author: KANNER, Chief Judge.

text:
    George Johnston TAYLOR, Appellant, v. Jim Tom TAYLOR, Appellee.
    No. 18.
    District Court of Appeal of Florida. Second District.
    Sept. 18, 1957.

      Calhoun, Killian, Miller & Sloane, Tampa, for appellant.
    Harry M. Hobbs, Tampa, for appellee.
   KANNER, Chief Judge.

Final decree of divorce was entered in favor of the appellee against the appellant in October, 1952, and incorporated therein was agreement of the parties that appellant pay the monthly sum of three hundred dollars to the appellee for alimony and support of their four minor children. Judgment for past due support payments was entered on rule to show cause. The appeal is from this judgment.

The question emanating from this appeal is whether the rule requiring appellant to appear to show cause why he should not be held in contempt for violation of final decree of divorce is reasonable notice, sufficient to authorize reduction to judgment by the court of back support payments and authorization of execution to issue therefor.

On June 1, 1956, appellee petitioned for rule to show cause, alleging appellant was $5,027.90 in arrears, asking for rule ordering him to pay such sum or to appear and show cause why he should not be held in contempt and punished by being confined in the county jail. Rule issued and was served on appellant, ordering him to appear before the chancellor on June 12, 1956, “to show cause why you should not be held in contempt of this court and punished by being confined in the County jail.” Ap-pellee’s attorney gave appellant notice of hearing before the chancellor on the petition for June 19, 1956. The parties were both before the court at that time, and testimony, unrecorded, was heard. On August 7, 1956, the chancellor entered judgment against the appellant for the past due support payments, authorizing the issuance of execution on the judgment.

It is the appellant’s position that the rule to show cause was not proper notice in that it was not sufficient to apprise appellant that the hearing was for the purpose of reducing the back alimony and support payments to a money judgment, but rather that his purpose for being in court was to show whether he had good reason for not obeying the court order and why he should not be adjudged in contempt; and that thus he was misled to his prejudice.

The rule to show cause proceeding here is not an original one, but a continuation of the divorce proceeding. Under rule to show cause seeking the enforcment of alimony or support payments under final decree of divorce, an essential question involved is what the arrearage is, if any. If the court had adjudged appellant in contempt, the contempt order would have fixed a definite sentence of punishment with the alternative that appellant be allowed to purge himself by payment of the sum found to be in arrears. So appellant was on notice that he was confronted with the issue of arrearage in payment. He and appellee were personally before the court, with testimony being given, and he had the right to combat that issue. And, by virtue of the very nature of the proceeding, it was necessary for the court to determine whether or not there was an arrearage and, if so, the amount. It follows that the appellant was not misled to his prejudice and that the chancellor acted within his province in adopting the method that he did in resolving the controversy. See the case of Gaffny v. Gaffny, 129 Fla. 172, 176 So. 68.

The judgment of the court below is affirmed.

PLEUS and ALLEN, JL, concur.


source: Caselaw Access Project

license: Public Domain

text:
    Roy HICKMAN, Appellant, v. STATE of Florida, Appellee.
    No. 15.
    District Court of Appeal of Florida. Second District.
    Sept. 18, 1957.
    Branch & Goff and Taitón Branch, Tampa, for appellant.
    Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.
   KANNER, Chief Judge.

The appellant in this case, contending that the evidence did not sustain the charge under which he was convicted, offers two bases of error for reversal of his conviction of the offense of attempted unlawful carnal intercourse with an unmarried female under the age of eighteen of previous chaste character.

There are four material elements that compose the criminal offense of having unlawful carnal intercourse with an unmarried person of previous chaste character under the age of eighteen years; (1) unlawful carnal intercourse, (2) that the person be unmarried at the time of the carnal intercourse, (3) that the person be of previous chaste character, and (4) that the person be under the age of eighteen years. See section 794.05, Florida Statutes, F.S.A.; State v. Bowden, 154 Fla. 511, 18 So.2d 478; and Lowe v. State, 154 Fla. 730, 19 So.2d 106.

From the statute governing attempts to commit criminal offenses and the statute making it unlawful to have carnal intercourse with a person of previous chaste character under the age of eighteen years, attempt to have such intercourse is a crime. See section 776.04, (2) Florida Statutes, F.S.A.; and Alford v. State, 132 Fla. 624, 181 So. 839.

The first basis of error cited by the appellant contends that previous chastity of the alleged victim was not sufficiently established. Save for the purpose of showing the background of the testimony concerning previous chaste character as it throws light on the second basis of error, we will concern ourselves only with the second basis of error relating to the exclusion of testimony about a specific instance tending to show unchaste character on the part of the girl involved.

The State relies chiefly, as a basis for the girl’s prior chastity, on the testimony of a doctor doing residency training in obstetrics and gynecology at a Tampa hospital, who examined the girl following the incident here involved and gave opinion testimony that her virginity was at the time intact. The girl herself did not testify.

Defense testimony concerning the girl’s prior chastity was given by the mother of the girl, wife of the appellant, who testified as to an instance wherein she found her daughter in bed with a soldier, examined her, and found evidence of unchaste conduct. Another defense witness, neighbor of the parties concerned, testified that the general reputation of the girl for virtue, for gdod morals in the neighborhood was “bad”.. The defense then further attempted to question this witness concerning a specific act;which he had witnessed evidencing unchaétity on the part of the girl. This testimony, which was excluded from the jury, related to an instance wherein the witness called at the home of the parties concerned, found the front door closed, the mother and step-father absent from home, entered the house without knocking, and saw the girl covered up in bed with a man with whom this witness was also acquainted, who, in fact, went into the navy with his own son. He fixed the place, he fixed the time of the incident, and that the incident occurred prior to the act here charged against the appellant.

