justice.

text:
    H. T. PARKER, Appellant, v. A. E. BRYCE, Appellee (two cases).
    Supreme Court of Florida, Division B.
    June 19, 1957.
    liehearing Denied July 24, 1957.
    Ragland, Kurz, Maness & Toole, Jacksonville, for appellant.
    Coffee & Coffee, Jacksonville, for appel-lee.
   SANDLER, Associate Justice.

Appellant, as plaintiff in lower Court, instituted suit against Appellee (defendant) to recover principal and interest on seven promissory notes, each note being payable ninety (90) days from date. Three bore interest after maturity at 10% per annum, and four of them after maturity bore interest at 8% per annum.

Defendant interposed the defense of usury, in that the interest exacted by the said notes and the contract, pursuant to which the notes were given, exceeded 25% per annum. The defendant also filed a counterclaim seeking to recover in excess of $72,-000 in principal and usurious interest paid. Defendant then moved for a summary judgment to defeat the plaintiff’s original claim, and from the order and summary judgment entered pursuant to this motion, an appeal was taken to this Court. By its opinion and order in Parker v. Brice, Fla., 84 So.2d 323-, the summary judgment was reversed.

After the mandate and opinion of this Court the defendant again filed his motion ior summary judgment, which the plaintiff resisted on the ground that the pleadings, ■depositions, affidavits and exhibits revealed •a question of fact to be tried before a jury. The trial Court again entered summary judgment for the defendant on the issues raised by the complaint and answer, from which judgment this appeal is prosecuted.

While the appeal from the original summary judgment was pending, the trial Court entered a second summary judgment pursuant to appellee’s motion therefor on the issues raised by the appellee’s counterclaim •and answer, which judgment is in the sum •of $46,220.64, and appellant prosecuted a ■separate appeal from this judgment to this 'Court.

Pursuant to a joint motion therefor, the two appeals were consolidated for final argument before this Court, and accordingly the two appeals will be disposed of in this opinion, both growing out of the same suit.

The trial Court found that there is no genuine issue of fact between the parties to the suit, but in its opinion the Court found “that said contract of January IS, 1951, is and was a contrivance or device by which the plaintiff was to charge and exact from the defendant interest on said notes made and dated in 1952 pursuant to said contract at the usurious rate of more than 25% per annum”, and “that plaintiff pursuant to said contract did willfully and knowingly charge and exact from the defendant on each of said notes made and dated in 1952 and aggregating the sum of $37,500 interest at the usurious rate of more than 25% per annum”, which finding is one of the very material issues in the case.

“Factual issues are not to be tried or resolved by summary judgment procedure; only the existence of a genuine and material factual issue is to be determined. Once it is determined that there is such an issue, summary judgment may not be granted.” Johnson v. Studstill, Fla., 71 So.2d 251, 252.

Involved in each claim of usury is the question of willfulness and intent.

In the case of Jones v. Hammock, 131 Fla. 321, 179 So. 674, 675, this Court held:

“This court has held that one of the requisites of a usurious transaction is that there must exist a corrupt intent to take more than the legal rate for the use of money loaned (Clark v. Grey, et al, 101 Fla. 1058, 132 So. 832), and that usury is largely a matter of intent and is not fully determined by the fact of whether the lender actually gets more than the law permits, but whether there was a purpose in his mind to get more than legal interest for the use of his money (Benson v. First Trust & Savings Bank, 105 Fla. 135,134 So. 493, 142 So. 887, 145 So. 182). Also to work a forfeiture under the statute the principal must knowingly or willfully charge or accept more than the amount of interest prohibited. Chandler v. Kendrick, 108 Fla. 450, 146 So. 551, 552.” See also Maule v. Eckis, 156 Fla. 790, 24 So.2d 576.

In the case of Dezell v. King, Fla., 91 So.2d 624, 626, opinion filed December 19, 1956, which was considerably after this case was disposed of in the lower Court, this Court said:

“The first count of the amended complaint charges that the defendant did ‘then and there wilfully and knowingly’ charge and exact and take from the plaintiff more than ten per cent per an-num”. * * *

and stated a cause of action sufficient to charge that usurious interest was exacted, and that the answer which

“ * * * claims that the contract was made in good faith and with no intention of taking more interest than the law allowed”. * * *

fairly raised a question of willfulness and should be tried by a jury, or if a trial by jury is waived, by the Court.

“The criterion is not simply whether the defendant received more interest than the law allowed but rather did he do so wilfully.”

The question of willfulness being fairly raised and being one of the vital issues in the suit, it should have been tried by a jury, or a trial by jury waived, by the Court, and not disposed of on a motion for summary judgment.

We have refrained from any comment on the evidence because of the fact that this case must be sent back to the trial Court for further proceedings consistent herewith.

The judgments appealed from are each reversed and remanded for further proceedings consistent with this opinion.

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


text:
    In re ESTATE of Williams Bleckley HAMMOND, deceased. Benjamin Miles HAMMOND, Appellant, v. Felicia Williams TRAXLER, Appellee.
    Supreme Court of Florida, Special Division B.
    May 8, 1957.
    Rehearing Denied June 28,1957.
   PER CURIAM.

Affirmed.


text:
    Catherine WILHELM, joined by her husband, Avery Wilhelm, Appellants, v. HAYGOOD BUICK, Inc., a Florida corporation, Appellee.
    Supreme Court of Florida, Special Division A.
    June 12, 1957.
   PER CURIAM.

