author:
THORNAL, Justice.
      DREW, Justice ROBERTS, Justice PER CURIAM. GILLIS, Associate Justice

text:
    The STATE of Florida, ex rel. The FLORIDA BAR, Complainant, v. Evan T. EVANS, Respondent.
    Supreme Court of Florida, En Banc.
    Feb. 6, 1957.
    Rehearing Denied April 24, 1957.

      Delbridge L. Gibbs and John S. Duss, III, Jacksonville, for Florida Bar, complainant.
    L. J. Cushman, Miami, for respondent-
   THORNAL, Justice.

In accordance with the provisions of Articles X and XI of the Integration Rule of- The Florida Bar as such rule existed prior to December 6, 1955, the Board of Governors of The Florida Bar has filed in this Court its recommendation that the respondent Evan T. Evans be disbarred upon stated grounds hereafter mentioned.

The matter comes on for consideration upon a petition of the respondent Evans asking us to review, revise, modify or deny the findings and recommendations of said Board of Governors.

On September 6, 1955, The Florida Bar filed in this Court its com plaint against respondent Evans charging that: (a) he had been convicted of an infamous crime within the meaning of Section 454.18, Florida Statutes 1953, F.S.A., and that pursuant to said section he is not entitled to practice law; (b) he was guilty of conduct in the practice of his profession as an attorney at law in violation of Canon 30, Rule B, Section II, Code of Ethics, adopted by this Court January 27, 1941, 31 F.S.A.; (c) he was guilty of acts forbidden or prohibited by law within the meaning of Canon 32, Rule B, Section II, Code of Ethics, supra; and (d) he was guilty of professional misconduct within the meaning and intent of Articles X and XI of the Integration Rule of The Florida Bar, adopted by this Court March 4, 1950, • as Amended.

Thereafter, a Referee was appointed by this Court to hear and transcribe the evidence to be offered and to submit to the Board of Governors his report together with his recommendations and findings.

At the hearing before the Referee, The Florida Bar established that Mr. Evans had been indicted by a Grand Jury of the United States District Court of the Southern District of Florida for filing false and fraudulent income tax returns for the calendar years 1945 and 1946. It was shown that to this indictment he pleaded nolo con-tendere. Pursuant to this plea he was on June 25, 1952 convicted and adjudged guilty of filing false and fraudulent income tax returns in violation of Title 26 United States Code, Section 145(b). It was further shown that this judgment of conviction was never appealed, modified, revoked, rescinded or set aside. By reason of the foregoing The Bar contended that the respondent was guilty of the charges leveled against him by the complaint.

In defense of his position before the Referee, the respondent, by competent evidence which was not disputed, established that during the year 1950 and repeatedly thereafter he had suffered severe heart attacks (angina pectoris) which for all practical purposes totally incapacitated him ; that he pleaded nolo contendere to the income tax charges solely and only because his doctors advised him that if he undertook any extensive defense against the charges his life would be in danger; and finally that the plea of nolo contendere cannot be considered as an admission of guilt in any proceeding other than the immediate criminal proceeding in which the plea is submitted. In addition Mr. Evans offered the testimony of numerous reputable lawyers who stated that he enjoyed a good reputation in his community for honesty and integrity.

The Referee found that the proof offered by The Bar was sufficient to establish a conviction of an infamous crime within the meaning of Section 454.18, Florida Statutes, F.S.A.; that such proof justified disciplinary action under Articles X and XI of the Integration Rule; that the offense charged was an isolated offense and that the respondent enjoyed a good reputation for honesty and fair dealings in the community in which he resides. The Referee was of the view that Canon 30, Rule B, Section II, Code of Ethics, applies solely to conduct of a lawyer in his professional affairs but has no relation to his private conduct and, therefore, was not applicable. He also found that Canon 32, Rule B, Section II, Code of Ethics, does not purport to prescribe a rule of conduct or to define a ground for disbarment. The conclusion of the Referee was that the respondent should be disciplined by virtue of the provisions of Section 454.18, Florida Statutes, F.S.A. He recommended that respondent be suspended from the practice of law for a period of two years.

The report of the Referee was thereupon filed with and considered by the Board of Governors of The Florida Bar which thereupon submitted its recommendations to this Court. The Board of Governors approved the finding that respondent had been convicted of an infamous crime condemned by Section 454.18, Florida Statutes, F.S.A.; it disapproved the finding that Canon 32, Rule B, Section II, Code of Ethics, was inapplicable and, on the contrary, found this Canon to be applicable. The recommendation of a two-year suspension was disapproved and in lieu thereof the Board of Governors recommended disbarment. Respondent petitions for a review of this recommendation.

Section 454.18, Florida Statutes, F.S.A. reads as follows:

“No sheriff, or clerk of any court, or deputy of either, shall practice in this state, nor shall any person not of good moral character, or who has been convicted of an infamous crime be entitled to practice. But no person shall be denied the right to practice on account of sex, race or color. And any person, whether an attorney or not, or whether within the exceptions mentioned above or not, may conduct his own cause in any court of this state, or before any public board, committee, or officer, subject to the lawful rules and discipline of such court, board, committee or officer.”

Canon 32, Rule B, Section II, of the Code of Ethics, adopted by this Court on January 27, 1941, 31 F.S.A. p. 784, is as follows:

“32. Any attorney who shall do or be guilty of any of the acts forbidden or prohibited by law or rules of court may be subject to disciplinary action by public or private reprimand, or by suspension from the practice of law, or by exclusion and disbarment therefrom.”

It is the alleged violation of this statute and this prescribed rule of conduct that complainant asserts was sufficiently established to sustain the recommendation of disbarment.

The respondent Evans contends: (a) that the offense with which he was charged in the federal court was not an “infamous crime” within the contemplation of Section 454.18, Florida Statutes, F.S.A.; (b) that even if it were, his plea of nolo contendere was not an admission of guilt except as to that particular proceeding and cannot be asserted as evidence of his guilt in this proceeding; (c) Canon 32, Rule B, Section II, of the Code of Ethics, adopted January 27, 1941, merely prescribes a penalty but does not define a ground for disbarment; and (d) the sole, evidence relied upon by The Bar, to wit: the indictment, the plea of nolo contendere and the judgment of conviction and guilt is insufficient to sustain disciplinary action in the absence of supporting evidence to establish the commission of a particular act showing the respondent to be unfit to engage in the practice of law. In other words, he asserts, that conviction of the offense charged on a plea of nolo contendere does not in and of itself prove the commission of an act sufficient to invoke the disciplinary authority of the Court under the Integration Rule.

The legal profession with admirable candor has recognized the need for a code of ethical conduct to prescribe the standards for the governance of itself. We find these standards in the Code of Ethics prescribed by this Court. 31 Florida Statutes Annotated, p. 765. The lawyer is an essential component of the administration of justice. A courtroom without a lawyer would be like a hospital without a doctor or a house of God without a spiritual guide. So it is that a lawyer is an officer of the Court. As such his conduct is subject to judicial supervision and scrutiny. Especially since the integration of The Florida Bar in 1950 the prescription of ethical standards, the designation of educational and moral requirements, and the exercise of supervisory jurisdiction are all peculiarly judicial functions. In more recent years the legislative branch of the government recognized this historic prerogative of the judicial branch when it adopted Chapter 29796, Law of 1955, F. S.A. §§ 454.021, 454.022, and when it proposed for approval the recent amendment to and revision of Section 5, Article 5, of the Florida Constitution, F.S.A. On November 6, 1956, the people of Florida themselves confirmed the fact when they overwhelmingly approved the revision of Section 5, Article 5, Florida Constitution. Section 23 of that amendment specifically provides that “the Supreme Court shall have exclusive jurisdiction over the admission to the practice of law and the discipline of persons admitted.” On the effective date of this amendment we will no longer recognize any legislative control on the subject of who may be admitted to the practice of law or any legislative determination on the subject of who must be or shall be disciplined. These will then be the exclusive functions of the judiciary. State ex rel. Florida Bar v. Murrell, Fla., 74 So.2d 221.

Section 454.18, Florida Statutes, F.S.A. originated as Section 18, Chapter 10175, Laws of 1925, which was the statute that established the former Florida Board of Bar Examiners. The key words are “ * * * nor shall any person * * * who has been convicted of an infamous crime be entitled to practice.”

Respondent contends that a wilful attempt to evade or defeat income taxes as condemned by Section 145(b), Title 26 United States Code, is not an “infamous crime” within the contemplation of this statute. Admittedly, by the terms of Section 145(b), supra, it is a federal felony calling for a fine up to $10,000 or imprisonment up to five years or both. It is asserted however that the offense is merely malum prohibitum not malum in se; that it involves no moral turpitude or vileness or baseness of character such as perjury, burglary or robbery; that fraud as such is not an essential element, and that one or all of the foregoing is an essential component of an “infamous crime.” Numerous authorities are cited to support the contention. Respondent then concludes that he cannot be disciplined under the provisions of Section 454.18, Florida Statutes, F.S.A. We deem it unnecessary to undertake to belabor this point or pass on the question raised. We adopt this view because Canon 32, Rule B, Section II, Code of Ethics, appears adequate to cover the point. While we give due consideration to the provisions of Section 454.18, Florida Statutes, F.S.A., we are not concluded by its provisions. By Canon 32, supra, it is in part provided that “any attorney who shall do or be guilty of any of the acts forbidden or prohibited by law” may be subject to disciplinary action. There can be no doubt here that Mr. Evans was adjudged guilty of an act forbidden by law, to wit: a violation of Section 145(b), Title 26 U.S.C. He was therefore subject to disciplinary action. See Chapter III, Legal Ethics by Henry S. Drinker; State ex rel. Florida Bar v. DeCarlo, order filed April 26, 1956; and State ex rel. Florida Bar v. Turner, order filed November 14, 1956. This leads us to the view that the Referee was in error in holding Canon 32, supra, inapplicable to the case before us.

