text:
    TROPICAIRE ENGINEERING SERVICE CORP., a Florida corporation, Appellant, v. CHRYSLER AIRTEMP SALES CORPORATION, a foreign corporation, doing business within the State of Florida, and Miami Air Conditioning Company, a Florida corporation, and Allied Supply Company, Appellees.
    No. 57-47.
    District Court of Appeal of Florida, Third District.
    Sept. 17, 1957.
    Rehearing Denied Oct. 15, 1957.
    Heller & Lindzon, Miami, for appellant.
    Evans, Mershon, Sawyer, Johnston & Simmons, Miami, for appellee, Chrysler Airtemp Sales Corp.
    Breslow & Gelb, Miami, for appellees, Miami Air Conditioning Co. and Allied Supply Co.
   CARROLL, CHAS., Chief Judge.

This is an appeal from a final decree for defendants, entered after hearing on the bill and the answers in an equity suit in which time for taking testimony had expired.

The appellant-plaintiff filed a suit in equity in the Dade County Circuit Court, on February 4, 1955, to avoid a transaction for purchase of equipment, to accomplish the return by it of the portion received, and to recover certain advance payments. Defendants filed motions to dismiss, and when they came on for argument, the chancellor made orders reserving ruling thereon until final hearing, saying, “the determination of the legal questions presented by the motions are deferred until the trial of the suit, and the defendants are required to serve and file their answers to such complaint within ten days from this date.”

The defendants answered, and the defendant who admitted to dealing with plaintiff counterclaimed for damages for plaintiff’s refusal to accept the equipment. Plaintiff’s answer to the counterclaim was filed April 26, 1955.

Almost a year later, on April 6, 1956, plaintiff moved the court to set the cause for final hearing. Shortly thereafter, on April 18, 1956, plaintiff moved to amend to add new facts and parties. Defendant Chrysler Airtemp Sales Corporation filed objections to the motion to amend, and moved the court to set the cause down for final hearing on the pleadings on the ground that the cause had not been set for trial before the court, that the time for taking testimony had not been fixed or extended by the court, and that the allotted time for presenting proofs had elapsed without any testimony having been taken. The other defendants joined in the motion for final hearing on bill and answers.

Plaintiff then, on April 24, 1956, filed motions to prevent such a hearing, and to open the case for testimony. These were a “Motion in Opposition to the Motion to Enter a Decree on the Pleadings”, a motion to extend time for taking testimony, a renewal of the motion to amend, and a motion to strike all defensive pleadings.

The court proceeded to hear the cause on bill and answer, denying the other motions, and on finding “that the time for taking testimony in this cause has expired, and the plaintiff has not taken any testimony, nor has it shown any valid excuse or cause for not having taken any testimony, and it further appearing to the court that the plaintiff has not sustained the burden of proof * * * ”, the court then dismissed the complaint with prejudice.

The counterclaim also was dismissed, but no review of that is involved.

The action of the trial court in disallowing testimony, and disposing of the case on the merits on a final hearing on the bill and the answers, was within the sound discretion of the court, and no abuse of discretion was shown. The material allegations of the complaint were met and sealed off by denials in the answers, entitling the-defendants to a decree in their favor. Hancock v. Hancock, 128 Fla. 684, 175 So. 734; E. B. Elliott Co. v. Elliott, 137 Fla. 456, 188 50. 89; Strong v. Clay, Fla.1951, 54 So.2d 193; Hewett v. Hewett, Fla.1953, 65 So.2d 51. Cf. City of Miami v. Miami Transit Co., Fla.App. 1957, 96 So.2d 799.

The foregoing disposes of the questions raised by appellant under its assignments of error, except the claim that the cause never was at issue.

It is urged by appellant that because the-court failed to rule on the motions to dismiss and deferred ruling thereon until trial, the cause was prevented from coming to-issue. For support, appellant refers to the provision of Rule 3.8 of 1954 Florida Rules, of Civil Procedure, 31 F.S.A., that where-there is a motion to dismiss, the cause will-not be considered at issue until the court rules on the motion. The wording of rule. 3.8 is as follows:

“If at the expiration of 20 days from the service of the answer no counterclaim has been filed or, if counterclaim has been filed, then at the expiration of 20 days from the service of the reply thereto, the cause shall be deemed at-issue. If, however, within such period of 20 days a motion permitted by these rules is served, the cause shall not be deemed at issue until the points of law so presented shall be ruled upon by the court.”

Rule 1.11(d), Rules of Civil Procedure, 30 F.S.A., furnishes authority to defer ruling on such motions to dismiss until final hearing, by providing that motions to dismiss, on the grounds allowed to be asserted by paragraph (b) of the rule, “shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof shall be deferred until the trial.”

Rule 3.13, Rules of Civil Procedure, 31 F.S.A., deals with fixing and limiting the time for taking testimony where a cause is not set for trial by the court. It permits the time to be fixed and regulated by order of court, but where that is not done, the rule imposes a two-month limit for taking testimony. The rule is here quoted in full, as follows:

“When any chancery cause shall be at issue and shall not have been set for trial before the court, the court of its own motion or upon application of either party after due notice to the opposite party, shall enter an order fixing the time within which the testimony of the parties shall be taken. After the entry of such an order, the eourt may, upon good cause shown by either party, enlarge the time; and no testimony taken after such period shall be allowed to be read in evidence at the hearing. In the absence of any order by the court extending or limiting the time otherwise, two months from the time a cause is at issue and no longer shall be allowed for the taking of testimony in any cause, unless the case has been set for trial before the court. The time for taking testimony may be extended by special order of the court in its discretion or by written stipulation of the parties filed in the cause, or by oral stipulation evidenced by the record. The foregoing limitation of the time for taking testimony shall not apply to a cause proceeding ex parte consequent upon the entry of a decree pro confesso, or to a party against whom a decree pro con-fesso shall have been entered, but in such cases testimony may be taken any time.” Rule 3.13 Rules of Civil Procedure, 31 F.S.A.

On reading those rules together it is clear that the provision in rule 3.8 to the effect that a suit will not be deemed at issue until a pending motion to dismiss is ruled upon by the court, has reference to instances where answer has not been served and the ruling on the motion is to precede the requirement to answer. But that provision does not operate where the court avails itself of the procedure furnished by rule 1.11(d) of postponing ruling on the motion to dismiss until the final hearing or trial. This is so, because it is the practice, where ruling is reserved until trial on a motion to dismiss, for the court to fix the time for answer and to require answer to be served and filed. When answer is served, or in the case of a counterclaim where reply thereto is served, then after a further lapse of twenty days the equity suit becomes at issue, by force of an express provision of rule 3.8. Then rule 3.13 operates, limiting the time for taking testimony.

Here the answers were served and filed in March of 1955, and the plaintiff’s reply to the counterclaim was served and filed April 26, 1955. According to the applicable rules, the cause was at issue on May 16, 1955, twenty days after reply to counterclaim.

The final decree appealed from should be and hereby is affirmed.

Affirmed.

HORTON and PEARSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Nannie Lou COULTER, Appellant, v. A. J. COULTER, Appellee.
    No. A-51.
    District Court of Appeal of Florida. First District.
    Sept. 24, 1957.
    Clayton & Clayton, Deland, for appellant.
    No attorney for appellee.
   PER CURIAM.

On the appeal the decree of the circuit court is affirmed.

Appellant’s motion for allowance of attorney’s fees is denied.

STURGIS, C. J., WIGGINTON, J., and TAYLOR, A. J., concur.


author: HORTON, Judge.

text:
    Bertrand H. PERRY, Appellant, v. Jeanette H. Eyer PERRY, Appellee.
    No. 57-53.
    District Court of Appeal of Florida. Third District.
    Sept. 26, 1957.

      Hendricks & Hendricks, Miami, for appellant.
    Michael J. Zyne and Frank B. Byron, .Miami, for appellee.
   HORTON, Judge.

The appellant, plaintiff in the lower court, 'has appealed from a final decree denying his petition for divorce and granting the ■ appellee separate maintenance. The appellant has charged the appellee with extreme ■cruelty.

The main"gr¿úhds'upon which the appellant seeks a reversal of the decree of the lower court, are t (.1) That the lower court misconceived the weight and sufficiency of 'the evidence to support the appellant’s petition for divorce, and (2) That the lower ■court was in error in awarding the appel-lee separate maintenance, unconnected with • causes of divorce.'

The record, reflectshhat the parties were married IVlay A.8, 1955, and that .the' appeh 'lant’s action for divorce was begun January 27, 1956. The appellant complains that the • appellee abused and nagged him, called.him vile names, alienated him from his friends -and continually harassed him over trivial and inconsequential matters. He described ■occasions .to exemplify his charge of abusive and nagging conduct by the appellee, •contending that her course of conduct constituted mental torture and extreme cruelty; ■that this conduct rendered the discharge of his marital duties.impracticable 'and impair■ed his health.' Appellee denied these accusations and counterclaimed for separate ■maintenance, unconnected with causes of divorce. • .

The chancellor below heard and consid•ered the testimony, and had an opportunity to .see and observe the witnesses as they •testified and to evaluate the relative weight that should'-be accorded their testimony. In •the final dedre^e, the chancellor commented that in his opinion the parties would never 'live together. jiappily as husband and wife .again, but..con eluded, .that the appellant had failed to discharge the burden placed upon him by law of proving, by a preponderance of the evidence, the charge made against the appellee.

