author: WIGGINTON, Judge.

text:
    Ruby WISE, Appellant, v. JACKSONVILLE GAS CORPORATION, Appellee. JACKSONVILLE GAS CORPORATION, Appellant, v. Ruby WISE, Appellee.
    No. A-56.
    District Court of Appeal of Florida. First District.
    Nov. 5, 1957.
    Rehearing Denied Nov. 22, 1957.
    Jennings, Watts, Clarke & Hamilton, Jacksonville, for appellant.
    John O. Jackson, Gerald R. Hart and William B. Dawson, III, Jacksonville, for appellee.
   WIGGINTON, Judge.

Appellant, Ruby Wise, sued appellee, Jacksonville Gas Corporation, for damages resulting from injuries sustained through the alleged negligence of the gas company. The latter denied negligence and alternatively pleaded contributory negligence. The jury found for Ruby Wise, awarded damages in the sum of $15,000, and judgment was entered thereon. Thereafter, the gas company moved for a new trial on the grounds that (1) the evidence did not support the verdict as to liability, and (2) the damages awarded were excessive. The trial court denied the motion as to the issue of liability and the gas company appealed; but granted defendant’s motion as to the issue of damages, from which order Ruby Wise appealed.

We are immediately confronted with the jurisdictional question of whether the gas company, being the beneficiary of the order granting to it a new trial on the issue of damages, can appeal from that portion of the same order which denies its motion for a new trial on the issue of liability. The authority of the lower court to enter the order under consideration is unquestioned. In actions at law appeals may be taken only from final judgments. Certain exceptions to this rule are set forth in the statute. Within the exceptions is authority for the party aggrieved to appeal from an order granting a new trial. Here the lower court entered a final judgment upon the verdict rendered by the jury which found for the plaintiff on both the issues of liability and damages. The order granting the gas company a new trial on the issue of damages did not in express terms set aside the judgment previously entered. It is implicit, however, that the portion of the judgment awarding damages to the plaintiff must be considered to have been set aside and vacated. There remains, however, the full force and effect of both the verdict and judgment which found against the gas company on the issue of liability. As to this phase of the case the judgment of the trial court was final, and constituted a sufficient basis for appeal by the gas company following the court’s order denying a new trial on this issue. We are not here confronted with the same factual situation as existed in the Atlantic Coast Line case, where it was held that a person in whose favor a motion for a new trial was granted could not appeal from adverse interlocutory orders entered during the course of the proceedings. Even though the gas company benefited from the court’s order granting it a new trial on the issue of damages, and to that extent was not an aggrieved party within the purview of the statute, both the verdict and judgment stood against it on the issue of liability and became a final judgment within the meaning of the statute from which an appeal could be validly taken.

We have carefully reviewed the evidence submitted at trial by the respective parties and are forced to the conclusion that such evidence, when considered in a light most favorable to plaintiff, adequately supports the jury’s verdict with respect to liability. There is competent substantial evidence upon which the jury could find that the gas company was negligent and that Ruby Wise was not contributorily negligent. No useful purpose would be served by detailing the evidence upon which we base our conclusion. We, therefore, hold, on authority of Carolina Lumber Company v. Daniel, Fla.App., 97 So.2d 156, that the order of the trial court denying the gas company’s motion for new trial on the issue of liability must be affirmed.

With respect to the appeal by Ruby Wise from the order granting a new trial on the issue of damages, the record reveals that as a result of the negligence of the gas company in failing to properly repair and maintain a gas water heater in appellant’s apartment, she inhaled and was injured by carbon monoxide gas which exuded from the appliance over a period of some seventy-two days. Evidence adduced by plaintiff shows that as a result of being subjected to these gas fumes she became violently ill to such a degree as to require hospitalization and treatment. In addition the gas fumes caused her to suffer pain and discomfort from periodic headaches, low blood pressure, and a chronic bronchitis condition. Such pain and discomfort continued during a period of approximately nineteen months from the date of injury to the date of trial. Plaintiff’s medical expert testified that she could be expected to continue suffering such pain and discomfort permanently, unless her condition can be improved by surgery which might be performed at some future date. The proof indicates that a person afflicted with chronic bronchitis becomes easily exhausted and usually is unable to devote full time to any form of employment. Plaintiff also adduced evidence showing that as a result of her weakened condition she suffered loss of earnings' from her work as a nurse in the amount of $1,200, and had incurred medical expenses in excess of $116, as of the time of trial. The mortality tables indicate plaintiff enjoys a life expectancy of thirty-four years, during which it may be assumed that her pain and discomfort will continue. Faced with the foregoing evidence the jury arrived at its verdict for the plaintiff in the sum of $15,000.

The trial court grounded its order granting the gas company’s motion for new trial on the issue of damages upon the premise that the damages awarded were excessive. Why the trial court was of this opinion does not appear from the order. We have, therefore, carefully reviewed the record in an attempt to glean some substantial basis on which it can be held that the trial court acted within the proper bounds of its discretion in concluding that the verdict was excessive and should be set aside.

Under the jury system which prevails in this state, great credence is placed in the verdict of a jury, whose exclusive function it is to weigh the evidence and fix the amount of damages, if any, to which the parties are entitled under the law as charged by the court. In a personal injury action the degree of negligence and the extent of the injuries suffered as shown by the evidence are major criteria available to the jury by which to measure its verdict in dollars and cents. While there is a presumption of correctness accompanying discretionary acts of a trial court, and although its orders, judgments and decrees will not be disturbed on appeal unless an abuse is shown, the trial court is under no circumstances warranted in pitting its judgment against that of the jury with respect to the amount of damages to be awarded. If the verdict is so inordinate in amount as to shock the judicial conscience, or to indicate that the jury has been unduly influenced by passion or prejudice, then and only then may the court in the exercise of its discretion strike down the verdict and award a new trial. Absent such a circumstance, the amount of damages to be awarded rests solely within the sound discretion of the jury. In light of the evidence respecting damages, as set forth above, and which the jury apparently believed, we see nothing in the amount of the verdict in this case to shock the judicial conscience.

During the trial defendant introduced evidence from which the inference could be drawn that plaintiff was infected with the disease of syphilis. Defendant’s medical expert testified that the presence of syphilis could be the cause of such a bronchial condition as plaintiff suffered. Defendant took the position that plaintiff’s bronchitis resulted from a syphilis infection rather than carbon monoxide gas poisoning as contended by plaintiff’s doctor. Such an aspersion upon plaintiff’s character may well have given rise to such repulsion in the minds of the jury as to completely overshadow whatever merit was inherent in plaintiff’s cause.

Defendant complains that the minds of the jury were inflamed by passion and prejudice created by the closing argument of plaintiff’s counsel to the jury in reply to the foregoing evidence submitted by defendant. While it must be conceded that plaintiff’s counsel used language and drew illustrations which might be considered ob-jectional under normal circumstances, we cannot say they were in this case. His remarks were no more than any zealous advocate would be called upon to make in defense of his client’s reputation and to protect his lawsuit. In view of the charge by the trial court admonishing the jury against making any allowance for damages arising from the implications inherent in the defendant’s evidence which might be considered as reflecting upon plaintiff’s character or reputation, and considering the amount of the verdict itself, it cannot be reasonably concluded that the verdict resulted from any passion or prejudice created by the argument of plaintiff’s counsel.

Trial strategy such as was engaged by defendant is fraught with many dangers. The effect of evidence of this tenor on the plaintiff’s reputation and the outcome of the cause on trial is manifest. When evidence is introduced which is calculated to disparage, or which may reflect unfavorably upon the character of opposing parties or witnesses, it is proper for opposing counsel to retaliate with such force and vigor as is reasonably necessary to neutralize the damaging effect that type of evidence may have upon the outcome of the cause. Such retaliation of course cannot be unbridled or unrestrained, but must be controlled and kept within proper bounds. We think such was done here.

The conflicts in the evidence in this case were resolved by a jury accepted by counsel for the parties and by the court as people of integrity, well qualified to fix the amount of damages, if any, to which plaintiff was entitled. These conflicts having been resolved in a verdict for the plaintiff, the amount to be awarded rested in the sound judgment of the jury. An objective evaluation of the evidence favorable to plaintiff impels the conclusion that an impartial jury could reasonably have awarded the amount fixed in the verdict. That amount,' not being so inordinate as to shock the judicial conscience, and the record failing to reveal a clear showing of prejudice, passion, or other improper influence, the verdict should not be disturbed.

The order of the trial court granting a new trial on the issue of damages is reversed and the cause remanded with instructions to enter judgment for the amount found to be due plaintiff by verdict of the jury. The trial court’s order denying a new trial as to the issue of liability is affirmed.

STURGIS, C. J., and THOMAS, ELWYN, A. J., concur.

      . Brinson v. Howard, Fla.1954, 71 So.2d 172.

      . Section 59.02, Florida Statutes, F.S.A.

      . Section 59.04, Florida Statutes, F.S.A,

      . Atlantic Coast Line Railroad Co. v. Boone, Fla.1956, 85 So.2d 834.

      . Bell Bakeries, Inc. v. Giles, 145 Fla. 148, 198 So. 793.

      . Brinson, v. Howard, supra.

      . Albert v. Miami Transit Co., 154 Fla. 186, 17 So.2d 89; Seaver v. Stratton, 133 Fla. 183, 183 So. 335.