In an unlawful intercourse case, Dallas v. State, 76 Fla. 358, 79 So. 690, 3 A.L.R. 1457, the Superme Court, speaking of “previous chaste character”, had this to say:

“Where, as in this case, the previous chaste character of the prosecutrix is a material fact to be proven beyond a reasonable doubt, it is proper for the defendant, when the state has met the requirement, to introduce evidence that the prosecutrix had, prior to the alleged act of carnal intercourse with the defendant associated with persons of low morals, conducted herself in a free and intimate manner with men, or permitted them to take liberties with her.”

And in the same case there were certain assignments of error relating to the refusal of the trial judge to permit the defendant to introduce testimony to prove acts on the part of the prosecuting witness that would tend to show lack of chastity or affect her character for chastity. The Court then said:

“ * * * The questions which form the basis of the eighth and ninth assignments were:
“ ‘Q. Have you ever seen this girl in any act of familiarity with any man in the last six months?’ ‘Q. Have you seen this girl Sallie France sitting in the lap of any man during February or March of this year?’
“The last question is in the assignment of errors, but is not in the bill of exceptions, and therefore it cannot be considered by this court except as indicating what should be done on another trial if this evidence should be offered.
“The prosecutrix testified to her previous chaste character, and the testimony sought to be adduced by these questions was proper as tending to show a lack of chastity on her part, or as affecting her character for chastity.”

So the act of being alone in a house covered up in bed with a man was material evidence and should have been admitted as part of appellant’s defense to be considered in establishing lack of prior chastity. This witness had no kinship to the parties involved as did the mother of the girl, wife of the appellant, who testified as to a similar incident. The act he sought to testify to was one which he personally witnessed and which could definitely affect the girl’s previous chastity.

Previous chaste character as contemplated by the statute cannot be presumed and must be proved beyond and to the exclusion of every reasonable doubt. The only basis upon which the appellant here sought to defend himself was lack of previous chastity of the girl, and the excluded testimony could have been crucial. But whether or not the jury might have been affected by it, the appellant had a right to present all relevant testimony which would bear on the girl’s previous chastity, and the jury had a right to be apprised of it for weighing and evaluating as to worth and reliability.

Judgment of trial court is reversed for new trial.

PLEUS and ALLEN, JJ., concur.


author: PLEUS, Judge.

text:
    Betty Jo LASHUA, Individually and as natural Guardian for Edward Otto Stemple, Barbara Lou Stemple and Susan Carol Stemple, Appellant, v. Richard A. COOPER, as Executor of the Estate of Edward C. Meyer, deceased, et al., Appellees.
    No. 8.
    District Court of Appeal of Florida. Second District.
    Sept. 18, 1957.

      William Seaver, Dade City, and Kenneth Barnes and Eric Wagner, Dade City, for appellant.
    Sam Y. Allgood, Jr., and Otis B. Russell, Jr., New Port Richey, and James Altman, New Port Richey, for appellees.
   PLEUS, Judge.

By amended complaint in the court below appellant, individually and as natural guardian for her three minor children, sought a decree adjudging that one Edward C. Meyer and Lillian Stemple Meyer, both deceased, ,had entered into a contract under the terms of which they had agreed to execute mutual and reciprocal wills; and to enforce said contract on behalf of plaintiff and her said children as third party beneficiaries by declaring subsequent wills of Edward C. Meyer null and of no effect and requiring distribution of his estate in accordance with the provisions of the alleged mutual and reciprocal will dated April 22, 1952 and imposing a trust upon all of his estate so as to enforce such distribution.

Testimony was taken directly by the chancellor except for the depositions of two witnesses and upon conclusion the chancellor wrote an able opinion finding that the evidence on behalf of plaintiffs had not met the test of “clear and convincing proof” as required in such cases and he thereupon entered final decree dismissing the cause with prejudice. From such final decree this appeal was taken by plaintiff.

The decision of the Supreme Court in Simpson v. Ivey, Fla.1953, 67 So.2d 687, is conclusive. It will serve no useful purpose to pass upon numerous assignments of error having to do with the admissibility of certain evidence as violating the hearsay rule or in contravention of the so called “Dead Man’s Statute”, Section 90.05, Florida Statutes 1955, F.S.A. Nor will any useful purpose be served by detailing the testimony. The caution with which a court should receive oral testimony concerning declarations or statements of a testator since deceased; the scrutiny which must be exercised in analyzing such statements when made in the course of loose or casual conversations; and the care necessary to distinguish between words constituting a binding contract and a mere expression of intention were all brought to bear by the chancellor and he was not convinced that sufficient positive facts had been shown to take the matter out of the realm of conjecture and presumption. A most careful reading and analysis of the record convinces us that he was correct and we therefore affirm.

Affirmed.

KANNER, C. J., and ALLEN, J., concur.


text:
    Olga CULLARO, Appellant, v. STATE of Florida, Appellee.
    No. 7.
    District Court of Appeal of Florida. Second District.
    Sept. 18, 1957.

