author: ROBERTS, Justice.

text:
    George McStay JACKSON III, Appellant, v. Amos HALL, Sheriff, Appellee
    Supreme Court of Florida.
    July 24, 1957.
    Rehearing Denied Oct. 4, 1957.
    Davis, Kirsch & Gorman, Ft. Lauderdale, for appellant.
    Richard W. Ervin, Atty. Gen., Jos. P. Manners and David U. Tumin, Asst. Attys. Gen., for appellee.
   ROBERTS, Justice.

We are here concerned with the Uniform Reciprocal Enforcement of Support Law, Ch. 29901, Laws of Florida, Acts of 1955, appearing as Ch. 88, Fla.Stat.1955, F.S.A. —specifically with the interpretation of Sec. 88.071 thereof.

Our Uniform Reciprocal Enforcement of Support Law is based on the Act of the same title approved by the National Conference of Commissioners on Uniform State Laws in 1950, as amended in 1952. The purposes of the Act “are to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto.” Sec. 88.021. Our Sec. 88.061 and Sec. 88.071 are the same as Sec. 5 and Sec. 6 of the Act approved by the Commissioners and labelled by them “Part II — Criminal Enforcement”. The Act also provides for the civil enforcement of the duty of support in a simplified two-state procedure at a minimum of expense and trouble to the obligee, or to the state if the obligee is indigent. See Thompson v. Thompson, Fla. 1957, 93 So.2d 90.

Sec. 88.061 provides for the interstate rendition of a person to a demanding state to answer a criminal charge of failing to provide for the support of a dependent “although the person whose, surrender is demanded was not in the demanding state at the time of the commission of the crime and although he had not fled therefrom.” The particular section of the Act here in question, Sec. 88.071, reads as follows:

“Any obligor contemplated by § 88.-061, who submits to the jurisdiction of the court of such other state and complies with the court’s order of support, shall be relieved of extradition for desertion or nonsupport entered in the courts of this state during the period of such compliance.”

The point to be decided on this appeal is whether this particular provision of the Uniform Act is available to an obligor to obtain relief from extradition proceedings brought under the criminal enforcement provisions of the Act in a case where the obligee-resident of the demanding state has not initiated proceedings under the civil enforcement provisions of the Act. The question arose in habeas corpus proceedings filed in the lower court by the appellant, a resident of Broward County, Florida, to obtain relief from extradition to the State of Illinois to answer a criminal charge of nonsupport of his minor child. Illinois has adopted the Uniform Reciprocal Enforcement of Support Law, including a;provision identical to Sec. 88.071, supra.

The trial judge was of the opinion that Sec. 88.071, supra (and the analogous provision of the Illinois Act, S.H.A. ch. 68, § 56.2) “is applicable only to cases wherein an order for support under the Uniform Reciprocal Enforcement of Support Law has been promulgated by the demanding state, and that the demanding state has the option of proceeding to extradite the defendant for criminal prosecution in the demanding state.” He thereupon discharged the writ and remanded the appellant to the custody of the Sheriff for delivery to the Illinois authorities. This appeal followed.

The trial judge based his order on the decision of the California Supreme Court in Ex parte Floyd, 1954, 43 Cal.2d 379, 273 P.2d 820, 823. In the Floyd case, it was held that the jurisdiction of the court of the responding state to enter a support order stems from the initial civil proceedings commenced by the obligee in the obligee’s state of residence, and that the provision of the Act in question did not authorize the obligor to initiate such a proceeding in a court of the state of the obligor’s residence. Support for this construction was said to be found in the provision of the statute defining “responding state” as “any state in which any proceeding pursuant to the proceeding in the initiating state is or may be commenced.” West’s Ann.Code Civ.Proc. § 1653(3). It was also said that, if the view of the obligor in that case were to be sustained, the obligor could obtain immunity from extradition cheaply because “without evidence of the conditions, circumstances and needs of the obligee before the court, insufficient or token support payments might suffice to immunize the obligor from extradition.” The California court concluded that "[w]hile either or both courses of action [civil or criminal] may be pursued, the election lies wholly with the demanding state and the obligee; and the obligor may not independently institute an action in the responding state for the purpose of defeating the extradition process.”

We find ourselves unable to agree with the California court’s interpretation of the Act. The whole purpose of the Act, in both its criminal and civil enforcement aspects, is to compel the obligor to support his dependents and not primarily to subject him to criminal punishment for a past offense. See Commonwealth ex rel. Shaffer v. Shaffer, 1954, 175 Pa.Super. 100, 103 A.2d 430, 42 A.L.R.2d 761. This being so, we can find no valid reason for construing the Act as giving to the demanding state and the obligee the option of requiring the obligor to answer a criminal charge and be punished in a state in which he may never have resided or even have been present, rather than compelling him to perform his support obligations; and in our opinion the interpretation made by the California court in Ex parte Floyd, supra, does not carry out the essential purposes of the Act nor is it required by the express terms of the Act.

The criminal enforcement provisions of the Act (Sec. 88.061 and Sec. 88.071, supra) nowhere refer to the “initiating” and the “responding” states, as in the civil enforcement provisions of the Act. Sec. 88.061 merely provides for the demand, or surrender, by the Governor of this state of a person charged with the crime of failing to provide for the support of a person in this, or the other, state. Sec. 88.071 does not refer to “any obligor contemplated by this chapter or this Act”; it refers to “any obligor contemplated by § 88.061” (emphasis added), that is, any person against whom the special type of extradition proceedings provided for by Sec. 88.061 have been initiated.

Moreover, the provision in question says that the obligor who is about to be extradited and “who submits to the jurisdiction of the court of such other state and complies with the court’s order of stipport shall be relieved of extradition * * * ” (Emphasis added.) The “court’s order of support” with which the obligor complies under the civil enforcement provisions of the Act, as well as under the above-quoted provision, is that of a court of the responding state, not that of the initiating state. And the duty of support enforced under the Act is not necessarily that imposed by the law of the initiating state; it is that “imposed or imposable under the laws of any state where the obligor was present during the period for which support is sought” which is presumed to be the responding state “until otherwise shown”. Sec. 88.081, Ibid. The jurisdiction of the court of the initiating state extends only to approving the petition of the obligee and certifying that, on its face, a duty of support appears. Sec. 88.141, Fla.Stat.1955, F.S.A. By approving the petition, the court of the initiating state enables the petitioner to submit herself to the jurisdiction of the court of the responding state without the necessity of personal appearance or employment of counsel. Cf. Mahan v. Read, 1954, 240 N.C. 641, 83 S.E.2d 706. It then becomes the duty of the court of the responding state to examine the petition and if it “finds a duty of support, it may order the defendant to furnish support or reimbursement therefor and subject the property of the defendant to such order.” Sec. 88.211, Ibid. Due process is preserved, because each party pleads in his own court — the obligee to show her needs and the obligor’s duty of support, and the obligor to show his ability to pay or to deny that a duty of support exists. Since it is the duty of support that is certified to by the initiating state and since the amount of such support, as well as a further finding as to the duty of support, must be determined by the court of the responding state, cf. Gohdes v. Gohdes, 1955, 134 Cal.App.2d 819, 286 P.2d 539; Whittlesey v. Bellah, 1955, 130 Cal.App.2d 182, 278 P.2d 511; Proctor v. Sachner, 1955, 143 Conn. 9, 118 A.2d 621, we fail to see any valid reason for holding that the duty of support must be initially made to appear in a civil enforcement proceeding rather than in a criminal enforcement proceeding under the Act. Especially where, as here, the duty of support has been determined in a divorce decree specifically awarding support money for the minor child of the appellant, there would appear to be no danger that the obligor would escape extradition by making only “token support payments”, a point which troubled the California court in Ex parte Floyd, supra. And as pointed out in a dissenting opinion by Mr. Justice Schauer in Ex parte Floyd, supra, the courts “are not powerless to devise a fair and appropriate procedure to be followed and one which would permit the evidence of the obligee (i.e., the obligee’s conditions, circumstances, or needs) to be as fully presented to our courts as would be the case if the support proceedings are initiated in the obligee’s home state and followed by supplemental proceedings in California.”

We have concluded that the provision of the Act in question means just what it says, that is, that a person who is about to be extradited under the provisions of Sec. 88.061 may relieve himself from such extradition by voluntarily submitting himself to a court of competent jurisdiction in the state of his residence and complying with such court’s order as to the amount of support he should pay to the obligee. This interpretation is certainly the more practical approach to the problem of “the enforcement of duties of support”, the avowed purpose of the Act. As stated by Mr. Justice Schauer in his dissenting opinion in Ex parte Floyd, supra,

“Surely that objective is more likely to be achieved by permitting the obligor to remain in the state where he has become established and gains his livelihood than by the penal action of extradition for imprisonment. The latter procedure lends itself more readily to satisfaction of the desire for vengeance than it does to meeting the support needs of the dependent.”

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

Reversed and remanded.

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

THOMAS, J., dissents.


source: Caselaw Access Project

author:
PER CURIAM.
      THOMAS, Justice. DREW, Justice

license: Public Domain

text:
    GULF LIFE INSURANCE COMPANY, Appellant, v. Frances H. NASH, Appellee.
    Supreme Court of Florida.
    July 31, 1957.
    Rehearing Denied Oct. 7, 1957.

      Harris, Barrett, McGlothlin & Dew, St. Petersburg, for appellant.
    Mann, Harrison, Roney, Mann & Mas-terson, St. Petersburg, for appellee.
   PER CURIAM.

Chief Justice TERRELL, Justice HOB-SON, Justice ROBERTS, Justice DREW, Associate Justice BUFORD and District Judge ALLEN agree to the portion of the opinion by Justice THOMAS which affirms the judgment of the lower court on the ordinary life policy.

Chief Justice TERRELL, Justice HOB-SON, Justice ROBERTS, Associate Justice BUFORD and District Judge ALLEN agree to the opinion by Justice DREW which affirms the judgment of the lower court both as to the life policy and the accident policy.

