author: TERRELL, Chief Justice.

text:
    STATE of Florida ex rel. Ray SANDEL, Defendant-Intervenor, Appellants, v. CITY OF HALLANDALE, Appellee.
    Supreme Court of Florida, Division A.
    May 10, 1957.
    Steele & Ransburgh, Hallandale, for defendant-intervenor, appellant.
    McCune, Hiaasen, Kelley & Crum, Fort' Lauderdale, for appellee.
   TERRELL, Chief Justice.

January 29, 1957, the City of 'Hall'andalé' filed its petition to validate public improve-: ment certificates, hereinafter called certifi-' cates, in the sum of $400,000 for the construction of 'municipal improvements, to wit, “two swimming pools; off street parking facilities; a public library; an addition to the City Hall; additional street lights; the construction and widening of various streets and sidewalks, including acquisition óf rights of way therefor, either by purchase or condemnation; the improvement' of fcertain public parks; the improvement of the public ' beach; the acquisition of additional parks; additions and improvements to the cemetery; the acquisition and improvement of garbage and trash disposal facilities, and drainage facilities;' the payment of all incidental engineering costs for these improvements or all legal and fiscal costs.” !

Order to show' cause was duly'published',; rule nisi was issued, answer was filed by-state attorney and on February '28, 1957, final decree validating the certificates was entered. In his final decree of validation the chancellor found that the City of Hal-landale was duly and legally organized as a municipal corporation, that under the laws of Florida and its city charter it was authorized to issue the certificates sought to be validated, that the City Commission of Hallandale on July 5, 1950, adopted Ordinance No. 252 granting a franchise to Florida Power and Light Company, that said ordinance was approved by the qualified electors of the City at an election held August 8, 1950, and that said City Commission on January 3, 1956, legally adopted an ordinance providing for the levy and collection of a tax or charge imposed on the purchase of electricity, metered or bottled gas (natural, liquefied petroleum gas or manufactured), and did by resolution duly and legally adopted September 11, 1956, authorize the issuance of certificates in the sum of $400,000 dated April 1, 1956, for the purpose of making the improvements in question. The court further found that no taxpayer or citizen or other person intervened or applied to become a party to the cause or show why the certificates should not be issued and that all requirements of law affecting their issue had been met. This appeal is from the final decree of validation.

Appellants have not filed a brief as required by the rules, nor has the procedure followed by them been regular. It is first contended that the improvements proposed are not specific but are too vague and indefinite. It is not contended that they are not authorized by the City or that they are not for a legal purpose.

We do not think there is any merit to this contention. The chancellor found to the contrary and there is ample support in the record for his finding. The resolution authorizing issuance of the certificates, including their content, provide that “this certificate including interest thereon, is payable solely from the aforesaid revenues (first pledge of the revenues to he derived by the City from the tax levied by it on the purchase of electricity, metered or bottled gas in the City and the revenues to be received annually by said City from Florida Power and Light Company for the franchise granted said company by the City pursuant to Ordinance 252, adopted July 5, 1950), and does not constitute an indebtedness of the City of Hallandale within the meaning of any constitutional, statutory or charter provision or limitation,” and “it is expressly agreed by the holder of this certificate that such holder shall never have the right to require or compel the exercise of the ad valorem taxing power of said City or the taxation or assessment of real estate in said City for payment of the principal or interest on this certificate or making of any sinking fund, reserve or other payments provided for in the above described resolution. It is further agreed between said City and the holder of this certificate and the obligation evidenced thereby shall not constitute a lien upon any property of or in the City of Hallandale but shall constitute a lien only on the revenues hereinabove in this paragraph described.” See also Welker v. State, Fla., 93 So.2d 591, 594.

Appellants’ second point is predicated on failure to comply with Section 100.201, Florida Statutes 1955, F.S.A. (Section 6, Article IX, Constitution, F.S.A.), and is equally without merit.

This court has repeatedly held that revenue certificates payable solely from returns derived from utility taxes and franchise fees are not bonds as contemplated by Section 6, Article IX of the Constitution requiring an approving vote of the freeholders. What we said in answer to the first question presented is ample to dispose of this question.

The validation decree is accordingly affirmed.

Affirmed.

THOMAS, ROBERTS and THORNAL, JJ., concur.


source: Caselaw Access Project

author: HOBSON, Justice. DREW, Justice

license: Public Domain

text:
    D. D. GODSHALK, Appellant, v. The CITY OF WINTER PARK, a municipal corporation, Roland D. Samuel, Frank Oliphant, Jr., Jake Vaughn, and Russell Jacobsen, Appellees.
    Supreme Court of Florida, En Banc.
    May 8, 1957.
    Charles V. Silliman and Gladstone L. Kohloss, Orlando, for appellant.
    Webber B. Haines, Winter Park, for appellees.
   HOBSON, Justice.

Appellant is a tile contractor who sought an occupational license under the terms of Ordinance No. 548 of the City of Winter Park. Although the license was issued, appellant was notified that the issuance was in error and that he'had failed to pass an examination which he had taken with a view to qualifying under the ordinance. Noticed for hearing on the revocation of his occupational license, appellant brought suit for a declaratory decree, contending that Ordinance No. 548 is invalid.

It was stipulated before the trial court "that the sole issues presented for determination were (1) whether or not Ordinance No. 548 was a valid ordinance “in that it fails to set up. proper standards to regulate the actions of 'the Winter Park Tile Examining Board” and (2) whether or not said Board as presently constituted complies' with the provisions of the ordinance.- On both of these issues the trial -judge ruled against the appellant, and the complaint was dismissed.

'Á contention which appellant now makes is 'that Ordinance No. 549 is invalid ■ in that it seeks to regulate the business of a title contractor, which is not affected with the public interest and bears no real or substantial relationship to any of the legitimate objectives of the police power.. Appellant relies, for example, upon Sullivan v. DeCerb, 156 Fla. 496, 23 So.2d 571, wherein we held invalid an act seeking to regulate and control the practice of photography. But .this issue is not ripe .for our determination in the case before us because of the position taken by the appellant in. the trial court. Indeed appel-lees in their brief assert, and it is not challenged by appellant, that in the proceedings below counsel for appellant, in answer to á direct question from counsel for appel-lees, “stated that he had abandoned any argument on the power of the City of Winter Park to regulate the trade or occupation of a tile contractor.” The stipulation as to the issues also rules out the question of whether or not the ordinance is discriminatory in that similar trades are not regulated. Appellees assert that the .stipulation was made before the time for taking testimony had expired, and in reliance upon such stipulation no testimony was offered upon the issues now sought to be introduced. On this state of the record we are bound to consider only those issues which were placed before the trial judge. See Jones v. Kind, Fla., 61 So.2d 188; Florida Power Corp. v. Pinellas Utility Board, Fla., 40 So.2d 350; Southern Liquor Distributors v. Kaiser, 150 Fla. 52, 7 So.2d 600; Dewey v. State, 135 Fla. 443, 186 So. 224; Green v. Parmelee, 134 Fla. 289, 183 So. 726; Jacques v. Wellington Corp., 134 Fla. 211, 183 So. 718; Monticello Drug Co. v. Porter Clothing Co., 111 Fla. 55, 149 So. 25. We must, therefore, dispose of the 'issues which are properly raised upon the assumption that the City was authorized to regulate the business of a tile contractor, ■although this assumption is in no sense to be considered as a determination of such issue on the merits.

We are not, however, foreclosed from considering the nature of the business of a tile contractor as it relates to the sufficiency of the standards which the ordinance establishes to regulate the ' actions of the Board.

Concerning such standards, the following provisions of Ordinance No. 548 are pertinent:

“For the purpose of this ordinance, the term ‘Tile contractor’ is defined to mean a person who is generally engaged in the business of planning, laying out, and supervising the installation of ceramic floor and wall tile, both glazed and unglazed, both clay and porcelain, or terrazzo flooring or marble flooring and wainscoting (whether by job, or day by day) with members of the general public, and contracts to furnish labor, or material, or supplies in performing and fulfilling such contracts. * * *
“The Board shall examine applicants as to their practical knowledge of the installation of tile as defined in this ordinance. Examinations shall be made in whole, or in part, in writing, arid shall be a [sic] practical and elementary character, hut sufficiently strict to test the qualifications of the applicant to carry on the trade of a tile contractor and to satisfy as to the applicant’s ability as such and his familiarity with rúles and ordinances governing the installation of tile. A grade of 75 per cent shall be considered a passing grade. If satisfied as to the competency - of such applicants, the Board shall issue to him á certificate .of competency -authorizing him to en- . gage in or work at the trade or busi-, ness of a. tile contractor as herein .defined.”

Most of this language was' apparently taken from the statute which we had befpre , us in Gandy v. Borras, 114 Fla. 503, 154 So. 248, which was upheld by the majority of the' court, three justice's concurring in the opinion that the standards set up were sufficiently definite, - and one. justice concurring only in the conclusion that the statute was constitutional. In the later case of State ex rel. Reynolds v. City of St. Petersburg; 133 Fla. 766, 183 So. 304, 118 A.L.R. 667, a related question was'-1 raised and w'e upheld the statute unanimous- - ly,- one justice concurring only in the con- - elusion. - ' ' - '

In Levine v. Hamilton, Fla., 66 So.2d 266, we examined and upheld a statute authorizing the . Board of Pharmacy to examine applicants.