      Carl G. Swanson, Jacksonville, for appellant.
    Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.
   KANNER, Chief Judge.

This is an appeal from the judgment of the Criminal Court of Record, Hillsbor-ough County, wherein appellant was found " guilty of murder in the second degree for the fatal shooting of her husband.

Appellant bases her appeal upon five points which probe the questions for reversible error on the part of the lower court with reference to the admissibility of her confession, and of a photograph of the deceased, and of denial by the court of requested instructions relating to the defenses of self-defense and accident.

The first point questions the propriety of the court’s ruling admitting into evidence confession of the appellant, contending that it was made at a time when she was “hysterical” and “not normal”. Testimony reveals that there was some crying, wringing of hands, nervousness, and excitement exhibited by appellant at the hospital when the decedent died, but that about an hour to an hour and fifteen minutes later when she made her confession, she exhibited only a slight display of nervousness such as she later evidenced in the courtroom during the course of the trial, as demonstrated by the following questions and answers, Tr. 33:

“By the Court:
“Q. Was she acting like she is now? A. Something similar, yes, sir.
“By Mr. Fisher:
“Q. Would you say that Mrs. Cul-laro was merely normal at the time you questioned her? A. Other than being slightly nervous, she was. She wasn’t—I couldn’t say that she was any more nervous than she is at the present time.”

Proof does not evidence such a condition of hysteria as to show that appellant was in such a state of mind as to be bereft of her powers of comprehension at the time she made her confession, but rather the condition described obviously stemmed from the natural emotional reaction which came with distressful realization of the irrevocable result of her deed. The evidence as to the confession was offered through police officers and established that appellant was possessed of her faculties so that she understood the nature and effect of her statements.

A confession should not be rejected because it was made under excitement or mental distress or disturbance not induced by extraneous pressure exerted to compel a confession, but which arose from the confessor’s own apprehensions due to the situation in which he found himself. See 20 Am.Jur., section 523, p. 448. It is stated in the same section, “The rule generally prevailing is that the admissibility or voluntary character of a confession is not affected by the fact that the accused was not in full possession of his faculties at the time his confession was made, although such circumstance is to be taken into consideration by the jury in weighing the evidence.”

The trial court exercised prudence and caution in determining the admissibility of the confession. He required a preliminary investigation in the absence of the jury; he further required that proper predicate be laid, that the confession was freely and voluntarily made, uninfluenced by any threat, promise, fear, hope, or other illegal inducements. See Nickels v. State, 90 Fla. 659, 106 So. 479; and Morris v. State, 100 Fla. 850, 130 So. 582

The next two questions posed by appellant as bases for this appeal inquire (2) whether it was proper for the court to have admitted into evidence a gory photograph of the deceased taken in the morgue after the body had been altered and proved no fact not already proved, and (3) whether it was proper for the court to have admitted into evidence a bloody and gory photograph so ghastly as to prejudice and bias anyone looking at it.

As to question number two, the photograph was taken, on the contrary, not at the morgue but by a police officer at the hospital where decedent died; the body itself was not altered, but before death decedent was removed to the hospital by the appellant, where efforts could be made to save his life. Under such situation, it could not be expected that photograph of the decedent be taken before his death at the scene where the shooting occurred. As to question number three, the photograph could not be termed “gory”. It does not depict any pools of blood; there is no display of murderous weapons, no grotesque positions, no mutilations of the body except the single bullet wound. The photograph shows decedent lying on a hospital operating table with the point of entry of the bullet into his body being visible. The photograph was introduced to show the jury the point where the bullet penetrated deceased’s body and also to demonstrate that the shot was fired from such a distance as to refute claim of powder burns such as might have appeared if the shooting had occurred in the close confines of a struggle as claimed by the appellant. The bases for error sought under the second and third questions are not tenable. A photograph shown to be a correct representation of a physical object as to which testimony is adduced, may be admitted in evidence for the use of witnesses in explaining their testimony and to enable the jury to understand the case more perfectly. See Ortiz v. State, 30 Fla. 256, 11, So. 611; and Sanford v. State, 90 Fla. 337, 106 So. 406. The trial court, nonetheless, acted within bounds consistent with the principle with reference to admissibility of photographs of a dead body and of photographs portraying a gruesome scene as laid down in the cases of Mardorff v. State, 143 Fla. 64, 196 So. 625; and Thomas v. State, Fla., 59 So.2d 517. Moreover, any error in admission of deceased’s photograph in that the photograph may have been so gruesome or hideous as to arouse passion of jury was harmless where there was ample evidence aside from the photograph to support defendant’s conviction for second-degree murder. See Webb v. State, Fla., 62 So.2d 410. The evidence is ample to support the verdict.

Appellant’s question four relating to the denial by the trial court of the requested charge of self-defense was answered in appellant’s own testimony, Tr. p. 137:

“Q. There is no self-defense in it at all? A. No, sir, there is no self-defense at all.”

Question five inquires whether the court erred in denying the requested charge of accidental homicide. Her requested instruction was adequately covered and the jury fairly informed by the instruction on accident given by the trial court.

The judgment of the court below is affirmed.

PLEUS and ALLEN, JJ., concur.


author: ALLEN, Judge.

text:
    Iva J. ANDREWS and Harry J. Andrews, Appellants, v. Jesus CARDOSA and Neal M. Cardosa, Appellees.
    No. 1.
    District Court of Appeal of Florida. Second District.
    Sept. 18, 1957.

