author: CARROLL, CHAS., Chief Judge.

text:
    John Thomas LAUDERDALE, Appellant, v. Myrtle LAUDERDALE, Appellee.
    No. 57-1.
    District Court of Appeal of Florida, Third District.
    July 30, 1957.
    Rehearings Denied Aug. 13, and Sept. 3, 1957.

      Arden E. Jensen and Jack Moore, Miami, for appellant.
    Charles J. Bodner, Miami, for appellee.
   CARROLL, CHAS., Chief Judge.

The appellant John Thomas Lauderdale was the defendant in his wife’s suit under Section 65.09, F.S.A., for alimony unconnected with divorce. She charged him with extreme cruelty, and sought alimony, suit money and an accounting and division of property.

The husband did not contest the wife’s charge of extreme cruelty, and the trial concerned only the questions relating to the provisions to be made for alimony and child support, the wife’s efforts to obtain certain assets and the allowances of attorney fees and costs.

The Chancellor’s decree granted the wife separate maintenance and custody of the minor child, and gave them the right to live in the home. The Court allowed the husband also to continue living there, and required him to maintain the residence premises, and in addition ordered the husband to supply the wife with a car and to pay her $50 a week. The decree denied a claim the wife made to certain assets of the husband amounting to $3,274.72, but ruled in her favor on a check for $15,903.-85, made payable to the two of them, representing proceeds of a purchase money mortgage which had been made out to them jointly. Of that, the Court ordered that the wife receive one-half, and that attorney’s fees and costs be paid by the husband out of his half. A $150 temporary fee for the wife’s attorney was supplemented by an allowance of $1,000 in the final decree. By a later order the court costs were charged against the husband, the Court refusing to include as costs to be paid by him certain large fees incurred to real estate and legal experts who were produced as witnesses for the wife.

The husband assigns as error: (1) the award of $50 a week for alimony and child support as being too much, (2) the awarding to the wife of half the proceeds of the jointly held mortgage, (3) the allowance of the wife’s attorney fees, (4) the denial of his petition for rehearing, and (5) the charging of costs against him.

The wife cross appealed, with six assignments of error, challenging these features of the decree: (1) allowing the husband to continue to reside in the common dwelling, (2) that the $50 a week allowed to her was not enough, (3) that the attorney fees allowed were not enough, and (4, 5 & 6) failure to charge her expert witness fees as costs against the husband.

This appeal and cross appeal represent an example of an effort to have an appellate court review the record and evidence, and substitute its views on allowances for alimony and support, attorney’s fees and costs, for those of the trial judge; in short, to retry the suit.

It is not the function of an appellate court, nor the policy or practice of this court to retry cases.

This suit was thoroughly tried in the circuit court. Over two hundred and fifty pages of testimony were taken, and thirty-four exhibits were filed. The evidence covered the activities of these parties over a long period of time. They were married in 1925. They were farmers, and he was a carpenter, and he dealt in real estate. She helped him for many years, but encountered ill health the last eight years. Now sixty years old, she has diabetes and other ailments.

An experienced Chancellor assessed the evidence, and, exercising his discretion, determined and fixed the provisions for alimony and child support, and for attorney fees and costs. We refuse the request which this appeal presents to substitute our judgment for that of the Chancellor on those matters.

In providing for allowance of alimony in suits for separate maintenance, Section 65.09, F.S.A., says: “* * *; and the court shall have power to grant such temporary and permanent alimony and suit money as the circumstances of the parties may render just; * *

A Chancellor’s decree, made on consideration of the evidence and in exercise of his discretion, awarding alimony, suit money and costs, will not be disturbed by an appellate court unless an abuse of discretion is clearly shown, and the party complaining on appeal has the burden of demonstrating on the record such abuse of discretion. Snider v. Snider, 155 Fla. 788, 21 So.2d 546; Blue v. Blue, Fla.1953, 66 So. 2d 228; and Astor v. Astor, Fla. 1956, 89 So.2d 645.

“ * * * The awarding of alimony and the amount thereof is a matter resting within the sound judicial discretion of the chancellor before whom the cause is pending. Rubinow v. Rubinow, Fla.1940, 40 So.2d 561. A party dissatisfied with an award of alimony must carry the burden here of showing that the lower court abused its discretion with respect thereto. Kanter v. Kanter, Fla.1949, 38 So.2d 685. * * Pross v. Pross, Fla. 1954, 72 So.2d 671, 672.

As to those allowances, no abuse of discretion is shown, and the assignments and cross assignments of error relating to them are ineffective. This includes the assignment directed to refusal of the court to grant the petition for rehearing. As to the provisions for alimony and support, if changing circumstances cause them to become too much or too little, necessary relief may be gained under Section 65.15, F.S.A., for modification of such decrees.

A question remaining for determination is raised by the assignment of error contesting the Court’s finding that the wife should have half of the $15,903.85, covered by the check made to the two of them. On sale by the husband of an interest in land in his name, in the conveyance of which the wife joined, he received back a mortgage made to both of them. That was in 1954. The check given to discharge the mortgage was made more than a year later. On the record of the transaction, the wife was a joint owner of the proceeds of the mortgage. For the husband to prevail on that item, and to be entitled to a reversal of the decree awarding the one-half to the wife, the evidence would have to be clear, positive and unequivocal against joint ownership of the mortgage. This is so, because the sale by the husband taking back a purchase money mortgage payable to both husband and wife raised a presumption of a gift of a half interest therein to the wife.

In Strauss v. Strauss, 148 Fla. 23, 3 So. 2d 727, 728, the Supreme Court said:

“When property is purchased by the husband and deeded to the husband and wife jointly, an estate by the entireties is created and the presumption of law is that it was intended as a gift to the wife which will be recognized and upheld until overcome by conclusive evidence. Francis v. Francis, 133 Fla. 495, 182 So. 833. This court is also committed to the doctrine that when the wife contributes money or labor over a period of years to the acquisition of property, she acquires a peculiar equity in it which may be enforced. Windham v. Windham, 144 Fla. 563, 198 So. 202.”

Since personal property, as well as real estate, may be the subject of an estate by the entireties (Bailey v. Smith, 89 Fla. 303, 103 So. 833), what was said in the Strauss case above relating to an estate by the entireties in real estate applies equally to personal property such as the mortgage involved in this case.

In point, as to a mortgage so held, is Powell v. Metz, Fla.1952, 55 So.2d 915, at page 916, where the Court said this:

“The appellant contends that in this situation Section 689.15 Florida Statutes, 1949, and F.S.A., applied; that is to say, the instrument constituted an estate by the entireties which metamorphosed into an estate in common immediately the divorce was rendered, giving each spouse the right to one-half the installments paid thereafter.
“We think this was the effect of the-statute and that this result is not altered by the fact that the land was-owned by Powell before he married appellant, because in taking the mortgage to both, as man and wife, he is presumed to have intended a gift to her of the property interest. Kollar v. Kollar, 155 Fla. 705, 21 So.2d 356. Such a presumption prevails unless overcome by conclusive evidence, * *

When the proofs relating to this item are tested against those rules, ample support appears for the Chancellor’s ruling on that feature.

The wife raised a further question, by her assignment on cross appeal directed to that portion of the decree permitting her husband to continue to reside in the same house with her and the minor child. On her behalf it was argued that since she was granted her decree of separate maintenance she should be entitled to live apart from the husband and that she is deprived of the benefit of her decree when he is allowed to reside in the same house with her. However, it was conceded at the argument that the husband, subsequent to the decree, has removed himself from the premises and is no longer residing therein. That makes that particular question moot, at least for the present.

In the final decree the Chancellor expressly reserved jurisdiction to make other and further orders which the circumstances and equity and justice may require. If the husband later should decide to exercise his right to live in the house, then application could be made in the original suit for an appropriate order based on the then existing circumstances.

Appellee has requested that this Court order the husband to pay an additional fee for services of her attorney on this appeal. The fees allowed for the wife’s attorney in the lower court are ■deemed adequate, and on consideration of the amount thereof, and of the circumstances of the parties, the application for such additional attorney’s fee is denied.

Affirmed.

HORTON and PEARSON, JJ., concur.


source: Caselaw Access Project

author: HORTON, Judge.

license: Public Domain

text:
    Kenneth DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 57-19.
    District Court of Appeal of Florida. Third District.
    Aug. 15, 1957.
    James C. Henderson, Coral Gables, for appellant.
    Richard W. Ervin, Atty. Gen., and George R. Georgieff, Sp. Asst. Atty. Gen., for the State.
   HORTON, Judge.

An information filed by the County Solicitor of Dade County, Florida, charged that the Appellant, Davis, on April 14, 19S6, in Dade County, Florida, while having in his custody, control or possession a tractor and trailer belonging to Thomas Woodrow Forrest, “ * * * did then and there, with intent to defraud and deprive Thomas Woodrow Forrest of said property, unlawfully and feloniously appropriate the 19S3 Cabover Mack Tractor and Trailer, property of Thomas Woodrow Forrest, to his own use, or the use of some person other than Thomas Woodrow Forrest, * * To the information the Appellant pled not guilty and waived jury trial. He was tried without a jury before the Judge, found guilty and sentenced to two years in the state penitentiary. This appeal is from the judgment and sentence of the lower court.

