author: O’CONNELL, Justice.

text:
    Frank EISINGER, Petitioner, v. Mary EISINGER, Respondent.
    Supreme Court of Florida, Special Division A.
    May 29, 1957.
    Howard N. Pelzner and Dan G. Wheeler, Jr., Miami, for petitioner.
    Daniel Sepler, Hialeah, for respondent.
   O’CONNELL, Justice.

The respondent, Mary Eisinger, hereinafter referred to as the wife, obtained a divorce from the petitioner, Frank Eisinger, hereinafter referred to as the husband. The final decree dated April 23, 1956 incorporated a stipulation executed by the parties.

The stipulation provided among other things that:

(1) the wife would have the custody of the two minor children of the parties and that the husband would pay to the wife for the support of said children the sum of $40.00 bi-weekly;

(2) the wife would have the right to occupy one unit of a duplex owned by the parties and to rent and retain the income from the other unit, the wife to make the payments due under a mortgage on said property, which payments include taxes and insurance. The parties had owned the duplex in an estate by the entireties and now own it as tenants in common;

(3) neither party would maintain an action in partition so long as the children of the parties should be minors, and that neither party could be forced to sell his or her interest for a sum less than $21,000, exclusive of commissions.

On October 24, 1956 the husband petitioned the court below for modification of the final decree alleging that:

(1) the use by the wife of one unit of the duplex and receipt by her of rent from the other unit, in effect constituted payment of alimony by the husband to the wife.

(2) the wife earns approximately $4,200 per year.

(3) the husband, who was formerly employed by the United States Post Office, is now unemployed by reason of physical disability and is receiving Federal Unemployment Compensation in an amount 25% less than his former salary of $4,100 per year.

(4) one of the minor children of the parties is employed earning $24 per week.

The husband prayed for a reduction in the amount of the payments required to be paid to the wife for the support of the minor children. The chancellor denied the petition.

The husband, in his petition for writ of certiorari, contends that the chancellor erred in:

(1) failing to reduce the amount of support money required to be paid by the husband for the minor children, and

(2) failing to modify the final decree and the provisions of the stipulation as it relates to the wife having the use and rents of the duplex, she having been shown to have remarried.

Considering the last point first, the parties, by their stipulation, made a binding contract. The chancellor approved it and made it a part of the final decree. While the husband’s irritation at seeing the wife’s new mate occupying, rent free, one unit of the duplex in which the husband owns a half interest is understandable, it is not reason to require the chancellor, or this Court, to rewrite the stipulation.

It was reasonable to expect that the wife would remarry, yet there is nothing in the stipulation or final decree which provides that her use of or right to the rent from the duplex would cease on her remarriage. The right of .the husband to utilize his interest in the property is restricted so long as the children of the parties are minors. It appears therefore that the overriding consideration was to provide a home for the children during their minority.

Assuming, but not deciding, that the chancellor has the power to modify the pertinent provisions of the final decree and stipulation, it is a matter addressed to his judicial discretion and it does not appear to us that he has abused it.

The other question, that of the reduction of support payments, requires us to agree with the husband that he has shown such change of circumstances as to merit a reduction in his payments of support money.

The evidence shows that since the entry of the final decree the husband’s income has dropped from $69.50 per week to $58.50 per week. From this he must pay $20 per week for the support of the two children, leaving him $38.50 per week on which to live. The husband alleges that he is disabled. The wife does not deny this.

On the other hand one of the minor children earns an average of $24 per week from part-time work. The child apparently was not earning any sum at the time of entry of the final decree.

It is reasonable to assume that the support payments are for the benefit of the two children in equal shares. If this be true then the child who works has available for her support the sum of $34 per week, including her earnings, and has rent free living quarters. It seems to us that this child is faring better financially than is her father.

We do not hold here that the father is or is not entitled to the services and earnings of a minor child, who in a divorce or separation, has been placed in the custody of the mother, with the father being ordered to support the child. Yet we do hold that where the ability of the father is restricted, as it is in this case, the earnings of the child should be considered in determining the need by the child and the amount of support money which the father should be required to pay for the benefit of the child.

While it may well be true that the sums paid by the husband plus the earnings of the child are not sufficient for the support of the child in a completely adequate manner, it is equally as true that the sums left to the husband after making- the support payments are even less adequate for his support.

The husband has shown sufficient change of circumstances to warrant a modification of the final decree reducing the amount of the support payments for the benefit of the children as required by the decree.

Accordingly the petition for certiorari is granted and the order reviewed is quashed with directions that the chancellor conduct such further proceedings as are necessary to determine the amount by which the support payments should be reduced.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CITY OF MIAMI BEACH, a municipal corporation, Appellant, v. George HECHTER, Appellee.
    Supreme Court of Florida, Division A.
    May 29, 1957.
    J. Ben Watkins, of Truett & Watkins, Tallahassee, and Roland W. Granat, Miami Beach, for appellant.
    Lucius J. Cushman, Miami, for appellee.
   PER CURIAM.

Reversed under the authority of Pensacola & A. R. Co. v. Anderson, 26 Fla. 425, 8 So. 127; Bucki v. Seitz, 39 Fla. 55, 21 So. 576; and Sec. 54.23, Fla. Stat. 1955 F.S.A.; and the cause remanded with directions to enter judgment on the verdict in accordance with the provisions of Sec. 59.04, Fla. Stat. 1955, F.S.A.

It is so ordered.

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


author: ROBERTS, Justice.

text:
    Cass A. LIENTZ, Appellant, v. Ruby O. HOLDER, a widow, Appellee.
    Supreme Court of Florida, Special Division A.
    May 29, 1957.
    J. Thomas Gurney, Orlando, for appellant.
    Lazonby, Dell, Graham & Mills, Gaines-ville, for appellee.
   ROBERTS, Justice.

This is an appeal by defendant from a jury verdict and judgment in favor of plaintiff entered in an action filed by plaintiff to recover damages for the death of her deceased husband, alleged to be due to the 'negligence of the defendant’s employee.

The suit grew out of a highway accident on a straight level stretch of road at 5:30 a. m. when plaintiff’s decedent, driving a 19S1 Studebaker, ran into the rear of a large tractor-trailer owned by defendant while it was parked on the highway with all wheels in the northbound lane of traffic, no lights or signal flares burning, and only the red reflectors on the rear of the tractor-trailer to warn of its presence on the highway. The plaintiff’s decedent was proceeding in a northerly direction at an unknown rate of speed. It was shown, however, that the Studebaker left skid marks three and a half feet in length and came to rest up under the rear of the trailer as far as the driver’s seat of the Studebaker, and that the left tandem wheels of the trailer were pushed forward by the force of the impact.

The cause was submitted to the jury on the issues of negligence of the defendant and contributory negligence of the plaintiff’s decedent. The jury found for the plaintiff, assessing her damages at $45,000. The defendant’s post-trial motions were denied, and this appeal followed.

The defendant’s principal contention on this appeal is that the evidence showed contributory negligence, as a matter of law, on the part of the plaintiff’s decedent because of his alleged violation of the “range of vision” rule followed by this court in G. Ferlita & Sons, Inc., v. Beck, 143 Fla. 509, 197 So. 340; Petroleum Carrier Corp. v. Robbins, Fla., 52 So.2d 666; and Macasphalt Corp. v. Murphy, Fla., 67 So.2d 438. This rule, as stated in G. Ferlita & Sons v. Beck, supra, is that “it is the duty of one driving upon the highway to drive at such rate of speed as to be able to stop or control his car within the range of his vision, whether it be by night-time or day-light.” [143 Fla. 509, 197 So. 341.]

Obviously, this rule cannot be strictly and literally applied in every highway collision case to bar recovery by a plaintiff, regardless of the negligence of the defendant and the circumstances under which the accident occurred. The correct application of the rule is as stated by Mr. Justice Thornal in a specially concurring opinion in Townsend Sash Door & Lumber Co. v. Silas, Fla.1955, 82 So.2d 158, 160, as follows :

“Whether the driver of an automobile has maintained adequate control of his vehicle within the range of his vision as required by the peculiar circumstances of each particular case is a question of fact to be weighed and considered by the jury, unless there is no conflict on the subject as we determined in the three cases cited. The so-called ‘range of vision rule’ is actually no different from any other rule of conduct imposed by law upon the operators of motor vehicles. If the evidence is undisputed, the question of negligence or contributory negligence becomes one of law. If the evidence is in dispute and presents to the minds of reasonable men potentially different conclusions and inferences in the light of the circumstances of a particular case, then the problem of resolving the conflicts is the responsibility of the jury.”

In the Townsend case, as in the instant case, the plaintiff’s decedent was driving at a rate of speed not shown by the record, and the defendant’s tractor-trailer was parked in the lane of traffic without flares or other warning devices, although there was testimony that the running lights and left blinker signal were operating on the truck at the time. In declining to reverse a verdict and judgment for the plaintiff, the court said that “From the physical facts as testified to in the trial the deceased was placed in a critical and perilous position and the jury, in a logical determination of all the testimony, could have reasonably concluded that the failure of defendant’s driver to respect even the simple precautions to protect his fellow travelers, was the sole proximate cause resulting in death to the deceased.”

This language is equally applicable to the facts of the instant case. Accordingly, the judgment appealed from is affirmed under the authority of Townsend Sash Door & Lumber Co. v. Silas, supra, 82 So.2d 158.

Affirmed.

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


author: THORNAL, Justice.

text:
    William F. CHATLOS and Alice Chatlos, his wife, Appellants, v. Ronald McPHERSON, Appellee.
    No. 28472.
    Supreme Court of Florida, Division A.
    May 29, 1957.

      Anderson & Nadeau, Miami, for appellants.
    Donald G. Miller and Paul J. Stichler, No. Miami Beach, for appellee.
   THORNAL, Justice.

Appellants, Chatlos, seek reversal of a final decree quieting title to a parcel of land in favor of the appellee, McPherson.

The determining point is the effect of Section 695.01, Florida Statutes, F.S.A. (the recording statute), upon the ultimate title acquired by the contesting parties.