      Brown, Brown & Corcoran, Tampa, and Buckley & Bland, Ft. Lauderdale, for appellants.
    MacFarlane, Ferguson, Allison & Kelly, C. F. Clark, Tampa, for appellees.
   ALLEN, Judge.

This appeal is to review a final judgment for the appellants, who were plaintiffs below, entered by the Circuit Court of Hills-borough County, Florida. The plaintiffs sued the defendants, appellees here, for damages resulting from a collision between an automobile owned and operated by appellant, Iva J. Andrews, and in which she and her husband, Harry J. Andrews, were riding, and a truck owned by appellees. The appellees’ Answer denied negligence and averred contributory negligence, but at the trial appellees admitted liability and the sole question became the amount of the damages to the plaintiffs.

The jury returned a verdict of $2,000 for appellant, Iva J. Andrews, and $500 for her husband, appellant, Harry J. Andrews. Judgment was entered on the verdict and the appellants moved for a new trial on the following grounds:

The verdict is contrary to the evidence in that it is grossly inadequate; the trial judge erred in denying appellants’ counsel the right to make an opening statement to the jury at the beginning of the trial (confined him to reading complaint) ; the trial judge erred in denying appellants permission to use a blackboard for the purpose of illustrating their final argument to the jury; the trial judge erred in denying appellants permission, at the time of their final argument, to have the jury supplied with paper and pencils for making notes; the trial judge erred in making remarks allegedly critical of appellants’ out-of-town counsel to the effect that things were not done in said court as he was doing them, and the trial judge erred in refusing to permit appellants to present rebuttal testimony.

The motion for a new trial was denied and this appeal followed, appellants assigning as error the denial of their motion for a new trial.

This court is of the opinion that the judgment of the lower court should be affirmed.

Two questions arise on this appeal: 1. Was the verdict in favor of the plaintiffs grossly inadequate? 2. Did the lower court err from a procedural standpoint in denying appellants the right to make an opening statement, the right to use rebuttal testimony, the use of a blackboard, paper and pencils for the jury, and in remarking to the attorney for the plaintiff that “you may try law suits that way on the lower East Coast but we don’t do that way over here”?

The remarks of the trial judge above referred to were evidently based on the request of plaintiffs’ counsel, who were from Ft. Lauderdale, for permission to use a blackboard, to give the jurors pencils and paper, to use a medical chart, and for other procedural privileges. We cannot say from the record in this case that such remarks constituted prejudicial error.

The denial of the court to permit the plaintiffs to use a witness in rebuttal cannot be held an error in view of the minutes of the .court which show that both the plaintiffs and the defendants had rested their case the previous day of trial and no proffer of the evidence which the plaintiffs desired to put in the record was made. Therefore, it is impossible for this court to determine whether the refusal of the lower court was prejudicial.

The denial by the trial judge of the request of plaintiffs’ counsel to use a blackboard during final argument for the purpose of illustrating numerous items of damage to the jury, and to give the jury pads of paper and pencils for the purpose of making notes, rested in the sound discretion of the trial judge.

This Court, in affirming this case, does not necessarily hold that the procedural methods used by the able judge below as to the use of the blackboard and the like should be followed by other trial judges, but that such procedure was in the sound discretion of the trial judge here and no prejudice appears in the record.

The appellants forcibly argue that the jury’s verdict of $2,000 for Mrs. Andrews and $500 for her husband was grossly inadequate and that the lower court should have set aside the verdict for this reason.

All of the testimony adduced during the trial related to damages, as liability was admitted by the defendants. The verdict of the jury was inadequate had the jury accepted the testimony of the plaintiffs’ witnesses, but the defendants’ witnesses minimized the testimony offered by the plaintiffs.

The plaintiffs claimed damages for loss of a six year old Buick, for loss of a muskrat coat that was several years old and for personal injury and expenses.

Plaintiff testified that she was injured by the automobile accident of December, 1951, which was the basis of this suit. The most serious injury claimed by the plaintiff was to her back.

A series of accidents happened to the plaintiff between the time of her injury from the collision in December, 1951 and the trial of this cause. She suffered a fracture of the wrist as a result of a fall in May, 1952; an injury to her lower back as a result of picking up a large box of apples in February, 1954, for which compensation was paid and whirlpool and physical therapy treatment given for a period of two months; an injury to her side and abdomen as a result of lifting jars while employed at the Escape Hotel, for which compensation was given; and a fracture of the humerus which resulted from a fall October, 1955. These injuries incapacitated the plaintiff for various periods of time. In addition, her physician testified that she had existing arthritis before the collision in question.

The jury could have concluded from the testimony of the defendants’ witnesses that she had a back injury prior to the time of the collision with the defendants’ car, and that if this injury had been aggravated, the aggravation could have been caused by one or more of the other injuries which she had received rather than by the automobile collision.

The entire record in this cause has been carefully reviewed and considered and we find that there was adequate basis upon which the jury could have arrived at the conclusion reached in this case. The test is not what an Appellate Court would hare decided had they tried the case, but whether or not they can say, after viewing the case, that the jury as reasonable men could not have found the verdict which they did. Merchants’ Transport Co. v. Daniel, 109 Fla. 496, 149 So. 401; Parrish v. Clark, 107 Fla. 598, 145 So. 848.

We, therefore, hold that the factual dispute as to the amount of damages due the plaintiffs was properly resolved by the jurors.