As to the sufficiency of the evidence to sustain the alleged violation of Canon 32, respondent asserts that the judgment of conviction and guilt in the federal court, standing alone, was inadequate. He relies heavily on Branch v. State, 99 Fla. 444, 128 So. 487, 488, to support him. We do not agree that the case is controlling. That case turned on the proposition that the accused attorney was not allowed to testify as to “the facts and circumstances leading up to” the criminal assault of which he had been convicted. Moreover, a careful examination of the case will reveal that three of the then six justices of the Court were of the view that the criminal court judgment relied on was ineffective in that it contained no formal adjudication of guilt but that if it had it would have been sufficient to disbar. A fourth Judge, Justice Ellis, was of the view that the judgment even with the technical defect was sufficient. The judgment of the court clearly fails to support the conclusion contended for by respondent.

At the same time the petitioner claims that State v. Snyder, 1939, 136 Fla. 875, 187 So. 381, concludes this point against respondent. We do not agree to this either. State v. Snyder, supra, does contain language to the effect that under Section 454.-18, Florida Statutes, F.S.A., Sec. 4196, Compiled General Laws, a conviction of embezzlement sua sponte disbars an attorney. Actually this observation was totally unnecessary to the decision. It was a statement which may be classed as dictum and therefore not controlling as precedent. The case actually stood for the proposition that a pardon does not sua sponte operate to eliminate the taint of the conviction so far as disbarment is concerned. See also, Branch v. State, 120 Fla. 666, 163 So. 48. Furthermore, as we have pointed out, this statute no longer binds us with any conclusive effect.

As so analyzed, the first Branch case and the Snyder case are entirely harmonious. The sum of both of them is that, in a disbarment proceeding based on conviction of a crime, the proof of conviction and an adjudication of guilt are sufficient to establish a prima facie case for disciplinary action. Due process, however, requires that the accused lawyer shall be given full opportunity to explain the circumstances and otherwise offer testimony in excuse or in mitigation of the penalty.

In the instant case this procedure was followed. The respondent was given a full and complete hearing. State ex rel. Florida Bar v. Caffee, Fla.1954, 74 So.2d 229. He had every opportunity to explain the facts and circumstances preceding and surrounding the adjudication of guilt pursuant to his plea of nolo contendere. His unfortunate physical condition was elaborated upon in great detail starting with the year 1950. He did not at any time categorically deny the charges that had been preferred against him by the federal government. He did thoroughly undertake to explain his declination to defend himself against the charges on the basis of his obvious critical physical condition which so far as this record reveals is admitted.

The record comes to us therefore on a judgment of guilt of a federal felony (income tax evasion) based on a plea of nolo contendere necessitated by the serious cardiac condition of the accused. Does this record justify disciplinary action under Articles X and XI of our Bar Integration Rule? We think that it does.

We are of the view that when a lawyer is found guilty of a felony the adjudication of guilt is sufficient to justify setting in motion the disciplinary process. It may not, of itself, always prove him unfit to practice law. However, when not adequately controverted or explained after a full and fair hearing, the judgment of guilt may then constitute the basis for disciplinary action. 3 Fla.Jur. “Attorneys at Law” Section 97; State ex rel. Arpagaus v. Todd, 225 Minn. 91, 29 N.W.2d 810, 175 A.L.R. 776.

Many times have we said that the practice of law is a privilege. The standing of the profession in a community is often measured in the lay mind by the deviations of the small minority who break the rules rather than by the fidelity and devotion of the overwhelming majority who regard their license to practice as a sacred trust. So it is that in disciplinary matters we justly impose higher standards of conduct on the lawyer than we demand of the layman who is not charged with a similar trust. We do so in this case.

We therefore hold that this record sustains the recommendation of both the Referee and the Board of Governors of The Florida Bar that appropriate disciplinary action be taken. The nature of the action that would seem appropriate on the showing made must now be determined.

We must approach this problem with an understanding .of the factors that should influence our judgment. Mr. Justice Terrell who has many times written for the Court on this subject outlined these elements in State ex rel. Florida Bar v. Murrell, Fla.1954, 74 So.2d 221, 227, when he wrote:

“The judgment in a case like this must have these factors in mind: (1) it must be just to the public and must be designed to correct any anti-social tendency on the part of respondent as well as deter others who might tend to engage in like violations; (2) it must be fair to respondent at the same time the duty of the court to society is paramount.”

Measured by these standards the question recurs as to whether respondent should be disbarred or suspended.

Our study of the record sustains the thought that because of a severe cardiac condition (angina pectoris) respondent will never again be able to engage actively in the practice of law. He is now approaching 57 years of age. The medical conclusions as to his physical disablement are supported not only by his own physicians, themselves eminent in their field, but also by two eminent heart specialists who examined respondent at the request of the federal government during his income tax troubles. Despite the fact that he was found guilty of a serious offense, there was undisputed testimony in the record, and the Referee of this Court actually found that “respondent has a good reputation for honesty and fair dealings in the community in which he resides.” If complainant had any evidence to the contrary it was not tendered by the record. The offense of which respondent was convicted did not involve a vileness or baseness of character such as perjury, bribery or embezzlement, albeit it was a serious violation of the canons of ethics governing the profession and certainly one not to be lightly regarded or condoned.

In reviewing our most nearly analogous precedents involving similar offenses we find two cases of similar import. In State ex rel. Florida Bar v. DeCarlo, supra, the Board of Governors of The Florida Bar recommended and this Court approved a suspension of one year for violation of the income tax laws, the violation being a federal felony. In State ex rel. Florida Bar v. Turner, supra, the Board of Governors recommended and this Court approved five years probation for one found guilty of a wilful failure to file income tax returns.

In another recent case, State ex rel. Florida Bar v. Sears, Fla.1956, 89 So.2d 494, the Referee felt that conviction of burglary required automatic disbarment under Section 454.18, Florida Statutes, F.S.A. The Board of Governors instead recommended suspension until his civil rights may be restored. This Court approved suspension.

Giving prime weight to the factor that the protection of the public against unworthy lawyers is a salient objective of all disciplinary proceedings and balancing this factor against our responsibility to do justice in the particular case, it is our view that the recommendation of the Referee that respondent be suspended from the practice of law for a period of two years is a just and effective judgment. In the language of Mr. Justice Terrell, quoted above, it is our view that such a judgment will be just to the public in that it should correct any anti-social tendency on the part of the respondent and should deter others who might tend to engage in like violations. We deem it fair to the respondent on the basis of the record presented to us.

It follows therefore that the recommendation for disbarment is not approved but, consistent with the recommendation of the Referee, it is ordered that the respondent be and he is hereby suspended from the practice of law for two years from the date of this order.

HOBSON and O’CONNELL, JJ., and GILLIS, Associate Justice, concur.

THOMAS, Acting C. J., and DREW, J., concur specially.

ROBERTS, J., dissents.

DREW, Justice

(concurring specially).

I agree to all of opinion and judgment except that I am of the view that all costs should be assessed against respondent which have been incurred by The Florida Bar through the proceedings of the referee.

THOMAS, J., concurs.

ROBERTS, Justice

(dissenting).

The majority opinion suspends the professional license of respondent for a period of two years, because he entered a plea of nolo contendere under the pressure of severe illness to an indictment charging a violation of the U. S. Internal Revenue Code. In my opinion, such a violation is malum prohibitum and not malum in se, and therefore is not a sufficient basis, standing alone, to deprive a citizen of this state of his professional status. In Duggar v. State, Fla., 43 So.2d 860, this court refused to disqualify a juror in the state court where he had been convicted in the federal court of the U. S. Revenue laws relating to whiskey — on the basis that such a violation of the federal law did not affect his qualification as a juror under state law. The record is replete with evidence that the respondent has a good reputation for honesty and fair dealing in the community in which he resides, and the referee found such to be a fact. The complainant did not offer any evidence to the contrary. I think the matter is influenced by the decision of this court in the Duggar case. Further, it is my opinion that a plea of nolo contendere to a charge of violating the U. S. Internal Revenue Code, in the absence of some other dereliction, is not sufficient to deprive the respondent of his professional status. Nor have I found in this court where any of the other professions — architects, engineers, physicians, etc. — have sought to construe such a violation as disqualifying their members from practicing their profession, where such person otherwise has a good reputation for honesty and fair dealing.

Further, even if sufficient to coristitüté a violation of the Code of Ethics, uflder the record here present, suspension for a period of two years is excessive. Two analogous cases have recently been before this court, viz. DeCarlo and Turner, both cited in the majority opinion. DeCarlo, after being adjudged guilty of a violation of federal income tax laws, was suspended for a period of one year, and Turner, after being adjudged guilty of an income tax violation, was placed on probation for five years, with no suspension of his professional license. Under all the evidence in this case, the respondent, at most, should be placed on probation.