      .S. A. Freel Distributing Co. v. Lenox, 147 Fla. 550, 3 So.2d 157.

      . Margaret Ann Super Markets, Inc., v. Scholl, 159 Fla. 748, 34 So.2d 238; Lithgow v. Hamilton, Fla.1954, 69 So.2d 776.

      . Albert v. Miami Transit Co., supra.


source: Caselaw Access Project

license: Public Domain

text:
    MEXICO BEACH CORPORATION, a Florida corporation, Appellant, v. ST. JOE PAPER COMPANY, a Florida corporation, Appellee.
    No. A-69.
    District Court of Appeal of Florida. First District.
    Nov. 5, 1957.
    Rehearing Denied Nov. 22, 1957.

      William B. Leath, Panama City, and E. E. Calloway, Blountstown, for appellent.
    J. Lewis Hall, Tallahassee, for appellee.
   WIGGINTON, Judge.

The appellee, St. Joe Paper Company, brought suit in the Circuit Court of Bay County against appellant, Mexico Beach Corporation, for the purpose of quieting title to certain lands bordering on the Gulf of Mexico. It is from a summary decree for plaintiff that this appeal is taken.

There is no dispute as to the 'facts: Fractional Section IS, Township 6 South, Range 12 West, was duly and regularly surveyed by the Federal Government in 1833, and a plat thereof filed in the General Land Office. According to this plat, fractional Section 15 contains 624.23 acres, the West half of the southern boundary of which borders on the Gulf of Mexico. This land was conveyed by the United States to the State of Florida by patent dated September 18, 1856, at which time it contained little, if any, more than the 624.23 acres recited in the aforementioned plat. Subsequently, between 1865 and 1869, certain new lands were formed by gradual and im-perceptable degrees along the water boundary of this fractional Section. These new lands have never been surveyed or designated by the United States Government or the State of Florida as coming within the bounds of any prescribed Township or Section. It is this tract of land, to which ap-pellee claims title and for which its suit to quiet title was brought, that forms the subject matter of this cause.

On April 17, 1883, some fourteen years after the land in controversy had been formed, the State of Florida conveyed “All of section * * * fifteen * * * Township six South of Range twelve west” to appellee’s predecessor in title. Title to the said Section passed to appellee by subsequent mesne conveyances variously describing the land as “Fractional Section 15”, “Section 15”, and “All Section 15”. At the date of the conveyance by the State the alluvial lands were of more than sufficient quantity to render fractional Section 15 a complete and entire section of 640 acres if such could have been accomplished by protracting its southern boundary line westward and its western boundary southward to a point of intersection. Such a procedure would have resulted in additional lands remaining South of the protracted lines, which lands would lie between the protracted south boundary and the Gulf of Mexico.

Briefly stated, it is appellant’s position that the deed from the State of Florida, as grantor, passed title only to that tract of land described by the aforementioned plat as containing 624.23 acres, or, at most, only such additional lands as may have been necessary to render fractional Section 15 a complete, square section containing 640 acres. And, therefore, title to the remaining lands continues in the State of Florida. Appellee contends that all the lands in question, having been- formed by accretion, became an increment to the land described in the original survey, and that title thereto passed to the various grantees in conveyances of title to fractional Section 15. It was upon the issue thus formed that the Chancellor found for appellee and entered his summary decree quieting title to all the questioned lands in appellee.

Appellant’s contention that the State conveyed to its immediate successor in title a square section containing 640 acres is untenable. Sections and boundaries are created by Government survey and not merely designated thereby. Having been surveyed and created as a fractional section, the boudaries of Section 15 cannot be arbitrarily projected so as to make it a complete section containing the customary 640 acres. Appellee must either succeed in its claim to all the lands in question, or it must take none of them.

The parties by their pleadings and proofs, and the trial court by its decree, are in agreement that the lands in question are alluvion formed by accretion as distinguished from avulsion. If this be true the rules of law governing accretions must control our decision.

In the Roman Law it was said: “Al-luvion is an addition of soil to land by a river, so gradual that in short periods the change is imperceptible; or, to use a common expression, a latent addition.” Justinian says: “That is added by alluvion, which is added so gradually that no one can perceive how much is added at any one moment or time.” This same rule was introduced into English jurisprudence. The doctrine, as set forth in the English cases, is that accretion is the process of addition to land coterminous with the water, which is formed so slowly that its progress cannot be perceived, and does not admit of the view that, in order to be accretion, the formation must be one not discernible by comparison at two distinct points of time.

In his treatment of the subject, Black■stone has this to say: “And as to lands gained from the sea, either by alluvion, by the washing up of sand and earth, so as in time to make terra firma; or by a dereliction, as when the sea shirks back below the usual water mark; in these cases the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining. For de minimus non curat lex; and besides, these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is therefore reciprocal consideration for such charge or loss.”

In the United States, “The rule governing additions to land bounded by a river, lake or sea, has been much discussed and variously settled by usage and by positive law. Almost all jurists and legislators, however, both ancient and modern, have agreed that the owner of the land thus bounded is entitled to these additions. By some, the rule has been vindicated on the principles of natural justice, that he who sustains the burden of losses and of repairs, imposed by the contiguity of waters, ought to receive whatever benefits they may bring by accretion; by others, it is derived from the principle of public policy, that it is the interest of the community that all land should have an owner, and most convenient that insensible additions to the shores should follow the title to the shore itself.” The common-law rule which vests title to soil formed along navigable waters by accretion or reliction in owners of abutting lands is the rule applicable in Florida.

It must be observed at the outset that at the time fractional Section 15 was surveyed and designated in 1833, and when it was patented to the State of Florida in 1856, the western half of its southern boundary bordered on the Gulf of Mexico at the same, or nearly the same point as shown by the survey. It was while title to Section 15 reposed in the State that the lands in question were gradually and imperceptibly formed. Thus by application of the foregoing rules, it must be concluded that the tract of land here in question, lying south of fractional Section 15 as originally surveyed is in law alluvion formed by accretion, title to which vested in the State of Florida as owner of fractional Section 15.

Appellant insists that title to these alluvial lands, having vested in the State, did not pass to the grantee of the State’s deed conveying “All of Section 15”, but remained in the State. Appellee, on the other hand, contends that this description of the land in effect incorporated the survey description and made the Gulf of Mexico the true southern boundary, as provided in the survey, and therefore passed title to any alluvial land that might have been formed as of that time.

When lands described in a deed are by reference to or in accordance with a plat or survey, the courses, distances, and other particulars appearing on the plat are to be as much regarded as if expressly set forth in the deed itself. By Government survey the waters of the Gulf of Mexico became the southern boundary of a portion of fractional Section 15. Alluvial lands subsequently formed by accretion became an increment to and formed a part of that section. The State, had it so intended, could have surveyed and designated or otherwise identified and excepted these lands from its conveyance, thereby reserving to itself title to the alluvial lands. In the case now before this court, there appears no evidence of such an intention. The same is the case with each successive grantor, and each must be held to have passed title to fractional Section 15 to the edge-waters of the Gulf of Mexico as shown in the survey, notwithstanding the fact that the geographic location of such waters may have been altered by accretion.

We have carefully considered the authority on which appellant relies for reversal of the Chancellor’s decree. The case of Jones v. Johnston upon which appellant places great stress cannot be considered as authority for its position in the instant case. There the only issue decided was that a natural water boundary of a parcel of land, no matter how it shifts as a result of accretion or dereliction, is just as fixed a boundary as a permanent object. The Court there held, and we think correctly so, that when land is described and conveyed by metes and bounds the grantee takes only such lands as lie within the description, and cannot acquire as an appurtenance thereto any adjoining lands.which may have been previously formed by accretion or dereliction. The principles oí law announced in that case are not inconsistent with those heretofore expressed in this opinion.

Having so concluded, it is the judgment of this Court that the summary decree from which this appeal was taken must be and the same is hereby affirmed.

STURGIS, C. J., and O’CONNELL, STEPHEN C., A. J., concur.

      . 73 C.J.S. Public Lands, § 31. Cox v. Hart, 260 U.S. 427, 43 S.Ct. 154, 67 L.Ed. 332.

      . Black, Law Dictionary (4th Ed. 1951).

      . Institutes of Gaius, Book II, § 70.

      . Institutes, Book II, title 1, § 20.

      . Gifford v. Lord Yarborough, 5 Bing. 163; Re Hull & S. R. Co., 5 Mees. & W. 327; Scratton v. Brown, 4 Barn. & C. 485.

      . 2 Blackstone, Commentaries 262.

      . Banks v. Ogden, 2 Wall. 57, 67, 69 U.S. 57, 67, 17 L.Ed. 818, 821.

      . Brickell v. Trammell, 77 Fla. 544, 82 So. 221; Merrill-Stevens Co. v. Durkee, 62 Fla. 549, 57 So. 428; Broward v. Mabry, 58 Fla. 398, 50 So. 826.

      . See: Kahn v. Delaware Securities Corp., 114 Fla. 32, 40, 153 So. 308, 311; Andreu v. Watkins, 26 Fla. 390, 7 So. 876; Fox v. Union Sugar Refinery, 109 Mass. 292.

      . Jefferis v. Bast Omaha Land Co., 134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872; Tappendorf v. Downing, 76 Cal. 169, 18 P. 247.

      . 18 How. 150, 59 U.S. 150, 15 L.Ed. 320.

