text:
    Bozzie NELSON, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida.
    Oct. 9, 1957.
    Harold Gray, Palm Beach, for appellant.
    Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for ap-pellee.
   THOMAS, Justice.

In an indictment signed by the State Attorney of the Fifteenth Judicial Circuit, it was charged that the appellant killed one Sarah Jane Campbell by stabbing her with an ice pick and that his act effectuated a premeditated design to dispatch his victim. A jury found the appellant guilty without a recommendation of mercy and the judge sentenced him to death

The sufficiency of the evidence to sustain the verdict is presented by appellant’s assigning as error the denial by the court of a motion for directed verdict made at the conclusion of the state’s evidence. Duke v. State, 137 Fla. 513, 188 So. 124. Furthermore, when a sentence of death has been imposed the court is ■obligated by Sec. 924.32(2), Florida Statutes 1955, and F.S.A., to examine the evidence to “determine if the interests of justice require a new trial, whether the ■insufficiency of the evidence is a ground •of appeal or not.”

At the outset we record that a qualified ■physician specializing in pathology testified that after the body of Sarah Jane Campbell was identified by a deputy sheriff of the county he proceeded to examine it for wounds. In addition to many abrasions, scratches and bruises he found ■in the chest and arms 29 small, sharp “stab wounds,” that were round or oval, averaging Jieth of an inch in diameter. The heart and liver and both lungs had been pierced hy the instrument used and death had been the result. The physician said the wounds were caused by a round, sharp instrument, •such as an ice pick, which was then shown him, and that because of their shape and size they could not have been caused by a knife.

In the course of the presentation of the evidence relied upon by the state to support the charge of murder in the first degree the confession of the appellant was admitted. The court seems to have followed meticulously the procedure approved by this court in Williams v. State, 156 Fla. 300, 22 So.2d 821, and Graham v. State, Fla., 91 So.2d 662, by excusing the jury while the person to whom the appellant confessed described the circumstances under which the statement was made so the court could determine whether or not the statement was freely and voluntarily made, hence admissible. And although such procedure was not indispensable to the admissibility of the confession, Rollins v. State, Fla., 41 So.2d 885, the officer who received it told the appellant, before the appellant detailed the homicide, said he committed it, and described the weapon he used, that he was not required to give damaging information, and that if he did the information might be used against him.

A study of the record on this aspect of the case convinces us that the judge properly performed his function and correctly ruled that the jury should hear what the appellant had revealed.

The appellant said he killed the woman because he was jealous and that the weapon was an ice pick which he offered to produce. Soon after, he led the deputy sheriff and the chief of police to a place near the scene of the crime, found the ice pick and handed it to the officers. The deputy sheriff marked the weapon and retained it in his possession until he presented it at the trial.

Although the appellant took the witness stand and denied that he killed Sarah Jane Campbell, or had any reason to kill her, the overwhelming evidence of the witnesses for the state, buttressed by the statements of the appellant freely and voluntarily made to the officers, established the murder of the woman by the appellant in the manner charged and further proved that the appellant carried out his murderous design because he was so enamored of the woman that he chose to kill her rather than to have her live with her own husband.

The testimony of the physician, which we have already summarized, so plainly demonstrated the vicious, heinous, nature of the assault that there could have been no reasonable doubt that at the outset the appellant fully intended to kill.

In arguing certain charges said by the appellant to have been improperly refused, a question with which we will presently deal, the appellant has injected two matters relating to the elements of the crime of murder in the first degree and we will comment on them regardless of our technical treatment of the charges to which he has referred. He claims a variance between the proof and the allegation of the indictment with reference to the weapon used. It is true that there was some evidence that the appellant during the period immediately preceding the homicide was armed at one time with a fork and at another time with a butcher knife. But such apparent variations as to the weapons he wielded pale into insignificance when examined in the light of the description by the physician of the wounds inflicted, the story of the officer about being led by the appellant to the spot where he had thrown the ice pick, and by the statement of the appellant that it was the very instrument with which he slew Sarah Jane Campbell.

The other matter was the lack of proof that the offense was committed after premeditation, and not in the heat of passion on sudden impulse. There was abundant testimony the appellant had announced to at least two persons that he proposed to kill the woman, and the situation had grown so tense that his threats had been reported to the police who had warned him to desist from his campaign for the affections of his eventual victim lest he get into trouble.

In presenting another point, the appellant complains that the court erred in denying four requested charges but these charges appear only in his brief. We can find in the record no reference to charges he asked the court to give to the jury or, for that matter, any objections to charges given. That there is no obligation to consider this point is obvious from an examination of Sec. 918.10(4), Florida Statutes 1955, and F.S.A., declaring that “the giving or the failure to give an instruction” may not be assigned as error unless objection is made before the'jury retires to consider a verdict. Dalton v. State, Fla., 42 So.2d 174.

Even so, we have read the charges given and have concluded that the jury was fully and properly instructed on the law of the case.

A perusal of the record convinces us that the appellant was fairly tried and properly convicted, and that the sentence imposed upon him was justly deserved.

Affirmed.

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

O’CONNELL, J., not participating.


source: Caselaw Access Project

author: THORNAL, Justice.

license: Public Domain

text:
    Gladys Prince MARSHALL, formerly Gladys Prince Bacon, Appellant, v. Percy Strother BACON, Jr., et al., Appellees.
    Supreme Court of Florida.
    Oct. 9, 1957.

      Smith & Axtell, Jacksonville, for appellant.
    Schneider & Walker, Jacksonville, for appellees.
   THORNAL, Justice.

Appellant Gladys Prince Marshall (for-merely Gladys Prince Bacon), who was petitioner below seeks reversal of an order of the Chancellor denying relief in a proceeding with reference to modification of alimony and maintenance allowances in a divorce matter.

As presently here the cause turns on the question as to whether the lower court had jurisdiction of the appellee-husband.

On May 14, 1953, the Circuit Court of Duval County entered a decree awarding a divorce to appellant Gladys Prince Bacon. She was likewise awarded the custody of Helen Linda Bacon, the minor child.of the parties. The husband, appellee Percy Stro-ther Bacon, Jr., was directed to pay monthly certain amounts for alimony and support money for the minor child. The court expressly retained jurisdiction over the matter of custody, alimony and support money.

Pursuant to appellant’s petition setting forth delinquencies in the payment of alimony and support money, the Chancellor, on January 25, 1956, entered a money decree against the appellee covering such delinquencies in the amount of $4,470.64. Thereafter the appellant filed her amended petition alleging that she had possession of three policies of insurance on the life of the appellee, and “that said policies are valuable property or rights to property of the Respondent, Percy Strother Bacon, Jr., and, as such, should in some manner, be subject to realization upon by your Petitioner to secure to her, so far as possible, the rights awarded to her in this Court’s Final Decree entered in this cause.” She asked that the policies be sequestered and that either the appellee be directed to assign the cash surrender value to her or upon his failure to do so that the insurance companies involved be directed to pay to her the cash surrender value upon surrender of the policies. The three insurance companies were served with summons.

The proceeding against the husband both for the money decree and the adjudication of his rights in the insurance policies was bottomed upon notice to him by mail. At the time that all of this transpired the husband was a citizen and resident of the State of California. So far as we can determine from the record the appellant-wife and the minor child of the parties are both residents of Duval County, Florida.

The husband and the insurance companies appeared specially contesting the jurisdiction of the trial court. The Chancellor dismissed the petition of the appellant requesting the sequestration of the insurance policies, or other relief, and granted the prayer of a separate petition filed by the appellee-husband asking that the policies be returned to him. Review of these orders with reference to the insurance policies is sought by this appeal.

The appellant contends that the cash surrender value of life insurance policies on the life of a husband delinquent in alimony and support money payments can be sequestered and subjected to the claim for such delinquencies.

The appellee contends that the cash surrender value of life insurance policies is exempt from the claims of appellant and their minor child under the provisions of Section 222.14, Florida Statutes, F.S.A.

At the outset we are confronted with an appellate procedural problem. It will be recalled that the appellant comes to this court on a notice of appeal. The order of the Chancellor which she seeks to have reviewed is a post-decretal order, is interlocutory in nature and subject to review by certiorari. Randall v. Randall, 158 Fla. 502, 29 So.2d 238. In our consideration of the matter, however, we accord to appellant the benefit of Section 59.45, Florida Statutes, F.S.A. Her notice of appeal, pursuant to this statute, will be regarded as a petition for certiorari and acted upon accordingly.

The basic jurisdictional question, which the appellee apparently raised in the trial court but does not pursue aggressively by his briefs in this court, must be resolved against him. Assuming as we must do from this record that the trial court had jurisdiction over the wife, the minor child of the parties, and in the ultimate the actual policies of life insurance which were the subjects of the petition and order, we must find that in a proceeding of this nature the husband could be brought before the Chancellor and his rights adjudicated on reasonable notice by mail or otherwise without the necessity of personal service of summons in this state. We must bear in mind that we are dealing here with a proceeding supplementary to divorce. In the original divorce proceeding the Chancellor had jurisdiction of the parties and the subject matter. We have several times held that a proceeding to modify the custody or support money aspects of a final decree of divorce is merely a continuation of the original proceeding and is not to be considered as the institution of a new action. If the husband is given reasonable notice and an opportunity to be heard before the decree is altered in any fashion that will directly affect his person, status or property, such notice will suffice to bring- him within the orbit of the jurisdiction of the court that acted in the first instance. While there may be some limitations to this general rule we find no such restriction here present. Watson v. Watson, Fla.1956, 88 So.2d 133.

