author: THOMAS, Justice.

text:
    JACKSONVILLE COACH COMPANY, a corporation, Appellant, v. Sam ROYAL, Appellee.
    Supreme Court of Florida.
    Oct. 2, 1957.
    Rehearing Denied Oct. 24, 1957.

      Lewis Rhea Baxter and Rogers, Towers, Bailey & Jones, Jacksonville, for appellant.
    Carlton L. Welch and Will O. Murrell, Jacksonville, for appellee.
   THOMAS, Justice.

This action was brought by the appellee against the appellant and one Charlie Randolph who was driving the car in which the appellant was riding at the time the car and appellant’s bus collided. A verdict in Randolph’s favor was directed by the court and he is not a party to this appeal.

The collision occurred at the intersection of McDuff Avenue and Roosevelt Boulevard. At that point the boulevard has four lanes, two for eastbound traffic and two for westbound traffic, separated by a strip planted in grass. The bus, travelling north-wardly on McDuff Avenue, had crossed the south lanes, had passed the grass strip and was extended across the north lanes when the car operated by Randolph, going west-wardly, struck it.

In the last amended complaint it was. charged that the driver of the car, Randolph, was guilty of gross negligence at the time of the collision because he was operating the car, equipped with tires that were worn and smooth, at an excessive rate of speed in a “misting rain” toward the bus which had become a hazard to traffic by proceeding into the two north lanes of Roosevelt Boulevard. In a following paragraph the operator of the bus was alleged to have been guilty of negligence by failing to be on the alert for approaching traffic and to stop in time to avoid the collision.

The appellant denied that it had been negligent or that appellee was a passenger in the motorcar, and averred that, instead, he was driving the car and negligently drove it into the bus. The appellant further-charged that the car was being driven by-Randolph who was engaged in a joint enterprise with appellee so that it was appellee’s-duty to see that the car was operated carefully, whether he was driving or not, and that it was Randolph who negligently ran the car into the bus.

At the conclusion of the introduction of plaintiff’s evidence, the court directed a verdict in favor of the defendant, Randolph, and the jury after considering all the testimony found that the appellee should recover from the appellant.

In this appeal the appellant asserts that there was no testimony whatever of negligence on the part of the driver of the bus. It is argued, in support of this position, that the bus was “entirely” across the intersection when struck in the side by an automobile driven at high speed by Randolph, a speed about which, it is said, however, there was conflicting testimony “as there always is in such cases,” to quote from appellant’s brief. Then the appellant invites us to examine the photographs, introduced by it, to gain an idea of the force ■of the impact which was so great that the bus was moved sidewise and the car “was collapsed like an accordian [sic],” so great ■“that the car was * * * shortened, like an accordian [sic], to about half or less of its normal length.”

We think these last quoted statements, •appearing in the appellant’s brief, are rather extravagant deductions from the photographs although it is apparent that when the car struck the bus the result was one that could be expected, great damage to the lighter vehicle by impact with the heavier one.

The difficulty of deciding the issue of negligence arises from the uncertainty of circumstances suddenly developing which are unexpected and which, had they been anticipated, would, of course, have brought the pause that would have prevented the collision. The damage would have been the same whether the bus through the fault of its driver entered the path of the car or the car through the fault of its driver carelessly ran into the bus. The condition of the vehicles' afterwards is positive but the other circumstances are inexact and speculative as is evident from the conflicting stories. For instance, there was a traffic light at the intersection and the testimony whether it showed green toward the south or east was conflicting. It is not clear just when Randolph first saw the bus but he testified he was only ten feet from it when he “hit” the brakes. This would indicate that he negligently waited until it was too late to prevent the collision. On the other hand, if the bus had nosed inio the lane he was travelling when he was so near he could not prevent the collision by stopping, it would indicate that he was not to blame. The physical condition of the vehicles showed that the car hit the bus but it does not inexorably follow that the driver of the car was to blame, for the bus may have negligently got in the way too late to be avoided.

Crossing collisions usually happen in circumstances that are confusing because of the uncertainty of the testimony of witnesses who see them, even though all may conscientiously report what they think they saw. The present case is not unlike scores of them that have reached this court. We cannot undertake to put ourselves in the places of the jurors who decided that the appellant’s driver was negligent. The case was typically one for a jury and we refrain from disturbing the judgment despite the plausibility of the argument of appellant’s counsel.

The parties to this appeal seem to agree that the driver of the car occupied by the appellee was negligent. The immediate question is whether the driver of the bus was guilty of negligence proximatcly causing the injury. If both were negligent then both defendants were jointly and severally liable and the jury could find both guilty or find one guilty and one not guilty, H. E. Wolfe Const. Co., Inc., v. Ellison, 127 Fla. 808, 174 So. 594, 605. The court announced in that case that in such event a defendant could not complain about a verdict in the favor of his co-defendant “because there can be no contribution among joint tort-feasors.” Moreover if “an injury be caused by the concurring negligence of two parties, either is liable * * * to the same extent as though it had been caused by his negligence alone.” This opinion was followed in Crenshaw Brothers Produce Company v. Harper, 142 Fla. 27, 194 So. 353.

The cases cited give the general rule and but for the complications peculiar to this case we would simply say that appellant could not now complain of the verdict in favor of the defendant, Randolph, even though it was directed. As we have written, the defendant, Randolph, was charged with gross negligence, obviously on the theory that appellee was his guest and could not, therefore, recover from the driver unless he proved negligence of that degree, Sec. 320.59, Florida Statutes 1953, and F.S.A. As we have written, too, the court, at the conclusion of the introduction of plaintiff’s testimony, granted the motion of Randolph for a directed verdict and it seems that he did so because it was apparent to him “no evidence [had] been submitted upon which the jury could lawfully find a verdict for the plaintiff” against this defendant, plaintiff having failed to prove gross negligence. Sec. 54.17(1), Florida Statutes 1953, and F.S.A.

But we think the rule announced in the cited cases is applicable although the ap-pellee by his pleading undertook the burden of proving the defendants guilty of different degrees of negligence.

Meanwhile the defendant, Jacksonville Coach Company, had pleaded that the plaintiff and the defendant-Randolph were, at the time of the mishap, engaged in a joint adventure so that if such a relationship could be' established, the negligence of Randolph would be imputed to the ap-pellee. But we are not directed to testimony that would justify the conclusion that there was such community of interest between the driver, Randolph, and the passenger, appellee, as to show they were engaged in a joint enterprise, Roberts v. Braynon, Fla., 90 So.2d 623, the elements of which were detailed in Yokom v. Rodriguez, Fla., 41 So.2d 446.

We advert now to appellant’s brief, to ascertain the nature of the complaint with reference to the ruling that resulted in the exit from the case of the defendant Randolph.

Application of the statute, Sec. 320.59, supra, operated to the benefit of Randolph, and to the detriment of appellee who does not complain here about the court’s ruling.

The appellant observes in its brief that Randolph was the one to be protected by the statute, Sec. 320.59, supra, but asserts that withdrawing the issue of gross negligence from the jury greatly prejudiced its case and insists that “the court should not have directed a verdict * * * until it had heard the testimony of all the witnesses.” We cannot accept this view.

In dealing with this subject the appellant insists that the defendant Randolph was solely responsible for appellee’s injuries but for the reasons already given we cannot agree. The conflicts in the testimony were resolved by the jury and the jurors were guided by a specific charge, requested by the appellant, relative to its liability if Randolph alone was shown to be responsible: “If you find from the evidence that the accident was caused solely from the negligence of the defendant, Charlie Randolph, it is your duty to return a verdict of not guilty in favor of the defendant, Jacksonville Coach Company.” Of course, the charge was given at the conclusion of all testimony and although we do not sympathize with the position that it had been shown that Randolph was solely responsible for the collision, we are not aware of any reason why the appellant was prevented from undertaking to establish Randolph’s sole responsibility even though he had been dismissed from the case for lack of proof that he had been grossly negligent.

It is argued in the brief that dismissal of Randolph “before all the evidence was in * * * constituted a direct invitation to tbe jury to bring in a verdict against the bus company, without regard to the fact no negligence of the bus company had been shown,” because the plaintiff had been badly injured, it appeared someone should pay, no one but appellant was left in the case against whom a verdict could .be rendered, arid therefore “all the jury could do was to assess damages against the defendant bus company.” To embrace this idea would be to hold that the jurors disregarded their oaths, ignored the testimony, and paid no attention to the law as given them by the court. We reject the contention because we think that on its face it is wholly without merit.

The appellant’s last question constitutes a challenge of the propriety of the criticism by the appellee’s attorney of certain photographs offered by the appellant. It is claimed that the remarks were offensive and amounted to a reflection on appellant’s attorneys and investigators because the appellee’s lawyer said the pictures were “doctored” or “faked.”

We do not find in the record the words quoted from the brief, or statements of which they are accurately descriptive. From the appendix to appellant’s brief we quote the part of the record selected by it to sustain the charge. The excerpts were taken from the transcript of the argument of counsel for the appellee:

“Murrell ‘Now don’t be too intrigued by these pictures * * *. Nobody knows what that picture would have shown taken from another angle.’ H» ^
“Norton: T object * * * (etc.) By his own witness, that witness identified those pictures as correctly portraying this situation.’ * * *
“The Court: T will overrule the objection on that.’ * * *
“Murrell: ‘I think you know pretty well about pictures * * * they make them perform any way in the world they want to.’ * * * ”

The last quoted statement as it appears in the record we copy in full: “I think you know pretty well about pictures, because you see them in TV and you see them in regular motion pictures where they make them perform any way in the world they want to.” (Italics ours.) When the words we have italicized are included, any inference that the appellant or any one taking the pictures “doctored” or “faked” them seems strained.

We do not find the language used so offensive that we disapprove the judge’s ruling that the objection to it was not well founded.

Affirmed.