      . See: Lord v. Curry, 71 Fla. 68, 71 So. 21; Rivas and Koopman v. Solary, 18 Fla. 122.


author: STURGIS, Chief Judge.

text:
    Wade Hampton TOWNSEND, Petitioner, v. STATE of Florida, Respondent.
    No. A-40.
    District Court of Appeal of Florida. First District.
    Oct. 29, 1957.
    J. C. Adkins, Jr., and Ira J. Carter, Jr., Gainesville, for petitioner.
    Richard W. Ervin, Atty. Gen., and Odis M. Henderson, Asst. Atty. Gen., for respondent.
   STURGIS, Chief Judge.

Wade Hampton Townsend was tried and convicted in the County Judge’s Court of Alachua County on a charge of unlawful sale of intoxicating liquors. On appeal to the Circuit Court of Alachua County the judgment was affirmed. He then petitioned this court for writ of certiorari to review the proceedings below on the sole ground that the trial court inter alia charged the jury as follows, thus depriving him of due process of law:

“You have been sworn to uphold the law, and it is your duty to do so. The State Beverage Department employees are likewise sworn to uphold the law, and it is their duty to enforce the beverage laws wherever they are being violated. Their duty is to determine if the beverage laws are being violated and to file charges in all cases where the evidence warrants such.”

F.S. § 918.10(4), F.S.A., provides that no party may assign as error or grounds on appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. The record does not disclose that objection was made to the charge at any time during the course of the trial, and under such circumstances it is too late on petition for writ of certiorari or on appeal, assuming we had jurisdiction, to assign as error the giving or failure to give an instruction to the jury. Fabre v. State, 158 Fla. 853, 30 So.2d 367.

Petitioner cites F.S. § 924.32, F.S.A., which provides inter alia that the appellate court shall “review all instructions to which an objection was made and which are alleged as a ground of appeal,” and that “the court may also in its discretion, if it deems the interests of justice to require, review any other things said or done in the cause which appears in the appeal papers including instructions to the jury,” which statute is tracked by Fla.App. Rule 6.16; and petitioner ingeniously insists that notwithstanding his failure to object, these provisions of law placed on the circuit court the duty to take cognizance of the charge under attack, and that it would have necessarily followed that the trial court he reversed on the premise that the charge is the equivalent of a denial of due process of law. It will be noted that the quoted provisions of F.S. § 924.32, F.S.A., and Fla.App. Rule 6.16 are in direct conflict with F.S. § 918.10(4), F.S.A., supra.

Petitioner’s contention is not sound. The order of affirmance does not indicate that the circuit court ignored the statute or the rule, and in this court the presumption is conclusive that both were considered. Moreover, the charge under attack, when considered in the light of all the charges, did not constitute harmful error.

Giving effect to and reconciling the plain language of F.S. § 918.10(4), F.S.A., with the quoted portion of F.S. § 924.32, F.S.A., and the related portion of Fla.App. Rule 6.16 we hold that the circuit courts when sitting as courts of appeal have unassailable discretion to review or not to review charges to the jury as to which no objection was interposed at the trial.

The constitution of 1885, as amended (art. V, Sec. 6, F.S.A.), vests circuit courts with final appellate jurisdiction of all civil and criminal cases arising in the county court, or before county judges’ courts, of all misdemeanors tried in criminal courts of record, and of all cases arising in municipal courts, small claims courts, and courts of justices of the peace. It is reaffirmed by F.S. § 924.08, F.S.A. Our supreme court has repeatedly held that the final appellate jurisdiction of the circuit courts may not be circumvented or frittered away by the device of appeal or certiorari. Pleger v. State, Fla., 68 So.2d 371; Lopez v. State, Fla., 66 So.2d 807.

An error that warrants quashing a judgment on certiorari must be so flagrant as to constitute a departure from the essential requirements of the law with respect to procedural steps necessary to be taken or followed in order to administer justice according to controlling and indispensable rules of law. Morris v. State, 110 Fla. 95, 148 So. 182; Des Rocher & Watkins Towing Co. v. Third Nat. Bank of Miami, Fla., 106 Fla. 466, 143 So. 768; Vanderpool v. Spruell, 104 Fla. 347, 139 So. 892. Certiorari cannot be made to serve the purpose of ordinary appellate proceedings. Nation v. State, 155 Fla. 858, 22 So.2d 219; Wolkowsky v. Goodkind, 153 Fla. 267, 14 So.2d 398; Robinson v. City of Miami, 138 Fla. 696, 190 So. 35; Miami Poultry & Egg Co. v. City Ice & Fuel Co., 126 Fla. 563, 172 So. 82; Edwards v. Knight, 100 Fla. 1704, 132 So. 459; Brinson v. Tharin, 99 Fla. 696, 127 So. 313.

For the reasons stated the petition for writ of certiorari should be and it is denied.

WIGGINTON, J., and THORNAL, A. J., concur.


author: PEARSON, Judge.

text:
    The PARKLEIGH HOUSE, Inc., a Florida corporation, Appellant, v. Faye WAHL, d/b/a Parkleigh House Delicacies, and Max Boher, Appellees.
    No. 57-107.
    District Court of Appeal of Florida. Third District.
    Oct. 22, 1957.
    Ward & Ward, Miami, for appellant.
    Fischbach & Lurie and L. J. Cushman, Miami, for appellee, Faye Wahl.
   PEARSON, Judge.

The appellee brought an action in equity against the appellant (her landlord) and others for a decree declaring her rights under a lease. As additional relief the plaintiff prayed for an injunction against the landlord and others to prevent the defendants from violating an alleged exclusive right of the plaintiff to sell “delicacies and food for consumption on the premises or otherwise.”

The additional relief prayed was based entirely upon oral promises which the tenant testified were made prior to the entry by the parties into the written lease. The Chancellor found that the court could not re-write the lease between the parties but that “in equity” the oral agreement should be enforced, even though it was not in any way included in the written document. From a final decree enjoining the landlord from renting an adjacent store room for the sale of food and foodstuffs to be prepared and consumed on the premises or otherwise during the term of plaintiff’s lease, the defendant-landlord appeals. The effect of the decree was to add a restrictive covenant to the lease preventing the leasing of any of the remaining portions of the premises for a business activity which would in any way compete with the plaintiff. The plaintiff failed to allege facts constituting fraud, deception, mistake or overreaching. The Chancellor did not find any of these grounds for reformation to have been established. Verbal agreements as to the terms of a lease of lands cannot vary the terms of the lease as subsequently reduced to writing. Fletcher v. Moriarty, 62 Fla. 482, 56 So. 437; Camichos v. Diana Stores Corporation, 157 Fla. 349, 25 So.2d 864; Schwartz v. Zaconick, Fla.1953, 68 So.2d 173; Bell Corp. v. Bahama Bar & Restaurant, Inc., Fla.1954, 74 So.2d 292; Stockton Dry Goods Co. v. Girsh, 36 Cal.2d 677, 227 P.2d 1, 22 A.L.R.2d 1460.

Reversed.

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


author: THOMAS, ELWYN, Associate Judge.

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, a corporation, Appellant, v. Honorable McKenney J. DAVIS, as County Judge for Duval County, Florida, and The Florida National Bank of Jacksonville, a National Bank Corporation, as Administrator, c.t.a./d.b.n. of the Estate of Allie McHenry Harvey, deceased, Appellees.
    No. A-54.
    District Court of Appeal of Florida. First District.
    Oct. 31, 1957.
    . Marks, Gray, Yates & Conroy, Jacksonville, for appellant.
    Edward S. Hemphill, Jacksonville, for appellees.
   THOMAS, ELWYN, Associate Judge.

This litigation originated in the County Judge’s Court of Duval County, Florida.

On 18 September 1947 Riley Andrew Gwynn was appointed guardian of the person and property of Allie McHenry Harvey, incompetent, and on the same day the appointee and the appellant executed a guardian’s bond in the sum of $300,000 payable to the then Governor of Florida and his successors. The following day, upon approval of the bond, letters of guardianship were issued and 18 December 1947 the guardian filed an inventory of the ward’s property, valued at nearly $616,000. The guardian’s annual report was approved 20 September 1948. On 13 April 1949 the ward died and the following month the guardian became executor of the estate. In September 1949 the executor filed an inventory showing that the assets of the estate were worth approximately $608,500, and a few days later he presented to the court his final report as guardian indicating assets of $610,100. The county judge approved the final report 16 December 1949, discharged the guardian and released the surety, appellant, from further liability on the bond.

We should note now that about seven months elapsed between Gwynn’s appointment as executor and his discharge as guardian. On 20 June 1950 appraisers of the estate reported assets of about $592,-000.

The assets listed in the executor’s tax return to the Federal Government, in his final report as guardian, and in the appraiser’s report were approximately the same in value.

Eventually Gwynn was removed as executor of the estate and The Florida National Batik of Jacksonville was appointed administrator. Upon demand of this successor, Gwynn.submitted certain records to the bank’s accountant. It developed that although he had accounted for fiduciary funds in the estate, some withdrawals by him from monies of the guardianship were questioned. At first there was no attempt by the bank to re-open the guardianship proceedings or to hold the surety accountable on its bond and, actually, the bank sought the approval of the court not to pursue such a course. Furthermore the appellee, bank, in its petition for revocation of the orders approving the guardian’s reports and relieving his surety, expressed the opinion that defalcations by Gwynn “involved Estate funds rather than guardianship funds.” Even so, the administrator filed the petition to revoke the order's in the guardianship proceeding evidently in an abundance of caution because the petition to approve its action had not been heard and a different remedy to protect the estate might be lost by the passing of time.'