Affirmed.


text:
    O. G. COX, Appellant, v. The CITY OF MIAMI BEACH, a municipal corporation of and in Dade County, Florida, R. J. Shepard, as Chief of Police of such City, and Charles Tobin, Leo Solomon, John L. Lunin, David Goldstein and Mrs. Morris Golden, as members of the Personnel Board of such City, Appellees.
    Supreme Court of Florida, Division B.
    June 12, 1957.
   PER CURIAM.

Affirmed.


text:
    Cecil GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, Special Division B.
    June 12, 1957.
   PER CURIAM.

Affirmed


text:
    W. Sylvester PORCH et ux., Appellants, v. Ann E. COSTILL, Appellee.
    Supreme Court of Florida, Special Division B.
    June 12, 1957.
   PER CURIAM.

Affirmed.


author: PER CURIAM,

text:
    H. B. FOSTER, Appellant, v. John T. FRANKLIN, Jr., Appellee.
    Supreme Court of Florida, Special Division A.
    June 12, 1957.
   PER CURIAM,

Affirmed.


author: HOBSON, Justice.

text:
    McKINNEY SUPPLY COMPANY, Grace Industrial Corporation, Federal Screen Supply Company, Appellants, v. Max OROVITZ, Ruth Orovitz, Dan B. Ruskin, and Mollie K. Ruskin, d/b/a Public Gas Company, Appellees.
    Supreme Court of Florida.
    July 3, 1957.
    Davant, Letts & White, Miami, for appellants.
    Wicker & Smith, Miami, for appellees.
   HOBSON, Justice.

These are consolidated appeals from three cases which were tried together below. Plaintiffs appeal from judgment entered consequent upon a verdict for defendants in each of the three cases.

The undisputed facts are the following: Defendants (appellees'here) are in the business of selling liquefied petroleum gas. In connection with this business, they owned a building or plant wherein liquefied petroleum gas was transferred to cylinders to be hauled away from the plant to customers. Commencing in the early morning hours of June 7, 1953, a fire burned the defendants’ plant, spreading to property owned by the plaintiffs and causing substantial damage.

Plaintiffs brought suit on the theory of res ipsa loquitur, making the necessary allegations to support this theory. The defendants, in their answer, admitted that the fire occurred at the time and place alleged, but denied the remaining allegations of the complaint. The cases were tried before a jury and at the close of all the evidence the plaintiffs moved for a directed verdict. The motion was denied, and a verdict was returned for defendants, whereupon plaintiffs moved for judgment notwithstanding the verdict. This was denied, and final judgment was entered for defendants.

Although much space is devoted in the briefs to a discussion of the doctrine of res ipsa loquitur, it appears to be conceded by the parties that there is no real difference between them as to the nature of this doctrine. But appellants contend that the evidence was insufficient to rebut the presumption of negligence which arose from the application of the doctrine, while appellees take the position that the inference or presumption of negligence, if any there was, was clearly rebutted, leaving the disposition of the cases solely within the purview of the jury. On the first point raised by appellants, therefore, our task is restricted to a review of the record.

Certainly it was not established that any of the equipment in the plant was defective in a way which could have caused the fire. The situation confronting us, therefore, is to be contrasted with that which we reviewed in Williams v. Puleo, Fla., 70 So. 2d 290, where a gas-fed fire could have been, and the jury apparently found that it was, caused by the defective character of a check valve, from which certain essential parts had been removed by the user.

There was evidence that the safety classification of appellee’s plant was excellent or ■“above average.” Chief Davis, Miami Fire .Marshal, and Chief Willis, Deputy State Fire Marshal, testified at length. Based upon the testimony of these and other witnesses, the jury could have found the plant was well organized; that the many safety devices with which the plant was equipped were in proper working condition and were helpful in rendering the fire less disastrous than it might have been; that the plant had been inspected on March S, 1952, and found in good condition; and that the management was extremely cooperative with safety officers and disposed to comply with any of their safety suggestions. There was no explosion of the kind which would have occurred if escaping gas had been ignited inside of the building. The investigation conducted by Chief Willis convinced him that the fire originated on the outside of the building.

On this record the jury was authorized to find that the fire had its origin on the exterior of the building, and that it may have been caused by neon lighting equipment located there. Chief Willis testified that fires will sometimes “start in some unexpected way, regardless of the fire prevention used” and he further testified that neon signs are not “prominent” causes of fires if properly installed and maintained. From all of his testimony and on the balance of the record, however, the jury was authorized to believe that a neon sign might cause a fire in the ordinary course of events, even in the absence of any negligence. Under the circumstances, an essential element contended for by the appellants either was not established or was rebutted, depending upon the vantage point from which the case is observed, for 'it was incumbent upon them to convince the jury that the cause of damage was one which would not occur in the ordinary course of events in the absence of negligence.' In the recent case of Williams v. U. S., 218 F.2d 473, 476, the United States Court of Appeals for the Fifth Circuit stated succinctly and clearly, in connection with the res ipsa doctrine:

“In the final analysis, each case seeking to invoke this doctrine must stand or fall upon its own facts. * * * It is not enough that the plaintiff shows that the thing tvliich injured him was in the exclusive control of the defendant, he must also show that the accident would not have occurred in the ordinary course of events if the defendant had exercised due cave.” [Italics by the court.]