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


source: Caselaw Access Project

author: DREW, Justice.

license: Public Domain

text:
    Mariano PONCE and Florence Ponce, husband and wife, Appellants, v. CHILDREN’S HOME SOCIETY OF FLORIDA, a non-profit corporation, Appellee.
    Supreme Court of Florida.
    Sept. 25, 1957.
    Rehearing Denied Oct. 17, 1957.

      Herman T. Isis, Miami, for appellants.
    M. L. Mershon, Ray M. Earnest and Alfred E. Sapp, Miami, for appellee.
   DREW, Justice.

An infant child was adjudged dependent within the meaning of Chapter 39 Florida Statutes 1953, F.S.A. by the Juvenile and Domestic Relations Court Judge of Dade County, Florida on March 11, 1955 and committed temporarily to the Children’s Home Society of Florida, a licensed child placing agency. The commitment order retained jurisdiction to make such orders for the welfare of the child as might be found necessary. See Sec. 39.11(2), Florida Statutes 1953, F.S.A.

The Society placed the child with the appellants as their agents and employees and paid appellants for taking care of the said child. During the month of December, 1956, the Society removed the child from appellants’ custody. Shortly thereafter appellants filed a petition for adoption of said child in the Circuit Court of Dade County naming therein the Children’s Home Society as the sole defendant. On motion to dismiss made by the Society and upon consideration of the petition and the sworn answer and exhibits, the Circuit Judge dismissed the petition. It is from this order that this appeal has been prosecuted.

The Circuit Judge gave three reasons for dismissing the petition. First, he said that the Juvenile and Domestic Relations Court of Dade County has the “sole, exclusive jurisdiction of the dependent infant.” Second, he held “plaintiffs are not in position to invoke the jurisdiction of this Court over said child or over said Petition for Adoption,” and third, “that this Court is without jurisdiction to entertain said Petition for Adoption.” The first and third reasons of the learned trial judge present the same question, that is, whether the Circuit Court, in view of the prior order of the Juvenile and Domestic Relations Court of said County committing the child temporarily to the Children’s Home Society, had jurisdiction in a suit for the adoption of this infant. The other question is whether the petitioners seeking adoption were barred from maintaining the action because of the agency relationship between them and the child placement agency.

The appellants are not prohibited from seeking the adoption of the child merely because they were the agents of the Children’s Home Society during the period the child was in their custody. There is nothing in the adoption statute itself which creates such a disability, and the cases cited by appellee which hold that an agent cannot, without his principal’s consent, acquire an interest in the subject matter of the agency adverse to the principal, are wholly inapplicable to the facts here. Whether a contractual agreement prohibiting adoption in situations such as that involved in this case would be enforceable is not raised here and, therefore, requires no further comment on our part.

Chapter 39 applies to the Juvenile and Domestic Relations Court of Dade County, but protects any expanded jurisdiction and certain other matters not relevant to the case at bar conferred on that court by other statutes. See Secs. 39.-02(7); 39.181; and Chapter 26880, Sec. 3, Laws of Florida 1951, F.S.A. § 39.01 note. The acts which apply to the Juvenile and Domestic Relations Court of Dade County (Chapter 19597, Laws of 1939; Chapter 21094, Laws of 1941; and Chapter 27000, Laws of 1951) purport to give that court concurrent jurisdiction with circuit courts over adoption. Appellants assert that Article III, Sec. 20 of the Florida Constitution, F.S.A. prohibits the legislative grant of adoption jurisdiction by the above “population” acts, and cite State ex rel. York v. Beckham, 1948, 160 Fla. 810, 811, 36 So.2d 769 as authority. The assertion is irrelevant to the immediate case, because the record does not reveal any attempt by the Juvenile and Domestic Relations Court to exercise adoption jurisdiction. For this reason we will not decide the constitutional question.

The disposition of the jurisdictional question does not require us to consider the intricate problems of conflicts in jurisdiction which were presented to and decided by us in State ex rel. Hendricks v. Hunt, Fla.1954, 70 So.2d 301 and State ex rel. Watson v. Rogers, Fla.1956, 86 So.2d 645; and which are discussed in the Annotations in 11 A.L.R. 147, 78 A.L.R. 317 and 146 A.L.R. 1153. The Hendricks and Watson cases, supra, involved the determination of whether a juvenile court had jurisdiction to enter orders affecting the custody of children, since a circuit court had previously retained jurisdiction after making orders concerning custody of the children in connection with divorce actions. In each case two courts attempted to award custody of the same children, which resulted in a direct conflict. In the case at bar, the statute clearly contemplates and provides for the preparation of a child for adoption subsequent to an adjudication of dependency. This wise provision does not conflict with a timely consideration of an adoption petition concerning the same child, but is complementary thereto.

Obviously under both Chapter 39 and Chapter 72 Florida Statutes, F.S.A., the respective courts must deal with the status of a child, and often, as here, the same child. The relevant portions of Chapter 39 have as their purpose:

“to assure to children the care, guidance and control, preferably in each child’s own home, which will conduce to the child’s welfare and the best interests of the state; to assure that a child removed from the control of the child’s parent shall receive care, custody, and discipline as nearly as possible equivalent to that which should have been given to the child by the parent, and in all cases where a child must be permanently removed from the custody of the parents of the child, that the child be placed in an approved family home and be made a member of the family by adoption.” Sec. 39.20.

We indulge the presumption, as we must, that the Juvenile and Domestic Relations Court Judge will perform his duties as contemplated trader Chapter 39 to prepare a child for adoption, and there is nothing in this record which would negative such an assumption. We glean from the record that the child was being prepared for adoption but that medical care and attention were necessary to correct an apparent retardation in the child’s development before a permanent order of commitment was entered.

It is obvious from a study of the statutes above mentioned that their effective operation and administration in cases like this require cooperation and coordination of the work of the judges administering these vital matters. While there is no doubt .of the jurisdiction of the circuit court over adoption, great caution should be observed by a circuit judge, .in the exercise of that jurisdiction to see that there is no conflict between his court and that of the juvenile court with respect to dependent children. As a general rule where a juvenile court has assumed jurisdiction over a dependent child as in the case at bar, a circuit court judge, although he may have the power to do so, should not entertain a petition for adoption of such child until the juvenile court has-made a permanent commitment of the child to a licensed placement agency pursuant to Sec. 39.11, or otherwise relinquished jurisdiction.

The circuit court was in error in holding it did not have jurisdiction, but the result reached in dismissing the petition was free from error and evidenced the exercise of a sound discretion.

Affirmed.

HOBSON, Acting Chief Justice, and THORNAL and O’CONNELL, JJ., and WIGGINTON, District Judge, concur.

      . But see, In re Rouse, Fla.1953, 66 So.2d 42.

      . While custody in a generic sense, or at least, the right to custody of infants is necessarily an element involved in and. which flows from adoption proceedings, custody cases ordinarily have nothing to do with the question of adoption and may arise out of a great variety of circumstances and types of litigation in courts of varying jurisdictions. Moreover, custody is a transient and impermanent thing and may be changed, by its very nature, from time to time. It would be difficult to imagine a custody order in itself having any great degree o'f finality.

      . Chapter 72 provides generally for adoption, and in Sec. 72.08 places exclusive jurisdiction in the circuit court “in all matters of adoption.”


author: PER CURIAM.

text:
    Emmett D. ANDERSON, Appellant, v. Beatrice B. MARSTON, Appellee.
    No. 57-115.
    District Court of Appeal of Florida. Third District.
    Oct. 8, 1957.
    Irene Redstone and H. V. Whitehurst, Miami, for appellant.
    Carling H. Stedman, Miami, for appellee.
   PER CURIAM.

Affirmed on the authority of In re Garrett’s Estate, Fla.1952, 60 So.2d 281; In re Estate of Zimmerman, Fla.1956, 84 So.2d 560, and Williams v. Kane, Fla.1956, 88 So.2d 599.

CARROLL, CHAS., C. J., HORTON, J., and LOPEZ, Associate Judge, concur.


author: HORTON, Judge.

text:
    The CITY OF HIALEAH et al., Appellants, v. The STATE of Florida ex rel. S. F. DANELS and Frances Danels, husband and wife, Appellees.
    No. 57-106.
    District Court of Appeal of Florida. Third District.
    Oct. 3, 1957.
    Byrd V. Duke, Jr. and Paul H. Laufer, Miami, for the City of Hialeah and a majority of the City Council, for appellants.
    No appearance for the appellees.
   HORTON, Judge.

A peremptory writ of mandamus was issued by the lower court requiring the City of Hialeah, through its mayor and city council, to approve and affirm by appropriate action the relocation of an alley within the City of Hialeah. The Council failed to comply with the peremptory writ within the time specified. This appeal is from the order and judgment awarding the appellees a peremptory writ of mandamus.

Although numerous errors have been assigned for a reversal, the principal question involved is whether or not the lower court, under the circumstances, could control by mandamus the discretionary functions of a public body. The question must be answered in the affirmative.

The petition for alternative writ charged that the city council of Hialeah had refused to approve or affirm the proposed replat of an alley in the City of Hialeah, and that such refusal was prompted by bias and political reasons. These charges were denied by the council in its return to the alternative writ. However, the lower court in the judgment awarding a peremptory writ, adjudicated and determined as a fact that the city council had been prompted by bias and political reasons in refusing to approve or affirm the proposed replat of the alley. We are not called upon to review the sufficiency of the evidence to support the judgment awarding the peremptory writ.

As a general rule, writs of mandamus will not issue to control the exercise of official discretion or judgment, or alter or review official action taken in the proper exercise of such discretion or judgment. However, this rule has limitations. If, in the attempted performance of discretionary acts, the official abuses the discretion so as to amount to a failure to do the act as the law requires, there has been in fact no actual exercise in good faith of the judgment or discretion vested in the officer and mandamus is a proper remedy. An official may not act arbitrarily and unwarrantably or in disregard of evidence clearly and unmistakably pointing to a contrary result and thereafter question the right to resort to' mandamus to compel proper action on his part. 34 Am.Jur, Mandamus, Sec. 68, 69 (1955),

The limitation upon the general rule has been recognized in Florida. In State ex rel. Roberts v. Knox, 153 Fla. 165, 14 So.2d 262, 264, the Supreme Court of Florida said:

“The discretion conferred by law on an officer is required to be exercised according to established rules of law. The officer when exercising the discretion is not permitted or allowed to act in an arbitrary or capricious manner. He is not permitted to exercise the discretion conferred by law for personal, selfish or fraudulent motives or for any reason or reasons not supported by the discretion conferred by law. See 38 C.J. 598-600, par. 74. The arbitrary or capricious exercise of discretion conferred by law on an officer can or may be regulated by mandamus. See 18 R.C.L. 126-128, par. 39.”