The county judge by an order entered in the guardianship proceeding, 19 September 1955, revoked the orders of 20 September 1948 and 16 December 1949, approving the annual and final returns and discharging the guardian and his surety. In the same order he “reopened” the returns and set for hearing the question whether or not the guardian had committed defalcations.

The order of 16 December 1949 was not challenged in an appellate court.

Before the matter was heard the United States Fidelity and Guaranty Company, now appellant, filed in the circuit court a petition to review the action of the county judge and the petition was dismissed on the motion of the appellees who were then respondents.

From all appearances the orders of the county judge approving the guardian’s reports and releasing him and the surety were final, and intended to be so, and it is the obvious purpose of this appeal to secure a decision from this court determining whether or not the county judge could, after a lapse of more than five years, disturb these orders.

The appellant in its petition to the circuit court challenged the jurisdiction of the county judge to enter the belated order and claimed it had a vested interest in the order by reason of Sec. 746.14, Florida Statutes 1947, and F.S.A., in which it was provided that such an order of discharge should “operate as a release from the duties of guardianship and as a bar to any suit against said guardian or his surety, unless such suit is commenced within one year from the date of the discharge.”

After careful study of the record we conclude that there is an insurmountable obstacle in the path to a solution of the problem which the litigants present.

It is clear that the appellant invoked the jurisdiction of 'the circuit court to grant a writ of certiorari to effect the quashing of the order of the county judge dated 19 September 1955. The petitioner charged that the essential requirements' of law had not been followed and referred to Rule 2.17 “ ‘1954 Florida Rules of Civil Procedure’ ” 31 F.S.A., dealing with that remedy and to Sec. 11, Article V of the Constitution, F.S.A. The petition contained a specific prayer for a writ of certiorari. The action of the circuit court should, therefore, be judged by the rules regulating the discretionary writ of certiorari.

When the motion to dismiss the petition for certiorari reached the circuit judge he simply ordered that it be granted. The motion was based on only two grounds: that the petitioner had no right to file it, which gives us little information, and the “judgment of the County Judge’s Court * * * [was] not a final judgment.”

Putting together the specific ground of the motion and the circuit judge’s order, we come to the conclusion that he dismissed the •petition for certiorari because the order attempted to be reviewed had not become final, and that he did not pass on the merits of the order.

Doubtless he had in mind the general rule in certiorari procedure that an order will not be reviewed unless it is final, and that the hearing set by the county judge had not been held when he was asked to go into the matter that was to be determined.

We are not inclined to interfere with the order of' dismissal — we are not convinced that the ruling was improper. Moreover, were we to go beyond it and decide the propriety of the county judge’s order, we would, in our opinion, be passing upon a matter that the circuit judge seems not to have considered. We will not undertake to presume what ruling the county judge will eventually make or what decision an appellate court will reach when the validity of the order of 19 September 1955 is properly presented.

We dislike to appear to beg a question, especially one so vigorously presented as the one in this case, but we do not feel that the circuit judge erred or that we should circumvent him by determining at this stage of the litigation the propriety of the county judge’s order.

In ruling this way, we understand that neither the circuit court nor this court has prejudiced the positions of the parties.

Affirmed.

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


author: PER CURIAM.

text:
    Grover (Grubby) HILL, Petitioner, v. STATE of Florida, Respondent.
    No. A-42.
    District Court of Appeal of Florida. First District.
    Oct. 29, 1957.
    J. C. Adkins, Jr., and Ira J. Carter, Jr., Gainesville, for petitioner.
    Richard W. Ervin, Atty. Gen., and Odis M. Henderson, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Upon consideration of petition for writ of certiorari to review the judgment of the Circuit Court of Alachua County entered on the appeal from the judgment and sentence of the County Judge’s Court of said county, it is ordered that said petition be and it is hereby denied.

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


author: PEARSON, Judge. PER CURIAM.

text:
    Peter W. MOUYOIS, Appellant, v. Anne MOUYOIS, Appellee.
    No. 57-48.
    District Court of Appeal of Florida. Third District.
    Sept. 17, 1957.
    On Rehearing Oct. 24, 1957.

      Bruce A. Hood and James R. Roads, Hollywood, for appellant.
    Webster G. Wallace, Miami, for appellee.
   PEARSON, Judge.

The appellee brought an action in chancery entitled “Petition In The Nature Of A Bill Of Review To Have Divorce Decree Set Aside Because Of Fraud.” The defendant answered and a trial was had on the issues raised. The Chancellor found that the plaintiff had failed to establish fraud or sufficient overreaching of the husband to set aside the decree in the divorce action and denied plaintiff’s petition. The Chancellor further, “upon authority of its equity and its discretionary power”, considered the petition of the plaintiff as a petition to modify the alimony support payments provided in the separation agreement of the parties and approved by the court at the time of the divorce, and “pursuant to provisions set forth in Section 65.15 of the Florida Statutes,” modified said divorce decree by increasing the amount of 'the payments provided therein. The decree is reversed as to that part which modified the divorce therein. An additional question as to the propriety of the Chancellor’s allowance of temporary attorney’s fees and costs is considered and the Chancellor’s power to make such an award is affirmed.

The Chancellor has given a very complete summary of the factual background of the cause in his final decree.

“This cause originally started in another suit filed July 30, 1953 being Chancery No. 161523, wherein the same parties were the litigants. The plaintiff wife in said cause charged the defendant with extreme cruelty and the defendant personally appeared through counsel, and the case was referred to a Special Master, Garland M. Budd, who rendered his report and found the following:
“1. The Court has jurisdiction.
“2. That the defendant husband was guilty of extreme cruelty toward the plaintiff.
“3. That a property settlement contract dated June 30, 1953, and a supplemental contract date July 28, 1953 was entered into between the parties as a property settlement agreement. He found that the contract was clear and equitable.
“The Special Master recommended a final decree of divorce and approved the property settlement contracts. The testimony shows that the plaintiff testified that she was fully aware of the defendant’s financial ability and believed that the provisions contained in said agreement were adequate and ratified and confirmed said agreement at that time. A final decree of divorce was duly entered by this court on August 25, 1953, and duly approved the Special Master’s report and the property settlement agreements dated June 30, 1953, and the addenda to the agreement dated July 28, 1953. The petition in this cause to set aside said decree on the grounds of fraud is hinged on the allegation by the plaintiff that the property settlement agreement was obtained by deliberate fraud, coercion, deceit and overreaching upon the part of the defendant. She charges that the defendant has a financial worth of more than one-half million dollars. She further charges that she is in poor health, 49 years old, and unable to maintain herself. The defendant personally appeared, filed answer to the petition and generally denied the allegations contained therein, * * *.
“The testimony of the plaintiff shows on Page 41 of the transcript that the sole reason she has prosecuted this law suit is because she cannot afford to live the way she is living and she just had to do it. The testimony of the son corroborated said testimony. It shows that the plaintiff had changed her mind, in that she felt she wasn’t getting enough money.”

Upon the basis of these facts the Chancellor found that plaintiff’s petition to set aside the final decree and property settlement agreement should be denied.

The decree next provided

“The court upon authority of its equity and its discretionary power herein considers the petition of the plaintiff as a petition to modify the alimony support payments of $100.00 per month, and pursuant to provisions set forth in Section 65.15 of the Florida Statutes, it is hereby
“Ordered, adjudged and decreed that the final decree entered in Chancery Suit No. 161523 dated August 25, 1953 and recorded in Chancery Order No. 1094 on Page 393, be, and the same is hereby modified, and the defendant is hereby required from the date of the entry of this decree, to pay unto the plaintiff as alimony for her support the sum of $100.00 per week until further order of this court. This court finds that said amount is commensurate with the plaintiff’s needs and the husband’s ability to pay.”

We agree with the Chancellor in everything except his conclusion that he had the jurisdiction to make the orders contained in this second portion of the final decree. A court of equity has wide powers but these powers are limited to the cause before him. It is obvious that a Chancellor can not, because of some inherent power, enter a decree upon disputes which are not based upon pleadings. Nor does Section 65.15, Florida Statutes 1955, F.S.A., presume to confer such general powers. Upon the contrary, the language of the Statute itself imposes the restriction:

“Whenever * * * the circumstances of the parties or the financial ability of the husband shall have been changed since the execution of such agreement, or the rendition of such decree, either party may apply to the circuit court * * * for an order and judgment decreasing or increasing the amount of such separate support, maintenance or alimony, and the court, after giving both parties an opportunity to be heard, and to introduce evidence relevant to the issue, shall make such order * * (Emphasis added.)

In this case the plaintiff-appellee did not apply for an order increasing the amount of alimony. The complaint is based solely upon fraud, duress and coercion and prays only for a finding that the divorce decree is void. Such a complaint cannot be construed as an application for modification of terms of such decree.

The case was tried upon the issue presented by the pleadings. We have carefully read the record and nowhere is the issue of modification raised; therefore the defendant has not had an opportunity to be heard upon such issue. A petition for a modification of an award of alimony is a statutory proceeding and can only proceed upon an allegation of sufficient facts to warrant granting of the relief prayed. Norton v. Norton, 131 Fla. 219, 179 So. 414; Watson v. Watson, Fla.1956, 88 So.2d 133. So much of the decree as attempts to modify or change the decree in the previous divorce action must be reversed.