In Thompson v. Thompson, 142 Fla. 643, 195 So. 571, we held that when a defendant-husband defaults in payment of installments for alimony and support awarded to a wife by a final decree of divorce and absents himself from the state, thereby immunizing himself from process for contempt, the court can determine the amount of the defaults and issue appropriate process for the sequestration of his property found within the jurisdiction. This can be done upon reasonable notice to the husband giving him the opportunity to be heard in the matter if he so desires.

From the record before us it appears that such notice was given to the appellee-husband. In actuality there can be no doubt that he received the notice for the reason that he appeared specially through his counsel and contested the technical question of jurisdiction. We do not hold that this special appearance brought him within the jurisdiction of the court. We mention it at this point merely to sustain the factual conclusion that he actually received the notice which we also hold was legally sufficient to require his response. In connection with the order directing delivery of the life insurance policies to the husband, we take note of the further fact that he filed his own petition with the Chancellor seeking this affirmative relief. On this aspect of the case there can, therefore, be no question as to the jurisdiction over him for the simple reason that he appeared generally and requested the relief which he received. By his brief he contends that this was merely a response to an inquiry by the Chancellor at one of the several hearings in the matter. Regardless of the motivating factor, we are not inclined to disregard completely the proposition that when a party appears generally and seeks affirmative relief and such relief is granted, he will not be heard to question the jurisdiction of the court in which he appeared.

The primary point argued by the appellee is that the cash surrender value of the life insurance policies is exempted from the claims of appellant by virtue of the provisions of Section 222.14, Florida Statutes, F.S.A., which in substance exempts “cash surrender values of life insurance policies issued upon the lives of citizens or residents of the State of Florida * * *.” It is his contention that when the policies were issued he was a citizen and resident of the State of Florida and that his status as of the time of the issuance of the policies controls rather than his domiciliary status at the time that he claimed the exemption. It will be recalled that at the time this exemption was claimed the appellee was a resident of the State of California. We have heretofore disposed of this contention contrary to the position of the appellee. In Slatcoff v. Dezen, Fla.1954, 76 So.2d 792, we held that under the statute here involved the conditions prerequisite to the exemption are those existing at the time the property is sought to be subjected to legal process. In the case last cited we held that even though the insured was not a resident of Florida when the policies were issued, he was nonetheless entitled to claim the exemption in view of the fact that he was a resident of the State when the attempt was made to subject the cash surrender value of his policies to legal process in this state. The determining factor on this aspect of the statute is the domiciliary status of the insured as of the time that an effort is made to subject the cash values of the insurance policies to the claims of creditors in Florida.

In the matter before us the appellee-husband was a citizen and resident of California at the time he undertook to assert the exemption. He was therefore not entitled to claim the exemption under the cited statute.

Having treated the notice of appeal as a petition for certiorari, it is therefore ordered that the prayer of the petition is granted, the orders sought to be reviewed are quashed and the cause is remanded for further proceedings consistent herewith.

TERRELL, C. J., and THOMAS, HOB-SON, and ROBERTS, JJ., concur.


author: DREW, Justice.

text:
    J. O. MILLER, Appellant, v. CITY OF ST. AUGUSTINE, Florida, and State of Florida, Appellees.
    Supreme Court of Florida.
    Oct. 11, 1957.

      Coxe & Stephens, St. Augustine, for appellant.
    Robert Andreu, Jr. and Willard Howatt, St. Augustine, for appellee.
   DREW, Justice.

J. O. Miller, a taxpayer of St. Augustine, intervened in a bond validation proceeding, suffered an adverse decree and appeals. The decree validated $300,000 of improvement revenue bonds of the City of St. Augustine. He argues 62 assignments of error under 16 points all of which he says are involved in the appeal.

The City adopted an ordinance authorizing the issuance of the bonds involved in this appeal on the 18th day of December, 1956. The ordinance found that the construction or acquisition of improvements to the bay front area of the City, including the widening thereof and the construction and acquisition of parking facilities therein, was imperative in order to preserve the public health and safety of its citizens and was essential to the physical and economic welfare of said City; it further found that the acquisition, construction or reconstruction of a municipal yacht pier was urgently needed in order to preserve the welfare and safety of the citizens of said City and it was essential that the acquisition, ■ construction or reconstruction of such municipal yacht pier be accomplished in accordance with the provisions of the ordinance. It further determined that the annual proceeds from a tax on the franchise to the Florida Power and Light Company was unencumbered and that it was desirable to pledge such tax during the period of the franchise or any extension thereof or so much as was necessary to pay the principal and interest of the bonds proposed to be issued for the accomplishment of the purpose of the ordinance. In paragraph D of the ordinance it was provided that the work should be done “substantially in accordance with the plans and specifications heretofore filed with and approved by the City Commission of the City of St. Augustine.”

The ordinance specifically provided that the bonds should not constitute an indebtedness of the City of St. Augustine but should be payable solely from the proceeds of the franchise tax therein pledged. It further provided that no holder of any bond issued under the authority of the ordinance should ever have the right to compel the levy of an ad valorem tax or the exercise of the ad valorem taxing power of the City to pay said bonds or any interest ever due thereon.

The City Charter provides, in Chapter 18873, Acts of 1937 (an act amending Section 7 of Section 1, Chapter 14375, Acts of 1929):

“Section 7. The City of St. Augustine, Florida, by and through its City Commission, shall have and is hereby granted the right, power and privilege: * * *
“To establish, build, construct, maintain and operate public lands, public wharves, docks and toll bridges within the City; * * * to dredge or to deepen the harbor or rivers, or any branch or portion thereof, within the limits of said City; * * *
“To develop by filling, platting, bulk-heading, reclaiming, dredging, subdividing, or otherwise improving as may be prescribed by the City Commission for the health, comfort, convenience and amusement of the inhabitants of said City, all lands acquired by the said City, by purchase or otherwise, * * *
“The enumeration of the particular powers herein shall not be construed or held to be exclusive, but in addition to the powers enumerated herein, implied thereby or appropriate to the exercise thereof, the City of St. Augustine, Florida, shall have, and may' exercise thereof all other powers which are conferred upon Cities by the General Laws of which, under the Constitution and Laws of Florida, it is and would be competent for this Section expressly to enumerate.”

Under the authority of City of Panama City v. State, Fla.1957, 93 So.2d 608 and State v. City of Clearwater, 1938, 135 Fla. 148, 184 So. 790, the foregoing legislation clearly confers upon the City the authority to make the improvements involved in this appeal.

Appellant questions the authority of the City to pledge the franchise tax to the payment of these obligations. This question was decided adversely to appellant’s contention in State v. City of Miami, Fla.1954, 76 So.2d 294, where we approved an issue of six million dollars of revenue bonds payable from a similar tax levied on the same utility. In that case we held that such bonds may be lawfully issued without submitting the same to the freeholders of the City for approval or rejection. This case disposes not only of the contention of the appellant concerning the authority of the City to pledge the franchise tax but also the point raised by him relating to the necessity of submitting the question of the issuance of said bonds to the freeholders.

Appellant strongly urges that the construction of the improvements contemplated by the ordinance would destroy the old seawall along Bay Street which constitutes an ancient landmark which, under the charter of the City of St. Augustine, it is the duty of the City Commissioners to preserve. We have examined the section of the City Charter referred to but it does nothing more than provide that the preservation, restoration and maintenance of the City’s ancient landmarks, sites, buildings, etc. is for the pleasure, benefit and general welfare of its citizens. In fine it authorizes the expenditure of funds for such purpose by declaring the same to be a municipal purpose. There is no restraint in the charter upon the removal or destruction of the same when necessary to meet the requirements of modern conditions or to serve the general welfare of the people. These are matters peculiarly within the powers of the elected representatives of the people. It may be in the public interest to preserve these things as they have been for generations, but we find no prohibition in the laws against removing or altering them. The proposed improvements in this area of the City of St. Augustine were authorized only after careful study had been made by the elected representatives of the people and qualified engineers.

The appellant urges that “detailed plans and specifications” were not attached to the original ordinance authorizing the issuance of these bonds as was recited therein. There may be a technical foundation for this argument, but our examination of the record reveals that the City had before it at the time the ordinance was adopted sufficient evidence and plans upon which to predicate the judgment in the ordinance authorizing these improvements. The record contains drawings and other data with reference to the estimated cost of these improvements upon which we think the City officials could act with intelligence. Such evidence was clearly sufficient for any interested citizen to determine the nature and the extent of the improvements. That is all that is required. We think the administrative action taken during the course of the investigation of the propriety and desirability of this civic improvement was sufficient to warrant the enactment of the ordinance under question. The minor deviations and technical omissions pointed out and argued by appellant do not affect the validity of the bonds authorized and validated by the final decree.

All other points raised by appellant have been carefully considered by us. We find them to be without merit.

The decree appealed from is hereby

Affirmed.