The court has carefully considered the entire record in this cause and has not overlooked the fact that the appellant and appellee lived together only a short period of time prior to the beginning of marital difficulties, and that the appellant is approximately twenty-one years older than the appellee. However, this court is not justified in substituting its judgment for that of the chancellor of the lower court in judging the weight, credibility and effect to he given to the testimony offered. The fact that this court sitting in the place of the chancellor might have arrived at a differ■ent conclusion, would not in itself warrant .disturbing the decree. As a general rule, an appellate court -will not disturb the decree of a lower court upon the evidence unless -it-clearly-"appears that the decree is against the manifest weight of the evidence .or that the lower court has failed-;j:p apply applicable principles of law. We are bound in our consideration of the rights of the parties by the showing that they have made on the record, and while .it -appears that the chancellor might have fo.und'otherwise than he did, the record supports the decree. It was the appellant’s burden to establish the allegations of his complaint by a preponderance of the evidence and the chancellor below, having concluded that the'appellant had failed to discharge this burden, we cannot say he was in error ;in dismissing the complaint. See Straughter v. Straughter, Fla.1956, 87 So.2d 499.

. It is- obvious from a .reading <pf the decree that the lower court failed to consider and apply an essential requirement of the law entitling the appellee wife to separate maintenance under section 65.10, Fla. Stat., F.S.A. This essential requirement is a showing, supported by adequate proof, ■that a. husband having the'ability .to' sup'port nevertheless fails to' support or withholds it.' The.view of ;thfe Supreme C;gui-t of Florida on this question, expressed in the case of Close v. Close, 158 Fla. 636, 29 So.2d 625, 626, appears to be controlling in this instance. In that case, the court said:

“In order for the suit to be maintained, the husband must be able to maintain or contribute to the support of his family and fail. If the husband at the time of the institution of the suit is not withholding support, commensurate with the financial condition and circumstances of the parties, this action is not maintainable.”

This has been affirmed in the recent case of Egland v. Egland, Fla.1957, 92 So.2d 647.

In consideration of the views hereinabove expressed, it follows that the portion of the decree denying the appellant a divorce is affirmed, and that portion awarding the ap-pellee separate maintenance is reversed.

Affirmed in part and reversed in part.

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


author: CARROLL, CHAS., Chief Judge.

text:
    Harry BARASH, Petitioner, v. THRIFTY SUPER MARKET and the Florida Industrial Commission, Respondents.
    No. 57-97.
    District Court of Appeal of Florida. Third District.
    Oct. 1, 1957.
    Rehearing Denied Oct. 21, 1957.
    Kelner & Lewis, Miami, for petitioner.
    Dixon, Dejarnette, Bradford & Williams, Miami, for Thrifty Super Market, and Burnis T. Coleman and Rodney Dur-rance, Tallahassee, for the Florida Industrial Commission, respondents.
   CARROLL, CHAS., Chief Judge.

We are asked to issue a writ of certiorari to review a decision of the Florida Industrial Commission affirming a deputy commissioner's order of January 4, 1957, denying a claim for disability compensation and medical benefits. Petitioner, a 72 year old man, was stricken with a heaft ailment diagnosed as a myocardial infarction, the discomfort of which began while he was doing some work involving lifting of egg crates weighing between SO and 70 pounds.

The deputy commissioner heard and considered the testimony of three doctors. On the question, important to this case, of whether the type of heart injury which this man appeared to have suffered could be related to his exertion, opinions of two of the doctors were affirmative. The opinion of the third doctor, which was negative on that point, was accepted and acted upon by the deputy commissioner. After stating certain other factual findings, his order included the following:

“In the light of this quite divergent medical opinion, and after considering the authorities cited and having further considered fully the factual situation in the instant case in the light of the testimony adduced, it is the further finding of the Deputy that:
“3. The myocardial infarction sustained by the claimant while in the employ of Thrifty Super Market was not an accident within the meaning of .the Compensation Act, but rather was the continuing and natural progression of arterioscleratic heart disease, unconnected with and not casually related to or induced by the act of claimant in lifting the crate of eggs on the day in question.”

It was argued, on behalf of petitioner, that the finding quoted above was not supportable on the evidence, and that the deputy commissioner was not at liberty to accept and follow the medical opinion of one doctor as opposed to the opinion of two other doctors. The weight and effect to be given findings of the deputy commissioner were explained by the Supreme Court in U. S. Casualty Co. v. Maryland Casualty Co., Fla.1951, 55 So.2d 741; City Ice & Fuel Division v. Smith, Fla.1952, 56 So.2d 329; Town of Crescent City v. Green, Fla. 1952, 59 So.2d 1; State Road Department of Florida v. Peper, Fla.1952, 62 So.2d 34; American Airmotive Corp. v. Moore, Fla.1952, 62 So.2d 37; Hamilton v. Cummer Sons Cypress Co., Fla.1954, 70 So.2d 554.

In the Hamilton case, the Supreme Court, speaking through Mr. Justice Terrell, stated at page 555:

“When the deputy commissioner made his findings of fact he was confronted with this conflicting evidence which as a whole is about as contradictory as comes before us. But the Deputy Commissioner, not this Court, must resolve such conflicts, and his findings will be sustained if there is ‘competent, substantial evidence, which accords with logic and reason, to sustain them.’ United States Cas. Co. v. Maryland Cas. Co., Fla., 55 So.2d 741, 745; Town of Crescent City v. Green, Fla., 59 So.2d 1. In the more recent case of Wilson v. McCoy Manufacturing Co., Fla., 69 So.2d 659, 665, this Court held that it would determine whether or not the proceedings accord with the essential requirements of law and if found to meet that test it would determine whether or not there is ‘ “substantial competent evidence * * legally sufficient to support the findings * * ’ We further held in that case that we could not ‘gauge the “probative force of conflicting testimony” but [would] confine our examination to the nature of the evidence relied upon to sustain the order’.”

Specifically, as to findings based on conflicting evidence presented by medical experts, the Supreme Court, in Martin v. Board of County Commissioners, Fla.1955, 79 So.2d 513, 515, had this to say:

“We have determined that the substantial evidence rule also applies to medical testimony given in workmen’s compensation cases. In this regard in the case of United States Casualty Co. v. Maryland Casualty Co., Fla., 55 So.2d 741, 745, we stated:
‘We have not failed to consider the suggestion that many' workmen’s compensation cases turn upon a .proper evaluation of medical testimony. However, in those cases the “substantial evidence” rule should not be disregarded because the Deputy Commissioner may observe leads, not apparent upon an examination of the transcript of the evidence, which point unerringly to the correct findings of facts. After all, doctors are human. They may be appraised as witnesses and their testimony evaluated, in much the same manner as other witnesses and their testimony are judged and estimated. Doctors vary in degree of ability, as do lawyers, scientists, executives, educators, clergymen and other professional as well as everyday business men. The fact-finding arbiter is usually in a better position than the reviewing body to judge the ability, experience and reputation of the various so-called expert witnesses who appear personally before him and to determine the weight which should be given their testimony. One doctor may have a long list of degrees behind his name, while another has but few. However, the latter might, by his demeanor on the witness stand and by his freedom and clarity of expression, disclose a familiarity with the subject under discussion which far exceeds that of the obstensibly better educated theorist. We are of the opinion the “substantial evidence” rule should be invoked in all cases. Even in cases which must be resolved upon a true appraisal of testimony of medical experts, the deputy commissioner’s findings of facts should be upheld unless there is no competent, substantial evidence, which accords with logic and reason, to sustain them.’ ” See also, Foxworth v. Florida Industrial Commission, Fla.1956, 86 So.2d 147, 152.

Our examination of this record, including the reading of the testimony given by the doctors, results in the con-clüsion that there was direct and substantial evidence to support the finding and result reached by the deputy commissioner; that it was his duty to resolve-conflicts in evidence; and that petitioner has failed to make out a case entitling him, to relief in this proceeding.

The application for issuance of a writ of certiorari is denied and the petition dismissed.

It is so ordered.

HORTON and PEARSON, JJ., concur.


author: WIGGINTON, Judge.

text:
    CAROLINA LUMBER COMPANY, a corporation, Appellant, v. William W. DANIEL and Rosiland Daniel, his wife, Appellees.
    No. A-4.
    District Court of Appeal. First District.
    Sept. 26, 1957.

      Latham & Mizell, Jacksonville, for appellant.
    Cleveland & Goodfriend, Jacksonville, for appellees.
   WIGGINTON, Judge.

This is an appeal from a final decree entered by the Circuit Court of Duval County dismissing a complaint seeking to foreclose an alleged materialman’s lien against property of appellees. The appellant, as plaintiff in the trial court, grounded its claim for relief on the contention that it sold and delivered certain materials to a contractor who was acting as agent for the appellee owners. There is no question but that the materials so delivered were incorporated in the home owned by the appellees, the cost of which was never paid to appellant. The appellees defended the action on the ground that they had a firm lump sum contract with the contractor to remodel and make certain repairs to their home. It was their position that the contractor was not acting as their agent in the purchase of the materials from appellant, but that such materials were sold to the contractor on his own credit and for his individual account. The single issue presented was whether the contractor was the agent of the owners, or was he an independent contractor for whose debts the owners were not liable.

The case was referred to a special master for the taking of testimony and filing of a report containing his findings and conclusions. After considering the evidence and testimony submitted by the respective parties, the master concluded as a matter of law that the contractor was not the agent or employee of appellees, and that all payments made by appellees to the contractor were proper payments under the Mechanics’ Lien Law, F.S.A. § 84.01 et seq. He further found that the contractor had received from the appellees all sums to which he was entitled under his contract, and that appellant never acquired a lien against the property of .appellees. Based upon these findings the master recommended that the complaint be ■dismissed. On final hearing the Chancellor ■overruled exceptions filed by appellants to the Master’s report, and entered a decree •confirming the report and dismissing the ■complaint.

We have examined the record and briefs filed in this cause and heard the oral arguments of counsel for the respective parties. It is apparent that the master based his findings and conclusions upon conflicting ■evidence. Appellant points to certain testimony introduced at the hearing and to certain findings of fact made by the master in his report, and asks this Court to accept such ■evidence and findings as conclusive proof that the relationship of agency existed between the contractor and the owners. This» •evidence and findings standing alone would perhaps justify such a conclusion. A review of the entire record, however, clearly reveals other evidence which the master accepted and on which he based other findings ■of fact which negative the conclusion that the relationship of agency existed between •the parties in question. It was upon the 'latter evidence and findings that the master ■correctly concluded as a matter of law that the contractor was not the agent of the owners, and as a result, no materialman’s lien ■was acquired by appellant.