See also Roth v. Dade County, Fla., 71 So. 2d 169, and 20 Am.Jur., Evidence, Section 218.

Of more specific applicability to this case, it has been held that a fire of unknown origin will not of itself justify the conclusion that negligence is the most likely explanation, Davis v. Rivers, 103 Old. 198, 229 P. 571; Watenpaugh v. L. L. Coryell & Son, 135 Neb. 607, 283 N.W. 204, and that in such a situation the res ipsa doctrine does not apply, The President Wilson, D.C. D.Cal., 5 F.Supp. 684; Prosser on Torts, 2d Ed., p. 203.

Appellants seek to take advantage of the res ipsa doctrine, contending that the fire was of unexplained origin, and also of specific negligence, contending that the fire may have started from a refrigerator inside the building or from a defect in the neon sign outside. We have adready disposed of the “fire of unexplained origin” contention. As for specific negligence, the jury was authorized to find that the refrigerator, being inside the building, could not have started the fire on the outside, and that no negligence was proved in connection with the neon sign or the devices which operated it. The evidentiary situation authorized the verdict reached, under either view of the case.

Appellants contend that there was error in the jury charge, but we are of the opinion that the court’s instructions could not have been better tailored to the evidence. If any error there was, it operated to appellants’ advantage, since under the charge the jury could have returned a verdict for the plaintiffs either on specific negligence or the res ipsa doctrine, and thus appellants were given the benefit of either theory. There was and could have been no prejudice here, and we find no merit in appellants’ arguments in connection with the charge.

The final point we deem it necessary to discuss is appellants’ contention that it was error to admit evidence of their insurance coverage and to permit counsel for appellees to refer to insurance in his argument to the jury. Having reviewed the record, we agree with appellees that appellants originally injected the subject of their insurance into the case, referred to it repeatedly throughout the trial, and made no specific objection when counsel for ap-pellees pursued the subject. We can discover no place in the record where the court was requested to instruct the jury to disregard the references to insurance, and no instruction was given such as in Morton v. Holaday, 121 Fla. 813, 164 So. 514. It is also evident that no objection was made in behalf of appellants to the reference to insurance in the summation by counsel for appellees. With due regard to this introduction and preoccupation with the subject by appellants throughout the trial and their failure to object during argument, we think it now too late for them to ask a reversal, and a repetition of the long and expensive trial of three cases, upon this ground.

Affirmed.

TERRELL, C. J., DREW and THORN-AL, JJ., and STURGIS, District Judge, concur.


author: DREW, Justice.

text:
    Fred L. LEWIS, Rose A. Lewis and Elizabeth M. Anstine, Appellants, v. Ralph H. BELKNAP, Appellee.
    Supreme Court of Florida, Division B.
    June 28, 1957.
    Stanley M. Beckerman and Ralph R. Quilliam, Hollywood, for appellants.
    Phillips & Phillips, Miami, for appellee.
   DREW, Justice.

Ralph H. Belknap (purchaser) sued Fred L. Lewis and Rose A. Lewis (sellers) and Elizabeth M. Anstine (broker) to rescind a contract to purchase certain real estate and to recover, a deposit of $1,500 made thereon. From a decree rescinding the contract and ordering the return of the deposit the sellers and the broker appealed.

The subject, contract in the form of a deposit receipt is regular in all respects. Its legal sufficiency is not questioned in these proceedings. It is duly signed by the broker, the seller and his wife and Ralph H. Belknap as purchaser. It fixes a pur-, chase price of $31,500 payable according to the express terms of the contract as follows:

“The Purchaser agrees to pay Ten Thousand Dollars ($10,000.00) cash upon closing this transaction, of which the above One Thousand Five Hundred Dollar ($1500.00) deposit is a part thereof,
“The Purchaser further agrees to execute at his expense a First Mortgage on the above described residence for $20,000.00, with terms to be agreed upon.
“The Seller agrees to take back a Second Mortgage in the amount of $1500.00, or the equivalent between the First Mortgage and the selling price, for a period of two years, at the rate of 6% interest.”

The record shows that Mr. Belknap gave the broker the sum of $500 in the beginning to be held by the broker for the sellers pending the closing. Later he advanced an additional $1,000. After he returned north, a copy of the contract was sent him by the broker with a request that he approve two minor changes in the contract, one with reference to changing the sum of the deposit from $500 to $1,500 and the other changing the closing date to March 1st. Mr. Belknap immediately advised the broker that he approved such changes and authorized her to make them and initial them on his behalf. In that letter of January 31st he alluded to certain change in his plans and authorized the broker to put the property on the market for resale. The record further shows — with reference to the provision in the contract concerning the $20,000 mortgage — that about two weeks after the contract was signed, he sent the Coral Gables Bond and Mortgage Company an application for a loan of $20,000 accompanied by his check for $200 on account of expenses in connection with said loan. In that letter he gave references and stated the closing date to be March 1st.

Mr. Belknap returned to Florida about the end of February and sometime thereafter and prior to March 10th (the time for closing had been extended to that date) he advised the broker that his wife did not like the place and would not sign the mortgage. According to the record, Mr. Bel-knap took no further steps with reference to procuring the mortgage or another mortgage nor did he make any attempt to close the transaction. In the meantime, the sellers had tendered a warranty deed and all papers to effectuate the closing.