Appellee, McPherson, filed a complaint to quiet the title to a number of lots. Appellants, Chatlos, were among the defendants. Chatlos filed a cross-complaint asking that his title to Lot 8, Block 51, be quieted. The deraignment of the title of the respective parties is important. On December 16, 1925, Florida Cities Finance Company conveyed said Lot 8 to one Marley. The deed was not recorded until December 15, 1927. By deed recorded April 16, 1945, Marley conveyed to McPherson. Chatlos deraigns his title through a sheriff’s deed. On the basis of prior judgments recovered against Florida Cities Finance Company execution was issued on June 16, 1926. A sheriff’s deed, based on this execution and pursuant to notice of sale, was issued to a predecessor in the Chatlos title by deed recorded December 18, 1944. Chatlos acquired the title through subsequent conveyances. The significant dates are those relating to the date of the recording of the deed to Marley, which was December 15, 1927, as against the date of the execution based on prior judgments, which was June 16, 1926. A judgment had been recorded on May 24, 1926.

Another fact actually constitutes the basis of the McPherson claim to a superior title. On October 24, 1925, a prior blanket mortgage encumbering the entire subdivision was partially released by the mortgage holder to Florida Cities Finance Company. This partial release made no reference whatever to the claim of an interest of any other person. Nonetheless, McPherson contends that the partial release to Florida Cities Finance Company, the judgment debtor, should have put the judgment creditor on implied actual notice that the finance company had contracted to sell the lot and that if the judgment creditor had pursued an investigation and made inquiry of the finance company, he would have obtained this information.

The Chancellor agreed with McPherson and quieted the title to the lot in dispute in his name. Reversal of this decree is here sought.

The appellants contend that when the prior judgment was recovered and execution thereon issued on June 16, 1926, there was no recorded notice whatever of the claim of anyone other than the judgment debtor, Florida Cities Finance Company. Therefore, it is contended by appellants that the recording of the judgment and the issuance of execution before the subsequent recording of the Marley deed estops Marley and those claiming under him from claiming a superior title to holders under the sheriff’s deed.

McPherson, the appellee, contends that our recording statute binds a party to take notice of the matters shown by the record and such other facts as would be learned upon making inquiries suggested by the record. He relies on the proposition that the record here showing the partial release of the mortgage was sufficient to put the judgment creditor on implied actual notice of adverse claims that would have been revealed had inquiry been pursued. This is so, he contends, even though the partial release made no reference to any interest other than that of the mortgagor and mortgagee.

In entering the final decree in favor of appellee, McPherson, the Chancellor relied upon our opinion in Hull v. Maryland Casualty Company, Fla.1954, 79 So.2d 517. Although the rule of law announced in that opinion is the one contended for by the appellee, an examination of the factual situation to which the rule was applied would seem to establish a clear line of distinction between that case and the one before us.

In the Hull decision although the ultimate deed relied upon by Hull, who was successful in defending against the judgment, was not recorded until after the judgment itself, there was of record prior to the judgment an agreement to sell executed by the judgment debtor in favor of Hull’s predecessor. The record likewise revealed a pledge of this agreement to sell in the form of a mortgage executed by the judgment debtor and recorded prior to the judgment. The mortgage specifically described the recorded agreement to sell. In the Hull case also the partial release of the property from the prior blanket mortgage was recorded and the agreement to sell executed by the judgment debtor was thereupon re-assigned to it. All of these documents were recorded prior to the recording of the judgment. In the Hull decision we held that the numerous documents of record prior to the judgment, all of which reflected and specifically pointed to the claims of prior grantees from the judgment debtor, were adequate to require the judgment creditor to pursue an investigation independent of the record itself. Under such circumstances we held that the judgment creditor was not justified in relying entirely on the constructive notice supplied by the record. On the contrary, the record was literally permeated with signals that someone other than the judgment debtor had an interest in the property. These signals we held imposed a duty to make an inquiry which resulted in implied actual notice of the claims of third parties.

In the case before us no such situation obtained. The only document relied upon by the appellee to establish notice of his alleged superior title was the partial release of the lot from a prior blanket mortgage. Florida Cities Finance Company, the judgment debtor, had executed the mortgage and the partial release merely relinquished this specific lot from the lien of the mortgage. There was nothing whatever in the release or in any other documents of record suggesting the interest of a third party. So far as the record in this case reveals, there was nothing in its content that would impel any reasonable person to make further inquiry.

Appellee, by his brief, asserts that if inquiry had been made of Florida Cities Finance Company, the judgment debtor, the interest of the true owner of the lot would have been made known. The point in reply is that there was no suggestion on the record in any form or nature that any further inquiry was necessary. Appellee tenders the nebulous viewpoint that “it is common knowledge” that when a land developer in the business of selling lots obtains a partial release from a blanket mortgage, he does so for the purpose of selling the particular lot so released. He then reasons that the partial release supplemented by so-called “common knowledge” should have impelled the judgment creditor to pursue further inquiry.

We cannot indulge in such an extensive assumption as to the significance of so-called “common knowledge.” Certainly, it does not necessarily follow that the partial release of a mortgage is necessarily preliminary to an immediate or impending sale of the property released.

The pertinent portion of Section 695.01, Florida Statutes, F.S.A. is as follows :

“Conveyances to be recorded
“No conveyance, transfer or mortgage of real property, or of any interest therein, nor any lease for a term of one year or longer, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to law; * * * ”

This statute has been construed to mean that one who records evidence of his title subsequent to grantees, mortgagees or creditors who have relied upon a prior record title is estopped to assert or enforce his claim as against those who have relied upon the prior record. Unless the record contains such information as would lead a reasonable man to make inquiry outside of the record sufficient to lead to information that would show the interest of the subsequent record claimant, it appears to us that in order to charge a person with notice of facts discoverable by reasonable inquiry, the circumstances should be such, or the record indications should be of a nature, that inquiry outside of the record becomes a duty and the failure to make such inquiry would constitute a negligent omission. In order to charge a person with notice of a fact which he might have learned by inquiry, the circumstances known to him must be such as should reasonably suggest inquiry and lead him to inquiry. Sapp v. Warner, 105 Fla. 245, 141 So. 124, 143 So. 648, 144 So. 481; Rinehart v. Phelps, 150 Fla. 382, 7 So.2d 783; Farish v. Smoot, Fla.1952, 58 So.2d 534.

We find no such circumstances or factual data appearing in this chain of title as would put upon appellants’ predecessor the duty of pursuing an investigation extrinsic of the public records. The judgment having been recorded and execution issued long prior to the date of the recording of the deed to McPherson’s predecessor and there being nothing of record to suggest the interest of any person other than the judgment debtor, upon whose title McPherson relies, we are compelled to hold that under our recording statute above cited, McPherson is now estopped to assert his claimed title against the claimant under the sheriff’s deed founded on prior judgment and execution. We note that the record fails to reveal any evidence that either party is in possession of the lot involved.

The decree is reversed and the cause remanded for such further proceedings as may be consistent herewith.

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


author: DREW, Justice.

text:
    Jay I. KISLAK and Ira A. Hotchkiss, and Mona Hotchkiss, his wife, Petitioners, v. Koren KREEDIAN, Respondent.
    Supreme Court of Florida, Special Division B.
    May 29, 1957.

      Joseph A. Varón, Hollywood, and Turn-bull & Senterfitt, Orlando, for petitioners.
    Nixon Butt, Orlando, and Adams & Judge, Daytona Beach, for respondent.
   DREW, Justice.

As reluctant as we are to unduly extend the length of opinions, a proper evaluation of this appeal and discussion of the principles involved require the inclusion herein of the germane portions of the complaint filed in the trial court and around which this entire litigation revolves.

“3. Plaintiff, Koren Kreedian, and the Defendants, Jay I. Kislak, and Ira A. Hotchkiss and Mona Hotchkiss, his wife, have from time to time in the year immediately last past, individually and as joint venturers (in which two or more of said parties participated in equal shares) invested, speculated, purchased, sold and dealt in real estate; the Plaintiff, Koren Kreedian, and Defendant, Jay I. Kislak, having during the six months immediately last past, as venturers in equal shares, invested, purchased and dealt in a 700 lot tract of land in Palm Beach County, Florida.

“4. That Defendant, Jay I. Kislak, based upon the unusual success and the profits realized by said Defendant, Jay I. Kislak, and Plaintiff, Koren Kreedian, in their said speculative activities in connection with the 700 lot tract of land in Palm Beach County, requested Plaintiff, Koren Kreedian, to take a desk in the office of said Defendant, Jay I. Kislak, and to keep lookout for other lots and tracts of land in which they, said Plaintiff, Koren Kreedian, and said Defendant, Jay I. Kislak, might invest to carry on their speculative activities as joint venturers, each participating therein in equal shares.