The judgment of the lower court is hereby affirmed.

KANNER, C. J., and PLEUS, J., concur.


author: PER CURIAM.

text:
    Ethel LITT, as Executrix of the Estate of Lizzie Litt, Deceased, Appellant, v. Ralph JARSON and Helen Jarson, Appellees.
    No. 57-122.
    District Court of Appeal of Florida. Third District.
    Sept. 17, 1957.
    Rehearing Denied Oct. 11, 1957.
    Rosenhouse & Rosenhouse, Miami, for appellant.
    Donald N. Glazier, Miami, for appellees.
   PER CURIAM.

The summary final judgment for the defendant appealed from was entered at pretrial conference upon the express ground that the doctrine of res judicata applied to all of the issues raised in this case. The issues presented by the appellant for review here were either tried and determined, or opportunity for such trial was afforded in cause No. 64648, in the Civil Court of Record in and for Dade County, Florida. This latter cause was regularly appealed and affirmed. There must be an end to litigation. Mattair v. Card, 19 Fla. 455; Hay v. Salisbury, 92 Fla. 446, 109 So. 617.

Affirmed.

CARROLL, CHAS., C. J., and HORTON and PEARSON, JJ., concur.


text:
    Jay CRESWELL and Alice Creswell, his wife, Appellants, v. WEST CONSTRUCTION COMPANY, Inc., Appellee.
    No. 10.
    District Court of Appeal of Florida. Second District.
    Sept. 18, 1957.
    Rehearing Denied Oct. 8, 1957.
    Frank A. Taylor, Orlando, for appellants.
    Charles E. Davis (of Fishback, Williams, Davis & Dominick), Orlando, for appellee.
   PER CURIAM.

We have examined the record and the briefs of counsel in this cause and heard oral argument at the bar of this court. It is apparent to the court upon perusal of the record that the general master to whom the case had been referred, based his findings upon conflicting evidence. An experienced chancellor reviewed the record and found that the master’s conclusions and recommendations were substantially supported in the record, and which were adopted by the court and made a part of the final decree by reference. We follow the rule that the decision of the court below, based upo'n conflicting evidence, will not be disturbed unless clearly shown to be erroneous. See Peterson v. Hancock, 1941, 146 Fla. 410, 1 So.2d 255; Loew v. Friedman, Fla.1955, 80 So.2d,672.

We find no reversible error in the record and therefore conclude that the case should be, and it is hereby, affirmed.

KANNER, C. J., and PLEUS and ALLEN, JJ., concur.


text:
    CITY OF FT. LAUDERDALE, Appellant, v. LAUDERDALE INDUSTRIAL SITES, Inc., et al., Appellees.
    No. 16.
    District Court of Appeal of Florida. Second District.
    Sept. 18, 1957.

      Julian E. Ross and Donald Norman, Ft. Lauderdale, for appellant.
    Cabot & Cabot, Ft. Lauderdale, Saunders, Curtis, Ginestra & Gore, Ft. Lauderdale, Schwarz & Zinn, Bart L. Cohen, Miami, Russell L. Frink, Jacksonville, for appellees.
   ALLEN, Judge.

This appeal is to review a final decree in which the lower court held that the City of Ft. Lauderdale, defendant below, was estopped from enforcing zoning ordinance No. C-1153 against the appellees upon the grounds of equitable estoppel.

The action was initiated by an action for a declaratory judgment brought by Lauderdale Industrial Sites, Inc., against the City of Ft. Lauderdale et al., in which it was alleged that the plaintiff owned certain described property which, on the 19th of April, 1955, was rezoned from multiple family dwellings (R-3) to light manufacturing or industrial plants (B-3 district), that in reliance on this ordinance the plaintiff entered into a contract with the City of Ft. Lauderdale, John W. Martin, as Trustee of the Florida East Coast Railroad and the Vreelands, and that the contract and ordinance were considered and dealt with simultaneously. As a part of the contract the plaintiff executed and delivered to the City of Ft. Lauderdale a deed of certain of this property for the purpose of widening N. E. 15th Street along the northern boundary of the property.

The plaintiff further alleged that it had expended large sums of money in the preparation of engineering plans and in negotiating with prospective tenants, etc.; that on July 26, 1955, the city passed ordinance No. C-1153 which repealed ordinance No. C-1118 and rezoned the lands except the east 300 feet thereof, back to R-3 from B-3.

The Final Decree of the Circuit Judge held that the City of Ft. Lauderdale was equitably estopped from enforcing the provisions of ordinance No. C-1153 against the plaintiff because of its actions and representations to the plaintiff, which resulted in plaintiff’s expending substantial sums of money in furtherance of the plaintiff’s planned operation and giving right-of-way deeds and easement to the city, which were accepted.

The court further stated in its Decree in paragraph d:

“Either of the ordinances in question would be valid zoning and within the discretionary powers enjoyed by the City, in the absence of special equities, and the court will surely not substitute its judgment for that of the city as concerns zoning except to protect the constitutional rights of a land owner. [City of Miami Beach v. Hogan, Fla.], 63 So.2d 493. Specifically, the city may not actively participate in a procedure which results in a land-owner acting to his detriment in reliance upon a then subsisting zoning ordinance and then, arbitrarily and with knowledge of the land-owner’s predicament, enact a new ordinance barring the land-owner’s proposed use when such change is not supported by the substantial demands of public policy, and this even though the new or changed ordinance, standing alone, would ordinarily be deemed valid zoning according to the usual criteria.”