Justice THOMAS dissents from the portion of the opinion by Justice DREW which affirms the judgment with respect to the accident policy.

It is thereupon ordered that the judgment of the lower court be

Affirmed.

TERRELL, C. J., HOBSON, ROBERTS, and DREW, JJ., BUFORD, Associate Justice, and ALLEN, District Judge, concur.

THOMAS, Justice.

The appellant issued to Claude M. Nash, Jr., a special accident policy by which it agreed to pay the beneficiary a certain amount if the insured should meet his death as a “result of bodily injury caused solely by external, violent and accidental means” and also issued to him an ordinary life policy by which it agreed to pay the beneficiary a certain sum upon proof of the death of the insured.

The appellee, eventual beneficiary, brought this action alleging that Claude M. Nash, Jr., died by accidental means and claiming the amounts of both policies. In an answer the appellant denied any liability on either contract except for return of the premiums paid on the life policy, and as a defense to the claim based on that policy plead the condition it contained that “[i]f the Insured shall within two (2) years from the date hereof die by his own hand or act, * * * the only amount payable hereunder shall be a sum equal to the premiums paid thereon, with interest at the rate of six per cent (6%) per annum.” It was averred, in respect of the ordinary life policy, that the insured had died by his own hand within two years after the issuance of the policy; in respect of the accident policy, it was denied that the insured had met his death by accidental means.

When the allegations of the pleadings are distilled, we find that the lone issue is the manner in which the insured died. Although it is true that if he killed himself intentionally there could be no recovery under either policy, it does not follow that if the insured did not actually commit suicide, recovery on both policies was proper. The obligation of one policy and the condition of the other are not so closely related, or inseverable, that recovery should be allowed on both or neither.

At the outset we should say that according to the authorities we have examined, the words death “by his own hand or act” should not be construed literally, but to mean death as a result of an intent on the part of the insured to take his own life. Fleetwood v. Pacific Mut. Life Ins. Co., 246 Ala. 571, 21 So.2d 696, 159 A.L.R. 171.

It is true, as appellant asserts, that it was appellee’s burden to prove, in support of the claim based on the accident policy, that death of the insured came by accidental means. Mutual Life Ins. Co. of New York v. Johnson, 122 Fla. 657, 166 So. 442. The appellant states in its brief that it does not appear to make much difference whether, under the life policy, it was the burden of the appellant to prove suicide or the burden of the appellee to prove that the death was one covered by the policy, but, we think, in respect of this policy, that it was incumbent on the appellee only to establish death and that it was appellant’s burden to prove that recovery should be defeated by existence of the condition we have already quoted.

That Claude M. Nash, Jr., shot himself there is no doubt; the points in controversy are (1) whether or not he intended suicide, and (2) if he did not so intend, whether or not his death came from “accidental means.” He fired the pistol in the presence of a young man and two young women. Two other men were in an adjoining room. The insured took the weapon from a table drawer, placed it against his chest, pulled the trigger twice and the gun “snapped”; the third time he pressed the trigger, the gun fired and Nash was killed almost instantly. We will presently elaborate on these facts.

Testimony, obviously believed by the jury, in which were detailed the movements of the insured and his behavior for many hours preceding his death was sufficient basis for the conclusion that Nash was not in such mental state that he would deliberately kill himself in the presence of three companions and in the hearing of two others. So we do not disturb the judgment insofar as it relates to the claim based on the ordinary life policy. Death was established and the appellant failed to prove suicide.

The remainder of the judgment, founded on the so-called accident policy is another matter. To say that there was no suicide does not mean ipso facto, that the nature of the death was such that liability on the accident policy became fixed. The liability of the appellant on that contract could only be established by preponderance of evidence introduced by the appellee that Nash died by “accidental means.”

When the young people gathered at the apartment, there was much chatter and giggling. The landlady, who described the noise as “teen-age prattle”, started to the apartment to see if she could not prevail on the group to be more quiet. The insured, at a time when he was in good humor, took a pistol from a table drawer and walked to the bathroom holding the weapon at his head while the girls yelled to put the gun down. The insured returned from the bathroom and exchanged the pistol for another which he then took to the bathroom where, to quote from the appellee’s brief, he “examined it in some way.” It was upon his return the second time that he pointed the gun at his chest, pulled the trigger twice, and, despite the cry of one of his companions to stop because the gun might be loaded, pulled the trigger the third time and was mortally wounded. He immediately cried, “My God, the gun was loaded * * * I am shot. Call a doctor.” Then he collapsed.

We conclude that the insured did not come to his death by accidental means. While he was showing off, he doubtless did not intend to shoot himself but only to frighten his friends by pretending to do so. As we have written, he took the pistol into the bathroom, after discarding an unloaded one, and, as the appellee says, made some examination of it. He evidently miscalculated the number of times it would snap before it would discharge. But he was engaged in a dangerous, foolhardy, act and although the result was not intended, the means were deliberate as distinguished from accidental.

We think the true rule for distinguishing between deaths that result from accidental means and those that result from means that are voluntary is well stated in Urian v. Equitable Life Assur. Soc., 310 Pa. 342, 165 A. 388, and cases cited therein. Several illustrations are given in the opinion but the two factual situations which by contrast make the categories clear are the one involved in that litigation and one considered in a cited case, Hesse v. Travelers’ Ins. Co., 299 Pa. 125, 149 A. 96. In both cases death had resulted from poisonous gas. In one instance a patient died from an anesthetic, a poisonous gas, as he was about to undergo an operation. The court said, in the cited case, that the insured did not expire by accidental means because he had voluntarily inhaled the gas and therefore the only unforeseen element was the unexpected result. In the main case a man was killed by carbon monoxide gas while he worked on his car in a garage with an open door near the exhaust pipe. It was said by the court that his death was caused by accidental means because he had unconsciously, involuntarily, inhaled the gas.

The Supreme Court of Delaware dealt with a similar situation in Koester v. Mutual Life Insurance Co. of New York, 36 Del. 537, 179 A. 327, 329. A man and his wife were struggling for possession of a gun when it fired and killed the man. The couple were not quarreling but the man was trying to get possession of the weapon because he thought his wife was incapable of handling it. The question was whether or not the death was the result of accidental means. The court held that while the death was accidental, because “unforeseen and unexpected,” the means were not. The discharge of the gun was not unusual or unforeseeable, but could well have been anticipated. The voluntary act of the insured was the direct cause of death, said the court, for had he not attempted to gain possession of the weapon he would not have been killed. So the death was held not to have resulted from accidental means. The latter case was followed by the Supreme Court of Delaware in Prudential Insurance Company of America v. Gutowski, 49 Del. 233, 113 A.2d 579, when it was held in effect, that death resulting from an overdose of sleeping medicine did not amount to death by accidental means because even though the insured may not have intended the result, she did intend to take the medicine.

In the instant case the insured did a foolish and hazardous thing. He did not purposely shoot himself but he did deliberately place a gun to his chest and pull the trigger three times, when he evidently knew that all the chambers were not empty. The means were, therefore, not accidental though the intention probably was for the firing pin to strike three empty chambers instead of only two.

It is my conclusion that recovery was properly allowed on the life policy but improperly allowed on the accident policy.

DREW, J., dissents in part with Opinion.

HOBSON and ROBERTS, JJ., and BUFORD and ALLEN, Associate Justices, agree with DREW, J.

DREW, Justice

(dissenting in part).

The pertinent provisions of the accident policy involved in this case are as follows:

“Indemnity for death by accidental means. Upon receipt of due proof that while this Policy was in full force and effect and all premiums duly paid, the death of the Insured occurred as a result of drowning solely through accidental means or as the result of bodily injury caused solely by external, violent and accidental means, as evidenced by a visible contusion or wound on the exterior of the body (except in the case of internal injuries revealed by an autopsy) and that such death occurred within ninety days after the date of occurrence of such injury and as a direct result thereof independently and exclusively of all other causes, * * * [the principal sum shall be paid the beneficiary.] The burden of proof shall be upon the beneficiary to prove that death resulted by accidental means within the provisions of the policy.”

I agree to that portion of the majority opinion which affirms the judgment on the ordinary life policy. The record amply supports the finding of the jury that the insured did not commit suicide and the judgment on the ordinary life policy necessarily rests on this premise because had the jury found otherwise, no verdict could have been lawfully returned in favor of the beneficiary. Having thus determined that the insured did not commit suicide and there being no contention that his death resulted from natural causes, it inevitably follows that his death was accidental. Synonyms of accidental are fortuitous, contingent, happening by chance, unintended, chance, unde-signed.

With reference to the accident policy, in concluding “that the insured did not come to his death by accidental means’’ the opinion of Mr. Justice THOMAS places this Court with those which draw a distinction between the term “accidental, means” and the terms “accident” or “accidental results.” This line of cases has created a morass of decisions which have become shrouded in a semantic and polemical maze and the result has been, as stated in McCullough v. Liberty Life Insurance Company, 1928, 125 Kan. 324, 264 P. 65, 67, 57 A.L.R. 963, “almost a wilderness of cases in which varying facts and situations have been applied to varying principles.” As long ago as 1934 Mr. Justice Cardozo, in dealing with this subject, stated:

“The attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog. ‘Probably it is true to say that in the strictest sense and dealing with the region of physical nature there is no such thing as an accident.’ * * * On the other hand, the average man is convinced that there is, and so certainly is the man who takes out a policy of accident insurance. It is his reading of the policy that is to be accepted as our guide, with the help of the established rule'that ambiguities and uncertainties are to be resolved against the company. * * * When a man has died in such a way that his death is spoken of as an accident, he has died because of a.n accident, and hence by accidental means. * * * If there was no accident in the means, there was none in the result, for the two were inseparable. * * * There was an accident throughout, or there was no accident at all.” Dissenting opinion, Landress v. Phoenix Mutual Life Ins. Co., 1934, 291 U.S. 491, 498, 54 S.Ct. 461, 463, 78 L.Ed. 934.