“5. Plaintiff, Koren Kreedian, pursuant to the request of Defendant, Jay I. Kislak, did, on or about the 20th day of March, A.D. 1956, take a desk in the office of Defendant, Jay I. Kislak, and did subsequently, on or about the 28th day of March, 1956 learn of the availability for purchase of approximately 20,500 acre tract of land, known as the El Pico Ranch, in Brevard County, Florida, and owned by Heller Brothers of Winter Garden, Florida, and did immediately inform and advise Defendant, Jay I. Kislak, thereof, and at the instance of Defendant, Jay I. Kislak, and in his own behalf, did, on or about the 4th day of April, 1956, travel from Miami, Florida, to Brevard County, Florida, for the purpose of viewing said property, making an investigation as to the advisability of the purchase of same and instituting preliminary negotiations therefor. Upon the return of Plaintiff, Koren Kreedian, to Miami, Florida, after having viewed the said property and made an investigation of the advisability of the purchase thereof and instituted preliminary negotiations therefor, he did report favorably to Defendant, Jay I. Kislak, who immediately, with the consent of Plaintiff, Koren Kreedian, contacted Defendant, Ira A. Hotchkiss, and interested him in joining with Plaintiff, Koren Kreedian, and Defendant, Jay I. Kislak, in the investment, purchase and speculation in said lands. .That on Friday, the 6th day of April, A.D. 1956, Plaintiff, Koren Kreedian, and Defendant, Ira A. Hotchkiss, flew from Miami, Dade County, Florida, to Cocoa, Brevard County, Florida, in a plane chartered by Defendant, Jay I. Kislak, for the purpose of aerial and other inspection of said lands and the Defendant, Ira A. Hotchkiss, following such inspection, being then satisfied of the advisability of the purchase of said property, the Plaintiff, Koren Kreedian, at the instance of the Defendant, Ira A. Hotchkiss, and with the consent of Defendant, Jay I. Kislak, and in his own behalf, then communicated and commenced negotiations for the purchase of said property with James Heller in Winter ■Garden, Florida, one of the owners and representative of the owners thereof, and .as a result of such communication and negotiations a verbal agreement was entered into by and between Plaintiff, Koren Kree-dian, Defendant, Ira A. Hotchkiss on behalf of Kreedian, Kislak and Hotchkiss as joint venturers in the purchase of said property, and James Heller as part owner and representative of the owners thereof, for a price of $75.00 per acre, plus a real estate commission to be paid by the purchasers, which said oral agreement was subsequently, on the 10th day of April, 1956, except for the omission of Plaintiff’s name therefrom, reduced to writing and duly executed by and on behalf of all persons and parties in interest, save and except the Plaintiff, Koren Kreedian, who did not appear as a party to the purchase and sale agreement because of the advice and representation of the Defendant, Jay I. Kislak, that it was not necessary that said Plaintiff’s name appear on the contract and agreement for purchase, as said Plaintiff’s interest was recognized and protected, which advice and representation of said Defendant, Jay I. Kislak, Plaintiff, Koren Kreedian, because of past associations and his confidence therein and because of the mutual trust and confidence reposed by Plaintiff in the Defendants, Jay I. Kislak and Ira A. Hotchkiss, as joint venturers in” said transaction, Plaintiff did believe and relied thereon. A copy of said agreement is attached hereto and by reference made a part hereof.

“6. Notwithstanding, following the execution of said contract and on or about the 3rd day of August, A.D. 1956, the Defendant, Jay I. Kislak and Ira A. Hotchkiss, advised your Plaintiff, Koren Kreedian, they could and would not now recognize said Plaintiff’s interest in and to the agreement and contract of purchase of said property or in and to the property the subject thereof and could not and would not permit and allow your said Plaintiff to share and participate in the benefits of said contract and agreement or the profits to be realized in the venture, but on the contrary the Defendant, Jay I. Kislak, on a take it or leave it basis advised and informed said Plaintiff that he and the Defendant, Ira A. Hotchkiss, would pay to said Plaintiff the sum oí Ten Thousand ($10,000.00) Dollars cash or the sum of Fifteen Thousand ($15.-000.00) Dollars at the rate of Five Thousand ($5,000.00) Dollars per year, for his interest in said contract and the interest in the subject thereof, which said proffers the said Plaintiff did then and there decline and refuse.

“7. Plaintiff, Koren Kreedian, has at all times stood ready, able and willing to pay his proportionate share in said venture and is now ready, able and willing to do so, nevertheless the Defendants, Jay I. Kislak and Ira A. Hotchkiss and Mona Hotch-kiss, his wife, the premises notwithstanding, and notwithstanding the fact that said Plaintiff, as one of the joint venturers, expended great time and effort and was directly instrumental in and the moving cause in finding of the said property and the negotiations for the purchase thereof, now seek to wrongfully exclude said Plaintiff for their personal gain and enrichment; all to the great injury and damage to said Plaintiff.

“Wherefore, Plaintiff, Koren Kreedian, prays:

“(a) That the Court take jurisdiction of this cause and the parties hereto.

“(b) That Defendants, Jay I. Kislak and Ira A. Hotchkiss and Mona Hotchkiss, his wife, be declared and decreed to hold said aforesaid contract and agreement for the purchase of the property therein described, and the real property if same be before conveyed, in trust for the use and benefit of Plaintiff, Koren Kreedian, and Defendants, Jay I. Kislak and Ira A. Hotchkiss, as joint venturers and tenants in common.

“(c) That Defendants and each of them be jointly and severally enjoined and restrained, both by temporary and permanent order and decree of this Court, from in any wise whatsoever disposing of, secreting forfeiting or otherwise alienating or committing any action which would directly or indirectly inure to the prejudice, damage or injury of and to the Plaintiff, Koren Kreedian.

“(d) That a Receiver or other officer of this Court be appointed for the purpose of taking possession, control, management, operation and custody of the aforesaid contract and agreement and the real property the subject thereof, and the parties, joint venturers, Plaintiff, Koren Kreedian, and Defendants, Jay I. Kislak and Ira A. Hotch-kiss, be ordered, directed and decreed to pay into the hands of said Receiver and/or the Registry of this Court, such monies as required for compliance with the terms and provisions of said contract and agreement for the purchase of the aforesaid property, and upon the closing of said transaction the title to said property be taken in the name of said Receiver or other officer of this Court and said property partitioned in accordance with the interest of the several joint venturers; all pursuant to the authority of this Court and the directions thereof.

“(e) In the alternative, that the Defendants, Jay I. Kislak, and Ira A. Hotchkiss, and each of them, be by appropriate order of this Court ordered, directed and decreed to forthwith assign, transfer and set over to the Plaintiff, Koren Kreedian, in accordance with the terms and provisions of para-, graph 9 of said contract, an interest in and to said contract in accordance with his rightful share as a joint venturer therein.

“(f) That Plaintiff shall have such further and additional relief as may seem meet and proper in equity and good conscience and decree and judgment for his damages suffered and sustained in the premises.”

The defendants filed individual motions to dismiss which were incorporated in their answer. The lower court denied the various motions to dismiss the complaint and this appeal followed.

The principal question raised is the sufficiency vel non of the complaint claiming an interest as a joint adventurer in the purchase of real estate without alleging by ultimate facts the essential elements necessary to the existence of the relationship of joint adventurers. This is but another way of charging that the complaint fails to state a cause of action against the defendant.

There were several grounds in the various motions to dismiss, a determination of only one of which is essential to the disposition of the cause here. We shall therefore confine this opinion to the basic issue of whether the complaint is sufficient to state a cause of action against the defendants; or, to state it another way, the question here is whether, under the Florida Rules of Civil Procedure, Rule 1.8, 30 F.S.A., and the applicable authorities, “it informs the defendant of the nature of the cause against him.”

While the Rules of Civil Procedure provide that the complaint shall be sufficient if it informs the defendant of the nature of the cause against him, the complaint must sufficiently allege the ultimate facts which, if established by competent evidence, would support a decree granting the relief sought under law. In other words, the complaint must allege a cause of action recognized under law against the defendants; otherwise it does not, in contemplation of the rule, “inform the defendant of the nature of the cause against him.” To put it another way, the “nature of the cause” has reference to a cause of action cognizable under the law.

The legal concepts embraced within the words “joint adventurers” are of fairly modem origin and are purely the creature of the American courts. The relationship of “joint adventurers” or “co-adventurers” were not recognized in the early common law unless the elements of partnership were disclosed and proved. The legal concepts involved in joint adventurers rest solely upon the foundation of the law of partnerships. Such has been referred to by some courts and text writers as an association of persons or legal entities to carry out a single business enterprise for profit. It is a partnership of limited scope ordinarily terminating when the objects of its creation have been accomplished. Various and sundry terms have been used as descriptive of the legal relationship resulting from an agreement between two or more persons to engage in an enterprise of limited scope and duration. Such words as “joint adventurers”, “syndicate”, “joint enterprise” and “co-adventurer” are words which have been used to describe the legal relationship resulting from such an agreement. By whatever name called, it is the result of the agreement which creates the legal relationship. A mere allegation that a joint adventure was created is purely a legal conclusion. 48 C.J.S. Joint Adventures §§ 1-16, pp. 801-876; 30 Am.Jur. Joint Adventures pp. 675-712; Hambleton v. Rhind, 84 Md. 456, 36 A. 597, 40 L.R.A. 216.

It has been universally held that while “joint adventure” and partnership are separate legal relationships, both relationships are governed by the same rules of law. The laws governing partnership are applicable to joint adventures. We quote with approval the following from 30 Am.Jur. Joint Adventures, Sec. 5, p. 679:

“It is sometimes difficult, and often unnecessary, to distinguish in particular cases between joint adventures and partnerships, since the relations of the parties to a joint adventure and the nature of the association are so similar and closely akin to a partnership that it is commonly held that their rights, duties, and liabilities are to be tested by rules which are closely analogous to, and generally substantially the same as, those which govern partnerships. Some courts have gone so far as to say that a joint adventure is subject to exactly the same rules as a technical partnership, and must be enforced by the same principles. In general, however, it is now understood that the two relationships are not identical and that decisions defining and describing partnerships are not necessarily controlling upon the question of whether parties to a particular contract are joint adventurers. The outstanding difference between a joint adventure and a partnership is that the former relates to a single transaction, although it may comprehend a business to be continued over several years, while the latter relates to a general and continuing business of a particular kind, although there may be a partnership for a single transaction. Because of the limited scope of the relationship between joint adventurers, it is generally more informal than the relationship between partners, and some of the incidents of partnership do not, or at least may not, attach thereto.”

This principle has long been recognized in this State. In Proctor v. Hearne, 1930, 100 Fla. 1180, 1187, 131 So. 173, 176, this Court said:

“The relation of joint adventurers is quite similar to that of partnership, and is governed by the principles which constitute and control the law of partnership.”

It is an elemental principle that the relationship of joint adventurers is created when two or more persons combine their property or time or a combination thereof in conducting some particular line of trade or for some particular business deal. There must be an agreement to share jointly on some agreed basis in not only profits but also losses. The relationship must arise out of a contract, express or implied. Such a contract is an indispensable prerequisite:

“As between the parties, a contract is essential to create the relation of joint adventurers. The contract need not, however, be expressed or be embodied in a formal agreement, or particularly specify or define the rights and duties of the parties. It may be inferred from the conduct of the parties or from facts and circumstances which make it appear that a joint enterprise was in fact entered into. The consideration for a contract of joint adventure may be a promise, express or implied, to contribute capital or labor to the enterprise.” 30 Am.Jur. Joint Adventures Sec. 9, p. 681.