See also Garvin v. Baker, Fla. 1952, 59 So.2d 360, 361.

The only attempted justification by the appellants for their refusal to approve the replat of the alley was the fact that it would not be for the best interests of the City of Hialeah and that it would result in the formation of certain lots which would be so small as to be detrimental to the residents of the City of Hialeah and would conflict with the present planning and development of the City. No evidence whatever was submitted to the lower court in support of this averment. Under the facts as adjudicated by the lower court, it was well within the province of that tribunal to issue the peremptory writ of mandamus. No error having been made to appear, the judgment awarding the peremptory writ appealed from should be and it is hereby-affirmed.

Affirmed.

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


text:
    Howard B. HOPSON and Dorothy Hopson, his wife, Appellants, v. W. H. SANBORN, Appellee.
    No. 57-119.
    District Court of Appeal of Florida. Third District.
    Oct. 3, 1957.
    . Carling H. Stedman, Miami, for appellants.
    M. S. Marlin, Miami, for appellee.
   PER CURIAM.

We are here concerned with an appeal from a 'final' decree quieting title based upon adverse possession. Appellants and appellee are agreed that the cause is governed by the provisions of Section 95.-19, Fla.Stat., F.S.A. All of the assignments of error question the sufficiency of the evidence “as a whole to support the finding” that the plaintiff had acquired title by adverse possession. The principal challenges of the appellants were (1) the evidence did not support the finding of adverse possession because of a failure of the plaintiff to demonstrate an intention to hold adversely, and (2) there was not' adequate' evidence upon which to find that the land had been “usually cultivated or improved” as required by the statute above mentioned. Without discussing the evidence in detail it is sufficient to point out that we have examined the record in the light of the objections presented and find that the assignments of error are not well founded.

Affirmed.

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


text:
    Greg SUTTON, Appellant, v. Olga CAPETANIDIS, Appellee.
    No. 57-147.
    District Court of Appeal, Third District.
    Oct. 3, 1957.
    Dixon, Dejarnette, Bradford & Williams, and Charles A. Kimbrell and M. R. Adkins, Miami, for appellant.
    Britton, Hodges & Hyman, Miámi, for appellee. • • ■
   PER CURIAM.

The main issue raised by this appeal is the validity of a release executed by the appellee. The record in this cause has been carefully examined and arguments at the bar of this court have been considered. We feel that the issue raised in this case is controlled by the opinion of the Supreme Court of Florida in De Witt v. Miami Transit Company, Fla.1957, 95 So.2d 898, and that upon said authority the cause should be reversed. No useful purpose would be served by delineation of the facts and law in this cause as the aforementioned opinion brings to date all the known authorities on this question. The judgment of the lower court is therefore reversed with directions to the lower court to enter judgment for the appellant.

Reversed with directions.

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


text:
    STATE of Florida, Petitioner, v. Lee LOCKETT, Respondent.
    No. 54.
    District Court of Appeal of Florida. Second District.
    Sept. 25, 1957.
    R. B. Huffaker, State’s Atty., Bartow, Clifton M. Kelly, County Solicitor, Lake-land, and Gordon F. MacCalla, Asst. County Solicitor, Winter Haven, for petitioner,
    Oxford & Oxford, Lakeland, for respondent.
   PER CURIAM.

Petition denied. See Gee v. State, 1911, 61 Fla. 22, 54 So. 458; and 41 C.J.S. Homicide § 396 c, pp. 232-233.

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


author: CARROLL, CHAS., Chief Judge.

text:
    John V. KILIAN, Appellant, v. Dorothy R. KILIAN, Appellee.
    No. 57-120.
    District Court of Appeal of Florida. Third District.
    Oct. 3, 1957.

      J. R. Bates, Miami, for appellant.
    Bernard Berman, Miami, for appellee.
   CARROLL, CHAS., Chief Judge.

•A final decree awarded the appellee Dorothy R. Kilian a divorce, a half interest in a business of the parties, and the husband’s interest in their jointly owned furnished home.

The appeal challenges only that portion of the decree awarding to tire wife the husband’s share of the home as lump sum alimony.

The appellant’s contention, that the interest in the property held by the husband and wife in an estate by the en-tireties could not be the subject of lump sum alimony to his wife, is without merit. Bezanilla v. Bezanilla, Fla.1953, 65 So.2d 754; Reid v. Reid, Fla. 1954, 68 So.2d 821; and Halberstadt v. Halberstadt, Fla.1954, 72 So.2d 810.

In Reid v. Reid, supra, 68 So.2d at page 822, the Supreme Court speaking through Mr. Justice Thomas, settled that question as follows:

“The first question may be simply stated: Did the chancellor have the power to command the appellant to convey his interest in the property which was held as an estate by the en-tireties at the time the decree was entered ?
“We have so frequently dealt with such an estate that there is no occasion to pause here to repeat our definitions. It is sufficient to say that the interest’s of the parties, who must have been man and wife for such an estate to have been created, became crystallized by a dissolution of the union. At once they became ‘tenants in common.’ Sec. 689.15, Florida Statutes 1951, and F.S.A., each owning an undivided one-half interest in the property.
“Clearly, under Sec. 65.08, Florida Statutes 1951, and F.S.A., the chancellor had the power to order payment of alimony ‘in a lump sum.’ He had also the power to require the conveyance by the husband to the wife of real property owned entirely by the husband. See Bezanilla v. Bezanilla, Fla., 65 So.2d 754. If the chancellor can order the conveyance of property the husband owns outright there is no reason to hold that he cannot order the man to convey to the woman his undivided interest in property they own as tenants in common.”

The contention that the allowance of alimony was an abuse of discretion, likewise is without merit, and appellant has failed to sustain the burden of showing an abuse of discretion on the record. See Astor v. Astor, Fla.1956, 89 So.2d 645, 648; and Lauderdale v. Lauderdale, Fla.App., 1957, 96 So.2d 663, 665.

The record on appeal shows that their acquisition of the home and of the small business (doughnut shop) was through contributions of both parties; that the doughnut shop had become a losing proposition; that the husband was able-bodied and was able to support himself; that the wife was in need of support, the amount of which she estimated at $25 a week; and the equity in the home was shown to be $4,000.

In view of the picture presented by the record we think the chancellor was authorized under Section 65.08, Florida Statutes 1955, F.S.A., to enter the order he did. He had power to make a lump sum award for alimony. Both parties appear satisfied with the divorce and in sharing- the business. The lump sum alimony award, approximating $2,000 in value, is equivalent to “permanent” alimony at $25 a week for a period of less than two years. We find no basis in the record to disturb the alimony decreed by the chancellor.

Accordingly, the decree appealed from should be, and hereby is affirmed.

Affirmed.

HORTON and PEARSON, JJ., concur.


text:
    QUALITY FURNITURE HOUSE, Inc., a Florida corporation, Appellant, v. GENERAL BOND and DISCOUNT COMPANY, a Florida corporation, Appellee.
    No. 57-100.
    District Court of Appeal of Florida. Third District.
    Sept. 10, 1957.
    Sheldon Dubler, Miami, for appellant.
    Marx M. Faber, Miami, for' appellee.
   CARROLL, CHAS., Chief Judge.

Appellee moved to dismiss the appeal for failure of appellant to file assignments of error and directions to the clerk within the time fixed by rule.

The appeal was commenced by the filing of a notice of appeal on August 2, 1957, directed to a chancery decree of July 18, 1957.

Appellee’s motion to dismiss was filed in this court on August 15. Five days later on August 20, appellant filed a motion for additional time to file assignments of error and directions to the clerk, which motion set forth the following as grounds:

“For grounds hereof, appellant shows unto the Court that due to economic circumstances it was unable to provide the fees requested by its counsel or to procure other counsel to represent appellant in the perfection and completion of this pending appeal, and that its undersigned counsel was unwilling to proceed therein until financial arrangements had been completed to his satisfaction.
“That satisfactory arrangements have now been concluded and appellant’s counsel is willing to perfect this pending appeal, provided the right to do so is granted by the Court.”

Rule 3.5 subd. a, Florida Appellate Rules, provides that assignments of error shall be filed with the clerk of the lower court within ten days after notice of appeal has been filed. Sub-paragraph “d” of that rule provides that the time for filing assignments may be extended by the appellate court or the lower court. There is no express statement there as to the reasons or the need for showing good cause, in order for a'party to be entitled to such extension. For comparison, attention is directed to Rule 3.7, which relates to the filing of briefs, sub-paragraph “d” of which includes a requirement to show good cause, as follows:

“The appellate court, or the lower courf may, for good cause, extend the time' for filing briefs and appendices, * * *

Failure of an appellant to file assignments of error within the time specified by court rule long has been recognized as a basis for dismissal of an appeal. Florida Cent. & P. R. Co. v. Peacock, 1902, 44 Fla. 176, 33 So. 247; Wang v. Larkin, 1925, 90 Fla. 419, 106 So. 406; Farmer Concrete Works v. Gillooley, 1926, 91 Fla. 316, 107 So. 404; In re Lofton’s Estate, 1943, 152 Fla. 626, 12 So.2d 587; Goldtrap v. Mancini, Fla.1956, 86 So.2d 141. Cf. Williams v. La Penotiere, 1889, 25 Fla. 473, 6 So. 167 (for failure to file transcript on time).