The best considered cases have eliminated from consideration any distinction between “accident” a^d “accidental means” and words of similar import.

In the 1956 Cumulative Supplement to Volume 29, American Jurisprudence, page 108, it is stated:

“Accordingly, a number of courts draw a distinction between ‘accident’ and ‘accidental means’ on the theory that although the result of an intentional act may be an ‘accident,’ the act itself, that is, the cause, where intended, is not an ‘accidental means.’ However, in an increasing number of jurisdictions, the distinction between the term ‘accidental means’ and the terms, ‘accident,’ ‘accidental result,’ ‘accidental injury,’ ‘accidental death,’ and the like, has been rejected or repudiated, and the terms are regarded as legally synonymous.”

Cited in support of this statement are the following cases: Burr v. Commercial Travelers Mutual Accident Ass’n, 1946, 295 N.Y. 294, 67 N.E.2d 248, 166 A.L.R. 462; Equitable Life Assur. Soc. v. Hemenover, 1937, 100 Colo. 231, 67 P.2d 80, 110 A.L.R. 1270; Taylor v. New York Life Ins. Co., 1929, 176 Minn. 171, 222 N.W. 912, 60 A.L.R. 959; Newsoms v. Commercial Casualty Ins. Co., 1927, 147 Va. 471, 137 S.E. 456, 52 A.L.R. 363; Carter v. Standard Accident Ins. Co., 1925, 65 Utah 465, 238 P. 259, 41 A.L.R. 1495; Handley v. Mutual Life Ins. Co., 1944, 106 Utah 184, 147 P.2d 319, 152 A.L.R. 1278; Annotation: 166 A.L.R. 469, 473.

There appears to be little consistency in the decisions of the courts of those jurisdictions which distinguish between the above quoted terms. A study of the many cases on the question reveals the fulfilment of the prophecy of Mr. Justice Cardozo. An example of the results which arise from an attempt to draw such a distinction is the case of Koester v. Mutual Life Ins. Co. of New York, 1934, 36 Del. 537, 179 A. 327, 329, cited in support of the conclusion reached in the opinion by Mr. Justice THOMAS. The death of the insured in that case resulted from a gunshot wound received by him in a struggle between himself and wife over a loaded pistol. In holding that such death did not occur from “accidental means” the court stated: “In a struggle to obtain possession of a loaded firearm, whether automatic and equipped with safety devices or not, the discharge of the weapon during the struggle was not an unforeseeable nor unusual result. It was a natural consequence of the effort made by the insured to obtain the weapon, and might well have been expected as probably apt to occur during the course of the struggle.” As much could be said of the great majority of accidents. It seems to me that such doctrine of foreseeability is a doctrine totally unsuited and unadaptable in construing accident policies. Moreover, the rationale of these cases seems to be founded not only in the doctrine of foreseeability but intrinsically in negligence on the part of the insured. Were we to make this principle a part of the law of this State, it would not only do violence to the reason for buying accident insurance but if it did not pre-elude ■ recovery in a great majority of deaths arising from accidents, it would place an almost insurmountable burden on the insured to enforce liability.

The principle of law is firmly imbedded in the jurisprudence of this State that contracts of insurance should be construed most favorably to the insured. To draw such a fine distinction between the words “accident” and “accidental means” would do violence to this principle. It is a classic example of a distinction without a difference. As a practical matter, the average person buying accident insurance policies assumes that he is covered for any fortuitous and undesigned injury. The average man has no conception of the judicial niceties of the problem and even the most learned judge or lawyer, in attempting to understand and comprehend the niceties of the distinction, is left in a state of bewilderment and confusion.

For the above reasons I conclude that the judgment appealed from should be affirmed in toto.

HOBSON and ROBERTS, JJ., and BUFORD and ALLEN, Associate Justices, concur.


author: PER CURIAM.

text:
    The STATE of Florida ex rel. The FLORIDA BAR, Complainant, v. Harry A. TORGE, Respondent.
    Supreme Court of Florida.
    Sept. 18, 1957.
    W. N. Avera, Gainsville, for The Florida Bar, complainant.
    No appearance for respondent.
   PER CURIAM.

Whereas, the judgment of the Board of Governors of the Florida Bar finding the respondent Harry A. Torge guilty of professional misconduct and disbarring him from the practice of law in this State was filed with the Clerk of this Court on the 20th day of March, 1957, and

Whereas, more than thirty days now having elapsed since the filing and service on the respondent of such judgment in accordance with the integration rule and no petition for review appearing to have been filed herein, and

Whereas, the Court has examined and considered said judgment and the record supporting the same, it is thereupon,

Ordered that such judgment aforesaid is approved and adopted as the judgment of this Court.

TERRELL, C. J„ and THOMAS, HOBSON, ROBERTS, DREW, THOR-NAL and O’CONNELL, JJ., concur.


text:
    The STATE of Florida ex rel. The FLORIDA BAR, Complainant, v. William B. GRIFFITH, Respondent.
    Supreme Court of Florida.
    Sept. 18, 1957.
    A. T. Cooper, Jr., Clearwater, for The Florida Bar, complainant.
    Baynard, Baynard & McLeod and Leonard W. Cooperman, St. Petersburg, for respondent.
   PER CURIAM.

It appearing that the respondent, William B. Griffith, has made restitution in the sum agreed upon by counsel for both sides, in compliance with the opinion of this court filed May 22, 1957, 95 So.2d 408; that restitution was made on May 25, 1957, and proof of same filed in this court on May 29, 1957;

It is, therefore, ordered that the suspension of the respondent is hereby terminated as of May 29, 1957; that he is placed on probation for a period of two years computed from May 29, 1957; that he shall make report of his conduct with proof thereof to the senior judge of the circuit court of his circuit on the first Monday of each of the months January, April, July and October to and including July 1959;

It is further ordered that the senior judge of the circuit court shall forward such reports to the clerk of this court.

TERRELL, C. J., and THOMAS, HOB-SON, ROBERTS, DREW, THORNAL and O’CONNELL, JJ., concur.


author: THORNAL, Justice.

text:
    Mary KLEMENKO, Appellant, v. Alex KLEMENKO, Appellee.
    Supreme Court of Florida.
    Sept. 18, 1957.
    Simons & Simons, Miami, for appellant.
    Prebish & DuVal, Miami, for appellee.
   THORNAL, Justice.

Appellant Mary Klemenko, who was plaintiff below, by appeal seeks reversal of an order of the Chancellor denying her petition for rehearing of a final decree entered in favor of the appellee Alex Klemenko, who was defendant below.

In order to dispose of the case we must decide whether a petition for rehearing in chancery is subject to review by appeal.

It is unnecessary to delineate the facts on the merits. On March 25, 1957, the Chancellor entered' a final decree in favor of the appellee Alex Klemenko. On April 1, 1957, appellant filed her petition for rehearing setting out certain alleged errors in the entry of the final decree. On April 17, 1957, appellant filed another document entitled “Motion to Vacate Final Decree and for Verdict for Plaintiff.” For purposes of this decision we treat the two documents as being tantamount to a composite petition for rehearing. Actually the April 17 document was filed too late under the rules. 31 F.S.A., Florida Rules of Civil Procedure, rule 3.16. On April 25, 1957, the Chancellor entered an order denying the motion to vacate and the petition for rehearing. On May 6, 1957, appellant filed her notice of appeal seeking the review of “the order, judgment or decree of the Circuit Court of Dade County bearing date of the 25th day of April, 1957, which order denied the plaintiff’s motion to vacate final decree and for verdict for the plaintiff.”

We find it unnecessary to consider the various contentions of the parties on the merits of the controversy. This appeal will have to be dismissed for jurisdictional reasons. A review of the procedural steps employed to bring the case before us will show that no appeal has been taken from the final decree. This decree therefore stands effective and binding between the parties.

Notice of appeal is directed only to the order of the Chancellor denying the two motions which sought a rehearing of the cause. If we were to undertake to pass on the correctness of the ruling on the petitions for rehearing it would be necessary to examine the final decree and the record which produced-it. If we were to do this we would be undertaking to review a final decree which has not been assaulted by the appellant herself. The product of this approach would be to give the appellant the benefit of a review of a final decree from which she has taken no appeal.

We are not here confronted with the question of the effect of the filing of the petition for rehearing upon an extension of time for assaulting the final decree as was the situation in Ganzer v. Ganzer, Fla.1956, 84 So.2d 591. The situation now here is simply that the appellant has filed no notice of appeal directed to the final decree. Instead, she has filed the notice of appeal directed to the order denying her petition for rehearing. Each of the assignments of error filed in this cause is directed to alleged errors in the final decree from which no appeal has been taken.

We therefore conclude sua sponte that there is no jurisdictional foundation for the consideration of the matter by this Court and the cause will have to be dismissed. Gasque v. Ball, 71 Fla. 257, 71 So. 329; Thomkin Corporation v. City of Miami Beach, 135 Fla. 360, 185 So. 422; Proctor v. Kennedy, Fla.1953, 64 So.2d 567.

It is ordered that the appeal be and the same is hereby dismissed.

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


text:
    Harry HART, trading and doing business as Harry Hart Restaurant, Appellant, v. TOLE ELECTRIC COMPANY, a Florida corporation, Appellee.
    Supreme Court of Florida.
    Sept. 18, 1957.
    Von Zamft & Kravitz, Miami, John A. Madigan, Jr., and James L. Graham, Jr., Tallahassee, for appellant.
    James S. Rainwater and Truett & Watkins, Miami, for appellee.
   PER CURIAM.

Affirmed on authority of Foley Lumber Company v. Koester, Fla.1952, 61 So.2d 634; Robert L. Weed, Architect, Inc., v. Horning, 1948, 159 Fla. 847, 33 So.2d 648; Orange Plumbing and Heating Company v. Wolfe, Fla. 1956, 89 So.2d 671; United States Fidelity & Guaranty Company v. Marshall, 148 Fla. 286, 4 So.2d 337, and similar cases.