Among the errors assigned and argued before this Court by the Appellant was the failure of the State to prove the venue of the alleged crime. We feel this contention is well taken. The information under which the Appellant was prosecuted charged that the offense occurred in Dade County, Florida, on April 14, 1956. All of the testimony taken at the trial comprises nine pages and consists of the testimony of the prosecuting witness and the Appellant. There is not one iota of evidence in the record that the crime as charged by the County Solicitor in the information occurred or happened in Dade County, Florida. As a matter of fact, there is no .testimony of any kind from which an inference could be raised that the alleged crime was committed or the intent formed to commit such a crime in Dade County, Florida. The Court is not unmindful of the State’s position and has no argument with the authorities cited in the State’s brief, but is convinced that the proof of the venue of the alleged crime is wholly inadequate and fails to support one of the necessary ingredients of the charge. The only testimony regarding the Appellant is the fact that he took possession of a tractor and trailer loaded with potatoes in Dade County, Florida and was directed to deliver the potatoes in St. Louis, Missouri. The Appellant did this. What his intent might have been after the delivery of the potatoes is of no consequence to this Court and certainly offers no support for the State’s case under the charge in the information.

Accordingly, the judgment and sentence of the lower court are reversed with directions to discharge the Appellant from the cause.

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


author: PER CURIAM.

text:
    John W. MARTIN, as Trustee of the Property of Florida East Coast Railway Company, Appellant, v. Jesse C. KENDALL, Appellee.
    No. 57-55.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1957.
    Rehearing Denied Sept. 5, 1957.
    Scott, McCarthy, Preston, Steel & Gille-land, Miami, for appellant.
    Nichols, Gaither, Green, Frates & Beck-ham, Miami, for appellee.
   PER CURIAM.

We have examined the record and briefs of counsel in this cause and heard oral argument at the bar of this Court. From our perusal of the record we reached the conclusion that the jury verdict was arrived at in this case upon consideration of conflicting evidence and should not be disturbed.

The record holds evidence sufficient to sustain the jury’s finding of negligence on the part of the defendant, and no useful purpose would be served by restating the evidence in detail in this opinion. Accordingly, the appellant’s contention that the Court erred in refusing to grant a directed verdict is rejected.

Affirmed.

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


author: PEARSON, Judge.

text:
    PAN AMERICAN WORLD AIRWAYS, Inc., a New York Corporation, Appellant, v. William George GREGORY, Appellee.
    No. 57-3.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1957.

      Brown, Dean, Adams & Fischer, Miami, for appellant.
    Alexander S. Gordon, Miami Beach, for appellee.
   PEARSON, Judge.

This is an appeal from a final judgment based upon a default entered for failure to file an answer. The complaint was for personal injuries and was tried upon the issue of damages without docketing for trial or other notice to the defendant. The judgment is vacated and the cause remanded with directions.

A brief statement of the chronology of the cause follows. The plaintiff, who is the appellee here, filed a complaint seeking the recovery of damages for personal injuries sustained while in the employ of the defendant. The defendant filed notice of filing of petition for removal to the federal court. In this latter court, defendant’s answer and plaintiff’s reply thereto were served and filed. The federal court, upon motion of the plaintiff, remanded the cause to the state court on April 13, 1956. Under the practice in the federal court the clerk did not transmit the answer and reply thereto to the state court. The defendant took no action to file in the state court his answer previously served. Thereafter the plaintiff proceeded to take a deposition in the state court and defendant was represented at said deposition by its counsel of record. Upon the 13th day of June counsel for the plaintiff filed a praecipe for default which contained the following certification: “I hereby certify that defendant has not filed answer or other pleading directed to the complaint heretofore filed by the plaintiff.” The clerk of the court entered the default upon the praecipe and certificate on the 13th day of June 1956. Thereafter, without further proceedings the cause was tried on October 3, 1956 before a jury and damages were assessed at fifty thousand dollars.

On October 8th defendant filed its sworn motion to set aside the default judgment. This motion set forth a brief statement of the history of the proceedings, including the service and filing of an answer in the federal court. Defendant attached to the motion copy of its answer and a copy of the plaintiff’s reply thereto; defendant certified that the motion was not made for the purpose of delay and offered to proceed with the trial of the cause at the earliest possible trial date. The answer and reply tendered an issue as to the validity of a release previously executed by the plaintiff for a consideration.

A hearing was had upon the motion to set aside default judgment. The principal argument advanced by counsel for the defendant was counsel’s belief that the defendant had complied with the requirements of the Florida Rules of Civil Procedure by serving an answer on the plaintiff and filing it in the federal court. The court denied the motion.

Two separate matters must be considered in this appeal. First, was the default properly entered? Second, was the defendant entitled to notice on the issue of damages after default?

In a consideration of the propriety of the clerk’s action in entering the default we must consider the specific Florida Rules of Civil Procedure involved. They are Rule 2.9, Judgment-Default, 31 F.S.A.; Rule 1.4, Service of Pleadings and Papers and Rule 1.11, Defenses, 30 F.S.A. The salient portions of these rules are set forth with our emphasis supplied.

“Rule 2.9. Judgment-Default

“(a) When. If a party fails to serve a pleading at any time provided by these rules or fixed by the court, an adverse party may cause a default to be entered by the court or by the clerk on a day subsequent to the day on which such default occurs * *
“Rule 1.4. Service of Pleadings and Papers
“(a) Service; When Required. Every pleading subsequent to the initial pleadings, unless the court otherwise orders, * * * shall be served on each party affected thereby, * * *.
******
“(d) Filing. All original papers, copies of which are required to be served upon parties, shall be filed with the court either before service or immediately thereafter.”

The clerk is an officer of the court whose duties are ministerial and as such he does not exercise any discretion. State ex rel. Druissi v. Almand, Fla. 1954, 75 So.2d 905. His power to enter a default must clearly appear from the rules and the record to which they are applied. Security Finance Co. v. Gentry, 91 Fla. 1015, 109 So. 220. The rules above quoted clearly designate failure to serve a pleading as the basis for default. The record reveals, as the basis for the clerk’s entry of default, a certificate of Counsel that the defendant had not filed an answer or other pleading directed to the complaint. This certificate was meaningless since the clerk can readily determine from his own records whether a pleading has been filed. The rules should not be construed to require the party moving for default to make, a meaningless certificate in support of his application to' the clerk for the entry of default.

It is equally true that all the rules bearing on the method of presenting pleadings to the court should be construed together. It therefore follows that the mere service of a pleading is not enough to present the pleading to the court. An additional act is necessary and an attorney has not presented his client’s pleading to the court until he has complied with that portion of Rule 1.4(d), supra, providing that the pleading shall be filed with the court. Without exploring the possibility of an action by the court based upon a failure to comply with Rule 1.4(d), we find that the clerk was without authority to enter a default where an answer had been served but not filed in the court of which he was the clerk.

In Coggin v. Barfield, 150 Fla. 551, 8 So.2d 9, 11, the Supreme Court of Florida had before it a case where a defendant attempted to file his plea by mailing it to the clerk of the Circuit Court of Jackson County when the case was actually pending in the Circuit Court of the adjoining County of Washington. A default was entered and defendant filed a motion to set aside the default and final judgments indicating his mistake. The trial judge denied the motion. The Supreme Court in reversing the lower court set forth the fundamental purpose of the default procedure in Coggin v. Bar-field, supra, in the following language: “The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.”

In the instant case the defendant filed its answer in the federal court. Since the default was improperly entered by the clerk, we do not think that a determination of the propriety or effect of the filing of an answer in the federal court under an attempted removal proceeding is necessary for a decision in this case. The trial court should have set aside the default judgment and should have allowed the defendant to file its answer instanter or within a short period of time set by the court.

There remains for consideration the necessity for the opportunity to be heard at the trial on the issue of damages, after default. It has long been established that after default in a tort action, the defendant has a right to put in proof and to be heard upon the question of damages. Watson v. Seat, 8 Fla. 446; Russ v. Gilbert, 19 Fla. 54; Wilhelm v. South Indian River Co., 98 Fla. 970, 124 So. 729, 731.

The practice before the present rules were adopted is set forth in the last cited case. “It is the duty of the parties litigant before the court to be present during the term, and, when a default case has been properly placed upon the trial docket, no error is committed, at the calling of same in term, in immediately referring the case to a jury to assess damage, though the defendants and their attorneys be absent from such trial and be not served with a notice of such trial.” (Emphasis added.)

This practice has been modified by Rule 2.9, supra. The first sentence of subsection (b) of this rule reads as follows: “Judgments final consequence upon the entry of defaults, for want of proper pleading, may be entered on the same day that the default is entered as well as any subsequent day.” It is urged that this rule abrogates the right of the defendant to be heard upon the question of damages, but we do not find this to be true. In Moore v. Boyd, Fla. 1952, 62 So.2d 427, 430, the Supreme Court of Florida restated the right of defendant to contest the issue of damages after default.

“Finally, we find that final judgment was entered without notice to defendant. If the entry of judgment on default had been consequent upon a failure to defend in any particular, that is, if defendant had not made any active defense of any nature, but passively permitted default to be entered, this might not have been error, although even in such case the defendant is entitled to be heard upon the amount of damages, even if not upon the merits of the claim. * * * But before the present rules were adopted, a default entered upon a cause of action other than for liquidated damages did not justify a final judgment until the matter was docketed for trial at the succeeding term, — at which defendant was charged with notice that the case might be called for the assessment of damages. In lieu thereof, if a plaintiff desires to try an unliquidated claim before the Court, such plaintiff must await the calling of the docket at the next term, or give the defendant notice of the assessment of damages before the Court, so that defendant may be given an opportunity to be heard upon the amount of damages. See Security Finance Co. v. Gentry, 91 Fla. 1015, 109 So. 220.”