The findings of the master based ■upon conflicting evidence will not be disturbed unless clearly shown to be erroneous. The Chancellor, acting in the exercise of the discretion properly vested in 'him, was justified in confirming the mas-cordance with the master’s recommenda-ter’s report and entering the decree in actions.

When the error assigned questions the sufficiency of the evidence to support the judgment or decree appealed from, the test is whether or not it can be said, after a careful review of the record in a light most favorable to the prevailing party, there is substantial evidence supporting the findings and conclusions upon which the decree or judgment is based. If the record reveals the existence of such evidence, it must be held that the disputed issues of fact were properly resolved and the judgment or decree of the trial court will be affirmed.

Appellate courts are not constituted for the purpose of relitigating issues of fact already decided by the trial court. It is not the province of an appellate court to ¡-evaluate conflicting evidence introduced at the trial or to say what it would have done had it been sitting as a trier of the facts. This is the exclusive function of the trial court. In such cases it is the duty* of an appellate court to determine whether the trial judge or chancellor made any ruling or conducted the proceedings in a manner contrary to established principles of law to the prejudice of the appellant. Unless error can be clearly demonstrated, the judgment of the trial court will not be disturbed on appeal.

'No error having been made to appear, it is the judgment of this court that the decree appealed from dismissing the complaint be and it is hereby affirmed.

STURGIS, C. J., and TAYLOR, A. J„ concur.

      . Harmon v. Harmon, Fla.1949, 40 So.2d 209.

      . E. g., Eldridge v. Eldridge, 153 Fla. 873, 16 So.2d 163; Meola v. Sparks, 138 Fla. 364, 189 So. 408.

      . E. g., Povia v. Melvin, Fla., 66 So.2d 494; Exchange Nat. Bank of Winter Haven v. Smith, 148 Fla. 473, 4 So.2d 675.

      . Loew v. Friedman, Fla.1955, 80 So.2d 672.


text:
    PRATHER-JOHNSTON, Inc., a Corporation, Appellant, v. UNIVERSAL MACHINERY COMPANY, Inc., a Corporation, Charles M. Forde, Jr., Charles Robert Wood and Frederick Jones, Appellees.
    Supreme Court of Florida, Special Division A.
    June 19, 1957.
    Rehearing Denied Oct. 7, 1957.
   PER CURIAM.

Affirmed.


text:
    A. E. BECK and Ollie R. Beck, Husband and Wife, Appellants, v. CITY OF SARASOTA, a Municipal Corporation, Appellee. Katie L. CHRISTIE, Appellant, v. CITY OF SARASOTA, a Municipal Corporation, Appellee. Joseph L. CUMMINGS and Susie M. Cummings, Husband and Wife, Appellants, v. CITY OF SARASOTA, a Municipal Corporation, Appellee. Harry W. SCHAEFER and Jane C. Schaefer, Husband and Wife, Appellants, v. CITY OF SARASOTA, a Municipal Corporation, Appellee. Cecilia L. MILLER, Appellant, v. CITY OF SARASOTA, a Municipal Corporation, Appellee. Helen GANDY, a Widow, Appellant, v. CITY OF SARASOTA, a Municipal Corporation, Appellee. Earl N. RAWLS and Irene B. Rawls, Husband and Wife, Appellants, v. CITY OF SARASOTA, a Municipal Corporation, Appellee. Kenneth G. DILLER et ux., Appellants, v. CITY OF SARASOTA, a Municipal Corporation, Appellee. Ernest SELPH and Ruth P. Selph, Husband and Wife, Appellants, v. CITY OF SARASOTA, a Municipal Corporation, Appellee.
    Supreme Court of Florida.
    Sept. 18, 1957.
   PER CURIAM.

Affirmed.


author: PER CURIAM.'

text:
    James Boots SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 3.
    District Court of Appeal of Florida. Second District.
    Sept. 18, 1957.
    Horrell & Bourland, Orlando, for appellant.
    Richard W. Ervin, Atty. Gen. and George R. Georgieff, Asst. Atty. Gen., for appellee.
   PER CURIAM.'

Affirmed.

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


text:
    Shirley Leess BARTLETT (Formerly Shirley Leess) Joined by and with her Husband and Next Friend, James S. Bartlett, Appellants, v. Samuel LEESS, Appellee.
    No. 57-43.
    District Court of Appeal of Florida. Third District.
    Sept. 24, 1957.
    Ives & Kirk, Miami, for appellants.
    Johnson, Levenson & Perry, Miami, for appellee.
   PER CURIAM.

Affirmed.

HORTON and PEARSON, JJ., and LOPEZ, Associate Judge, concur.


author: PER CURIAM. .

text:
    Fred B. ROBERTS and Velma J. Roberts, Trading and Doing Business as Twenty Seventh Avenue Lumber Co., Appellants, v. John A. CAMPBELL, Jr., and Nellie Campbell, his Wife, and Everett W. Martin & Son, Inc., a Florida Corporation, Appellees.
    No. 57-112.
    District Court of Appeal of Florida. Third District.
    Sept. 24, 1957.
    Franks & Gordon, Miami, for appellants.
    Eaton & Achor and Starr Horton, Miami, for appellees.
   PER CURIAM. .

Affirmed.

■ CARROLL, CHAS., C. J., PEARSON, J., and LOPEZ, Associate Judge, concur.


author: PER CURIAM. DREW, Justice HOBSON, Justice

text:
    TROPICAL PARK, Inc., a Florida corporation, and Maurine J. Hirshstein, Petitioners, v. C. H. RATLIFF, John R. Ring, J. D. Johnson, C. Sweet Smith and Warren H. Toole, Jr., as and constituting the Florida State Racing Commission, Respondents.
    Supreme Court of Florida.
    Aug. 14, 1957.
    On Rehearing Oct. 4, 1957.
    Walter E. Dence, Miami, for petitioner Maurice J. Hirshstein.
    Worley, Gautier & Dawes, Miami, for petitioner Tropical Park, Inc.
    Richard W. Ervin, Atty. Gen., George E. Owen, Asst. Atty. Gen., George F. Gille-land, Atty., State Racing Commission, Miami, Richard E. Gerstein, State .Atty., 11th Judicial Circuit, and Leonard R. Mc-Millen, Administrative Assistant, 11th Judicial Circuit, Miami, for respondents.
   On Rehearing

PER CURIAM.

Upon reconsideration on rehearing granted, we adhere to the judgment previously entered. The special concurring opinion by Mr. Justice Hobson sets forth the history pf the litigation and the points involved on the appeal. No further discussion is needed as to charges one, two, three, five, six and eight, since it clearly appears from what was said in such opinion that the Commission’s order, insofar as it was predicated upon these charges and the evidence submitted, cannot be sustained.

As to charge seven, it-appears that such was predicated upon a violation by Mr. Silberman, president of Tropical Park, Inc., of Rule 386(B) of the Commission, which reads as follows: “The Association is responsible to see that no unauthorized person used their telephones during the period from thirty (30) minutes prior to the first race to fifteen (15) minutes after the last race of the day.” Mr. Silberman admitted that he' állowed' employees and bona fide patrons bf the track to use his private telephone at any time, and thus there was a technical violation of the Commission’s rule. Section 550.07, Fla.Stat.1955, F.S.A., authorizes the Commission to revoke a racing permit or license only “upon the willful violation of any of the provisions of this chapter, or of any rule or regulation issued by the commission under the provisions of this chapter, by the licensee.” (Emphasis added.) The words “or of any rule or regulation issued by the commission under the provisions of this chapter” were added to the statute by Ch. 17276, Acts of 1935. Prior to the amendment, this court held that the word “willful” as used in the statute meant “knowingly and of a stubborn purpose, with evil intent, without justificable (sic) excuse.” Six Mile Creek Kennel Club, Inc., v. State Racing Commission, 1935, 119 Fla. 142, 161 So. 58, 59.

. Apparently conceding that there was no direct evidence to show that Mr. Silber-nian’s violation of the rule was “willful” as above defined, the Commission contends that “the manner in which the telephone calls were made, the place called, the person called, the person doing the calling, the time of the calls and duration of these calls concerning horse racing * * * has imputed the knowledge as to the illegal use to the petitioner.” If by “illegal use” the Commission meant a use for an illegal purpose, the answer to this contention is contained in the opinion by Mr. Justice Hobson in his discussion of charges six and eight. If, on the other hand, by “illegal use” the Commission intended to refer to a use by an unauthorized person or persons, we agree that the evidence was sufficient to show a technical violation of Rule 386(B) by Mr. Silberman.

So the question now before us narrows down to whether or not the technical violation of the above-mentioned rule is sufficient to warrant the revocation of petitioner’s license. In this connection the Commission contends that “[t]he writ of certiorari may not be used to determine the weight of the evidence or the sufficiency of the evidence where there is some evidence supporting the judgment complained of, and the Supreme Court will not examine the evidence to determine whether it is of Sufficient probative force to sustain the verdict * * While administrative agencies are given broad latitude in the performance of their duties, we cannot accept a contention that their decisions in the exercise of a quasi-judicial function are beyond the reach of the judicial process, regardless of how arbitrary or unreasonable they might be. To do so would be tantamount to an abdication of the power and responsibility reposed in the courts by Sec. 4 of the Declaration of Rights of our Constitution, F.S.A., in the following language:

“All courts in this State shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and right and justice shall be administered without sale, denial or delay.”