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


text:
    Roy HUTTO and Ernestine Hutto, Appellants, v. William Hannon COULLIETTE, William Addie Coulliette, a minor, and Mrs. W. H. Coulliette, Appellees.
    Supreme Court of Florida.
    Sept. 18, 1957.
    R. B. Crawford, Jr., Bartow, for appellants.
    Carver & Langston, Lakeland, for ap-pellees.
   PER CURIAM.

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

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

Affirmed.

TERRELL, C. J., THOMAS, ROBERTS and THORNAL, J., and ROWE, Circuit Judge, concur.


author: O’CONNELL, Justice.

text:
    Nelson AYALA, Appellant, v. Clyde W. MURRELL, Appellee.
    Supreme Court of Florida.
    Sept. 18, 1957.

      W. Wallace Shafer, Bentley, Shafer & Miller, Lakeland, for appellant.
    Cecil B. Smith of Smith & Petteway, Lakeland, for appellee.
   O’CONNELL, Justice.

Nelson Ayala, appellant, was plaintiff below and Clyde W. Murrell, appellee, was defendant. The parties will be referred to as they were in the trial court.

Plaintiff, distributor of petroleum products and automotive equipment, on August 5, 194S entered into a written contract with Sidney and James Howell, who then owned and occupied the land involved in this suit. The contract, which was recorded in the public records of Polk County on December 12, 1951, provided that the Howells who operated a service station on the land, would purchase petroleum products only from plaintiff, who agreed to sell to them for fifteen years their entire requirements as to such products. Among other things the contract provided:

“It is expressly understood and agreed that the terms, covenants and conditions of this agreement shall be and constitute covenants running with and binding upon the premises above described, and shall constitute an obligation on said premises regardless of the title or ownership thereof and regardless of any change which may take place therein.”

Plaintiff alleges that contemporaneously with the contract referred to above, and as a part of the same transaction, he loaned the Howells $15,000, taking as security a mortgage upon the land and premises involved. Payments of principal and interest for the retirement of the loan were to be made by the Howells at the rate of $150 per month with oral understanding that the Plowells would, for gasoline delivered to them, pay one cent per gallon over and above the standard tank wagon price, which payments were to be applied against the monthly mortgage payments of $150. Should the sum derived by the payment of one cent per gallon exceed $150 it was to be paid nevertheless, but if it failed to reach the amount of $150 the Plowells were to pay plaintiff the deficiency.

Plaintiff alleged that in January 1952 when the defendant went into possession of the subject lands and began operating the filling station thereon the defendant accepted, recognized and ratified the contract involved herein; that until this suit was filed on March 16, 1954 the defendant had performed all the terms of said contract, had purchased all petroleum products sold on said lands from plaintiff and had paid the sum of one cent above standard tank wagon prices on all gasoline purchased by him as provided in said contract.

Plaintiff also alleged that defendant had demanded that plaintiff perform the terms of said contract and had accepted performance by plaintiff thereunder.

Plaintiff further alleged that beginning in the year 1953 defendant began to demand a reduction of one cent per gallon in the price of gasoline and when plaintiff refused to accede, he established contact with another distributor of such products and just prior to filing of this suit began to remove plaintiff’s tanks and equipment from the land.

Plaintiff then filed his complaint seeking a temporary restraining order enjoining the defendant from removing from his premises the gasoline pumps and other equipment belonging to plaintiff; asking that defendant be permanently enjoined from violating the terms and conditions of the contract, on the ground that such conditions were covenants and conditions running with the land upon which the service station was located; and asking that the defendant be enjoined from handling the petroleum products of anyone other than the plaintiff.

It is unnecessary to a decision in this case that we determine whether the contract in question constitutes either a covenant running with the land, or a servitude on the land enforceable in a court of equity.

The allegations of the complaint dearly allege that the defendant had for a period of many months assumed the contract made between the plaintiff and defendant’s predecessors, the Howells, had performed it, and had demanded that the plaintiff perform thereunder, which he alleged that he did and is now willing to do.

This Court in Manatee County Growers’ Ass’n v. Florida Power & Light Co., 1934, 113 Fla. 449, 152 So. 181 held, under a not dissimilar factual situation, that' the defendant in that case had assumed and made its own a contract executed between the power company and the predecessor of the defendant growers’ association and that it could be enjoined from breaching that contract. In that case the power company and the predecessor of the growers’ association had entered into a contract whereunder the power company agreed to furnish and the growers’ association’s predecessor agreed to receive and pay for all power and energy required by it in the operation of a certain celery washing-afld precooling plant for a term of ten (10) years. About a year after execution of the contract the defendant growers’ association became' the owner of the plant, and although it did not by specific agreement, or assignment agree to perform the agreement as to furnishing of power and energy, it did continue to perform under said . agreement for approximately one year thereafter at which timé it decided to produce its own power and cease purchasing same from the plaintiff power company.

This Court held that the growers’ association had by its conduct assumed and made its own the said contract for furnishing and receipt of power and that it could be enjoined from breaching it, citing on page 184 of 152 So,, with approval the following statement of United States Supreme Court in Wiggins Ferry Co. v. Ohio & Miss. R. Co., 1891, 142 U.S. 396, 408-409, 12 S.Ct. 188, 35 L.Ed. 1055:

“ ‘If a person conduct himself in such manner as to lead the other party to believe'that he has made a'contract his own, and his acts are only explicable upon that theory, he will not.be permitted afterwards to repudiate any of its obligations.’ ”

We think this principle is equally applicable here.

It follows therefore that the complaint was not without equity and therefore should not have been dismissed.

Accordingly this cause is reversed for further proceedings not inconsistent herewith.

TERRELL, C. J., ROBERTS and THORNAL, JJ„ and WELCH, Circuit Judge, concur.


author: BARNS, Justice. THORNAL, Justice

text:
    Joyce L. DAHLKE, Appellant, v. Theodore R. DAHLKE et al., Appellee.
    Supreme Court of Florida.
    Sept. 18, 1957.
    Billie B. Bush, Tampa, for appellant.
    No appearance for appellee.
   BARNS, Justice.

In the final decree of divorce the Court awarded the custody of the three children of the parties to the mother, but thereafter in 1955 at a hearing with both parties before the court he awarded absolute custody to the paternal grandparents of Ohio with leave to the grandparents to take them to Ohio. Since then the grandparents seem to have surrendered the children to the father, of Ohio. Both parents have remarried.

In August 1956 the mother petitioned the court for an order restoring to her the custody of the children and a copy of a rule nisi was served on the husband and grandparents domiciled in Ohio. Neither the husband nor grandparents appeared in response to the rule nisi and the petition was dismissed for want of jurisdiction, and thereupon petitioner-mother appealed. We find no error and affirm.

The children, the father and the grandparents are domiciled in Ohio, and the trial court has not retained jurisdiction in any way. The extraterritorial service on the citizens of Ohio of the rule nisi by registered mail, or otherwise, did not have the effect of the court obtaining personal jurisdiction of the non-appearing respondent-defendants-appellees. The proceedings are in personam and not quasi-in rem and the lower court was impotent to render a decree binding on the appellees. Pennoyer v. Neff, 1878, 95 U.S. 714, 24 L.Ed. 565. Furthermore, the Full Faith and Credit Clause of the Constitution of the United States, Art. IV, § 1, would not make a decree favorable to the appellant-petitioner binding on the appellees or the courts of Ohio in event of proceedings brought to enforce it there. May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221.

Affirmed.

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

THORNAL, Justice

(concurring).

I concur in the opinion and judgment prepared by Mr. Justice BARNS. However, supplementing the opinion certain observations are appropriate.

I would not bottom the conclusion entirely on the historic decision in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. This is so for the reason that that decision involved the problem of obtaining original service of process to initiate an action in personam.

A custody or maintenance proceeding supplementary to a divorce action in which the court has already obtained jurisdiction of the parties and the subject matter is distinguishable from the institution of a new cause of action. A petition for modification of the provisions of a divorce decree relating to custody or maintenance is not a new action but merely a continuation of the original proceeding. Watson v. Watson, Fla.1956, 88 So.2d 133.

It further appears to me that it is immaterial in divorce matters whether the Chancellor expressly retains jurisdiction over custody or maintenance aspects of the decree. We have held that so long as the minor child is within the jurisdiction of an equity court, that court enjoys continuing jurisdiction for the purpose of considering a change in custody or maintenance even though such jurisdiction was not expressly retained by the provisions of the final decree. Cone v. Cone, Fla.1953, 62 So.2d 907.

The controlling aspect of the instant case is the fact that neither the child nor the person to whom custody had been awarded is within the jurisdiction of the Florida court. If the Florida court had had jurisdiction of either, then it would have had the power to act. Absent jurisdiction of either of these individuals the power to adjudicate the matter of custody was lacking. James v. James, Fla.1953, 64 So.2d 534; New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133.

In sum, it is my view that the instant case is controlled by the opinion of this court in Dorman v. Friendly, 146 Fla. 732, 1 So.2d 734.

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


text:
    Raymond R. WATERS, Appellant, v. GENERAL SHEET METAL & ROOFING, Inc., a corporation; and Ralph Perry, Appellees.
    Supreme Court of Florida.
    Sept. 20, 1957.
    Dixon, Dejarnette, Bradford & Williams, Miami, for appellant.
    Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, for appellees.
   PER CURIAM.

Affirmed, under the authority of Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690, and Miami Roofing & Sheet Metal Co. v. Kindt, Fla., 48 So.2d 840.

THOMAS, Acting Chief Justice, and HOBSON, ROBERTS, DREW, THOR-NAL and O’CONNELL, JJ., and ALLEN, District Judge, concur.


text:
    STATE ex rel. Charles B. SPARKS, Appellant, v. Mrs. A. E. REEVES, Appellee.
    Supreme Court of Florida.
    Sept. 18, 1957.
    David Lanier, Madison, for appellant.
    John K. Folsom and Hopkins & Folsom, Tallahassee, for appellee.
   THORNAL, Justice.