TERRELL, C. J., HOBSON, THORNAL and O’CONNELL, JJ., and CARROLL, District Judge, concur.


text:
    BURDINE’S, Inc., Petitioner, v. Juanita DRENNON and Dorothy A. Allen, Respondents.
    Supreme Court of Florida.
    Oct. 2, 1957.
    Barnes & Inman, Raymond E. Barns, Orlando, Salley & Roman and Thomas G. Spicer, Miami, for petitioner.
    Brigham, Black, Niles, Wright & Dressier and Eugene P. Spellman, Miami, for Juanita Drennon.
    Blackwell, Walker & Gray, Miami, for Dorothy A. Allen, respondent.
   THORNAL, Justice.

By petition for writ of certiorari Bur-dine’s, Inc. seeks review of an order entered by the Circuit Judge under Section 440.39, Florida Statutes, F.S.A., making equitable distribution of a settlement made by Mrs. Drennon, a workmen’s compensation claimant, with a third party tort-feasor after Mrs. Drennon had received certain benefits under the Workmen’s Compensation Act.

The determining point is whether an order making equitable distribution of a recovery by a workmen’s compensation claimant against a third party tort-feasor may be reviewed by certiorari. Mrs. Dren-non’s late husband, an employee of Bur-dine’s, Inc., was killed by an accident arising out of and in the course of his employment. She petitioned for and received workmen’s compensation benefits. Thereafter she pursued her remedies against a third party tort-feasor and made a substantial settlement. She petitioned the trial judge for an order making equitable distribution between herself and her late husband’s employer in accordance with Section 440.39, Florida Statutes, F.S.A. The Circuit Judge made an apportionment and entered an order of equitable distribution. Being dissatisfied with the order, Burdine’s, Inc., the employer, seeks review of same by petition for writ of certiorari.

The respondents have moved to dismiss the petition contending that the order of equitable distribution is a final order reviewable by appeal and therefore not reviewable by certiorari.

In at least three instances we have reviewed by appeal orders making equitable distributions under the Workmen’s Compensation Act. See Arex Indemnity Co. v. Radin, Fla.1954, 72 So.2d 393; Baughman v. Aetna Casualty & Surety Company, Fla. 1955, 78 So.2d 694; Insurance Company of Texas, v. Rainey, Fla.1956, 86 So.2d 447. Admittedly in none of these cases was the propriety of the method of review directly considered. However, no case has been pointed out to us in which such an order has been reviewed by certiorari.

It is fundamental that certiorari is a discretionary writ and will not be granted when a full and adequate remedy by appeal is available. 3 Fla. Law and Practice 612, Certiorari, Sec. 13. It follows that if orders apportioning recoveries of this nature are properly reviewable by appeal, the petition for the writ in the instant case will have to be denied. Bartow Growers Processing Corp. v. Florida Growers Processing Cooperative, Fla.1954, 71 So.2d 165.

Ordinarily appeal may be taken only from final judgments and final decrees. Section 59.02(1,2), Florida Statutes, F.S.A. By analogy we have held that an order in a proceeding supplementary to execution applying certain property to the satisfaction of the judgment is an independent final order ancillary to the principal proceeding and is appealable. In Orange Belt Packing Co. v. International Agricultural Corp., 112 Fla. 99, 150 So. 264, 265, we held:

“Where a proceeding with reference to an original action at law Í9 a distinct proceeding in itself, and collateral to the main action at law and judgment rendered therein, a final order or judgment disposing of such separate proceeding is considered a final one as to such separate matter or proceeding, and one that may itself be the subject of a distinct writ of error to have it reviewed as a final judgment in such separate proceeding.”

The case of Saffran v. Adler, 152 Fla. 405, 12 So.2d 124, is authority for the same proposition with the added point that the consideration of equitable principles in arriving at the order of equitable distribution does not deprive proceedings of this nature of their status as a proceeding at law.

A proceeding for equitable distribution of the nature which we have under consideration here is separate and distinct from the final judgment which it follows and calls for a separate and distinct exercise of judicial power and judicial discretion. The parties involved are different from those involved in the litigation producing the final judgment. The order entered in this type of proceeding is final as to the respective interests of the parties thereto, towit: the employer and the employee, or his representative, in the recovery from the judgment defendant. We are, therefore, led to the conclusion that the order of equitable distribution in the situation before us is properly reviewable by appeal. Having reached this conclusion we are compelled to grant the motion to dismiss the petition for writ of certiorari.

Respondent Allen, the original judgment defendant, has separately moved to be dismissed from the appeal. Although a similar motion was granted in Baughman v. Winn Lovett Grocery Co., our case No. 24896, orders filed May 8, 1954, and May 13, 1954, (unreported) the dismissal of the certiorari proceedings makes it unnecessary to pass upon this motion.

The motion to dismiss the petition for writ of certiorari is granted and the petition is hereby dismissed.

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


text:
    DENCO, Inc., a Florida corporation, Petitioner, v. William B. BELK, Respondent.
    Supreme Court of Florida.
    May 14, 1957.
    On Rehearing Oct. 9, 1957.
    Holland, Bevis, McRae & Smith, Bartow, and Farish & Farish, West Palm Beach, for petitioner.
    Paty, Downey & Daves, West Palm Beach, for respondent.
   On Rehearing.

DREW, Justice.

On October 15, 1950 J. W. Richbourg leased lots 1, 2 and 3, block 3, Palm Beach North, an addition to West Palm Beach, Florida, to William B. Belle for a ten year term commencing October 15, 1950, for a total rental of $9,000 payable in installments of $75 per month. The lease contained a covenant on the part of the lessee that he would construct certain buildings upon the premises within a designated period of time and pay the cost thereof. The lease then further provided as follows:

“The parties hereto further agree that in event lessor, his heirs, administrators and assigns, desire to sell the aforesaid premises during the term of this lease, they shall so advise lessee in writing and shall give to said lessee the minimum figure at which said property is to be sold, and the said lessee shall be given twenty days from the date of such written notice within which to accept or reject such offer, and in the event the lessee rejects such offer, and the lessor, his heirs, administrators or assigns shall thereafter sell said property to some third party, who desires immediate possession of said premises and cancellation of said lease, said lessee agrees to surrender possession of said premises, and cancellation of lease, after three months notice, provided, lessor, his heirs, administrators or assigns shall pay to lessee within the said three months, that portion of the cost of the aforesaid buildings as represents the unexpired portion of lease less four per cent per annum as depreciation of said buildings, that is to say, if total cost of buildings be $5,000 and property is sold and possession delivered by lessee at expiration of one year, from date of lease, there is to be deducted 4% of $5,000 representing the cost of said buildings, or $200; that from the true valuation of $4,800 remaining, a deduction of Vio of said amount to be made, or $480, which would leave the total amount to be paid lessee $4,320; that the same procedure shall be followed in event of sale at expiration of any period during the terms of this lease, based upon the true cost of improvements.
“It is further agreed that all buildings or other construction of a permanent nature placed upon said premises shall become a part of the realty and upon termination of this lease shall become the property of lessor.”

About two years after the lease was entered into the lessor died and sometime afterward an executor was appointed for his estate. Notice to creditors was duly published, the first publication being on the 14th day of November, 1952.

The lessee Belk constructed the buildings which he had covenanted in the lease to construct and continued in the possession of said premises as lessee without interruption during the course of the administration of the estate and until the present time. The record is silent as to whether the rent on the premises during the course of the administration of the estate was paid to the executor but we must assume that such state of facts did exist.

On June 29, 1956 the executor of the estate of J. W. Richbourg, the lessor, and all of the beneficiaries of the estate of John W. Richbourg, deceased, conveyed the lands described in the aforesaid lease (and other lands) to Denco, Inc., a Florida corporation, for a recited consideration of $67,000. The deeds of both the executor and the beneficiaries of the estate describe the identical lands covered in the lease aforesaid to Belk followed by the following language “subject to all existing leases with person or persons in possession and subject to all taxes and assessments subsequent to the year 1955, all easements, restrictions and reservations of record and zoning ordinances of the City of West Palm Beach, Florida.” Shortly after this conveyance the lessee, Belk, filed his complaint against the executor of the estate and Denco, Inc., a Florida corporation, the grantee in the deed from the estate and the heirs, in which he recited the execution of the lease above referred to, the provisions contained in said lease with reference to the option of the lessee to buy in the event of a sale, which is contained in the quoted paragraph above, and that the lessee Belk. the complainant, was in possession of the property as such lessee at all times subsequent to the date of said lease and had fully and completely complied with and abided by all of the terms and conditions imposed therein. The complaint recited the sale of the lands to Denco, Inc., alleged the same to be in violation of his rights under the lease and prayed that the conveyance be declared null and void as to the lands embraced within the lease and that the executor “be ordered to notify plaintiff in writing the price for which the above described property was sold or to notify plaintiff in writing the minimum figure for which said property could have been sold on July 24, 1956.” A motion to dismiss this complaint was made and sustained by the trial court in an order in which he expressed the view “that no claim can be made against the Executor unless notice thereof has been filed within the time prescribed by the Statute of non-claim. * * * Plaintiff may have a cause of action, however, against a purchaser with notice, and under appropriate circumstances, the Executor would be a proper party defendant to the suit.” An amended bill of complaint was thereupon filed containing substantially the same allegations as the original complaint but eliminating as a defendant the executor of the estate. The prayer in the amended complaint was that the court determine the value of the property covered by the lease (it having been included with other lands without a specific price being fixed on it) and that upon such determination being made “the court afford Plaintiff an opportunity to purchase the property described * * * for such sum, and in the event Plaintiff elects to so purchase said property that the court order Defendant to convey said property to Plaintiff upon such terms and conditions as the court may deem proper.” A motion was made to dismiss the amended complaint on the ground that it stated no cause of action upon which relief could be granted. This motion to dismiss was denied and from such order cer-tiorari was taken to this Court.