The Courts, including this Court, have held that while such contracts may be expressed or implied, the use of the word “implied” does not relieve one who alleges the existence of such a relationship of the burden of both alleging and proving that an agreement or contract supports the relationship as well as every element necessary to be embraced within the concept of a contract. Moreover, where, as in this case, the events and transactions which form the basis of the alleged relationship are not in writing, the burden of establishing the existence of such contract, including all of its essential elements, is indeed, as it should be, a heavy and difficult one. Business relationships are not customarily entered into in a casual manner. This is particularly true as to those involving the magnitude of that under discussion. The very fact that the agreement was not reduced to writing is evidence, however slight, that no such agreement actually existed. This is especially true in those cases where, as here, the alleged relationship is either in its executory stages or has not actually commenced to function to the extent that the actions of the parties themselves may tend to establish the validity of the assertion that such agreement existed.

The concept of a contract is one well recognized in law. It is a legal relationship. It contemplates an agreement enforceable at law between two or more parties for the doing or not doing of some specific thing. A contract must create legal obligations. 1 Bouv.Law Diet., Rawle’s Third Revision, p. 658; 17 C.J.S. Contracts § 1, p. 310.

In addition to the essentials of ;■ i ordinary contract, in contracts crean .g joint ventures there must be (1) a community of interest in the performance of the common purpose, (2) joint control or right of control, (3) a joint proprietary interest in the subject matter, (4) a right to share in the profits and (5) a duty to share in any losses which may be sustained. 48 C.J.S. Joint Adventures § 2, p. 809 and the authorities there referred to.

The above principles have been recognized by us in the case of Tidewater Const. Co. v. Monroe County, 1933, 107 Fla. 648, 653, 146 So. 209, 211, where among other things this Court said:

“the question of whether the parties to a particular contract have created between themselves the relationship of joint adventurers is dependent upon their intentions, which is to be determined in accordance with the ordinary rules covering the interpretation of contracts; that joint adventurers are entitled to share in the profits, and must also share the losses, if any; that a joint adventure is very similar to a partnership, the chief distinction being that a joint adventure is usually limited to a single transaction; that although there may not be any express agreement that the parties shall share in the losses, if any, this must have been implied from the agreement made, and the circumstances surrounding its execution, as having been within the contemplation and intention of the parties. Of course, where the agreement is in writing and free from ambiguity or doubt, its legal effect must be determined as a matter of law, and the intention of the parties gathered therefrom. The agreement here in question contained an express provision for sharing the profits on this oiling work, but to our minds there is nothing in the agreement, nor in the evidence adduced on the trial, to indicate any intention that the paving company should share in any losses that might occur.”

See also Green v. Putnam, Fla.1957, 93 So.2d 378 wherein several facets of this question were recently discussed.

Inherent in contracts of this nature is the right and the authority of any one of the co-adventurers to bind the others with reference to the subject matter of the co-adventure. On this question we said in Boyd v. Hunter, 1932, 104 Fla. 561, 565, 140 So. 666, 667:

“Several essential elements are lacking to constitute this transaction a joint venture between the parties. The complainant, so far as the record shows, had no authority to sell or to offer the land for sale. She had no authority to bind the defendant in any manner in connection with the transaction and the defendant had no authority to bind her. She acquired no interest, either in trust or otherwise, in the land.”

In the case of Proctor v. Hearne, supra,

“Each one of several joint adventurers has power to bind the others in matters which are strictly within the scope of the joint enterprise.”

In that case we applied this principle in holding that one of the parties to a joint adventure was personally liable on a mortgage executed by his co-adventurer on the land which constituted the subject matter of the enterprise.

A careful analysis of the complaint in this cause, the germane portions of which have been set forth in the forepart of this opinion, fails to show a contract sufficient to establish a joint venture under the principle of law governing such enterprises which we have discussed at length. It appears from the complaint that the plain-'' tiff made no monetary contribution to the purchase of the lands involved. The complaint contains no allegations that the plaintiff was to be responsible for any losses which might be incurred in the event the enterprise proved unsuccessful. The only allegation approaching this subject is in paragraph 7 where it is stated “Plaintiff * * * has at all times stood ready, willing and able to pay his proportionate share in said venture and is now ready, able and willing to do so.”

The allegations of the complaint that the defendants in the court below after entering into a contract to purchase the subject lands “advised your Plaintiff * * * they could and would not now recognize said Plaintiff’s interest in and to the agreement and contract of purchase of said property or in and to the property the subject thereof and could not and would not permit and allow your said plaintiff to share and participate in the benefits of said contract and agreement or the profits to be realized in the venture,” (emphasis supplied) falls far short in itself. Even if such agreement had been previously entered into it is insufficient to create a joint adventure. In Duvall v. Walton, 1932, 107 Fla. 60, 64, 144 So. 318, 319, we said with reference to the contract there under discussion “The agreement that the three of them would develop the property by subdividing it into lots and place it on the market, and then, after paying the expenses and paying to Mrs. Duvall the purchase price, they would share equally the profits, did not make of them joint adventurers or partners in the purchase of the land and in the obligations given for it.” Moreover, we find no allegation concerning the essential element of joint control or right of control which, as we have pointed out, is an essential element in contracts of this kind.

Measured by the long established principles we have enunciated and construed in a light most favorable to the plaintiff in the trial court, the complaint is wholly insufficient and therefore the order of the trial court overruling the motion to dismiss must be and the same is hereby quashed with directions to enter an order granting the motion to dismiss and for further proceedings not inconsistent with these views.

Certiorari granted. The order appealed from quashed.

TERRELL, C. J., and HOBSON and THORN AL, JJ., concur.


text:
    RENUART LUMBER YARDS, Inc., a Florida corporation, Appellant, v. Edward A. STEARN and Bernard N. Jarrett, a sole proprietor, doing business as Palmer & Jarrett, Appellees.
    Supreme Court of Florida, En Banc.
    May 29, 1957.

      Robertson & McLeod, Coral Gables, for appellant.
    Howard Hadley, Miami, for appellees.
   ROBERTS, Justice.

In a suit by a subcontractor to foreclose a materialman’s lien under Ch. 84, Fla.Stat. 1955, F.S.A., against the owner’s property, the lower court held that an initial payment, a progress payment and a portion of the final payment made by the owner to the general contractor under the direct contract were “properly paid” so that the plaintiff was entitled only to share pro rata with other lienors the amount ($2,400) remaining due and unpaid under the contract. The plaintiff has appealed.

As to the initial and progress payments, plaintiff relies on the provisions of Ch. 28243, Acts of 1953, appearing as Sec. 84.05 (11) (a), Fla.Stat.1955, F.S.A., in support of its contention that such payments were improper. Since this Act was held to be void and of no effect in Greenblatt v. Goldin, Fla., 94 So.2d 355, its contention in this respect cannot be sustained.

As to whether the portion of the final payment here in question was “properly paid,” the facts are as follows: The contract price was $11,000 for a completed job, the contract calling for an initial payment of 10 percent, a progress payment of 40 percent, and the remaining 50 percent, or $5,500, upon final inspection. At various times prior to the completion of the job the owner paid the contractor all except $2,400 of the contract price and did not obtain from the contractor a statement under oath that all lienors had been paid, as required by Sec. 84.04(3), Fla.Stat.1955, F.S.A. The question here is whether the plaintiff and other unpaid lienors have a right to have their liens discharged, pro rata, to the extent of the contract price remaining in the owner’s hands ($2,400) or to the extent of the final payment specified in the contract ($5,500).

Since the decisions of this court in Shaw v. Del-Mar Cabinet Co., Inc., Fla. 1953, 63 So.2d 264, and Curtis v. McCardel, Fla.1953, 63 So.2d 60, it is settled that a final payment under a building contract made by the owner to the general contractor without first securing the sworn statement from the contractor required by Sec. 84.04(3), supra, is not “properly paid” as the term is defined in Sec. 84.05, Fla.Stat. 1955, F.S.A., and that the owner is responsible to the general contractor’s unpaid subcontractors and materialmen to the amount of such final payment even though no cautionary notices were filed by them. The clear import of such decisions is that the true “final payment" as contemplated by the statute is that specified in the contract. See Curtis v. McCardel, supra, 63 So.2d 60.

Accordingly, it must be held under the authority of the above-cited decisions that the plaintiff and other unpaid lienors have a right to a lien for their pro rata share of the amount specified in the contract as the final payment, to wit, $5,500.

The decree is affirmed in part and reversed in part and the cause remanded for the entry of a decree not inconsistent with the opinions herein expressed.

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


text:
    Louise M. OBERKIRCH, Appellant, v. CITY OF ST. PETERSBURG, a municipal corporation, and Maas Brothers, Inc., a Florida corporation, Appellees.
    Supreme Court of Florida, Special Division A.
    May 29, 1957.
    Ed W. Harris and William E. Allison, St. Petersburg, for appellant.
    Lewis T. Wray, Harry I. Young, Frank D. McDevitt and Carl R. Linn, St. Peters-burg, for City of St. Petersburg.
    Macfarlane, Ferguson, Allison & Kelly and David J. Kadyk, Tampa, for Maas Brothers, Inc., appellees.
   PER CURIAM.

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

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

Affirmed.

TERRELL, C. J., and THOMAS and ROBERTS, JJ., and ALLEN, Associate Justice, concur.


author: HOBSON, Justice.

text:
    Eleanor Leslie LEAR, Appellant, v. Edward L. LEAR, Appellee.
    Supreme Court of Florida, En Banc.
    May 29, 1957.

      Hunter & Paoli, Hollywood, for appellant.
    No appearance for appellee.
   HOBSON, Justice.

Eleanor Leslie Lear filed suit against her husband Edward L. Lear predicated upon willful, obstinate and continued desertion for a period of more than one year. Substituted service was effected. The notice mailed to Mr. Lear was not returned to the Clerk of the Circuit Court. It therefore must be assumed that the defendant husband received the notice and was apprised of the charge made by his wife. Decree pro confesso was entered against him. The matter was referred to a Special Master who, after hearing all the evidence, recommended the entry of a decree of divorce in favor of Mrs. Lear.

The Chancellor did not follow the recommendation of the Special Master because, as he stated, “ * * * it is the opinion and finding of the Court that Plaintiff failed to produce corroborative evidence as to essential facts, namely, that Defendant’s desertion of Plaintiff had been willful and obstinate. Bowersox v. Bowersox, 157 Md. 476, 146 A. 266 [65 A.L.R. 165], ‡ ‡ * »

It is clear that the question presented is whether the evidence and the proper inferences deducible therefrom sustain the charge that Mr. Lear’s desertion of his wife was willful and obstinate.