Appellant Sparks who was petitioner below in a habeas corpus proceeding involving the custody of two children seeks reversal of an order of the Circuit Judge denying the prayer of his petition.

The determining question is whether the showing made by the appellant who was the father of the children was sufficient to justify a transfer of custody from the appellee who was the grandmother of the minors.

An earlier phase of the case was here before. State ex rel. Sparks v. Reeves, Fla. 1955, 81 So.2d 754, 755. Our opinion on the prior appeal adequately delineates the factual background. Subsequent to the prior opinion and on July 8, 1956, the appellant-father filed a second petition in the Circuit Court. By the prayer of this petition he requested the Circuit Judge to modify the original order of May 1, 1953, by which the custody of the children was awarded to the appellee-grandmother subject to change by further order of the Court. Our 1955 opinion affirmed an order of the Circuit Judge entered on December 10, 1954, by which the Judge declined to transfer custody from the grandmother to the father but again retained jurisdiction to enter such further orders as the welfare of the children might justify.

At the hearing on the petition now under consideration it appears that the appellant-father has diligently exerted every reasonable effort to justify the restoration of custody of his children. It is shown that he has regularly contributed financially to the support of the children, that he has purchased a home in Brevard County, is happily married, has a good job, earns a livable wage; he is morally stable, sober and apparently exceedingly anxious to have his children with him. It also appears that the appellee and her husband, the maternal grandparents of the children, have demonstrated themselves to be loving and devoted grandparents. They too are highly respectable people who obviously work hard to produce a living and who bestow upon their grandchildren such care and attention as has justified the respect and admiration of the community. On the basis of the showing made in July, 1956, however, the Circuit Judge remained of the view that the welfare of the children did not justify a change in custody and that the appellant-father had failed to show a sufficient change in circumstances between the order entered in December, 1954, and the hearing in July, 1956, to justify a change in custody. The Circuit Judge again declined to transfer the custody of the children to their father but retained jurisdiction to enter such further orders as might appear proper. Reversal of his order is here sought.

It is the contention of the appellant-father that he has now demonstrated himself to be worthy of enjoying the custody of his children and that he is able and desirous of providing for them a comfortable home and bestowing upon them the paternal care and affection that is both his privilege and his obligation.

The appellee on the other hand contends that she and her husband have provided for the children since they were babies, that they are devoted to them and in the ultimate that the happiness and welfare of the children precludes any change in their custody.

We, like, the Circuit Judge, are confronted with one of the most difficult of all problems to resolve. Our own consideration of the matter is necessarily influenced by the fact that the cause was heard below by an exceedingly able and experienced Circuit Judge who resolved the evidence in favor of the appellee. While we are here constrained to hold that the presumptive correctness of the order of the Circuit Judge has not been clearly overcome so as to justify a reversal, we are likewise compelled to point out that any subsequent consideration of this matter should be determined in the light of certain well-established principles which we herewith mention for the guidance of the parties and the trial Judge.

In our prior opinion we pointed out that under the circumstances indicated as of November, 1954, it would be an unjustifiable experiment to tranfer the custody of the children “at least until such time as the appellant has more clearly demonstrated his parental interest in, and desire to care for, his children.” We did, however, point out that the father had not permanently relinquished his right to enjoy the custody of his children. We did hold that he should more clearly demonstrate and give evidence of his right to enjoy the privilege by his future conduct. The question, therefore, recurs as to whether this father has now sufficiently demonstrated parental devotion to enable us to accord to him his legal right to custody. State ex rel. Sparks v. Reeves, supra; State ex rel. Bonsack v. Campbell, 134 Fla. 809, 184 So. 332.

We are not unmindful of the rule of law that in habeas corpus proceedings involving the custody of minors of tender years, the Circuit Judge is accorded the privilege of exercising a broad judicial discretion in determining the ultimate question of the welfare of the children themselves. Reynolds v. Alderman, 72 Fla. 39, 72 So. 369; Culpepper v. Osteen, 153 Fla. 161, 13 So.2d 911.

While according to the trial Judge a broad judicial discretion in the matter we nevertheless cannot lose sight of the basic proposition that a parent has a natural God-given legal right to enjoy the custody, fellowship and companionship of his offspring. State ex rel. Weaver v. Hamans, 118 Fla. 230, 159 So. 31. This is a rule older than the common law itself and one which had its inception when Adam and Eve gave birth to Cain in the Garden of Eden. Gen. 4:1. In cases such as this one the only limitation on this rule of parental privilege is that as between the parent and the child the ultimate welfare of the child itself must be controlling.

A cautious and sympathetic examination of the record before us leads us to the thought that if since the hearing in July, 1956, this father has continued to demon•strate the overall moral, spiritual and material capacity to care for his children as was ■presented to the Circuit Judge by the evidence at the last hearing then there would .appear to be no valid legal or equitable reason why he should not be permitted to have ■the benefit of his legal rights in the premises. Witt v. Burford, 84 Fla. 201, 93 So. 186; Busbee v. Weeks, 80 Fla. 323, 85 So. 653; Hart v. Howell, 154 Fla. 878, 19 So.2d 317; State ex rel. Hicks v. Cain, 160 Fla. 680, 36 So.2d 275.

When this cause was last here it was the view of the majority of this Court, as expressed in its opinion, that the father should !by his conduct more clearly demonstrate his entitlement to enjoy the legal privilege of custody of his children. The record now leads to the thought that he has in good conscience undertaken to meet the requirements of the responsibility placed upon him. Assuming that this conduct has continued since the date of the order which we herewith affirm, then upon a subsequent showing to that effect we can see no sound legal reason why his rights under the law should not be recognized.

We are not immune or unsympathetic to the appealing position of the appel-lee-grandparents. Implicit in the attitudes expressed in the cold record we detect the often-occurring and perhaps perfectly natural attitudes of the parents of a deceased mother who envision themselves as the only persons competent and qualified to bestow upon their daughter’s children the love and affection which would have come to them if their mother had lived. This is not an uncommon situation especially when the father of the children remarries. Nevertheless, it must not be lost from mind, by them or the Court, that the custody given them, and the care and devotion which they lovingly and willingly bestow upon the children, rests upon a temporary foundation, namely, the inability of the father at the time to care for them. It can and should continue only so long as such disability on his part continues and the welfare of the children requires. After all he is, at least insofar as here appears, paying for what the children get. The problem of the Courts in deciding the issue is complicated by the fact that we here deal with one of the warmest and most affectionate of human relationships which nonetheless often crystallizes into adamant and uncompromising attitudes. This apparently has come about in the instant case.

In view of the foregoing, the order under attack is affirmed, but without prejudice to the appellant to renew his application for custody of his children at an early date consistent with their welfare. Such welfare is not entirely, though it must be in part, determined simply on a comparative basis. In other words, once the father’s ability reaches adequacy, his legal right should not be overcome by the fact that the respondents’ offerings may be more adequate than his, or that they may continually out-do him, at least in material matters. At any subsequent hearing the trial Judge shall -take into consideration the showing made by ■the appellant at the hearing held pursuant to the petition filed by him on July 8, 1956, as well as any subsequent facts relevant to the problem. It is the spirit and intent of this opinion that if, since the order of July 20,1956, the appellant has continued to demonstrate a continuity of the conduct evidenced at the last hearing, then his legal right to his children should be recognized, the equities otherwise being equal.

It is so ordered.

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


author: ALLEN, District Judge.

text:
    The BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY, Florida, a body corporate and politic under the laws of the State of Florida, Appellant, v. EVERETT W. MARTIN & SON, Inc., a Florida corporation, Appellee.
    Supreme Court of Florida.
    Sept. 18, 1957.

      Boardman & Bolles and John S. Lloyd, Miami, for appellant.
    Horton & Horton, Miami, for appellee.
   ALLEN, District Judge.

The Dade County Board of Public Instruction hereinafter referred to as the Board, the appellant, plaintiff below, filed a Complaint in the Circuit Court for Dade County, Florida charging that Everett W. Martin & Son, Inc., a Florida Corporation, the defendant below, appellee here, in using a substituted jalousie instead of the type of jalousie specified according to the terms of a building contract entered into between plaintiff and the defendant, falsely represented to the plaintiff that the defendant paid $20,237 for the substituted jalousies when actually it had paid $10,276 for the substituted jalousies. The appellee Contractor, defendant below, pursuant to the building contract, proposed a credit to the Board in the sum of $5,186.70 if the substituted jalousies were accepted. The Board accepted this credit.

The contract provided that in case of a substitution, if the substituted item was less than the specified item, the Board would receive the difference in cost between the two items less ten per cent (10%).

The plaintiff sued for the difference between the amount that the contractor advised the Board the substituted jalousies cost and the amount which the contractor actually paid for the substitute. The Jury returned a verdict of “not guilty”. The trial court entered a Judgment in favor of the defendant. The plaintiff filed a motion for a entry of judgment and an alternative motion for a new trial primarily on the grounds that the court erred in giving certain of the defendant’s requested instructions and in denying certain of the plaintiff’s instructions; that the instructions given and denied were erroneous as a matter of law resulting in the jury being misled in arriving at a verdict in favor of the defendant.

Plaintiff, on appeal, states the point involved as follows:

“Whether or not the jury reached an. improper verdict in favor of the Ap-pellee because they were misled by the erroneous and inapplicable instructions, given them by the trial court.” The Defendant-Appellee — states the question :
“Was there any testimony or evidence in the record of the trial of this-cause that would have justified the jury in rendering a verdict for the Ap-pellee ?”

The Complaint was based on fraud and' deceit. The defendant in its Answer, in-, addition to denials as to fraud and deceit,, raised the question of estoppel by reason of a previous trial between the same parties involving the same issue; also that a new contract had been entered into by the parties ■ involving the jalousies in question.