For the reasons stated above, the default and judgment should be set aside. The cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

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


author: PONDER, Justice. McCALEB, Justice

text:
    233 La. 437
    Aleck TRESTMAN, Trading as Trestman’s Ready to Wear, v. COLLECTOR OF REVENUE.
    No. 42781.
    Supreme Court of Louisiana.
    June 28, 1957.
    Herman & Herman, Abraham I. Klein-feldt, Sam Monk Zelden, New Orleans, for plaintiff-appellant.
    Robert L. Roland, Levi A. Himes, Chapman L. Sanford, Baton Rouge, for defendant-appellee.
   PONDER, Justice.

Plaintiff appeals from a judgment of the district court affirming a ruling of the Board of Tax Appeals of the State of Louisiana confirming a deficiency assessment of sales taxes levied against the plaintiff by the Collector of Revenue.

The Collector of Revenue notified plaintiff of a deficiency assessment for the period of January 1, 1949 through August 31, 1952. Some 151 days after notification the plaintiff appealed to the Board of Tax Appeals on the ground that the State has no right to assess any tax or impede to any extent foreign commerce; that the bulk of sales were in fact wholesale sales made to seamen and ships for foreign commerce and shipped to other countries and hence plaintiff challenged the correctness and validity of the tax. To plaintiff’s petition the Collector excepted on the ground that the appeal had been taken more than 60 days after the notice of the assessment. This exception was referred to the merits by the board. After hearing the board dismissed plaintiff’s petition and ordered him to pay the amount of taxes levied in the assessment, notice of which was mailed to plaintiff on October 23, 1953. No mention was made of the exception filed by the Collector to the jurisdiction of the Board. The plaintiff appealed to the district court and the Collector again urged the exception to the jurisdiction. Upon hearing the district court affirmed the ruling of the Board with no mention of the exception and the plaintiff appealed to this court. The Collector again contends that the Board was without jurisdiction to hear the appeal of plaintiff.

The plaintiff owns a ready-to-wear business in the City of New Orleans and holds both a retail and wholesale license. Plaintiff contends that 75% of his business has been wholesale sales — most of which involved foreign and interstate commerce — and that the Collector of Revenue has wrongfully and illegally based the assessment on the gross sales and thus construed all sales as taxable retail sales in violation of law. Plaintiff contends that the Louisiana Sales Tax Law, LSA-R.S. 47:301 et seq., does not authorize or levy a sales tax on wholesale sales, or sales in foreign or interstate commerce, or sales of merchandise to be consumed outside of the State of Louisiana and that the judgment of the Board of Tax Appeals is repugnant to and violative of the foreign commerce clause of the United States Constitution (Article 1, Section 8, Clause 3) and of the Constitution of the State of Louisiana. Plaintiff pleads the unconstitutionality of the taxes and the assessment.

As to the exception to the jurisdiction filed by the Collector of Revenue it is without merit. It is conceded that the appeal was filed some 151 days after notification but it was held in the case of State ex rel. United Seamen’s Service v. City of New Orleans, 209 La. 797, 25 So.2d 596 that the right to sue to annul an assessment is not governed by the time limit in the statute, that limit merely applies to suits to reduce the amount of an assessment or redetermine the assessment.

On the question of whether or not the assessment was valid, the plaintiff testified that 75% of his business was allegedly wholesale, yet he admitted that he paid no tax at all not even on the retail sales. He admitted that he owed $2,000 of the $8,699 claimed. Pie stated that he did not collect tax on the retail sales during the years for which the deficiency assessment was made.

The State contends that all sales were made to individuals who were not in the retail business and held no license for such; that title to the articles passed in Louisiana and hence the tax was due. The State challenges the contention that the sales were wholesale.

The only explanation that plaintiff gives of the sales to characterize them as wholesale sales is that they were made to seamen and ships. This is no criterion as to the character of the sales and in the absence of proof they must be presumed to be retail sales and subject to taxation.

LSA-R.S. 47:301(10) defines retail sale or sale at retail as “a sale to a consumer or to any person for any purpose other than for resale in the form of tangible personal property, and shall mean and include all such transactions as the collector, upon investigation, finds to be in lieu of sales; provided that sales for resale must be made in strict compliance with the rules and regulations. Any dealer making a sale for resale, which is not in strict compliance with the rules and regulations, shall himself be liable for and pay the tax.” Under the rules and regulations of the Collector (Article 2-38) the seller must obtain from the buyer a resale certificate signed by and bearing the name, address and registration number of the buyer otherwise the sale will be considered a retail sale. No such procedure was followed herein.

In support of their contention that title passed in Louisiana, regardless of the fact that some of the articles were destined to leave the country, and the tax was due, the State cites and relies upon the case of Fontenot v. Searcy & Pfaff, Ltd., La.App., 78 So.2d 204, 205 wherein the court said : “ * * * the coincidence that the purchaser subsequently saw fit to send some of the property beyond the boundaries of Louisiana does not interfere with the right of the State to recover the amount of the taxes due.” As the court pointed out the taxable incidence was delivery in Louisiana.

So here the sale was complete in New Orleans, the price, the object and the consent being agreed to, and delivery took place in New Orleans, hence that was the taxable incidence and the mere fact that subsequently some of the property would be sent elsewhere is of no moment. Therefore, it must be concluded that the sales in question were retail sales subj ect to the tax and were not sales in interstate commerce.

For the reasons assigned the judgment of the district court is affirmed at appellant’s cost.

McCALEB, Justice

(concurring).

While I am in full accord with the majority opinion on the merits of the case, I believe that the exception to the jurisdiction of the Board of Tax Appeals, which was filed by the Collector of Revenue, is well founded and should have been sustained. The Board had jurisdiction for a redeter-mination of the deficiency assessment made herein, provided an appeal was taken within sixty calendar days by the taxpayer. R.S. 47:1431 and R.S. 47:1565. After that time, the assessment became final and was collectible by distraint and sale.

The case of State ex rel. United Seamen’s Service v. City of New Orleans, 209 La. 797, 25 So.2d 596 is not applicable here. That was a mandamus proceeding to cancel a tax assessment, the claim being that the property was exempt from taxation under the Constitution, and the court held that the Legislature was without authority to place a time limit on the right to sue to annul such an assessment. The instant case is distinguishable in that appellant did not file an action in court to annul the assessment but attempted to have the assessment reviewed by the Board of Tax Appeals after the sixty-day limitation had expired. At that time, the Board of Tax Appeals was without jurisdiction of the case.

Furthermore, although appellant attacked the constitutionality of a portion of the assessment, he admitted that he owed $2,000 of the $8,799 claimed. Thus, he was actually seeking a redetermination of the assessment. Not having claimed that the entire assessment was null, he was required by law to appeal to the Board of Tax Appeals but that administrative body had lost jurisdiction at the time the petition was filed.

I respectfully concur.


text:
    Silas E. CHAMBERS, Appellant, v. Walter NOTTEBAUM, Appellee.
    No. 57-42.
    District Court of Appeal of Florida. Third District.
    Aug. 15, 1957.
    Rehearing Denied Sept. 13, 1957.
    George S. Okell, Sr., Miami, for appellant.
    Warren, Klein & Moore, Miami Beach, for appellee.
   CARROLL, CHAS., Chief Judge.

Appellant was the defendant in the court below, against whom a jury verdict was rendered. Plaintiff was an adult college student, who was operated on for appendicitis by the defendant surgeon. He sued, alleging trespass to the person, claiming that a resulting permanent injury in the form of a partial paralysis of one of his legs was caused by the use of a spinal anesthetic administered by defendant, allegedly contrary to his express instructions.

The plaintiff’s case was not one of malpractice but for trespass to the person, as pointed out in Donald v. Swann, 24 Ala. App. 463, 137 So. 178, 180, certiorari denied 223 Ala. 493, 137 So. 181, which said:

“ * * * The distinction lies in the fundamental difference between an action for malpractice and an action for trespass to the person. Trespass to the person is an intentional act which is unlawful, while malpractice arises on account of negligence. Hershey v. Peake, 115 Kan. 562, 223 P. 1113.”

See also, Cady v. Fraser, 122 Colo. 252, 222 P.2d 422.

The defendant’s answer contained a denial ; contended that any restrictions respecting the use of an anesthetic had been released by the plaintiff himself or through his agent; and charged plaintiff with contributory negligence.

Based on his eighteen assignments of error, appellant has stated six questions here. We reduce them to these three: (1) sufficiency of the evidence; (2) failure to include an essential charge to the jury, and (3) a departure in pleading and variance in proof.

In determining the question of liability the jury was required to decide a number of issues on which there was conflicting testimony.

The plaintiff suffered from a lame appendix, for which he consulted the defendant a number of times during the summer of 1951, the year of the operation, while attending a local university summer school. In the middle of August, when he was through school for a period of weeks, it was his testimony that it was suggested by the doctor that he have his appendix taken out at that time for convenience. Plaintiff denied that there was any flare-up or emergency, but the testimony given by the doctor was to the effect that the plaintiff’s condition was acute and an emergency situation had arisen.

The plaintiff and his mother testified that when the operation was arranged, on that day in August, the plaintiff informed the doctor that he would not permit a spinal anesthetic, and that the doctor agreed not to use that type of anesthetic. A second conflict was produced in the evidence when the doctor denied that, and testified he did not recall any such discussion.