I therefore respectfully dissent.

On Petition for Rehearing

PER CURIAM.

Counsel for appellant having filed in this cause petition for rehearing and it having been considered, it is ordered that said petition be and the same is hereby denied.

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

ROBERTS, J., and GILLIS, Associate Justice, dissent.

GILLIS, Associate Justice

(dissenting).

With considerable reluctance and apologies to the participating members of the Court with whom I sat as a pinch-hitter — to use a baseball expression — on the occasion of the oral argument on original appeal, after a more painstaking review and consideration of the record and the final majority opinion, I am constrained to withdraw my concurrence in the opinion filed February 6, 1957, and in the denial of the petition for rehearing.

It appears by the record and according tc the recitals in the opinion that the prosecuting authority, -The Florida Bar, established by testimony produced before the Referee that the respondent had been indicted by a federal grand jury for filing false and fraudulent income tax returns for the years 1945 and 1946, to which he entered a plea of nolo contendere and was convicted and adjudged guilty by reason of which The Florida Bar “contended that the respandent was guilty of the charges against him” (emphasis supplied).

• The charges against the respondent were in four counts:

(a) He had been convicted of an infamous crime within the meaning of Section 454.18, Florida Statutes 1953, F.S.A.

(b) He was guilty of conduct in the practice of his profession in violation of Canon 30, Rule B, Section II, Code of Ethics, 31 F.S.A.

(c) He was guilty of acts forbidden or prohibited by law within the meaning of Canon 32, Rule B, Section II, Code of Ethics; and

(d) He was guilty of professional misconduct within the meaning and intent of Articles X and XI of the Integration Rules of The Florida Bar, 31 F.S.A.

The Referee appears to have found the proof sufficient to establish conviction of an “infamous crime” within the meaning of F.S. § 454.18, F.S.A. justifying disciplinary action under Article XI of the Integration Rules, but found Canons 30 and 32 of Rule B, Code of Ethics, inapplicable because of their relation to professional rather than private conduct, thereby disposing of all counts of the complaint except (a) as coupled with Integration Rule XI which provides “conviction * * * in any court of this state or of any other state, territory, or of the United States of any crime or offense that is a felony under the laws enforced [sic] by such court shall be conclusive proof * *

Assuming the dual role of prosecutor and arbiter the complainant “approved” the finding of the Referee that the respondent had been convicted of an infamous crime under F.S. § 454.18, F.S.A., “disapproved” his finding that Canon 32, Rule B, Section II, Code of Ethics, was inapplicable, and by not mentioning it inferentially agreed that Canon 30, Rule B, Section II, was also inapplicable.

Significantly neither the Referee nor the complainant found or suggested that the respondent had been guilty of professional misconduct. Rather the contrary is made to appear. Neither does the opinion appear to regard respondent’s professional as distinguished from his private conduct to be involved, but that his conviction of an offense — an isolated case — against another sovereignty is sufficient to justify suspension under Article XI of the Integration Rules, the original draft of which was’ adopted March 4, 1950, long after the commission of the crime of which respondent was found guilty and when membership in any association of lawyers was a matter of choice rather than of compulsion as under the present régime — comparable to the closed shop in organized labor circles to which Section 12 of the Declaration of Rights, as amended in 1944, F.S.A., may well be applicable — under which the complainant by rule of court occupies its present position of eminence with power and authority over its constituent membership to an extent unprecedented until the comparatively recent past during which radical changes have been sought and attained in response to what may be politely termed an hysterical urge for innovations in governmental establishments generally, a trend toward bureaucracy originally inspired by the euphonious philosophy of the so-called New Deal and encouraged and given renewed impetus by the sweeter sounding tenets of the so-called Fair Deal.

Since the judgment of the majority is based upon the commission of an offense against a federal statute, .which in this instance at least was “enforced”, and not against the Florida Statute cited, except by association as a violation of Article XI of the Integration Rules, not in existence at the time of the offense, as already observed, it seems not impertinent to remind ourselves of that which is a matter of common knowledge, i. e., that federal income tax laws are violated with notorious frequency and impunity, claims of millions settled for paltry thousands, often entirely forgiven. In other words, avoidance of income tax payments by whatever device has become fashionable, the order of the day, a mark of superior business acumen without odium.

If as observed in the dissenting opinion of Justice ROBERTS the holding of this Court in Duggar v. State, Fla., 4 So.2d 860, should influence the decision in this case, the later case of Lefcourt v. Streit, Fla., 91 So.2d 852, in which conviction of perjury, easily falling into the category of infamous crimes, in another state did not render the convict incompetent as a witness in any court of this state, notwithstanding the provisions of F.S. § 90.07, F.S.A., is perhaps more persuasive.

Section 17 of our Declaration of Rights prohibits the enactment of ex post facto laws and the rule is well established that a law which makes an act criminal that was not criminal at the time of its enactment, or which increases the punishment, “or which relation of the punishment alters the situation of the party to his disadvantage” falls under the constitutional ban. Higginbotham v. State, 88 Fla. 26, 101 So. 233.

While this Court long ago adopted the rule that a disbarment proceeding is not a criminal prosecution and that a judgment of conviction in such a proceeding can be but a revocation of a formerly granted permit to practice law, State ex rel. Keyhoe v. McRae, 49 Fla. 389, 38 So. 605, 606, the rules and regulations of The Florida Bar have now been given the force and effect of law under which punishment may be inflicted as severe and humiliating and often more disastrous, not only to the offender but to his unoffending family, than imprisonment in the state ^prison consequent upon conviction of a felony, therefore strikingly analogous to criminal statutes.

Desirable as purity of the legal profession is and commendable as professed purposes and objectives of The Florida Bar may be, and in recognition of the investiture in this Court by consent of the people of “exclusive jurisdiction over the admission to the practice of law and the discipline of persons admitted” independent of “any legislative determination on the subject of who. must be or shall be disciplined” as announced in the opinion, it would seem not only equally desirable but incumbent upon the Court as the final arbiter of the law and the facts — and as the executioner —from whose judgment there is no appeal save and except to the individual consciences of its members, in controversies where as here the activities of the supervising agency seeking the removal from its ranks of one of its members, to proceed with extreme caution to the end that every constitutional right of the accused be protected and that he be not exposed to public contempt, hatred and ' ridicule by the arbitrary and arrogant exercise of authority sometimes manifested in legal circles with a pattern of which this Court has had recent occasion to deal. '

While the powers vested in this Court by Section 23 of Article V of the Constitution adopted November 6, 1956, are broad and comprehensive, it is interesting to note that in the early case of State ex rel. Fowler v. Finley, 30 Fla. 325, 11 So. 674, 675, 18 L.R. A. 401, a disbarment proceeding, the Court took occasion to say of the delegation to another of the authority to take the testimony that the Court in so doing heard the evidence only by proxy and that as the trier of facts the judge should occupy the same position as that of a jury in the trial of a criminal case “so that he may observe the manner of the witnesses, and may give to their evidence credence or disbelief * * * according as their manner of testifying may indicate prejudice, malice, or other sinister motive to subserve.”

The power to purge the legal profession of unworthy members is traditionally inherent in the courts and has been exercised from time immemorial but until of late in proceedings instituted by constitutionally created prosecuting officials, not by competitors, and carried to conclusion under the supervision of a judge in position to evaluate the evidence relied upon — in the light not only of the facts but of the motivating influences prompting the inquiry and the atmosphere generally surrounding the case.

It was said by this Court in State ex rel. Florida Bar v. Murrell, Fla., 74 So.2d 221, 223, on authority of well-known authors that “disbarment is the extreme measure of discipline and should be resorted to only in cases where the lawyer demonstrates an attitude or course of conduct wholly inconsistent with approved professional standards”, and that “for isolated acts censure, public or private, is more appropriate” (emphasis supplied).

I am acutely conscious of the recently conferred authority of this Court in the matter of admission and discipline of attorneys, particularly to exercise that authority through commissions consisting of members of the bar of its own choosing, and to prescribe the procedure to be followed. My position is simply one of hesitant disagreement with the final judgment.

The respondent is well advanced in years, suffering from maladies that have already perhaps ended his professional career as completely and permanently as a judgment of disbarment would have done.

The Referee found it unnecessary and therefore did not determine whether the crime of which respondent was found guilty involved moral turpitude. It is stated in the opinion that “there was undisputed testimony in the record and the Referee of this Court actually found that ‘the respondent has a good reputation for honesty and fair dealings in the community in which he resides.’ If complainant had any evidence to the contrary it was not tendered by the record. The offense of which respondent was convicted did not involve a vileness or baseness of character such as perjury, bribery, or embezzlement”.

It would seem difficult indeed to find words more clearly calculated to express the idea that the dereliction charged to the respondent was purely technical, involving no taint of infamy. Furthermore, even though the constitutional inhibition against ex post facto laws is not to be considered, the retrospective application of the rule invoked is, in my humble judgment, wholly unwarranted in the circumstances of this case.

I would dismiss the complaint.

For reasons stated I would grant the rehearing and recede from the former opinion.

RüüFRTS, J., concurs.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James W. RINGO, Appellant, v. INVESTORS DIVERSIFIED SERVICES, Inc., Appellee.
    Supreme Court of Florida, Division B.
    April 10, 1957.
   PER CURIAM.