The basic facts from the appellant’s. standpoint was that the appellee represented' that he was going to pay the sum of $20,-237 for substituted jalousie windows to be-placed in the Douglas Primary School and’ according to the terms of the building-contract, the appellee should have refunded or credited to the appellant ninety per cent (90%) of the difference between $26,000, the cost of the original jalousie windows,, and $10,276, which the contractor admittedly paid for the substituted jalousies, or-$14,151.60. Instead, the appellee refunded: or credited only ninety per cent (90%) of.r the difference between $26,000 and $20,237,. or $5,186.70.

The appellee, during the trial of the case, •introduced evidence to show that neither the Board nor its architects made any independent investigations to determine what the contractor actually paid for the substituted jalousies.

The plaintiff admitted that no independent investigation was made as it relied upon the statements of the contractor that he paid $20,237 while actually he had only paid .$10,276.

The lower court gave the defendant’s Requested Charge Number 4:

“I further charge you gentlemen that there was a duty on the part of the Plaintiff, through its agents, to wit: the architects, to inquire into and ascertain the truth or falsity of the representations made by the Defendant, providing, of course, that you find that the Defendant did not prevent the Plaintiff, or its agents, from examining into the truth or falsity of the Defendant’s representations; that if you find that the Defendants did not hinder or impede the Plaintiff, or its agents, from conducting inquiry or investigation into the truth or falsity of the Defendant’s representations, or that through negligence or oversight, they the Plaintiff, failed to make inquiry, then and in that event, I charge you that the Plaintiff’s agents were derelict in their duty to their principal and that such dereliction cannot be imputed or charged to the ■defendant.
“I further charge you that one of the first duties that an agent holds to its principal is to remain loyal to the latter’s interest. Consequently, it is his duty at all times to disclose to his principal any facts or circumstances that might effect the interest of the principal. Therefore, I instruct you that the principal is liable civilly for .any act of his agent where there was negligence on the part of the agent, if such act constituting negligence was :done within the scope -Of the agent’s . authority.” ■

The Court denied the plaintiff’s Request-' ed Charge Number 5 which was as follows:

' “If you believe from the evidence ■- that the Defendant, by active deceit or fraud or by use of any artifice or deception, caused the Plaintiff to accept $5,186.70 as a credit on the substituted jalousie windows used in the Douglas Primary School instead of the $14,-151.60, and that by such artifice and deception the Plaintiff was lulled into a false sense of security, the Defendant is liable for its fraud even though the information might have been as áccessible to the Plaintiff as it was to the Defendant. Therefore, each of the parties to the contract must take care not to say or do anything tending to impose upon the other.”

The defendant, in its brief, did not defend the charges given or refused by the lower court but based its arguments for an affirmance upon the theory that:

“The only question involved in this appeal insofar as the Appellee is concerned and as it conceives the correct question to be, is whether or not there was any evidence or testimony in the record to justify or support the verdict rendered by the jury in favor of the Appellee.”

The basic question of law involved in the giving of the above challenged instruction and the refusal to give the other instruction hereinabove set forth is whether, under the facts in this case, a claim founded upon a fraudulent misrepresentation of fact can be defended in court by showing that the deceived party should have made an independent investigation to ascertain the truth or falsity of the representer’s statements.

23 American Jurisprudence, page 970, Section 161, “Fraud and Deceit”, states the rule as followed at the present time in practically all American jurisdictions, in respect of transactions involving both real and personal property, that one to whom a positive, distinct, and definite representa-' tion has been made, is entitled to rely on such representation and need not make further inquiry concerning the particular facts involved.

The above authority refers to the case of Williams v. McFadden, 23 Fla. 143, 1 So. 618.

In the case of Wheeler v. Baars, 33 Fla. 696, 15 So. 584, 588, which was an action involving false misrepresentation, the court, in its opinion, said:

“It is contended, further, for the appellant that the judgment should be reversed because the proofs show that the lien whose existence produced the plaintiff’s damage was a matter of record and that it was the plaintiff’s duty to search those records for himself, the access thereto being easy, and that he had no right to rely upon the defendant’s representations contrary to the facts that would have been disclosed by such record. There are some authorities that sustain this view of the law, but we are satisfied that the great weight of the authorities, English and American, supported by the soundest reasoning, establish a contrary doctrine that is thus forcefully expressed by Zollars, C. J. in West v. Wright, 98 Ind. 335: ‘There may be good, prudential reasons why, when I am selling you a piece of land, or a mortgage, you should not rely upon my statement of the facts of the title, but if I have made that statement for the fraudulent purpose of inducing you to purchase, and you have in good faith made the purchase in reliance upon its truth, instead of making the examination for yourself, it does not lie with me to say to you: “It is true that I lied to you, and for the purpose of defrauding you, but you were guilty of negligence — of want of ordinary care— in believing that I told the truth; and,, because you trusted to my word, when you ought to have suspected me of falsehood, I am entitled to the fruits of my falsehood and cunning, and you are-without remedy.” ’ McClellan v. Scott, 24 Wis. 81; David v. Park, 103 Mass. 501; Upshaw v. Debow, 7 Bush, Ky., 442; Linington v. Strong, 107 Ill. 295;. Reynell v. Sprye, 1 De Gex, M. & G. 660; Olson v. Orton, 28 Minn. 36, 8 N.W. 878; Parham v. Randolph, 4 How., Miss., 435. As there must be a. reversal of the judgment appealed from because of another error in the charge-of the court, presently to be noticed,, we do not think it necessary further to-discuss the main points presented by the instructions given or refused, since,, from what has been said, any defects or omissions therein can, upon another trial, be rectified.”

The annotator in 61 A.L.R. at page 497' under the topic, “Fraudulent Misrepresentation” asserts the rule to be:

“Where the seller practices artifice and wilful fraud upon the buyer, misrepresenting the articles sold, intending that the buyer shall rely upon the-representations, it cannot, according to the weight of authority, escape liability for his fraud, on the ground1 that the buyer gave credence to the representations and did not avail himself of his opportunity to investigate the same.”

In Pattiz v. Semple, D.C., 12 F.2d 276, 278, affirmed in 7 Cir., 18 F.2d 955, the court said:

“Where representation is made in positive terms as to a fact actually or presumptively within the speaker’s, knowledge, and contains nothing so improbable as to cause doubt of its truth, the hearer may rely upon it without investigation, and this is true, although the means of investigation were within the reach of the injured party, and the parties occupied adversary positions-toward each other. Since the very purpose of fraud is to cheat the victim by making him neglect the precautions essential to prevent injury, to deny relief because the victim was negligent would encourage dishonesty. In such cases the fraud-feasor will not be heard to say that he is a person unworthy of belief, and that plaintiff was negligent in trusting him, and was cheated through his own credulity.”

See, also, Bailey v. Smith, 57 App.D.C. 369, 23 F.2d 977.

In Davis v. Mitchell, 72 Or. 165, 142 P. 788, 794, the court said:

"When a person, for the purpose of cheating and defrauding another, makes false representations as to material facts, and the person to whom the false representations are so made believes them to be true' and is thereby induced to enter into a contract, to his injury, with the person making such false representations, the person who made such false representations cannot defeat a suit to rescind the contract, ■so entered into, by showing that the person thus defrauded could have ■ascertained that such representations were false, by the exercise of diligence.”

The case now before this Court does not involve liability for mere sales talk or “puffing” statements. So the rules effecting ■cases of this type are inapplicable here.

In the case of Williams v. McFadden, 23 Fla. 143, 1 So. 618, at page 620, the Court said:

“The law, we think, is correctly stated in the cases cited above. A misrepresentation made by a seller as to a material fact, knowing at the time that it was untrue upon which the purchaser relied is actionable. A statement made by the vendor which is tantamount to an estimate of opinion, such as value, condition, character, adaptability to certain uses, * * * is not actionable unless the seller resorts to some fraudulent means to prevent the purchaser from examining the property. We have examined the various cases in the brief of the appellee, some of which decide that, where representations are made by the seller as to matter of opinion of property which is situated in another state, hundreds of miles away, and of which a personal examination by the purchaser would be inconvenient and expensive, are exceptions to the last rule; the courts holding that, under such circumstances, the purchaser was guilty of no negligence in not examining the land, and in relying on the statements of the seller. These are mostly recent cases, and limit the application of the doctrine of caveat emptor to transactions where the examination of the land would suit the convenience of the purchaser, and was not attended with expense. This salutary rule cannot, in our judgment, be abridged in such a manner without a violation of old and well established principles of law. Some of the other cases cited by appellee very plainly lose sight of the distinction between statements of fact and mere opinions. When a seller asserts the existence of a fact, there is no room for the exercise of judgment. Observation and memory being the only faculties employed, a mis-statement by him can be easily detected. The law permits a purchaser to rely on such statements for the reason that the existence or non-existence of the alleged facts, being easily susceptible of proof, furnish a test of the good faith of the seller. On the contrary, human opinion is so various and discordant, and what it really is so difficult of proof, that the law permits great latitude to statements which are properly traceable to it.”