The general rule, where time is fixed for the filing of papers such as assignments of error as a necessary step in perfecting an appeal, is that failure to file them within the time prescribed may result in dismissal, and that a motion to extend the time for filing must be supported by a satisfactory excuse for the default.

“As a general rule, if an assignment of errors or statement of grounds or reasons of appeal has not been filed within the time prescribed, the assignment or statement will not be considered by the appellate court, and the appellate proceeding will be dismissed or the judgment affirmed, as the statute or rule of court may provide,, unless there are errors for which no assignment is necessary. It has been held, however, that the time for filing an assignment of error may be extended for good cause shown, especially if no delay in the submission of the cause has occurred, or the opposite party has not been prejudiced; but even under such cases it is incumbent on appellant to make a satisfactory showing excusing the default.” 4 C.J.S. Appeal and Error § 1281 b, p. 1804.

Proper and efficient administration of justice, as well as respect for the intent and requirements of the rule imposing the time limit for filing assignments of error and directions to the clerk, compels compliance, unless an extension is granted on timely application supported by a sufficient reason for delay, or, after the time has expired, upon a showing of good cause for the default.

The motion in this case was not timely made and no good cause was shown for the default.

Whereupon, the motion to dismiss is granted, and the appeal is dismissed.

It is so ordered.

HORTON and PEARSON, JJ., concur.


text:
    Richard MADDEN, Appellant, v. Dr. Raymond R. KILLINGER, Jr., Appellee.
    No. 57-41.
    District Court of Appeal of Florida. Third District.
    Sept. 5, 1957.
    Rehearing Denied Oct. 22, 1957.
    Henry W. Krystow, Miami, for appellant.
    Knight, Smith, Underwood & Peters, Miami, for appellee.
   HORTON, Judge.

The appellant was the plaintiff and the appellee the defendant in the court below. This was an action brought by the plaintiff under the guest statute, Sec. 320.59, F.S.A., for personal injuries allegedly sustained by reason of the defendant’s negligent operation of an automobile. The plaintiff has appealed from the final judgment entered after a verdict directed by the lower court in favor of the defendant. The verdict was directed at the close of the plaintiff’s case.

Since this was an action brought under the guest statute, supra, it was incumbent upon the plaintiff to prove gross negligence. The principal question before this Court is whether sufficient evidence was adduced at the trial to warrant the submission of the case to the jury on a question of gross negligence

In attempting to answer the question posed here, this Court is aware of the fine line of demarcation that attempts to distinguish between simple negligence and gross negligence.

We feel that the rule has been well stated by the Supreme Court of this state in Faircloth v. Hill, Fla.1956, 85 So.2d 870, 872:

“We have held that all of the circumstances of each case entering into the particular happening must be considered in order to determine whether liability exists. * * * While each separate act involved in the drama might not in and of itself establish gross negligence, nevertheless, the entire course of conduct of the automobile driver under all of the circumstances and in the light of all of the related factors taken collectively might well establish the existence of gross negligence by pointing to the conclusion that the driver of the car knew or should have known that his conduct placed others in danger of grave injury and that under all of the circumstances he could he found guilty of a conscious indifference for the safety of others.”

The facts are substantially as follows: The accident occurred on Old Cutler Road in an unincorporated area of Dade County, Florida, at approximately 11:0O p. m. on December 17, 1954. This was a macadam road. It was a clear, dry, dark night with no lights at or near the scene of the accident. From 6:00 to 6:30 p. m. until about 9:00 p. m., the plaintiff and the defendant had each consumed a gin and tonic, bourbon and soda and two beers. The defendant, owner of a 1950 Jaguar roadster, had acquired the automobile approximately three months prior to the accident and at the time of the accident it was conceded that the car was in good mechanical condition. The defendant was driving the automobile and had taken the plaintiff along for a ride. As the automobile travelled south on Old Cutler Road, it approached a 90° curve that veered to the right, or west, which curve was marked by two warning signs. One sign was approximately 400 feet from the curve and read “curve”; the second sign, approximately 150 to 200 feet from the curve, indicated both by word and illustration, that there was a curve to the right in the road ahead. The plaintiff testified that he had been over this route about five or six times prior to the accident and the defendant stated that he had been over the route about three times. The defendant further stated that he did not have any specific memory of seeing the warning signs but he knew that there was a curve in the road. The plaintiff claims that prior to going into the curve and at about the location of the first warning sign he had told the defendant that there was a “nasty curve up there.” The defendant denies any knowledge of the plaintiff’s alleged warning. The lights on the defendant’s car were working properly and there was no other traffic on the road. The automobile did not negotiate the curve, but skidded off the roadway onto the shoulder and struck a concrete pillar which helped support a steel link chain fence and after knocking this concrete pillar from its original upright position a distance of approximately twelve feet, careened off a distance of 27 feet and struck a similar concrete pillar, knocking it over and finally came to rest upside down on this last pillar with the plaintiff pinned under the automobile. Approximately fifty feet of the steel link chain fence supported by the concrete pillars was torn up. The defendant was thrown clear of the car before it came to its final rest.

Plaintiff testified that preceding the accident, the automobile was being operated “very fast.” Defendant stated that his speed at the time of entering the curve was about 45 miles per hour and that he did not attempt to reduce his speed. This was a flat, unbanked 90° curve and the roadway on the curve and the approach to the curve was bumpy and rough. The automobile left tire marks on the roadway of 24 feet and 101 feet after leaving the roadway. The automobile was a total loss. The plaintiff suffered lacerations around the face, eyes and chin, and a brain concussion. In addition, the plaintiff’s three front teeth were knocked out, his chest was crushed, two ribs were broken and he suffered a dislocated hip, resulting in his inability to pursue any gainful occupation from the day of the accident, December 17, 1954, until about the first of May, 1955.

In addition to the testimony of the plaintiff that the automobile in which he was riding was being driven very fast and the defendant’s testimony that he was operating the automobile at about 45 miles per hour, there was no other testimony admitted by the court relative to the speed of the automobile. The plaintiff proffered the testimony of Captain Delton T. Dollar of the Miami Police Academy as an expert witness as to speed and stopping distances. The court refused to admit the testimony with the observation: “I don’t believe it would be helpful to the jury; I think there are too many things involved and it would be confusing rather than helpful.”

The appellant has posed four questions on which he relies for a reversal of the judgment of the lower court. This Court feels that it is necessary to consider only two of these to arrive at a proper conclusion in this case, namely (1) Whether or not the evidence submitted by the appellant in the lower court was sufficient to go to the jury on the question of gross negligence, and (2) Whether or not the lower court erred in refusing to admit the proffered testimony of Captain Delton T. Dollar, an expert witness, relative to speeds and braking distances.

The second question the Court feels can be disposed of under the authority of Kerr v. Carroway, Fla.1955, 78 So.2d 571, 572, wherein the Supreme Court of Florida had the same question posed involving the same witness under similar circumstances In that case the court said :

“The speed of the respective cars was material to the issues in the case and the jury was entitled to the benefit of any evidence that would be helpful in arriving at the truth. The witness was subject to examination and cross-examination for the benefit of the jury. The testimony was admissible, its weight, sufficiency and value for the jury to determine.”

On the basis of the ruling in the above case, we find that the lower court erred in refusing to admit the preferred testimony.

From all the facts and circumstances together with reasonable inferences which could or may have been drawn therefrom, the lower court was in error in withdrawing the case from the jury and directing a verdict for the defendant. The Supreme Court of the State of Florida, in the case of Moore v. Dietrich, 133 Fla. 809, 183 So. 2, and recently confirmed in Cadore v. Karp, Fla.1957, 91 So.2d 806, 807, said:

“If the evidence is conflicting, or will admit of different reasonable inferences, and if there is evidence tending to prove the issue, it should be submitted to the jury as a question of fact te be determined by them, and not taken from the jury and passed upon by the court as a question of law.”

The facts are such that a jury, if it saw fit to do so, could have reasonably concluded that the defendant was guilty of gross negligence, by operating his motor vehicle in the manner and under the circumstances described; or upon the other hand the jury may see fit to reasonably conclude that such is not the case.

This Court simply holds that there was presented sufficient evidence on the part of the plaintiff to justify its submission to a jury for their determination as to whether or not as a question of fact the defendant had been guilty of gross negligence, rather than removing the question from the jury and determining as a matter of law that gross negligence had not been proven. The latter course on the part of the lower court we feel was error.

It therefore follows that the judgment appealed from is reversed and the cause remanded to the lower court for new trial.

Reversed and remanded for new trial.

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


author: ALLEN, Judge.

text:
    Elmer Everette WILSON, Petitioner, v. CITY OF HAINES CITY, Florida, Florida Industrial Commission and Indemnity Insurance Company of North America, Respondents.
    No. 28.
    District Court of Appeal of Florida. Second District.
    Sept. 18, 1957.
    Dewell & Dewell, Haines City, Marvin B. Woods, Lakeland, for petitioner.
    D. A. Arduengo of Macfarlane, Ferguson, Allison & Kelly, Tampa, for City of Haines City, Florida ■ and Indemnity Ins. Co. of North America.
    Burnis T. Coleman and Rodney Dur-rance, Tallahassee, for Florida Industrial Comm.
   ALLEN, Judge.

Elmer Everette Wilson, the Petitioner, was a member of the volunteer fire department of the City of Haines- City, and on November 26, 1954 sustained an injury in the course of his employment. The volunteer fire department operated the fire department for the City, there being a large number of volunteer firemen and four permanent firemen. The permanent firemen were employed by the City and paid for full-time work at a base salary of $210 per month. The volunteer firemen were paid on a basis of $1 for each fire attended and $1 for each practice drill.

The petitioner had been employed as a volunteer fireman, on a part-time basis, in excess of 13 weeks prior to his accident. His average earnings per week from such part-time basis was $1.38. His regular employment was as an electrical contractor and operator of appliance and hardware stores. His net income for the year of his injury exceeded $12,000.

The Deputy Commissioner determined that the petitioner suffered a temporary total disability and was entitled to compensation at the rate of $1.38 per week in addition to other allowances.