The appellant’s assignments of error going to the allowance of temporary attorney’s fees, and costs, are not well taken. These assignments are four in number, going to: (1) the court’s order requiring the defendant to pay temporary attorney’s fees of $500; (2) the court’s order requiring the defendant to pay the sum of $300 to plaintiff, representing traveling costs from New York to Miami and Miami to New York for a court hearing held February 17, 1956; (3) the court’s order requiring defendant to pay costs of his oral examination on behalf of plaintiff; and (4) the assessment of costs of the proceedings against the defendant in the final decree. The well established rule regarding the assessment of costs incident to the maintenance of a suit in equity as set forth in Akins v. Bethea, 160 Fla. 99, 33 So.2d 638, 640, “It has long been a fundamental rule of equity jurisprudence that in a chancery cause costs should be awarded as the justice of the case may require,” is a sufficient basis for the Chancellor’s ruling upon (3) and (4). No clear abuse of discretion has been made to appear.

The allowances of a temporary attorney’s fee and traveling costs (1) and (2) above were made in an interlocutory Order dated January 31, 19S6. At this stage in the proceeding the cause was at issue upon a complaint and an answer. The gist of the complaint was that the plaintiff was then and there still the wife of the defendant even though a fraudulent divorce had resulted in a voidable decree. The complaint set out that said decree was void because of lack of jurisdiction and that the defendant had by threats and violence forced the plaintiff to allege a jurisdiction that did not exist. The defendant moved to cancel or modify notice of taking oral deposition of the defendant by the plaintiff, whereupon the plaintiff set the cause for hearing before the court. The plaintiff came from her home in New York City. The defendant appeared only by his attorney and was not prepared to proceed. Under these circumstances the court entered its order of January 31, 19S6, by the terms of which the defendant was relieved from the effect of the notice to take his deposition in Miami, Florida, but he was required to appear for said purpose at a .place designated in New York City. A further hearing on the merits was set for February 17, 1956, and the defendant was required to pay the attorney’s fee and travel expenses set out in (1) and (2) above. The allowance was within the discretion of the court. Miller v. Miller, 149 Fla. 722, 7 So.2d 9.

The decree is reversed insofar as it attempts to modify the final decree entered in Chancery Suit No. 161523 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, and dated August 20, 1953, and affirmed in all other respects.

Affirmed in part and reversed in part.

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

On Rehearing Granted

PER CURIAM.

By petition for rehearing appellant contends that the circuit court’s order allowing attorney’s fees and suit money to the former wife pendente lite was not permissible under the decisions of the Supreme Court, and that Miller v. Miller, 1942, 149 Fla. 722, 7 So.2d 9, on which this court relied in the main opinion, does not support the challenged order, in view of the later ruling in Lechner v. Lechner, 1944, 154 Fla. 114, 16 So.2d 816.

In the Miller case the Supreme Court-allowed a former wife fees for services-of her attorney in the appellate court, on reviewing a dismissal of her suit to upset a divorce decree. Later, in the Lechner case, and in Finston v. Finston, 1948, 160 Fla. 935, 37 So.2d 423, the Supreme Court ruled that a former wife was not entitled', to such allowances in the absence of a marriage relationship.

The Lechner and Finston cases are in-conformity with the earlier cases in which, the rule had been established in Florida, that marital relationship between the parties is necessary as a basis for allowance-of attorney’s fees and suit money in such-proceedings. Carson v. Oldfield, 99 Fla. 862, 127 So. 851, 853; Vinson v. Vinson, 139 Fla. 146, 190 So. 454, 456; Davis v. Davis, 143 Fla. 282, 196 So. 614, 615; Slade v. Slade, 153 Fla. 125, 13 So.2d 917, 919.

Chapter 21881, Sections 1-3, Laws of Florida, 1943, passed to give relief in such cases, was held invalid in certain particulars in Chiapetta v. Jordan, 1944, 153 Fla. 788, 16 So.2d 641, and was repealed by Chapter 22858, Section 7, Laws of Florida, 1945. The statute was re-enacted in a different form by Chapter 25037, Sections 1, 2, Laws of Florida, 1949, and now appears as Section 65.16, Fla.Stat., F.S.A., as follows :

“(1) Whenever any legal proceeding is brought for the purpose of enforcing a decree or order of the court, providing for the payment of alimony or support for children, the court may, in the exercise of a sound judicial discretion, allow to the divorced wife such sums of suit money, including a reasonable attorney’s fee, as from the circumstances of the parties and the nature of the case shall be fit, equitable and just.
“(2) Any order so made under the provisions of this section shall be enforced in the same manner as are other chancery orders or decrees.”

That statute concerns allowances to an ex-wife in proceedings for enforcement of a decree or order for alimony or child support. It is not applicable in the case of a suit or proceeding by an ex-wife to set aside a divorce decree for fraud. See McNeill v. McNeill, Fla.1952, 59 So.2d 57; Selinsky v. Selinsky, Fla.1952, 62 So.2d 24; Simpson v. Simpson, Fia.1953, 63 So.2d 764; Haynes v. Haynes, Fla.1954, 71 So.2d 491.

The chancellor, in his final decree, showed clearly his awareness of the rule when he refused to grant the request of the ex-wife for attorney fees, placing his refusal on the ground of the absence of marital relationship. But his denial of attorney’s fees requested on final hearing did not cure the pendente lite order by which attorney’s fees and suit money had been allowed the ex-wife, and as to which appellant had assigned error.

Therefore, the judgment and opinion of this court dated September 17, 1957, is amended to eliminate our approval of the chancellor’s pendente lite allowance to the former wife of $500 attorney’s fees, and $300 for travel expenses (see Slade v. Slade, supra), which allowances the chancellor was without authority to grant her; and the order of the lower court allowing such attorney’s fees and suit money pen-dente lite is reversed.

It is so ordered.

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


text:
    George P. GOODWIN, Petitioner, v. STATE of Florida, Respondent.
    No. A-41.
    District Court of Appeal of Florida. First District.
    Oct. 29, 1957.
    J. C. Adkins, Jr., and Ira J. Carter, Jr., Gainesville, for petitioner.
    Richard W. Ervin, Atty. Gen., and Odis M. Henderson, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Upon consideration of petition for writ of certiorari to review the judgment of the Circuit Court of Alachua County entered on the appeal from the judgment and sentence of the County Judge’s Court of said county, it is ordered that said petition be and it is hereby denied.

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


author: HORTON, Judge.

text:
    Christine GOSLINOWSKI, Appellant, v. George S. GOSLINOWSKI, Appellee.
    No. 57-109.
    District Court of Appeal of Florida. Third District.
    Oct. 29, 1957.
    David Levine, Miami, for appellant.
    Long, Crouch & Ward, Hallandale, for appellee.
   HORTON, Judge.

The appellant wife filed suit for divorce on the grounds of extreme cruelty and sought custody of the minor children, alimony and suit money. After the filing of the bill of complaint and upon notice and hearing, the lower court granted the appellant temporary custody of the minor children, ordered the appellee to pay $40 per week for her support and that of the children, and enjoined the appellee from annoying or harassing the appellant. Ap-pellee filed an answer to the complaint denying the material allegations and a counter-complaint for divorce charging the appellant with extreme cruelty and adultery. The appellant answered the counter-complaint by a denial and as to the charge of adultery, alleged that any such acts on her part had been condoned by the appel-lee by reason of subsequent cohabitation, and the Chancellor ruled accordingly.

Upon the issues made by the complaint, the answer, counter-complaint and reply thereto, the cause was tried. The trial judge granted the appellee a divorce upon findings that the appellant had been guilty of extreme cruelty and adultery on two occasions; in Tucson, Arizona and subsequently in Florida, about the time the cause was heard. Custody of the children was awarded the appellee, the appellant was denied alimony and directed to convey her interest in the home to the appellee.

It is from this final decree that the appellant has appealed. She claims the lower court erred in a finding of adultery contrary to the evidence, and in requiring the appellant to reconcile with the appellee or to suffer an adverse decree if she did not comply.

The chancellor in the lower court was faced with a gargantuan if not an insurmountable task of attempting to bring a semblance of order and stability out of the chaos and confusion that had been built up over the years by a multitude of matrimonial storms. The chancellor’s efforts in attempting to reconcile the differences between the parties were commendable, but we feel from his own statement and our analysis of the evidence that he failed to apply the applicable principles of law to the evidence.

This court can see no useful purpose that would be served in rehashing the differences, discord and unfortunate circumstances that brought this marriage to a divorce court. The record is replete with acts of indifference and marital indignities committed by each of the parties toward the other. When viewing all of the evidence, we can only conclude that both parties were to blame for the lamentable situation that eventually culminated in separation. The chancellor below seemed to be of a like mind for he indicated that he felt neither party was deserving of having custody of the minor children. The decree in this case obviously was based upon an alternative which the lower court gave to the parties with which the appellant refused to comply. In refusing the court’s ultimatum to reconcile with the appellee, she thereupon suffered an adverse decree.