In the case of Joiner v. McCullers, 158 Fla. 562, 28 So.2d 823, 824, the Court held that where certain executors ■ and trustees under will which provided that certain property should be held in trust until it could be sold at a fair price, which must be agreed to by a majority of the children and where the said executors and trustees bought certain undivided interest in two tracts of land which one of the trustees acting for himself and his co-trustees represented was worth more than $10 per acre and that there was not any timber on the land which statement was known to be false, and the timber on one tract had been sold for $1,800, that the parties who had acted and relied on such statements could have the contract rescinded. In its decision the Court quoted from 12 R.C.L. page 319, Section 80, as follows:

‘The rule that fraud cannot be predicated of a failure to disclose facts where the information is as accessible to one party as to the other, and the truth may be ascertained by the exercise of reasonable diligence, does not justify a resort to active deceit or fraud, and hence, does not apply where a party in addition to non-disclosure uses any artifice to throw the other party off his guard and to lull him into a false security. Therefore, each party to the contract must take care not to say or do anything tending to impose upon the other. The concealment becomes a fraud where it is effected by misleading and deceptive talk, acts of conduct, or is accompanied by misrepresentations, or where in addition to á party’s silence there is any statement, word or act on his part which tends affirmatively to a suppression of the truth, or to the covering up or disguising of the truth, or to a withdrawal or distraction of a party’s addition to the real facts; then the line is over stepped and the concealment becomes a fraud.’ ”

In the case of Potakar v. Hurtak, Fla., 82 So.2d 502, 504, an action by the purchaser of a restaurant for damages in deceit on account of allegedly false representation that restaurant had made profit in the past and in which action the Circuit Judge dismissed the complaint on the-grounds that the said complaint was insufficient for failure to disclose falsity of the-representation, Plaintiff’s right to rely thereon and Plaintiff’s diligence in investigating the facts. The Court in its opinion quoted from 23 Am.Jur., “Fraud and! Deceit”, page 960, section 155, as to the-general rule to investigate fraudulent statements :

“ * * * It has frequently been-stated that in order that false representations be a ground for an action of deceit, or for rescission of a contract entered into in reliance thereon, there must be such as are calculated to impose upon or deceive a person of ordinary prudence, and of such a character that a reasonably prudent person would rely on them. According to other courts, the standard for measuring the conduct of the representee is subjective, based not on what the ordinary man would do under the circumstances, but on what the particular representee should have done. Under this view, the test for determining whether one party to a transaction has the right to-rely on the representations of the other is not whether a reasonable man would be justified in relying on such representations, but whether they were-of such a nature and made in such circumstances that the complaining party had a right to rely thereon. A rule which has been approved, and which combines those elements of both the objective and subjective test which have been stated by the courts enunciating them to be desirable, is that in measuring the. right to rely upon representations, every person must use reasonable diligence for his own protection. Under any standard of conduct, and in the absence of accompanying actual deception, artifice, or misconduct, it is well agreed that where the means of knowledge are at hand and are equally available to both parties, and the subject matter is equally open to their inspection, if one of them does not avail himself of those means and opportunities, he will not be heard to say that he was deceived by the other’s misrepresentations. * * * ”

We are of the opinion that in this •case, it was not the duty of the Board’s .architects to investigate the cost of the substituted material purchased by the contractor. The architect’s duty generally is to supervise the construction job to see that ■the contractor complies with the plans and specifications; that the material that is ■placed in the building is of the type and •quality that the plans and specifications call for; that where there are substituted materials which are permitted under the contract, that such materials will fit into the ■plans and specifications under which the •contract is being performed.

We believe that the Board and its agents, the architects, were justified in accepting the representation of the contractor that he paid a certain sum for the substituted jalousies without having to go to the company which sold the jalousies to the contractor to determine the price actually paid by the contractor. Any other rule would place a heavy burden on the party having a building constructed. Thousands of items are often purchased by the contractor under a big building construction contract. When numerous items are substituted pursuant to the terms of a contract, certainly the owner and his agent, the architect, should be able to trust the contractor’s statement that he had paid a certain sum for the substituted item, without being negligent in so doing.

We are of the opinion that defendant’s Charge Number 4 given by the Court at its request and the refusal to give requested Charge Number 5 of the plaintiff were erroneous .in law and were prejudicial to the plaintiff.

“The office of an instruction is to enlighten the jury upon questions of law pertinent to the issues of fact submitted to them in the trial of the case. And an instruction which tends to confuse rather than enlighten, and which is calculated to and may have misled the jury and cause them to arrive at a conclusion that otherwise would not have been reached by them, is cause for reversal of the judgment.” Holman Livestock Co. v. Louisville and N. R. Co., 81 Fla. 194, 87 So. 750, 751, and cases there cited.

Case reversed and new trial ordered.

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


text:
    PARK CENTRAL HOTEL CO., Inc., Appellant, v. PARK CORPORATION, a Florida corporation, Joseph Rappaport and Harold Kramer, Appellees.
    No. 57-57.
    District Court of Appeal of Florida. Third District.
    Sept. 10, 1957.
    Rehearing Denied Oct. 9, 1957.
    Hylan H. Kout and Montague Rosenberg, Miami Beach, for appellant.
    Dixon, Dejarnette, Bradford & Williams; Miami, for appellees.
   PER CURIAM.

The appellant, who was the seller in a completed real estate transaction, filed its-complaint in three counts against the buyers. Count one, upon the theory of a contract to indemnify the plaintiff-seller from a possible brokerage commission, was. dismissed. Counts two and three were upon the theory of fraud based upon misrepresentation. All three counts set forth a written provision of their sales agreement to the effect that the buyers were not introduced to the negotiations which resulted in the sale through the efforts of any broker. The real estate broker concerned! had, prior to the institution of this cause, sued both the buyers and the seller in a previous suit and recovered judgment against them. The judgment in the previous suit was in two parts: 1st, against the seller upon its employment of the broker; 2nd, against the buyers upon a conspiracy with the seller to defraud the broker of his commission. Upon motion for summary judgment in the present action, the pleadings, judgment and exhibits in the prior suit by the broker, were made a part of the record. The court granted a summary judgment for the defendants. The judgment is affirmed.

The cause is before this Court upon three assignments of error: 1st, that the court erred in the dismissal of the first count of plaintiff’s complaint; 2nd, that the court erred by entering the summary final judgment for defendants; 3rd, that the court erred in failing to grant plaintiff’s motion for summary judgment.

The first count of the complaint alleged that the defendants did indemnify and agree to hold harmless the plaintiff of and from any and all liability for a broker’s commission by a provision in the sales agreement reading as follows: “The buyers represent to the seller that they were not introduced to the negotiations which resulted in the making of this agreement through the efforts of any registered real estate broker or salesman.” The plain words of the contract do not include an agreement to indemnify, nor do we find a contract of indemnity implied in them. The count was properly dismissed.

It is not contended that there was any genuine issue as to any material fact; therefore, a summary judgment was proper in this case. It is contended that the plaintiff was entitled to the judgment and that the defendants were not. The record of the prior cause in which the broker recovered judgment conclusively establishes the fact that the seller, appellant here, employed the broker and knowingly accepted the benefit of his employment. He can not now be heard to say that he was mislead to believe that no broker was involved.

The judgment is affirmed.

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


author: ALLEN, Judge.

text:
    Peter WILDEBOER and Anna Wildeboer, his wife, Appellants, v. John HACK, Appellee.
    No. 20.
    District Court of Appeal of Florida. Second District.
    Sept. 18, 1957.
    Rehearing Denied Oct. 4, 1957.

      J. B. Patterson, Ft. Lauderdale, for appellants.
    Abbott & Smith, Ft. Lauderdale, for appellee.
   ALLEN, Judge.

This appeal is to review a final decree in favor of the appellee, John Hack, who was the plaintiff below, in an action against Peter Wildeboer and Anna Wildeboer, his wife, the defendants below, appellants here. The action involved a boundary dispute.

The parties will be referred to by the ‘designations in the lower court.

The plaintiff was the owner of lot 3 and the West half of lot 4 of block 10 of Lauderdale Harbors, Section A. The defendants were the owners of lots 1 and 2 of block 1, Samarkand Isles. Samarkand Isles was a resubdivision, including lots 1 and 2 of block 10 of Lauderdale Harbors. The plats show that the east line of lot 2, block 10, Lauderdale Harbors was the same as the east line of lot 1, block 1, Samarkand Isles. The dispute arose over the location of the boundary line between lot 1, block 1, Samarkand Isles, which was the property of the defendants, and lot 3, block 10, Lauderdale Harbors, the property of the plaintiff. Two surveyors testified for the plaintiff and two for the defendants. The plaintiff’s witnesses testified that they based their opinions upon stakes and other evidences found on the lot lines of the original survey of Lauderdale Harbors, while the witnesses for the defendants based their testimony on an independent determination from a quarter section corner. Defendants’ witnesses located the disputed line approximately 3.48 feet further east than did plaintiff’s witnesses.

The testimony of the witnesses and the decision of the court raised the question of whether or not a junior survey should attempt to correct the descriptions in an older survey, or whether the surveyor, in making the junior survey, should determine where the lines were actually established in the older survey.

The lower court, in effect, held that the lines of the old survey should prevail even though a resurvey showed there was error in the dimensions of the lot in favor of the property owner in the new survey over the property owner in the old survey.

It was stated by Florida Supreme Court in Kelsey v. Lake Childs Co., 93 Fla. 743, 112 So. 887, that an original, actual survey of public lands of the federal government, on the faith of which rights have been acquired, control other surveys subsequently made by the government which affect such rights.

In the case of Akin v. Godwin, Fla.1950, 49 So.2d 604, 607, the Court said:

“In making a resurvey, the question is not where an entirely accurate survey would locate the lines, but where did the original survey locate such lines. Clark on Surveying and Boundaries, 2d Ed., Sec. 411, page 495; Kahn v. Delaware Securities Corporation, 114 Fla. 32, 153 So. 308; LeCompte v. Lueders, 90 Mich. 495, 51 N.W. 542; City of Racine v. Emerson, 85 Wis. 80, 55 N.W. 177; Dittrich v. Ubl, 216 Minn. 396, 13 N.W.2d 384. As stated in 8 Am.Jur., Boundaries, Section 102, page 819: ‘The object of a resurvey is to furnish proof of the location of the lost lines or monuments, not to dispute the correctness of or to control the original survey. The original survey in all cases, must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it.’ It is generally held, therefore, that a resurvey that changes lines and distances and purports to correct inaccuracies or mistakes in an old plat is not competent evidence of the true line fixed by the original plat. See Dittrich v. Ubl, 216 Minn. 396, 13 N.W.2d 384; Cragin v. Powell, 128 U.S. 691, 9 S.Ct. 203, 32 L.Ed. 566; City of Racine v. Emerson, 85 Wis. 80, 55 N.W. 177, 178.”

We have examined the record, including the testimony of the witnesses, and conclude there was sufficient testimony for the chancellor below to determine that the professional witnesses of the plaintiff used the correct method in determining the property lines of the parties in this case. Accordingly, the judgment of the lower court is hereby affirmed.