It is generally held that a municipality may be estopped by its conduct as well as a private corporation, although many jurisdictions limit the application of the doctrine. For instance, McQuillin, Municipal Corporations, 3d Edition, Vol. 6, Section 20.13 states:

“* * * Nevertheless, it has been said, as a usual thing, the doctrine of equitable estoppel cannot be invoked against a municipal corporation as to the exercise of governmental functions, but exceptions are to be made and, where right and justice demand it, the doctrine will be held to apply, particularly where the controversy is between one class of the public and another class thereof. Generally, estop-pel will not be applied to prevent or hinder the exercise of governmental functions.”

Judge Dillon in his work on Municipal Corporations, 5th Edition, Vol. 3, at paragraph 1191, page 1893, says:

"Although the Courts of Illinois do not permit rights to be acquired in city streets and public places by mere adverse possession, yet they have frequently held that the doctrine of estoppel in pais is applicable to municipal corporations and that they will be estopped as justice and right may require; that there may be cases where under all the circumstances, to assert a public right would be to encourage and promote a fraud, a9 where a party acting in good faith under affirmative acts of a city has made such expensive and permanent improvements that it would be highly inequitable and unjust to destroy the rights acquired.
“Under such circumstances, the doctrine of equitable estoppel will be applied.”

The Florida Supreme Court in the case of Texas Company v. Town of Miami Springs, Fla.1950, 44 So.2d 808, held that where an oil company, before purchasing two lots in town for a gasoline service station, submitted plans to the town for the proposed stations and received permits to construct them, and the company then purchased the two lots and thereafter permits were renewed by Miami Springs, but one month after the renewal an emergency ordinance was passed forbidding the erection of a service station within 850 feet of another station, that the town was estopped to enforce such ordinance against the oil company.

In the case of Sharrow v. City of Dania, Fla.1955, 83 So.2d 274, 275, the Circuit Judge held that property owners had actual or constructive knowledge of a pending ordinance requiring any buildings erected on property in a certain zone to be set back 6 feet from the property line at time the property owner applied and was granted a building permit. On appeal, the Supreme Court held that the doctrine of equitable estoppel under the facts of the case could not be applied.

From the decision of the Court the following facts appear: On October 19, 1953, the city passed on first reading an ordinance requiring a 6 foot setback on a street known as Federal Highway. Subsequently, a permit was issued to the Sharrows to construct a building based on plans which did not provide for a setback and the permit ' authorized the building to be constructed to the property-line. The setback ordinance wás adopted November 16, 1953. On November 5th the Sharrows were notified that the permit was revoked. Between October 31 and 'November 5, the Sharrows surveyed the plot for a building; steel was ordered and delivered, lumber purchased and other expenses incurred.

In its opinion, the Court said:

“The passage of a ‘set-back’ ordinance involves an exercise of the police power of a municipality. Admittedly, rights of property are protected by constitutional guarantees. This protection, however, cannot be extended to mean that the use of property cannot be properly regulated under the police power in the interest of the general welfare. The possession and enjoyment of all rights and property are subject to the valid exercise of the police power which is an aspect of sovereignty and all persons and property are subject to restraints and burdens necessary to secure the comfort, welfare and safety of the public. * * * In the instant case, therefore, if rights to the permit became vested, such vesting was subject to the warning evidenced by the ordinance pending on first reading and, therefore, subject to the ultimately completed exercise of the police power which was signaled by the pending ordinance.
“This is not a case of sudden, unexpected, arbitrary action by the public officials. Here the permittee was fully on notice that the City was proceeding to exercise its police power which ultimately emerged in the adoption of the ordinance on the third reading. See Bregar v. Britton, Fla.1954, 75 So.2d 753, and Texas Co. v. Town of Miami Springs, Fla.1950, 44 So.2d 808. In the cases last cited we held that under appropriate circumstances the doctrine of equitable estoppel may be applied against a municipality but as pointed out in Bregar v. Britton, supra, such cases are not to be compared with those similar to the one' at bar where the party claiming to have been injured by relying upon a!n official determination had good reason' to believe before or while acting to his detriment that the official mind would soon change! See also Miami Shores Village v. Wm. N. Brockway Post, 156 Fla. 673, 24 So.2d 33. There is no attack on the ordinance as being unreasonably discriminatory against the appellants as compared to others similarly conditioned.”

In the case of Miami Shores Village v. Wm. N. Brockway Post 124, 156 Fla. 673, 24 So.2d 33, 35, the Florida Supreme Court held that where approximately six weeks intervened between the issuance of a building permit and the time the permittees started to build and during such interim a municipal campaign was carried on based upon the ordinance in question and candidates favoring the repeal of the ordinance were elected and immediately adopted an ordinance revoking the permit, the village was not barred by equitable estoppel from revoking the permit.

In the above case a Legion Post signed an option agreement to acquire certain real estate within the municipality, the use of which was restricted by ordinance to residential purposes, an application was made to the village council for the adoption of an ordinance so the property would be rezoned to permit the erection of an American Legion home. Ordinance No. 140 for making this change was adopted May 8, 1945.

Shortly after the issuance of the permit, the Legion Post employed construction engineers to prepare plans and specifications; excavations were made for the foundations, materials were purchased and obligations for the cost of construction were outstanding on June 21, 1945, the date the village council revoked the permit previously issued.