Under .the circumstances reflected by the record, we conclude that the lower court was in error in finding on the basis of the evidence that the appellant had been guilty of adultery. The affair in Tucson was clearly condoned and the chancellor so found. The incidents in Florida were reported by two private investigators and consisted of certain questionable fishing trips in the Florida Keys. The facts proffered are wholly inadequate to support a finding of adultery. Although the nature of the alleged act is such that it is usually impossible to establish by direct testimony, there must be sufficient facts to justify a reasonable conclusion that such acts were committed. See Engebretsen v. Engebretsen, 151 Fla. 372, 11 So.2d 322. Cf. Ingraham v. Ingraham, 80 Fla. 75, 85 So. 666; Crews v. Crews, 130 Fla. 499, 178 So. 139; Coffee v. Coffee, 151 Fla. 771, 10 So.2d 431; Schuberth v. Schuberth, Fla., 1951, 52 So.2d 332.

The appellee announced in the lower court upon the conclusion of the taking of testimony that he did not want a divorce and he has, through his counsel, repeated that position to this court. It thereupon becomes obvious that no predicate existed for the relief granted. Although we are of the view that the evidence does not support a finding of adultery on the part of the appellant, we do not conclude that she is entitled to relief on her claim, as there is ample evidence in the record to support the chancellor’s denial of such relief.

In light of the foregoing views expressed, the decree of the lower court is reversed and remanded with directions to dismiss the appellant’s bill of complaint, the appel-lees’ counter-complaint and the amendment thereto.

Reversed and remanded with directions.

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

      . “Mr. Levine: T object. It is apparent from defendant’s counterclaim the offense or imagined offenses are condoned from his own admission, anything that happened in Tucson, from his own deposition and sworn counterclaim.’ The Court: ‘I think the point is well taken. No use smearing. If be lived with her and did not want a divorce, still condoned.’ (Discussion off the record) The Court: ‘If she did it since in Florida I will entertain it; otherwise it is clearly condoned.”

      . At the conclusion of all the evidence the court addressed the appellee as follows: “The Court: ‘I am forced to the conclusion that your wife is more faithless than she should be. I am thoroughly convinced neither party is deserving of the children and if there were a better or more workable situation in Florida I would take them away from you.’ Witness: ‘Why don’t you give me a chance again to try again to make a home?’ The Court: ‘You do not believe in divorce not even in the light of what happened?’ Witness: ‘The charges were worse in Arizona. I don’t know whether this sounds right. I am still in love with my wife and the children.’ The Court: ‘You don’t want a divorce now?’ Witness: ‘No. I even could go away for a year and when I came back maybe she would be different. At least I retain that Catholic religion. I think it is terrible for the children to be without parents.’ * * * Q. (the Court) ‘Your home is deteriorated unquestionably.’ A. ‘Yes, but it could bo repaired if we had some help.’ The Court: ‘Just as much your fault as your wife’s, even more so. That concludes this hearing. I will see counsel later on what X can do. Any time you want to come we will try and arrive at something sensible. I want you gentlemen to think about it. I am glad both are as cooperative to help the court arrive at some solution. In the meantime I am going to leave the matter status quo. * * * t tt

      . The Chancellor states the alternative in the final decree as follows: “That the Court, after final argument, announced to the parties that every effort should be made to reconcile in view of Defendant having abandoned his counterclaim for divorce and evidencing a desire for reconciliation for the best interests of the four children of the marriage. The Court then announced its decision in the alternative as follows: (a) That if the parties could put aside their stubborn attitudes and reconcile for the sake of the children, the Court would see to it that Defendant gave the Plaintiff $50.00 per week for the expense of her table, and make the Defendant provide her .with an automobile for transportation, and allow the wife to run the home in dignity and without interference of the Defendant. (b) That the parties would be given until Monday, September 24, 1956, to think the matter over, and if there was no reconciliation the Court would grant a divorce and award custody of the minor children to the Defendant, denying the Plaintiff permanent alimony. That on Monday,’ September 24, 1956, the parties appeared before the Court through counsel, and Plaintiff announced that she refused to consider a reconciliation; the Defendant announced that he would provide Plaintiff a car for transportation immediately, turn over all the family income per month to her, and would reconcile for the benefit of the children under any terms the Court desired. * * * ”


text:
    Judge BAKER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. A-71.
    District Court of Appeal of Florida. First District.
    Oct. 22, 1957.
   PER CURIAM.

Affirmed.


text:
    Marie H. LEWIS, Appellant, v. Jess E. LEWIS, Appellee.
    No. A-83.
    District Court of Appeal of Florida. First District.
    Oct. 22, 1957.
   PER CURIAM.

Affirmed.


text:
    William John BALKO, Appellant, v. Joan Ann BALKO, Appellee.
    No. A-66.
    District Court of Appeal of Florida. First District.
    Oct. 22, 1957.
   PER CURIAM.

Affirmed.


text:
    Elaine Williams JENKINS, Appellant, v. Ethel W. KEISTER and Clyde M. Williams, Individually and as Executors of the Estate of Mattie M. Williams, Deceased, Appellees.
    No. 57-121.
    District Court of Appeal of Florida. Third District.
    Oct. 24, 1957.
   PER CURIAM.

Affirmed.


text:
    Cecelia SHEPHERD and William Shepherd, Appellants, v. Jacob FOX and Helen E. Fox, Appellees.
    No. 57-204.
    District Court of Appeal of Florida. Third District.
    Oct. 22, 1957.
    Rehearing Denied Nov. 15, 1957.
   PER CURIAM.

Affirmed.


text:
    Frances BILL and Ramon Bill, her Husband, Appellants, v. Mary M. COLE, d/b/a Ollie Trout’s Trailer Park, Appellee.
    No. 57-144.
    District Court of Appeal of Florida. Third District.
    Oct. 22, 1957.
   PER CURIAM.

Affirmed.


text:
    A. I. HOLDEN, Appellant, v. Esther ROGOVIN, Appellee.
    No. 57-49.
    District Court of Appeal of Florida. Third District.
    Oct. 29, 1957.
   PER CURIAM.

Affirmed.


author: REGAN, Judge.

text:
    Vernon E. REANEY, Jr. v. Clifford MABRY.
    No. 20871.
    Court of Appeal of Louisiana. Orleans.
    Nov. 18, 1957.
    Harold M. Rouchell, New Orleans, for plaintiff and appellant.
    Vic Choppin, Jr., New Orleans, for defendant and appellee.
   REGAN, Judge.

Plaintiff, Vernon E. Reaney, Jr., instituted this suit against the defendant, Clifford Mabry, endeavoring to recover the sum of $359.57, representing property damage incurred on February 26, 1956, at 7:30 a. m. as a result of an intersectional collision in Mandeville and Ur.quhart Streets, in the City of New Orleans, between plaintiff’s Ford and defendant’s Mercury automobile.

Defendant answered and admitted the occurrence of the accident but asserted that the proximate cause thereof was the negligence of the plaintiff in failing to maintain a proper lookout and in the alternative pleaded the contributory negligence of the plaintiff. Defendant then reconvened claiming the sum of $354.90, representing property damage incurred by his vehicle.

From a judgment dismissing both the main and the reconventional demands only plaintiff has prosecuted this appeal. The defendant has neither appealed nor answered the appeal, and therefore that phase of the matter is not posed for our consideration.

The intersection of Mandeville and Urquhart Streets is what has been colloquially designated as a blind intersection, and both are two-way streets. Plaintiff in relating his version of the accident asserted that he was operating his vehicle in Mandeville Street moving from the lake toward the river at a speed of approximately twenty miles per hour. Prior to reaching the intersection, he sounded his horn, looked in both directions, and then drove into the intersection; when he was more than halfway across he observed defendant’s car about fifteen feet away, and he then “ducked down on to the seat to avoid being thrown out” since he knew that a collision was imminent. The car occupied by the plaintiff was thrown on to the sidewalk of the downtown river corner of the intersection resulting in the property damage which is the subject matter of this litigation.

The defendant in relating his version of the accident asserted that he was operating his vehicle in Urquhart Street, moving in the general direction of the Industrial Canal at a speed of less than twenty miles per hour, and that upon reaching the intersection he slowed his speed, looked in both directions, observed no vehicle approaching, and then drove into the intersection. When he was almost across the intersection, his vehicle struck the right door and fender of the plaintiff’s vehicle.

It is conceded that neither party observed the approach of the other. The trial judge was obviously of the opinion, since he dismissed both the main and re-conventional demands, that both the plaintiff and defendant were guilty of joint and concurring negligence proximately causing the accident inasmuch as they failed to maintain a proper lookout and to have their vehicles under control. Our examination of the record fails to reveal any error in his legal or factual conclusions. The record discloses that the respective operators of the vehicles involved in the collision were the only witnesses to the accident. An analysis of their testimony convinces us that both automobiles approached this blind intersection without regard as to the possible existence of the other until a split second before the collision became imminent. It is our opinion that under these circumstances both operators were guilty of negligence in failing to exercise that degree of caution commensurate with the blind characteristics which this intersection exemplified; and, therefore, there can be no recovery for property damage incurred by either litigant. The supreme rule of the road is the rule of mutual forbearance, especially when the respective vehicles are approaching or entering a blind intersection.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.


text:
    Robert T. NEAL v. Leo LEVESQUE et al.
    No. 20939.
    Court of Appeal of Louisiana. Orleans.
    Nov. 4, 1957.