This brings us to a consideration of the difference between the ■ trades or professions sought to be regulated in-the cases we have mentioned and the business of a tile contractor.' In the Gandy case the business sought to be regulated was the operation of á moving picture machine, the statute having been enacted for the public safety, in view of the highly inflammable nature of moving picture'film.1 The' examination, however,- was to be designed1 to test the applicant’s knowledge of electricity, which is a subject in which academic courses are given in schools, and examinations com- '• monly prepared. As we have stated, three '• justices of this court considered the standards definite enough. ■ .

In State ex rel. Reynolds v. City of St. Petersburg, supra, the -business regulated was that - o-f -a general - contractor.' -The standards established by the ordinance were as follows:

“Each, applicant shall be. examined. , by., oral, written and.practical,tests,-, as.. to -his fitness to be granted a. general Contractor’s certificate; and shall be -,v graded as follows; [4 written; l/j.oral. ■ and Ys practical,, with passing grade . of 75%. . . .
“The oral and written tests shall 'bé made with reference to knowledge of the Building Code; the practical test shall be evidencetyf work done iri 'class for which application is 'rnade,' and such evidence may be furnished by photographs with affidavits of such construction, and/or affidavits of competency from persons for which said ' work was done. '
“If the applicant, however,'shall-fail to make a grade of 75%. as. above provided, then, the Examining Board-shall refuse to grant'such-certificate.”. 183 So. 304, 310.

It should be noted that the. oral arid written tests were to be made only with reference to the applicant’s knowledge of the-build- . ing code of the City of St. Petersburg," a definite and ascertainable set of rifles. 1

In Levine v. Hamilton, supra, wé¡ upheld a grant of power to the State Board of- - Pharmacy, in effect permitting the Board to examine- applicants for registration as pharmacists for the purpose of ascertain'-' ing whether or not the applicant is qualified' to conduct the- business of- compounding or dispensing drugs. We upheld the--stat-" ute on authority of Pridgen v. Sweat, 125 Fla. 598, 170 So. 653, in which c'a's'e--we had held valid a portion of - the statute' authorizing the examination of prospective dentists by the Dental Board.

In all of the above cases the subjects prescribed for examination were academic in nature and readily ascertainable by the skilled members of the administrative board, except for the City of St. Peters-burg case, where two-thirds of the examination concerned the building code. Considering the subjects to be covered by examination in those cases, the standards were far more definite than those with which we are concerned in the case at bar. We cannot conceive that any academic subject which might be susceptible of written examination would form a part of a tile contractor’s necessary educational equipment, nor is it stated in the ordinance what percentage of the examination will be used to test the familiarity of the applicant with "rules and ordinances covering the installation of tile” or what rules or ordinances are involved.

In Permenter v. Younan, 159 Fla. 226, 31 So.2d 387, 389, we referred to the “ordinary business rule” which, we stated, is to the effect that “an ordinance which vests in municipal authorities arbitrary discretion to grant or revoke a license to carry on an ordinarily lawful business, without prescribing definite rules and conditions for the guidance of the authorities in the execution of their discretionary power, is invalid.” Certainly the business of laying or supervising the laying of tile is, as appellant contends, a form of useful, harmless artisanship which qualifies as “ordinary business”. See also 9 McQuillan, Municipal Corporations, Section 26.64, at page 140.

We are of the opinion that while the ordinance in question might, upon superficial examination, appear to establish some means for the use of an administrative body in determining the competency of an applicant, when these purported standards are considered with the thing to be tested, it becomes evident that in truth and in fact the ordinance establishes no standards at all and leaves the granting or denial of a license wholly within the uncontrolled discretion of the Board. Accordingly, we hold that Ordinance No. 548 of the City of Winter Park contains an unconstitutional and, therefore, fatal delegation of legislative power. Because of the view we take of the case, we deem-it unnecessary to consider the contention of appellant that the trial court erred in holding that the Board was properly constituted under the terms of the ordinance.

The judgment appealed from is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

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

DREW and THORNAL, JJ., dissent.

THOMAS, J., not participating.

DREW, Justice

(dissenting).

It is my view that the majority opinion in this case departs from a long line of cases where this Court has upheld the constitutionality of many municipal ordinances of the type here under consideration. Under the doctrine of stare decisis and in the interest of uniformity and stability in the law, I think we should adhere to the principles enunciated in Gandy v. Borras, 1934, 114 Fla. 503, 154 So. 248; State ex rel. Reynolds v. City of St. Petersburg, 1938, 133 Fla. 766, 183 So. 304 and Levine v. Hamilton, Fla.1953, 66 So.2d 266. There are slight differences in phraseology in the ordinance under consideration in this case and those involved in the above quoted cases but the basic principles, as I view it, are identical.

I am authorized to state that Mr. Justice THORNAL concurs in these views.

THORNAL, J., concurs.


author: THORNAL, Justice.

text:
    STATE of Florida, Appellant, v. FLORIDA DEVELOPMENT COMMISSION, an Agency of The State of Florida, Appellee.
    Supreme Court of Florida, Special Division A.
    May 1, 1957.
    William D. Hopkins, Tallahassee, and Murray Overstreet, Kissimmee, for appellant.
    J. Turner Butler, Jacksonville, and Ford Thompson, Tallahassee, for appellee.
   THORNAL, Justice.

The appellant seeks review of an order of the Circuit Judge validating a proposed issue of revenue bonds.

The only point to be settled is the validity of the issuance of revenue bonds, the proceeds of which are to be used to acquire rights of way for state primary roads in Orange County.

The Board of County Commissioners of Orange County adopted a resolution requesting the Florida Development Commission to assist in financing improvements to existing state primary roads in Orange County. The plan calls for the issuance of $3,500,000 of so-called “Florida Development Commission, Orange County Road Revenue Bonds.” The proceeds of the bonds are to be used to redeem certain outstanding State Road Department-Orange County Fuel Tax Anticipation Certificates. The balance of the bond proceeds amounting to about $3,000,000 is to be used for improving state primary roads in the county primarily by the purchase of additional rights of way for the future improvement and expansion of the capacity of certain designated state primary roads. The principal and interest of the bonds are to be liquidated out of Orange County’s share of the Eighty Percent Surplus Gasoline Tax accruing to that county under Section 16, Article IX of the Constitution, F.S.A. The general plan of financing is similar to that which has been approved by this Court on several occasions. The Development Commission issues the bonds for the county. In turn the State Road Department enters into a so-called lease-purchase agreement with the Development Commission. By this agreement the State Road Department as lessee agrees to make rental purchase payments periodically out of the Eighty Percent Surplus Gasoline Tax accruing to Orange County in an amount'sufficient to retire the entire principal of the bonds and interest accruing thereon. When this is ultimately accomplished, title to the improvement passes to the Road Department.

The Development' Commission has approved the entire arrangement by appropriate resolution. Similarly the Road Department approved the arrangement and agreed to the lease-purchase agreement. The State Board of Administration has approved the fiscal and legal sufficiency of the proposed' bond issue subject to ultimate validation by this Court. The Circuit Court in a validation proceeding brought for the purpose entered a decree validating the bonds. It is this decree which the appellant now seeks to have reviewed.

It is the contention of the appellant, through the State Attorney that the Eighty Percent Surplus Gasoline Tax accruing to Orange County under Section 16, Article IX of the Constitution can be used only for the construction of a completed road project. It is suggested that the funds in question cannot be employed merely for the acquisition of rights of way absent an accompanying commitment to the effect that . the road will actually be constructed.

The appellee contends for the proposition that the right of way is an essential component of the road itself and that the Eighty Percent Surplus Gasoline Tax can be properly used for the acquisition of rights of way preliminary to the ultimate construction of the highway at such time as funds are available for that purpose.

The Florida Development Commission, created by Chapter 29788, Laws of Florida 195S (Chapter 288, Florida Statutes, F.S.A.), is the statutory successor to the Florida State Improvement Commission and other agencies named in the creating act. We have heretofore sustained the constitutionality of Chapter 29788, Laws of Florida 1955. State v. Florida Development Commission, Fla.1956, 84 So.2d 707; State v. Florida Development Commission, Fla.1956, 86 So.2d 155. Inasmuch as the Florida Development Commission is the statutory successor to the Florida State Improvement Commission, our decisions relating to the powers and functions of the Improvement Commission are therefore applicable to the powers and functions of the Development Commission.

We have held that the State Road Department has unlimited discretion in the use of the Eighty Percent Surplus Gasoline Tax Funds accruing to the several counties of the state under Section 16, Article IX of the1 Constitution so long as the funds are used for the improvement of state highways, within the limits of the particular county entitled to the surplus. State v. State Board of Administration, 157 Fla. 360, 25 So.2d 880; City of Hollywood v. Broward County, Fla.1951, 54 So.2d 205. To this extent we have also held that this Court will not undertake to substitute its judgment for that of the State Road Board on the matter of the wisdom or factual justification for the construction of a particular highway-improvement. Pirman v. Florida State Improvement Commission, Fla.1955, 78 So.2d 718.