After the time for closing had passed without further word from Mr. Belknap, and pursuant to written demand of the sellers’ attorney, the broker divided the deposit between herself and the sellers in the manner provided by the express terms of the contract. Sometime thereafter this suit was commenced by the purchaser for the purpose of rescinding the contract and procuring a return of the deposit paid thereupon upon the sole ground that he, Ralph Belknap, “has been unable to perform the conditions of said contract on his part hereinbefore set forth and that he has been prevented from so performing, for that the wife of plaintiff refused and still refuses to execute any mortgage or mortgage instruments encumbering the said property. That at the time he was thus prevented from completing the contract, plaintiff was and thereafter remained and still remains ready, willing and able to perform, except that he was prevented from so doing by the acts hereinabove alleged.”

We find no basis in this record upon which we can sustain the chancellor below in either his ruling denying the motion of the defendants to dismiss the complaint for failure to state a cause of action or in the entry of the final decree after testimony was taken.

The reason advanced by the purchaser for his failure to consummate the transaction affords no legal basis or justification for the non-performance of the contract. He had agreed to purchase said property under a contract clear and definite in all respects. It was his obligation under the contract to procure the mortgage or if he could not do so, to pay the contract price in cash. The fact that his wife would not sign a mortgage in order to raise the purchase price is of no consequence whatever under the provisions of the contract he signed. Nor is there the slightest intimation in this record that there was any understanding or agreement so far as the sellers were concerned to take or assume any responsibility in connection with the method of financing. Moreover, the record very clearly establishes that he negotiated directly with the mortgage company and later abandoned the transaction.

The fact that the wife refused to sign the mortgage did not render the contract impossible of performance under any theory of law. When the courts speak of “impossibility of performance” in this context it refers to the nature of thing to be done—

not the ability of the party to perform what he has agreed to do. 12 Am.Jur., Contracts, Sec. 370. 17 C.J.S. Contracts § 4S1, p. 931 et seq. Moreover, the requirement of the contract is that the purchaser agreed to “execute at his expense a first mortgage”. (Emphasis supplied.) If the mortgage was for the purpose of securing a portion of the purchase price to the vendor the signature of the wife is not required. Hatch v. Trabue, 1930, 99 Fla. 1169, 128 So. 420; Taylor v. Mathews, 1907, 53 Fla. 776, 44 So. 146; Jones on Mortgages, 8th Edition, Sec. 584; Redfearn’s Wills and Administration of Estates, Sec. 247. Prior to his suit Mr. Belknap had no information from the mortgage company that a mortgage on his signature without that of his wife would be refused. Mr. Belknap never communicated with the loan company at any time subsequent to his letter enclosing his application for a loan and his check for $200 heretofore alluded to. The president of the loan company never saw nor talked to Belknap nor did Belknap ever attempt to communicate with the loan company after the 14th of February.

It is argued by appellee (purchaser) that even assuming there had been a complete breach of contract by him, the decree of the chancellor must be affirmed because the sellers failed to establish by competent pleadings or evidence that they suffered any damages by virtue of such breach of contract. In support of this contention the purchaser relies heavily on the cases of Pembroke v. Caudill, 1948, 160 Fla. 948, 37 So.2d 538, 6 A.L.R.2d 1395; Paradis v. Second Ave. Used Car Co., Fla.1952, 61 So.2d 919; and Haas v. Crisp Realty Co’., Fla.1953, 65 So.2d 765.

We do not think the cited cases are applicable here. In Pembroke v. Caudill we affirmed a judgment of the lower court denying recovery of an amount stipulated as earnest money in a contract to purchase realty because of our view that the. contract clearly provided for a penalty and not for liquidated damages. It is pertinent, however, to observe that in that case we very-carefully pointed out:

“We have made no attempt to settle certain questions which may arise un--. der a stipulation similar to the one we have considered, in a case where a deposit of money has actually been made by the prospective purchaser for the benefit of the owner. We are aware-of the fact that some of the decisions-on that precise issue are to the effect that under such circumstances the questions as to the intention of the parties at the time they made the contract, and as to whether damages which may be sustained by the owner are easily susceptible of proof, are deemed to be foreclosed by the actions of the parties ; but we express no opinion on the point, because we have no such issue before us.” [160 Fla. 948, 37 So.2d 542.]

Paradis v. Second Ave. Used Car Co. is not applicable for the basic reason that in that case the purchaser in good faith questioned the title to the property involved and, when his objections were not timely met, we held he was entitled to a refund of the deposit. Haas v. Crisp Realty Co. involved a case of a forfeiture of a payment of over $6,000 on a total purchase price of a little over $15,000. The amount of the deposit forfeited in that case was found, as the court said, “without a showing of actual damage, to be 'shocking to the conscience of the court.’ [65 So.2d 768.]