Affirmed.


text:
    CITY OF NORTH MIAMI, a Municipal Corporation, and Robert V. Youkey, City Manager of the City of North Miami, Appellants, v. Edmund VISCHI, Appellee.
    Supreme Court of Florida, Division A.
    April 12, 1957.
   PER CURIAM.

Affirmed.


text:
    Robert W. OLSEN, as Administrator of the Estate of Fannie McFarlin Bidwell, Deceased, and Janette B. Schuster, Appellants, v. FLORIDA CONFERENCE ASSOCIATION OF SEVENTH DAY ADVENTISTS, a Florida Corporation, Appellee.
    Supreme Court of Florida, Division A.
    April 17, 1957.
   PER CURIAM.

Affirmed.


text:
    Homer BROWDER, Appellant, v. Abbie Stancel BROWDER, Appellee.
    Supreme Court of Florida, Division A.
    April 17, 1957.
   PER CURIAM.

Affirmed.


text:
    Bernard FLEISHER and Frede Fleisher, his Wife, Appellants, v. SAX ENTERPRISES, Inc., a Florida Corporation, Appellee.
    Supreme Court of Florida, Division A.
    April 10, 1957.
   PER CURIAM.

Affirmed.


text:
    STATE ROAD DEPARTMENT OF FLORIDA, an Agency of the State of Florida, and Alachua County, a Political Subdivision of the State of Florida, Appellants, v. Eugene C. HARTMAN et al., Appellees.
    Supreme Court of Florida, Division B.
    April 17, 1957.
   PER CURIAM.

Affirmed.


author: O’CONNELL, Justice. MILLEDGE, Associate Justice O’CONNELL, Justice.

text:
    NATIONAL RATING BUREAU, Inc., a Florida corporation, Raymond K. Tigges and Bell B. Tigges, his wife, Appellants, v. FLORIDA POWER CORPORATION, Appellee.
    Supreme Court of Florida. En Banc.
    Dec. 19, 1956.
    On Rehearing May 1, 1957.

      L. D. Martin, St. Petersburg, for appellants.
    Mann, Harrison, Stone, Roney & Mann and Paul H. Roney, St. Petersburg, for ap-pellee.
   O’CONNELL, Justice.

Appellants were plaintiffs and appellees were defendants in the trial court. The parties will be referred to as they stood in the trial court.

This was an action in chancery wherein the plaintiffs sought to enjoin the defendant, a public utility corporation, from occupying or using, until payment therefor, a one hundred foot strip across lands alleged to be owned by the plaintiffs. The 100 ft. strip included and ran on both sides of a 30 ft. street, which street was dedicated to the public by subdivision plat. Said street, hereinafter referred to as 68th Avenue, was not developed and the dedication thereof had not been accepted either by public user or action of the County Commission of Pinellas County. The street was in the unincorporated area of the County. The bill of complaint also prayed that the chancellor award damages for the cutting of certain trees on the 100 ft. strip, including 68th Avenue, attorney’s fees and costs of the suit.

The evidence reveals that defendant initially intended to extend an electric transmission line across poles to be placed on 68th Avenue. In preparation for the erection of said line the defendant engaged one W. W. Hardee to clear the 30 foot right-of-way of 68th Avenue. The contract with Hardee and the instructions of the defendant to Hardee were clear. Hardee was to limit his activity to clearing the street right-of-way. Through an admitted error on the part of Hardee, these instructions were not followed by him and he cleared a strip 100 feet wide. Trees were cut not only from the 30 foot right-of-way, but also from the lands of the plaintiffs abutting the street. It appears that at most a total of 25 slash pine trees approximately 8" in diameter were cut from the right-of-way of 68th Avenue and from the lands on both sides thereof. From three to five of these trees were cut from the street right-of-way.

Defendant admitted in its answer that it intended to extend an electric transmission line along 68th Avenue, but denied that it intended to appropriate or use any lands outside said street right-of-way. At the final hearing the defendant announced that it no longer intended to put its lines on 68th Avenue where it abutted plaintiffs’ property and was -allowed to amend its answer to so state. The question to be decided by the chancellor was thereby limited to one of damages.

The parties agreed thát they did not wish a jury trial on the question of damages and agreed that such question should be determined by the chancellor.

After receiving evidence, the chancellor entered a decree dismissing the bill of complaint at the cost of the plaintiffs. A petition for rehearing was denied and the plaintiffs appealed.

In his findings of fact, which were incorporated by reference in the final decree, the Court found that trees had been cut both from the right-of-way of 68th Avenue and from the adjacent lands owned by some of the plaintiffs; that there was no liability on defendant for the damage done in cutting the trees outside the right-of-way of 68th Avenue; and in effect that although the defendant was responsible for cutting the trees from the right-of-way of said street that there was no damage.

In the final decree the chancellor stated that “ * * * if any trespass had been committed, it had been committed by a third party not a party to this cause * * * ” and he then dismissed the bill.

Plaintiffs contend that the chancellor committed error in finding no damage to have been suffered by them from the cutting of the trees, both on and off the street right-of-way, and in his refusing to assess costs and attorney’s fees against the defendant.

The measure of damages, if any damages were incurred by plaintiffs, would be the depreciation in value of the land as a result of the cutting of the trees. Gasque v. Ball, 1913, 65 Fla. 383, 62 So. 215.

The chancellor found that no damage had been suffered by the cutting of the trees in the right-of-way of 68th Avenue. The evidence on this question was in conflict and we will not therefore disturb his finding.

However, he did not determine whether the cutting of the trees on the property on either side of said street right-of-way damaged plaintiffs’ property. He reasoned that it was unnecessary to do so since such damage, if any, was the responsibility of Hardee, who cleared the land, and whom the chancellor held to be an independent contractor.

We have no difficulty in agreeing with the chancellor that Hardee was an independent contractor.

For the purposes of deciding the case before us it is unnecessary to determine whether the street in question was dedicated or not. The results reached are the same in either case. . (

Nor is it necessary for us to determine whether the placing of poles and lines for transmission of electricity for commercial use is a public use of a street right-of-way which may be made without placing an additional burden on the interest of an abutting owner to the lands under the street. In this case no poles or lines were placed thereon.

The question for us to decide is whether the defendant had the right to cut the trees from the street without compensating the owner of the abutting lands. If the defendant did not have this right then its contract with Hardee was for a tortious purpose and even though Hardee was an independent contractor defendant would be responsible for the damage to the abutting owners, not only for the trees cut in the right-of-way but on the adjacent lands as well. The independent contractor doctrine does not relieve the employer of responsibility for the negligent acts of the contractor where the work to be done under the contract, of itself, operates to injure the property of another. Weinman v. De Palma, 1914, 232 U.S. 571, 34 S.Ct. 370, 58 L.Ed. 733; Mall v. C. & W. Rural Electric Cooperative Ass’n, 1950, 168 Kan. 518, 213 P.2d 993. See Annotation in 21 A.L.R. 1262 and cases there cited, also 27 Am.Jur., Independent Contractors, Sec. 40.

There are authorities which hold that an abutting owner has a property interest in trees in a street adjoining his property which gives to him a right to recover for destruction thereof by a public utility furnishing light and power for commercial use. Mall v. C. & W. Rural Electric Cooperative Ass’n, supra; Alabama Power Co. v. Christian, 1927, 216 Ala. 160, 112 So. 763 and 25 Am.Jur., Highways, Sections 299 and 301.

We feel that the decisions of these authorities represent the better view, although there is conflict in the authorities on the question.

Therefore, except where the right to do so has been waived or conveyed away by an abutting owner and subject to valid laws and ordinances affecting the same, we hold that where an abutting owner owns the fee in a portion of a rural street occupied by a tree, he may recover for dam-' ages done to such tree by a public utility furnishing light and power for commercial use.

In view of this conclusion we decide that it was error for the chancellor to hold that the defendant was not responsible for the acts of his contractor, Hardee, in cutting the trees on the lands of the plaintiffs. Such a holding follows our conclusion that the act contracted for being tortious, the defendant cannot escape responsibility for the acts of the contractor because he was an independent contractor. Our decision would necessarily be otherwise if the defendant had the right to cut the trees on the right-of-way without compensating the abutting owner for any damage occasioned thereby. The chancellor should have determined the damage, if any, occasioned by the cutting of the trees on plaintiffs’ lands.

This leaves to be disposed of the question of attorney’s fees and costs.

Appellants contend that the case of State Road Dept. v. Bender, 1941, 147 Fla. 15, 2 So.2d 298 authorizes an award to them of attorneys’ fees. We do not so construe the holding in that case. In reviewing the record in that case it is clear that the chancellor granted the fees only because the State Road Dept, in its answer prayed for and was granted an easement over the lands of the plaintiffs in that suit. The chancellor there stated specifically that he allowed a fee comparable to that which would have been allowed if the easement had been condemned by the State Road Dept. There was no affirmative relief prayed for or granted in the suit now before us.

The chancellor committed no error in his refusal to grant attorneys’ fees.

The assessment of costs in an equity action is discretionary with the chancellor. In the absence of a clear showing of abuse of discretion we will not disturb his ruling as to costs. In this case costs were assessed against the plaintiffs. While we do not hold that the chancellor abused his discretion, we invite his attention to the fact that the litigation before us was provoked by what we feel to be the wrongful act of the defendant.