The Deputy Commissioner in his Order stated:

“Under Section 440.14(5) the claimant was a part-time worker at the time of his injury. He had adopted the part-time employment as his customary practice and he would have remained a part-time worker indefinitely, as there had been openings during the time he was a part-time employee with the City, vacancies for full-time Fireman, which he was not interested in. In view of his self-employment, he would not have considered working for the employer on any basis other than part-time, and his salary would have to be determined by the average wage that he received for the part-time employment. The wage statement filed in evidence by the employer shows that for the 13 weeks period prior to the date of the accident, the claimant was actually paid by the employer a total amount of $18, or 'an' average weekly wage of $1.38.”

The Order of the Deputy Commissioner, which was reviewed by the full Commission, was affirmed.

The petitioner contends that the Deputy Commissioner and the full Commission applied the wrong rule and statutory law in determining the petitioner’s average weekly wage. It is the contention of the petitioner that the Deputy Commissioner should have considered the earnings of the petitioner in his regular employment, that of an independent contractor and businessman. This question is apparently one of first impression in Florida.

The petitioner in his Brief quotes from several cases from other jurisdictions in which it was held that where the injured party worked on two jobs for different employers and was injured, his compensation should be based on his combined average weekly wage. See De Asis v. Fram Corporation, 78 R.I. 249, 81 A.2d 280; McCummings v. Anderson Theatre Co., 225 S.C. 187, 81 S.E.2d 348; County of Monterey v. Rader, 199 Cal. 221, 248 P. 912, 47 A.L.R. 359.

Florida Statutes, Section 440.14(5), F. S.A. provides:

“If it be established that the injured employee was a part-time worker at the time of the injury, that he had adopted part-time employment as his customary practice, and that under normal conditions he probably would have remained a part-time worker during the period qi disability, these factors may be considered in arriving at his average weekly wages. For the purpose of this subsection the term ‘part-time worker’ means an individual who customarily works less than the full-time hours or full-time work week of a similar employee in the same employment because unable or unwilling to accept full-time work, and does not include any employee who was working on a part-time basis because (a) his employer failed to provide full-time work for him, (b) he was unable to obtain full-time work, or (c) his attendance at school or college did not permit full-time employment.”

The case of State ex rel. Smith v. Industrial Commission of Ohio, 127 Ohio St. 217, 187 N.E. 768, 769, which was cited by the Respondents in their Brief, involved two employees of a volunteer fire department, one regularly employed as a baker, and the other as a restaurant worker. The Supreme Court of Ohio held that their average weekly wages could not be combined, saying:

“Of course, there is a clear distinction between the instant cases and those which hold that an employee should be compensated on the basis of combined earnings from all similar employments. It cannot be seriously contended that employment as a baker, and employment as a restaurant worker, respectively, are in any way related to that of volunteer fireman.
“While it has always been the policy of this court to construe liberally the provisions of the Workmen’s Compensation Act in favor of injured employees and their dependents, we should have to resort to a dubious and forced construction of our statutes to hold that the phrase ‘average weekly wages’ as used therein was intended to cover both the earnings of an employee in the particular work he was performing when injured and the remuneration received ¿n a distinct and separate employment, in which he was generally engaged, and which was not connected in any way with the employment in which the injury was suffered.”

The full Commission in affirming the Order of the Deputy Commissioner, stated that the claimant was not an employee in any other field of endeavor, therefore, his sole earnings as an employee was that of a volunteer fireman. The full Commission in its Opinion specifically stated that it was of the opinion that where an employee, for example a carpenter, who earns $250 per month doing carpenter work, and who also is a volunteer fireman, earning an average of some $1.50 per week as such, is injured while fighting a fire, his average weekly wage must include both his wages as a carpenter and his wages as a fireman.

We approve the Order of the full Commission in affirming the Order of the Deputy Commissioner. We think the Deputy Commissioner was correct in refusing to combine the wage of the Petitioner as a voluntary fireman with his earnings as an independent contractor. In the latter instance his earnings accrued to him as an employer and not as an employee. In the case of Leon County v. Sauls, 151 Fla. 171, 9 So.2d 461, the Supreme Court of Florida held that a study of the title, and the Workmen’s Compensation Act itself, shows conclusively that it is limited to those employed or appointed under contract and, therefore, was not applicable to a private citizen who was requested by a Constable to assist in an arrest and was injured. As he was not an employee of the County he was not entitled to compensation benefits.

Therefore, we approve the Order of the full Commission in affirming the Order of the Deputy Commissioner. We express no opinion on that part of the opinion of the full Commission with reference to the wages of a carpenter and a volunteer fireman being combined to determine his average weekly wage, as this matter was not properly before the full Commission nor before this Court.

Petition for Certiorari is denied.

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


text:
    Lenore MILLER, Appellant, v. HARTLEY’S, Inc., a Florida corporation, Appellee.
    No. 57-143.
    District Court of Appeal of Florida. Third District.
    Oct. 3, 1957.
    Ruff & Ready, Miami, for appellant.
    Shutts, Bowen, Simmons, Prevatt & Julian, Miami, for appellee.
   CARROLL, CHAS., Chief Judge.

This appeal was transferred from the Supreme Court of Florida to this court, for consideration and determination, by an order of August 21, 1957, under Section 26(6), Article V of the Constitution of Florida, F.S.A. as amended at the general election in November 1956, effective July 1, 1957.

Hartley’s Inc. made a worthless check charge against Lenore Miller, in February of 1949. Upon an initiating affidavit, presented by Hartley’s Inc. to the county solicitor in Dade County, an information was filed, and process was issued thereon, March 9, 1950, which led to the arrest of the appellant Miller in California.

Hartley’s Inc. had claimed that its loss through the bad check was merchandise valued at $375.14. On April 3, 1950, at a time when she was released on bail, her Miami attorney, knowing of her arrest but not knowing whether she was in custody, paid the appellee corporation $250 in settlement.

On April 2, 1952, appellant filed a law action in the circuit court against the ap-pellee Hartley’s Inc. seeking damages for malicious prosecution and abuse of process.

On April 14, 1952, defendant moved to dismiss the complaint. The cause then remained inactive for more than a year, and on April 24, 1953, the defendant moved to dismiss for want of prosecution.

The statute in force at that time allowed dismissal for want of prosecution on motion without notice, and it made provision for reinstatement for good cause.

“45.19 Abatement; Action Pending for One Year Without Prosecution. All actions at law or suits in equity pending in the several courts of the State of Florida in which there shall not affirmatively appear from some action taken by the filing of pleadings, order of court, or otherwise, that the same is being prosecuted, for a period of one year, shall be deemed abated for want of prosecution and the same shall be dismissed by the Court having jurisdiction of the cause, upon motion of any person interested, whether a party to the action or suit or not, without revivor or notice; provided that actions or suits dismissed under the provisions hereof may be reinstated by petition upon good cause shown to the court filed by any party in interest within one month after such order of dismissal.” Section 45.19, Fla.Stat., F.S.A., as amended by Chapter 23965. Laws of Florida, 1947.

The trial court made its order dismissing the cause for want of prosecution, on April 27, 1953. Two days later the plaintiff moved to reinstate the cause. The court granted that motion and ordered the cause reinstated on May 13, 1953.

Following the reinstatement, the court granted summary judgment for the defendant, from which the plaintiff appealed. The defendant-appellee filed a cross-assignment of error directed to the reinstatement order.

The motion for reinstatement, following the dismissal for want of prosecution, set out six grounds. The substance of the first, second and sixth grounds of the motion was that an attorney, whom plaintiff had consulted prior to the filing of her suit, had asked for a fee which she considered exorbitant, making it necessary for her to seek other counsel, and that the said first attorney had retained and refused to surrender certain papers and proofs which were needed by her in prosecuting the case.

Those excuses furnished no good cause for the delay of more than a year. While the plaintiff might have been handicapped or delayed at a trial if her former counsel withheld papers required for proof of her case, the cause was dismissed by the lower court for failure to call up for hearing a motion to dismiss challenging the sufficiency of the complaint, which did not require the presentation or use of any evidence or papers other than the pleadings on file.

Grounds three and four set forth that plaintiff’s occupation required her to stay away from Miami for long periods, and that she had been required to negotiate with her Miami attorney through California counsel whom she had employed while in that state.

Railway Express Agency v. Hoagland, Fla. 1953, 62 So.2d 756, establishes the insufficiency of those grounds; and expressly so since the matter was pending on a motion to dismiss requiring only a legal argument, and not calling for the presence of the plaintiff in court.

The fifth reason assigned in the plaintiff’s, motion was that her Miami attorney had been too busy with other trial work and with work for other clients. An excuse of that kind is not entitled to be classified as one showing good cause. Compare Moore v. Fletcher, 159 Fla. 478, 32 So.2d 12, which shows that illness of an attorney dor a portion of the period of inactivity for which a case is dismissed for want of ■prosecution, can not excuse non-action for the entire period, and does not amount to good cause for reinstatement.

An action which has been dismissed for want of prosecution may not be reinstated except for good cause shown. Such was the wording of the statute providing for reinstatement,, and such is the holding ■of the decisions, which uniformly emphasize the need for showing good cause.