We think the case decisive of the issue here is Hyman v. Cohen, Fla.1954, 73 So.2d 393. A lease was involved in Hyman v. Cohen but the basic principles discussed are clearly applicable in this case. In that case we were dealing with the question of whether a security deposit under the provisions of the lease there involved constituted a penalty or liquidated damages. Before proceeding to examine the holdings in Hyman v. Cohen, we deem it appropriate to note at this point that the pertinent ipro-v'ision of the contract which is now under consideration with reference to the ■deposit reads as follows:

“It is mutually agreed that this transaction shall be closed and the purchaser ■shall pay the balance of the first payment and execute all papers necessary ■to be executed by him for the completion of his purchase within March 1st, 1956 days from the delivery of the aforementioned abstract; otherwise the herein named Escrow Agent is hereby ■directed by both seller and purchaser to divide the moneys being held by said Escrow Agent between the seller and broker herein named as hereinafter provided. It is further agreed that in the event of such procedure the Escrow Agent is relieved from any and all further liability. It is further agreed that in case this transaction is not completed •due to any default or failure on the part of the purchaser, the said purchaser shall in that event become liable to the broker for brokerage commission .as hereinafter provided. It is further .agreed that in case of default by the purchaser, the seller may at his option take legal action to enforce this contract, in which event the purchaser :shall pay reasonable attorney fees and •court costs; or else the seller may at bis option retain one-half of the deposit herein paid as consideration for the release of the purchaser by the seller from any and all further obligations under this contract to the seller, which release shall be implied from such act of retention by the seller.”

"The sellers and the broker in notifying the ■purchaser of the division of the sum deposited between themselves relieved the pur- ■ chaser from further liability under the contract in accordance with the express under- ■ standing of the parties. It was the obvious intention of all concerned that if the sellers ■.and the broker so elected, they were entitled •to dispose of the matter upon a complete ’.breach of the contract as we have held there was in this case. These were mature people dealing with each other at arms length and we hold that under the circumstances of this case and the conditions under which the sum was deposited, that such amount when accepted by the sellers and broker is presumptively liquidated damages and not a penalty and we reaffirm conclusions reached in Hyman v. Cohen, supra, in this respect and apply it to executory contracts for the purchase of real estate.

Reversed and remanded with directions to dismiss the complaint.

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


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    George M. CRUMP, Appellant, v. GOLD HOUSE RESTAURANTS, Inc., a Florida corporation, and Glen Rush and Ann Rush, individually and as Directors of Gold House Restaurants, Inc., and E. G. Musleh and William Blowers, Appellees.
    Supreme Court of Florida, Division A.
    June 28, 1957.

      Green & Bryant, Ocala, for appellant.
    Charles A. Savage, Ocala, for appellees.
   ROBERTS, Justice.

This appeal is concerned with the so-called “two-dismissal” rule contained in Rule 1.35(a) (1) of the Florida Rules of Civil Procedure, 30 F.S.A. This rule authorizes the voluntary dismissal by plaintiff of his suit “at any time before service by the adverse party of an answer or of a motion for summary judgment or decree” and provides that “Unless otherwise stated in the notice of dismissal or stipulation, the dismissal shall be without prejudice, except that a dismissal shall operate as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of this State an action based on or including the same claim.”

In a suit filed by plaintiff-appellant George M. ’Crump against the defendant corporation and individual defendants, ap-pellees here, the lower court held that the suit was barred under the two-dismissal rule, and plaintiff has appealed. He here contends that the rule is not applicable to his suit for the reasons, among others, that (1) he was not bound by the voluntary dismissals of the two previous suits because he was not a party thereto, (2) the prior suits were not based on and did not include the .same claim as that asserted in the instant suit, and (3) the defendants filed an answer and motion for summary judgment in the first suit prior to the voluntary dismissal of that suit.

The background against which these contentions are made is, briefly, as follows: A suit for an injunction was filed on May 2, 19SS, by one Crowder against two of the individual defendants named in the instant suit, who are directors of the defendant corporation, and a temporary restraining order was issued on that date. On May 4, 1955, defendants filed a pleading labeled “Motion to Dissolve Temporary Injunction and Restraining Order”, which was, in fact, a complete answer to the complaint and which prayed that, if the temporary restraining order was dissolved, the court “enter a decree including an award to them for all of their costs and damages, including attorney’s fees, resulting from the issuance of said injunction”. After a hearing, and on the same date, the lower court entered an order the effect of which was to allow the plaintiff forty-eight hours in’which to file a $5,000 bond conditioned to pay any costs or damages incurred by defendants as a result of the temporary restraining order. On May 6, the plaintiff Crowder having failed to file the bond, an order was entered dissolving the temporary restraining order.

In the meantime, on May 4, 1955, the second suit had been filed against the same individual defendants and the defendant corporation, this time by Crowder and Mary Elizabeth Crump, the daughter of

George Crump .and a stockholder of the defendant corporation. ’ This suit prayed for the same injunctive relief asked for in the first suit and for additional relief in the form of an accounting, a receivership, and dissolution of the corporation.

On May 11, 1955, a notice of voluntary dismissal “without prejudice” was filed in each of these suits, signed by the attorney who represented both plaintiffs in the suits.