The doctrine of equitable estoppel was asserted by the Legion Post and the municipality claimed that the doctrine was not applicable, that political candidates were brought out immediately pledged to the repeal of Ordinance No. 140, and literature Avas distributed disapproving the said Ordinance, that the newly elected members took office June 21, 1945, and immediately rescinded the Ordinance in question. The Court in its decision said:

“Despite the storm warnings and red light signals of disapproval of the issuance of the permit which appeared and were shown by the people of the municipality from about the date of the issuance, and existed continuously until the date of excavation and the pouring of concrete, the respondents earnestly contend that they acquired vested rights in the premises protected by our fundamental law and the doctrine of equitable estoppel appears on the record and should be applied to the municipality ; that the arbitrary action of the Council of the Village in enacting Ordinance No. 144, which revoked or cancelled the permit, is not a legitimate exercise of the police power conferred by the charter on the municipality.'
* $ H< $ * *
“Approximately 6 weeks intervened between the date of the issuance of the permit and the pouring of the concrete. Within the municipality during the interim a hot municipal campaign was on and the issue was the defeat of the Councilmen voting for Ordinance No. 140, which authorized the permit. The candidates favoring repeal of the ordinance were elected and immediately adopted Ordinance No. 144. It would appear childish to assert that the per-mittees were without knowledge of these undisputed facts and for the respondents to wholly disregard them and simultaneously incur financial obligations incidental to the construction of the building under the questioned permit, shows that they acted while red flags were flying and cannot complain of lack of notice. The newly elected Councilmen, under the police power of the Charter and in the light of our above cited cases, had and possessed the lawful right and authority to enact Ordinance No. 144.”

In the case of Bregar v. Britton, Fla. 1954, 75 So.2d 753, 755, the Supreme Court of Florida held that a Board of County Commissioners’ rescission of its resolution, changing the classification of certain land from agricultural zone to a zone permitting the construction of a drive-in theatre was illegal and void under the principles of equitable estoppel where the owner of the land had made large expenditures in preparing the land for construction of the theatre and in buying sound equipment and accessories in reliance on the Board’s action in changing the zone from an agricultural to a business zone.

The Court in its decision said:

“Considering some of the facts which would have bearing upon the constitutionality of the original ‘A’ classification in this case, namely, the proximity to the property in question of the heavily traveled highway and the property zoned for business, it would seem that the case is quite close to Miami Shores Village v. Bessemer Properties, Fla., 54 So.2d 108, in which we affirmed an order of the chancellor holding a zoning ordinance unconstitutional. We find it unnecessary to decide whether the Bessemer case is controlling, however, because we are of the opinion that the action of the defendant zoning authorities on November 13, 1952, purporting to rescind the earlier resolution classifying plaintiff’s property as ‘C-2’, was illegal and void under the principles of equitable es-toppel as applied by this court in Texas Co. v. Town of Miami Springs, Fla., 44 So.2d 808. The cases of Gross v. City of Miami, Fla., 62 So.2d 418 and Miami Shores Village v. Wm. N. Brockway Post, 156 Fla. 673, 24 So.2d 33, are clearly distinguishable from the case at bar in that it affirmatively appeared in both of the cited cases that the party claiming to have been injured by his action in reliance upon an official determination had good reason to believe, before or while acting to his detriment, that the official mind would soon change, as it did. The record discloses no such fact in the case before us.”

The case of Bregar v. Britton, supra, distinguishes the Florida cases where equitable estoppel is claimed into two groups. One in which the property owner in reliance upon the action of the municipal authorities in changing a zoning classification acted to his detriment without actual or constructive knowledge that the municipal authorities might change the zoning classifications. The other line of cases are exemplified by Gross v. City of Miami, Fla. 1953, 62 So.2d 418 and Miami Shores Village v. Wm. N. Brockway Post, 156 Fla. 673, 24 So.2d 33, in which the property owner was put on notice or should have been, by facts which he noticed or should have noticed, that he should not rely on the municipal authorities not to reclassify his property.

In the case of City of Miami Beach v. 8701 Collins Ave., Inc., Fla.1954, 77 So.2d 428, 430, decided December 17, 1954, the Supreme Court in an opinion by Associate Justice Murphree said:

“This Court has never gone so far as to hold that a City will be estopped to enforce an amendment to a zoning ordinance merely because a party detrimentally alters his position upon the chance and in the faith that no change in the zoning regulations will occur. It is our view that such a doctrine would be an unwise restraint upon the police power of the government. All that one who plans to use his property in accordance with existing zoning regulations is entitled to assume is that such regulations will not be altered to his detriment, unless the change bears a substantial relation to the health, morals, welfare or safety of the public. See author’s comments and cases cited in 138 A.L.R. 500 (II).”

It is generally held that estoppel will not be applied to prevent or hinder the exercise of municipal functions although exceptions are to be made where right and justice demand it. See McQuillin—Municipal Corporations, 3d Edition, Vol. 6, Sec. 20.13.

Under the facts as set forth in this record, is the City of Ft. Lauderdale equitably estopped from enforcing the provisions of its Ordinance No. C-1153 against the plaintiff below, appellee here? The record discloses that the passage of Ordinance No. C-1118 which changed the property of the plaintiffs from residence to light manufacturing usage, became an issue in the municipal campaign, which returned a City Commission pledged to change or at least to reopen the zoning decision with reference to the plaintiffs’ property. The new Commission immediately upon taking office, referred this matter to the planning and zoning board for their recommendation. The plaintiffs failed to show any application for building permit, any construction on the property in question, and admitted knowledge of the impending change in zoning status; and that they were apprehensive of such a change.