It is pertinent to observe here that this matter was originally heard before a division of this Court consisting of Chief Justice Terrell and Justices Thomas, Roberts and Thornal. On the original hearing on May 14th certiorari was denied without opinion. Following this denial a petition for rehearing was duly filed and granted by the division originally hearing the case and was set for hearing before this Court on July 8, 1957, at which time the Court as constituted was composed of Presiding Justice Hobson and Justices Drew and O’Connell and Associate Justices Carroll and Wigginton. Before the commencement of the argument it was suggested by the Presiding Justice to the respective counsel that the matter had been previously considered by a division of the Court none of whom were then present and that under such circumstances the parties, if they so desired, could continue the matter for hearing before the division which originally heard it. Counsel present for both parties advised the Court at that time that they desired the Court as then constituted to dispose of the matter on rehearing; hence the reason for an apparent departure from an established custom of this Court that rearguments or rehearings are disposed of by the division or Justices who heard the cause originally.

We turn now to a disposition of the cause on its merits. In fine, it is the contention of the petitioner, Denco, Inc. that inasmuch as the lessee failed to file his claim against the estate of the lessor within a period of eight months, as required by the probate act, he was barred from the relief prayed for in his complaint. It also argues that the lease containing the option is a contract within the intendment of Section 733.34, F.S.A., and we now quote from the petitioner’s brief:

“Section 733.34, Florida Statutes 1955 [F.S.A.], must therefore be considered in conjunction with the above quoted section [733.16, F.S.1’955 [F.S.A.] as to the filing of claims: on options or contracts to purchase land made by a vendee with the decedent. If a claim is not filed by the vendee within the time . for filing claims, namely, eight (8) calendar months from the time of the first publication of the Notice to Creditors, then the vendee has no further claim or interest in the land which he has a contract to purchase from said deceased person. In the case at bar, no such claim was filed within the statutory period of time for filing claims * * * and, therefore, the plaintiff Belk lost all right, title or interest in his option to purchase set forth in the lease which he had with the decedent John W. Richbourg.”

If the option contained in the lease is a contract within the intendment of Section 733.34, F.S.A., [a question we do not decide] that section has no relation whatever to the situation presented on this record because we are not dealing here with any claim against the estate of a decedent. This cause no longer involves the estate but solely the purchaser from the estate and its beneficiaries. Moreover, the matter being dealt with in Section 733.34 is “the interest of the estate” in the real property subject to a contract of sale. Obviously the interest of the estate in an executory contract to purchase real estate is the balance remaining due upon the contract and not the land encumbered by it. It is, of course, true that the legal title is held by the estate or the heirs but they are actually trustees and the equitable title rests in the contract vendee. We find nothing in the probate act to support the contention of the petitioner that a contract vendee in possession who fails to file a claim against an estate of the véndor thereby loses his interest in the contract or the land covered by it. Obviously such a harsh result was never intended nor can we find anything in it which remotely suggests such conclusion.

The first sentence of Section 733.34 authorizes the sale of the interest of an estate in property encumbered by an outstanding contract for sale executed by the decedent prior to his death. That sentence provides for the sale of “such contract.” In such event, of course, the legal title would have to be conveyed to the contract purchaser and the interest in the contract assigned in order to provide the means for a later conveyance to the contract vendee. The second sentence merely is a provision that in the event of such sale the purchaser may not look to the estate for any default on the part of the vendee. The purchaser becomes, so to speak, an assignee without recourse. The third sentence in the section is one which relieves the estate from any , liability under the contract in the event the vendee consents to the sale or if the sale is made after the time for filing claims has expired, no claim is filed by him. The claim referred to therein obviously means and is confined to something other than the title itself which the vendee is entitled to under the contract provisions such as, but not limited to, monies that may be due the vendee for taxes which he may have paid which were the responsibility of the vendor to pay or encumbrances which he may have been forced to pay which should have been paid by the vendor or matters and things of that kind. The claim to the specific property covered by the contract and encumbered by it is not within the class mentioned in the section.

On the subject of claims against an estate, Redfearn’s Work on Wills and Administration of Estates, 2nd Edition, page 496, interprets Section 733.16 (relating to the form and manner of presenting claims) to mean “ * * * claims to specific property, real or personal, may be enforced as to the property encumbered or claimed, whether or not claims based on them are filed against the estate.” See also Section 733.19 and cf. Hodges v. Logan, Fla.1955, 82 So.2d 885.

Moreover, it is rather difficult for us to see how the option can be separated from any other paid of the lease. A casual reading of the provisions of the lease leads to the inescapable conclusion that the option was one of the essential elements which entered into the lease arrangement. We can reach no conclusion from the record other than that the petitioner here and the estate and its heirs recognized, as they must have, all of the provisions of the lease agreement except the right to purchase in the event of a sale and they reach this conclusion by urging the proposition that the lessee’s failure to file his claim prevented him from thereafter exercising the option. There are numerous weaknesses to this argument. In the first place the option never was exercisable until long after the expiration of the time within which claims were to be filed. Therefore, during that period of time the lessee had no option to exercise and, therefore, no basis for making a claim.

The real and basic issue in this case, however, is simply whether the purchaser of this land, not only charged with knowledge of the rights of the lessee as a matter of law but placed on direct notice by the very provisions of the deed he accepted, may defeat the substantial rights of the lessee under the terms of this lease. Denco is not a bona fide purchaser. Denco, Inc. comes within the rule that persons dealing with an owner of land for purposes of sale or purchase who have knowledge of possession by a lessee, are placed on inquiry as to the full terms and conditions of the lease, including a provision granting a right of first refusal of purchase to the lessee if the lessor decides to sell the property during the term of the lease. Mercer v. Miller, 1946, 157 Fla. 78, 24 So.2d 893; Gilbert v. Van Kleeck, 3rd Dept. 1954, 284 App.Div. 611, 132 N.Y.S.2d 580. Also cf. Stein v. Green, 1955, 6 Ill.2d 234, 128 N.E.2d 743 and cf. McRae v. McMinn, 1880, 17 Fla. 876. We think the law and every concept of equity and good conscience requires Denco, Inc. to recognize the rights of the lessee under all of the provisions of the lease under which he holds possession of the property, not the least of these being the option above alluded to. Persuasive in this connection and in support of this conclusion, see Brenner v. Duncan, 318 Mich. 1, 27 N.W.2d 320, and Wilson v. Brown, 5 Cal.2d 425, 55 P.2d 485.

On rehearing granted, the original judgment denying certiorari is adhered to.

TERRELL, C. J., and HOBSON and O’CONNELL, JJ., and CARROLL and WIGGINTON, District Judges, concur.


text:
    STATE of Florida on Relation of MORTGAGE INVESTMENT FOUNDATION, Inc., a Florida corporation, Petitioner, v. James R. KNOTT, Judge of the Circuit Court, In and For The Fifteenth Judicial Circuit, Palm Beach County, Florida, Respondent.
    Supreme Court of Florida.
    Oct. 11, 1957.

      Street & Greenfield, Miami Beach, and Fulton, Sullivan & Burns, West Palm Beach, for petitioner.
    Burns, Middleton, Rogers & Farrell, West Palm Beach, for respondent.
   DREW, Justice.

In Mortgage Investment Foundation, Inc., v. Eller, Fla.1957, 93 So.2d 868, we reversed the trial court and directed it to enter a decree compelling performance of a contract. A petition for rehearing and a motion to file a bill of review in the lower court were filed here by appellees, both were denied, the mandate of this Court was issued and was filed in the trial court. Shortly thereafter the trial court granted appellees’ motion to file a bill of review in the cause. The propriety of the latter order is questioned in these prohibition proceedings.

The trial court had no jurisdiction to enter the questioned order. The rendition of the opinion and judgment and the issuance of the mandate of this Court directing the entry of a decree of specific performance removed any discretion which the trial court had in the matter and left him vested only with the power to enter such decree in accordance with the requirements of the mandate. Our judgment superseded and nullified the previous judgment of the circuit court and the only power remaining in that court over the proceedings was to carry out and place into effect the order and judgment of this Court. State v. Citrus County, 1935, 117 Fla. 792, 158 So. 705. Moreover, had this Court not acted adversely upon a motion for leave to file a bill of review, the lower court would have had no power to enter the questioned order without being first authorized to do so by leave granted by this Court. Bloxham v. Florida Cent. & P. R. Co., 1897, 39 Fla. 243, 22 So. 697; State ex rel. Reynolds v. White, 1898, 40 Fla. 297, 24 So. 160; Reynolds v. Florida Cent. & P. R. Co., 1900, 42 Fla. 387, 28 So. 861.

The motion of the petitioner for the issuance of the writ of prohibition notwithstanding the return of the circuit judge is granted, the questioned order is vacated and the circuit judge is directed to enter the decree required in the mandate in Mortgage Investment Foundation, Inc., v. Eller, supra, and he is thereafter prohibited from proceeding further in said cause.