The plan of financing tendered by the record in the case before us has been approved on several occasions involving the actual construction of highway improvements. State v. County of Flagler, Fla.1955, 77 So.2d 765; State v. Florida State Improvement Commission, Fla.1950, 47 So.2d 601; State v. Florida State Improvement Commission, 1948, 160 Fla. 230, 34 So.2d 443.

It remains only to dispose of the contention that the instant case is distinguishable from our prior decisions merely because the proceeds of the bond sale are to-be used for the acquisition of rights of way for designated state highways in Orange County rather than to finance the actual completed construction of the road.

We find no justification for the contended distinction. Under paragraph (c), Section 16, Article IX of the Constitution, the State Road Department is authorized to use the Eighty Percent Gasoline Tax Surplus “for the construction or reconstruction of State Roads and bridges within the county.” The acquisition of adequate rights of way is an essential component of highway construction. Indeed, the Florida Highway Code of 1955 (Chapter 29965, Laws of Florida 1955) defines the term “road” as including "“the roadbed” and “right-of-way.” By the same act the term “right-of-way” is defined as the land “required for the use as a public road.”

Chapter 29965, Laws of Florida 1955 (Chapters 331 — 339, Florida Statutes, F.S. A.) was a legislative revision of the laws governing the planning and construction of the highways of the state. By this act the Legislature recognized the vital essentiality of an improved state highway system accommodated to meet the needs of one of the fastest growing states in the country. Implicit in the act is the necessity for long range planning of our primary as well as our secondary road system. Any one even remotely familiar with the problems attendant upon highway construction and improvements well knows that the first important step in providing highways of sufficient capacity to meet constantly increasing traffic demands is the necessity of acquiring adequate right of way.

As indicated in the resolution authorizing the proposed bonds Orange County with the cooperation of the state agencies involved is here undertaking to plan for the improvement of the state highway system within the county by the acquisition of adequate rights of way at a time when land values will not be influenced by the immediate announcement of actual highway construction. This approach makes sense. This is particularly significant in view of the statutory restriction against showing benefits from a proposed improvement as against the value of property taken by eminent domain. Section 73.10, Florida Statutes, F.S.A.; De Soto County v. Highsmith, Fla.1952, 60 So.2d 915. It would appear to be an efficient exercise of governmental power and business judgment in providing an essential public service in an area of the state which in a measure is outgrowing the capacity of the government to provide these important needs out of current resources. See Carlor Co., Inc., v. City of Miami, Fla.1953, 62 So.2d 897, certiorari denied 346 U.S. 821, 74 S.Ct. 37, 98 L.Ed. 347.

The Highway Code itself (Section 337.28, Florida Statutes, F.S.A.) specifically authorizes the several counties to furnish rights of way for any road in the state primary system. The only condition to the expenditure is that the road be surveyed and located in the county by the State Road Department. It is a self-evident fact that a right of way for a primary road cannot be acquired until the preliminary survey determining the width of the right of way has been made by the proper authority. We certainly are not to assume that the responsible officials of the county and the members of the State Road Department will waste or dissipate public funds on nonessential or unuseable road rights of way. On the other hand, the state primary roads named in the resolution as those to be improved by the acquisition of additional rights of way are shown by the Report of the Select Committee on Roads of the Legislative Council of the Florida Legislature 1954, p. 160, to be roads in the state primary system which are badly in need of improvement as measured by sufficiency rating standards established by the State Road Department. While admitting our lack of power to review the exercise of discretion by these Boards on the problem at hand, the foregoing observation is made merely to demonstrate that in this instance the Road Department as well as the county appears to be exercising its discretion wisely in the expenditure of public funds.

We therefore hold that there is no constitutional or statutory inhibition against the use of the proceeds of the bonds proposed to be issued for the purposes announced by the bond resolution reflected by the record. On the contrary, the contemplated use of the bond proceeds is found to be well within the prescriptions of our Constitution and applicable statutes. The Eighty Percent Surplus accruing to Orange County under Section 16, Article IX of the Constitution may be pledged in the fashion proposed in order to meet the principal and interest requirements of the bond issue.

The decree of the Circuit Court is

Affirmed.

TERRELL, C. J., ROBERTS, J., and WELCH, Associate Justice, concur.


author: THOMAS, Justice.

text:
    ALSON MFG. CO., a Florida corporation, a successor in Interest to U. S. Fluorescent Mfg. Co., Appellant, v. Charles SILVERS, Individually and doing business as Adams Engineering Co., Appellee.
    Supreme Court of Florida, Division A.
    May 8, 1957.
    Louis Glide, Miami, for appellant.
    Rothenberg & Burris, Miami Beach, for appellee.
   THOMAS, Justice.

Alson Manufacturing Company, described in its complaint as successor to U. S. Fluorescent Manufacturing Company, demanded judgment against Charles Silvers, individually, and Charles Silvers doing business as Adams Engineering Co., basing its claim on these brief allegations: The plaintiff had for a valuable consideration purchased all right, title and interest in U. S. Fluorescent Manufacturing Company, including its choses in action; on 23 May 1952 the U. S. Fluorescent Manufacturing Company had proposed to manufacture for Adams Engineering Company certain fixtures and accessories for $7600 and the proposal had been accepted by Charles Silvers; relying upon the agrees ment the fixtures and accessories were manufactured by U. S. Fluorescent Manufacturing Company but the Adams Engineering Company, or Charles Silvers, refused to accept the goods or to pay the stipulated price; and continued refusal by Adams Engineering Company or Charles Silvers to perform the contract had resulted in deterioration of the property to the extent of $5000.

Although the date of the contract between appellant’s predecessor and Adams Engineering Company, or Charles Silvers, was stated in the complaint, the date of the alleged purchase from appellant’s predecessor by appellant was not alleged.

The complaint was filed 11 May 1956 and the answer of the defendant and his motion for summary judgment were filed the 15th day of the following month. From this answer it appears that the U. S. Fluorescent Manufacturing Company on August 6, 1954 had instituted an action against the appellee claiming damages of $7600 for failure to perform the same contract and this was dismissed for want of prosecution 11 April 1956, just a month before the present action on the same contract was instituted. A motion to vacate the order of dismissal was denied 25 April 1956.

The motion for summary judgment was granted and this appeal followed.

The first case was dismissed by authority of Sec. 45.19, Florida Statutes 1953, and F.S.A., in which it is provided that such disposition of litigation may be made when it does not appear from some action, “by filing of pleadings, order of court, or otherwise” occurring within a year, that the action is being prosecuted. In his order of dismissal the judge specifically recited that such inaction was apparent in the record.

It is obvious that the two actions were based on an identical contract and that sometime, a date about which we are not advised, the plaintiff in the first case, assigned its interest in the contract to the plaintiff in the second case.

The lone question here is whether or not the order of dismissal and the order denying a motion to vacate the order of dismissal amounted to such a determination of the controversy that by the doctrine of res judicata the present action must be defeated. We think we should answer the question in the negative in view of our pronouncements in Hassenteufel v. Howard Johnson, Inc., of Florida, Fla., 52 So.2d 810, and Zukor v. Hill, Fla., 84 So.2d 554.

When the court dismissed the first case, jurisdiction of that case came to an end especially when reinstatement was denied, but the institution of a new action was not precluded and this, of course, Í9 the new action.

Reversed.

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


author: PER CURIAM.

text:
    E. W. PETERSON and Roy F. Raub, Appellants, v. J. A. OGDEN, Louis G. Walker, Muriel C. Rivers, Harold Mahon, Carleton E. Preston and Oscar H. Fields, Appellees.
    Supreme Court of Florida, Special Division B.
    March 20, 1957.
    Rehearing Denied April 25, 1957.
    Guy L. Kennedy, Jr., Robert W. Wilson and J. Tweed McMullen, Clearwater for appellants.
    Alfred P. Marshall and Howard P. Rives (of Marshall & Rives), Clearwater, for appellees.
   PER CURIAM.

Reversed and remanded under the authority of Wahrendorff v. Moore, Fla., 93 So.2d 720.

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


text:
    Max ROSENBLUM, Appellant, v. Evelyn HART, Appellee.
    Supreme Court of Florida, Division A.
    May 8, 1957.
    Courshon & Fink, Miami Beach, for appellant.
    Rafael A. Rivera-Cruz, Miami, for ap-pellee.
   THOMAS, Justice.

This controversy was heard upon the appellant’s complaint, by which he sought foreclosure of a second mortgage, the ap-pellee’s answer and counterclaim, the appellant’s answer to the counterclaim, and the testimony offered by the parties. It culminated in a final decree in which the chancellor found that the appellant, mortgagee, had wilfully and knowingly charged the appellee, mortgagor, an amount greater than the sum of the money loaned and 25% per annum upon the principal of the loan.

The chancellor decreed that the appellant forfeit the principal amount of the loan and the interest and that the appellee pay to the appellant as an independent unsecured debt $204.34 representing the amount of $530.40 paid by the appellant to the Miami Beach Federal Savings and Loan Association, in reduction of an outstanding first mortgage, after deducting the $150 paid by the appellee to the appellant under the terms of the second mortgage and also deducting $176.06 which was double the amount of interest received and double the excessive amount withheld by the appellant from the appellee.

The chancellor specifically cancelled the note that evidenced the debt and the mortgage executed by the appellee to secure the loan because, in his opinion, the transaction was infected with usury. Sec. 687.07, Florida Statutes 1953, and F.S.A.