We shall first deal with the Maryland case of Bowersox v. Bowersox, which was relied upon by the Chancellor. In that case the husband, who was the plaintiff, had left his wife. In such a situation it is necessary in order to establish constructive desertion that there be corroboration of the facts, if it be a fact, that the husband had just cause for leaving his wife. The corroborating witnesses’ testimony in the Bowersox case did not directly or by reasonable inference lend strength to, or make more credible the testimony of Mr. Bowersox on this vital point. In the instant case the charge is one of actual — not constructive — desertion and its proof is less complicated if, indeed, the threshold of proof is not lower. We have no criticism of the Bowersox opinion to offer, but it is not sufficiently analogous to be persuasive in the case now before us.

Eleanor Leslie Lear testified in substance that: she and her husband were married October 2, 1954, in Easton, Pennsylvania; they came to live in Florida a few days after their marriage; her husband deserted her on October 9, 1954; just prior to such desertion he stated “he didn’t think he cared too much for marriage that he would rather be a bachelor and he didn’t care too much for looking for work either”; she came home from work on October 9, 1954, and found that he had left their home, had taken “all his belongings” with him and she never heard from him after that.

Mrs. Lear produced two witnesses who, after testifying to her residence in Florida for more than the period required by our statute, stated under oath that they had never met Edward L. Lear but knew for a fact neither he nor any other man had lived with Eleanor Leslie Lear as her husband for over a year.

From the testimony of the corroborating witnesses there flows only one reasonable, and indeed inescapable, inference which is that Mr. Lear was guilty of having lived apart from his wife and neglected his marital duties for a period greater than one year. An inference of this character is by law elevated for the purpose of further inference to the dignity of an established fact. It may independently, or together with other established facts, become a predicate for a further inference, contrary to the general rule that one inference may not be superimposed upon another. Voelker v. Combined Ins. Co. of America, Fla., 73 So.2d 403.

This inference so dignified, considered in connection with the evidence as a whole, gives rise to the further inference that such desertion was willful and obstinate, for otherwise Mr. Lear would have returned and resumed his marital obligations. Such reasonable inference preponderates over all other reasonable inferences. The testimony of the corroborating witnesses and the inferences appropriately deduced therefrom lend credence to and strengthen Mrs. Lear’s testimony. In other words, the test applicable to the sufficiency of corroborative evidence has been satisfied. The generally accepted rule is that in the absence of collusion corroboration need only be slight. The record in the instant case does not disclose, nor does it even suggest, collusion.

We are constrained, therefore, to hold that the learned Chancellor erred in denying a divorce to, and dismissing the complaint of, Eleanor Leslie Lear. Were we to rule otherwise, no one in Mrs. Lear’s position could ever secure a divorce unless such person, which would seldom, if ever, be the case, could produce witnesses who actually heard the offending spouse state that he or she intended, upon leaving his or her mate, never to return. The cause is reversed with directions to the Chancellor to enter a decree of divorce as prayed for in the complaint.

Reversed with directions.

THOMAS, Acting Chief Justice, and ROBERTS, DREW and THORNAL, JJ., concur.

O’CONNELL, J., dissents.

TERRELL, C. J., not participating.


text:
    Frances H. McARTHUR, Petitioner, v. B. B. McARTHUR, Respondent.
    Supreme Court of Florida, Special Division A.
    May 31, 1957.

      Howard N. Pelzner, and Killian, Smith & Killian, Miami, for petitioner.
    William J. Pruitt, Miami, for respondent.
   O’CONNELL, Justice.

This is a petition for certiorari under Fla. Supreme Court Rule 14, 31 F.S.A. The petitioner, the former wife of respondent, seeks review of an order entered July 18, 1956 denying her an increase in alimony and of an order dated January 4, 1957 denying a petition for rehearing, denying an amended petition for rehearing, and denying an award of counsel fees to petitioner for the services of her attorneys.

The parties were divorced in August 1945. In the final decree the wife was awarded alimony in amount of $75 per week. The alimony award was reduced to $50 per week in July 1946 on petition of the respondent.

In June 1956 the petitioner filed a petition for increase in alimony. The respondent countered with a motion to modify the order of July 1946 by terminating further alimony payments on the ground that petitioner was able to work and thereby to support herself.

In her sworn petition for increase of alimony the petitioner alleges that the circumstances of both parties have changed since the last order relating to alimony.

Among other things she alleges that the respondent has greatly increased his income and his assets, and that he has recently inherited an estate in excess of $300,000 from his second wife, now deceased. She alleges further that while the respondent has lived and traveled luxuriously that she has had difficulty in malting ends meet; that she will be required to give up her automobile because of lack of funds; and that she is in need of medical treatment. The record before us does not reflect any response to the petition.

Testimony was given before the chancellor by both parties.

Mr. McArthur, the respondent, was an evasive witness. He testified that his income had increased since 1946 but that he did not know how much. He admitted that he had paid income tax in 19SS in excess of $50,000 and that he had borrowed $70,-000 with which to pay the taxes. He testified that he owned various stocks, Bonds, mortgages and two tracts of land in Brow-ard County totaling 741 acres. He testified that he had gradually increased his holdings. He testified he still owned the Hollywood Dairy.

Mrs. McArthur, the petitioner, testified that the sum of $10,000 received from an interest in real property at the time of the divorce had dwindled to about $5,000; that she had outstanding obligations of about $600; that she was suffering from anemia, high blood pressure and nervousness; that she had been working since the divorce but had to give up her job under a physician’s advice; that she was 53 years of age. Her testimony was not contradicted.

On July 18, 1956 the chancellor entered an order denying the increase in alimony requested by Mrs. McArthur and denying the termination of alimony requested by Mr. McArthur.

On July 24 Mrs. McArthur filed a petition for rehearing of the order of July 18, and on September 4 filed an amended petition for rehearing. On January 4, 1957 Mrs. McArthur filed a motion for attorney’s fees for successfully defending the attempt by Mr. McArthur to modify the alimony order. On January 4, 1957 the chancellor entered an order denying the petition and amended petition for rehearing and the motion for attorney’s fees. This petition for interlocutory certiorari followed.

The respondent has made and argued a motion to dismiss the petition for certiorari on the ground that the petition was filed more than 60 days after the entry of the order sought to be reviewed. It is true that the petition was filed here more than 60 days after the entry of the order of July 18, 1956. However, the petition for rehearing was filed within 10 days from entry of the order. We held in Ganzer v. Ganzer, Fla.1956, 84 So.2d 591 that a petition for rehearing in equity timely filed has the same effect for tolling the time for appeal as a motion for new trial in common law cases, whether or not a stay order has been entered. The petition for certio-rari was filed in this Court within 60 days after the entry of the order denying the petition for rehearing, and therefore the petition is properly before us.

In the amended petition for rehearing of the order of July 18, 1956, Mrs. McArthur alleged that since the entry of said order that she had discovered that Mr. McArthur had sold a farm in West Hollywood, Florida, for a sum in excess of $1,000,000. She attached photostatic copies of deeds recorded in the Public Records of Broward County, Florida to support the allegation. Two of these deeds were dated August 15, 1956, the third was dated April 5, 1956. The documentary stamps affixed to the deeds seem to substantiate the allegations.

A petition for rehearing after entry of an order or decree is generally analogous to a motion for new trial. It is available for purpose of asserting newly discovered evidence. Braznell v. Braznell, 1939, 140 Fla. 192, 191 So. 457.

No motion was made to strike the amended petition for rehearing and the chancellor apparently considered it as properly before him when he entered his order of January 4, 1957. The amended petition was not sworn to as required by Fla.R.Civ. P. 3.16(a), 31 F.S.A. when facts not apparent upon the record are contained therein. This was not raised by the respondent. Further there was attached to the copies of deeds an affidavit to the effect that said copies of deeds were received from the office of the Clerk of the Circuit Court of Broward County, Florida.

While it seems to us that it would have been far easier and more effective for Mrs. McArthur to have filed another petition for increase in alimony on the basis of the change in Mr. McArthur’s financial condition because of the sale of said lands, it nevertheless appears to us that having considered the amended petition for rehearing it was error for the chancellor to deny it under the showing therein contained.

Considering the evidence taken from the parties prior to entry of the order of July 18, 1956 it is apparent that Mrs. McArthur had shown a change of condition on her part in that she was under care of a physician and under his advice had given up her employment.

The record before us reflects that at the time of entry of the last order on alimony in 1946, Mr. McArthur in obtaining a reduction relied upon a showing that

(1) Mrs. McArthur had since the entry of the final decree become employed, and

(2) he had recently paid Mrs. McArthur the sum of $10,000 for her interest in a home owned by the parties, and

(3) that while he had made some $14,-000 net profit from his dairy operation in 1945, because of a cut in subsidy payments on milk by the U. S. Government and an increase in cost of feed for his cows, he would not have any profit in the year 1946, but would actually operate at a loss.

The master’s report in the divorce proceeding indicates that Mr. McArthur at that time had assets of approximately $100,000. His testimony before the chancellor in the present proceeding indicated that he had for the year 1955 paid income tax in excess of $50,000. He admitted he had gradually increased his holdings and business. He did not refute the allegations of the petition that he had inherited in excess of $300,000.

It seems to us that the changes in circumstances in the financial condition of Mr. McArthur and Mrs. McArthur’s condition of health and inability to work in themselves constitute sufficient cause to justify an increase in the amount of alimony which she should receive.

The further change in Mr. McArthur’s financial condition as reflected by the amended petition for rehearing might perhaps justify even a greater increase in the sums which she should receive. This change of condition can be presented to the chancellor in the further proceedings to be had in this cause.

F.S. § 65.15, F.S.A. provides, that on application by either husband or wife for an order increasing or decreasing the amount of alimony the court shall make such an order thereon as justice and equity shall require with due regard to the changed circumstances and the financial ability of the husband.

Justice and equity demand that a husband with the financial ability of the respondent in this cause pay to a wife, who has little separate property and who is unable to work to support herself, more than $50 per week.