      Lawrence Hennessey, Jr., New Orleans, for plaintiff-defendant in reconvention and appellee.
    Walter J. LeBreton and Rudolph R. Schoemann, New Orleans, for defendant-plaintiffs in reconvention and appellants.
   REGAN, Judge.

Plaintiff, Robert T. Neal, the owner and operator of a 1954 Chevrolet sedan instituted this suit against the defendants, Leo Levesque, the owner and operator of a 1956 Studebaker station wagon, and his insurer the Calvert Fire Insurance Company, endeavoring to recover the sum of $262.24, representing property damage incurred by his vehicle as a result of a collision which occurred between the aforementioned vehicles on May 5, 1956, at 8 P. M., approximately 40 feet east of the intersection of Chef Menteur Highway and Paris Road.

Defendant, Calvert Fire Insurance Company, pleaded the exceptions of no right or cause of action predicated upon the fact that it is only the collision and not the public liability insurer of the Levesque vehicle. These exceptions were in effect ultimately sustained, and the defendants then answered and denied that Levesque was guilty of any negligence in the premises and in the alternative pleaded the contributory negligence of the plaintiff. Defendants also reconvened asserting that they were entitled to recover the combined sum of $558.-99, representing property damage incurred by the Levesque vehicle as a result of the collision.

From a judgment in favor of plaintiff against defendant Levesque in the amount of $262.24, and dismissing the defendants’ reconventional demand, they have prosecuted this appeal.

The record, as usual, is embellished with irreconcilable disputations and reveals two versions of the accident, which are fundamentally antagonistic to each other. There were only three eyewitnesses to the accident: the plaintiff, Mrs. Louis Neal, his daughter-in-law, and the defendant, Leo Levesque.

The Chef Menteur Highway is a broad thoroughfare consisting, at the point where the accident occurred, of two roadways separated by a wide neutral ground, with each roadway containing two lanes. Paris Road is a two-way street running north and south, or from the lake to the river, which crosses the Chef Menteur Highway.

Plaintiff contends that he was operating his vehicle in Paris Road, moving from the lake toward the river. He stopped when he reached the intersection of Chef Menteur Highway and Paris Road in obedience to a stop sign. He then drove across the west, or inbound portion of the roadway, and then came to a stop in the neutral ground area thereof; to his right he observed the defendant’s vehicle approaching from about 1000 to 1500 feet away moving at a speed of between 60 and 65 miles per hour; believing that it was safe, he then executed a left turn into the left lane of the east, or outbound, roadway and drove approximately 40 feet from the intersection at which point the left rear of his vehicle was struck by the right front of the defendant’s vehicle. In consequence of the impact, plaintiff’s car was driven into a swamp on the right side of the road approximately 150 feet removed from the situs of the accident.

Plaintiff’s daughter-in-law appeared as a witness on his behalf and in substance corroborated the validity of the foregoing testimony.

Defendant, Leo Levesque, testified that he was driving in the left lane of the outbound roadway of the Chef Menteur Highway moving in an easterly direction, or toward Chef Menteur, at a speed of approximately 40 to 45 miles per hour. He asserted that he initially observed plaintiff’s vehicle as it traversed the inbound roadway of the highway, at which time he was about 150 feet removed from the intersection; that when he had moved to within 50 feet of the intersection the plaintiff emerged from the neutral ground area and executed a left turn into the left lane of the highway directly in the path of his vehicle. Defendant stated that despite his efforts to avoid the accident, the collision occurred 15 feet from the intersection.

A police officer who investigated the accident appeared as a witness on behalf of the defendants, but his testimony, in our opinion, failed to enlighten the Court.

All of the witnesses who appeared herein during the course of the trial below agreed that both automobiles were moving in an easterly direction in the left lane of the Chef Menteur Highway and had completely cleared the intersection of Paris Road when the accident occurred.

We have made a careful analysis of the record and are convinced that the proximate or dominant cause of the accident was the negligence of the defendant, Levesque, in simply failing to observe that which he should have seen, that is, plaintiff’s car which had entered and was moving in the highway ahead of him. Plaintiff had completed the execution of a left turn and was driving in an easterly direction in the left lane of the highway when, as we have said hereinabove, the front of defendant’s vehicle collided with the rear of plaintiff’s vehicle.

Even if we should assume arguendo that the plaintiff was guilty of primary negligence, which the record fails to establish, then we are of the opinion that the defendant possessed the last clear chance of avoiding the collision. He testified that he observed plaintiff crossing the inbound roadway of the highway when he was approximately 150 feet from the intersection moving at a speed of about 40 to 45 miles per hour, and he was therefore afforded both the time and distance in which to move his vehicle over into the right lane of the highway and thus safely pass the plaintiff and avoid the accident.

The record, as we have indicated hereinabove, does not reflect a preponderance of evidence which would tend to prove that plaintiff was guilty of contributory negligence.

Counsel for both litigants concede that only a question of fact was posed on appeal, which the trial judge' obviously resolved in favor of the plaintiff. Our evaluation of the testimony contained in the record fails to disclose any reason, factual or otherwise, which would cause us to believe that the judgment of the trial court was incorrect.

By stipulation of respective counsel, it was agreed that the property damages incurred to plaintiff’s vehicle by virtue of the accident was $262.24.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

      . By virtue of a stipulation between the respective litigants and a corrected judgment.


author: JANVIER, Judge. REGAN, Judge

text:
    James V. LA ROCCA v. Vernon DUPEPE et al.
    No. 21038.
    Court of Appeal of Louisiana. Orleans.
    Nov. 4, 1957.

      Moliere & Zacearía, Frank V. Zacearía, New Orleans, for plaintiff-appellant.
    Frank H. Langridge, Gretna, and Patrick E. Carr, New Orleans, for defendants-ap-pellees.
   JANVIER, Judge.

This matter comes before us on suspen-sive and devolutive appeal by James V. LaRocca, plaintiff, from a judgment dismissing on exception of no cause of action his suit brought under authority of LSA-R.S. 48:703.

Plaintiff seeks to establish his right under LSA-R.S. 48:701 to parts of certain streets contiguous to his property and which streets have been abandoned by the Police Jury and exchanged to the defendant, Vernon Dupepe, for certain property of Dupepe which is to be, or is being used, in the construction of a new street.

The Police Jury of the Parish of Jefferson, under an ordinance properly and formally adopted, has exchanged the land formerly occupied by the streets in question with Vernon Dupepe for his land which is to be used for the new street, and they have proceeded purportedly under authority of LSA-R.S. 48:702, taking the position and stating in the ordinance that the streets which are being exchanged to Dupepe are made unnecessary by the construction of the new street.

There is no dispute over the meaning of the several referred to sections of Title 48, which sections control the abandonment by municipal authorities or parish police juries of roads or streets. The only controversy arises over the contention of the defendants, Vernon Dupepe, the Police Jury and all of the individual members of the Police Jury (though not named in the petition) who contend that plaintiff cannot be heard to attack the action of the Police Jury in carrying out the exchange since he has made no allegation to the effect that the said action of the Police Jury is arbitrary or capricious.

The portion of the section of the Revised Statutes which plaintiff says is applicable is LSA-R.S. 48:701 and reads as follows:

“The parish governing authorities and municipal corporations of the state, except the parish of Orleans, may revoke and set aside the dedication of all roads, streets, and alleyways laid out and' dedicated to public use within their respective limits, when the roads, streets, and alleyways have been abandoned or are no longer needed for public purposes.
“Upon such revocation, all of the soil covered by and embraced in the roads, streets, or alleyways up to the center line thereof, shall revert to the then present owner or owners of the land contiguous thereto.”

The section of the statute which defendants say is applicable is 702 of LSA-R.S. 48. It reads as follows:

“Whenever the governing authority of any parish desires to construct a road, street, or alley leading to any property of the state or any of its subdivisions, boards, commissions, or political corporations, and it appears that the construction will make it unnecessary to the public welfare to continue any then existing road, street, or alley or any part thereof to permit access to or from the public property or to or from any property served by the old road, the parish governing authority may, by proper ordinance, revoke and set aside the dedication of the road, street, or alley, or any part thereof and exchange it with property owners so that new roads, streets, or alleys, or parts thereof, leading to or from any property of the state or any of its subdivisions, boards, commissions, or political corporations may be laid out and dedicated to the public use. The property so exchanged shall become private property.”

LSA-R.S. 48:703 under which the suit is brought provides that:

“Any person, other than the person to whom the abandoned property is exchanged, having or claiming to have any right, title, or interest in or to any property abandoned and exchanged by a parish governing authority pursuant to the provisions of R.S. 48:702 shall file suit to establish the right claimed within six months after the date of publication of the public notice of abandonment or lose by prescription all such rights, title, and interest in or to the property. This prescription runs against all persons, including minors and interdicts.”

When we come to consider the exception of no cause of action, we of course must assume the truth of the allegations of the petition, and counsel for all parties in oral argument stated that the allegations of the petition are true. The facts then seem to be as follows: LaRocca is the owner of two pieces of real estate in the Parish of Jefferson, which properties front on Hullen and Robertson Streets, which cross each other at a right angle, the properties of plaintiff forming the corner. The streets which have been abandoned, though admittedly originally dedicated, have never been actually used. The Police Jury, by formal ordinance and act of exchange, exchanged the land forming the portions of those streets in question for certain property of Dupepe and, in addition to the exchange, paid to Dupepe $15,000 in cash. We are in no way concerned with that cash payment.