The appellant first contends that he should not be penalized for violation of the statutes denouncing usury because he did not intentionally exact for the use of his money more than a lawful return and he cites the familiar decisions of this court, Jones v. Hammock, 131 Fla. 321, 179 So. 674, and Chandler v. Kendrick, 108 Fla. 450, 146 So. 551, in which the court held a corrupt or unlawful intent to charge more than the legal rate must be present in order to penalize a lender for violation of the law against usury.

The appellant claims that all negotiations except the initial agreement to complete the loan were handled by his attorney and that in such circumstances he was in the same position as the lender described in Maule v. Eckis, 156 Fla. 790, 24 So.2d 576. In that case it was held that there was a total want of evidence that the law had been intentionally violated.

Appellant testified that when he discovered a mistake in his -computation he deducted the unlawful excess from the amount due and attempted to notify the appellee of the error. So, he says, he should be held blameless. Brit the- chancellor believed the testimony which refuted the innocence the appellant claimed for himself and there was enough of it to justify invocation of the statute. Sec. 687.07, supra. Several weeks after the transaction was completed the appellant caused to be mailed to the appellee a statement showing the amount of the loan as $550 when in fact it had been only $474.40. The appellant seems to have frequently insisted on the payment of the larger amount, and in his original complaint he sought to collect it by sale of the encumbered property. After the answer incorporating the defense of usury was filed, the appellant amended his complaint by alleging that he had delivered a check for $550 to his attorney to be held in escrow “pending disbursements in this transaction.” These items he listed as $20 for abstracting, $4.40 for stamps, intangible tax and recording, $35 for attorney’s fee, $200.20 for three payments on the first mortgage, and $157.74 to “[p]ay off Beneficial Finance.” Shown also was a payment to the mortgagor of $57.06. He alleged that the difference between the total of these items and the face amount of the loan resulted from the error of his attorney in crediting the appellant with $75.60.

There is abundant support in the record for the conclusion of the chancellor that appellant knew what he was doing and from the testimony about the amounts involved, it is clear that he was to get a return of $130.60 on a loan of $474.40. Clearly, the amount claimed was greater than the sum of money lent and 25% interest per annum on the loan and the appellant was properly held accountable under the statute. Sec. 687.07, supra.

We affirm the chancellor in his ruling, but we cannot agree that when one is found to have violated that statute, he may on the same facts be penalized also under Sec. 687.04, Florida Statutes 1953, and F.S.A., for violation of Sec. 687.03, Florida Statutes 1953, and F.S.A. We think the, statute providing a penalty for charging more than ten per cent per annum, in which case the lender can recover only the principal and must forfeit twice the interest paid or reserved, may not be cumu-lated with the statute providing that if the total amount charged exceeds the sum of the loan and 25% per annum of the loan, the wilful, knowing lender shall forfeit all principal and interest. These statutes recognize and define degrees of usury and provide distinct and separate penalties.

So the decree is affirmed in part and reversed in part with directions that it be modified to comport with this view.

Affirmed in part and reversed in part.

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


author: ROWE, Associate Justice.

text:
    Carlos P. ENNIS, Appellant, v. The STATE of Florida, Appellee.
    Supreme Court of Florida, En Banc.
    March 27, 1957.
    Rehearing Denied June 3, 1957.

      Ralph W. Rinehart, Tampa, for appellant.
    Richard W. Ervin, Atty. Gen., and Joseph P. Manners, Asst. Atty. Gen., for appellee.
   ROWE, Associate Justice.

On March 2, 1956 an information was ■filed in Marion County, charging the defendant (appellant) in two counts, in the first count, “that Carlos P. Ennis, late of the County of Marion and State of Florida, on the 29th day of January, in the year of our Lord One Thousand Nine Hundred and 56, with force and arms at and in the county and state aforesaid did unlawfully take, steal, and carry away and convert to his own use, one 1953, 4-door Chevrolet automobile, of the property of Emmett E. Quarles.

“Second Count

“And the State Attorney aforesaid, upon his oath aforesaid, further information makes that Carlos P. Ennis, late of the County of Marion and of the State of Florida, on the 30th day of January, 1956, at and in said County and State, did draw, make, utter, issue and deliver to Emmett E. Quarles, a certain check or written order for money of the tenor following, to-wit:

Leesburg, Florida 1/30 1956 No.

First National Bank of Leesburg 63-72

631

Pay to the order of Emmett E. Quarles $1,000.00 One Thousand and No/100.Dollars

he, the said Carlos P. Ennis, then and there well knowing that he did not have sufficient funds on deposit in or credit with the said First National Bank of Leesburg, a banking corporation, with which to pay said check when presented, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Florida.”

Motion was made by defendant’s c'ounsel to quash the second count, and this motion was overruled. Another motion was made by said counsel ■ to require the State to elect the statute under which the defendant would be prosecuted, and also, to elect upon which count of the information the defendant would he prosecuted, which motion was also, overruled.

The defendant was tried, and the jury returned a verdict of not guilty of larceny as charged in the first count, and guilty of the offence charged in the second count.

The defendant was adjudged guilty of and sentenced for the crime set forth in the second count

An appeal has been taken by the defendant from the judgment and sentence. Several assignments of error have been, urged but it is not necessary to discuss all of them. These questions are stated as follows :

Question I. Is Florida Statute, § 832.05 unconstitutional because it deprives the defendant of his constitutional right to meet the witnesses against him face to face?

Question II. Is Florida Statute, § 832.05 unconstitutional for the reason that it provides for imprisonment for debt without fraud and contrary to Section 16 of the Florida Declaration of Rights?

Question III. Did the court err in denying defendant’s motion to compel the State to elect which count of the information under which it intended to prosecute the defendant?

Question IV. Did the court err in refusing to grant defendant’s motion to quash the information ?

Question V. Did the court err in its instructions to the jury?

We shall consider first Questions III, IV and V.

Question III. In the case of Griswold v. State, 77 Fla. 505, 82 So. 44, at page 49, cited by counsel for the defendant it is said: “If it [the indictment] had contained two inconsistent counts * * * it would have been subject to a motion to elect upon which count the defendant should be tried” citing Florida cases. It has not been shown that the counts are inconsistent. One charges larceny and the other charged the giving of a worthless check. The testimony was to the effect that the check was given for a car, and by reason of the giving the check, which proved to be worthless, the car was procured. There was no inconsistency in the two counts. The defendant was found not guilty of the charge of larceny, and moreover he has not shown that he was in any wise prejudiced by the refusal to grant the motion to elect between the two counts.

Question IV. The information filed in this case, so far as the second count is concerned sets forth every essential element that may be required by the statute. It charges the offence. substantially the same as is set forth in the case of Shargaa v. State, Fla., 84 So.2d 42.

Question V. No substantial error has been pointed out to any charge to the jury, and no objection seems to have been made in the court below to the charge for giving the worthless check for which defendant was found guilty.

Question i. Mr. Quarles, payee of the check, testified, over objection of counsel for the defendant, that the bank upon which the. check was drawn returned the check to him unpaid, with a piece of paper attached saying thereon “no account, February 1st, 1856”. The check and paper were introduced in evidence. The defendant contends that he was deprived of the right to cross-examine the bank official who made the notation on the paper attached to the check. It is argued by, counsel for the defendant that Section 832.05(5) providing that:

“In all prosecutions under this sec- ' tion, the introduction in evidence of any unpaid and dishonored check, draft or other written order, having the drawee’s refusal to pay stamped or written thereon, or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or uttering of said check, draft, or other written order, and the due presentation to the drawee for payment and the dishonor thereof, and that the same was properly dishonored for the reasons written, stamped or ■ attached by the drawee on such dishonored checks, draft, or other written orders; and, as against the maker or drawer thereof, the withdrawing from deposit with the .drawee named in the check, draft or other written order, the funds on deposit with such drawee necessary to insure payment of said check, draft or other written order upon presentation within a reasonable time' after negotiation; or the drawing, making, uttering, or delivering of á check, draft or other written order,' payment of which is refused by the drawee, shall be prima facie evidence of knowledge qf insufficient funds in or credit with such drawee * * *”

deprived the defendant of his constitutional right to meet witnesses against him, face to face as provided in Sec. 11 of the Florida Declaration of Rights, F.S.A., and in. the 6th Amendment of the Federal Constitution. This contention has been adversely answered in the case of Shargaa v. State, 84 So.2d 42, and see the citation thereunder. In the case nqw before us the evidence was sufficient to prove the corpus delicti, and also, a prima facie case under the second count of the information as required by Section 832.05(5), Florida Statutes of 1955, F.S.A.

- Question II. Appellant contends that Section 832.05 Florida Statutes of 1955, F.S.A. is unconstitutional for the reason that it provides for imprisonment for debt without fraud and is contrary to Section 16 of the Florida Declaration of Rights. Paragraphs (1) and (2) of that statute are as follows:

“(1) Purpose. — The purpose of this section is to remedy the evil of giving checks, drafts, bills of exchange and other orders on a bank without first providing funds in or credit with the depository on which the same are made or drawn to pay and satisfy the same, which tends to create the circulation of worthless checks, drafts, bills of exchange and other orders on banks, bad banking, check kiting and a mischief to trade and commerce.
“(2) Worthless checks. — It shall be unlawful for any person, firm or corporation to draw, make, utter, issue or deliver to another any check, draft, or other written order on any bank or depository for the payment of money or its equivalent, knowing at the time of the drawing, making, uttering, issuing or delivering such check or draft that the maker or drawer thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same on presentation; provided, that this section shall not apply to any check where the payee or holder knows or has been expressly notified prior to the drawing or uttering of same or has reason to believe that the drawer did not have on deposit or to his credit with the drawee sufficient funds to insure payment as aforesaid, nor shall this section apply to any post dated check.”