The rule as to judicial review of administrative decisions is well stated, and the statement supported by numerous decisions, in 42 Am.Jur., Public Administrative Law, Sec. 209, p. 610 et scq., as follows:

“In general, in the absence of valid statutory provisions or other factors affecting the scope and extent of judicial review, administrative determinations will not be interfered with by the courts unless, but will be interfered with where, the determination is * * * without or in excess of the statutory powers and jurisdiction of the administrative authority, the determination is an exercise of power so arbitrary or unreasonable as virtually to transcend the authority conferred, or is otherwise an abuse of discretion, * *

This is the rule in Florida. See State ex rel. Williams v. Whitman, 1934, 116 Fla. 196, 156 So. 705, 95 A.L.R. 1416; Six Mile Creek Kennel Club, Inc., v. State Racing Commission, supra, 161 So. 58; Cohen v. Schott, Fla.1950, 48 So.2d 154, 156; cf. Schott v. Brooks, Fla.1952, 56 So.2d 456.

In Cohen v. Schott, supra, this court reviewed a decision of the State Beverage Director revoking a beverage license of the licensee because of an admitted violation of the Beverage Act prohibiting the sale of intoxicating beverages to minors. In holding that the Beverage Director was not justified, under the facts, in so doing, this court speaking through Mr. Justice Terrell said:

“The law makes the sale of intoxicating beverages a legitimate business, imposes a high tax for the privilege of engaging in it and exacts a high degree of rectitude of those who do so. An inquisition into a charge of violating the conditions of one’s license is in no sense criminal but equitable in nature and should be adjudicated ■on equitable principals. (Emphasis added.)
“In a collection of memorabilia of early Western history there was discovered the record of the trial of a man for stealing a pair of boots. The boots were indicated as exhibit A. The verdict of the jury was not guilty — but with the recommendation that the defendant return the boots. We are convinced that these primitive jurors had a very discriminating sense of justice that is too fast being relegated to the limbo of the law by technical niceties. I am often made to feel that a better brand of Justice would follow if we cultivated it more.”

The facts with which we are here concerned are very similar to those in Cohen v. Schott, supra. There was a technical violation of the Commission’s Rule 386(B) and undoubtedly some degree of negligence on the part of petitioner’s president for which he should be censured and reprimanded. But it must be remembered that the racing industry, like the whiskey industry, is a legitimate business in this state in which millions of dollars have been invested by the petitioner and other owners. Whether or not we approve of pari-mutuel betting at race tracks, we'must accept the fact that the state sovereignty has long since approved it and has laid heavy taxes upon it, which are a substantial part of the tax economy of this state. And to hold that the license of the petitioner could be revoked for this type of dereliction would inculcate into the racing industry an instability of ownership which, in our opinion, would not best serve the public interest. It is of passing interest, although inapplicable in this case, to note that the 1957 Legislature enacted Ch. 57-180, Acts of 1957, F.S.A. §§ 550.02(4), 550.04, 550.06, 550.07, authorizing the Commission to impose a civil penalty against a licensee for violation of its rules or the statute. This demonstrates that the legislative body recognized that there may be many rule violations where the penalty of revocation would be harsh and oppressive and a civil penalty more in keeping as a penalty for the infraction.

Where, as here, there is no evidence that the negligent supervision of the telephone resulted in any illegal result, it would indeed be harsh and inequitable to impose the extreme penalty of revocation upon petitioner and, in our opinion, would be so arbitrary and unreasonable as virtually to transcend the authority conferred upon the Commission. We hold, therefore, that the order of revocation complained of cannot be predicated upon charge seven; and for this reason, and the reasons stated in the opinion by Mr. Justice Hobson as to the other charges, we adhere to our former judgment. Accordingly, the order here reviewed is quashed, with directions that consideration be given to the imposition of an order of censure or reprimand.

It is so ordered.

TERRELL, C. J., ROBERTS and O’CONNELL, JJ., and ALLEN, District Judge, concur.

HOBSON and DREW, JJ., concur specially.

THOMAS, J., dissents.

DREW, Justice

(concurring specially).

I agree with the foregoing opinion and judgment, but with the observation that it concerns only the situation revealed by the record in this cause. Although the misuse of the telephone was going on all or most of the racing season, no attempt was made to advise the track officials of the violation or demand a cessation of such activities. Had that been done and had the responsible officials continued to violate the Rule, I would be inclined to the view that such would be “willful” within the meaning we have given the word here. I am unwilling to say — under facts different from those here — that a license may not be lawfully revoked by the Commission. Moreover, I think it pertinent to observe in our mention of Chapter 57-180, Acts of 1957, F.S.A. §§ 550.02(4), 550.04, 550.06, 550.07, we are in no way expressing any view as to the constitutionality or validity of the 1957 Act.

HOBSON, Justice

(concurring specially) .

The petitioners seek a writ of certiorari to have this court review an order entered by the Florida State Racing Commission wherein and whereby said Commission revoked the license theretofore issued to Tropical Park, Inc., to operate a horse race track and carry on pari-mutuel wagering as authorized by law. The Commission further ordered “that Mr. Maurice J. Hirshstein be denied the privilege of attending any pari-mutuel operation in this state.”

Maurice J. Hirshstein challenges this order insofar as it affects him individually upon the ground that he neither received a notice nor an opportunity to be heard. It is true that he was a witness in the hearing in connection with the matter of the proposed revocation of a racing permit which had been issued to the petitioner Tropical Park, Inc. He did not, however, receive a notice that any “proposed action” against him was contemplated nor did he have a hearing pursuant to such a notice.

In the case of Hickey v. Wells, Fla., 91 So.2d 206, 208, we quoted with approval from Schwartz, American Administrative Law, at page 75, as follows:

“All that should be required of an administrative notice is that the information given be ‘clear enough to apprise the informed party of the proposed action and the fact on which it hinges * * * ’ ”. (Italics supplied.)

This record fails to disclose any notice of any “proposed action” against Hirsh-stein. Indeed, it is obvious that no notice of any type was directed to him. The only notice disclosed by this record reads:

“In the Matter of the Revocation of a Racing Permit Heretofore Issued to Tropical Park, Inc.
“Notice to Show Cause
“Whereas, sufficient evidence has been presented to the Florida State Racing Commission which, if true, would warrant said commission to revoke a permit heretofore issued to you under the provisions of Chapter 550, Florida Statutes [F.S.A.], to conduct a race track in the State of Florida where pari-mutuel wagering is authorized in that you have by and through one of your officers, to wit: the president, Saul Silberman, done the following:
"1. That you did during the race meeting of 1956-57 between November 27, 1946 and January 16, 1957, both dates inclusive, have an employee in your employ connected with horse racing to wit: one Maurice J. Hirshstein, who knowingly associated with persons commonly known as bookmakers or criminals, contrary to Section 550.181, Florida Statutes [F.S.Á.].
“2. That you did employ the said Maurice J. Hirshstein during the 1956-57 race meeting without requiring the said Maurice J. Hirshstein to secure an occupational license and pay the tax as required by Section SS0.10 Florida Statutes [F.S.A.], and Rule 341 of the Florida State Racing Commission Rules and Regulations of Horse Racing and contrary to Rule 345 of the said Rules and Regulations of Horse Racing.
“3. That you did employ the said Maurice J. Hirshstein during the race meeting of 1956-57 without requiring the said Maurice J. Hirshstein to furnish the Florida State Racing Commission a copy of his fingerprints and photograph as required by Sub-Section 2 of Section 550.181, Florida Statutes [F.S.A.] and Rule 350 of the Florida State Racing Commission Rules and Regulations of Horse Racing.
“4. That one of your officers, to wit: the President, Saul Silberman did, while being the president of a corporation, holding a racing permit in the State of Florida, knowingly associate during the 1956-57 race meeting at Tropical Park with persons commonly known as bookmakers or criminals.
“5. That an officer of the permit holder to wit: Saul Silberman, President, unlawfully and without 'authority did make large bets or wagers with the mutuel department at Tropical Park, Inc., during the race meeting of 1956-57 without depositing any money for such bets with the mutuel department, but in fact made said bets ‘on credit’ contrary to Section 550.16, Florida Statutes [F.S.A.],
“6. That you, the said permit holder, did by and through one of your officers, to wit: Saul Silberman, President, knowingly permit and allow the telephones, of the corporation and license holder, to be used in violation of Section 550.35, Florida Statutes [F.S.A.], which is to say knowingly permitted said telephones to be used for the purpose of communicating to another, information relating to horse racing from a race track in the State of Florida, to wit: Tropical Park, between the period of time beginning one (1) hour prior to the first race of a given day and ending thirty (30) minutes after the posting of the official results of each race as to that particular race and that said communication was permitted during the race meeting of the 1956-57 season.
“7. That you, the said permit holder, did by and through one of your officers, to wit: Saul Silberman, the President, violate Rule 386 of the Rules and Regulations of Horse Racing as adopted by the Florida State Racing Commission in that he permitted the telephones of the permit holder to be used by unauthorized persons during the period from thirty (30) minutes prior to the first race to fifteen (15) minutes after the last race of the day, during the 1956-57 race meeting.
“8. That the licensee, Tropical Park, Inc., did knowingly by and through one of your officers, to wit: Saul Silberman, the President and an employee, Maurice J. Hirshstein, transmit racing information by means of the telephones of the permit holder, Tropical Park, Inc., from its private office and the switchboard of the corporation at Tropical Park, located in Dade County, Florida, during the racing hours, horse racing information to another person, to wit: one Phillip Gerson, a convicted bookmaker and gambler when the said information was known by the communicants to be intended to be used for illegal gambling purposes and in the furtherance of gambling and that the said transmission of racing information was carried on between November 27, 1956 and January 16, 1957.
“Wherefore, you, the said Tropical Park, Inc., the permit holder by and through your officers and directors will appear before the Florida State Racing Commission on the Top Floor of the Biscayne Terrace Hotel, 340 Biscayne Boulevard, Miami, Florida, at 9:00 A.M. on February 25, 1957 and show cause, if you have any, why the permit and license, heretofore issued to you in this state to operate a horse race track and carry on pari-mutuel wagering as authorized by law should not be revoked for the foregoing reasons.
“On said date, all interested parties will be given an opportunity to be heard and may be represented by counsel, if desired. You and each of you may govern yourself accordingly.
“Done and ordered at Miami, Dade County, Florida
“This 19th day of February, A.D. 19S7.
“Florida State Racing Commission
“s/ C. H. Ratliff, Chairman
“s/ John R. Ring Secretary.”