We repeat that what is alleged is that the Police Jury is exchanging certain portions of two streets for another piece of land owned by Dupepe and is basing its right to make the exchange on its statement in the ordinance that the new street, which is opened over the land obtained by exchange, has made the older streets “unnecessary” and, it is conceded by plaintiff that, if the new street serves the area formerly served by the old, then the construction of the new will have made the old unnecessary and the Police Jury had the legal right to make the exchange.

On behalf of plaintiff, however, it is argued that the new street bears no relationship geographically or otherwise to the old streets, or to the areas contiguous to the old streets, and that therefore the abandonment of the old streets could not have been made under authority of section 702 which authorizes the exchange under certain conditions, one of which is that the new street must have made the old unnecessary but should have been made under authority of section 701 which provides that when a street is abandoned, not because a new one is being opened but merely because the old street serves no useful purpose, then the owners of contiguous lands ipso facto and automatically become the owners of the land which formerly formed the streets which were abandoned.

On behalf of defendants it is strenuously argued that the action of the Police Jury, in abandoning the streets, cannot be attacked in the absence of an allegation that the action is capricious or arbitrary or fraudulent, and authorities are cited to this effect. Murphy v. Police Jury of St. Mary Parish, 118 La. 401, 42 So. 979; Caz-Perk Realty, Inc., v. Police Jury of Parish of East Baton Rouge, 213 La. 935, 35 So.2d 860. This conclusion is based on the fact that the governing authority in such case is given discretion to determine whether a street should be abandoned, and therefore that discretion should not be interfered with in the absence of an allegation that it is exercised capriciously and arbitrarily.

Though it is well settled that such a governmental authority, as a municipality or a police jury, may not be prevented from exercising its discretion unless it does so arbitrarily or capriciously, this does not mean that, where a state statute authorizes action on certain conditions, such a governing authority, as a police jury or a municipality, has the discretion to authorize the contemplated act and to waive or to alter the conditions set forth in the statute.

In Cook v. City of Shreveport, 163 La. 518, 112 So. 402, a state statute authorized municipalities in which street improvements were to be made, to permit the property owners to pay their share in installments, and provided that interest on the installment payments should be fixed at six per cent. The City of Shreveport attempted to require the payment of eight per cent interest on these installments, and the Supreme Court held that the City of Shreveport was not authorized to make any such change in the conditions which were set forth in the state statute.

The question which is presented here was not that which was presented in any of the cases in which it was held that the discretion of a governing authority should not be interfered with unless exercised arbitrarily and capriciously. The question of interference with discretion is not presented here. The Police Jury necessarily had the right to abandon the streets in question, but it had no right to exchange the abandoned streets for the other property of Dupepe, unless the opening of the street on the property obtained from Dupepe was what made it unnecessary that the older streets be continued.

We think, therefore, that all that the plaintiff was required to allege was, that it was not the opening of the new street which would make the old unnecessary, and that the new street would serve no purpose whatever in connection with the properties of the plaintiff and others in that general area which was contiguous to the old streets which have been abandond. It is true that plaintiff did not even make that allegation. However, he did allege that, under the laws of the State (unquestionably referring to LSA-R.S. 48:701), he, as a contiguous owner, was entitled to the half of the abandoned streets contiguous to his properties. That allegation must necessarily be interpreted as charging that the new street which was opened was not the reason which made the old streets unnecessary. Though his allegations were somewhat vague in that he did not expressly state that the abandonment of the old streets did not result from the opening of the new street, that was necessarily what he meant.

Furthermore, his allegations, though vague, must be construed as charges that the new street would to no extent serve the old area. Such an allegation, if made, might be construed as a charge that the action of the Police Jury was capricious and arbitrary, since, if such a charge could be sustained, the action of the Police Jury, in making the exchange without any legal foundation, would have deprived him and other contiguous owners of their rights given them by section 701, that is, of course, if the abandonment resulted simply and solely from the fact that the streets to be abandoned were not and had never been necessary. In fact, it is conceded that those streets were not and had never been necessary. They had never been actually opened, and it was admitted in oral argument that they were completely covered with rubbish and trash and could not be and had never been used as passageways.

Our conclusion is that, though the petition does not affirmatively contain the allegations that the action was arbitrary or capricious, and though it does not contain the allegation that the abandonment of the old streets, was not made unnecessary by the opening of the new, the fault with the petition lies not in the fact that it alleges facts which show that plaintiff has no cause of action, but that it fails to allege facts which possibly may be alleged and which, if true, might show that he has a cause of action.

A petition should not be dismissed on an exception of no cause of action merely because it fails to contain allegations which possibly may be added and which, if added, would establish the existence of a cause of action. Jones v. Commagere, La.App., 189 So. 603; Robinson v. Allen, La.App., 88 So.2d 64.

Strangely enough though, in the caption of the petition the names of all the defendants, to wit Dupepe, the Police Jury and each member of that Police Jury, are mentioned, no one of the members of the Police Jury is mentioned by name in the petition nor in the prayer. However, each of the defendants, Dupepe, the Police Jury through the District Attorney, and each member of the Police Jury, filed an exception and all referred to themselves as defendants and apparently made no issue of the fact that they were not actually named as defendants.

Our conclusion is that the exception of no cause of action should not have been maintained.

Consequently, the judgment appealed from is annulled, avoided and reversed and the matter is remanded to the Twenty-fourth Judicial District Court for the Parish of Jefferson for further proceedings according to law and not inconsistent with the views herein expressed.

Reversed and remanded.

REGAN, Judge

(dissenting).

The author hereof is fully cognizant that the Supreme Court has on rare occasions asserted that it will not exercise its supervisory jurisdiction when the judgment complained of is not final because we remanded the matter to the court of original jurisdiction. However, I am of the opinion that exceptional questions have posed themselves for judicial consideration, and under these circumstances it may be that the Supreme Court will choose to review this court’s opinion.

For instance, one of the vital questions posed is whether a citizen may interfere with the discretion exercised by a police jury in the absence of any allegation of arbitrariness or capriciousness, since it is well settled that courts will not interfere with the functions of police juries or other public bodies in the exercise of the discretion vested in them unless such bodies abuse this power by acting capriciously or arbitrarily, or secondly, and even more vital, whether the courts will be permitted to interfere with the legislative branch of government in the legitimate exercise of its powers since any such action would do violence to the doctrine of the separation of powers of government, i.e. executive, legislative, and judicial.

Whatever tends to increase the power of the judiciary over the legislature (whether it be national, state, municipal, or parish) diminishes the control of the people over their government, negatives the free expression of their will, and is in conflict with both the spirit and the letter of the organic law. There is constitutionally no place ini our government for judicial hegemony. The function of the court is to interpret rather than legislate. Of course, I realize that the courts have historically, engaged in, what Justice Holmes chose to term, interstitial judicial legislation; but this has been limited to carrying out the clearly defined intent of the legislature — that is, to fill in what the lawmaker obviously left out. Such is not the case here; both sections of the statute are clear and unambiguous and are in need merely of interpretation.

I am also in full accord with the jurisprudence’s philosophical aversion to extremely technical pleadings or as the organ of the majority opinion stated:

“A petition should not be dismissed on an exception of no cause of action merely because it fails to contain allegations which possibly may be added and which, if added, would establish the existence of a cause of action. * * * ” (Emphasis supplied.)

However, the plaintiff’s petition reveals on its face the clear absence, not only of a ■cause but also of a right of action because -it fails to accuse the jury of arbitrary or ■capricious action, or an abuse of discretion. It even fails to use terminology which could be interpreted so as to have this ultimate effect; and it further reflects by virtue of the facts revealed therein that the case is not encompassed by the provisions of LSA-R.S. 48:701, but on the other hand is covered by the rationale expressed by the legislature in LSA-R.S. 48:702. This latter section of the statute, in my opinion, shows that the jury had a clear legal right to do what it did, as a careful reading thereof will indicate.

      . Caz-Perk Realty, Inc., v. Police Jury of Parish of East Baton Rouge, 1945, 207 La. 796, 22 So.2d 121.

      . See State ex rel. Torrance v. City of Shreveport, 1957, 231 La. 840, 93 So.2d 187; this was a mandamus proceeding which, of course, distinguishes it from the instant case; nevertheless, the language and analogies used in this opinion by the organ of the Court serve to point up the rationale upon which this dissent is predicated.

      . See Home Services v. Marvin, La.App. 1948, 37 So.2d 413, 415 wherein we said: “If we were to accept the reasoning .of defendant’s counsel with respect to ‘technicalities’ and apply it with all of its implications to this case we would, in .effect, be recognizing the validity of the sophistry that prevailed during the regime of ‘technicalities’ in Louisiana, usually referred to as the Augustan age -when, in the heyday of that era, pleadings were deemed to be an end in them.selves rather than merely a means to an end. Apparently, a delimma which sys-itemized legal philosophy must face and solve is a combination of a due regard for tbe claims of justice and equity with a procedural system rigid enough to be workable. When we favor one system of thought as diametrically opposed to the other, it is usually with the result that, one of two things happens, either all system is abandoned, or the system becomes such a labyrinth of technicalities that the reasoning of the courts is influenced almost entirely by the desire to apply and adhere to its procedural rules and, in the final analysis, only incidentally by the merits of the eases per se.”