This cause is remanded to the chancellor for the purpose of determining, either on the record now existing or by taking of new evidence, the damage suffered by plaintiffs, or any of them, by the cutting of trees on their property and for a reconsideration of the assessment of costs between or against the parties.

Affirmed in part and reversed in part.

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

ROBERTS and THORNAL, JJ., not participating.

MILLEDGE, Associate Justice, dissents.

MILLEDGE, Associate Justice

(dissenting).

I agree with the majority of the court that a trespass was committed by the defendant. It follows that the plaintiff is entitled to a decree, at least for nominal damages, and is entitled as a matter of right to his costs. While the case was tried on the equity side of the court, the right sought to be vindicated was legal, not equitable, and costs should be assessed as in an action at law. The plaintiff has sought attorney’s fees and again I agree with the majority that attorney’s fees cannot be awarded in this kind of proceeding. The situation warrants, I think, calling to the attention of the trial judge, that exemplary damages may be awarded where the trespass was wilful. A case for punitive damages was made in Hutchinson v. Courtney, 86 Fla. 556, 98 So. 582, on facts weaker than the present case. Also of interest in this connection is Brown v. Asheville Electric Light Co., 138 N.C. 533, 51 S.E. 62, 69 L.R.A. 631; 52 Am.Jur. 878. The actual expenses to which a plaintiff has been put in resisting an invasion of his land may well be considered by a court in measuring punitive damages. If those who, without warrant or excuse, trespass upon another’s land are made to pay the full expenses incurred by the wronged owner of the land, this may serve as a deterrent to others contemplating a like course. Anything less is an active encouragement to the powerful to invade the property rights of their less prosperous neighbors, who cannot afford the cost of repelling the invasion.

If I understand it correctly, the majority opinion holds that the defendant was guilty of a trespass not only for cutting the trees on the right of way, but for cutting trees on the plaintiff’s adjacent land as well. I agree with the proposition that the independent contractor doctrine does not relieve the employer of responsibility for the negligent acts of the contractor where the work to be done under the contract, of itself, operates to injure the property of another. For that very reason the defendant cannot escape liability for the trespass on the right of way because he employed an independent contractor to cut the trees. The independent contractor could not discharge his contract without committing a trespass. The liability of the defendant is the same as though the cutting were done by the defendant’s servants.

I cannot, however, agree to the proposition that the defendant committed a trespass upon the adjoining lands of the plaintiff because the independent contractor cut trees beyond the right of way, contrary to the express terms of the contract of employment. The cutting beyond the express directions would perhaps make no difference if the wrong had been committed by a servant, but here, I think, the fact that it was done by an independent contractor becomes significant, because the defendant did not control, nor had he the right to control the manner in which the contractor did his work. It seems to me that Weinman v. De Palma and the other authorities cited by the majority apply to the basis of liability for cutting trees on the right of way, but that these authorities are inapplicable to the cutting on the adjoining lands. Not wishing to labor the point, I content myself with citing Restatement of the Law of Agency, Section 250:

“Except as stated in Section 251 (not applicable to the facts of this case), a principal is not liable for physical harm caused by the negligent physical conduct of an agent, who is not a servant, during the performance of the principal’s business, unless the act was done in the manner directed or authorized by the principal or the result was one intended or authorized by the principal.”

The comment following this section is:

“A plaintiff employing another to achieve a result but not controlling nor having the right to control the details of his physical movements is not responsible for incidental negligence while such person is conducting the authorized transaction.”

Since I agree with the conclusion of the majority that the plaintiff had a property right in the trees standing on the right of way, the circumstance that I differ in my reasons for reaching this conclusion does not warrant further discussion.

On Rehearing Granted.

O’CONNELL, Justice.

The plaintiffs, appellants here, filed a petition for rehearing directed to our refusal to reverse the chancellor in his denial of attorneys’ fees. This petition has been granted and we have reexamined this question. Under existing statutes and decisions in this state we find no basis upon which we can do other than adhere to our opinion previously rendered in this case.

The defendant, appellee here, also filed a petition for rehearing on several grounds. We feel it wise in order to make our opinion clearer to add thereto on one point.

Defendant argues that even if the cutting of the trees on the right of way was tortious, its liability is nevertheless limited to those acts authorized under the contract and not for the cutting of the trees not on the right of way.

In our opinion in this case, we said that the independent contractor doctrine does not relieve the principal of responsibility for the negligent or tortious acts of the contractor where the work to be done under the contract, of itself, is tortious. We should have added that where the contract is for the commission of a tort the principal is responsible not only for the acts authorized by the contract, but for the collateral acts of the independent contractor as well.

The case of Cleveland, C., C. & St. L. Ry. Co. v. Simpson, 1914, 182 Ind. 693, 104 N.E. 301, 306, 108 N.E. 9, explains our view. There the defendant company directed an independent contractor to do specific work on lands of another. The independent contractor did the specifically authorized work, which the court held to be a trespass, but also did other work not authorized by the defendant. In holding the defendant company, the principal, responsible for all damage done by the independent contractor the court said:

“ * * * It is well settled law that he who counsels, advises, abets, or assists another to commit a tort, or joins in its commission, is responsible for all'the injury done, whether specifically authorized or not, and cannot excuse himself from liability because the particular injury complained of was occasioned by the agent or contractor im connection with the wrongful acts authorized. Both are trespassers, and' each is individually liable for the tort committed. * * * ”

We adhere to our opinion filed on December 19, 1956.

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

HOBSON and ROBERTS, JJ., and! MILLEDGE, Associate Justice, dissent.


text:
    GULFVIEW PROPERTIES, Inc., Appellant, v. TOWN OF MARY ESTHER, Appellee.
    Supreme Court of Florida, En Banc.
    May 1, 1957.
    Philip D. Beall, Pensacola, and Joseph-Anderson, Fort Walton, for appellant.
    Stewart & Fleet, Fort Walton Beach,, for appellee.
   PER CURIAM.

Affirmed on the authority of the rule announced in State ex rel. Watson v. Busbee, Fla.1950, 43 So.2d 711; and Van Allen v. Town of Ocean Ridge, Fla.1950, 46 So.2d 452.

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

THOMAS and O’CONNELL, JJ., dissent.


author: THORNAL, Justice.

text:
    Raymond HUTLEY, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, Division A.
    April 24, 1957.
    Jos. A. Peel, Jr., West Palm Beach, for appellant.
    Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.
   THORNAL, Justice.

Appellant Hutley who was defendant below seeks reversal of a judgment sentencing him to the State Penitentiary pursuant to a jury verdict of guilty on a charge of manslaughter resulting from culpable negligence in the operation of an automobile.

Several points on appeal are made but the determining factor is the sufficiency of the evidence to support the verdict.

Hutley was convicted on informations charging him with the deaths of two people resulting from his operation of an automobile “with culpable negligence and with reckless disregard for the life and safety” of the deceased. It appears that Hutley borrowed a 1947 Pontiac. He picked up several friends, stopped at “The Blue Heron” where he and four others consumed a quart of beer. He proceeded north on the old Dixie Highway north of Riviera, slowed down but did not stop at the 45th Street intersection, turned easterly at a speed of 18 to 20 miles per hour. Hutley testified that at approximately this speed, he approached the crossing of the main line of the Florida East Coast Railway. A swinging red light type signal was operating, a bell on the signal was ringing, the crossing gates were lowering. Witnesses testified that the train whistle was blowing. Another automobile had stopped at the crossing. Hutley testified that he attempted to apply his brakes but that the brake pedal “went all the way down to the floor” and did not hold. He further stated that he feared that he would strike the car that had stopped for the crossing. According to his testimony, he did not think to apply the emergency brake. Likewise, it didn’t occur to him to veer to the right or left of the parked car into the soft sand shoulders. Witnesses testified that they saw his automobile swing around the parked car and proceed into the crossing directly in front of the onrushing train. The ensuing crash produced the deaths of the parties named in the two informations.

The jury found the appellant guilty of manslaughter. The judge sentenced him to twenty years in the State Penitentiary on each information, the sentences to run concurrently. Reversal of the judgment of conviction is here sought.

Appellant contends that the evidence was insufficient to support the verdict and that the court committed error in striking the testimony of an expert witness with reference to the condition of the brake mechanism of the automobile.

The State contends that the evidence was adequate and that the testimony of the expert was properly stricken as being immaterial. With reference to striking the expert testimony, we must agree with the trial judge. The only testimony with reference to the brake failure was that offered by Hut-ley himself. He stated that he stepped on the pedal, that it went all the way down to the floor and produced no breaking of the speed of the car. The proffered testimony of the expert witness was to the effect that he had examined the brake mechanism, that in the main cylinder of the hydraulic mechanism he found brake fluid, that there was no leak but that he did find evidence of trash or crud in the main cylinder. This witness stated that if the main cylinder was without fluid, or if there was a leak then the brake pedal would not function because the piston in the cylinder would meet no resistance in the form of fluid and the pressing of the pedal in the car would not have any effect on breaking the speed. On the other hand, he stated that if a little piece of the trash in the main cylinder clogged the small pinpoint orifice through which the fluid is pumped by the brake pedal, the result would be a “hard pedal.” In other words, when pressed the brake pedal in the car would freeze and not go to the floor at all. Obviously, this testimony was immaterial for the reason that appellant did not rely on the so-called “hard pedal” as the cause of the brake failure. The only weakness in the brake system found by the expert was the existence of the crud in the master cylinder which could have produced a “hard pedal” condition.