It will be seen that the purpose of the legislature in the enactment of this statute was not for the collection of debts. The purpose was to penalize the evil of putting into circulation certain kinds of worthless commercial paper and thus causing mischief to banks and to trade and commerce. There seems to be no constitutional inhibition against a legislative act of this nature. A good result was no doubt intended by this legislation. It may be that some hardships will result from the enforcement of the act, and that also, some schemers will endeavor to use it for selfish motives, and indirectly to use same for the enforcement of a debt, but these possibilities are not sufficient to condemn the act as unconstitutional.

The constitutionality of this act has not been decided by this court. In the case of Anderson v. Bryson, 94 Fla. 1165, 115 So. 505 the court considered an act relating to the issuance of worthless checks and said that without the element of fraud, the act might be repugnant to Sec. 16 of the Declaration of Rights, but made no definite decision. We quote from Anderson v. Bryson, 115 So. at page 506-507 as follows : "Chapter 9328, Laws of 1923 [F.S.A. § 832.01 note], provides, in effect, that:

“Any person who ‘with intent to defraud, shall make, draw, utter or deliver any check, draft, or order for the payment of money upon any bank or other depository, knowing at the time * * * that the * * * drawer has not sufficient funds in or credit with such bank or other depository for the payment of such check, draft, or order in full upon its presentation, shall be guilty of a misdemeanor. * * *

“The statute further provides that, as against the maker or drawer thereof, the making, drawing, uttering, or delivering by such maker or drawer of a check or other order, payment of which is refused by the drawer (drawee) because of insufficient funds, shall be prima facie evidence of the intent to defraud and of knowledge that the drawer has insufficient funds in or credit with the drawee.

“(2) Our statute just mentioned is closely analogous to the California statute (Pen.Codé,. § 476a) on the same subject, and is almost identical in terms with the Georgia statute of 1919 (Laws, p. 220). See Hollis v. State, 152 Ga. 182, 108 S.E. 783. The purpose of our statute is to restrain and punish fraudulent practices associated with the issuance of worthless checks, drafts, or equivalent orders for the payment of money, thereby preserving integrity of those classes of commercial paper in trade, commerce, and other banking. Under our statute, the intent to defraud is an indispensable element of the offence. In that respect our statute differs materially from the Kansas statute construed in State v. Avery, 111 Kan. 588, 207 P. 838, 23 A.L.R. 453. Without the element of fraud the statute might be repugnant to section 16 of the Declaration of Rights, which provides that ‘no person shall be imprisoned for debt, except in cases of fraud.’ ”

In the case of State v. Yarboro, 194 N.C. 498, 140 S.E. 216, 218, the court dealt with the validity of a statute substantially the same as the Florida Statute, § 832.05, F.S.A. The defendant, Yarboro was convicted upon a charge based upon the North Carolina statute. He made a motion in arrest of judgment upon the ground that the statutory charge stated no criminal offence. The motion was granted. The State appealed, and the decision of the lower court was reversed. The North Carolina Statute is as follows:

“Whereas, the common practice of giving checks, drafts, and bills of exchange, without first providing funds in or credits with the depository on which the same are drawn, to pay and satisfy the same, tends to create the circulation of worthless paper, overdrafts, bad banking, and check kiting, and a mischief to trade and commerce; and it being the purpose of this act to remedy this evil,
The General Assembly of North Carolina do enact:
“Section 1. It shall be unlawful for any person, firm or corporation, to draw, make, utter or issue and deliver to another, any check or draft on any bank or depository, for the payment of money or its equivalent, knowing at the time of the making, drawing, uttering, issuing and delivering such check or draft as aforesaid, that the maker or drawer thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same upon presentation.” Public Laws of North Carolina 1927, c. 62.

In the opinion from State v. Yarboro it is stated:

“We recognize the principle that the police power may not be exercised in breach of rights which are guaranteed by the Constitution of the state or nation; but if * * * the assailed statute is not in conflict with the fundamental law, its enactment was a lawful exercise of legislative power. The police power is a necessary attribute of every civilized government; it is not a grant derived from or under any written Constitution, but it is inherent in the several states. It is but ‘another name for that authority which resides in every sovereignty to pass all laws for the internal regulation and government of the state,’ and by means of it ‘the Legislature exercises a supervision over matters involving the common weal and enforces the observance by each individual member of society of the duties which he owes to others and to the community at large.’ 6 R.C.L. p. 183, § 182, p. 185, § 184. * * * This attribute of sovereignty imports authority, not only to punish an injury which has become a public nuisance, but to punish fraudulent acts which tend to deceive, to destroy confidence, and to injure the public interests. Does the giving of worthless paper tend to deceive ? Does the custom of putting it in the market places tend to destroy confidence? The transaction of business is dependent on credit; the basis of credit is confidence. The harmful effect of flooding the channels of commerce with checks and drafts of this character is manifest; it is not restricted to the bare transaction between the maker and the payee; its scope embraces the indorsement and the unrestrained transfer of the paper, releasing it as ‘a courier without baggage’ hastening perchance to the four corners of the country. The offence consists, not in presently obtaining something of value T>y deceit, but in putting in circulation worthless commercial paper which will ultimately result in financial loss. * * * The •offence is complete only when a check -or draft is made or drawn, etc., on any bank or depository for the payment of money or its equivalent, by one who knows at the time that he has not sufficient funds in •or credit with such bank or depository with which to pay the paper when presented; '‘credit’ meaning an arrangement or understanding with the bank or depository for ■the payment of the check or draft. * * *

“A statute almost identical with ours was construed by the Kansas Supreme Court in State v. Avery, 111 Kan. 588, 207 P. 838, 23 A.L.R. 453. There the first count •of the information was based on a check to the Dodge City Wholesale Grocery •Company for $133.44. To this count the •defendant pleaded guilty and moved in .arrest of judgment on the ground that the •count did not state facts sufficient to constitute a public offence. The motion was •denied, and on appeal the ruling was affirmed, the court saying:

“ ‘The worthless check must be willfully drawn, knowing at the time there are no funds on deposit to meet it. Beyond that, the Legislature may, for protection of the public interest, require persons to act at their peril, and may punish the doing of a forbidden act without regard to the knowledge, intention, motive, or moral turpitude of the doer. There is no constitutional objection to such legislation, the necessity for which the Legislature is authorized to determine.’ * * *
“ ‘The defendant contends the statute is in conflict with paragraph 16 of the Bill of Rights, which forbids imprisonment for debt except in case of fraud. It is said the check was given to pay an acknowledged debt, long past due, and neither debtor nor creditor made or lost anything, but the debtor must be imprisoned because the debt was not discharged by check. The information does not disclose the consideration for the check. It may be conceded, however, the statute applies to a transaction of the character described. Nevertheless, the statute does not impose imprisonment for debt * * *

The Yarboro case, supra has been cited with approval in State v. Crawford, 198 N.C. 522, 152 S.E. 504, 505; State v. Levy, 220 N.C. 812, 18 S.E.2d 355, 357; State v. White, 230 N.C. 513, 53 S.E.2d 436-437.

State v. Avery case, supra has been cited with approval in State v. Gillen, 151 Kan. 359, 99 P.2d 832, 835; State v. Marshall, 152 Kan. 607, 106 P.2d 688, 689; State v. Beam, 175 Kan. 814, 267 P.2d 509, 514; Application of Windle, 179 Kan. 239, 294 P.2d 213, 215.

The judgment is affirmed.

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

THOMAS, J., not participating.


author: ROBERTS, Justice.

text:
    Beulah GRANT, Appellant, v. Ruby Iva CORBITT, Appellee.
    Supreme Court of Florida, En Banc.
    April 24, 1957.
    Rehearing Denied June 3, 1957.

      John P. Wilkerson, Eustis, for appellant.
    Harry P. Johnson, Tavares, for appellee.
   ROBERTS, Justice.

This is a child custody case. The adversaries are the appellant Beulah Grant (now Beulah Grant Spivey), the child’s mother, and the appellee Ruby Iva Corbitt, the child’s paternal aunt. The child, Kenneth Grant, is fifteen years of age. His mother and father were divorced in 1944 by a decree of the Circuit Court of Lake County, Florida, in which his custody was awarded to the mother. The mother now resides in Georgia, the whereabouts of the father are not shown by the record, and the aunt is a resident of Florida.