TERRELL, C. J., and HOBSON and O’CONNELL, JJ., and CARROLL and WIGGINTON, District Judges, concur.


text:
    Frank J. WAGNER and Marie C. Wagner, his wife, Appellants, v. William L. RICE, Appellees.
    Supreme Court of Florida.
    Dec. 4, 1957.

      Philip G. Nourse, Fort Pierce, for appellants.
    Sumner & Sumner, Fort Pierce, for appellee.
   THORNAL, Justice.

Appellants Wagner, who were plaintiffs below, seek'reversal of a final judgment in favor of appellee Rice, defendant below, in a proceeding brought by appellants, as lessors, to recover damages for breach of a lease agreement by appellee, as lessee.

The determining points are whether the appellants, who were the lessors, were entitled to recover a double rent penalty under Section 83.06, Florida Statutes, F.S.A. and if not, the extent of their right 'of recovery, if any.

Under date of January 7, 1952, appellants Wagner, as lessors, and appellee Rice, as lessee, entered into a lease agreement which contained, among other provisions, the following:

“The lessee will guarantee that the annual rent for the use of the said packing house and property shall not be less than Two Thousand Five Hundred ($2,500.00) Dollars, the said annual guarantee of $2,500.00 to be paid as follows:
“$2,500.00 this day paid, receipt whereof is hereby acknowledged; $2,500.00 on the first day of February, 1953; $2,500.00 on the first day of February, 1954; $2,500.00 on the first day of February, 1955; and $2,500.00 on the first day of February, 1956; of [sic], a total guarantee of Twelve Thousand Five Hundred ($12,500.00) Dollars for the period of this Lease. All rental due under this Lease shall be paid on or before the date that the said annual guarantee is due and payable.
“It is further understood and agreed that should the amount charged for rental under this Lease in any one year be less than the $2,500.00 annual guarantee, then any amount accumulated or paid to the Lessors over the annual guarantee shall apply on the $2,500.00 annual guarantee, is being understood that for the period of this Lease the guarantee shall not exceed Twelve Thousand Five Hundred ($12,500.00) Dollars.”

Subject to the above quoted provisions the lessee agreed to pay as rent for the property demised three cents for each thirty-pound lug of tomatoes and five cents for each sixty-pound wirebound or nailed crate of tomatoes packed in the packing house located on the leased property. The lessee paid the $2,500 guarantee due February 1, 1952, and during the 1952 season, based on the rental charge per unit packed, paid a total rental of $5,306.50 which included the base guarantee. On February 1, 1953, the lessee again paid the minimum annual guarantee and for that year paid a total rental on the per unit charge amounting to $5,115.75. It will be noted that for the first two years of the lease the lessee paid total rent amounting to $10,422.25 including the guarantee. On February 1, 1954, the lessee refused to pay the $2,500 guarantee as stipulated in the lease. Thereupon the appellants, as lessors, served appellee with a three-day notice to pay the'rent or vacate the premises. Section 83.20, Florida Statutes, F.S.A. When appellee Rice declined to pay the annual guarantee or to vacate the premises, the appellants instituted a proceeding in the county court to recover possession of the premises because of the alleged rent default of the appellee.

A jury trial resulted in a verdict for the appellants Wagner and they finally recovered possession on May 5, 1954, approximately three months after the guarantee payment was due. There was no appeal from the judgment awarding possession to the appellants in the county court. Thereafter appellants instituted this action in the Circuit Court seeking recovery of double the $2,500 guarantee due February 1, 1954, as damages, under Section 83.06, Florida Statutes, F.S.A., because of the alleged refusal of the tenant to surrender possession after default. Appellants also claimed that they were entitled to recover damages for breach of the lease to be measured by double the amount of rental actually paid on the per unit rate during the 1953 season. The matter was tried before the Circuit Judge upon stipulated waiver of a jury and resulted in a judgment in favor of the appellee tenant. Reversal of this judgment is now sought.

It is the contention of the appellants here that the guarantee became due on February 1, 1954; that after default and notice to pay, the tenants wrongfully held possession; that appellants’ right to possession was adjudicated in the county court proceeding; and finally that under Section 83.06, Florida Statutes, F.S.A., appellants are now entitled to recover double the amount of rental due as damages for breach of the lease.

It is the position of the appellee that upon retaking possession the appellants-lessors brought the lease to an end and thereby relinquished any right that they might have to recover for the breach. He also contends that the amounts paid in previous years on the per unit basis in excess of the annual guarantee should be credited against the guarantee payment due February 1, 1954, in view of the fact that no tomatoes were packed by appellee in the packing house during 1954, albeit as the result of his own default.

At the outset we can dispose of appellants’ contention that they are entitled to recover double the rent due as damages for the alleged wrongful holding over. They base their position on Section 83.06, Florida Statutes, F.S.A., which reads in part as follows:

“When any tenant shall refuse to give up possession of the premises of the end of his lease, the landlord, his agent, attorney or legal representatives, may demand of such tenant double the monthly rent, and may recover the same at the expiration of every month, or in the same proportion for a longer or shorter time by distress, in the manner pointed out hereinafter.” (Emphasis ours.)

It appears to be well settled that statutes of the type above quoted are penal in nature and should therefore be strictly construed. They are not to be extended by interpretation beyond the limits of the actual language of the Act. It has also been decided that such expressions as “the end of his lease” have reference to the expiration of a term by the efflux of time rather than upon the declaration of a forfeiture for default. 32 Am.Jur., Landlord and Tenant, Sec. 932, p. 786. Under this interpretation of the statute, which we hold to be the proper one, the appellants-lessors would not be entitled to double the alleged rent due for the reason that the term of the'tenancy had not come to an end by the passage of time. The lessors themselves declared the forfeiture and elected to bring the term to an end by the proceeding in the county court. iWe do not have here a factual situation that could properly motivate an award of the statutory penalty.

We proceed to consider the problem as to whether the appellants-lessors are entitled to recover anything for the alleged breach. It is well settled in this state and elsewhere that upon breach of a lease by the lessee the lessor may elect one of three courses of action. He may treat the lease as terminated and re-take possession exclusively for his own purposes, or he may re-take possession for the account of the tenant, holding the latter responsible in general damages measured by the difference between the stipulated rent and any amount the lessor is able to recover in good faith from his re-letting. As a further alternative the lessor may do nothing at all and sue the lessee as each rent installment matures or for the full amount of the rental due when the term ultimately ends. Williams v. Aeroland Oil Co., 155 Fla. 114, 20 So.2d 346; Hyman v. Cohen, Fla., 73 So.2d 393.

In the case at bar it is obvious that the lessor elected to terminate the lease and resume possession of the premises for his own purposes. It will be recalled that he regained possession on May 5, 1954, some three months after the annual guarantee payment came due. In Williams v. Aero-land Oil Co., supra, we held that under such circumstances the lessor could not recover as damages for breach of the lease the rental that otherwise would have come due during the period subsequent to his resumption of possession. We did hold, however, that the landlord would be entitled to recover the rental that came due during the period between the occurrence of the default and the date that he resumed exclusive possession of the property for his own use. At this point the appellee-lessee contends that h.e should not be held liable for any rent whatsoever for the reason that he did not pack any tomatoes on the premises subsequent to February 1, 1954, and that under the provisions of the lease quoted in the forepart of this opinion the amount of previously paid rent on a per unit basis in excess of the base annual guarantee should be credited against the guarantee payment due February 1, 1954. Lessee says that when this is done it becomes clear that he owes the lessors nothing at all.

The weakness in the position of the lessee is simply that by the lease agreement the parties stipulated that the rent-paying period was on a year-to-year basis. Each year was a separate rent-paying period subject to the limitation of the ultimate total minimum guarantee. The parties themselves had during the first two years of the lease so construed it. This becomes obvious when we take note of the fact that on the second anniversary date, February 1, 1953, the lessee paid the annual guarantee due despite the fact that during the first year of the term the rent calculated on the per unit packed basis exceeded the guarantee by $2,806.50.

In reading this lease within its four corners and construing it in the light of the construction which the parties themselves have given to it, it is our view that by the very terms of the lease the lessee was. required to pay to the lessors the sum of $2,500 on February 1, 1954. As a matter of fact, it was the default in making this payment that resulted in the jury award in the county court giving possession back to the lessors.

We may liken the point to the argument advanced in some cases to the effect that when rent is payable in advance the landlord cannot recover the entire amount of the stipulated advance if he dispossesses, the tenant during the period to be covered, by the advance. His recovery is limited by-these authorities to a pro-ration of the rent to that period during which possession was wrongfully withheld by the tenant. There is a sharp division of the cases on this, proposition. 32 Am.Jur., Landlord and Tenant, Sec. 490, p. 400; 52 C.J.S. Landlord and Tenant § 480(e), p. 243, and § 490, p. 264. An examination of the cases cited to support the rule denying to the landlord recovery of the total advance payment otherwise due, will reveal that they are grounded on the correlative proposition that if the rent has already been paid in advance and the landlord properly retakes possession during the time covered by the advance previously paid, then the tenant is entitled to recoup pro tanto that amount of the prepaid rent covering the period following his dispossession. See Cottrell v. Gerson, 371 Ill. 174, 20 N.E.2d 74; Alger v. Kennedy, 49 Vt. 109, 24 Am.Rep. 117. However, in Florida we have held that where a lessee pays rent in advance and the lease is properly terminated by the lessor before- the advanced rental payment is consumed by occupancy of the tenant the lessor is not obligated to return to the lessee the amount of the advance rental payment that would otherwise have applied beyond the date of the termination. Casino Amusement Co. v. Ocean Beach Amusement Co., 101 Fla. 59, 133 So. 559. See also Brooks v. Coppedge, 71 Idaho 166, 228 P.2d 248, 27 A.L.R.2d 645.