In Railway Express Agency v. Hoagland, supra, Fla.1953, 62 So.2d 756, 758-759, after referring to the grounds which were asserted there for reinstatement (inability to contact counsel and get factual information, sojourning in Europe, and inadvertence of counsel) the court dealt with this matter as follows:

“It is unnecessary to quote Section 45.19, F.S.A. It specifically provides that after a cause has been dismissed, it may be reinstated by petition ‘upon good cause shown to the court’.
“In the case of Gulf Appliance Distributors, Inc. v. Long, Fla., 53 So.2d 706, the lower Court refused to reinstate a suit which had been previously dismissed under the provisions of Section 45.19, F.S.A. There was a withdrawal of counsel with the permission of the Court and other counsel was substituted. This was done on February 1, 1950. The last pleading filed was'á motion to dismiss an amended bill of complaint on August 19, 1949. On October 31, 1950, an order of dismissal was entered because of the failure on the part of the plaintiff-appellant to take affirmative action in the cause since August 19, 1949. In January, 1951 the appellant filed a petition for an order reinstating the cause on the ground that the order substituting counsel for the appellee was an order in the cause affecting the parties thereto. This Court affirmed the order of the Court below and found that there was no abuse of discretion on the part of the lower Court in refusing to reinstate the cause.
“In the case of Sudduth Realty Co. v. Wright, Fla., 55 So.2d 189, 190, this Court in an opinion by Mr. Justice Thomas reversed an order of reinstatement and said:
“ ‘* * * The obvious purpose of the statute is to speed decision of disputes by penalizing those who would allow their litigation to become stagnant. * * * It consisted of two aspects, the unfulfilled promise of the defendant to furnish certain information and the failure of the judge to rule on the motion to transfer; also, perhaps, the application for leave to amend.
“ ‘The first of these is lacking in merit. The only record of any such promise or undertaking on the part of the defendant was the statement in the petition for reinstatement and it is so lacking - as to date, description and other detail as to be of small value. Time was passing while such data was not forthcoming and the plaintiff could have protected his position as movant in the case, and therefore more or less in control of its progress, by proceeding as if no favor would be shown him by his opponent.’
“In the case of Moore v. Fletcher, 159 Fla. 478, 32 So.2d 12, 13, the question of reinstatement was considered and discussed by the Court. In an opinion by Mr. Justice Buford, it was pointed out that Section 45.-19, F.S.A. as it then existed superseded old Equity Rule 1, and that the statute in question is more exacting than was the Rule. The original Section was amended and the principal difference was to reduce the time for the dismissal of a cause for want of prosecution from three years to one year, and the time within which a motion for reinstatement could be made was reduced from one year to six months. After pointing out these differences, the Court said:
“ ‘In Hancock v. Hancock, [128 Fla. 684, 175 So. 734], supra, we said: “There was no showing of cause why complainant had indulged in this long delay and had not disposed of the cause within three years, and the motion to dismiss should have been granted. The rule also provides that the cause may be reinstated upon the docket upon application and notice within a reasonable time, which time must not exceed one year from the order dismissing the cause, if the court in its discretion so decides to reinstate it. This provision of the rule contemplated that cause, such as would justify the court in refusing to dismiss, upon motion, in the first instance, be shown in order to have the case reinstated.”
“ ‘No cause having been shown which would have justified the denial of the motion to dismiss, we must hold that it was an abuse of discretion by the Chancellor to order the cause reinstated.’
“The primary purpose of the statute is to expedite litigation and to put an end to it unless it affirmatively appears from some action taken by the ‘filing of pleadings, orders of the Court, or otherwise,’ that the same is being prosecuted, unless good cause be shown within a period of six months for the reinstatement of the same. Courts are open to all litigants at all times for the filing of suits. Courts should be, and are, ready to dispose of cases but they are powerless to do so unless litigants bring, or take, proper action in prosecuting their cases. Courts are required to be open for the disposition of pending matters but are powerless to proceed unless litigants prosecute their cases as contemplated by the law.”

The grounds submitted by the plaintiff in this case for reinstatement were not sufficient and did not constitute good cause. Hancock v. Hancock, 128 Fla. 684, 175 So. 734; Moore v. Fletcher, supra, 159 Fla. 78, 32 So.2d 12; Gulf Appliance Distributors, Inc. v. Long, Fla.1951, 53 So.2d 706; Sudduth Realty Co. v. Wright, Fla.1951, 55 So.2d 189; Railway Express Agency v. Hoagland, supra, Fla.1953, 62 So.2d 756; Yelvington & Son, Inc. v. Sheridan, Fla.1953, 65 So.2d 44; Early v. Sarasota-Fruitville Drainage District, Fla.1953, 67 So.2d 441; and Atlantic Coast Line Railroad Company v. Hill, Fla.1955, 76 So.2d 861.

Therefore, the trial court was in error in entering its order of May 13, 1953, by which it vacated the order of dismissal for want of prosecution and reinstated the cause.

Because of our holding that the defendant-appellee is entitled to prevail on its cross-assignment of error directed to the trial court’s order reinstating the cause, we will not pass upon the questions raised on the main appeal, all of which were predicated on action of the court taken after the reinstatement.

For the reasons assigned, the judgment appealed from is reversed, and the cause is remanded with directions to vacate and set aside the summary judgment and the earlier order of reinstatement.

Reversed with directions.

HORTON and PEARSON, JJ., concur.


author: FOURNET, Chief Justice.

text:
    233 La. 537
    Succession of Martha CERVINI, Widow of Paul BARAGONA.
    No. 43198.
    Supreme Court of Louisiana.
    June 28, 1957.
    Rudolph Vorbusch, New Orleans, for appellant.
    Philip P. Spencer, New Orleans, for plaintiff-appellee.
    Charles L. Rivet, New Orleans, for defendant-appellee.
   FOURNET, Chief Justice.

This is a sequel to the action of this court in reversing the judgment of the Orleans Parish district court decreeing Paul Baragona, Jr., to be an incestuous bastard for the reason that we found there was a lack of the nature and quality of proof required by the Revised Civil Code to establish such a fact. Succession of Cervini, 228 La. 1054, 84 So.2d 818. It is now before us on an appeal taken by the universal legatee of Mrs. Cervini Baragona, Charles K. Harris, from a judgment of the same court recognizing Paul Baragona, Jr., to be the natural child of Ethel Dora Bara-gona, daughter of Mrs. Martha Cervini Baragona, and, as such, her sole heir.

Counsel for appellant contends (1) the former judgment is not res judicata, and reurges all arguments advanced during the former appeal in an effort to establish that Paul Baragona, Jr., is an incestuous bastard; in any event (2) there was, and could have been, no legal acknowledgment of Paul by his mother because of her insanity from birth; and (3) that if we should hold the child was capable of being legally acknowledged, then under the provisions of the Revised Civil Code his estate would pass to his mother; in turn, to her nearest relative in any degree, i. e., her mother, Mrs. Martha Cervini Baragona, the grandmother of Paul; finally, through Mrs. Bara-gona’s succession to Harris as her universal legatee.

The record discloses that when the case was remanded to the lower court the public administrator appointed to represent the succession of Paul Baragona, Jr., on January 24, 1956, -ruled Harris to show cause why a judgment should not be rendered recognizing “Paul Baragona as natural child and sole heir of his mother Ethel Dot-a Baragona, and, as such, entitled to possession of all property left by her at her death.” Defendant in the rule neither excepted thereto nor filed an answer, and, on the trial, offered no additional evidence, the case being submitted on certain stipulated portions of the previous record.

It is obvious from the foregoing that our former decree is conclusive that the evidence in this record as made up fails to establish Paul Baragona, Jr., was an incestuous bastard. That evidence does establish, however, that he was duly acknowledged by his mother in accordance with the jurisprudence, in that she' openly and publicly acknowledged him to be her child and treated him as such until he-was committed to an institution at Pineville, Louisiana, when about seven years of age.

This leaves for our consideration the second contention of appellant, that is, that Ethel Dora Baragona was legally incapable of acknowledging the' child.

From our appreciation of the evidence the appellant has failed to establish with any degree of certainty that Paul Baragona, Jr’s., mother lacked the mental capacity to acknowledge him. While there is some testimony by lay witnesses to the effect that in their opinion she was “not normal,” and Harris testified she “was all right until she •was about seven years old and from then •on, she never did increase in her mentality at all,” the evidence discloses she was subject to epileptic fits and, for that reason, required constant attendance and supervision; otherwise, she was clean and able to take care of herself. But she was never legally interdicted during her lifetime or •committed to an institution, and the record is barren of any expert medical testimony whatever on the subject.

Equally without merit is the third •contention, for under the express provisions •of the Revised Civil Code “Natural children are called to the legal succession of their natural mother, when they have been duly acknowledged by her, if she has left no lawful children or descendants, to the exclusion of her father and mother and other ascéndants or collaterals of lawful kindred.” Article 918. The question of who succeeds to the estate of Paul Baragona, Jr., is not before us for consideration, not having been made an issue below nor adjudicated upon by the trial judge.

Counsel in oral and brief argument contends the procedure by rule to establish that Paul Baragona, Jr., was a natural child is unauthorized in law; consequently, the order of January 24, 1956, was improvidently granted and the trial judge was therefore without right to try the case on the merits. The simple answer to' this contention is that appellant, having gone to trial on the merits without objection to this form of proceeding, thereby waived whatever right he may have had in this respect.

For the reasons assigned the judgment appealed from is affirmed.

      .The first appeal was lodged here on October 14, 1954, and was scheduled for argument in November of 1955. However, Paul Baragona, Jr., died on May 31, 1955, and in due proceedings in the lower court the public administrator was appointed to represent his succession while the attorney formerly representing him as curator was appointed to represent his heirs, if any there be. The public administrator and curator then moved to have the appeal dismissed, but their motions were denied. See, 231 La. 1016, 93 So.2d 542.

      .Ethel Dora Baragona predeceased her mother, but, at the time of Ethel’s death she had inherited her father’s half of the community, he having predeceased Ethel, although his succession was not open until after Ethel’s death.

      .It would seem that Article 203 of the Revised Civil Code, providing “acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in presence of two witnesses, by the * * * mother * * * whenever it shall not have been made in the registering of the birth or baptism of such child,” would be the only manner in which a mother could acknowledge her illegitimate child. However, the jurisprudence permits such children to establish their mother’s acknowledgment by other means. See, Minor v. Young, 148 La. 610, 87 So. 472; Taylor v. Allen, 151 La. 82, 91 So. 635; Succession of Tyson, 186 La. 516, 172 So. 772, and the authorities., therein cited.


author: TERRELL, Chief Justice.

text:
    George Lowell EVERETT, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida.
    Aug. 14, 1957.
    Rehearing Denied Oct. 29, 1957.