A third conflict in the evidence related to the circumstances in connection with the plaintiff’s mother signing for his admission at the hospital, which included an authority to use any anesthetic determined upon by the doctor. She was not acting for a minor. He had passed his twenty-first birthday. Acting for him as his agent, if the mother signed the authority to use any anesthetic, with his knowledge and consent, or otherwise under circumstances so as to bind him on that feature, it could operate to release any contrary instructions previously given about the spinal anesthetic. On that feature, the plaintiff testified that he was not in the room when she signed the paper in the hospital; that what she signed concerning anesthetics was not within his knowledge; and that his authority to her was limited to having her sign for his admission. His mother’s testimony tends to corroborate that.

On the defendant’s side there was contrary evidence, to the effect that the plaintiff was in the room; that he saw what his mother was doing; and that reference was made in his presence to the consent for the anesthetics which was included in the document his mother was signing.

The verdict for the plaintiff in this case resolved and settled those conflicts in the evidence, in favor of the plaintiff and against the defendant.

The rule is well established which prevents a doctor from operating on a patient without his express or implied consent, or in a manner contrary to the patient’s express instructions. A statement of this rule was made in Wall v. Brim, S Cir., 138 F.2d 478, at page 481:

“ * * * The law is well settled that an operation cannot he performed without the patient’s consent and that one performed without consent, express or implied, is a technical battery or trespass for which the operator is liable. The obligation underlying this rule is not satisfied by a consent obtained under a mistaken diagnosis that the operation is simple and without danger, when a later diagnosis, while the patient is still conscious and no emergency exists, discloses that the operation is both difficult and dangerous. The rule extends no further than to hold that if a physician advises his patient to submit to a particular operation and the patient weighs the dangers and results incident to its performance and finally consents, he thereby in effect enters into a contract authorizing his physician to operate to the extent of the consent given but no further. The same principle which supports the holding that a surgeon performing an operation without his patient’s consent, express or implied, commits a battery or trespass for which he is liable in damages, also supports the holding that a surgeon may not perform an operation different in kind from that consented to or one involving risks and results not contemplated.”

An emergency arising may furnish an exception. The effect of an emergency situation on the rule is set out in 41 Am.Jur. 222-23, Physicians and Surgeons, § 110, as follows:

“The general rule that a surgeon operates at his peril without first obtaining the consent of his patient or someone legally authorized to consent for him is qualified in its application by most courts in cases of emergency or unanticipated conditions where some immediate action is found necessary for the preservation of the life or health of the patient, and it is impracticable to first obtain consent to the operation or treatment which the surgeon deems to be immediately necessary. According to the rule laid down by some courts, if in the course of an operation to which the patient has consented the physician discovers conditions not anticipated before the operation was commenced, and which, if not removed, will endanger the life or health of the patient, he is, although no express consent is obtained, justified in extending the operation to- remove and overcome such conditions. * * * In such a case, where the emergency endangers the life or health of the patient, it is the surgeon’s duty to do that which the occasion demands within the usual and customary practice among physicians and surgeons in the same or similar localities, without consent of the patient * *

In the case of Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, at page 93, 52 L.R.A.,N.S., 505, a New York Court of Appeals decision, the opinion prepared by Mr. Justice Cardozo, contains the following:

“In the case at hand, the wrong complained of is not merely negligence. It is trespass. Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages. Pratt v. Davis, 224 Ill. 300, 79 N.E. 562, 7 L.R. A.,N.S., 609, 8 Ann.Cas. 197; Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 1 L.R.A..N.S., 439, 111 Am.St.Rep. 462, 5 Ann.Cas. 303. This is true, except in cases of emergency where the patient is unconscious, and where it is necessary to operate before consent can be obtained. * *

An early leading case on this subject was Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 14-15, 1 L.R.A.,N.S., 439, in which the court said:

“ * * * It was said in the case of Pratt v. Davis, 37 Chicago Leg.News, 213, referred to and commented on in Cent.Law J. 452: ‘Under a free government, at least, the free citizen’s first and greatest right, which underlies all others — the right to the inviolability of his person; in other words, the right to himself — is the subject of universal acquiescence, and this right necessarily forbids a physician or surgeon, however skillful or eminent, who has been asked to examine, diagnose, advise, and prescribe (which are at least necessary first steps in treatment and care), to violate, without permission, the bodily integrity of his patient by a major or capital operation, placing him under an anaesthetic for that purpose, and operating upon him without his consent or knowledge.’ 1 Kinkead on Torts, § 375, states that general rule on this subject as follows: ‘The patient must be the final arbiter as to whether he will take his chances with the operation, or take his chances of living without it. Such is the natural right of the individual, which the law recognizes as a legal one. Consent, therefore, of an individual, must be either expressly or impliedly given before a surgeon may have the right to operate.’ There is logic in the principle thus stated, for, in all other trades, professions, or occupations, contracts are entered into by the mutual agreement of the interested parties, and are required to be performed in accordance with their letter and spirit. No reason occurs to us why the same rule should not apply between physician and patient. If the physician advises his patient to submit to a particular operation, and the patient weighs the dangers and risks incident to its performance, and finally consents, he thereby, in effect, enters into a contract authorizing his physician to operate to the extent of the consent given, but no further. It is not, however, contended by defendant that under ordinary circumstances consent is unnecessary, but that, under the particular circumstances of this case, consent was implied; that it was an emergency case, such as to authorize the operation without express consent or permission. * * * If a person should be injured to the extent of rendering him unconscious, and his injuries were of such a nature as to require prompt surgical attention, a physician called to attend him would be justified in applying such medical or surgical treatment as might reasonably be necessary for the preservation of his life or limb, and consent on the part of the injured person would be implied. And again, if, in the course of an operation to which the patient consented, the physician should discover conditions not anticipated before the operation was commenced, and which, if not removed, would endanger the life or health of the patient, he would, though no express consent was obtained or given, be justified in extending the operation to remove and overcome them. * *

Discussion of this rule and its exception also appears in the following authorities: Moos v. United States, 8 Cir., 225 F.2d 705; Donald v. Swann, supra, Ala., 137 So. 178; Wheeler v. Barker, 92 Cal.App.2d 776, 208 P.2d 68; Pratt v. Davis, 224 Ill. 300, 79 N.E. 562, 7 L.R.A.,N.S., 609; Tabor v. Scobee, Ky., 254 S.W.2d 474; Wells v. McGehee, La.App., 39 So.2d 196; Rolater v. Strain, 39 Old. 572, 137 P. 96, 50 L.R.A., N.S., 880; King v. Carney, 85 Okl. 62, 204 P. 270; Hively v. Pliggs, 120 Or. 588, 253 P. 363, 26 A.L.R. 1036 ; 53 A.L.R. 1056.

In preparation for the'operation in this case an anesthetist proceeded to give a general anesthetic, using sodium pentothal injected into the arm. The plaintiff suffered an adverse reaction, and the precarious condition in which it put him is described by the defendant in his testimony. The general anesthetic was discontinued, and the defendant then gave a spinal anesthetic and proceeded to operate on the plaintiff.

Whether there was an emergency requiring the doctor to operate then and there, or whether the operation could be deferred for a period to allow recovery from the effects of the general anesthetic and perhaps allow use of an anesthetic other than a spinal, presented another issue which the jury had to decide.

On that issue, the doctor’s testimony was to the effect that he was required to proceed because the man’s appendicitis was acute and in his opinion if not operated on the plaintiff would have died in two or three days.

That testimony of the doctor was in conflict with the plaintiff’s explanation of his condition earlier that day and at the time the operation was planned.

When the general anesthetic which was given first resulted in a bad reaction on the patient, the actual operation had not been commenced. This was not an instance of an operation in progress or partly completed, which could present an emergency in the form of an obvious need to continue and complete such operation.

By its verdict the jury resolved that conflict, and found against the existence of the need for an immediate operation, so as to excuse the use, without permission, of the spinal anesthetic.

A final point of conflict was presented to the jury in this case by the evidence bearing on the question of whether the use of the spinal anesthetic caused the injury to the plaintiff’s leg, which followed the operation. There was credible evidence to support the jury’s finding favoring the plaintiff on that point.

From our examination of the record on appeal, we conclude that the jury verdict establishing liability in this case was sufficiently supported by evidence on the material issues which were raised, and that the appellant has not shown the verdict to be against the manifest weight of the evidence.

Appellant’s attack on the charge to the jury was argued under Point II in his brief. Appellant stated that question as follows:

“The court in charging that under no circumstances may a doctor deviate from the specific instructions of his patient as to the kind of anesthesia to be given to his patient during a proposed operation erred in failing to qualify such charge where an emergency arises during the course of the operation requiring the use of the forbidden anesthetic in order to save patient’s life.”

After charging the jury on the duty of a doctor to operate only with permission and within the limits of the express instructions as to type or manner of operation, the court included charges relating to exceptions to the rule where emergency situations arise, as follows:

“The general rule that a surgeon operates at his peril without first obtaining the consent of his patient or someone legally authorized to consent for him, is qualified in its application in Florida in cases of emergency or unanticipated conditions where some immediate action is found necessary for the preservation of the life or health of the patient, and it is impractical to first obtain consent to the operation or treatment which the surgeon deems to be immediately necessary.
“It has been said, too, that the rules of professional conduct of trained and expert surgeons must be fixed to reasonably fit complex modern conditions, and that such a surgeon, confronted by an emergency, must be permitted, after a fair and careful examination of the patient, to exercise his best professional judgment as to the necessity for immediate operation or treatment or anesthetic procedure without waiting for the consent ordinarily required. In such a case, where the emergency endangers the life or health of the patient, it is the surgeon’s duty to do that which the case demands, within the usual and customary practice among physicians and surgeons in the same or similar localities, without the consent of the patient or his parents.”