This Court, by analogy, has therefore aligned itself with those authorities which adhere to the rule that a lawful “eviction is no defense to a claim for accrued rent notwithstanding the rent was payable in advance and the eviction occurred after the day for payment but before the expiration of the period which such payment was to cover.” 32 Am.Jur., Landlord and Tenant, Sec. 490, supra; Giles v. Comstock, 4 N.Y. 270, 53 Am.Dec. 374. Under this view the rent comes due on the day stipulated in the lease and default in payment gives rise to the right of action in the landlord. The rent payment date having arrived the subsequent lawful eviction of the tenant does not destroy the landlord’s right to recover the amount agreed to be paid and falling due before the eviction. The rule is otherwise when the eviction is unlawful. Livingston v. L’Engle, 27 Fla. 502, 8 So. 728. See Tiffany, Landlord and Tenant, Sec. 182(e).

In view of the position which we here take we find that the lessors were entitled to recover from the lessee the amount of the guarantee payment due under the lease on February 1, 1954, together with interest thereon at the legal rate from the time that the same became due and was not paid.

The judgment will, therefore, have to be reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

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


text:
    Mae Frances HOUK et al., Appellants, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    Supreme Court of Florida.
    Dec. 4, 1957.
    Walter J. Migoski, Miami, for appellants.
    Darrey A. Davis and Thomas C. Britton, Miami, for appellee.
   THORNAL, Justice.

Appellants Houk and Pesce, who were defendants below in an eminent domain proceeding, seek reversal of an order of the trial judge refusing to allow them a fee for the services of their attorneys incident to a prior appeal of the cause in which appellants were successful.

We originally considered the notice of appeal as a petition for writ of certiorari pursuant to the provisions of Section 59.45, Florida Statutes, F.S.A. We did this on the theory that the order submitted for review was a post-final judgment order interlocutory in nature.

The cause was first considered without oral argument and in the absence of a brief in behalf of the appellee. Upon our original consideration of the matter we filed an opinion under date of September 18, 1957. The appellee filed a petition for rehearing. Rehearing was granted because on original consideration we did not have before us certain precedents later mentioned by ap-pellee and further out of consideration for the fact that an ultimate decision would establish a precedent governing the expenditures of public funds.

Upon the filing of briefs and presentation of oral arguments on rehearing we are now compelled to the conclusion that there is a fatal jurisdictional defect in the appelláte proceeding now here. An examination of the transcript of record filed in this court reveals that the order of the trial judge submitted to us for review was filed November 7, 1956 and recorded November 8, 1956. The notice of appeal was filed January 8, 1957 and recorded January 10, 1957.

Section 73.14, Florida Statutes, F.S.A., which is the statute governing appeals from final judgments in eminent domain proceedings requires that no appeal be entered after thirty days from the rendition of the judgment. Assuming, but not now deciding, that this statute would not govern the filing of a petition for certiorari from an order interlocutory in nature and that with reference to certiorari the petitioner should be allowed 60 days from the date of the order under review (31 F.S.A. Rule 22 Supreme Court Rules, adopted July 19, 1954), the notice filed in this case was still beyond the time allowed for assaulting the order under attack. Bearing in mind that we are considering this notice as a petition for certiorari and referring again to our former Rule 22, supra, it will be observed that the petition shall be filed in this court “within 60 days from the date of the proceeding, order, judgment or decree sought to be reviewed.”

Here the order sought to be reviewed is dated and filed November 7, 1956. The notice of appeal was filed in the Circuit Court January 8, 1957. Obviously the notice was filed more than 60 days from the date and filing of the order submitted for review. It was, therefore, filed too late to lay the jurisdictional foundation for consideration of the merits of the cause by this court. The proceeding will, therefore, have to be dismissed ex mero motu. Regrettably we will not be able to dispose of the matter on its merits.

For the guidance of those who might examine this opinion as a precedent we emphasize that the instant matter is governed by the rules of practice of this court adopted July 19, 1954 and effective March 15, 1955. Appellate proceedings subsequent to July 1, 1957, are governed by the Florida Appellate Rules adopted June 18, 1957 and effective July 1, 1957. See Rules 1.3, 3.2 and 4.5(c), Florida Appellate Rules.

For the foregoing reasons our opinion filed September 18, 1957, is hereby withdrawn, held for nought and shall not be considered as a precedent.

The appeal is hereby dismissed ex mero motu because of the lack of any jurisdictional foundation therefor. See Donin v. Goss, Fla.1954, 69 So.2d 316, and Counne v. Saffan, Fla.1956, 87 So.2d 586.

Appeal dismissed.

TERRELL, C. J., HOBSON and O’CON-NELL, JJ., and WIGGINTON, District Judge, concur.


author: HOBSON, Justice.

text:
    J. J. WIGGINS, Appellant, v. LYKES BROS., Inc., a Florida Corporation, Appellee.
    Supreme Court of Florida.
    Oct. 4, 1957.

      Henderson, Franklin, Starnes & Holt, Fort Myers, for appellant.
    MacFarlane, Ferguson, Allison & Kelly, Thomas Alexander, Brooks P. Hoyt and Arthur Simpson, Tampa, for appellee.
   HOBSON, Justice.

This is an appeal by defendant from final declaratory decree favorable to plaintiff except in a certain particular which is sought to be raised on cross-appeal. The litigation had its inception when plaintiff, Lykes Bros., Inc., sued J. J. Wiggins, claiming certain grazing rights in lands owned by Wiggins.

The basic facts of the case are briefly as follows: In 1922 and 1923, Reynolds and Tennant, the original owners, conveyed the lands in suit to certain grantees, and the deeds contained reservations of which the following is a sample:

“Reserving however unto the said grantors, their heirs and assigns, the permanent right to use said lands for grazing purposes whenever and so long as said land is not under actual cultivation by grantee, his heirs or assigns. However said grantee, his heirs or assigns, may have the use of any part of said land at any time by fencing the same, for farming purposes.”

In 1925, Randolph and Lerch acquired the lands by warranty deed without reservation. In 1950, Randolph and Lerch conveyed the lands to appellant Wiggins, also by warranty deed without reservation.

As for the reserved rights, in 1927 Reynolds and Tennant, the original grantors, executed a quitclaim deed, covering part of the lands, to Carlton. In 1937-1939, Reynolds, Tennant and Carlton executed quitclaim deeds, covering all of the lands, to plaintiff-appellee, Lykes Bros., Inc. It does not appear that the lands were ever used for farming purposes.

The reservation in the original deed appears to be valid, and no direct attack upon it is made. Reservations of this type, which are not in their nature temporary or personal, have been held to run with the land, absent some controlling provision to the contrary. McCoy v. Chicago, M. & St. P. R. Co., 176 Iowa 139, 155 N.W. 995; Barker v. Lashbrook, 128 Kan. 595, 279 P. 12; Benn v. Hatcher, 81 Va. 25; 26 C.J.S., Deeds, § 140(9), p. 1025; 16 Am.Jur., Deeds, Sec. 304, p. 611. Although appellant claims that he had no “actual notice” of the reservation, a title search should certainly have disclosed it. The case would thus be clear, were it not for the following circumstances :

In 1925, Randolph and Lerch, the fee owners, leased the lands to Joe Peeples for cattle grazing purposes, and this lease was continued until 1940, in which year Randolph and Lerch leased the lands to R. D. Lyons for one year for grazing. Thereafter, from year to year until the lands were sold to appellant, Randolph and Lerch, issued cattle grazing leases to members of the Peeples family. Appellee, Lykes Bros., Inc., without any claim of right, began grazing its cattle on the lands in 1929, and apparently continued to do so until 1941, when appellee became sub-lessee, under the Peeples’ leases, of the grazing rights to the land. Appellee continued its status as such sub-lessee until 1950, when the fee was acquired by appellant.

Appellant 'first contends that the plaintiff, by waiting until 1953 (the year this suit was instituted) to assert its claim under the easement reserved in the original grant, was guilty of such laches as to bar the granting pf relief. It is well established that mere lapse of time does not in itself constitute laches, Blocker v. Ferguson, Fla., 47 So.2d 694; Bethea v. Langford, Fla., 45 So.2d 496. It is also, clear that the applicability of the doctrine of laches depends upon the facts of the particular case. DeHuy v. Osborne, 96 Fla. 435, 118 So. 161; Fort Pierce Bank & Trust Co. v. Sewall, 113 Fla. 811, 152 So. 617.

Appellant relies on Geter v. Simmons, 57 Fla. 423, 49 So. 131, and Norton v. Jones, 83 Fla. 81, 90 So. 854, but both of those cases depend upon a change of circumstances, and in each case it would have been patently inequitable to enforce the claim which the plaintiff had permitted to moulder for so long a time. In the Geter case, substantial improvements had been erected on the premises without protest by the true owner, while in the Norton case, the land had been divided into city lots and blocks, conveyances had been made, liens had attached to the land, and rights of third parties had come into existence. Appellant says that the land involved herein has increased in value over the years but we find in this factor, coupled with the passage of time, no such prejudice to appellant’s rights as would justify us in reversing the chancellor’s determination that appellee’s claim was not barred by laches.