As to the sufficiency of the evidence, we must bear in mind that this case was fairly and thoroughly tried. The jury found against the appellant.

While admittedly if the jury had believed the testimony of the appellant with reference to the brake failure, it could have found him not guilty. Obviously, however, the jury did not believe his testimony in its entirety. His was the only testimony in regard to the failing brake. The State’s witnesses pictured the situation as one in which a reasonable man under the circumstances could have and should have avoided the ultimate tragedy. They portrayed wantonness and recklessness in driving an automobile in front of an oncoming train in an apparent effort to “beat the train to the crossing.” There was evidence which would justify a jury in believing this. On the basis of the State’s case the jury properly could conclude that there was evidenced by the appellant such reckless indifference to the safety of the passengers in the automobile that it was equivalent to wantonness or a grossly careless disregard for their safety and welfare. This being the situation, we are not justified in disturbing the jury’s verdict.

We have thoroughly examined the entire record including the instructions given by the trial judge although no errors were assigned with reference thereto. The judge adequately advised the jury that if they believed that the tragedy resulted from mechanical failure and that the appellant was not guilty of culpable negligence under the circumstances, then they should bring in a verdict of not guilty. This the jury clearly declined to believe.

We have also considered the contention of the appellant that the sentence of twenty years under the circumstances is tantamount to cruel and unusual punishment. It is pointed out that appellant is only twenty-one years of age, with limited schooling and no previous record of law violations. It is contended that he merely exercised poor judgment but not criminal neglect. We might admit that there are some aspects of this record that would commend appellant to more merciful treatment if we, as an appellate court, were endowed with clemency powers. The exercise of such discretion, however, is not within our jurisdiction. The sentence prescribed was within the limits fixed by statute. Any appeal for clemency will have to be directed to the appropriate agency of the government. Emmett v. State, Fla.1956, 89 So.2d 659; La Barbera v. State, Fla.1953, 63 So.2d 654.

Affirmed.

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


text:
    Isabelle COLE and Arthur C. Cole, her husband, Appellants, v. JENNING’S 5 & 10 CENT STORE, Appellee.
    Supreme Court of Florida, Division A.
    May 1, 1957.
    Albert J. Rubenstein and Robert J. Lew-ison, Miami, for appellants.
    Edwin H. Underwood, Jr., Miami, for appellee.
   PER CURIAM.

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

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

Affirmed on authority of Fredericks Market, Inc., v. Knox, Fla., 66 So.2d 251.

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


author: ROBERTS, Justice.

text:
    William ARND’T, Jr., and Eunice Arnd’t, Appellants, v. Margaret Helen PROSE, Appellee.
    Supreme Court of Florida, Division A.
    April 10, 1957.
    Rehearing Denied May 10, 1967.
    E. H. Wilkerson, Orlando, for appellants.
    W. M. Kennedy, Mount Dora, for ap-pellee.
   ROBERTS, Justice.

This is a habeas corpus case, in which the appellee is attempting to obtain the custody of her illegitimate child, Orville Junior Moseley, aged twelve, now in the custody of the appellants, Mr. and Mrs. Arnd’t. The appellee alleged in her petition that she is the natural mother of the child and that the appellants are unlawfully restraining him from returning to her.

From the allegations of the Arnd’ts’ answer to the writ, it appears that Orville Junior is the son of Mrs. Arnd’t’s brother, Orville Moseley; that, at appellee’s request, Moseley took custody of the child when he was about six years of age and at that time placed him in the care of Mr. and Mrs. Arnd’t. They have had full charge of and responsibility for the child ever since, without any objection by the ap-pellee until shortly before the filing of the instant petition. Allegations which cast some doubt upon the fitness of the appel-lee to have custody of Orville Junior were made, and it was also stated that Orville ■ Junior wanted to stay with Mr. and Mrs. Arnd’t and did not want to return to his mother. As noted, Orville Junior is now twelve years old.

At the hearing on the writ and the answer thereto, the trial judge refused to hear any evidence on the question of the welfare of the child or his desires in the matter, it being his view that since Mr. and Mrs. Arnd’t’s answer had shown no legal right to the custody of the child and since the appellee, as his natural mother, had a clear legal right to his custody, he had no alternative but to remand the child to the custody of his mother. He did so, and Mr. and Mrs. Arnd’t have appealed.

We think the learned trial judge overlooked the holding of this court in Maddox v. Barr, 49 Fla. 182, 38 So. 766, that in a habeas corpus proceeding involving the custody of a child “the law is not so much concerned about the illegality of the detention as the welfare of the child * * It was further said as to such proceedings that

“The court, when asked to restore an infant, is not bound by any mere legal right of parent or guardian, but is to give it due weight as a claim founded on human nature, and generally equitable and just. The court is in no case bound to deliver a child into the custody of any claimant, but should, in the exercise of a sound judicial discretion, after a careful consideration of the facts, leave it in such custody as the welfare of the child at the time appears to require.”

This rule has been followed in other cases involving the claim of a parent or legal custodian to the custody of a child as against the claims of third persons. See State ex rel. Weaver v. Hamans, 1935, 118 Fla. 230, 159 So. 31; State ex rel. Hicks v. Cain, 1948, 160 Fla. 680, 36 So.2d 275; Fielding v. Highsmith, 1943, 152 Fla. 837, 13 So.2d 208.

Accordingly, the order remanding the child to the custody of the appellee must be reversed under the authority of the above cited cases, and the cause is remanded for further proceedings.

Reversed and remanded.

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


author: CHARLES A. LUCKIE, Associate Justice.

text:
    Gale D. PERRY, Appellant, v. Fred G. BENSON and Laura Benson, husband and wife, and Ann Barrett, trading and doing business as Coast Line Realty, Appellees.
    Supreme Court of Florida, Special Division B.
    April 24, 1957.

      Edward L. Bush, Palatka, for appellant.
    Nowlin & Adams, Delray Beach, and James Messer, Jr., Tallahassee, for appel-lees.
   CHARLES A. LUCKIE, Associate Justice.

On October 9, 1952, appellant Gale D. Perry, as purchaser, entered into a contract for the purchase of real estate from appel-lees Fred G. Benson and Laura Benson, who had as their agent appellee Ann Barrett. The contract provided for a sixty-day closing period and further provided that ap-pellees would furnish evidence showing the title to the real estate to be good and marketable and that if the title were not found to be good and marketable, appellees would have a reasonable time within which to cure any title defects. On November 19, 1952, appellees notified appellant that a title defect had appeared and that an easement, which all parties thought was on the northerly boundary of the property, actually ran through the middle of the property. Apparently, neither the appellant nor the ap-pellees did anything to cure the defect and appellant thereupon instituted suit to rescind the contract and recover the money which he had paid as a downpayment.

In the suit to rescind and cancel the contract, the lower court entered a Final Decree dismissing the action, saying: “At no time did the purchaser make a clear and unequivocal demand that the defect be removed. It seems to the court that to place the vendors in default for not removing the defect in title within ‘a reasonable time’, the purchaser should have made a demand for the removal of the defect or, before bringing suit, put the vendors on notice in some clear and certain manner that the purchaser expected the defect to be removed within a specified period of time. This was not done. On the contrary, at the time of bringing suit, the purchaser had taken no firm stand on the matter. The vendors were yet in a state of uncertainty as to the purchaser’s intention regarding fulfillment of the contract. The court is unable to say that in equity and good conscience, the purchaser is entitled to a rescission under the circumstances as shown in this case.”

Immediately after the entry of the above decree the- appellant notified appel-lees that he would waive the defect and take the title as it stood and demanded a conveyance, which appellees refused. Appellant thereupon instituted the present action for specific performance of the contract, therein waiving the defect in title and seeking to compel appellees to convey the land to him pursuant to the terms of the contract. Upon motion to dismiss being made, the lower court dismissed the bill of complaint for specific performance saying that the position taken by appellant in this action is inconsistent with the position taken by him in the first suit and that he was “bound by an ^election of remedies’ which prohibits him from maintaining the present action.”

There is no doubt but that the law of Florida provides:

“ * * * Where more than one remedy for the enforcement of a particular right actually exists, and such remedies considered with reference to the relation of the parties as asserted in the pleadings are inconsistent, the pursuit of one with knowledge of the facts is in law a waiver of the right to pursue the other inconsistent remedy.” (Emphasis supplied.) American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 122, 123, 47 So. 942, 944; Board of Public Instruction for Bay County v. Mathis, 132 Fla. 289, 181 So. 147.

13ut, of course, for an action to constitute ■“election of remedies”, there must be two or more available remedies open to plaintiff at the time he institutes the first action. Gibson v. American Ins. Co., 146 Fla. 171, 200 So. 357. The remedies sought must not only be inconsistent but they must also he coexistent. If the remedy sought in the first instance does not exist at the time it is sought, then there is no election of remedies. The parties are not bound unless, at the time of the first suit, there are two remedies then available from which an election may be made. If, in the first instance, plaintiff proceeds upon an assumed remedy which does not exist at the time, and such ■effort proves abortive, he is not precluded from resorting to another remedy.