The notice does charge Tropical Park, Inc., with knowledge of conduct of Maurice J. Hirshstein which the Commission indicated, if true, would justify revocation of the racing permit which had been issued to Tropical Park, Inc. This is wholly insufficient to constitute a proper notice to Hirshstein of any “proposed action” against him.

We therefore conclude that certiorari must be granted to the challenged order insofar as it directed “that Mr. Maurice J. Hirshstein be denied the privilege of attending any pari-mutuel operation in this state”, and that part of said order should be quashed.

In this connection we hold only, as we did in La Gorce Country Club v. Cerami, Fla., 74 So.2d 95, that Hirshstein did not receive notice and an opportunity to be heard to which he was entitled. We do not mean to hold that the Florida Racing Commission does not have the power under Sec. 817.37(4), Sec. 849.24(4) and (5), or other rules or statutes, to eject an undesirable person upon information which establishes “probable cause” without first affording him a hearing. The order in this case denying Hirshstein “the privilege of attending any pari-mutuel operation in this state” was entered pursuant to a putative hearing ordered by the Commission without proper notice of the “proposed action” and an opportunity to be heard. Since this procedure was adopted by the Commission, Hirshstein still has the right to a lawful hearing upon the merits.

We now turn to the opinion and order of the Florida State Racing Commission which is challenged by the petitioner Tropical Park, Inc. We need deal only with charges two, three, five, six, seven and eight, because they are the charges upon which the order of the Florida State Racing Commission is predicated.

Respondents contend that Tropical Park, Inc., has not demonstrated its rights to the issuance of a writ of certiorari because it has failed to establish that respondents did not adhere to the essential requirements of the law in conducting the administrative hearing in this case and in reaching their decision revoking the license of the petitioner. However, respondents admit that certiorari “is the correct remedy to review the action of an administrative agency or board exercising quasi-judicial functions; Neivert v. Evans, Fla., 82 So.2d 599, and that in certiorari proceedings to review an order of an administrative body the court may inspect the record of the proceedings before the administrative body to ascertain whether that body proceeded in accordance with authority conferred on it by the controlling law. The writ of certiorari may not be used to determine the weight of the evidence or the sufficiency of the evidence where there is some evidence supporting the judgment complained of, and the Supreme Court will not examine the evidence to determine whether it is of sufficient probative force to sustain the verdict; Seven Seas v. Buckholtz, 121 Fla. 205, 163 So. 567; City of Jacksonville Beach v. Waybright, 130 Fla.525, 178 So. 401.”

The only criticism that we have of respondents’ admission is in connection with the words “some evidence”. The true rule is that this court will not, on certiorari, determine the weight of the evidence or its sufficiency where there is competent, substantial evidence supporting the challenged judgment.

Petitioner, Tropical Park, Inc., admitted that it had not required Hirshstein to secure a license or to furnish his fingerprints and photograph to the Florida Racing Commission. The explanation given for such failure was that it was not thought that Mr. Hirshstein, as a public relations representative, was required to obtain a license or furnish a photograph and be fingerprinted any more than attorneys, accountants or other such employees. The Racing Commission obviously determined that this was not the proper construction of the law under the evidence in this case. We agree with this determination, but we do not concur in the conclusion that such construction was spurious and that Tropical Park, Inc., wilfully, that is to say “knowingly and of stubborn purpose, with evil intent, without justifiable excuse”, failed to require Hirshstein to secure a license or furnish the Racing Commission with his fingerprints and a photograph. See Six Mile Creek Kennel Club, Inc., et al v. State Racing Commission, 119 Fla. 142, 161 So. 58. Undoubtedly, a reprimand would have been in order for these infractions but the evidence as a whole has the effect of putting the petitioner, Tropical Park, Inc., out of a business permitted by law and which entails an investment of several million dollars. Particularly is this so in view of the fact that charges two and three were what might be called eleventh hour charges and no fair opportunity was ever afforded Tropical Park, Inc., to comply with the law after a determination that it should so do. The record discloses that throughout the 1956-57 race meeting, Mr. Hirshstein’s daily activities were open and could have been observed by representatives of the Florida Racing Commission, yet no suggestion until charges two and three were filed was ever made that Tropical Park, Inc., had failed to comply with the law in connection with Hirshstein’s failure to secure a license and to furnish his fingerprints and a photograph to the Commission.

It was established under charge five that Mr. Silberman, president of Tropical Park, Inc., made bets throughout the 1956-57 race meeting on what respondents call “credit”. Actually the evidence shows that the bets made by Mr. Silberman were made through the pari-mutuel machines and the only credit connected therewith was that which Tropical Park, Inc., extended to Mr. Silberman. The tracks made the payments regularly to the State of Florida of its share of the money to which the state was entitled, and the betting public was. not adversely affected.

Respondents contend that such type of credit betting is illegal and contrary to Florida Statutes 1955, § 550.16(1), F.S.A., which reads:

“The sale of tickets or other evidence showing an interest in or a contribution to a pari-mutuel pool is hereby permitted within the enclosure of any horse race track and dog race track licensed and conducted under this law, but not elsewhere in this state except as is provided in chapter 551. The sale and purchase of tickets or other evidence showing an interest in or a contribution to pari-mutuel pools in this state shall be under the supervision of the state racing commission and shall be done subject to such regulations as the state racing commission shall from time to time prescribe.”

An analytical examination of Sec. 550.16 (1) and other sections of our statute dealing with pari-mutuel pools convinces us that the type of “credit” betting indulged in by Mr. Silberman is illegal. Undoubtedly it was the legislative intent that these pari-mutuel pools be made up of cash contributions. We believe, however, that the existing provisions of the applicable Florida statute are not sufficiently clear and definite to apprise a layman of the fact that “credit” betting of the type here under consideration is prohibited and that the severe penalty of revocation may be invoked if such betting is engaged in by anyone who is in a position to be allowed such practice or privilege. We hold, therefore, under the circumstances, and since no one is shown to have been harmed, that the revocation order should not be upheld insofar as it is predicated upon charge number 5. There can be no doubt that a rule or regulation clearly prohibiting and making illegal “credit” betting could and should be prescribed.

The testimony of Mr. Silberman himself shows that he was at least technically, if not wilfully, guilty of charge number seven. Rule 386 promulgated by the Commission delineates the responsibility of the track for guarding use of its telephones. The unsupervised, unrestricted use of telephones at a race track is indeed a serious matter. Silberman attempted to explain his dereliction and avoid its possible consequences by stating that his laxity in this connection was due to his desire to create and retain the good will of the patrons of his track. It i$ true that good will might thus be engendered in certain quarters. However, it would be more apt to be created among unsavory and undesirable, than among respectable race track habitues. No person, if he be of honest purpose, could reasonably object or take offense at supervision of his use of a track telephone exercised as required by law in the interest of the public. We are constrained, only because this is apparently a first offense and was not wilful in the sense of being “of stubborn purpose” and with “evil intent”, to- hold. that the extremely harsh penalty of revocation is too severe to be sustained based upon charge number seven. In this connection, we deem, it appropriate to observe that the law grants no power to the Commission except the power to revoke a permit for violations of our statute, and certainly the Commission should be commended for its zeal in attempting to keep clean the operation of pari-mutuel betting at race tracks in this state.

The remaining charges six and eight are the charges to which serious consideration must be given. At the threshold it should be observed that the evidence in support of these charges is entirely circumstantial in character. There is no direct testimony to the effect that Hirshstein was guilty of any violation of a rule or of the law, and certainly there is no showing by positive testimony that Mr. Silberman or any other official of Tropical Park, Inc., knew of any such alleged violation. Respondents say that the petitioner, Tropical Park, Inc., indulged in the erroneous assumption “that this was a criminal proceeding and that the evidence had to meet the test for criminal conviction”. Respondents then make the bald assertion that “such is clearly not the rule in cases of this nature”. Petitioner, on the other hand, states that in a case of this character “the evidence must be so clear, strong and unequivocal as to remove from the minds of the members of the Board every reasonable doubt as to the guilt of the petitioner as charged”. This is a quotation from an opinion and order entered by the Honorable Charles A. Carroll, Circuí Judge, in the case of Hickey v. Wells, which was quoted in an opinion by Mr. Chief Justice Drew in the case of Hickey v. Wells, Fla., 91 So.2d 206. See also State ex rel. Tullidge v. Driskell, 117 Fla. 717, 158 So. 277, 279. We did not, in the Hickey y. Wells case, supra, approve or disapprove this rule in connection with evidence in a case before an administrative board with power to revoke a license or permit. The rule, of course, has reference to the consideration of direct or positive testimony. It is obviously more nearly a twin brother of the criminal rule with reference to the evaluation of conflicting testimony- than it is of the civil rule and it parallels the rule which is applicable to cases wherein fraud is charged. It might be said that charges such as those made in the instant case are analogous to charges of fraud, but we need not, and therefore do not, adopt or reject the rule enunciated by Judge Carroll in the Hickey case. This is true because those charges which were not admitted by way of confession and avoidance (charges six and eight) are contended to have been sustained upon circumstantial evidence only.

Furthermore, we do not deem it necessary to determine whether the criminal or the civil rule with reference to circumstantial evidence should be invoked in connection with cases of this character because the circumstantial evidence in this case does not meet the test prescribed by either.

Mr. John Loome, who is characterized in the brief of respondents as a “racing expert”, testified that it was just as logical to believe that Hirshstein was giving out racing information as it was to believe that he was receiving it.

Mr. Madalla, a former F.B.I. agent, and who also was qualified as an expert on -racing, testified in response to a hypothetical question which plumbed the evidence in this case that he could not say, but could only guess that racing information was being transmitted by Mr. Hirsh-stein via long distance telephone.