Kenneth ran away from his mother’s home in Georgia and came to Eustis, Lake County, Florida, where both his paternal grandmother and aunt live, in June 1955. The aunt immediately filed a petition in the Lake County divorce suit, stating among others that Kenneth had run away from home because of the cruel treatment of his mother and stepfather, and asking for temporary and permanent custody of Kenneth. The Chancellor, without notice to the mother, awarded temporary custody of Kenneth to his aunt until the further order of the court. The mother filed a motion to dismiss the petition and vacate the order granting temporary custody to the aunt, and also an answer. The motion to vacate and dismiss was denied and a full hearing was held at which both sides presented evidence in support of their respective claims as to the welfare and custody of Kenneth. After the hearing the Chancellor entered an order continuing the cause for at least 30 days “for further study by the Court,” and six weeks later filed his order granting permanent custody of Kenneth to his aunt, but retaining jurisdiction “for the entry of such other and further Orders as may from time to time be necessary.” The mother has appealed.

On this appeal, it is contended on behalf of the mother that the trial court erred in entering the order granting temporary custody to the aunt, who was not a party to the original divorce proceeding, without giving the mother notice and an opportunity to be heard. We agree that this was technically an error. While in proceedings to modify a divorce decree it is not necessary to serve new process on the adverse party, such party is entitled to adequate notice and opportunity to be heard before such decree may be altered in a manner that will directly affect his person, status or property. Moore v. Lee, Fla.1954, 72 So.2d 280, 42 A.L.R.2d 1112. And it was indicated in Hernandez v. Thomas, 1905, 50 Fla. 522, 39 So. 641, 644, 2 L.R.A.,N.S., 203, that it might be procedurally improper to permit a third party to litigate the question of a child’s custody by filing a petition in a divorce suit that had long since passed into a final decree of divorce between the child’s parents. But the court said in that case that “inasmuch as it is one of those unfortunate contests over the custody of children, where considerable rancor is manifest, we deemed it best, under all the circumstances of the case, to pass over the technicalities of procedure and to dispose of the case upon its merits.” This language is appropriate here, both as to the propriety of the procedure adopted by the aunt and as to the question of notice and opportunity to be heard. For the mother did, in fact, have a full hearing before the Chancellor on the question of the child’s welfare and custody before the entry of the order granting permanent custody to the aunt. It is well settled that the welfare of the child is the paramount consideration in cases of this kind; and the Chancellor found, after the hearing, that the welfare of the boy would be best served by changing his custody from his mother to his aunt. In these circumstances, the procedural error in holding the hearing before the final order changing custody was entered, instead of before the entry of the temporary order, does not require and would not justify a reversal of the final order as to custody.

It is also contended on behalf of the mother that the Circuit Court of Lake County had no jurisdiction of the subject matter of the cause, since she is domiciled in the State of Georgia and, as the legal custodian of Kenneth, his domicile follows hers. This contention cannot be sustained. In Di Giorgio v. Di Giorgio, 1943, 153 Fla. 24, 13 So.2d 596, 597, this court said:

“The law is and has been from time immemorial that each state is not only empowered, but is charged with the duty, to regulate’the custody of infants within its borders. This is true even though the parents may be residents of another state. [Citations.] For this, the residence of the child suffices, though the domicile be elsewhere. Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 625, 40 A.L.R. 937.
“The reason for this law is to protect the incompetent where they are because it is there where the protection is needed and there alone where a judicial order may be executed.”

We hold, therefore, under the authority of Di Giorgio v. Di Giorgio, supra, that the residence of the boy and his aunt in Lake County Florida, was sufficient to confer jurisdiction upon the court, even though the boy’s legal domicile may have been in Georgia, the legal domicile of his mother.

The only remaining question worthy of note has to do with the sufficiency of the evidence to support the ruling of the Chancellor, which deprived the mother of custody of her son. We are fully cognizant of the rights of a natural parent to the custody of his or her child and subscribe to the oft-stated rule that, all things being equal, the natural parent has the superior right of custody as against relatives or other third persons. Nor have we overlooked the rule that the rights of the parents will not be disregarded “in order to gratify the mere wishes of a child, when the parent or guardian is a proper person to be intrusted with its custody.” Marshall v. Reams, 32 Fla. 499, 14 So. 95. But this court cannot, in any type of case, overturn the decision of a Chancellor made in the exercise of his judicial discretion in the absence of a clear showing of an abuse thereof ; and, in a child custody case, the opportunity of the Chancellor to observe the demeanor and personalities of the parties and their witnesses and to feel forces, powers and influences that cannot be discerned by merely reading the record, assumes a new importance because of the many intangibles that must be evaluated in deciding the delicate question of child custody.

As has been noted, the order here reviewed was entered after six weeks of deliberation by the Chancellor and, we have no doubt, only after the most careful and thoughtful consideration of the mother’s rights in the matter. We have considered the testimony in the same light and are compelled to conclude that, for the present, the boy should remain with his aunt rather than be forced to live with his mother and his new stepfather in a home atmosphere that has become intolerable to him and from, which he emerged “underweight, undernourished and with a vitamin deficiency”, according to a doctor’s report, and weighing only seventy-nine pounds at age fifteen.

Accordingly, the order awarding custody to the aunt is affirmed, but without prejudice to the right of the mother to petition for his custody at any time that she may be so advised and circumstances have changed sufficiently to warrant her in so doing.

Affirmed.

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

THOMAS, J., dissents.


author: GILLIS, Associate Justice. PER CURIAM. GILLIS, Associate Justice

text:
    Frances JONES, Appellant, v. MERCURY CAB OWNERS’ ASSOCIATION, a Florida non-profit corporation, trading and doing business as Mercury Cab Company; Joseph Rosenbaum and Seymour Rottman, Appellees.
    Supreme Court of Florida Special Division A.
    Dec. 5, 1956.
    On Rehearing May 8, 1957.
    Dixon, Dejarnette, Bradford & Williams, Miami, for appellant.
    Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, for appellees.
   GILLIS, Associate Justice.

This is the second appearance of this case here. See Mercury Cab Owners’ Association v. Jones, Fla., 79 So.2d 782.

Appellant on June 1, 1953, filed her amended complaint against appellee here (hereinafter referred to as the Association) and two individuals seeking recovery of damages alleged to have been sustained in an automobile collision. Jury trial was had and in due course resulted in a verdict in favor of the plaintiff against the two individual defendants but in favor of the defendant Association.

At the conclusion of the trial the appellant filed four motions, all on the same day: (a) for judgment in her favor against the Association under Rule 41(d); (b) for judgment against the association notwithstanding the verdict; (c) for summary judgment against the Association, and, (d) (as alternative to (a) and (b)) for a new trial “on the issue only of whether Mercury Cab Owners' Association exercised or asserted sufficient dominion and control over the taxicab involved as to be legally responsible ”

The motions coming on to be heard the trial court granted that for judgment under Rule 41(d) reciting in his order that he found it unnecessary to rule on the other three, whereupon judgment was entered against the Association as well as against the two individuals, from which the Association alone prosecuted its appeal which was disposed of by an unqualified reversal, not a remand, on the theory that the question of the Association’s liability was for the jury, the opinion containing a discussion of the evidence. Petition for rehearing was denied on May 17, 1955.

Notwithstanding the apparent finality of the reversal the trial court, as appears by the Supplementary Transcript, entertained and pursuant to our mandate denied appellant’s motion for a new trial and there upon entered judgment in accordance with the verdicts from which she entered this appeal, the occasion for this second appearance before us of the controversy.

Of particular importance in our consideration of the case is the appearance in the original transcript at page 347 of the direction by appellant, appellee there, to include therein her motion for a new trial as to the Association appearing in full on pages 331-342, it being noteworthy that of the fourteen errors assigned by appellant on this appeal, those numbered 2-13, inclusive, are the same as numbers 14 — 25, inclusive, of the post-trial motion for a new trial and relate solely to charges to the jury, all of which warrants the presumption that in our review of the case on its first appearance we had the benefit of counsel’s argument not only as to the weight and sufficiency of the evidence but of the property of the court’s charges to tlie jury as well.

Of equal, if not greater, importance, however, is the fact that in the petition for rehearing — denied as already observed-devoted chiefly to a discussion of the evidence, counsel suggested that we had overlooked certain phases of the evidence or had committed error in the opinion regarding the proof and prayed for a reconsideration but as an alternative that if the opinion should be adhered to that it be clarified “leaving the trial court free to consider the other post-trial motions pending, including a motion for a new trial” thereby indicating the view on their part, with which we are in. accord, that the original opinion constituted a final disposition of the case as an adjudication of the rights and responsibilities of the parties.

In face of the record we find ourselves -unable to agree with all the implications ■of counsel’s statement in their brief that their summary of the evidence was “to •correct the apparent misapprehensions of this Court which appear in the opinion reported * * *.” As to counsel’s assumption that the qualification “under a correct and appropriate charge * * * on the applicable law” is implicit in the opinion, it may be as well to say that equally implicit is the assumption that this Court did not overlook or disregard any phase of the case, particularly that here stressed, presented by appellant and made available for argument by inclusion in the original transcript at appellant’s instance.

It is our view, therefore, that the principles of the “law of the case” or of “res judicata” elements of both of which not always clearly distinguishable as between the two are present and should be applied and the judgment accordingly affirmed.