On May 12, 1955, the defendants filed in the first suit a “Motion to Set Aside Notice of Dismissal Insofar as It Relates to Counterclaim for Attorney’s Fees and Costs of the Defendants and. for Adjudication of Attorney’s Fees and Judgment for Attorney’s Fees and Costs against Thomas Crowder and George Crump”, in which the defendants alleged that they had theretofore filed in the suit a motion to dissolve the injunction, which motion “contained an answer to the Complaint and a counterclaim asking for summary judgment on the question of costs and attorney’s fees for the illegal issuance of the injunction” and asking the court “to construe the plaintiff’s notice of dismissal as only dismissing the plaintiff’s Complaint and leaving for adjudication the issues presented by the defendants’ motion for costs and attorney’s fees * * *. ” On May 19, 1955, after a hearing, the lower court entered an order finding that the plaintiff has a right to enter a voluntary dismissal of the action herein”, adjudicating that “the voluntary dismissal of the plaintiff, Thomas Crowder, is hereby ratified and confirmed, said dismissal being without prejudice,” and denying the claim of the defendants for damages and attorney’s fees. A petition for rehearing as to this order was filed by the defendants on May 27, 1955 and remains undisposed of, so far as the record here shows.

In the meantime, on May 18, 1955, the third and instant suit had been filed by the plaintiff-appellant here, George Crump, who had acquired from his daughter on May 12, 1955, her shares of stock in the defendant corporation. On June 1, 1955, the defendants filed a Motion for Summary Judgment of Dismissal with Prejudice as to this third suit, on the ground that George Crump was the “real party in interest” in the two prior suits and, as such, was hound by the voluntary dismissals thereof, so that the two-dismissal rule barred his suit. The motion was granted, petition for rehearing was denied, and this appeal followed.

As to plaintiff’s first contention, the question of whether the two-dismissal rule is binding upon a “real party in interest” need not be decided, since the order here reviewed must be reversed for reasons hereafter stated.

As to plaintiff’s second contention, there is some merit to his argument that the first suit was not based on and did not include the same claims asserted in the instant suit. The first suit sought only an injunction against the defendant-directors’ holding a meeting of the board of directors of the corporation for the purpose of selling or issuing unissued stock or increasing the membership of the board without an election by the stockholders on the ground that such action was not authorized by the charter and was for the purpose of gaining control of the corporation by the defendant directors. The instant suit, filed by plaintiff in his own name, did not seek an injunction; it contained allegations of fraud and mismanagement on the part of the defendant, Glen Rush, not contained in the complaint filed in the first suit, and prayed for an accounting, a receiver, the dissolution of the corporation, and damages, and that the pretended issuance of stock made to the defendant Glen Rush be declared null and void and cancelled on the corporate records. Since Rule 1.35 is almost identical with Rule 41 of the Federal rules, 28 U.S.C.A., and was patterned thereafter, the federal court decisions interpreting their rule are persuasive here. And it was said in Harvey Aluminum, Inc., v. American Cyanamid Co., 2 Cir., 1953, 203 F.2d 105, 108, that “Rule 41(a) 1 provides for the voluntary dismissal of an ‘action’ not a ‘claim’; the word ‘action’ as used in ther Rules denotes the entire controversy,, whereas ‘claim’ refers to what has traditionally been termed ‘cause of action.’ It is clear that a suit for an injunction which questions the authority and good1 faith of corporate directors in proposing" to issue unissued stock and to increase the-membership of the board is not on the-same “cause of action” as a suit alleging fraud and mismanagement on the part of the managing director of a corporation,, and praying for an accounting, a receivership, and a dissolution of the corporation, since the facts necessary to the maintenance of such suit are not essentially" the same as those which would have beem relied upon to establish the right to the-relief prayed for in the first suit. See-Gordon v. Gordon, Fla.1952, 59 So.2d 40, 43. And certainly, as to these aspects-of the third suit, the voluntary dismissal of the first suit cannot operate under the two-dismissal rule as a bar to the third suit. Cf. Esquire, Inc., v. Varga Enterprises, 7 Cir., 185 F.2d 14.

As to plaintiff’s third contention, the-decision of a federal court in Robertshaw-Fulton Controls Company v. Noma Electric Corporation, D.C.Md.1950, 10 F.R.D-32, 35, is pertinent here. There, the contention was made that the two-dismissal rule was not available to the defendant because of the defendant’s filing a motion, to dismiss for want of jurisdiction prior to the filing of a notice of voluntary dismissal by plaintiff. The federal court said: “If defendant’s motion, filed on March 2, to dismiss the complaint for want of jurisdiction is to be treated as a motion for summary judgment, then defendant may not invoke the ‘two-dismissal’ Rule, because the notice of dismissal relied upon must, under the Rule, antedate an answer or a motion for summary judgment which would not be true in the present case because the notice of dismissal was not filed in this Court until July 22.”