      Cornett, Duncan & Leath, Panama City, for appellant.
    Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.
   TERRELL, Chief Justice.

Appellant, George Lowell Everett, was indicted, tried and convicted for the murder of Lou Ellen Jones. The indictment charged that the murder was committed on January 18, 1955, by choking deceased with a short length of cord. To the indictment defendant entered a plea of “not guilty,” by reason of insanity at the time of the commission of the act.

Pursuant to Sections 909.17 and 917.01, Florida Statutes, F.S.A., the court appointed Doctors C. H. Denser and Irving T. Clark, eminent psychiatrists, who examined defendant as to his sanity as of the date of the murder and subsequent thereto. At a hearing held in open court on May 23, 1955, for the purpose of determining defendant’s sanity as of the time of the trial, both doctors testified that defendant was mentally capable of understanding the seriousness of the charge against him, was competent to plead thereto, to assist his counsel at the trial, and that he knew right from wrong. The trial judge then entered an order that he was sane and competent to make a rational defense to the indictment. The judge by the same order limited his findings to that point, expressly stating that the question of the sanity or insanity of defendant at the time of the commission of the offense charged was a question for the jury. The cause went to trial before a jury at the conclusion of which a verdict of guilty of murder in the first degree without recommendation of mercy was rendered. A motion for new trial was denied and the court imposed the death penalty. This appeal was prosecuted from that judgment.

Appellant relies on twelve questions for reversal. Questions I and V are argued together. We understand them, when considered together, to be as follows: (1) Since it was error to admit evidence tending to show that appellant killed deceased while perpetrating or attempting to perpetrate burglary or rape, the court committed error in charging the jury that if appellant killed deceased while committing or attempting to commit either of said offenses, the jury should find him guilty of murder in the first degree regardless of the existence of premeditated design; (2) that it was error to admit evidence tending to show that appellant stated the car in which he went to Panama City was unlawfully taken at Doth-an, Alabama.

The indictment charged that the murder was committed “from a premeditated design to effect death” of deceased. This court has many times held that such a charge is proven by showing (1) that the murder was committed with a premeditated design or (2) that it was done while perpetrating or attempting to perpetrate burglary, robbery or rape, or any of the other felonies set forth in Section 782.04, Florida Statutes, F.S.A. Sloan v. State, 70 Fla. 163, 69 So. 871; Sutton v. State, 84 Fla. 98, 92 So. 808; Pope v. State, 84 Fla. 428, 94 So. 865; Southworth v. State, 98 Fla. 1184, 125 So. 345.

The automobile used by appellant belonged to C. E. Sloop, Jr., with whom appellant lived and with whom he was in custody as a parolee, result of having been convicted of crime in Federal Court. Sloop testified that appellant had the car without his consent at the time he murdered deceased. Even though this testimony was stricken, appellant’s confession, admitted over objection, showed that he [appellant] took the keys to the car from Sloop’s home, took the car from Dothan and went to Panama City. After the murder was committed appellant proceeded to Mobile, Alabama, where he left the car, wrote Sloop and told him where to find it. -Both questions are without merit.

Regardless of what this evidence shows, there was no error committed in admitting it. Since viewing the evidence in sum, in the effort to establish appellant’s insanity, it was proven by different witnesses that he was an avowed thief, that he had repeatedly stolen bicycles, automobiles, watches, money and other articles, that he had thrice been committed to the Georgia Correctional Training School, that he served a sentence in a federal reformatory for stealing and that when he murdered deceased he was paroled to Mr. Sloop, having been convicted at Montgomery, Alabama, for stealing an automobile.

Since appellant’s plea to the indictment was “not guilty” by reason of insanity when he committed the crime, he now contends that such a plea eliminated all issues except that of insanity and removed the right of the state to prove the murder, the burglary or the rape. He says, in other words, that the defense of insanity places in issue the one question of whether or not defendant was sane at the time he committed the murder and being so, the state was precluded from proving the burglary or the rape.

In response to this contention it is sufficient to point out that under Section 909.02, Florida Statutes, F.S.A., all pleas to an indictment or information are abolished except nolo contendere and guilty or not guilty. In view of this statute when appellant pleaded “not guilty” by reason of insanity at the time of the commission of the crime as a matter of law he pleaded “not guilty” and gave notice as required by Section 909.-17, Florida Statutes, F.S.A., that he intended to rely upon the defense of insanity. It appears from the record that at all times during the trial appellant conceded that the state had the burden of proving his guilt. It does not appear that appellant objected to any evidence offered by the state on the theory that it was devoid of power to prove the murder or any incidence of it. The court instructed the jury, without objection on the part of appellant, that under the plea of “not guilty” the burden was on the state to prove the guilt of defendant including every material element of the crime beyond a reasonable doubt. Having witnessed this procedure from start to finish of the trial without objection appellant is not now in position to contend that the state was devoid of right or power to prove the murder, the burglary or the rape. The burden of proving insanity was on appellant. If his contention as to procedure had been followed, the state would have had nothing to prove. It is our view that appellant’s plea placed in issue every material allegation of the indictment, that the state carried the burden of proving the elements of murder in the first degree and that it was committed in the perpetration or during the attempt to perpetrate rape, burglary or any offense condemned by Section 782.04, Florida Statutes, F.S.A.

Since Points II and III were submitted together by appellant, we will dispose of them in the same manner. By Point II it is contended that the trial court, on cross-examination, prejudicially restricted the evidence of Court appointed medical experts. Fie says that the rulings of the trial court confined counsel to facts literally in evidence and that such procedure unnecessarily impaired the full exposition of the value and correctness of the expert witness opinion.

We have examined this contention, including the rules governing the cross-examination of expert and other witnesses and find no merit whatever to the contention. The evidence relied on was that of Dr. Denser, a psychiatrist; he was put through a long and exacting cross-examination by appellant covering more than one hundred pages, a careful reading of which fails to show that the trial court abused his discretion. As to Point III we have examined that carefully and while we find no merit to it, it is not explored by appellant and may therefore be considered as abandoned.

The fourth question charges error of the trial court in prohibiting defense counsel from drawing reasonable deductions from the evidence, elicited on cross-examination from psychiatrists appointed by the' court, which developed the theory that defendant was a psychopath.

The theory on which the question was based was that some recognized psychiatrists hold that a psychopath is an insane person, and that where experts in the field disagree such deductions should be drawn by the jury. The record does not show that the trial court prohibited defense counsel from drawing reasonable deductions from the evidence elicited on cross-examination. The psychiatrists were Dr. Denser and Dr. Clark and their evidence does not show that defendant drew or attempted to draw any deductions from it. Much of the evidence shows an attempt to get Dr. Denser or Dr. Clark to say what Dr. Cleckley would testify to as to appellant’s sanity if he were present, but all such testimony was properly stricken. There is no showing that Dr. Cleckley’s book was standard authority but if it had been so shown, it could not have been read in evidence to contradict other witnesses of equal standing. Neither Denser nor Clark could testify as to what Cleckley’s book would show or what he would testify as to appellant’s sanity.

It is next contended that the charge of the court unduly emphasized the theory that the jury could find appellant guilty of murder in the first degree without reference to premeditation if the murder was committed while appellant was engaged in the perpetration of rape, robbery or burglary.

It is true that when murder is committed in the perpetration of rape, robbery or burglary, premeditation is unimportant and does not have to be shown. To support his contention appellant relies on instructions 6, 11, 41 and 42 as revealed by the record but it is not shown that he objected on the theory here presented or on any theory prior to retirement of the jury. Section 918.10(4), Florida Statutes, F.S.A. It is clear from the record that the question here presented was not called td the attention of the trial court or ruled ob by him at any time and being so it will not be considered on appeal. Daly v. State, 67 Fla. 1, 64 So. 358; Dewey v. State, 135 Fla. 443, 186 So. 224; Dukes v. State, 148 Fla. 109, 3 So.2d 754.

The seventh question has to do with whether or not defendant was entitled to have the jury charged that they were at liberty to accept the opinion of non-expert witnesses in preference to that of expert witnesses if they elected to do so.

We have examined the charges given and those requested but we do not find that any such charge as contended for was requested. It necessarily follows that not having been requested appellant cannot complain that the charge was not given. Brunke v. State, 160 Fla. 43, 33 So.2d 226; Foreman v. State, Fla., 47 So.2d 308. It does not further appear that complaint of failure to give such a charge was made in motion for new trial, nor did any assignment of error raise the point. Aside from this we have examined the charges given and we think they fully advised the jury that it was within their province to elect to believe the evidence of the expert or the non-expert witnesses.

The eighth question charges that the trial court erred in his refusal to give charges 5 and 6 of defendant, the substance of which was that his mental condition could be considered by the jury in arriving at the determination of whether or not he was capable of forming a premeditated design even though he was not found to be insane.

Much that was said in answer tp the previous question might be said in answer to this question. It is also pertinent to point out that much of appellant’s contention is not relevant to this question because the record shows that the murder was committed in the perpetration or the attempt to perpetrate burglary, robbery and rape. It was accordingly unnecessary to show or consider premeditation. We are also convinced that the charges given by the court covered such portions of the requested charges as were proper to give.

The jury were charged that the legal presumption of innocence should shield defendant from punishment unless it be clearly shown that he had sufficient reason to form a guilty intent. The jury were also told that when the defense of insanity was interposed the real test is whether defendant had sufficient use of his faculties to understand the nature of the act with which he is charged. It is settled law that conviction of a lower degree of crime cannot be secured for the reason that defendant’s mind was so unsound as to render him incapable of deliberation if he knew the nature of his act. Wharton on Homicide, 3rd Ed., 803, Section 539.

Another reason requested charges 5 and 6 shoud not have been given was that we find no evidence to justify the conclusion that if appellant was sane he lacked sufficient mentality to form a premeditated design, neither did the evidence show that he lacked capacity to form and execute an intent to commit murder. Since the evidence shows that defendant deliberately broke into deceased’s home, committed burglary, robbery and rape, absent any showing that he labored under mental disorder or insane delusion that would prevent him forming and executing premeditation to murder, prejudicial error was not shown.