Accordingly we hold that the denial of an increase in alimony to the wife was error.

Mrs. McArthur also contends that the chancellor erred in not awarding her counsel fees for defending the petition of Mr. McArthur to terminate payment of alimony. We held in Selinsky v. Selinsky, Fla. 1952, 62 So.2d 24 that attorney’s fees were properly allowed for such defense. However, the matter is addressed to the discretion of the court and in this case it does not appear that Mr. McArthur made any effort to urge the chancellor to act on his petition. The effort of the wife was affirmative not defensive. We do not find that the chancellor abused his discretion in this particular.

For the reasons above expressed the writ is issued, the orders Sought to be reviewed are quashed and the cause remanded with directions that the petitioner he allowed to amend her petition for relief, if she desires, and that such further proceedings he had as are necessary to determine the amount of increased alimony which the respondent should pay to the petitioner with due regard to the changed circumstances of the parties as they be found to exist in such proceedings.

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


author: WELCH, Associate Justice.

text:
    Geraldine SMITH, Appellant, v. The STATE of Florida, Appellee.
    Supreme Court of Florida, Special Division A.
    May 29, 1957.
    Carr & O’Quin and'Marshall G. Curran, Jr., Miami, for appellant.

      Richard W. Ervin, Atty. Gen., and 'George R. Georgieff, Asst. Atty. Gen., for appellee.
   WELCH, Associate Justice.

The defendant, Geraldine Smith, was indicted by a grand jury in Dade County for the crime of murder in the first degree and was convicted by a jury of the crime of manslaughter; was adjudged guilty and sentenced by the court of Dade County to the State prison for a term of fifteen years. From this judgment and sentence she has taken her appeal to this Court, and poses two questions, as follows:

Question No. One.

“Did the Trial Court err in refusing to allow Counsel for defendant to examine the typewritten manuscript with which the State Attorney attempted to impeach the witness, Richard Boyce?”

Question No. Two.

“Was it error for the Court to send a dictionary to the jury without first informing Counsel for the defendant in open Court?”

Taking up the first question first, we glean from the record that the statement in question was a transcript of the testimony of the witness, Richard Boyce, taken by and before the State Attorney in his office sometime prior to the trial. It appears that this witness, Richard Boyce, had been summoned by the State, but was called and put upon the stand by the defendant, and during the course of the trial this witness was asked on cross-examination with regard to whether he had made certain statements on a previous examination before the State Attorney; the statements allegedly made by the witness related to what he, Richard Boyce, had told the State Attorney concerning the defendant’s account of how the homicide occurred. During the course of this cross-examination with regard to the previous statements of the witness the State Attorney referred to certain documents he had in his file, evidently for the purpose of impeaching the witness; defense counsel moved the Court to require the State Attorney to allow an examination of that written document by which the State Attorney was attempting to impeach the defense witness. The motion was denied by the Trial Court; and this action of the Trial Court in denying this motion is the basis for appellant’s question number one.

This Court, speaking through Mr. Justice Mabry, in the case of Simmons v. State, reported in 32 Fla. 387, 13 So. 896, 897, said:

“Where a witness does not distinctly admit on cross-examination that he has made a former statement inconsistent with his present evidence, our statute permits such statement to be put in evidence upon proof of the circumstances of the supposed inconsistent statement sufficient to designate the particular occasion, and the witness being asked whether or not he made such statement. Rev.St. Sec. 1102. The general rule that a witness cannot be impeached by proof of inconsistent statement without first laying the proper foundation for the introduction of such evidence, applies to written statements or written testimony of witnesses taken down before a committing magistrate. Such testimony cannot, for the purpose of impeachment, be read to the jury, unless it be produced and shown to the witness, and his attention called to the contradictory statements, in order that he may explain them if he can. Where the testimony of a witness before a committing magistrate has been reduced to writing and signed by him he cannot, of course, be cross-examined as to the contents of this testimony without showing him the evidence or allowing him to hear it read. The rule on this subject has been regarded as settled since the Queen’s Case, 2 Brod. & B. 284 * *

The State relies on the Whitaker case (Whitaker v. Blackburn, Fla., 74 So.2d 794, 796). This writer is of the opinion that the Whitaker case can be distinguished from the case at bar, because in the Whitaker case the Court was dealing with papers and memoranda of a private and unofficial nature, and in discussing the question in the Whitaker case the Court said:

“ * * * Has the court authority to compel counsel, on request of his adversary, to deliver this prepared memoranda for his inspection? Could such a practice of search and seizure be justified by the law for any reasonable rule of procedure? If so, an attorney’s private papers and his written data — his private notes made to aid memory on the trial — are no longer safe or sacred, and their possession may be ordered given over to one who has no legal claim to or upon them. Such an order would very much resemble the order under review. We cannot accord to one accused of crime what could not be awarded to the law-abiding citizen in a court of justice.” (Emphasis supplied.)

This poses the following question: Was the transcript of the witness’ testimony, taken before the State Attorney, a private paper, or memorandum?

We take judicial knowledge of the fact that the State Attorney is a constitutional officer, and an arm of the Court. The State Attorney has the power to subpoena witnesses to appear before him and have them testify before him concerning matters which he is investigating. This is a power that a lawyer in private practice does not have. A witness can be compelled to go before the State Attorney and testify, but he cannot be so' compelled to go before and testify before a private attorney. It is not the duty of a State Attorney merely to secure convictions; the State Attorney is required to represent the State, it is his duty to present all of the material facts known to him to the jury; and it is as much his duty to present facts within his knowledge which would be favorable to the defendant as it is to present those facts which are favorable to the State; being an arm of the Court he is charged with the duty of assisting the Court to see that justice is done, and not to assume the role of persecutor. This writer is of the opinion that the testimony of a witness given before a State Attorney (acting in his official capacity as State Attorney, vested by law with the power to compel the attendance of witnesses before him) falls in the same category with testimony taken before a committing magistrate, as mentioned in the Simmons case, supra; therefore, it was error for the Trial Court to allow the State Attorney to use this transcript of the testimony for the purpose of impeaching the witness, Boyce, without allowing the witness and defendant’s counsel to inspect, the transcript, and if counsel for the defense so desired, to introduce in evidence the whole transcript for the purpose of explaining away, clarifying, or distinguishing the alleged inconsistencies.

The second question raised by the appellant brings here for consideration the propriety of the Trial Judge in furnishing the jury with a dictionary, out of the presence of the defendant and her counsel. The defendant claims this was error.

Section 919.04, Florida Statutes, F.S.A. set out in clear language what a jury may take with them to the jury room, viz., “(1) “Forms of verdict approved by the court, after being first submitted to counsel. (2) Any written instructions given; but if any such instruction is taken or sent all of the instructions shall be taken or sent. (3) All things received in evidence, other than depositions * * Section 919.05 prescribes the manner by which the jury may receive additional instructions, and provides, among other things, “Such instruction may be given and such testimony read only after notice to the prosecuting attorney and to counsel for the defendant” (Emphasis supplied.) Section 919.06 prescribes the manner by which the Court of its own motion may recall jurors for additional instructions, or correct any erroneous instruction it has given them. This section also provides “Such additional or corrective instructions may be given only after notice to the prosecuting attorney and to counsel for the defendant. (Emphasis supplied.) This Court, in the case of Johnson v. State, 27 Fla. 245, 247, 9 So. 208, 213, stated,

“They [the jury] must get their instructions as to the law of the case from the court and not from their own perusal of the books.” (Emphasis supplied.)

This seems to be the first “Dictionary” case in Florida; but there are several Texas decisions on this point; Corpus Christi St. & Inter-Urban Ry. Co. v. Kjellberg, Tex.Civ.App., 185 S.W. 430, was a case where the Trial Judge allowed a dictionary to be given to the jury without the knowledge or consent of counsel; and the Texas Court, in reversing that case, said that the Statute, Vernon’s Ann.Civ.St. art. 2198 (similar to ours) provided for the manner in which the Court could confer with a jury, i.e., in open Court and in the presence of counsel. In another Texas case, Texas Midland Ry. Co. v. Byrd, 102 Tex. 263, 115 S.W. 1163, 1164, 20 L.R.A.,N.S., 429, the Texas Court stated,

“It seems to us, therefore, that it is error for the judge to confer with the jury in any other manner than that prescribed by law, and that if he does, his judgment, on that account, should be reversed.”

The Court stated, in the Corpus Christi case [185 S.W. 432],

“What the jury obtained from the stupendous work, filled with inconceivable words and maxisms and aphorisms, no one knows. No book should be consulted by a jury in arriving at a verdict and especially one that defines and treats everything expressed by the English language. No maker of dictionaries should ever be allowed to■ define legal terms to a jury unless such definitions go through the medium of the trial judge, the only one authorized by law to give definitions and explanations to a jury.” (Emphasis supplied.)

In another Texas case, S. Lightburne & Co. v. First Nat. Bank, reported in Tex.Civ.App., 232 S.W. 343, where a jury foreman obtained a dictionary the Court, irt holding that such act constituted error, cited the Kjellberg case, supra.

Under our Florida Statute a dictionary is not one of those things permitted to be taken into the jury room; and we therefore hold that it was error to permit the jury to have the use of a dictionary while deliberating its verdict.

For the errors herein pointed out we are of the opinion that this case should be reversed and remanded for a new trial. It is so ordered.

Reversed.

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


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    William V. BYBEE, doing business as Modern Plumbing Company, Plaintiff-Appellant, v. Edward A. STEARN, a single man, Defendant-Appellee.
    Supreme Court of Florida, Special Division A.
    May 29, 1957.
    Leo M. Alpert, Miami, for appellant.
    Howard Hadley, Miami, for appellee.
   ROBERTS, Justice.

Plaintiff-appellant, a plumbing subcontractor, filed a suit in equity against the defendant-appellee, Edward A. Stearn, to foreclose a claim of lien against property owned by the defendant. He did not join as a party defendant the general contractor, Palmer & Jarrett, with whom Stearn had contracted for the construction of a building on his premises and who had, in turn, subcontracted the plumbing work to plaintiff. The plaintiff claimed the right to recover the full amount of his lien on the ground, among others, that “prior to completing the contract, Plaintiff informed the Defendant, Edward A. Stearn that no money had been paid on the contract and the said Defendant promised to make payment to the Plaintiff and pay the sum of $1,196.50 in full.” This allegation was denied by defendant in his answer.