Marion W. Ramsey, Vice-President of the plaintiff, testified as follows (See appellant’s appendix page 31):

“Q. Then did you continue your plans to develop this area? A. Yes, sir. We continued our plans to develop it. We very shortly ran into a situation that gave us some qualms in the matter, because, I believe shortly ■•after the execution of this contract there was a change in the City administration here and it was made quite ■clear to us that they would repeal or •take some action and we were very Resitant to go to the type of people we were working with on this matter on the proposition they proceed with warehouse plans and specifications, knowing that the thing would get into litigation.
“Q. Was a new Commission elected in April or May? A. I don’t recall. It was shortly after the execution of the contract, in May, I believe.”

The above testimony of the Vice-President •of the plaintiff and subsequent testimony which he gave shows that at the time of the passage of the first Ordinance No. C-1118, on April 19, 19SS, and the passage of the second Ordinance July 26, 1955, No'. C-1153, there was continuous agitation, political campaigns and action taken by the new Commission, which did or should have put the plaintiff on notice that it would be proceeding at its peril in relying on the zoning change made by Ordinance No. C-1118.

The record shows that Ordinance No. C-1118 was passed April 19, 1955, that such Ordinance became a political issue in the election of candidates to the Commission, which election was then in process; that the new City Commission took office early in May and immediately referred the matter of the rezoning to its planning and zoning board. That on June 14, 1955, this Board recommended changing the zoning back to residential as had been recommended by the Board January 11, 1955. That a Resolution was adopted June 21, setting a public hearing for July 19, 1955, and that on July 26, 1955, zoning Ordinance No. C-1153 was passed.

Under the facts set forth in the record of this case, we believe that the lower court erred in holding that the city was equitably estopped to enforce Ordinance No. C-1153. It is apparent to this Court that the facts set forth herein bring this case within the orbit of Miami Shores v. Brockway Post, supra, and Sharrow v. City of Dania, supra.

Reversed and remanded for further proceedings consistent herewith.

KANNER, C. J., and PLEUS, J., concur.


author: PEARSON, Judge.

text:
    Gertrude JACOBS and Charles Jacobs, her husband, Appellants, v. Lillian C. CLAUGHTON, as Executrix of the Estate of Edward Claughton, Appellee.
    No. 57-45.
    District Court of Appeal of Florida. Third District.
    Sept. 24, 1957.

      Dubbin, Blatt & Schiff, Miami, for appellants.
    Lane, Primm & Lane, Miami, for appel-lee.
   PEARSON, Judge.

This is an appeal from a summary final judgment entered upon the basis of the pleadings, the plaintiffs’ depositions, and the photographs identified at a pre-trial conference. The only error assigned is that, “the court erred in entering judgment for the defendant”. The judgment is affirmed. The complaint is by an injured wife and her husband for her injury. It is alleged that the defendant, a property owner, was negligent for either having placed or allowed to be placed a telephone pole across the sidewalk in front of defendant's property.

A review of the record reveals that there was no factual issue. Both the plaintiffs and the defendant agreed that the plaintiff-wife fell over the obstruction in broad daylight. The plaintiffs stated upon deposition that they could give no reason why the obstruction was not seen. Photographs introduced by stipulation showed an unobstructed view of at least one-fourth of a city block. The plaintiffs admitted at pretrial that they had nothing other than supposition upon which to prove any negligence of the property owner.

Upon these facts it was not error to grant defendant’s motion for summary judgment. It would have been vain to have-proceeded with a trial without proof of negligence and where contributory negligence of the injured plaintiff conclusively appeared. A person is bound to use some care for his own safety even upon such a normally safe walking area as a city sidewalk. See Breau v. Whitmore, Fla.1952, 59 So.2d 748, and Key West Electric Co. v. Albury, 91 Fla. 695, 109 So. 223.

Affirmed.

CARROLL, CHAS., C. J., and HORTON, J., concur.


text:
    John W. WEATHERFORD, Appellant, v. Gladys J. WEATHERFORD, Appellee.
    Supreme Court of Florida, Special Division B.
    May 22, 1957.
    Rehearing Denied Sept. 23, 1957.
   PER CURIAM.

Affirmed.


text:
    John W. MARTIN, as Trustee of the Property of the Florida East Coast Railway Company, a Florida Corporation, Appellant, v. Essie HOLLOWAY, as Administratrix of the Estate of Walter F. Holloway, Deceased, Appellee.
    No. 57-17.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 1957.
    Rehearing Denied Oct. 7, 1957.
    Scott, McCarthy, Preston, Steel & Gille-land, Miami, for appellant;
    George L. Knight, Miami, for appellee.
   PER CURIAM.

Affirmed.

CARROLL, CHAS., C. J., and HORTON and PEARSON, JJ., concur.


text:
    Grace Kutzleb ROSE, Appellant, v. Wade Hampton LUPO and Addie G. Lupo, his Wife, Appellees.
    Supreme Court of Florida.
    July 17, 1957.
    Rehearing Denied Sept. 18, 1957.
   PER CURIAM.

Affirmed.