The charge just quoted was sufficient on the question of an emergency as an exception to the rule under consideration. Appellant contends that the failure of the judge to include a specific reference to the giving of a forbidden anesthetic under such emergency circumstances, amounted to a prejudicial error. We do not feel that the jury could have been mislead in any such respect. The charge was sufficient to show that liability will not be imposed in the event of an emergency situation as described, even where there was no permission for an operation, and, a fortiori, where the operation was authorized, but the lack of permission or consent related only to an incident thereof, such as the anesthetic.

A single charge is not required to cover all the law relating to the subject treated. In determining the propriety of a challenged charge, the charge that the court has given must be considered as an entirety, and not in isolated portions. Police & Firemen’s Ins. Ass’n v. Hines, 134 Fla. 298, 183 So. 831, 833; Adams v. Royal Exchange Assur., Fla., 62 So.2d 591.

The entire charge of the trial court, or the entire portion of it bearing on the particular subject, must be considered in determining whether the challenged charge is free from error. Cases so holding are too numerous to justify citation. Examples are: International Lubricant Corporation v. Grant, 128 Fla. 670, 175 So. 727; Duval Laundry Co. v. Reif, 130 Fla. 276, 177 So. 726; Police & Firemen’s Ins. Ass’n v. Hines, supra; Wharton v. Day, 151 Fla. 772, 10 So.2d 417.

On reading the entire charge on the subject we find it to be without error.

There remains for consideration the contention of the appellant that there was a departure in pleading and a variance between allegations and proof.

As a means of defining departure, appellant’s brief quoted from Lopez v. Avery, Fla., 66 So.2d 689, 691, as follows:

“* * * the law is that a departure in pleading occurs when a party quits or departs from the case or defense which he has first made and resorts to another which gives rise to a wholly distinct and different legal obligation against his adversary. Crim v. Drake, 86 Fla. 470, 98 So. 349; Livingston v. Malever, 103 Fla. 200, 137 So. 113; Eagle Fire Co. v. Lewallen, 56 Fla. 246, 47 So. 947; Gerstel v. William Curry’s Sons Co., 155 Fla. 471, 20 So.2d 802, 804. In determining whether there has been such a substantial departure in after pleading as to authorize the court to dismiss an amended pleading on such ground, ‘the test is whether the matter introduced by way of amendment requires a different character of evidence for its support than would be required for proof of the antecedent pleading and whether proof of additional facts will be required to sustain the later pleading.’ Gerstel v. William Curry’s Sons Co., supra.”

The amended complaint is claimed by appellant to constitute the departure. In the original complaint both Walter Nottebaum and his mother, Nellie Nottebaum, were plaintiffs. It alleged that the contract for the operation was made between the doctor and the two plaintiffs, and that in the operation the doctor used a spinal anesthetic, when he had contrary express instructions, and such action was there charged as being an assault and battery on the plaintiff, Walter Nottebaum. Compensatory and punitive damages were sought. In the amended complaint the mother was eliminated as a plaintiff. The material allegations upon which recovery was sought in the new complaint were the same, that is, that the operation was made with a spinal anesthetic contrary to express instructions and that injury resulted for which damages were claimed. It was charged in that second complaint that by such action the doctor “did thereby commit a wrong upon and to the person and body of the plaintiff, and did inflict and cause severe, grievous and serious personal injuries to the plaintiff.”

Referring back to the appellant’s quoted authority as to departure which specified that the test is “whether the matter introduced by way of amendment requires a different character of evidence for its support than would be required for proof of the antecedent pleading, and whether proof of additional facts will be required to sustain the latter pleading,” it is readily apparent that the nature of the evidence to make out a case for the plaintiffs, or plaintiff, under each complaint was, if not identical, the same in general, and in substantial respects. Under each, it was necessary to show the arrangement for an operation, the statement of the conditions or permission granted, the operation in a manner violating instructions, and, of course, the consequences. The amended complaint did not require proof of additional facts, but rather the contrary. The amended complaint dropped Mrs. Nottebaum as a party plaintiff, thus lessening the required proofs rather than adding to them. Reference was. made to the fact that the first complaint which claimed assault would have involved punitive in addition to compensatory damages, while under the second complaint charging trespass to the person, only compensatory damages were involved. There again, the second complaint served to reduce rather than increase matters requiring evidence or proofs.

Nor are we convinced that a difference of any substance resulted from classifying the injury as an assault, in the first complaint, and as trespass to the person in the amended complaint. Authorities use “assault”, and “trespass to the person” interchangeably in this connection. See, Wall v. Brim, supra, 5 Cir., 138 F.2d 478, 481; Donald v. Swann, supra, Ala., 137 So. 178, 180; Schloendorff v. Society of New York Hospital, supra, 211 N.Y. 125, 105 N.E. 92,. 93, 52 L.R.A.,N.S., 505; Gelhaus v. Eastern Air Lines, 5 Cir., 194 F.2d 774,, 776; and 41 Am.Jur. 220, Physicians and Surgeons, § 108.

Thus, the record fails to disclose a departure or variance as claimed by appellant.

Therefore, the judgment of the lower-court should be and hereby is affirmed.

Affirmed.

HORTON and PEARSON, JJ., concur.

      . “Q. Now, what took place after starting giving the general anesthetic of sodium pentothal? A. Soon after the general anesthetic was started, this man went into convulsions, with contractures of all extremities and developed— * * And he developed rales at the base of his lungs, and he did not become cyanotic, but he had a very irregular pulse just previous to the operation, and apparently he was in shock of undetermined cause. Q. Now, let’s go back there a minute. You said he developed rales. What is that, in layman’s language? I don’t believe the jury will understand what those terms mean. A. It means congestion in the lungs. Q. Is there a sound attached to it? A. Yes, sir. Q. What is that sound? A. It is sort of a gargling sound you hear when you examine the chest, and I saw this man had embarrassed respiration, without examining it with a stethoscope. * * * Q. Now, you say he was not cyanotic. What does that mean? A. Cyanotic means blue. He was not cyanotic after we got the convulsions controlled. Q. During the period he was having the convulsions he was cyanotic? A. He was a little bit cyanotic, he turned partially blue.”

      . “A. This man had a previous chronic appendix, and at this time he developed acute appendix. Q. When you say ‘at this time,’ you mean the immediate time of the operation, in particular? A. The day of the operation he developed increased pain and increased or marked tenderness in his abdomen. Q. That was what indicated an acute appendix? A. Yes, sir. * * * Q. Was there any necessity for you to proceed with the operation at that time? A. I think it was of dire necessity, because of his chills and convulsions. Q. What in your opinion may have happened if you had not proceeded with the operation? * * A. I think the man would have went on and died of a ruptured appendix within two to three days. * * * Because I considered the man either had an overr whelming infection that was causing his convulsions, or anaphylactic shock, and I think it would have been hazardous to the man if it hadn’t proceeded. Q. Was that your best judgment as a surgeon and physician, that you should proceed with the operation? A. Yes. Q. Why? * * * A. Because of his acute abdomen or overwhelming infection. Q. What did the acute abdomen or overwhelming infection indicate to you? * * A. It indicated that if some positive treatment was not taken, that the patient would die.”

      .“Q. In the morning of August 14, 19S1, then, you did have a discussion with the defendant? A. I did. Q. Will you state what was said at that time? A. At that time it was just another routine, going in to see the doctor, and to get my shots, and I was in there getting examined by the doctor and I happened to say in passing that I had just completed my examination for that semester, and I was free now until September, until the fall semester, and he said, ‘Do you think it would be a good time to have your appendix out now,’ and I said, ‘Well, is there any emergency?’ He said, ‘No; it is up to you if you want it now as far as convenience in case at some future time it starts acting up then you would be in trouble.’ So I said, ‘Well, I didn’t think about it, but it probably would be a good time now on account of the layover,’ and at that time I told the doctor— I asked the doctor, ‘Do you give spinals?’ Ho said, ‘Yes; I have given hundreds of them.’ I said, ‘Doctor, I don’t want a spinal. I had a lot of friends tell me that spinals are — you get bad effects from them, and I am against a spinal,’ and he said, ‘Well then, I will make some kind of other arrangements and give you something else.’ I said, ‘That would be find.’ My mother was outside in the waiting room and he said, ‘Call your mother in, and we will talk about having the operation at this time.’ So I called my mother in and we discussed the operation, and we all thought it would be a good time, and I told my mother I had just talked to the doctor and told him I didn’t want a spinal, and she said, ‘That is fine; I am against it too.’ The doctor said, ‘Since you are both against it, I will not give a spinal; I will give something else.’ That was the discussion then. Q. Where did that conversation take place? A. That was right in his office, commencing about ten o’clock or ten-thirty. Q. What was the occasion for your going to his office at that time? A. Well, I went to visit the doctor on one of these occasions he would say, ‘Come back in a few days; come back in a week,’ whatever was to suit him, to suit his schedule, and I came back at that time. Q. This was just another of a series of appointments? A. That’s right. Q. At that time, was your condition any different, as far as you could tell, from what it had been during the past several weeks ? A. No, it wasn’t. In fact, a night or two before that I went bowling. I had no pain. Sometimes I would have a little pain, but it was nothing worse. It was about the same.”


text:
    The OCEANIC APARTMENTS, Inc., a Florida corporation, Appellant, v. Carol FOX and Sam Fox, her husband, Appellees.
    No. 57-58.
    District Court of Appeal of Florida. Third District.
    Aug. 12, 1957.
    Rehearing Denied Sept. 5, 1957.
    Blackwell, Walker & Gray, Miami, for appellant.
    Kelner & Lewis, Miami Beach, for ap-pellees.
   PER CURIAM.