By the same token, we cannot accept appellant’s contention that the chancellor erred in failing to hold that appellee was estopped to assert the validity of its easement. We agree with appellant that an equitable estoppel, as affecting land titles, “is a doctrine by which a party is prevented from setting up his. legal title because he has through his acts, words, or silence led another to take a position in which the assertion of the legal title would be contrary to equity and good conscience.” Florida Land Investment Co. v. Williams, 98 Fla. 1258, 116 So. 642, 643; Hagan v. Ellis, 39 Fla. 463, 22 So. 727. But the difficulty is that we can detect no way in which appellant has been led, by appellee, into a prejudicial position. No significant improvements have been made on the land as in Mumaw v. Roberson, Fla., 60 So.2d 741. The period of time relied upon by appellant is that between 1940 and 1950, during almost all of which time appellee was in actual possession of the land under the Peeples leases. Thus, appellant is asking us to hold that appellee defeated its own ends by its own possession, but that this possession was really appellant’s possession which was open, notorious, hostile and adverse to the claim of appellee. This state of" facts does not fit into any conceivable extension of the doctrine of adverse possession which we can now imagine.

“An easement may be lost by an occupation on the part of a person other than the owner of the easement adverse to the right claimed, in connection with nonuser by the owner of the easement.” 28 C.J.S., Easements § 63, p. 729. Italics added.

Moreover, even if the possession with which we are here concerned is the possession of the appellant, it is elementary that adverse possession cannot be permissive, Stewart, Adverse Possession, Sec. 10, 1 Florida Law and Practice, p. 318. It is also apparent that appellee, as sub-lessee, permitted the “possession” of appellant and even paid money, as sub-lessee, to help maintain it. Although appellant’s activity in permitting the sub-lease of grazing rights might have been adverse, in a sense, to the claim now made by Lykes Bros., Inc., we think it falls short in law of the requisites of adverse possession.

Appellant says that appellee has abandoned its easement, but for abandonment of an easement all of the elements of an equitable estoppel must exist, Nichols v. Peck, 70 Conn. 439, 39 A. 803, 40 L.R.A. 81; Adams v. Hodgkins, 109 Me. 361, 84 A. 530, 42 L.R.A.,N.S., 741, and as we have already held, equitable estoppel does not operate in this case. Moreover, it is said to be a “general rule that an easement once established is not divested by the acts of the dominant owner in seeking and obtaining permission or license from the owner of the servient estate to make the same use of the latter’s premises as could be made under the existing servitude.” 17 Am.Jur., Easements, Sec. 140, pp. 1025, 1026. See also Annotation, Permission or License from Owner of Servi-ent Estate as Extinguishing an Existing Easement, 50 A.L.R. 1296. See Powers v. Coos Bay Lumber Co., 200 Or. 329, 263 P.2d 913.

Since equitable estoppel is not present, and since the status of appellee as sub-lessee will not destroy the easement, there is nothing left but nonuser and, while nonuser may sometimes destroy an easement by prescription, the rule is general that it will not destroy an easement by grant, such as this. 28 C.J.S., Easements § 60, pp. 724-727; 17 Am.Jur., Easements, Sec. 141, p. 1026.

This brings us to consideration oi the contention made on cross appeal that it was error for the chancellor to fail to provide that the grazing rights of appellee under its reservation are exclusive. We agree with appellant that no intention to ■convey an exclusive easement in the property can be imputed to the grantor of the ■easement in the absence of a clear indication of such intention, City of Pasedena v. California-Michigan Land & Water Co., 17 Cal.2d 576, 110 P.2d 983, 133 A.L.R. 1186; Council v. Sanderlin, 183 N.C. 253, 111 S.E. 365, 32 A.L.R. 1527, and that ■such intention in the present case is by mo means clear. It follows that the judgment appealed from must be, and is hereby affirmed in its entirety.

It is so ordered.

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


text:
    John H. TIPTON and Alto Lee Tipton, Jr., Appellants, v. STATE of Florida, Appellee.
    Supreme Court of Florida.
    Oct. 2, 1957.

      Marion B. Knight, Blountstown, for appellants.
    Richard W. Ervin, Atty. Gen., and B. Jay Owen, Asst. Atty. Gen., for appellee.
   DREW, Justice.

The defendants were convicted of manslaughter under Section 782.07, Florida Statutes 1955, F.S.A.:

“The killing of a human being by the act, procurement or culpable negligence of another, in cases where such killing shall not be justifiable or excusable homicide nor murder, according to the provisions of this chapter, shall be deemed manslaughter, and shall be punished by imprisonment in the state prison not exceeding twenty years, or imprisonment in the county jail not exceeding one year, or by fine not exceeding five thousand dollars.”

The information charged that the defendants “did unlawfully and feloniously, by their act, procurement and culpable negligence and with utter disregard for the life and safety of H. D. Stevenson, did kill the said H. D. Stevenson by pushing, shoving and ill treating the said H. D. Stevenson”.

Chronologically, but not causally stated, the following rapid concatenation of events took place: the defendants stopped at deceased’s filling station to purchase gasoline ; in the course of the transaction there was a certain amount of arguing between defendants and deceased over deceased’s refusal to cash a check for one of the defendants; the defendants allegedly pushed deceased, but did not hit him; deceased fell to the floor and ostensibly died of a heart attack.

Our search is directed to the proposition of determining whether the evidence supports the jury verdict and whether the trial judge correctly instructed the jury as to the conduct which is proscribed by the manslaughter act. The only testimony which connects these defendants in any way with the death of deceased is that of deceased’s wife, Mrs. Stevenson, and for this reason we include an extensive portion of her testimony [Mrs. Stevenson]:

“A. Well, we had just finished hanging a door, Mr. Stevenson had just finished it, and we had opened some drinks and eat some crackers, and these boys drove right up in the house you might say, they drove up between the pumps and the door, which nobody hardly ever does, Mr. Stevenson went. and asked them what he could do for them and they said they wanted some gasoline and he asked them how much and they said fill it up, Mr. Stevenson filled the car with gas and he came back in, and he, (pointing toward one of the Defendants), asked him if he would cash a check and Mr. Stevenson told him no, he told him, he says, ‘I don’t know you and I can’t cash the check’, * * *.
* # ‡ Sji * *
“A. Well, Mr. Stevenson says ‘boys, I can’t take your check’ and one of them says -‘how are you going to get paid for your gas if you don’t cash the check, he says I’ve got money in the bank at Blountstown, if you don’t believe it just pick up the ’phone and call the bank and they’ll tell you I’ve got money there in the bank’, and of course it was too late to call the bank there was nobody there at that time of day, Mr. Stevenson says I don’t think I’ll have too much trouble getting my money for the gas, and they started using bad language again, they had already been using it, and Mr. Stevenson turned around and said ‘look here, boys, that’s my wife over there and I wish you wouldn’t use that kind of language, and they got worse, and worse, and the more Mr. Stevenson tried to get them to hush the more they said and it just went from bad to worse and he asked them to leave. * *
******
“ * * * and I went around the Counter to go out and they were in a huddle, and my husband was between them, I got to the end of the store and I heard him when he fell and I turned back, I knew he had some tablets in his pocket and I reached in his pocket and got them out and then I ran to the ’phone and (pointing toward one of the Defendants) he jerked the ’phone, and I said ‘I’m not going to call the law’ and he says ‘you’re not going to call anybody’, and I says ‘please let me call my son’ and he wouldn’t do it, I had to go across the road to Mr. Davis’ to call him. * * *
“Q. Let’s go back to where they were there near the Ice Box, Mrs. Stevenson. A. They was pushing him there, they just pushed him toward the Ice Box as I started out of the store, I wouldn’t say that either of them laid their hands on him to hit him, but they did push him, they was still trying to get him to cash the check then.
“Q. Had they paid for the gas ? A. Yes, he had paid for the gas but they was still arguing about the check after they had paid for the gas. * * *
******
“A. No, I don’t think either one of them hit him at all, but they pushed him around a little bit, they were all in a huddle over there and they were talking so ugly until my husband asked me to get out of the store.
“Q. Would you say they pushed him or he kept getting closer to them? A. They got closer to them, and they put their hands on him.
“Q. Which one of them? A. I don’t know.
“Q. Allright, then, you don’t know that either of them put their hands on him, do you? A. Yes, I do, they had their hands on him.
“Q. Well, which one was it had his hands on him? A. I don’t know which one it was.
“Q. Actually, Mrs. Stevenson, neither of them put their hands on your husband did they? A. Yes, they did, they put their hands on him.”

The trial judge charged the jury in the following manner:

“I charge you, Gentlemen of the Jury, that the laying on of your hands in a rude and angry manner would constitute an assault; but before you can find these Defendants guilty of anything you must find that they made an unlawful assault on H. D. Stevenson.
“The defense relies on the fact that the deceased had a heart disease; but if you should find beyond a reasonable doubt, from the evidence in this case, that they made an assault on him, in the manner and by the means as charged in the Information, and that at the time the deceased was suffering from some disease of malady, and an attack of such malady or disease was brought on by such injuries so unlawfully inflicted upon the deceased by the Defendants, if you find that the Defendants did unlawfully inflict injuries upon the deceased, and that the deceased died from such attack brought on by such injuries inflicted, then the Defendants would be guilty of the death of the deceased, even though the injuries may not have caused death if he had not been suffering from such disease or malady.
* * * * * *
“If you should find from the evidence beyond a reasonable doubt that the Defendants, in Jackson County, Florida, at any time within two years prior to the filing of this Information, which was filed on November 8, 1955, made an unlawful assault upon H. D. Stevenson, and either the injuries from the assault or the assault itself brought on a heart attack, from which the deceased died, if you find that state of facts, beyond a reasonable doubt, then, it would be your duty to find the Defendants guilty as charged.”