Here, as noted above,, the defendants’ motion to dissolve the temporary restraining order entered in the first suit contained an answer to the complaint in that cause and a prayer for the entry of a decree for their costs, damages and attorney’s fee, denominated by defendants “a •counterclaim asking for summary judgment on the question of costs and attorney’s fees” in their motion to set aside the voluntary ■dismissal of the first suit, referred to above. Thus, the situation here is the same as that hypothesized in the Robertshaw-Fulton case, supra. And we agree with the federal •court’s statement in the Robertshaw-Fulton •case, quoted above, that the two-dismissal rule may not be invoked in such a situation. This is so because the two-dismissal rule must be strictly construed, as it is in derogation of a previously existing right, cf. Rader v. Baltimore & Ohio R. Co., 7 Cir., 108 F.2d 980; and since the voluntary dismissal in the first suit was filed after an answer had been filed by the defendants, it was not authorized under paragraph (1) of Rule 1.35(a) and could properly be given legal effect only under the provisions of paragraph (2) of Rule 1.35(a), that is, “upon order of the court and upon such terms and conditions as the court deems proper.” See Wilson & Co. v. Fremont Cake & Meal Co., D.C.Neb.1949, 83 F. Supp. 900, 902, 903. This was what was actually done in the instant case, despite the language of the trial judge “ratifying and •confirming” the plaintiff’s voluntary dismissal of the first suit. There is nothing in Rule 1.35(a) to indicate that a voluntary dismissal obtained by order of court under paragraph (2) thereof will be counted against a plaintiff under the two-dismissal rule contained in paragraph (1). ■Giving the Rule the strict interpretation that it should receive, we think a plaintiff is entitled to one free dismissal of his suit under paragraph (1) of Rule 1.35(a) before a subsequent voluntary dismissal thereunder will operate against him as an adjudication on the merits under the two-dismissal rule. Here, the only voluntary dismissal legally and properly taken by the plaintiff under Rule 1.35(a) (1) was that filed in the second suit. Thus, the third suit is not barred under the two-dismissal rule, even if it be assumed that the plaintiff in the instant suit was bound by the dismissals in the first two suits (which is not decided, since it is unnecessary).

For the reasons stated, the decree appealed from should be and it is hereby reversed and the cause remanded for further proceedings.

Reversed and remanded.

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


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    Joe F. HAMMOND, Joseph B. Mallard, Sr., Ray Greene, Julian Warren and Joe Burnett, as and constituting the Board of County Commissioners of Duval County, Florida, and Arthur Sollee, as Zoning Director of Duval County, Florida, Appellants, v. George CARLYON and Fred Caddell, Appellees.
    Supreme Court of Florida, Special Division B.
    June 28, 1957.

      J. Henry Blount, Thomas D. Oakley and Barnes, Bames, Naughton & Slater, Jacksonville, for appellants.
    Martin Sack, Jacksonville, and Ausley & Ausley, Tallahassee, for appellees.
   HOBSON, Justice.

Plaintiffs, appellees here, own property fronting on the Jacksonville Expressway. The property consists of three blocks of irregular shape, each having a depth of only ninety feet, the odd shape of the blocks and their narrow depth having resulted from the cutting of the Jacksonville Expressway through the plaintiffs’ subdivision. Further to describe the situation of the property, the findings of the chancellor, who heard all of the testimony and personally viewed the premises, read in part as follows:

“ * * * the property, on the north, fronts on the Jacksonville Expressway, one of the main arterial highways connecting U. S. 1 and U. S. 17, as well as the two boulevards connecting Jacksonville and the Beaches, all of said highways carrying a very heavy and- constantly increasing flow of motor traffic. To the east, the property fronts on Arlington Road, another heavily travelled highway connecting the well populated Arlington residen- - tial area with the Expressway and two of the boulevards to the Beaches. On the South, the property fronts on ■ Gould Road, which has a width of sixty-six feet, thereby creating a rather wide buffer strip between the property under question and the property iying directly south of Gould Road.
“Approximately one-half to three-quarters of a mile west of plaintiffs’ property stands the John E. Mathews Bridge, a part of the Expressway over the St. Johns River, and said bridge during December, 1954, passed 501,408 vehicles through its tolls and in May of 1955 the volume of traffic over said bridge had increased to 581,199 vehicles. A traffic count for one hour on a normal day showed 1,164 vehicles passing in front of plaintiffs’ property on said Expressway.
“According to defendants’ Exhibit 1 the property directly in front of and across the Express Highway and extending in both directions for approximately 2000 feet from plaintiffs’ property is all zoned Business A-l, except one parcel zoned Business A. Presently located or in the process of development on aforesaid properties are filling stations, a large motel and an expansive shopping center providing parking facilities for approximately 1000 cars. Further, defendants’ Exhibit 1 and the evidence show that on the south side of the Expressway, on which plaintiffs’ property is located and directly across from plaintiffs’ property on Arlington Road a large tract was rezoned Business A in October 1954, and at the corner of Sea-brook Parkway, approximately 179 feet to the east of plaintiffs’ property two large parcels were rezoned to Business A-l in August 1952 and in March 1955, one of said parcels having presently located thereon a Howard Johnson Restaurant and the other to have situated thereon a proposed motel. The conditions affecting these two said parcels of property appear to be substantially similar to those affecting plaintiffs’ property. In fact, both of said parcels directly adjoin residential property to the south and one parcel adjoins a Lutheran Church. Both being without benefit of a buffer strip such as exists between plaintiffs’ property and the property directly south.”

Plaintiffs sought to have the property rezoned by the defendants (the Board of County Commissioners of Duval County, sitting as a Zoning Board, and the Zoning Director) from Residence A to Business A-l to bring it into harmony with the zoning classification of the other property adjoining the Expressway. The petition was denied, and the plaintiffs commenced this litigation, which resulted in detailed findings by the chancellor, who reached the following conclusion:

“That from the evidence as adduced by plaintiffs in support of their complaint herein, it appears to the Court that plaintiffs’ property is substantially useless for residential purposes; that its highest and most .economic use would be for Business A-l property' and that to rezone said property from Residence A to Business A-l would not impair or endanger the public health, safety or morals, but that said rezoning to Business A-l would be consistent with the present trend and development along the Expressway in the vicinity of the property in question and that the action of the defendants herein in denying plaintiffs’ petition for rezoning from Residence A to Business A-l was wholly arbitrary, discriminatory, confiscatory and an abuse of discretion.”