Affirmed.

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


text:
    Booker WHITMILL, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida.
    July 31, 1957.
   PER CURIAM.

Affirmed.


author: THORNAL, Justice.

text:
    Thelma J. PRITCHARD, Appellant, v. PEPPERCORN and PEPPERCORN, Inc., a Florida corporation, and Kerwell Lolley, Appellees.
    Supreme Court of Florida, Special Division B.
    June 12, 1957.
    Rehearing Denied July 12, 1957.
    J. Russell Hornsby, Orlando, C. B. Tartarí and Robert Eagen, Orlando, for appellant.
    J. Thomas Gurney, Orlando, for ap-pellees.
   THORNAL, Justice.

Appellant Thelma J. Pritchard, who was plaintiff below, seeks reversal of a summary judgment entered in favor of the appellees, who were defendants below, in an automobile negligence death case.

The only point to determine is whether the record presented to the trial judge tendered a genuine issue on a material fact that would preclude the entry of a summary judgment.

Mrs. Pritchard sued the appellees Peppercorn and Peppercorn, Inc., and Lolley, claiming that her husband met his death as the result of the negligent operation of an automobile owned by Peppercorn and driven by Lolley. The fatal collision occurred at about 1:30 a. m., August 7, 19S4, on Highway SO east of Orlando. The deceased, Dale Pritchard, was driving westerly toward Orlando. Appellee Lolley, accompanied by one Redditt, was driving Peppercorn, Inc.’s truck in an easterly direction when the two vehicles collided resulting in Pritchard’s death.

On a motion for a summary judgment, the appellees tendered the deposition: of Lolley which in substance stated that when about 250 yards away from the Pritchard' automobile he saw it start weaving from side to side crossing the centerline at times and then continuing westerly in the north traffic lane, which was the proper lane. Lolley maintained the operation of his car in the south traffic lane. When the Prit-chard car was about 100 yards away, it again started weaving and as Lolley pulled his truck slightly off the paved road on the south side, he testified that the Pritchard automobile plowed into him. Lolley’s deposition was corroborated by the affidavit of Redditt, his passenger. A Highway Patrolman, who appeared on the scene about ten minutes after the collision, stated that the front left wheel of the Pritchard automobile was about 3 feet into the south lane. He also testified that while he could smell alcohol, neither Lolley nor Redditt was drunk. Photographs of the scene of the collision supported the testimony of the Highway Patrolman showing the front left wheel of the Pritchard car well into the south traffic lane.

To meet these statements, the appellant offered the deposition of one Martha Abernathy in which she stated that she and another couple had met Lolley and Redditt about 7:00 p. m., August 6, at an establishment named the Trocadero, where only beer and wine were sold; that in order to obtain a bottle of whiskey she and Lolley proceeded to another place named the Pink Elephant where they bought a “fifth” of whiskey; after an unspecified absence they then returned to the Troca-dero where the party consumed the bottle of whiskey, and around midnight Lolley took her home. He left her at about 12:45 a. m. This affidavit states that when the affiant last saw Redditt (the exact time not being stated), he was drunk. The affidavit, however, does not certify that Lolley was drunk at any time.

The appellant also filed the affidavit of one Payne, who stated that he saw the Pritchard car about five minutes before the accident and that it was not weaving in the road.

The trial judge was of the view that no genuine material factual issue was tendered by the affidavits and depositions and thereupon entered a summary judgment for the appellees. Reversal of this judgment is now sought.

The appellant contends that the affidavit with reference to the intoxication of the witness Redditt as well as alleged conflicts in the deposition produced a factual issue requiring that the case be heard by a jury.

The appellees insist that there was no factual issue for a jury to hear.

In Herring v. Eiland, Fla., 1955, 81 So.2d 645, we held that where a plaintiff fails to present affidavits in support of the allegations of the complaint, or in the alternative affidavits in opposition to a motion for summary judgment showing reasons why essential facts could not be presented by contesting affidavits, then all that the trial judge has before him for consideration are the unsupported complaint and the depositions or affidavits of the movant for the summary judgment. If such depositions and affidavits under these circumstances reveal no cause for complaint it is proper to enter a summary judgment for the defendant.

In the instant case the appellant offered no affidavits tending to support the allegations of her complaint to the effect that the driver of the truck operated the same negligently. The affidavit of the witness Payne merely supports the fact that approximately four miles away, the automobile of Mr. Pritchard was not weaving or swerving in the highway. The affidavit of the witness Abernathy while apparently aimed at establishing the intoxicated condition of the driver Lolley fails to do so. While she did state that he had been drinking, it is noted upon careful analysis that she made no statement whatever with reference to the condition of intoxication, although she did state that the witness Redditt was drunk the last time she saw him, whenever that was. Even when we indulge all proper favorable inferences in appellant’s behalf, as we must do on a motion for summary judgment, we still find a situation in which there are no genuine issues on material facts, there being a complete absence of any evidence of negligence on the part of the truck driver.

Appellant in her brief contends that the Abernathy affidavit was sufficient on which to construct an inference that the driver of the truck was intoxicated at the time of the collision. In order to reach this point we must first draw the inference that Lolley was intoxicated when he left the bar at about midnight, then the further inference that such intoxication continued until the accident, an hour or more later, and finally we must superimpose upon this additional inference the final inference that his intoxication produced the fatal collision.

Under the rule of Voelker v. Combined Ins. Co. of America, Fla., 1954, 73 So.2d 403, we are not permitted to do this. See, also, Byers v. Gunn, Fla., 1955, 81 So.2d 723. We think these two decisions clearly define the rules applicable to the employment of inferences based on circumstantial evidence as the basis for determining the existence of an ultimate fact.

In the instant case we are further confronted with the proposition that the positive testimony of the Highway Patrolman supported the deposition of the driver Lolley. In addition the pictures, which are often more valuable as evidence than many words, rather clearly corroborate the story related by the Patrolman and the truck driver and are inconsistent with the contention of appellant. Even if the affidavit of the witness Redditt were completely disregarded as appellant contends we should do we would still be faced with a situation in which there was no genuine issue on any of the material facts.

Under the circumstances reflected by this record, we fail to find that the able and long experienced trial judge crossed the barrier which preserved to the litigant the right to a trial by jury unless there is an absence of a genuine issue on a material fact.

The judgment is affirmed.

TERRELL, C. J., O’CONNELL, J., and SANDLER, Associate Justice, concur.


author: ROBERTS, Justice.

text:
    A. C. THOMAS, Jr., Georgia Patricia Thomas and Lawrence D. Cowart, Appellants, v. L. C. THOMAS and Gladys B. Thomas, Appellees.
    Supreme Court of Florida, Special Division B.
    June 12, 1957.
    Rehearing Denied Sept. 18, 1957.

      Clyde R. Brown, Bonifay, and James N. Daniel, Chipley, for appellants.
    Ben F. Barnes and John H. Carter, Jr., Marianna, for appellees.
   ROBERTS, Justice.

This controversy arose out of a transaction between the parties involving a deed and a contract of purchase and sale, by which the appellant, A. C. Thomas, Jr., deeded the subject property to,his brother L. C.. Thomas, appellee here, and at the same time entered into a contract whereby L. C. agreed to sell and A. C. agreed to purchase the subject property.

Suit was filed by L. C. and wife against A. C. and wife (and A. C.’s lessee, one Cowart) for a decree declaring the sales-purchase agreement to be null and void because of A. C.’s failure to make the payments required thereunder and L. C.’s declaration of forfeiture pursuant to its terms. A. C. defended on the ground that the transaction was, in fact, a mortgage and that payment of the amount due thereunder had been tendered to L. C. and to his attorney prior to the instant suit, and that each party had refused to accept the proffered payment. His answer incorporated a counterclaim, asking the court to decree that the deed and contract constitute a mortgage to secure the payment of an indebtedness of $7,500 and that the deed be reformed to show that it is a mortgage.

The lower court held that the deed and sales-purchase agreement “constituted a conditional sale of the land rather than a mortgage of the land,” and entered a decree declaring that L. C. was the owner of the property and that A. C. et als. had no right, title or interest therein. A. C. has appealed and here questions the sufficiency of the evidence to support the decree of the Chancellor.

There is very little conflict in the evidence. It is conceded that the transaction was necessitated by financial difficulties in which A. C. found himself because -a note and mortgage owing to the bank was past due. He applied to an insurance company for a loan but it was disapproved because the company’s policy was to make loans of no less than $7,500 and only up to 50 percent of the value of the property, and A. C.’s property was appraised by the company at $í¿,000. L. C.’s application to the insurance company for a loan on his own property had, however, been approved; and it was agreed that A. C. execute a deed of his land to,JU C. and that L. C. would include such land in his loan application and obtain an additional $7,500 for A. C. Pursuant to the agreement, L. C. obtained a loan of $29,500 from the insurance company, securing the same by a mortgage, dated November 12, 1953, on his own property and that covered by the deed thereafter executed by A. C. According to a statement in the contract of purchase and sale here in question, the $7,500 allocated to A. C. was disbursed by L. C. as follows: “$6,256.19 plus accrued interest to C. C. Harrison for the satisfaction of an outstanding note and mortgage [A. C.’s], plus the sum of approximately $432.-50 being the proportionate part of the cost of the loan obtained by the parties of the first part on this [A. C.’s] property and other property for the purpose of obtaining said sum of money, also accrued and delinquent taxes, and plus cash delivered to the said party of the second part [A. C.].” The deed and contract here in question were executed on November 24, 1953.