In the case of Rogers v. State ex rel. Board of Public Instruction, 156 Fla. 161, 23 So.2d 154, 155, the second appearance of the case it is said:

“Nothing is presented here which we think warrants us in departing from our opinion and judgment in that case which became the law of the case insofar as it determined all the issues which were presented, or which might have been presented at that time. [Emphasis supplied.] See Sanders v. State [ex rel. D’Alemberte], 82 Fla. 498, 90 So. 455. See also 5 C.J.S., Appeal and Error, § 1832, wherein it is said: ‘Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a subsequent appeal, although the questions are not expressly treated in the opinion of the court, as the presumption is that all the facts in the case bearing on the points decided have received due consideration whether all or none of them are mentioned in the opinion. The records on a former appeal may be looked into for the purpose of ascertaining what facts and questions were then before the court * * Also see Paul v. Commercial Bank of Ocala, 69 Fla. 62, 68 So. 68; Florida East Coast Ry. Co. v. Geiger, 66 Fla. 582, 64 So. 238.”

The judgment is affirmed.

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

On Rehearing

PER CURIAM.

Upon a reconsideration of this case we have determined that we should adhere to the conclusion reached in our opinion filed December 5, 1956. Not upon the theory however expressed in that opinion with reference to “the law of the case” but upon the merits..

We do not find harmful or reversal error in the charge given or the charge refused, by the trial court which acts are challenged on this appeal. We adhere to the conclusion that this case should be affirmed which, was reached in and by the opinion filed. December 5, 1956.

It is so ordered.

HOBSON, Acting Chief Justice, and: DREW and THORNAL, JJ., concur.

GILLIS, Associate Justice, concurs specially.

GILLIS, Associate Justice

(concurring; specially).

I concur in adherence to the conclusion reached in the opinion filed December 5,. 1956, but solely upon the theory that the-controversy was finally and effectually disposed of on the merits in the opinion appearing in Fla., 79 So.2d 782.

       Now Rules of Civil Procedure, rule 2.8(d), 31 F.S.A.


text:
    Laura E. ERB and Reuben J. Erb, her Husband, Appellants, v. Walter McQUEEN, Appellee.
    Supreme Court of Florida, Division B.
    March 13, 1957.
    Rehearing Denied April 12, 1957.
   Appeal from Circuit Court, Dade County; William A. Herin, Judge.

PER CURIAM.

Affirmed.


text:
    NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, Appellant, v. Will LILLY, and G. F. C. Corporation, a Delaware Corporation Authorized to do Business in the State of Florida, Appellees.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    Rehearing Denied April 12, 1957.
   Appeal from Circuit Court, Palm Beach County; Jos. S. White, Judge.

PER CURIAM.

Affirmed.


text:
    Eugene BENTLEY, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, Division B.
    April 24, 1957.
   Appeal from Criminal Court of Record, Broward County; W. T. Kennedy, Judge.

PER CURIAM.

Affirmed.


text:
    Max LUBER, Doing Business as North Miami Hardware & Builders Supply Co. (not inc.), Appellant, v. ROOD COMPANY, Inc., a Florida Corporation; Rood Construction Corporation, a Florida Corporation and Philip Joseph Shay, Doing Business as Shay Decorating Service, Appellees.
    Supreme Court of Florida, Division A.
    April 24, 1957.
   Appeal from Circuit Court, Dade County; Harold R. Vann, Judge.

PER CURIAM.

Affirmed.


text:
    Louis ALTMAYER, Jr., Appellant, v. TROPICAL PARK, Inc., a Florida Corporation (Operating Tropical Park Race Track), Appellee.
    Supreme Court of Florida, Special Division A.
    May 1, 1957.
   Appeal from Circuit Court, Dade County; Grady L. Crawford, Judge.

PER CURIAM.

Affirmed.


text:
    Ben GREEN, Appellant, v. STATE of Florida, Appellee.
    Supreme-Court of Florida, Division A.
    May 1, 1957.
   Appeal from Criminal Court of Record, Hillsborough County; L. A. Grayson, Judge.

PER CURIAM.

Affirmed.


author: REGAN, Judge.

text:
    Harry ROTHMAN v. M. C. CENTANNI and Western Casualty & Surety Company.
    No. 20815.
    Court of Appeal of Louisiana. Orleans.
    April 15, 1957.
    Rehearing Denied May 27, 1957.
    Writ of Certiorari Denied June 28, 1957.
    Willis C. McDonald, Metairie, and Charles G. Thomas, New Orleans, for plaintiff-appellee.
    Ernest A. Carrere, Jr. and Hermann J. Schulze, New Orleans, for defendants-appellants.
   REGAN, Judge.

Plaintiff, Harry Rothman, the owner and operator of a 1942 Packard Convertible, instituted this suit against the defendants, M. C. Centanni, the owner of a 1941 Ford dump truck, and his liability insurer, Western Casualty and Surety Company, endeavoring to recover the sum of $3,030 representing personal injuries and property damage incurred by him as a result of a collision between the two vehicles in the Airline Highway on April 19, 1946, at about 11:00 a.m.

Defendants answered and denied that the driver of the dump truck, Leroy J. Girstley, an employee of Centanni, was guilty of any negligence whatsoever and averred that the negligence of the plaintiff was the sole cause of the accident and, in the alternative, pleaded his contributory negligence.

From a judgment in favor of the plaintiff as prayed for defendant has prosecuted this appeal.

During oral argument before this court counsel for the defendants conceded the negligence of Girstley the driver of the defendants’ truck in that he endeavored to execute a left turn without manifesting any external evidence of his intention to do so and that they relied exclusively upon the plea of contributory negligence to defeat recovery herein.

The record reveals that the plaintiff, who was accompanied by his wife, related that he was driving his automobile about thirty-five miles per hour in the left lane of the inbound roadway of the Airline Highway in the general direction of New Orleans; that as he ascended the Kenner Overpass he observed the Centanni truck in the righthand lane of the inbound roadway thereof; as he descended the overpass he signalled his intention of overtaking the truck by blowing the vehicle’s horn and, as he drew abreast of the cab thereof, the truck suddenly and without the manifestation of any signal whatsoever, endeavored to execute a left turn into the private road of T. L. James and Company, which was located on the left or lakeside of the highway at the very base of the overpass; plaintiff, in an effort to avoid the impending collision, swerved to his left and applied the brakes, but despite these efforts the left side of the truck collided with the right front side of his vehicle; as a result of the impact he was thrown through the left door thereof and into the roadway, causing personal injuries and property damage which are the subject matter of this litigation.

Plaintiff’s wife testified that they were residents of Miami Beach, Florida, visiting New Orleans for the first time; immediately prior to the accident her attention was focused upon the general terrain of her environment and, therefore, she was not familiar with the details leading up to the moment of the collision, however, she did assert that she became cognizant of an impending collision when the Centanni truck endeavored to execute a left turn into the path of their vehicle without the manifestation of any signal whatsoever. She further stated that they were moving in the left lane of the inbound roadway at a speed of approximately thirty-five miles per hour.

Plaintiff’s testimony is to some extent corroborated by that of William C. Galatas, a witness who was subpoenaed on behalf of the defendants. He asserted that he was driving a truck in the left lane of the inbound roadway trailing the plaintiff’s car but he was not in a position to see if the operator of the defendants’ truck gave any signal of his intention to execute a left turn nor was he able to hear if the plaintiff sounded his horn as he endeavored to pass the defendants’ truck. Pie stated that he was closely following the plaintiff’s vehicle intending to pass him when the opportunity presented- itself and when the defendants’ truck initiated a left turn, the plaintiff likewise turned to the left in an effort to avoid the collision; it was then that he swerved his vehicle to the right in order to safely pass both of their vehicles. However, he emphasized if the plaintiff had turned right instead of left his vehicle would have struck the plaintiff’s car “because I was going too fast to stop.”

Girstley testified that Centanni wanted to visit some one at the T. L. James and Company and, as he descended the overpass, he was driving in the left lane of the inbound roadway and signalled to make a left turn in order to drive into the T. L. James road. He then asserted “I had just about stopped; because in the lane going up I had to wait until they got clear * * * just about the time I got the back part of the truck to clear the lane I heard this car squeal and hit the truck.” He further related that his truck was equipped with a rear view mirror and that he looked but did not see any car approaching from the rear nor did he hear the plaintiff’s horn blow signalling his intention of overtaking the truck.

Centanni asserted that the truck was moving in the inbound lane of the Airline Highway and that it was his desire to visit some one in the T. L. James & Company and, therefore, as they descended the overpass the driver of his truck, without coming to a stop, signalled for a left turn and when they were in the outbound roadway of the Airline Highway his truck was struck broadside by the plaintiff’s vehicle.

The foregoing elucidation reveals that only questions of fact were posed for the trial court’s consideration. The judge thereof obviously accepted plaintiff’s version of the manner in which the accident occurred and, therefore, concluded that the plaintiff was free of any negligence which contributed to the accident and that the proximate cause thereof was the negligence of the driver of defendants’ truck in executing a left turn at a time when it was not safe to do so.

The question which this appeal has posed for our consideration is whether that finding of the trial judge is so erroneous and unsupported by the evidence as to warrant a reversal by us.

We are of the opinion that no useful purpose would be served by indulging in a protracted discussion of the foregoing testimony or by endeavoring to reconcile the respective litigants’ version of the manner in which the accident occurred. The trial judge accepted the plaintiff’s version thereof and our analysis of the record convinces us that the evidence preponderates in his favor and the judgment is, therefore, correct.

We have repeatedly expressed the opinion that a motorist intending to execute a left turn must initially ascertain by careful observation that the maneuver can be executed safely.