In the matter before us, the lower •court held in the first case that the action was premature, that at the time it was instituted appellant had no cause of action because he had neither made demand on the seller to cure the defect nor had he allowed the seller a reasonable time to cure the ■defect after putting the seller on clear notice. To us it seems that the lower court beld that no cause of action to rescind ■existed at the time of the first suit, and that no remedy was available to appellant in a suit to rescind at the time he instituted and pursued the first cause of action. Perhaps appellant did have, at the time of the first suit, the right of waiving the defect in title and demanding conveyance, but such right was not at that time coexistent with a right to have the contract rescinded. Had appellant, prior to the first suit, demanded that the defect in title be removed and had given appellees reasonable time within which to clear the title, and had they then failed, he would have had an election to either waive the defect and demand specific performance or to declare the contract rescinded. But not having placed himself in a position to rescind, that remedy was not available to him.

We conclude that the lower court was in error in dismissing the bill of complaint upon appellees’ motion and that the cause should be remanded for further proceedings.

Reversed.

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


author: DREW, Justice.

text:
    A. K. HILKMEYER, d/b/a Dixie Hatcheries, Petitioner, v. LATIN AMERICAN AIR CARGO EXPEDITERS, Inc., a Florida corporation, Respondent.
    Supreme Court of Florida, Division B.
    April 24, 1957.
    Rehearing Denied May 22, 1957.

      Shutts, Bowen, Simmons, Prevatt & Julian, Miami, for petitioner.
    Abe Schonfeld, Miami Beach, for respondent.
   DREW, Justice.

The case arises on a petition for certio-rari to review a circuit court affirmance of a civil court of record judgment, wherein the civil court of record judge set aside a jury verdict upon a motion for judgment non obstante .veredicto by the defendant, where there was also pending a reserved ruling on a motion by defendant for a directed verdict. The trial court set aside the jury verdict because “the evidence adduced at the trial showed that the defendant did not make a direct contract to pay for the goods involved, but made only a guarantee.”

In this case the labels arc not important and the court will consider the situation as the various elements actually functioned. The trial judge reserved his ruling on a motion by defendant for a directed verdict made at the close of all the evidence presented by both sides, and when he granted defendant’s mislabeled motion for “verdict non obstante veredicto” after verdict by the jury for plaintiff, the situation was actually that contemplated by Rule 2.7(b), 1954 Rules of Civil Procedure, 31 F.S.A.:

“(b) Reservation of Decision on Motion. Whenever a motion for a directed verdict made at the close of all of the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury at such time subject to a later determination of the legal questions raised by the motion. Within 10 •days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict * * *. ”

The circumstances of this case are that A. K. Hilkemeyer, doing business as Dixie Hatcheries, petitioner here, plaintiff below (hereinafter called plaintiff) sued Latin American Air Cargo Expediters, Inc., respondent here, defendant below (hereinafter called defendant) for $2,600 which represented the sale price of a shipment of baby chickens. The ultimate purchaser of the chickens in South America had previously dealt with plaintiff through a transshipping agent, who paid for the chickens under a C.O.D. arrangement; and through defendant, who operated at that time under an arrangement not revealed in the record. Defendant is a transshipping agent, who in this instance received shipments over local air lines from the plaintiff and arranged for transferring the shipments to overseas air lines. Plaintiff claims that defendant entered into an oral agreement to directly assume the entire responsibility of paying him for this particular shipment. The defendant claims that it did not directly assume liability, but only accepted the goods for transshipment and agreed to operate as a paying agent for the ultimate purchaser. Plaintiff has made no attempt to recover from the ultimate purchaser.

This case must be examined and disposed of under rules developed by the Court to govern “common law” certiorari. On this subject we said in Nation v. State, 1945, 155 Fla. 858, 22 So.2d 219:

“The common-law writ of certiorari issues, not to serve the purpose of an appeal, or to give an aggrieved party a second appeal, but to cause the record of an inferior court to be brought up in order that a superior court may determine from the face of the record •whether the inferior court has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of law. * * * The writ being thus limited in function, the subject matter of a suit that has been tried in a court of competent jurisdiction and thereafter reviewed in an appropriate appellate tribunal will not he re-investigated, tried and determined upon the merits generally when brought here by certiorari.” (Emphasis supplied.)

The writ of certiorari is issuable or not in the sound judicial discretion of the Supreme Court. Janet Realty Corp. v. Hoffman’s, Inc., 1943, 154 Fla. 144, 17 So.2d 114. Although this case presents a close question it involves a serious enough departure from the essential requirements of law to warrant a favorable exercise of our discretion.

The considerations which would authorize a trial judge to direct a verdict are the same as those involved in a reserved motion for a directed verdict under Rule 2.7(b). Cf. Marsh v. Illinois Central R. Co., 5 Cir., 1949, 175 F.2d 498. A great variety of situations have brought forth numerous formulas for providing standards of proof for submission of evidence to the jury. The Supreme Court of the United States has said: “Nor is the matter greatly aided by substituting one general formula for another. It hardly affords help to insist upon ‘substantial evidence’ rather than ‘some evidence’ or ‘any evidence,’ or vice versa. The matter is essentially one to be worked out in particular situations and for particular types of cases. Whatever may be the general formulation, the essential requirement is that mere speculation be not allowed to do duty for probative facts, after making due allowance for all reasonably possible inferences favoring the party whose case is attacked.” Galloway v. United States, 1943, 319 U.S. 372, 395, 63 S.Ct. 1077, 1089, 87 L.Ed. 1458.

This Court’s views have recently been recorded:

“Power to direct a verdict should be cautiously exercised and the same should never be granted unless the evidence is such that under no view which the jury might lawfully take of the evidence favorable to the adverse party could a verdict for the adverse party be sustained. * * * A party moving for a directed verdict admits not only facts shown by the evidence, but also reasonable inference favorable to the adverse party that the jury might fairly and reasonably arrive at from the evidence, and if the evidence is conflicting, or evidence tending to prove the issues, the case should be submitted to the jury as a question of fact under appropriate instructions.” Katz v. Bear, Fla. 1951, 52 So.2d 903, 904.

See for example, Oppenheimer v. Werner, Fla.1950, 46 So.2d 870; Chaney v. Headley, Fla.1956, 90 So.2d 297; Bryan v. Loftin, Fla.1951, 51 So.2d 724; Mullis v. City of Miama, Fla.1952, 60 So.2d 174. See also Sec. 54.17, Florida Statutes 1955, F. S.A.

The most recent expression of this Court on the general subject is found in New Deal Cab Co. v. Stubbs, Fla.1956, 90 So.2d 614, 615. There we said:

“Where the entire evidence is of such probative force that the trial court, to give effect to the manifest weight of the evidence and the justice of the cause, should properly have granted a new trial if a verdict had been rendered for the defendant, the trial court will not be held in error for directing a verdict for the plaintiff. American District Electric Protective Co. v. Seaboard Air Line Ry. Co., 139 Fla. 451, 190 So. 820, 823, and cases there cited.” (Emphasis supplied.)

We have re-examined the above quoted language in that case and the authorities cited. It was not necessary to the determination of the cause and was therefore obiter dicta. The underscored language correctly states the conditions under which a new trial may be properly awarded but the language which follows is used too loosely. It is important to make a distinction between situations where a trial judge can properly direct a verdict and situations where he can properly grant a new trial. “The considerations and legal principles that guide the judicial discretion in directing a verdict and in granting a new trial on the evidence are not the same.” Gravette v. Turner, 1919, 77 Fla. 311, 81 So. 476, 477; Anderson v. Southern Cotton Oil Co., 1917, 73 Fla. 432, 74 So. 975, L.R. A.1917E, 715; Florida East Coast Ry. Co. v. Hayes, 1914, 66 Fla. 589, 64 So. 274. The reasons for and a clear exposition of the distinctions appear extensively presented in Gravette v. Turner, supra, one of the cases cited as authority in the New Deal Cab Co. case. We clearly said in the Gravette case that where there was substantial evidence tending to prove the issue, it “should have been submitted to the jury for their finding on the facts, and not taken from them to be passed upon by the judge as a question of law.” 77 Fla. 317, 81 So. 478. We also said,

“Even though a verdict should not be directed on the evidence in deference to the organic right to a jury trial and to the statute regulating the subject, yet if on motion for a new trial ‘where there is conflict in the testimony, it is within the province and power of the court to set aside a verdict which does not reach a substantially just conclusion in cases where the conflicts are of such character and the circumstances of such nature as to give just ground for the belief that the jury acted through prejudice, passion, mistake or any other cause which should not properly control them. This power exists in the court. In exercising it the court does not encroach upon the province of the jury, for the reason that it does not conclusively settle facts in the form of a verdict, but only gives another jury the opportunity of so doing, and of correcting what appears to be a mistake.’ ” 77 Fla. 316, 81 So. 478.

The dividing line [a grey area at best] between judge and jury in situations like this would be totally indistinguishable from many other aspects of the more general problem of facilitating jural disposition of cases, if it were not for the requirement in our Constitution that “The right of trial by jury shall bee secured to all, and remain inviolate for-ever.” Florida Constitution, Declaration of Rights, § 3, F.S.A. An organic provision similar to ours has been described as “designed to preserve the basic institution of jury trial in only its most fundamental elements, not the great mass of procedural forms and details, varying even then [1791] so widely among common-law jurisdictions.” Galloway v. United States, 319 U.S. at page 392, 63 S.Ct. at page 1088. Questions arising out of this concept must be solved as they arise; the purpose of our over-simplified statement, however, is to emphasize the fact that it is not every adverse ruling on submission of evidence to a jury, or taking a case from a jury, which raises a serious constitutional question. The observation is particularly relevant in the case at bar which seeks a discretionary writ of certi-orari.