Under the civil rule with reference to circumstantial evidence, it is necessary that the inference of guilt of charges such as are made herein must preponderate over all contrary inferences. Evidence which gives rise to an inference of guilt which is just as “logical” as an inference of innocence does not even meet the test prescribed by the civil rule. It certainly does not meet the test of the criminal rule with reference to such evidence because under that rule the inference of guilt must be to the exclusion of every reasonable inference of innocence.

We have thus far dealt with the circumstantial evidence in connection with the conduct or activities of Mr. Hirshstein. We npw turn our attention to this same circumstantial evidence in connection with the charges against Tropical Park, Inc. Had our conclusion been different in connection with the circumstantial evidence concerning Mr. Hirshstein’s activities or conduct, it would still have been necessary to determine whether Tropical Park, Inc., should be found guilty by further inference from the circumstantial evidence herein, that it had wilfully violated any of the provisions of the statute.

Assuming that we had heretofore held! the circumstantial evidence sufficient to justify a finding under the civil rule with reference to such evidence, that Mr. Hirsh-stein had violated the law, it is not permissible to pyramid upon such inference the further inference that Mr. Silbermani or any other official of Tropical Park, Inc.,, knew of his alleged conduct and wilfully permitted it. The only justification for pyramiding one inference gleaned from circumstantial evidence upon another is in cases where the first inference deduced from circumstantial evidence meets the test of the criminal rule with reference to such evidence. Voelker v. Combined Insurance Co. of America, Fla., 73 So.2d 403. It is-clear that the inference from the circumstantial evidence in this case with reference to Hirshstein’s conduct does not under any stretch of the imagination meet the test of the criminal rule with reference to such evidence. We know of no rule where circumstantial evidence is relied upon which permits guess predicated upon guess or conjecture upon conjecture.

We quote with approval from Volume 1, Florida Jurisprudence, Administrative Law, Sec. 120, wherein it is stated,

“As in court proceedings, the burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. In an administrative proceeding for the removal of a police officer on a charge of taking a bribe the police officer is assumed . to be innocent until he is proved guilty and his guilt cannot be based on gtiess-work aitd suspicion(Emphasis supplied.)

See also State ex rel. Hawkins v. McCall, 158 Fla. 655, 29 So.2d 739.

For the reasons stated and the additional reasons set forth in the majority per curiam opinion on rehearing, I adhere to the original reversal and agree to the- opinion and judgment of thé majority.

      . For special concurring opinion by Mr. Justice Hobson see 97 So.2d 172.


author: ALLEN, Judge.

text:
    STATE of Florida, Appellant, v. George FABIAN, Appellee.
    No. 152.
    District Court of Appeal of Florida. Second District.
    Nov. 20, 1957.
    Richard W. Ervin, Atty. Gen., Jos. P. Manners and Richard J. Brooks, Asst. Attys. Gen., for appellant.
    Branch & Goff, Taitón A. Branch, Tampa, for appellee.
   ALLEN, Judge.

This is an appeal from an order of the Judge of the Criminal Court of Record in and for Hillsborough County, quashing an information which charged George Fabian with perjury. The State appeals, the parties being referred to herein as they stood before the trial court.

The information filed in the cause below read as follows:

“Case No. 44241
“In The Criminal Court of Record of The County of Hillsborough and State of Florida.
“The 6th day of Inly, June Term, 1956.
“The State of Florida v. George Fabian
Perjury
“In the 'Name and By The Authority of The State of Florida:
“Paul B. Johnson, County Solicitor for the County of Hillsborough, State of Florida, under oath, Information makes : That on the 9th day of January, A. D. 1956, there was then and there pending in the Criminal Court of Record of the County of Hillsborough and State of Florida, a certain cause, wherein the State of Florida was plaintiff, prosecuting, and one George Fabian was defendant. That the charge against the said George Fabian was four (4) separate counts of violation of the lottery laws of the State of Florida. That subsequent to the filing of the Information in which the said George Fabian was charged with violating the lottery laws of the State of Florida, the said defendant did file in said cause an amended motion to quash search warrant and suppress evidence. That said amended motion to quash search warrant and suppress evidence came on to be heard and was heard on said date, to-wit: the 9th day of January, 1956, before the Honorable L. A. Grayson, Judge of the Criminal Court of Record of the County of Hillsborough and State of Florida; That the said Criminal Court of Record and the Honorable L. A. Grayson, Judge of said Court, then and there had jurisdiction to hear and determine said amended motion to quash search warrant and suppress evidence. That during the hearing on said motion, the said George Fabian then and there became and was a witness in his own behalf in said cause, and was then and there duly sworn according to law by and before the Honorable Herbert E. McLeod, Deputy Clerk of the said Criminal Court of Record of the County of Hillsborough and State of Florida, to depose and speak the truth in said cause, the said Deputy Clerk having then and there lawful and competent authority to administer such oath. That thereupon the said George Fabian, being so sworn as aforesaid to speak the truth as aforesaid, wickedly, contriving and intending to cause and procure the said Court to grant his said amended motion to quash search warrant and suppress evidence, he, the said George Fabian, did then and there wilfully, falsely, wickedly, knowingly, maliciously and corruptly and by ■ his own consent upon his oath aforesaid, in the County and State aforesaid, ¿nd on the day aforesaid, depose, swear and give evidence before the said Court and said Judge as aforesaid in substance, tenor and effect, among other things, as follows, to-wit:
“That he, the said defendant, George Fabian, prior to his arrest for the said lottery law violations, and on or about November 1, 1955, had a definite understanding with Rudolph Mora for said defendant to rent from Rudolph and Matilda Mora the premises located at 1860 Twenty-fourth Avenue, Tampa, Florida, which was then and there being occupied as a home by the said Rudolph and Matilda Mora; that he, the said George Fabian, was to use the said premises during the day time and was to pay the sa.id Rudolph and Matilda Mora the sum of Twenty Dollars ($20) per week for the use thereof;
“Whereas, in truth and in fact the said defendant, George Fabian did not on said date or at any time have a definite understanding or, in fact, any understanding with the said Rudolph and Matilda Mora or either of them to rent or use said premises located at 1860 Twenty-fourth Avenue, Tampa, Florida, as aforesaid;
“That the matters aforesaid so wil-fully, falsely, wickedly, knowingly, maliciously and corruptly sworn into substance, tenor and effect by the said George Fabian were then and there material to the issues in the hearing-on said motion and the same were false and untrue and the said George Fabian well knew that the said testimony was false and untrue at the time he, the said George Fabian, so testified. So the County Solicitor aforesaid, upon his oath aforesaid, does say that the said George Fabian, at the time and in the County and State aforesaid, did commit the crime of perjury against the peace and dignity of the State of Florida, and contrary to the statute in such cases made and provided.”

The defendant filed a motion to quash on the ground, among several others, that the information failed to charge either a statutory or a common law offense.

The lower court, in its order granting the motion to quash the information, did not indicate the ground or grounds upon which the order was granted.

In the case of Shelton v. State, 1946, 157 Fla. 482, 26 So.2d 444, the Florida Supreme Court held that an essential element of the crime of perjury is that an untrue statement be made under oath with reference to some matter material to the main or a secondary issue; and that a matter is material to a main or a secondary issue so that an untrue statement made with reference thereto will constitute perjury if it can influence the tribunal on the issue before it.

In the case of Hall v. State, 1939, 136 Fla. 644, 187 So. 392, 396, the Florida Supreme Court said:

“The information, at the pleader’s election, may either aver directly that the testimony falsely deposed was material to some issue on trial, or else allege facts from which its materiality will in law appear. Brown v. State, 47 Fla. 16, 36 So. 705; Tindall v. State, 99 Fla. 1132, 128 So. 494; Gibson v. State, 47 Fla. 34, 36 So. 706; Annotation in 80 A.L.R. 1443. We are of the opinion that, under this rule, the materiality of the false statements was sufficiently alleged.”

Section 923.03, Florida Statutes, 1955, F.S.A., contains a number of suggested indictments and informations, among which is the following:

“(e) As to perjury:
“In the hearing of a cause in the -court of-County, Florida, in which-and others were plaintiffs and --• others were defendant, after being duly sworn to speak the truth, falsely swore, etc. (stating the substance of the false testimony) such matter being material in said cause, and the said - then and there knowing that he swore falsely.”

The Florida Supreme Court, in the case of Ritter v. Sinclair, 1944, 154 Fla. 272, 17 So.2d 97, 98, held that the following information charged perjury with sufficient elaboration to apprise the defendant of the exact nature of the accusation and to conform to the statutory form:

“ * * * Robert Ritter * * * of the County of Polk and State of Florida, on the 3rd day of December in the Year of our Lord, one thousand nine hundred and forty-three in the County and State aforesaid in the hearing of a cause in the Criminal Court of Record in and for Polk County, Florida, in which the State of Florida was Plaintiff and Fletcher Gilmore was defendant after being duly sworn to speak the truth, falsely swore that Fletcher Gilmore was not one of the fellows fighting in the Big Apple during the night of September 24, 1943 and that Fletcher Gilmore was not inside the Big Apple that night, such matter being material in said cause and the said Robert Ritter then and there knowing that he swore falsely.”

In the above case the Court said:

“Petitioner insists that the charge is fatally defective in not alleging any assignment; that is, it does not aver by direct and positive allegation that the testimony given was false. This position would have been well taken before the enactment of the Criminal Procedure Act. Fudge v. State, 57 Fla. 7, 49 So. 128, 17 Ann.Cas. 919.
“(1, 2) Alabama has a similar statutory form and in that state an indictment in the statutory form has been beld sufficient. Capps v. State, 29 Ala.App. 192, 194 So. 689. We know of no reason why the legislature cannot prescribe the form of a charge so long as the constitutional rights of the accused are safeguarded. The charge here is sufficiently elaborate to apprise the petitioner of the exact nature of the accusation, thus conforming to our constitutional requirements. Sec. 11, Declaration of Rights, Florida Constitution.”