In his amended final decree, the chancellor enjoined the defendants from enforcing against the plaintiffs’ property any zoning restrictions more stringent than Business A-l use. As for the the form and effect of this final decree, questioned by the appellants herein, we may say at once that it finds a precedent in Miami Shores Village v. Bessemer Properties, Fla., 54 So.2d IOS, and no error is shown upon this ground.

The most revealing single piece of evidence in the case is Defendants’ Exhibit 1, which is a map of the area involved. We will not reproduce it here, since the findings of the chancellor, from which we have quoted, adequately describe the situation of the property involved, but we will observe that this map bears a marked similarity to that which is reproduced in the opinion prepared by Mr. Justice Thomas in Tollius v. City of Miami, Fla., 96 So.2d 122. The Tollius case is virtually dispositive of this one. The case now before us is even stronger than Tollius for that case resulted in a reversal, while under the same analysis this case will result in an affirmance of the chancellor’s final decree. Further on the merits of the case see City of Miami v. Ross, Fla., 76 So.2d 152.

We would affirm this case without further ado were it not for a point raised by appellants which merits examination. As we stated previously, the chancellor personally viewed the premises. Appellees in their notice for the taking of testimony and final hearing had stated that at such time they would move the court to view the premises, but appellants contend that they never consented to the view of the premises which the chancellor had, nor did they have notice of the same. Courts in other jurisdictions which have had an opportunity to consider this state of affairs have not been of • one mind with regard to its legal effect. See Annotation, Judges’ Findings on Personal Observation, 97 A.L.R. 335, cases cited therein and cases supplemental thereto.

In Florida, so far as we are informed, the situation has arisen only once before, in Atlantic Coast Line R. Co. v. Hendry, 112 Fla. 391, 150 So. 598. In that case, which arose from an action for negligence, the judgment of the trial court was “apparently predicated on facts acquired from a. view of the locus in quo as well as from facts brought out at the trial.” We stated that this was erroneous because the view of the premises is “for the purpose of explaining and clarifying evidence and facts brought out at the trial” but that it “cannot be employed as basis for a judgment.” We went on to state, however, that upon the whole record there was a showing of negligence resulting in damage, and we proceeded to affirm the judgment on condition of a small remittitur. Thus this court in the Hendry case was clearly of the opinion that, while basing a judgment upon a view of the premises was error, it was not reversible error provided there was evidence of record which was otherwise sufficient to support the judgment. We have examined the record in the present case and find the judgment to be adequately grounded, regardless of the chancellor’s view of the premises.

Affirmed.

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


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    Eugene M. ROBERTS, d/b/a Roberts Engineering, Appellant, v. Samuel LESSER, Appellee.
    Supreme Court of Florida.
    July 10, 1957.
    Herman Cohen, Miami, for appellant.
    Prebish & Duval, Miami, for appellee.
   ROBERTS, Justice.

This is an appeal from a final order dismissing plaintiff-appellant’s suit to foreclose a mechanic’s lien against property owned by the defendant-appellee and improved by plaintiff allegedly “at the request of Miami Lawn Sprinkler Co., Inc., the Contractor and defendant Samuel Lesser’s agent.” Upon motion of the defendant that the complaint be dismissed for failure “to state a claim upon which relief can be granted,” the lower court entered an order finding that “the Plaintiff had not contracted with the Defendant owner of the property, and * * * the Plaintiff had not served the Defendant with a Notice of Intention to Claim a Lien, as required by law, * * * ” and dismissing plaintiff’s complaint. Plaintiff has appealed.

No contention is made here by plaintiff that he was, in fact, in privity with the owner, either directly or indirectly; and the principal issue here is whether his failure to file with the owner a notice of intention to claim a lien, as provided for by Sec. 84.04(1), Fla.Stat.19S5, F.S.A., bars his suit to foreclose his Claim of Lien.

It has long been settled that a subcontractor has a valid and enforceable lien against the improved premises to the extent of, or for his proportionate part of, the unpaid balance of the contract price, even though he did not file the cautionary notice. Investors Syndicate v. Henderson, 148 Fla. 696, 6 So.2d 629. Nor will the failure to file the cautionary notice bar subcontractors from enforcing their liens “in a sum up to that portion of the contract price which was not ‘properly paid’ under the Mechanics’ Lien Law.” All State Pipe Supply Co. v. McNair, Fla.1956, 89 So.2d 774, 776.

Since the right of the subcontractor to enforce his lien in this situation must, however, depend upon there being either an unpaid balance of the contract price in the owner’s hands or, if not, on the fact that payments were “improperly made” by the owner to the contractor, it would appear that in order to state a cause of action against the owner appropriate allegations to this effect should be made. See Flamingo Apartments, Inc., v. Paintrite Co., Inc., Fla.1950, 48 So.2d 523, holding that where the complaint failed to show that any amounts were due on the general contract by the owner to the general contractor, the complaint of a subcontractor not in privity with the owner should have been dismissed.

No such allegations having been made by plaintiff, it was not error to dismiss his complaint and the order appealed from is affirmed without prejudice to the right of the plaintiff to amend his complaint, if he be so advised.

Affirmed without prejudice.

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