Under the terms of the sales-purchase contract, A. C. remained in possession of the property but was required to keep it in good repair, to take out and pay the premiums on insurance on the buildings if required by the insurance company, and to pay taxes. Subsequent to the transaction in question, A. C. executed a five-year written lease of the premises to the defendant Cowart, with the knowledge and consent of L. C. The contract stated that “the sum of $7,500.00 is to be considered the purchase price to be paid” by A. C. for the property, payable over a 20-year period in annual payments of $375.00 plus interest at the rate of 5-]4 percent per annum.

The real question here is whether the $7,500 allocated to A. C. was actually a loan to A. C. or the consideration for a bona fide sale of A. C.’s property to L. C., in view of the provision of Section 697.01, Fla.Stat. 1955, F.S.A., that “All conveyances * * conveying or selling property, * * * for the purpose or with the intention of securing the payment of money, * * * shall be deemed and held mortgages, * * L. C. testified that he did not intend it to be a loan — that he intended the transaction to be an absolute purchase of the property, with an agreement to re-convey upon receipt of the purchase price. A. C. testified that he did not intend actuality to sell the property to L. C-: — that he thought the transaction was in-'the nature of a second mortgage on his property.

In deciding the question ' of whether a deed is, in fact, a mortgage, the court “may take into consideration the paper itself, or the instrument in connection with contemporaneous writings or agreements concerning the subject matter, or by the aid of extraneous evidence which will determine the decision of the question. The attitude of the parties relative to the conveyance after its execution may also be considered.” Marcus v. Hull, 1940, 142 Fla. 306, 195 So. 170, 172. The statute in question, Sec. 697.01, supra, should be liberally construed, Torreyson v. Dutton, 1940, 145 Fla. 169, 198 So. 796; and in cases of doubt the deed should be construed to be a mortgage. Marcus v. Hull, supra, and cases cited.

It will have been noted that the circumstances surrounding the transaction, the terms of the contract of purchase and sale, and the attitude of the parties subsequent to its execution, all point to the fact that the transaction was not a bona fide sale of the premises but merely an arrangement by which A. C. could obtain a loan on his property and pay it off over a 20-year period. The fact that there was no promissory note evidencing the debt does not prohibit a holding that the transaction was a mortgage arrangement. See Watkins v. Burnstein, 152 Fla. 828, 14 So.2d 569, a case very similar on its facts to the instant case.

While we are always reluctant to overrule a Chancellor in a case of this kind, it appears that the testimony ' was taken before a special examiner without authority to make findings of fact and recommendations, so that this court has the -same opportunity to evaluate the testimony as did the Chancellor; and we have concluded that, under the decisions of this court cited above, the Chancellor erred in holding that the transaction constituted a conditional sale of the land rather than a mortgage thereof.

Accordingly, the decree is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

TERRELL, C. J., THOMAS, J., and KNOTT, Associate Justice, concur.


text:
    NATIONAL HOTEL, Inc., a Florida corporation, Appellant, v. Harry KORETZKY, Appellee.
    Supreme Court of Florida.
    July 10, 1957.
    Rehearing Denied Sept. 18, 1957.
    Ward & Ward, Miami, for appellant.
    Sibley & Davis, Miami Beach, for appel-lee.
   ROBERTS, Justice.

Near the end of the term of a lease of hotel premises a controversy developed between the lessor, appellee here, and the lessee, appellant here, as to their respective liabilities under the lease and the amount of the lessee’s security deposit to be returned to it at the expiration of the leasehold term. A suit was instituted by the lessee to recover a portion of its security deposit, in which the lessor counterclaimed for damages to the interior of the premises. Thereafter the parties entered into a stipulation agreement by which all claims were settled or waived except as to the amount necessary to compensate the lessor for “any shortages, lack of repair, renovation, or restoration” of all furniture, equipment and other items inventoried at the inception of the lease “in order that the redelivery of the personal property and equipment and inventory to said Harry Koretzky shall be in accordance with the terms of the lease.”- They stipulated that the lessor’s claim in this respect should be submitted to arbitration, as provided for in the lease, and that the findings of the arbitrators should be final, conclusive and binding upon the parties.

In due course the arbitrators and the umpire filed their report, awarding the lessor $4,825 as his compensation, and possession of the hotel premises was taken by the lessor. Some 30 days later, upon motion of the lessor (filed in the litigation referred to above) that the arbitrators “were obviously mistaken in interpreting the formula or method to be used in determining the award which should be made to the lessor for items which were not contained in the hotel and which were shortages of inventory,” the trial judge set aside the award. Certiorari to review the order setting aside the award was denied by this court and an appeal from such order dismissed, but “without prejudice to the rights of the appellant [lessee] herein to raise the same questions as reflected in its assignments of error regarding the setting aside of the award of the arbitrators after final determination of the cause which is still pending in the Circuit Court for Dade County, Florida”. The trial judge, without a jury, heard the evidence on the question of the amount due the lessor and entered a judgment awarding him some $32,600. The lessee has appealed.

The parties do not agree as to whether the arbitration award in question was a statutory award or a common-law award. If a statutory award, it may be set aside only on the ground of fraud, corruption, gross negligence, or misbehavior of one or more of the arbitrators or the umpire who may have signed the award, or of evident mistake acknowledged by the arbitrators or umpire. Section 57.07, Fla.Stat. 1955, F.S.A.; Cassara v. Wofford, Fla.1951, 55 So.2d 102. If a common-law award, the attack on the' award may be based on a charge that the arbitrators erroneously applied rules of law in arriving at their decision. See Glens Falls Ins. Co. v. Gulf Breeze Cottages, Inc., Fla.1949, 38 So.2d 828. We have concluded that, even if it be assumed to be a common-law award, the trial judge erred in setting it aside.

The only attack of any substance made on the award by the lessor was that the arbitrators and the umpire erroneously took into consideration depreciation in arriving at the amount to be awarded for shortage items or items damaged beyond repair. The lessee’s obligation as to the return of inventoried items of personal property at the end of the leasehold term was stated in the lease as follows:

“It is further understood and agreed by and between the parties that during the continuance of this lease the Lessee will take care of and preserve the personal property, and will allow the Lessor access to the premises at all reasonable times to enable the Lessor to check said personal property, and the Lessee will replace all broken, damaged and missing personal property delivered to him as part of the equipment furnishings of the said hotel at the termination of the lease and will redeliver all of said personal property, together with replacements thereof, in as good condition and state of repair as when received by him, said Lessee, reasonable wear and tear, natural depreciation and obsolescence and damage by fire, windstorm or act of God, or the public enemy excepted; or else, the Lessee will account to and pay unto the Lessor for any such broken, damaged or misplaced personal property.” * * *
“Covenants of the Lessees: * * *
“Twelfth: At the expiration of the term, quietly and peaceably to deliver said premises, together with the personal property described in the inventory, as above set forth, unto the Lessors, in good condition, together with the accretions, improvements, alterations, replacements and changes which may have been made therein by the Lessees, natural wear and tear and damage by fire and the elements alone excepted; * * * ”

The lessor contends in his brief that the above-quoted lease provisions should be interpreted as providing that “shortage items should be adjusted on an actual cost replacement value with no depreciation being considered.” We do not agree.

It goes without saying that a lease agreement, like any other contract, must be construed to give effect to the intention of the parties. The lease clearly provides that the lessee would return the personal property at the end of the lease “in as good condition and state of repair as when received by him” but that he would not be required to make good any depreciation thereof due to “reasonable wear and tear, natural depreciation and obsolescence”. If the parties had intended a different measure of damages to apply to shortage items, they should have specifically so provided. They did not; and the only reasonable construction of the lease is that the parties intended that the lessee could be credited with depreciation on shortage items as well as on returned or repaired items. See Miller v. Belknap, Idaho 1954, 266 P.2d 662; Lane v. Spurgeon, 1950, 100 Cal. App.2d 460, 223 P.2d 889; Ghisalberti v. Lagarde, La.App.1933, 146 So. 763.

The method used by the arbitrators and the umpire in reaching a decision as to the award to be made for each item was in accordance with the lease provision as to arbitration, and we find no error here. No other attack legally sufficient to set aside the award having been made, it was error to set it aside.

For the reasons stated, the judgment appealed from is reversed and the cause remanded with directions to enter judgment upon the award in accordance with the arbitration agreement of the parties.

Reversed and remanded.

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


author: THOMAS, Justice.

text:
    Gilbert Francis MEADE, Jr., Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida.
    July 31, 1957.
    Rehearing Denied Sept. 18, 1957.

      E. L. -McMorrough, Hollywood; £or appellant.
    Richard W. Ervin, Atty. Gen., and Jos. P. Manners, Asst. Atty. Gen., for appellee.
   THOMAS, Justice.

This case was considered by the court on another occasion and the judgment of the trial court was reversed. Meade v. State, Fla., 85 So.2d 613. We did not at that time, however, pass upon the merits but only upon the procedure followed in trying the appellant at once upon two indictments. In each of them he was charged with murder in the first degree, in one with having killed one Domonick Albonizio, in the other with having killed his wife, Evelyn Meade.