We are of the opinion that the information conformed in substance with the statutory form and was therefore sufficient. The lower court should have overruled the motion to quash.

Reversed.

SCANNER, C. J., and PLEUS, J., concur.


author: KNOTT, Circuit Judge.

text:
    Charles Edward CROSBY, Appellant, v. The STATE of Florida, Appellee.
    Supreme Court of Florida.
    Oct. 11, 1957.
    Rehearing Denied Dec. 9, 1957.

      C. J. Hardee, Sr., and Robert J. Fish-kind, Tampa, for appellant.
    Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.
   KNOTT, Circuit Judge.

On March 2, 1955, the County Solicitor of Hillsborough County, Florida, filed a criminal information charging appellant Crosby and one Lee R. Baker with attempted robbery. Crosby entered a plea of guilty as charged in the information and was adjudged guilty by the Honorable L. A. Gray-son, the Judge of the Criminal Court of Record. Sentence was deferred pending an investigation by the court’s probation officer. Baker pleaded not guilty, a severance was granted and he was later placed on trial. Crosby, who as yet had not been sentenced was subpoenaed as a witness for both the State and the defense at Baker’s trial. He was not called as a witness by the State but did testify as a witness for the defense at the trial on September 15, 1955, at which Judge Grayson presided. The following proceedings transpired while Crosby was on the witness stand:

“(Questions by Assistant County Solicitor McLean:)
“Q. Isn’t it a fact that you, together with other juveniles, were arrested out here in this Six Mile Creek Area and thereabouts, in recent months, in connection with this Root Beer Gang that has been given too much publicity in newspapers? A. Yes, sir, but I wasn’t arrested as a member of the Root Beer Gang.
“Q. As a matter of fact, they have taken out warrants for you for fondling a little girl out there ? Haven’t they ?
“Mr. Johnson: I object to all this,, your Honor. He is coming in with statements of arrest and I believe your Honor is allowing him to go beyond the reasonable bounds of questioning here, when you are supposed to ask questions pertaining to this particular case.
“The Court: Let the Jury be withdrawn.
“(The Jury was withdrawn.)
“The Court: In view of this witness’s testimony I don’t see why this case should go along any further. If the jury were to convict this defendant, I don’t think I could let it stand. I don’t see any use in prolonging the agony here any more.
“Now, this witness may be lying and I don’t know whether he is or not, but, certainly, his testimony is more than adequate, in my judgment, to cast a reasonable doubt on the guilt of the accused. I’m not going to go along any further with it. I don’t see any use to take up any more time in cross-examination. I have heard all I want to know and when he goes off the stand, I am instructing the Sheriff to take him into custody and hold him without bond and bring him up for sentence next Monday.
“Mr. Clerk, in the morning, instruct the Probation Officer to discontinue his investigation. I don’t want to put a. man like that on probation. I am not. going to waste any more time with him..
' “Mr. Johnson: But, you are not, your. Honor, punishing this man for telling the truth, are you?
“The Court: No, because I don’t think he is telling the truth. I am punishing him for telling a lie. The whole hunch of them. I think he is a liar from the word ‘go.’ Bring back the jury. I’ll stop the case. You are not concerned with this fellow.
“(The Jury returned to the court room.)
“The Court: Gentlemen, after the cross-examination of this witness and when the defendant would have rested his case, counsel would have renewed his motion for a directed verdict, which has already been made and denied; but, in the light of this testimony, I don’t see how in the world you could find the defendant guilty, or how I could allow it to stand if you did.
“Now, you may think this fellow is the biggest liar in the world and I’ll go along with you. I think so, too. But, I think his testimony is enough to cast sufficient doubt that an appellate court would not allow a verdict of guilty to stand. I am going to take the case from you at this time, direct a verdict of not guilty for the defendant.
“The most that can be said here, is a strong suspicion. This fellow is being investigated for probation. He has told me enough about himself, sitting right there under oath, to where I will never put him on probation. So, I direct the Sheriff to take him into custody and put him on for sentence next Monday on his guilty plea.
“You can take him out, Mr. Sheriff, and put him in the cooler.”

After Baker’s trial, Crosby (hereinafter referred to as the defendant) filed affidavit and application for disqualification of Judge Grayson, with supporting affidavits, pursuant to Sec: 38.10, F.S., F.S.A., citing the. statements made by the latter concerning the defendant during Baker’s trial, referred to above, as a basis for his fear that he would not receive a fair trial at the hands of Judge Grayson and his contention that Judge Grayson was prejudiced against defendant and disqualified to sit as a fair and impartial Judge in any future proceedings in the defendant’s case. At the same time, defendant filed a motion to withdraw his plea of guilty and for permission to plead not guilty, asserting that he had a meritorious defense. In support of that motion, defendant alleged that he had been reluctantly persuaded to enter the guilty plea by his attorney on assurance that he would be placed on probation, upon representations allegedly made to his attorney by the county solicitor’s office, whereas if he went to trial he would probably be convicted and receive a penitentiary sentence, even if not guilty.

The court entered orders denying the defendant’s application for disqualification and his motion to withdraw his plea of guilty, and thereupon sentenced the defendant to three years’ imprisonment.

We are called upon initially to determine whether the Judge of the lower court erred in refusing to disqualify himself. We think error was committed.

The statute, Sec. 38.10, supra, requires the affidavit to state such facts as cause the movant to “fear” that he will not receive a fair trial because of prejudice on the part of the judge. The facts set forth in the affidavit here under consideration are sufficient for that purpose under the interpretation of the statute given in State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695, 697, 115 A.L.R. 857, where we said, “the test of the sufficiency of the affidavit is whether or not its content shows that the party making it has a well-grounded fear that he will not receive a fair trial at the hands of the judge. It is not a question of how the judge feels; it is a question of what feeling resides in the affiant’s mind, and the basis for such feeling.”

In applying the test, the function of the trial court is limited to a determination of the legal sufficiency of the affidavit, without reference to its truth and veracity. If the allegations are sufficient, the judge must retire from the case. Dickenson v. Parks, 104 Fla. 577, 140 So. 459.

It is our conclusion that the affidavit suggesting the disqualification of the trial judge in the case before us shows plainly that he should have recused himself and not participated further in the case. The language of this court in State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615, is peculiarly apropos in the present instance. There we said:

“This Court is committed to the doctrine that every litigant is entitled to nothing less than -the cold neutrality of an impartial judge. It is the duty of Courts to scrupulously guard this right and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy tends to discredit the judiciary and shadow the administration of justice.
“It is not enough for a judge to assert that he is free from prejudice. His , mien and the reflex from his court room speak louder than he can declaim on this point. If he fails through these avenues to reflect justice and square dealing, his usefulness is destroyed. The attitude of the judge and the atmosphere of the court room should indeed be such that no matter what charge is lodged against''a litigant or what cause he is called on to litigate, he can approach the bar with every assurance that he is in a forum where the judicial ermine is everything that it typifies, purity and justice. The guaranty of a fair and impartial trial can mean nothing less than this.”

We hold that the trial judge should have disqualified himself, and declined to proceed further in the case. It follows that he was without authority to act upon the defendant’s motion to withdraw his plea of guilty, and his ruling on that motion was erroneous for that reason.. We are constrained to observe, however, that the grounds of the motion to withdraw the plea of guilty were sufficient in any event to justify the relief sought, under the principles followed by this court in the case of Rubenstein v. State, Fla., 50 So.2d 708, and the cases therein cited.

The judgment and sentence,below are reversed, and the cause remanded with directions to proceed in a manner consistent with the views set forth in this opinion.

ROBERTS, DREW and O’CONNELL, JJ., concur

THOMAS, Acting C. J., and.THORNAL, J., dissent.


text:
    ST. JOHNS COUNTY, a political subdivision of the State of Florida, Appellant, v. T. H. MURPHY, Appellee.
    Supreme Court of Florida.
    Sept. 25, 1957.
    Upchurch, Melton & Upchurch, St. Augustine, for appellant.
    Coxe & Stephens, St. Augustine, for appellee.
   PER CURIAM.

Affirmed on authority of the rule announced in North Bay Village v. Blackwell, Fla.1956, 88 So.2d 524.

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


author: O’CONNELL, Justice.

text:
    Mae McNULTY and John J. McNulty, Appellants, v. Most Reverend Bishop Patrick HURLEY of the Diocese of St. Augustine, Florida, a Religious corporation, Appellee.
    Supreme Court of Florida.
    Sept. 18, 1957.
    Rehearing Denied Oct. 24, 1957.

      Gerald S. Berkell, Miami Beach, for appellants.
    Blackwell, Walker & Gray and Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, for appellee.
   O’CONNELL, Justice.

Mae McNulty and John J.- McNulty, plaintiffs below, appeal the dismissal of their complaint against the defendant-appellee, the Most Rev. Bishop Patrick Hurley of the Diocese of St. Augustine, Florida, a corporation sole.

Mae McNulty, hereafter referred to as the plaintiff, attended mass on March 27, 1955 in Gesu Church, a Roman Catholic Church in the City of Miami. This church is owned and possessed by the defendant, in his capacity as a corporation sole. When the mass was concluded, plaintiff and other worshippers made their way to the exit.

Plaintiff’s complaint alleged that while descending the steps of the church she fell because she was “pushed from behind and violently thrown to the ground by person or persons unknown to the plaintiff who were in a surging crowd, which was also leaving the church at the said time and place.” She alleged that it was common practice for parishioners of the church “to run, push and surge down the crowded steps of the church”, which fact the defendant knew or should have known and therefore should have foreseen that a person properly descending the steps of the church might suffer injuries thereby. Plaintiff contended defendant was careless and negligent in failing to operate the church and its appurtenances in a reasonably safe condition; in failing to take precaution to prevent pushing and surging of the crowd by not providing a sufficient number of attendants; in failing to warn parishioners of the dangerous condition of a pushing and surging crowd; in failing to provide a proper and safe exit and in failing to conduct the exit of the parishioners in a proper and lawful manner.