The lower court heard the evidence of the parties on the issue of whether there was such privity between the parties as to justify awarding to plaintiff the full amount of his claim of' lien and resolved the conflicts therein in favor of the defendant. We have carefully reviewed the evidence and can find no reason for overturning the Chancellor’s conclusion that no such privity existed, except as to a claim for $96.50 for an “extra” demanded by defendant and furnished by plaintiff in reliance upon defendant’s promise to pay therefor. Accordingly, this portion of the decree is affirmed, with the exception noted.

After finding that there was no privity between the parties, the Chancellor sustained the defendant’s motion to dismiss on the ground of failure to join indispensable parties (a decision thereon having been deferred until after trial) and dismissed the complaint. His decision in this respect was based on the provisions of Sec. 86.07, Fla.Stat.1955, F.S.A., and the opinion of this court in Anderson v. Dade Lumber Co., 1931, 101 Fla. 38, 133 So. 321.

The plaintiff has assigned this ruling as error and here contends that the provisions of Sec. 86.07 are not applicable to a suit to foreclose a mechanic’s lien acquired and perfected under the Mechanics’ Lien Law, Ch. 84, Fla.Stat.1955, F.S.A.

Sec. 86.07, Fla.Stat.1955, F.S.A., was originally enacted as a part of Ch. 5143, Laws of 1903, which provided for the acquisition and enforcement of many types of liens therein established. With a few amendatory additions or deletions, this 1903 Act remained the only statutory lien law of this state until 1935, when the present Mechanics’ Lien Law was adopted by Ch. 17097, Acts of 1935. In the 1941 Florida Statutes, F.S.A., by which the laws of this state were compiled and renumbered, the 1935 Mechanics’ Lien Law was carried forward as Chapter 84. The provisions of the 1903 Act providing for the acquisition of the statutory liens therein specified were carried forward as Chapter 85, and the enforcement provisions of the 1903 Act were incorporated as Chapter 86. As changed and carried forward by the revisers, Sec. 86.01 provides that “All liens provided for by the foregoing chapters, either upon real or personal property, except where otherwise provided, shall be enforceable by person (sic) in privity with the owners as follows: * * * (The provision, before revision, referred to the liens “provided for by this chapter” and omitted the phrase “except where otherwise provided”.) Sections 86.02-86.06 set forth the remedies available to a lienor in privity with the owner. Sec. 86.07 specifies the remedies available to a lienor not in privity with the, owner and the type of relief that may be afforded him. It also provides that “in every suit at law or in chancery the contractor or the person for whom the labor was performed or the materials furnished must be made a party defendant to the suit; * * ”, and it is this particular provision which the Chancellor held applicable to plaintiff’s suit, and that it was barred by his failure to join the contractor therein within 12 months of the time of filing his claim of lien.

This court has held that the summary remedy provided by Sec. 86.06 (enacted by Ch. 10279, Acts of 1927, as an amendment to the 1903 Act) is available to a laborer in the enforcement against his employer of a lien acquired and perfected under the Mechanics’ Lien Law. State ex rel. Gore v. Chillingworth, 126 Fla. 645, 171 So. 649, 652. Pointing out that the 1935 Act was “a revision of the entire subject of mechanics’ and laborers’ liens”, and that it repealed “all acts or parts of acts” inconsistent therewith, the court said that there was no inconsistency between the 1935 Mechanics’ Lien Law and the 1927 Act, “the one providing for the acquisition and perfection of liens, and the other providing for the enforcement of them, and in the latter phase of the subject there appear to be no conflicting clauses between the two acts.”

But even if it be assumed that the remedies provided by Sections 86.02-86.07 for the enforcement of liens accruing under the 1903 Act (Ch. 85) might be available, where applicable, to lienors whose liens are within the purview of and are perfected under the 1935 Mechanics’ Lien Law, Ch; 84 (the “1935 Act” hereafter), it goes without saying that the liability of the owner for a lien acquired and perfected under the 1935 Act must be determined by its provisions; and such liability differs materially from that prescribed by the 1903 Act. Sec. 86.07 sets forth the relief available to lienors whose liens accrue under the 1903 Act; Sec. 84.29 sets forth the relief available to lienors whose liens accrue under the 1935 Act. This relief differs materially from that to which a lienor whose lien accrues under the 1903 Act is entitled and, of course, supersedes the former Act in this respect. Section 84.29 does not, however, provide that the contractor must be joined as a party defendant in all actions by a lienor to enforce an obligation-acquired under the 1935 Act. This is certainly an important procedural matter; and it is fair to assume that if the Legislature had intended that a lienor not in privity with the owner should join the contractor as a party defendant in all suits at law or in equity to enforce an obligation arising out of the 1935 Act, it would have been a simple matter to so provide. It did not do so, and we feel that it would be judicial legislation for this court to read into the statute such a legislative intent. The wording of Sec. 86.01 quoted above and here relied upon by the defendant in support of the Chancellor’s decree does not require a different holding since the revisers, in changing the language of the 1903 Act, carefully specified “except where otherwise provided” ; and the 1935 Act has “otherwise provided” for the type of relief afforded to lien claimants under the 1935 Act, as distinguished from that provided in Sec. 86.07 for lien claimants under the 1903 Act, and designedly, we think, omitted the provision as to joinder of the contractor as a party defendant.

It must be held, therefore, that the Chancellor erred in holding that the contractor was an indispensable party defendant in a suit which seeks to enforce only the owner’s liability under the Mechanics’ Lien Law, and it was error to dismiss the plaintiff’s suit for that reason.

Under an assignment of error stating that “On the, law and the facts of the case a Decree for Plaintiff is required by justice and right”, the plaintiff has argued' that he is entitled to the full amount of his lien because the defendant-owner “blatantly” violated the Mechanics’ Lien Law by failing to obtain a performance bond' and making payments to his contractor that were improper both under his contract and under the law. While the particular provision of the statute relied upon is not cited,, it is apparent that he is relying upon Ch. 28243, Acts of 1953, appearing as Sec. 84.05 (11) (a), Fla.Stat.1955, F.S.A., in support of his contention.

Aside from the insufficiency of the assignment of error, which was not cured by a more particular statement in his brief, cf. Redditt v. State, Fla., 84 So.2d 317, the statute in question has been held to be void and of no effect in Greenblatt v. Goldin, Fla., 94 So.2d 355. Se,e also Renuart Lumber Yards, Inc. v. Stearn, Fla., 95 So.2d 517, involving the same direct contract and dealing with the question of what payments, were improperly made under the contract and applicable law.

The decree appealed from is affirmed in part and reversed in part and the cause remanded for further proceedings not inconsistent with the opinions herein expressed.

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


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    Kermit McCOY, Appellant, v. J. S. POWELL, Tom Bryan and J. B. Patterson, as members, and constituting the Civil Service Board of the City of Fort Lauderdale, Florida, Appellees.
    Supreme Court of Florida, Division B.
    May 8, 1957.
   Appeal from Circuit Court, Broward County; James H. Walden, Judge.

PER CURIAM.

Affirmed.


text:
    ATLANTIC COAST LINE RAILROAD COMPANY, a corporation, Appellant, v. William Henry TAYLOR, Appellee.
    Supreme Court of Florida, Special Division B.
    May 8, 1957.
   Appeal from Circuit Court, Duval County; W. A. Stanly, Judge.

PER CURIAM.

Affirmed.


text:
    FOOD FAIR STORES OF FLORIDA, INC., a Florida corporation, Appellant, v. Rose PICKER, Appellee.
    Supreme Court of Florida, Special Division A.
    May 1, 1957.
    Rehearing Denied June 3, 1957.
   Appeal from Circuit Court, Dade County; Vincent C. Giblin, Judge.

PER CURIAM.

Affirmed.


text:
    Clayton THOMAS, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, Division A.
    April 12, 1957.
    Rehearing Denied June 3, 1957.
   Appeal from Criminal Court of Record, Orange County; W. M. Murphy, Judge.

PER CURIAM.

Affirmed.


text:
    Mary S. SMITH, Appellant, v. Gustave S. SMITH, Appellee.
    Supreme Court of Florida, En Banc.
    May 1, 1957.
    Rehearing Denied June 13, 1957.
   Appeal from Circuit Court, Dade County ; Grady L. Crawford, Judge.

PER CURIAM.

Affirmed.


author: PER CURIAM. Affirmed.

text:
    Ira D. CARROLL, Appellant, v. Raymond BRIGGS and Thera B. Briggs, Husband and Wife, Appellees.
    Supreme Court of Florida, Special Division A.
    May 15, 1957.
   Appeal from Circuit Court, Escambia County; Ernest E. Mason, Judge.

PER CURIAM.

Affirmed.


text:
    Irene CAVE, Appellant, v. Marion ANDERSON, Appellee.
    Supreme Court of Florida, Special Division B.
    May 15, 1957.
   Appeal from Circuit Court, Broward County; Otis E. Farrington, Judge.

PER CURIAM.

Affirmed.


text:
    Tilden CORENBLUM, Appellant, v. J. D. BARNES and Lorraine S. Barnes, his Wife, Jointly and Severally, Appellees.
    Supreme Court of Florida, Division B.
    May 15, 1957.
   Appeal from Circuit Court, Dade County; Pat Cannon, Judge.

PER CURIAM.

Affirmed.


text:
    Mirie F. GOODE, Appellant, v. Mollye B. GOODE, Appellee.
    Supreme Court of Florida, Special Division B.
    May 8, 1957.
   Appeal from Circuit Court, Putnam County; P. B. Revels, Judge.

PER CURIAM.

Affirmed.


text:
    Ethel POWELL, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, Division A.
    April 12, 1957.
    Rehearing Denied June 3, 1957.
   Appeal from Criminal Court of Record, Orange County; W. M. Murphy, Judge.

PER CURIAM.

Affirmed.


text:
    CITY OF DAYTONA BEACH, a municipal corporation, Appellant, v. Leo LANHAM and Margaret Lanham, Appellees.
    Supreme Court of Florida, En Banc.
    May 8, 1957.
   Appeal from Circuit Court, Volusia County; P. B. Revels, Judge.