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


author: PEARSON, Judge.

text:
    Samuel A. YOUNGHANS, Appellant, v. STATE of Florida, Appellee.
    No. 57-20.
    District Court of Appeal of Florida. Third District.
    Sept. 10, 1957.
    Rehearing Denied Oct. 9, 1957.

      Robert C. Lane and Curtiss B. Hamilton, Miami, for appellant.
    Richard W. Ervin, Atty. Gen., and George R. Georgieff, Special Asst. Atty. Gen., for appellee.
   PEARSON, Judge.

The appellant was charged under Sec. 838.06, Florida Statutes 19SS, F.S.A., with accepting unauthorized compensation for performance of duty as a police officer in the City of Miami, Florida; Sec. 838.07, Florida Statutes 1955, F.S.A., provides the penalty for the violation of Sec. 838.06. The appellant was convicted and sentenced to one year in the state penitentiary. The salient portion of the information upon which the appellant was tried is as follows: “ * * * being then and there a duly qualified police officer of the municipality of the City of Miami, Florida, organized and existing under the laws of the State of Florida, did unlawfully accept compensation or other remuneration other than that provided by law, to wit: the sum of Seven Dollars, good and lawful money of the United States of America, from Charles J. Greenburg without reasonable grounds for believing that the said compensation or remuneration so accepted was authorized by law, for the performance, nonperformance or violation of an act, rule or regulation that was then incumbent upon the said Samuel A. Younghans, as such police officer of said municipality to administer, respect, perform, execute or to have executed, to wit: that the said Samuel A. Younghans was then and there a duly qualified police officer of said municipality and was authorized by said municipality to arrest persons within the corporate limits of said municipality who may be found by such police officer of violating the ordinances set by said municipality governing the moral conduct of such persons within said municipality, and that it was thereupon incumbent on the defendant as such municipal police officer, not to accept, or receive any reward, compensation or remuneration from any person charged by said police officer with a violation of any of the ordinances, rules or regulations of said municipality governing the moral conduct of persons within said municipality, and notwithstanding the duty thus incumbent upon the said Samuel A. Younghans as such municipal police officer, the said Samuel A. Younghans did then and there while acting as such municipal police officer, on the 2nd day of July, A.D. 1956, did stop the said Charles J. Greenburg while the said Charles J. Greenburg was within the city limits of said municipality and orally charged the said Charles J. Greenburg with being a lewd person and detained the said Charles J. Greenburg, and during the period of such detention aforesaid the said Samuel A. Younghans unlawfully accepted from the said Charles J. Greenburg, said Seven Dollars in money as compensation and remuneration upon an oral agreement and understanding with said Charles J. Green-burg, that his, the said Samuel A. Young-hans’ action and judgment, as such police officer of the City of Miami, Florida, would be influenced in this, that he would release the said Charles J. Greenburg from said charges of being a lewd person and would not further detain the said Charles J. Green-burg on said oral charge of being a lewd person aforesaid and after the said Samuel A. Younghans had received said Seven Dollars in money from said Charles J. Greenburg, the said Samuel A. Younghans released the said Charles J. Greenburg from further detention, which said compensation and remuneration said Samuel A. Young-hans did unlawfully accept as aforesaid * * As above stated, the act on which this charge was based is as follows: Sec. 838.06, Florida Statutes 1955, F.S.A.

“Unlawful for officers to accept unauthorized compensation for performance or nonperformance of duty. It is unlawful for any officer, state, county or municipal, or any public appointee, or any deputy of any such officer or appointee, to exact or accept any reward, compensation, or other remuneration other than those provided by law, from any person whatsoever for the performance, nonperformance or violation of any act, rule or regulation that may be incumbent upon the said officer or appointee to administer, respect, perform, execute or to have executed; provided, that nothing herein shall be construed so as to preclude a sheriff or his deputies, city marshal or policeman from accepting rewards or remuneration for services performed in apprehending any criminal.”

The appellant relies for reversal upon six assignments of error. The second assignment goes to the court’s refusal to grant a requested charge of, the defendant. This assignment was not argued, and will not be considered. The first and third assignments of error go to the sufficiency of the evidence to support the finding of the jury, and the fourth is to the effect that the verdict and the judgment is contrary to the law and evidence. These general assignments are relied upon as the basis for appellant’s contentions that (1) the evidence was insufficient for a conviction in that there was not introduced into evidence a copy of any ordinance of the City of Miami, specifying the duty that the defendant was alleged to have been performing at the time of the alleged acceptance of unauthorized compensation, and (2) that the trial court erred when it, of its own initiative, charged the jury by reading Sec. 838.06, supra, but failed to read Sec. 838.07, supra. The fifth and sixth assignments of error are to the effect that the appellant did not receive a fair trial, because of the participation of the trial judge in the questioning of the defendant. It is contended by the appellant the court erred in that the excessive questioning by the court was prejudicial to the appellant.

We find it most expeditious to dispose of the last question first. We have carefully examined the record of all of the proceedings had before the court, and while we find it is undeniable that the court participated actively in the questioning of the defendant, we do not find that this participation was prejudicial to defendant’s right to have a fair trial. The questions of the court were aimed exclusively toward a disclosure of the facts relied upon by the defense. A great many questions were necessary by the court inasmuch as the replies of the defendant were of such nature as to require additional interrogation by the court in order to determine their substance. Certainly, if the trial judge was not clear as to what a witness was attempting to state, he should have the witness clarify the statements. Clark v. State, 122 Fla. 310, 165 So. 44. The participation by the court in the questioning of the witness was not shown to have in any way prejudiced the right of the defendant to a fair trial. We find no error on assignments five and six.

The crime of which the defendant is accused is purely statutory, and it follows that each essential element of the offense as set forth in the statute must be proved. Johnson v. State ex rel. Fox, 99 Fla. 711, 127 So. 317; State ex rel. Grady v. Coleman, 133 Fla. 400, 183 So. 25. Since the courts do not take judicial notice of municipal ordinances, the failure to introduce the ordinance under which Greenburg was taken into custody must be fatal if the existence of such an ordinance is an essential element of the offense. Miami Shores Village v. Bessemer Properties, Fla.1951, 54 So.2d 108. The statute under consideration was analyzed in Richards v. State, 144 Fla. 177, 197 So. 772, 774, in which the Supreme Court stated:

“Section 7486 [F.S.A. § 838.06], while infected with the element of bribery, is much broader in scope than the bribery statutes. It reaches only the acceptor of the bribe, but it also includes the crime of extortion and affects the officer, his deputy, or appointee if he exacts or accepts a bribe for the performance, non-performance, or violation of any act, rule, or regulation that he may be called on to perform. It was framed in other words to reach and punish any misconduct on the part of a public officer or his deputy * * *.
* * * * * *
“ * * * The source from which the reward of bribe came is not material; the official conduct that it actuated is the gist of the offense. Hi ^ ,f

The record before us reveals that the defendant as a police officer but not on duty went into Bayfront Park to look for perverts. He found a prospect and took the prospect into custody. After conducting the prospect to the police station the officer released his prisoner from custody and accepted a payment of money. The method used to get the prospect to the police station and make him a prisoner is not an essential element of the crime. It is immaterial whether the prisoner was lawfully or unlawfully made a prisoner. See Moseley v. State, 25 Tex.App. 515, 8 S.W. 652, People v. Anderson, 75 Cal.App. 365, 242 P. 906, 909 and cases cited therein. But after he became the defendant-officer’s prisoner there were open to the defendant only two-courses of conduct as an officer. He could detain him or let him go. He released the prisoner and accepted a reward for his action. The act of releasing the prisoner was official conduct, and the jury found' that it was done in return for a bribe. We find that the existence of a valid ordinance under which the prisoner was taken into-custody was not an essential element of the crime.

In this connection the Supreme Court of Florida has pointed out that under this section the duty of the officer may be one that he himself has assumed without being required by law to do so. Ewing v. State, Fla.1955, 81 So.2d 185. The opinion, then quotes with approval the language used by the Supreme Court of Tennessee in the case of Wells v. State, 174 Tenn. 522, 129 S.W.2d 203, 204, 122 A.L.R. 948.

“The gravity of official misconduct is emphasized, in our opinion, if the act corruptly undertaken is beyond the authority of the officer. If an act is done under color of office, it is done officially.”

See also La Tour v. Stone, 139 Fla. 681, 190 So. 704.

It is next urged that the trial court erred in its charge when it read to the jury Sec. 838.06, supra, and failed to read Sec. 838.07, supra, which provides the penalty for the violation of the first section. The second named section reads as follows:

“Whoever violates the provisions of § 838.06 without reasonable ground for believing that the reward, compensation or remuneration exacted or accepted was authorized by law, shall be punished by imprisonment in the state prison not exceeding ten years or by fine not exceeding one thousand dollars.”

It must first be pointed out that the trial judge is not required to include the penalty for the offense in the charge. This is true «ven though the provision of Sec. 918.10(1) Florida Statutes 1955, F.S.A., is apparently to the contrary. Simmons v. State, 160 Fla. 626, 36 So.2d 207.

It is urged however that Sec. 838.07, supra, contains an essential element of the offense, to wit, “without reasonable ground for believing that the reward, compensation or remuneration exacted or accepted was authorized by law.” It is certainly true that a defendant is entitled to have the jury instructed on the law applicable to his theory of defense where there is evidence introduced in support thereof. Motley v. State, 155 Fla. 545, 20 So.2d 798. The court at the beginning of its charge read the information and the plea. The information specifically set out the language of the statutes, including the language above quoted. No evidence was submitted at the trial to attempt in any way to justify the acceptance of the bribe money. It was not even suggested by the defendant or any witness that there was any ground for believing the acceptance was authorized by law. The reading of the provision of the statute above pointed out could not have aided the defense offered. It could not have affected the verdict of the jury in one way or another. Therefore the failure to read Sec. 838.07, supra, was in any event harmless error.

For the reasons set forth the judgment is affirmed.

Affirmed.

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