The trial judge awarded plaintiff $555 for damages to his automobile, $175 for medical expenses, $300 for the rental of an automobile while his car was being repaired, which rental was necessitated by the nature of plaintiff’s business and $2,000 for personal injuries predicated both upon the plaintiff’s testimony, and principally upon the testimony of Dr. Harold P. Auslander of Miami Beach, Florida, which was taken by deposition. Dr. Auslander stated that the plaintiff had a

“Deep lacerated wound on the bridge of the nose requiring five sutures, several contusions and bruises about the head, area under the eyes black and blue due to hemorrhages under the skin, nose swollen. Patient was under great nervous tension due to the shock of the accident. Sutures were removed and antibiotics were given to prevent infection. Because of obstructive features in the nasal passages he received treatment to drain the frontal sinuses.
“Shape and configuration has been definitely changed in the nose. There is a scar on the bridge of the nose. Due to the fact that proper drainage is impossible from the frontal sinuses because of the obstructions in the passages he suffers from frequent frontal headaches.”

In view of the foregoing expert testimony which stands uncontradicted in the record we believe that the award for personal injuries is not excessive.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


text:
    Castillow SINGLETON v. W. L. RICHARDSON & SON, Inc., and Travelers Insurance Company.
    No. 20935.
    Court of Appeal of Louisiana. Orleans.
    May 13, 1957.

      May & Carrere, New Orleans, for defendants-appellants.
    Charles E. McHale, Jr., New Orleans, for plaintiff-appellee.
   REGAN, Judge.

The plaintiff, Castillow Singleton, a “freight handler”, instituted this suit against the defendants, his employer, W. L. Richardson & Son, Inc., and its insurer, Travelers Insurance Company, endeavoring to recover workmen’s compensation in .the amount of $30 per week for four hundred weeks and medical expenses. Plaintiff initially pleaded that he was totally and permanently disabled as a result of a severe lumbo sacral strain incurred by him on August 23, 19SS. On this day he was injured while in the course of pushing a handtruck loaded with fourteen one hundred pound sacks of rice down a ramp. At the bottom thereof an iron plate was placed so as to make the transition from the ramp to the wharf an even one. The plate projected above the level of the wharf and as the handtruck came in contact with the plate it was suddenly arrested thereby causing plaintiff to be toppled over the truck and to fall striking his back on the paved portion of the wharf. As an ultimate result of this accident he now claims that he is afflicted with a post traumatic neurosis.

Defendants answered admitting the occurrence of the accident, but asserted that the plaintiff had fully recovered as of October 28, 1955, the date on which he was discharged by their physicians.

From a judgment in favor of plaintiff awarding him compensation at the rate of $30 per week for a period not exceeding four hundred weeks, subject to a credit thereon of $270 and medical expenses, defendants have prosecuted this appeal.

The record reveals that after plaintiff was injured on August 23, 1955, as related hereinabove, he was initially treated on September 2, 1955 by a member of Dr. Sam Houston’s staff, which treatment continued up to October 28, 1955, when he was discharged as fit to return to work. In the interim, at the request of Dr. Houston, the plaintiff was examined 'by two specialists in orthopedics, Drs. H. R. Soboloff knd George Berkett, who confirmed Dr. Houston’s conclusion that the plaintiff had ■ recovered from any orthopedic injury to his back and was, therefore, fully able to resume his employment. Plaintiff asserted that despite these conclusions of the foregoing doctors, he continued to suffer severe pain and, therefore, sought the medical facilities of the Charity Hospital in New Orleans. He was admitted as an outpatient in the Orthopedic Clinic for treatment of his back. The diagnosis of that hospital was “lumbo sacral strain six months duration.” The district judge confronted on the trial hereof with the foregoing conflicting medical testimony decided to appoint, with the consent of respective counsel, as an independent orthopedic specialist, Dr. George Battalora, whom he instructed to examine the plaintiff and thereafter report his findings to the Court. He was furnished with copies of all of the medical evidence adduced up to that moment of the trial including the reports of the Charity Hospital which reflected both the diagnosis and the treatment which had been administered to plaintiff at that institution. He examined the plaintiff and, in brief, expressed the opinion:

“ * * * that this man’s complaint’s could be all based on psychogenic factors. A patient has a normal' range of straight leg raising and if he ■ had the amount of limitation in flexion that he presumes to have, straight leg raising would be markedly limited. As it was, it was possible through 80°. Whenever he attempts any motion, he' develops a coarse tremor in both lower ■ extremities. This would lead me to believe that there is some psychogenic factor at play in this case. The type of hypesthesia that he presents is not physiological. When told to sit up on the table with his knees extended in front of him, he can do so and flex his spine to a normal extent. This puts the patient in a very strained position and any disabling condition in the low back, they are unable to do so. He performs this movement quite normally but does complain of some pain back of the left knee. I would therefore feel that from a strict orthopedic standpoint, that this man should be able to resume his previous occupation. As to the exact psychiatric diagnosis, I do not presume to give this but would advise that he be seen by a neuro-psychiatrist.”

In consequence of Dr. Battalora’s advice that the plaintiff be seen by a neuro-psychi-atrist, he was then sent by his counsel to Dr. H. Tharp Posey, a specialist in neurology, psychiatry and electroencephalography, who examined him and based upon his opinion that the plaintiff had suffered a traumatic neurosis as a result of the accident, together with the tentative impression of Dr. Battalora, plaintiff amended his original petition so as to assert a claim for total and permanent disability predicated on a traumatic neurosis.

As related hereinabove the record is embellished with expert orthopedic testimony furnished principally by the defendants’ doctors to the effect that plaintiff had suffered no permanent bone pathology as a result of the accident. In fact, counsel for plaintiff- asserted in oral argument before this court that he did not believe that his client is afflicted with any bone pathology in consequence of the accident, but he 'has incurred as a permanent result thereof a traumatic neurosis which has totally and permanently disabled him; therefore, no useful purpose would be served by any further analysis or discussion of this orthopedic testimony.

Counsel for plaintiff in endeavoring to prove that plaintiff is presently suffering from a traumatic neurosis produced Dr. H. Tharp Posey, who testified that he had seen and examined the plaintiff on August 3, 1956. In response to the following questions he elucidated thereupon as follows:

“Q. But what psychiatric examination did you make of this patient? A. Well, I performed a mental status examination of him and found that he was perfectly rational, but his complaints coupled with the physical findings led me to the final diagnostic impression that he was psychoneurotic or suffering from a psychoneurosis conversion, hysterical type, and that, in my opinion, it was traumatic in origin.
“Q. What was your impression of the man’s physical condition insofar as his weight, build and intelligence are concerned? A. Dull Normal I.Q., illiterate, uneducated from a mental standpoint. Physically, I thought he was quite a splendid specimen of a man.
“Q. What parts of his body did he tell you bother him the most? A. His low back and his left lower extremity. The low back hurt more or less all the time, particularly on some motion, but the bother of the lower extremity, the nature of that bother, I never could exactly determine what he meant.
“Q. Doctor, is it your opinion that Castillow Singleton is suffering from a traumatic neurosis? A. It is.
“Q. Will you tell the Court what your opinion is as to the origin of that traumatic neurosis? A. The injury of which the man complained which has already been described.”

Dr. Posey was convinced that if the plaintiff had not been injured by virtue of the accident which occurred on August 23rd, 1955, he would not now be afflicted with a traumatic neurosis and he was positive he was not a malingerer. Relative to the prognosis of the neurosis he expressed the following opinion:

“I have not the slightest doubt but that his complaints would improve markedly upon compensation but without it I should say he is crippled for life as far as doing the type of work he originally did when injured.”

Defendants offered no expert psychiatrical testimony to rebut the conclusion of traumatic neurosis reached by Dr. Posey, therefore, this diagnosis stands in the record uncontradicted by a similar expert.

In the case of Lala v. American Sugar Refining Co. the organ of the Court said:

“There is no doubt in our minds that nervousness, neurosis, or emotional disturbances superinduced by injuries suffered by a workman, can be just as devastating to the ability to return to work as are physical or anatomical injuries, and are equally as compensable under the statute.”

The trial judge in the first paragraph of his reasons for judgment, expressed the opinion that:

“The evidence as a whole preponderates to the effect that plaintiff was injured while at work in the scope of his employment on August 23rd, 1955, and that he has not been able to perform the same duties he was performing when he was injured.”

The fundamental question which this appeal has posed for our consideration is whether that finding is so erroneous and unsupported by the evidence as to warrant a reversal by us.

After a comprehensive analysis of all of the medical testimony and of the facts, including the testimony of plaintiff, his prior good record, and the nature of the injuries incurred by him, we are constrained to believe that he has sustained the burden of proof and has established with that certainty which the law requires his claim for total and permanent disability. In the relatively recent case of Ladner v. Higgins, the organ of this Court said:

“We are fully cognizant of the caution which we must exercise in a case of this nature, in view of the nebulous characteristics of a neurosis, however, if plaintiff’s condition should improve in the future, the defendants may avail themselves of the provisions of the workmen’s compensation law, which affords them the right to reopen the case after the lapse of six months.”

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

      . La.App.1949, 38 So.2d 415, 421.

      . La.App.1954, 71 So.2d 242, 245.