The test confronting the jury was whether or not defendant’s alleged mental aberration 'was such as prevented him from distinguishing right from wrong, did he know that he was doing wrong when he slew his victim? This question was squarely presented and the jury said yes. In the old days before we knew there were degrees of insanity, when one went berserk, regardless of the degree of his insanity, he was said to have “bats in the belfry”; the phrase comprehended every aspect of mental illness. We know better now. For instance we are told that when King David was waging war with the Philistines, he used only a few of his select men. A well of water in Bethlehem was in the hands of the enemy. David suffered from thirst and yearned audibly for a drink from that well. Three of his men stole through the enemy lines, took water from the well and brought it to the king but he was loath to drink, even to sip it and piously poured it on the ground as a sacrifice saying, “Shall I drink the blood of men that went in jeopardy of their lives?” Some writers have pronounced the exhibition of such human quality as the moral constitution. Rules of law, as well as legislation, are sometimes predicated on kindred patterns of behavior. They doubtless furnish the ideal for democratic society to aspire to but defendant like most humans was far from being possessed of such a moral constitution, likewise the test for determining his competency did not exact so much. He knew to flee from the scene of the crime promptly, he abandoned Sloop’s car and advised him where to find it; in fact the weight of the evidence shows that he was sane. It is possibly a case of depravity rather than one of insanity. Where the dividing line between them is we do not know. It may be that the law has not developed the proper technique for dealing with them but such as we have, no body of men is better qualified to cope with them than a carefully selected jury so we find no error.

The tenth question charges error in refusal of the court to grant a new trial on the ground that Henry C. Corbin was disqualified to sit as a juror in this cause to try defendant because he was at the time under indictment for grand larceny.

It is shown that Corbin was on November 13, 1935, convicted of grand larceny m the Circuit Court of Washington County and sentenced to serve six months in the county jail. On appeal to the Supreme Court his conviction was on October 14,. 1937, reversed. It was also shown that no further steps had been taken in the cause, that Corbin’s case had not since been carried on any active court docket, that an information was filed but that no information or indictment in the cause could be found in the clerk’s office. Cor-bin testified that he went back to court several times after his case was reversed but that it had never been tried again, in view of which it could hardly be said that Corbin was under prosecution as contemplated by Section 40.07, Florida Statutes, F.S.A., at the time he qualified and sat as a juror in the case at bar, since the prosecution against him had been dropped! for almost twenty years. Likens v. State, 153 Fla. 887, 16 So.2d 158; Ex parte Sullivan, 155 Fla. 111, 19 So.2d 611.

Questions XI and XII charge that the trial court committed error in refusing a new trial on the ground (1) that the verdict was contrary to the weight of the evidence; (2) the juror Henry C. Corbin was a judicially declared incompetent during the trial and has never had his. sanity judicially restored.

There is no merit whatever to either of these questions. Both psychiatrists testified that in their opinions the defendant, on the day he committed the crime, knew the difference between right and wrong, that he was mentally competent of knowing his acts were contrary to law,, and that he was not insane at the time.. It was the province of the jury to weigh, all the testimony. The evidence amply supports the verdict. This court has constantly adhered to the “right or wrong”' test with regard to sanity. Davis v. State, 44 Fla. 32, 32 So. 822; Brock v. State, Fla.1954, 69 So.2d 344; Warner v. State, Fla.1955, 84 So.2d 314.

As to Corbin’s sanity it is-shown that on October 10, 1930, he was-committed to the Florida State Hospital because of insanity. It is true that when. one is adjudged insane tide presumption continues that he remains so until that presumption is removed by proof. The presumption of Corbin’s insanity was completely overcome by conclusive proof. It further appears that Corbin’s adjudication of insanity was a matter of record but that it was never inquired into by appellant. We think he waived his right to do so on motion for new trial. Ex parte Sullivan, supra; Section 913.04, Florida Statutes, F.S.A., and Durham v. State, 182 Tenn. 425, 188 S.W.2d 555, 160 A.L.R. 746.

Other questions raised have been considered and are found to be without merit.

The judgment appealed from is therefore affirmed.

Affirmed.

HOBSON, ROBERTS, DREW, THOR-NAL and O’CONNELL, JJ., concur.

THOMAS, J., not participating.


text:
    PARKWAY APTS., Inc., a Florida corporation, Appellant, v. Alice WILLNER, a single woman, Appellee.
    Supreme Court of Florida.
    Oct. 9, 1957.
    F. E. Gotthardt of Morehead, Forrest, Gotthardt, Greenfield & Greenberg, Miami, for appellant.
    Nichols, Gaither, Green, Frates & Beck-ham and Sam Daniels, Miami, for appellee.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appealed from and it appearing to the Court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly ordered, adjudged and decreed that the motion to affirm the judgment appealed from be, and the same is, hereby granted, and the judgment is

Affirmed.

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


author: HOBSON, Justice.

text:
    Louis LLERANDI, Appellant, v. Ed BLACKBURN, Jr., as Sheriff of Hillsborough County, Florida, Appellee. Louis LLERANDI, Appellant, v. The STATE of Florida, Appellee.
    Supreme Court of Florida.
    Oct. 2, 1957.
    Rehearing Denied Oct. 30, 1957.

      Robert H. Carlton and Howard L. Garrett, Tampa, for appellant.
    Richard W. Ervin, Atty. Gen., George R. Georgieff and Moie J. L. Tendrich, Asst. Attys. Gen., for appellee.
   HOBSON, Justice.

Three related matters involving one Louis Llerandi are before us for disposition, and we will consider them as hereinafter indicated:

In Llerandi v. Blackburn, Llerandi appeals from an order of the circuit court in a proceeding for habeas corpus, remanding him to the custody of the sheriff. The petition for writ of habeas corpus filed by Llerandi had sought to contest the legality of petitioner’s detention under an extradition warrant issued by the Governor of Florida pursuant to a request by the Governor of Texas. At the time the petition for the writ was presented, however, Llerandi was held not only under the warrant which he attacked but also on conviction of a felony in the Criminal Court of -Record for Hillsborough County, Florida, and on a “hold order” issued by the federal authorities charging petitioner . with unlawful flight to avoid prosecution.

The circuit judge was of the opinion that since Llerandi’s petition attacked only one of three grounds upon which he was detained, Llerandi was not in any event entitled to the relief which he sought, and his petition must be denied. In his brief upon appeal Llerandi concedes that he was “in custody on another valid charge” when he sought to attack the extradition proceedings. He cites cases holding that habeas corpus is a proper method in extradition proceedings to controvert the allegation that the accused was personally in the demanding state when the alleged offense was committed. In none of the cited cases, however, was the petitioner in custody on another valid charge.

In Reffkin v. Mayo, 115 Fla. 214, 155 So. 674, 678, we held that even though the particular custody in which the petitioner is held be illegal, the court may refuse to discharge him absolutely and order that he be held to be dealt with according to law. We also observed in that case that the power to discharge from custody by writ of habeas corpus “should be exercised with extreme caution and only in a clear case”, and that it “must be exercised in aid of the administration of justice, not to defeat or needlessly embarrass it.” And in Hollingshead v. Mayo, Fla., 79 So.2d 774, where the petitioner was held in custody not only by virtue- of one sentence, which he attacked as invalid, but also under another sentence, of which he did not complain, we did not consider the legality of the sentence under attack, but ordered the writ quashed and the petitioner remanded to custody. On the basis of these authorities, it appears that no error was committed by the circuit judge.

In the next matter, Llerandi v. State, the State seeks to review so much of the order of the circuit court as grants bail to Llerandi during the pendency of Llerandi’s appeal. Here the State is concerned only with Llerandi’s detention under the •executive warrant in the extradition proceedings. In State ex rel. Stringer v. Quigg, 91 Fla. 197, 107 So. 409, we determined this point in accordance with the contention of the State and held that generally bail may not be given for a prisoner held under a warrant of rendition. We have consistently followed the Stringer case. See State ex rel. Peck v. Chase, 91 Fla. 413, 107 So. 541; Chase v. State ex rel. Burch, 93 Fla. 963, 113 So. 103, 54 A.L.R. 271; and Mitchell v. Stoutamire, 113 Fla. 822, 152 So. 629. It appears that the portion of the order challenged by the State is error, and must be reversed.

Finally, in Llerandi v. State, Llerandi appeals from judgment of the Hillsborough County Criminal Court of Record entered consequent upon a verdict of guilty of violating the lottery laws. Appellant had been found in possession of Cuban lottery tickets. The sole point for which he contends, as appellant, is that the court erred in admitting in evidence certain slips of paper, based upon the testimony of Captain Heinrich, Chief of the Vice Squad of the Tampa Police Department, that the slips of paper were Cuban lottery tickets.

Appellant asserts that Captain Heinrich did not possess the qualifications necessary to make identification of the tickets. A review of the record indicates that this witness claimed to have investigated 180 lottery cases, of which the majority involved the Cuban lottery. In the course of these investigations, he had questioned numerous persons involved in the lotteries and had even participated in lotteries as an undercover agent for the police department. The investigation conducted by the witness extended over a period of two and one half years. The witness was cross-examined upon his qualifications by defense counsel, but nothing was developed which would tend to discredit his testimony. Heinrich went on to testify in detail regarding the operation of the Cuban lottery, and appeared to be entirely familiar with it. It is difficult to understand how a witness could be better qualified to identify lottery paraphernalia than this witness obviously was. We find no error in the judgment appealed from in this case.

It follows that in Llerandi v. Blackburn those portions of the order appealed from by Llerandi must be affirmed, while the portion of the order challenged by the State must be set aside. In Llerandi v. State the judgment appealed from must be affirmed.

It is so ordered.

TERRELL, C. J., DREW and THOR-NAL, JJ., and JONES, Circuit Judge, concur.