Reverting, now, to the case under immediate consideration the trial judge reasoned that the alleged oral guarantee would fail as an enforceable contract under Sec. 725.01, Florida Statutes 1955, F.S.A., the Statute of Frauds. Plaintiff focuses his argument here on this assumption and there is enough of the record here to support him since the defendant has filed no brief or supplemental transcript to offset what is before the Court. “The question of whether the promise was direct or collateral, that is to say, to whom credit was extended, is one of fact to be determined by the jury from the evidence adduced.” Sanders v. Hodges, 1933, 109 Fla. 391, 147 So. 571, 572. An extended recitation in this opinion of the evidence on the issue of a direct or collateral promise by defendant to answer for the debt of another would serve no useful purpose. It is sufficient to say that testimony offered by three witnesses on this issue is conflicting and permits different reasonable inferences. The well-settled rule in Florida is that under such circumstances the issue should not be taken from the jury. E. g. Bryan v. Loftin, supra; Tooley v. Margulies, Fla. 1955, 79 So.2d 421; concurring opinion joined in by the Court in Townsend Sash Door & Lumber Co. v. Silas, Fla.1955, 82 So.2d 158; Merwin v. Kellems, Fla.1955, 78 So.2d 865.

For this reason, although it is a close question in this particular situation, we have exercised our discretion to issue the writ of certiorari. The order of the circuit court affirming the questioned order is-quashed with directions to enter an order directing the trial court to reinstate the verdict of the jury and to reconsider a motion for a new trial if such was made and remains undisposed of.

Certiorari granted.

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

      . It is necessary to explain the falsity of the labels involved in the post-trial pleading before considering more of the case. In the first place, judgments non obstante veredicto in Florida common law could only be granted for the plaintiff, not the defendant, who was movant here. Tolliver v. Loftin, 1945, 155 Fla. 698, 21 So.2d 859. The conclusive factor in the case at bar is that a common law in Florida motions for judgment non ob-stante veredicto or to arrest judgment searched matters of record (generally pleadings) in the trial court, but could mot bring up testimony for the trial judge’s consideration. Peavy-Wilson Lumber Co. v. Baker, 1941, 148 Fla. 296, 4 So.2d 333; Tolliver v. Loftin, supra; Okeechobee Co., for Use and Benefit of Hamrick v. Norton, 1942, 149 Fla. 651, 6 So.2d 632. Cf. Newton v. Glenn, 5 Cir., 1945, 149 F.2d 879, certiorari denied 326 U.S. 758, 66 S.Ct. 100, 90 L.Ed. 456.

      . At least as early as 1915 the Legislature enacted a law relating to civil courts of record. The act contained a provision for review by the circuit courts and a provision for certiorari to this Court which has remained essentially the same down to Sec. 33.12, Florida Statutes 1955, F.S.A. This Act, Chapter 6904, Acts of Florida, 1915, attempted to vest in this Court power to review by certiorari cases which had been decided by the circuit courts on review of civil courts of record, with “the same power and authority in the case as if it has been carried by writ of error to the Supreme Court.” We held this act invalid as an attempt of the Legislature to enlarge the constitutionally defined appellate jurisdiction of the Supreme Court. American By. Express Co. v. Weatherford, 1924, 86 Fla. 626, 98 So. 820; Brinson v. Tharin, 1930, 99 Fla. 696, 127 So. 313. This holding has been more recently confirmed in Mutual Benefit Health & Accident Ass’n v. Bunting, 1938, 133 Fla. 646, 183 So. 321 and Curry U-Drive It, Inc., v. Ross, Fla. 1956, 89 So.2d 796.

      . While we find that much has been written on the general subject we find no definitive historically based analysis of the right to trial by jury. See e. g. Federalist Nos. 81 and 83; Thayer, Preliminary Treatise on Evidence at the Common Law, Ch. 2-6; 21 Amer.L.Rev. 859; 1 Select Essays in Anglo-American Legal History 367 ; 31 Harv.L.Rev. 669; Capital Traction Co. v. Hof, 1899, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873; Galloway v. United States, supra, and sources cited in the majority and minority opinions of this case; cf. 37 Harv. L.Rev. 49. We do not even have the benefit in Florida of an organically stated time to which we might refer to obtain such knowledge through our own efforts. We must assume, however, that the time intended was the time of the first adoption of our provision. See, Hughes v. Hannah, 1897, 39 Fla. 365, 22 So. 613; Dudley v. Harrison, McCready & Co., 1937, 127 Fla. 687, 173 So. 820.


text:
    SMITH ENGINEERING AND CONSTRUCTION COMPANY, a corporation, Appellant, v. Herman COHN, Appellee.
    Supreme Court of Florida, Special Division B.
    May 1, 1957.
    Rehearing Denied May 24, 1957.

      J. M. & H. P. Sapp, Panama City, for appellant.
    Liddon, Isler & Welch, Panama City, for appellee.
   PER CURIAM.

. Herman Cohn sued Smith Engineering and Construction Company, hereinafter called the Company, the complaint alleging, among other things, that defendant negligently failed to maintain Highway No. 20 and negligently permitted said highway to become and remain in a dangerous and hazardous condition, causing injury to the plaintiff. The Company answered proffering numerous defenses and a motion to dismiss. The fourth, fifth, sixth, seventh and eighth defenses were stricken on motion of the plaintiff. The case went to trial on plea of the general issue, denial that the Company permitted the highway to become and remain in a dangerous or hazardous condition and denial that the condition of the highway caused the plaintiff’s accident. Motion for verdict in favor of defendant was made and denied at the conclusion of plaintiff’s case and at the conclusion of the trial. The trial resulted in a verdict of $4,620 in favor of the plaintiff. Motion for new trial was denied and final judgment entered on the verdict from which this appeal was prosecuted.

The essential facts in the case revealed that plaintiff was using a tractor-trailer which was said to have weighed 28,000 pounds. It was loaded with pears and grapes from California of equal weight [28,000 pounds]. The plaintiff left Panama City after dark traveling on State Road 77, also known as U. S. Highway 231. A short distance north of Panama City, the driver observed the following legend: “Highway 20 under construction, detour to Blountstown via Highway 389 and Wewa-hitchka.” The driver was familiar with the route and proceeded north on Highway 77 to its junction with- Highway 20 on ■which he turned east. He observed a sign which read, “Road under construction.” He proceeded about one mile and observed a break in the pavement. He brought the truck to a stop and studied the road and while it was unpaved for about twelve feet, it appeared safe. He turned to the center of the road and proceeded over the unpaved area. The patrolman who investigated the accident testified that the truck proceeded to the right or south side of the road at the break in the pavement. The tractor crossed the bréale without difficulty but the trailer turned over on its side and carried the tractor over on the road. The accident did not block traffic.

The Company was a road contractor and at the time of the accident was under contract with the State Road Department, to repair this particular sector of Highway 20. The contract required that the Company keep the road open for traffic while the work was being done. It appears that the break in the pavement was caused by the installation of temporary culverts to divert water from the permanent culvert which was being extended. The pavement and roadbed had been removed for this purpose but the roadbed was replaced at the time and the road surfaced and packed with tractors and clay placed on the surface. A heavy rain had recently fallen but the driver of the truck testified that the roadbed appeared in good condition so he proceeded across.

It is first contended that appellant should not be held liable because its contract was with a public entity which would immunize it from liability to a third party for personal injuries arising from the performance of the contract, there being no showing that appellant was negligent.

The complaint was grounded on negligence of appellant, the jury found it negligent which was not controverted, its contract with the State Road Department required it to keep the road in such condition while being repaired as traffic could pass over it. The following cases conclude the point against the contention of appellant: Price v. Parks, 127 Fla. 744, 173 So. 903; Briscoe v. Worley, Okl., 253 P.2d 145; Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610; Holmes v. T. M. Strider & Co., 186 Miss. 38, 189 So. 518, 123 A.L.R. 1190.

The sixth question is predicated on a charge to the jury as follows: “If you find from the evidence and the instructions of the court, that the plaintiff is entitled to recover, then on that phase of the damages I instruct you to find for him in the sum of $3,695.08.” The evidence shows that this charge had to do with a single phase of the case, repair bills for the amount named in the charge. They were introduced in evidence as per stipulation of counsel and without objection. The amount named was to be allowed on condition that the jury found for the plaintiff.. Negligence was proven and appellant was. the sole defendant. The total verdict was for $4,620, it was supported by a preponderance of the evidence and reversible error is not shown.

Other questions were argued but all turn on whether or not there was sufficiency of knowledge of defect in the road, charges to the jury relating to the defense of “an act of God,” whether or not the plaintiff exercised due care, the risk assumed, contributory negligence and other defenses that turn on the sufficiency and probity of the evidence.

There was material substantial evidence on all these points and the charges of the court were ample. Some of the evidence was in the way of admissions. It all shows conclusively that appellant was under contract to construct the road and keep it open for traffic, that it had cut the pavement to place temporary culverts to lead the water from where the permanent culverts were to be placed, that in changing the water course the road was maintained over the culvert in such manner that plaintiff’s equipment was damaged. All these matters were peculiarly for the jury and we fail to find error.

The judgment appealed from is therefore affirmed.

Affirmed.

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