The lower court granted defendant’s motion to dismiss, stating:

“ * * * the Court being of the opinion that the plaintiffs have failed to state a cause of action, the dismissal * * * is with prejudice and at the cost of the plaintiffs.”

The court then entered judgment in favor of the defendant, reciting therein that the plaintiff had declined to plead further.

In her appeal plaintiff, of course, argues that her complaint did state a cause of action. She contends that the doctrine of foreseeability applies against the defendant, in that the defendant was aware that the crowding, pushing and surging took place and would likely result in injury to someone, yet did nothing to safeguard her from such danger.

Defendant’s defense is primarily that one •entering the premises of a church for the purpose of attending religious services is a mere licensee to whom the church owes only a duty to refrain from wanton negligence or wilful misconduct which would injure her and to refrain from intentionally exposing her to danger, and that the complaint was fatally defective in that there were no allegations of negligence of the kind and degree which would constitute ,a violation of the duty owed a licensee.

In addition defendant contends that it is a general rule of law that one cannot recover from a charitable trust unless there has been negligence in the selection of employees causing an injury to the claimant.

This cause sounds in tort. In such an action it is essential that the complaint allege facts either showing a duty owed to the plaintiff by defendant and a breach thereof by the defendant, or that plaintiff has a legal right which right has been invaded by the defendant, and further that the plaintiff has been damaged thereby.

As between an owner or occupant of premises and persons who come thereon the law recognizes, in general, three distinct and separate relationships. Persons occupying such relationships are classified as •either invitees, licensees, or as trespassers.

The duty owed by the owner or occupant of premises to each class of persons is also distinct. The duty owed by the owner or occupant to the trespasser is to refrain from committing a wilful or wanton injury against him with the rule being softened after discovery by the landowner of peril to the trespasser. Byers v. Gunn, Fla.1955, 81 So.2d 723.

ffhe duty owed a licensee is to refrain from wanton negligence or wilful misconduct which would injure him, or to refrain from intentionally exposing him to danger. City of Boca Raton v. Mattef, Fla.1956, 91 So.2d 644. There may be a further duty to the licensee to warn him of a defect or condition known to the owner or occupant to be dangerous when such danger is not open to ordinary observation by the licensee. Goldberg v. Straus, Fla.1950, 45 So.2d 883; 65 C.J.S. Negligence § 35 g; Prosser, Torts, Sec. 77, p. 450; Restatement, Torts, Sec. 342, Comment d.

A greater duty is owed to an invitee than to either of the other class of persons above mentioned. The owner or occupant owes an invitee the duty of keeping the premises in a reasonably safe condition, and, as plaintiff contends, also to guard against subjecting such person to dangers of which the owner or occupant is cognizant or might reasonably have foreseen First Federal Sav. & Loan Ass’n v. Wylie, Fla.1950, 46 So.2d 396 and Messner v. Webb’s City, Inc., Fla.1952, 62 So.2d 66.

In order to determine the duty which the defendant in this case owed to the plaintiff we must decide whether the plaintiff was an invitee or licensee, it being clear from the pleadings that she was not a trespasser.

“ ‘A licensee is broadly defined as a person who enters upon the property of another for his own convenience, pleasure, or benefit.’ ” Stewart v. Texas Co., Fla.1953, 67 So.2d 653, 654, quoting Am.Jur., Negligence, Sections 104 and 105.

In City of Boca Raton v. Mattef, supra, 91 So.2d at page 647, we defined an invitee as follows:

“An invitee is normally considered to be one who enters upon the premises of another for purposes connected with the business of the owner or occupant of the premises.”

The Texas court, in Cowart v. Meeks, 1938, 131 Tex. 36, 111 S.W.2d 1105, 1107, sets forth a reasonable practical test to determine whether a person is an invitee or licensee:

“In determining this question the general test is whether the injured person, at the time of the injury, had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience, or on business with others than the owner of the premises. In the absence of some relation which inures to the imitual benefit of the two, or to that of the owner, no invitation can be implied, and the injured person must be regarded as a mere licensee.” [Emphasis ours.]

In the case before us the use of the usual definitions in determining the relationship of the parties is more difficult, than in the ordinary case by virtue of the fact that the premises were not used as a place of business, but as a church. Nevertheless we conclude that under the definitions above recited and the applicable rules of law the allegations of the plaintiff’s complaint place her in the status of a licensee, not an invitee as she contends.

Plaintiff takes the position that she was on the church premises by invitation of the defendant. She reasons that the church, being the shepherd of its flock, not only invites its members to enter thereon but importunes them to do so. Most if not all religious denominations and sects urge and invite not only their members, but other persons, to enter their churches, temples and religious edifices and join in worship and prayer. The doors of all such structures are in themselves an invitation to enter. In this sense anyone who enters into a structure used for religious activities is an invitee.

But an invitation to enter and worship, whether it be either express or implied, does not constitute one who accepts the invitation an invitee in the legal sense. In order for such relationship to arise the person entering onto the premises, i.e. the invitee, must have done so for purposes which would have benefited the owner or occupant of the premises, i.e. the invitor, or have been of mutual benefit to the invitee and the invitor. And as we view it this benefit must be of a material or commercial rather than of a spiritual, religious, or social nature. This same reasoning is followed in our cases which hold persons invited into one’s home as social guests to be licensees rather than invitees even though they are expressly invited to enter the premises of the host. Goldberg v. Straus, supra.

It cannot be successfully or logically argued that a person enters a place of worship, call it by any name, and participates in worship and prayer to the God or Supreme Being of his choice for the benefit of the body or organization which owns the church, the religious or lay readers who conduct the services, or the God or Supreme Being whom he worships and asks for guidance, help or forgiveness. One of the concepts of all religious beliefs known to us is that participation in religious activities is for the benefit of the mortals who participate therein. Places of worship exist as symbols and reminders of the existence of a greater and higher force and as places set apart from the material phases of our lives where we can for our convenience together practice and give overt evidence of our adherence to our religious beliefs. If it were not true that participation in religious services, proceedings and ceremonies is for the benefit of the individuals who gather to do so, it would be impossible to explain their presence at such activities. The plaintiff in this case does not, nor can she in good faith, contend that she went to mass for the benefit of Jesus Christ or the defendant, who as a corporation sole holds title to the church which she attended.

Nor would it matter if the plaintiff had alleged that she made a contribution when the collection plate was passed, for this would not have changed her status. As it is that we who serve our God gain in so doing, so it is that we who give material things to assist in the work of our chosen religious belief receive by so doing. We are the recipients, not the benefactors.

It seems clear to us therefore that one who attends a religious edifice for the purpose of attending a religious service, as did the plaintiff in this case, does so “for his own convenience, pleasure or benefit” and is at best a licensee.

The courts in the following cases, dealing with similar situations have also reached the conclusion that one attending religious services is a licensee: Coolbaugh v. St. Peters Roman Catholic Church, 1955, 142 Conn. 536, 115 A.2d 662 and Glaser v. Congregational Kehillath Israel, 1928, 263 Mass. 435, 161 N.E. 619.

As a licensee, the defendant owed the plaintiff the duty to refrain from wanton negligence or wilful misconduct, and to warn her of any defect or condition known to defendant to be dangerous if such danger was not open to ordinary observation by plaintiff.

The plaintiff does not allege that the defendant was guilty of wanton negligence or wilful misconduct. She does allege that the defendant was guilty of having failed to take proper precautions to prevent the pushing and surging of the parishioners from the church after mass and in failing to warn the parishioners of the dangerous condition of the surging and pushing crowd.

The alleged actions of the crowd leaving the church are not a defect dr condition not open to ordinary observation by the plaintiff. The plaintiff does not allege that the alleged actions of the crowd were caused by any wanton negligence or wilful misconduct by the defendant. In the absence of such allegations as to the defendant causing the actions of the crowd, such actions of the crowd cannot be charged against the defendant by plaintiff, a licensee. It must be remembered, too, that a member of the public assumes the ordinary risks of crowds.

In view of our determination that the plaintiff was a licensee and that the complaint does not charge the defendant with any breach of duty owed by him to a licensee, we find it unnecessary to determine the other question presented by the defendant.

For the reasons above expressed we hold that the complaint does not state a cause of action. The judgment appealed from is accordingly

Affirmed.

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


text:
    The STATE of Florida ex rel. THE FLORIDA BAR, Complainant, v. Evan T. EVANS, Respondent.
    Supreme Court of Florida.
    Oct. 2, 1957.
    Delbridge L. Gibbs, Jacksonville, for the Florida Bar, complainant.
    Neal D. Evans, Jr., Jacksonville, for respondent.
   PER CURIAM.

The referee heretofore appointed in the foregoing matter having on April 10, 1957 filed in this Court his report recommending that the complaint filed herein October 23, 1951 against the respondent Evan T. Evans be dismissed with prejudice in accordance with the provisions of a stipulation attached thereto between the attorney for The Florida Bar and the attorney for the respondent and upon consideration thereof it is hereby,

Ordered that said stipulation be and the same is hereby recognized, the report of the referee is hereby approved and confirmed .and the complaint in this cause be and the same is hereby dismissed with prejudice.

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


text:
    Sam KART, Appellant, v. SEABOARD AIR LINE RAILROAD COMPANY, a corporation, Appellee.
    Supreme Court of Florida.
    Oct. 2, 1957.
    Bates, Lowry, McGowan & Jones, Gaines--ville, for appellant.
    Clayton, Arnow, Duncan, & Johnston, 'Gainesville, for appellee.
   PER CURIAM.

This cause came on to be heard on the -motion of appellee to affirm the judgment appealed from pursuant to rule 38 of the rules of this court, 30 F.S.A., 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 HOBSON, ROBERTS, DREW and O’CONNELL, JJ., concur.