PER CURIAM.

Affirmed.


text:
    CITY OF DAYTONA BEACH, a municipal corporation, Appellant, v. Johnny LANHAM, a minor, by his father and next friend, Leo Lanham, Appellee.
    Supreme Court of Florida, En Banc.
    May 8, 1957.
   Appeal from Circuit Court, Volusia County; P. B. Revels, Judge.

PER CURIAM.

Affirmed.


text:
    6345 COLLINS AVENUE, Inc., Appellant, v. Murray A. FEIN, Appellee.
    Supreme Court of Florida, Division B.
    June 5, 1957.
    Wicker & Smith and Harry G. Hinck-ley, Jr., Miami, for appellant.
    Kelner & Lewis, Miami Beach, for ap-pellee.
   O’CONNELL, Justice.

The appellant, 6345 Collins Avenue, Inc., hereinafter called the hotel, was defendant in the trial court in an action brought by Murray A. Fein, hereinafter referred to as plaintiff, wherein plaintiff sought damages for injuries received in a fall on the hotel’s premises. In a trial by jury plaintiff received a verdict in amount of $25,000. Judgment was entered on the verdict and this appeal is taken therefrom.

The facts of the case are relatively simple and for the most part are not in conflict.

On March 16, 1954, in daylight hours, plaintiff drove his automobile into the two-lane, semi-circular driveway or ramp leading up to the entrance to the defendant’s hotel. He stopped in the center, opposite the steps leading to the entrance to the hotel, got out of his car and walked up the steps into the hotel to register. He gave his car key to a bellhop to remove his baggage.

After inspecting his room and looking over the hotel premises and facilities plaintiff decided to get some special coat hangers he had left in his car. When he reached the driveway he found that his car had been moved from the spot he had left it. Plaintiff’s car had been moved by a hotel employee away from the steps at the entrance and down the driveway about two car lengths. Another car had been parked bumper to bumper behind his car. Both cars were parked on the right hand side of that part of the driveway leading down from the entrance of the hotel to the street with their right wheels near or against the curb on the edge of the driveway, which curb was approximately 6 inches high and 6 inches wide. The plaintiff testified that the car parked behind his blocked a portion of the steps.

The plaintiff walked around to the left side of the two cars and entered the left door of his car. An employee of the hotel accompanied him to the car. Plaintiff climbed into the rear of his two door sedan. The employee leaned in to help him pick up the hangers.

After picking up the hangers plaintiff opened the right door, and without looking stepped sideways out of the car. His right foot descended first and came to rest on the curb, but as his left foot came down his right foot slipped and he fell into the area adjacent to the driveway breaking his heel in the fall.

In his complaint, plaintiff charges that the hotel violated its duty to maintain its premises in a reasonably safe condition in that:

“(1) it maintained a sunken flower bed or sunken ground adjacent to the ramp driveway from the street to the doorway entering the hotel, and
“(2) it did not barricade the sunken ground so as to prevent the hotel guests from stepping or falling down into it.”

Plaintiff also charged that the hotel was guilty of negligence in placing his auto against the curb alongside the sunken area when the auto was moved by an employee of the hotel.

In its answer the hotel denied any negligence and pled the defense of contributory negligence.

In his testimony plaintiff stated that he had to go around, i. e. to the left side of the car behind his, to get to his car. When asked if he had looked to see if there was enough passageway to get by the right side of the car behind him he answered:

“A. I mean it was manifest there was another car blocking part of the stairway. I just had to walk down to the car to get to the ramp.” Again he was asked a question:
“Q. I believe your testimony before was you knew there wasn’t enough room for you to go down along the right side of the car; is that correct, sir? A. I believe so, yes.”
Again he was asked a question:
“Q. Was there sufficient room for you to walk between where your car was parked and the curbing? A. I don’t believe so. I do not believe so.”

The plaintiff testified that from his position in the rear of his car he could not see the curb or see where he stepped. He indicated that he could have seen had he put his head out the door. He testified that there was nothing to prevent his having observed the nearness of his car to the curb, or the difference in elevation from the curb to the adjacent ground in the flower bed or sunken area. He admitted that he did not look at the curb or area where he stepped before he did so.

The following additional facts regarding the scene of the accident must be given in order to make the setting clear. The driveway in question is in a semi-circle, with the steps leading to the lobby of the hotel being approximately at the top of the curve. The driveway rises in elevation as it approaches the steps and descends as it leaves the steps to return to the street. As above stated there is a curb marking the outer edge of the driveway. Along the right side of the driveway, on both sides of the steps, there is a hedge of shrubs which hedge appears to continue along the drive for a distance of some 25 to 30 feet. The hedge is sparse and one can easily see through it. It extends upwards above the level of the curb some two to three feet.

At the place where the accident involved here occurred the curb on the driveway is approximately two to three feet higher than the ground which abuts it and in which the hedge is growing. Both the curbing and the hedge clearly mark the edge of the driveway. There is no suggestion from any of the circumstances that the area outside the curb and beyond the hedge is a walkway and is safe for use of one departing a car. The drop in elevation is clearly visible to one who would look at it, particularly from the height at which plaintiff would have looked down from his car.

At the trial, the hotel made timely motions for directed verdict in its favor. The court reserved ruling thereon. The jury returned a verdict for plaintiff. The hotel after the jury rendered its verdict made a motion for entry of judgment on its motions for directed verdict, or in alternative for new trial and made a motion for judgment non obstante veredicto. The trial court entered judgment for plaintiff and denied the motion for new trial. The other motions were not specifically denied but we will treat them as having been denied.

As one ground of its motion for new trial the hotel asserted that the jury was guilty of misconduct because one of the jurors made an unauthorized view of the scene of the accident and advised the other jurors of his visit, his observations, and his conclusions. The hotel attached to the motion for new trial an affidavit of the juror who made the unauthorized view. The plaintiff subsequently submitted to the court another affidavit of the same juror to the effect that his view of the premises did not affect his actions as a juror.

We have before us in this case three questions. First, doe9 the record reflect that the hotel was guilty of negligence; second, does the record reflect that the plaintiff was guilty of contributory negligence so as to bar recovery; and, third, if we decide both of these questions in favor of the plaintiff we must determine whether the misconduct of the jury warrants giving the hotel a new trial.

We will first consider the question of plaintiff’s contributory negligence since if we determine that he was guilty of such as a matter of law, it will be unnecessary to answer the other questions presented.

As abovestated, plaintiff’s evidence showed that although he knew that there was not room to approach his car from the right side thereof he nevertheless stepped from his car in a sideways position on the right side without looking down to make certain that he could do so with reasonable regard for his own safety. There is no dispute as to this evidence.

It is clear that plaintiff had a duty to look where he stepped and that he failed to exercise ordinary or reasonable care for his own safety. The fact that he knew that there was not sufficient room to go between the curb and his car on the right side thereof aggravates his lack of care for his own safety in stepping therefrom without looking first.

In the recent case of Becksted v. Riverside Bank of Miami, Fla.1956, 85 So.2d 130, we said that every person has the duty to see that which would be obvious to him upon the ordinary use of his senses and to exercise a reasonable degree of care for his own safety in view of the circumstances.

Therefore even if we were to assume that the plaintiff was not aware of the alleged unsafe condition created by the lack of space between his car and the curb and/or of the difference in elevation between the curb and the adjacent ground we still must come to the conclusion that he had the duty to see these conditions and to exercise reasonable care for his safety in view of them, and having failed to make use of his ordinary senses to see them he is guilty of contributory negligence.

Plaintiff in his brief urges that the holding of this Court in McDermott v. Ergstrom, Fla.1955, 81 So.2d 553, is applicable. In that case a newspaper rack protruding from a wall was plainly seen if approached from one direction, but could not be seen in advance when approached from another. This Court held that the rack constituted a trap when approached from the direction from which it could not be seen. But in the case now before us the plaintiff himself testified that there was nothing which would have prevented his seeing the alleged dangerous condition had he but looked. Under the facts of this case, the holding of the McDermott case is not applicable.

Assuming for the salce of argument that the hotel was negligent, it is obvious that plaintiff’s negligence contributed to the proximate cause of his injury and he cannot recover. Matson v. Tip Top Grocery Co., 1942, 151 Fla. 247, 9 So.2d 366; Fredericks Market v. Knox, Fla. 1953, 66 So.2d 251 and Dramstadt v. City of West Palm Beach, Fla.1955, 81 So.2d 484.

Where the evidence on the question is in conflict, the absence or presence of contributory negligence is a question to be decided by the jury. But where the undisputed evidence shows that plaintiff is guilty of negligence which contributes to the proximate cause of his injury it becomes the duty of the court to direct a verdict against the plaintiff and failure to do so is reversible error. Faulk v. Parrish, Fla. 1952, 58 So.2d 523. When the evidence shows that plaintiff’s negligence appreciably caused the accident there is nothing to submit to the jury. Fields v. Quillan, Fla.1954, 74 So.2d 230, Becksted v. Riverside Bank of Miami, supra.

The hotel made timely motions for directed verdict and within the time provided under Fla.R.C.P. 2.7(b), 31 F.S.A., moved to have the verdict set aside and judgment entered for it in accordance with its motions for directed verdict. The trial court should have granted the motion for directed verdict. Having reserved ruling thereon until after the verdict of the jury he should have set aside the verdict and entered judgment for the hotel in accordance with its motion for directed verdict.

Where such motion to set aside the verdict and enter judgment for movant is denied by the trial court the appellate court may either affirm or may reverse with directions to enter judgment for the movant in accordance with his motion for directed verdict. See cases cited in annotations in 85 L.Ed. 167 and 97 L.Ed. 98. Also see Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147. The above annotations and cited case deal with the provisions of Fed.Rules Civ.Proc. rule 50(b), 28 U.S.C.A., which is similar to the provisions of Fla.R.C.P. 2.7.

Having determined that the lower court should be reversed on this point, it is-not necessary for this Court to further consider the other two points raised by the defendant on this appeal.

This cause is therefore reversed and remanded with directions that the trial court set aside the verdict and judgment and enter judgment for the hotel-defendant in accordance with its motion for directed verdict.

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