In the second trial, which we now review, appellant was convicted of the murder, in the first degree, of Evelyn Meade and the jury did not recommend mercy, consequently the court, upon adjudging the appellant guilty of the offense, sentenced him to death by electrocution.

The appellant has presented six points for our consideration and determination. We will resolve first his last point because it constitutes a challenge to the sufficiency of the evidence to support a judgment of guilty of murder in the first degree and a sentence of death. By reading at the outset the evidence, a duty imposed on us under Sec. 924.32, infra, even when the sufficiency of evidence is not expressly questioned, we can better understand the other questions presented in the brief.

From the record it appears that a certain house in Hollywood was occupied by Evelyn Meade, Domonick Albonizio and the 16 year old son of the woman by a former marriage. On the night of the homicide, Albonizio and the woman had retired to their bedroom and the son had gone to sleep on a couch in the living room. The boy was awakened by appellant who had a gun and a flashlight and who proceeded in a subdued voice to call Albonizio “dirty names”. The appellant quietly assured the boy he would not harm him or his mother, although she had done a “terrible thing” by “calling the police on him,” a reference on which we will presently enlarge, but he stated that he intended “to get” Tiny, a nickname for Albonizio, and had travelled 1700 miles for the purpose. The appellant went to the porch, then returned as Albon-izio came out of the bedroom and entered the bathroom. When Albonizio reentered the bedroom, the appellant followed and the boy heard two shots. The appellant immediately brought the woman into the living room and seated her on the couch. There followed a colloquy which would add little to the story of the tragedy except that the appellant asked her for money and entreated her to go away with him. During the conversation the woman slipped to the floor and as she sat there the appellant suddenly fired two bullets into her head killing her instantly. The boy then shoved appellant, and fled.

We should say here that this narrative, which we have considerably condensed, was given by the only survivor, except appellant, of the four persons who were present when the shooting occurred and that it was not interrupted by any objections by the appellant’s attprneys. The significance of the absence of any interruption will appear when we presently discuss two of the other questions posed by the appellant.

We will elaborate on these facts when we reach the statement of the appellant, made to the officers soon after his arrest, subsequently reduced to writing by the stenographer who recorded it in shorthand, and introduced in evidence also without any objection on behalf of the appellant.

In presenting his argument of the sixth, and last, point the appellant insists that he should be granted a new trial or that this court should reduce the judgment to one of manslaughter, as we can do under Sec. 924.34, Florida Statutes 19S3, and F.S. A. He prefaces his contention with the claim that he acted in the heat of passion and that the state failed to prove beyond a reasonable doubt that he formed a premeditated design to kill his wife. He cited the decision in Febre v. State, 158 Fla. 853, 30 So.2d 367, to support his position. Of course, in that case we were dealing with the conviction of a defendant who saw his wife and a nude man emerge from the bedroom the husband had formerly occupied and killed his wife’s paramour. Here we have the case where the wife was killed under like circumstances. But the facts are not so similar that the relief granted the appellant in the cited case should be given this appellant.

Here the appellant tracked down his quarries and, we think, deliberately murdered them at the end of the trail. We have already learned from the record that he told the boy he had travelled 1700 miles' to “get” Albonizio. But, in the light of other facts appearing in the statement, to which we have already alluded, and the occurrences on the fateful night, it would not be logical to conclude that he has formed a premeditated design to kill the man, but killed the woman only through passion engendered suddenly after he got into the house that the two victims occupied.

It is probably true that he entertained affection for the woman and hatred for the man, but he also had a grudge against the wife evidently because she reported him to parole authorities in Connecticut so his conditional freedom would be brought to an end, and she could go away with her lover. The appellant managed to escape from the officers and after hiding one or two nights in the “woods” and spending some time in a New York hotel, started out to locate his wife and Albonizio who had, meanwhile, started southward. His methodical, persistent, pursuit evidenced his determination to locate them. He got a ride to Raleigh, some way or other, then took a bus from there to Ft. Lauderdale where he registered at the Beacon Motel under the name of Mc-Nulty which appeared on a driver’s license he had obtained in a burglary.

According to his own statement he established headquarters at the motel in Ft. Lauderdale, rented a car and set out for Hollywood, a few miles distant, where he thought his wife and Albonizio were living. He consulted the telephone directory to see if a ‘phone had been listed in the name of Albonizio or, possibly, Meade, and he questioned a grocer in the neighborhood about them. He had brought a pistol with him from Connecticut, and after he located the house occupied by the couple and the boy, he returned to Ft. Lauderdale and increased his firepower by purchasing a shotgun and ammunition for it. He also bought a hacksaw blade and a pinch bar, or “jim-mie bar.” He sawed off the barrel of the shotgun obviously so he could carry it more easily.

In the evening before the homicide, the appellant returned to Hollywood armed with the pistol and shotgun and equipped with the gun barrel and pinch bar. Upon arriving at the residence, he circled the block in which it was located to familiarize himself with the place and to determine who was in the house. Meanwhile he had called the house on the telephone and there had been no answer. After taking a position nearby for a while he decided to enter. He removed his shoes so he could go in stealthily. Upon finding the front door locked, he pried a window open with the pinch bar. Then followed the events we have described. He killed Albonizio in the bedroom by bludgeoning him with the shotgun and he dispatched his wife with the pistol in the living room.

Even if we assume that the appellant, when he started his chase, had the design only to kill Albonizio and intended to retrieve his wife without harming her, further examination of the statement he made demonstrates that he did in the end form a premeditated design to kill her too. In his statement it appears that he was asked the question: “[d]o you admit having murdered these two people?” and that he replied “I do.”

Nevertheless to clarify the distinction he undertakes to make between his designs on-Albonizio and on his wife we will now give in more detail the parts of appellant’s statement about the way he disposed of her. He said he tried to persuade her to go with him. She indicated that she would. Then she asked the appellant to kill her. They struggled for the possession of the pistol. He finally told her he would kill her if he had to but he “didn’t want to,” and “begged her to come with [him].” The altercation continued, the parties fought, the woman screamed. At the conclusion of a relatively short narrative he said: “I shot her. I don’t know if I shot her or if she squeezed the trigger with my finger or what, but I shot her I remember, and I remember shooting her the second time.” (Italics supplied.)

If the first fatal shot resulted unintentionally from the struggle for the pistol, the second one cannot be explained as an accident and this act coupled with what preceded it abundantly proved that the appellant decided to kill his wife and carried out his premeditated design.

All this taken from the statement made by the appellant which, to repeat, was introduced without objection, established meticulous preparation of a plan and coldblooded execution of it; and it belies the theory that appellant acted precipitately because of sudden passion. In other words, it proved that he formed a premeditated design to kill before he killed.

By another question the appellant asserts that he was not fairly tried because a medical examiner was permitted to state' that he had “examined another body that lay at that same address” and, upon further inquiry that it “was the body of a man.” This, argues the appellant, was prejudicial and its injurious effect was augmented by a charge defining murder in which the judge used the pronoun “him” instead of “her,” he being on trial for the murder of his wife and not for the murder of Albonizio.

Aside from the fact that the two homicides were so closely linked as to amount to one transaction, and the detailed account of both given by the appellant in his statement, this writer has found in the record at least seven references to the body of Al-bonizio that were made without any objection on behalf of appellant.

So this point does not impress us.

The only other point we consider worthy of discussion is the one by which the appellant claims reversible error to have been committed because a witness for the state assailed appellant’s character when no evidence of good character had been introduced and the defendant had not testified. The witness, a police officer, in reciting a conversation between another officer and the appellant said the other officer felt that appellant was “aware of his civil rights as he had been in trouble before.” Appellant’s counsel objected to the answer, though he did not move to strike it, the court sustained the objection and charged the jury to ignore it. Then counsel asked for a mistrial which the court refused. We must reject the contention that this answer was of such character and the charge so ineffective that reversible error resulted. It appears in the record that the appellant in his own statement recounted his escape from the police and stated he had been “in trouble in Connecticut.” Furthermore, the boy had quoted the appellant as saying “it was a terrible thing what my mother [Evelyn Meade] had done, I mean calling the police on him [appellant],” and an officer testified that appellant told the witness about being sent to the penitentiary. There was no objection to this testimony. In such situation there is no justification for reversing the court on the tenuous ground proposed.

We have examined and considered the record in this case in the light of briefs filed and have also, pursuant to sub-paragraph (2) of Section 924.32, Florida Statutes 1953, F.S.A., reviewed the evidence to determine if the interests of justice require a new trial, with the result that we find no reversible error is made to appear and the evidence does not reveal that the ends of justice require a new trial to be awarded.

The judgment and sentence are affirmed.

TERRELL, C. J., and HOBSON, ROBERTS, .DREW, THORNAL and O’CON-NELL, JJ., concur.


text:
    James PILAFIAN and Shocky Pilafian, his wife, Appellants, v. A. Packard LOBECK and Ann Nutt Lobeck, his wife, Appellees.
    Supreme Court of Florida, Special Division A.
    June 19, 1957.
    Rehearing Denied Sept. 18, 1957.
    Phillip Goldman and Melvin Schaffer, Miami, for appellants.
    Ralph O. Cullen, Miami, for appellees.
   PER CURIAM.

The decree is affirmed. Under the rule followed in Thomas v. Thompson, 114 Fla. 833, 155 So. 321, the proof sufficiently meets the requirements of our decision in J. C. Vereen & Sons v. Houser, 123 Fla. 641, 167 So. 45.

Affirmed.

TERRELL, C. J., HOBSON ' and THORNAL, JJ., and KNOTT, Associate Justice, concur.