From the evidence and the charge we conclude that the jury could have found that the defendants placed their hands on deceased and that both defendants were drunk, disorderly and cursed deceased in the presence of his wife. The actual medical cause of death is unknown.

Deceased was 63 years of age and had been consulting a doctor for the last four months prior to his death because of an advanced stage of Angina Pectoris which was due to a coronary artery disease. The record contains expert testimony that “when a person suffering with Angina becomes excited, gets mad, over-works or over-eats this Artery has a way of closing up.” Such a reaction can cause death. However, there was no testimony in this record (which according to the instructions to the clerk contains all the testimony at the trial) to show any cause of deceased’s death from a medical viewpoint. More specifically, there is no testimony to show a causal connection between the alleged “pushing, shoving and ill treating” and the death of deceased. The expert witness who testified had not examined the body and did not testify that a heart attack caused deceased to die, but death by heart attack was a basic assumption of the trial. The expert witness was asked the following crucial question:

“Q. Dr. Latiolais, if. Mr, Stevenson had exerted himself in doing the work I have outlined in re-building and rehanging a screen door without resting, and immediately .following that have become angry, and then, following that, he had a heart attack that proved fatal, would it be possible to determine which of the three things mentioned, the work, the excitement or anger, or the heart attack determined his death? A. I d.on’t think so. I don’t think you coqld say which one precipitated the final attack.”

Furthermore, the expert, witness stated that before deceased’s death there was no way to predict his life span: “We know a man having Angina Pectoris, at his age, was subject to have án.aftáck at any time, we didn’t know whether he would live a week, a month or hew long he'would live.”

The information charged manslaughter in the language of the statute, but instead of using the disjunctive “or” between “procurement” and “culpable negligence” it used the coordinate “and”. Therefore a charge was given relating to culpable negligence. Naturally, the parties on appeal have discussed culpable negligence; but this case does not involve that doctrine. The crucial acts involved in the case at bar were the non-forceful, but rude pushes of defendants’ hands against deceased. Human experience does not warn against such acts as being physically harmful when perpetrated upon people generally, and defendants were not put on notice of unusual conditions in deceased which would change the objective view of the risk. Their acts in relation to the circumstances were reprehensible, but did not amount to reckless disregard of human life or of deceased’s safety. Futhermore, for purposes of analysis the act was an intentional, as opposed to a negligent, touching of deceased. Since neither procurement nor murder is involved, the activé ingredients of Section 782.07 in the case at bar are the killing of a human being by the act of another, provided that such killing is not “justifiable or excusable homicide.” The charge on culpable negligence might well have confused, but should not have affected, the jury in rendering its verdict; since in effect the trial judge charged that if the defendants made the alleged “assault” on deceased and if such “assault” caused deceased’s heart attack, the jury must find defendants guilty of manslaughter.

By taking a broad definition of criminal battery: “It seems that any injury whatsoever, be it ever so small, being actually done to the person or a man in an angry, revengeful, rude, or insolent manner, as by spitting in his face, or any way touching him in anger, or violently jostling him out of the way, are batteries in the eye of the law;” receiving uncritically a treatise writer’s statement of “the law”; “If one assaults another, but not in a way to naturally cause death or great bodily harm, he is guilty of a criminal act, and if death ensues, though contrary to his intention and wish, the homicide is manslaughter; and accepting the causal connection between the “pushing” and a fatal heart attack, there was in this case an unlawful act which caused the death of a human being — ergo: the act was manslaughter. That is -the situation if logic rather than the broad implications of the statute rule decision.

Logic, however, is not the sole tool of adjudication. While it might satisfy a possible desire for revenge, entertained by deceased’s relatives or friends, the punishment of the defendants for manslaughter can .satisfy no public aim. Even legal philosophies which posit vengeance as a basis for criminal punishment require punishment to be proportionate to the act punished.

Consideration of the act in its surroundings at the time of its commission, not of the results alone, should determine criminal responsibility for manslaughter under the Florida homicide statute. It is necessary for the act to result in the death of a human being under the definition of homicide; but this does not relieve the courts of a duty to study the act itself to determine whether the punishment for manslaughter should be applied. This conclusion does not require the use of the shibboleths, malum prohibition and malum per se. The statute itself provides far surer guideposts.

It is clear from reading the provisions of Section 782.02, justifiable homicide, and Section 782.03, excusable homicide, to which one is lead by the definition of manslaughter in Section 782.07 that every act causally connected with the killing of a human being is not punished by the homicide chapter, and more specifically, not by the general manslaughter statute. There is no need to record here any of the exemptions other than the one which is broad enough to cover the situation at hand: “Homicide is excusable when committed * * * by accident and misfortune in the heat of passion, * * * upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.” The noun “combat” has many meanings attributed to it in dictionaries — running from, “an encounter or fight between two armed persons,” to a figurative use, “a conflict; struggle; strife; controversy.” Oxford English Dictionary (Oxford 1933). To most of us who translate literary terms for our own times it means, either literally or figuratively, a fight. Defendants’ conduct — a battle of vituperation, climaxed by rude pushes — falls within the connotation of a figurative combat. The circumstances of the case required the trial judge at least to charge the jury upon the principle expressed in the homicide statute previously considered, that “Homicide is excusable when committed * * * by accident and misfortune in the heat of passion * * * upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.” This point was not covered in the charge.

Apparently the trial court’s charge was based in part upon Williamson v. State, 1926, 92 Fla. 1094, 111 So. 245, 247. The relevant charge in the Williamson case is as follows:

“ ‘If you should find beyond a reasonable doubt from the evidence in this case that the defendant unlawfully, and with intent to kill the deceased, T. R. McCormic, inflicted injuries upon the deceased in the manner and by the means, as charged in either count of the indictment, and that at the time the deceased was suffering from some disease or malady, and an attack of such malady or disease was brought on by such injuries so unlawfully inflicted upon deceased by the defendant, if you find that the defendant did unlawfully, and with intent to kill, inflict injuries upon the deceased, and that the deceased died from such attack brought on by such injuries so inflicted, then the defendant would be guilty of the death of the deceased, even though the injuries may not have caused death if he had not been suffering from such disease or malady.’ ”

The court in the Williamson case did not approve the charge in a positive way, but held:

“We find nothing in that portion of the charge complained of which, when taken with the entire charge given by the court, should either confuse or mislead the jury. Perhaps other language might have been chosen to express the same principles of law, but the language which was used was such as could be clearly understood and was not such as to be prejudicial to the defendant, and no reversible error appears to have occurred in the giving of the part of the charge complained of.”

Even if the court had approved the charge in a positive manner under the circumstances of the particular case, such approval must be restricted to the particular facts of the case. The Williamson case was a prosecution for murder in the fix-st degree wherein the defendant was convicted of murder in the second degree, defined as an unlawful killing of a human being “when perpetrated by an act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” The court’s words illustrate the type of act which was involved in the Williamson case:

“ * * * in further finding that it was perpetrated by an act imminently dangerous to the person assaulted and that that act, to wit, the striking of an old man over the head with a walking stick and kicking him in the stomach, when perpetrated by a man in the bloom of youth and strength, evinced a depraved mind regardless of human life and even if there was not a premeditated design to effect the death of any particular individual.”

The act involved was required to be “imminently dangerous to the person assaulted”, therefore the physical condition of the victim was only relevant as a part of the link connecting the act with the death- — -another element of the crime.

There are two cases which appear to give some support to the charge of the trial judge in the case at bar—Baker v. State, 1892, 30 Fla. 41, 11 So. 492, and Gainer v. State, 1930, 100 Fla. 164, 129 So. 576. [For a collection of cases, see 47 A.L.R.2d 1072.] The Baker case affirmed conviction of defendant for fourth degree manslaughter. The defendant, pro-voiced by a letter written by the victim, went to victim’s house where he was reclining on a couch. After a brief altercation defendant struck the victim twice in the face without excessive force. The victim died of a ruptured blood vessel in the brain. The following quotations from the opinion in the case are relevant to our discussion [30 Fla. 41, 11 So. 498]:

“Manslaughter in the fourth degree, of which the defendant was convicted, is thus defined by Crim.Code 1868, p. 352, McClel.Dig.:
“ ‘Sec. 17. The involuntary killing of another by any weapon, or any means neither cruel nor unusual, in the heat of passion, in any cases other than such as are herein declared to be excusable homicide, shall be deemed manslaughter in the fourth degree.
“ ‘Sec. 18. Every other killing of a human being, by the act, procurement, or culpable negligence of another, where such killing is not justifiable or excusable, or is not declared in this chapter murder, or manslaughter of some other degree, shall be deemed manslaughter in the fourth degree.’
“Counsel contending, under the third ground of the stated motion, that the evidence, even if it shows some casual (sic) connection between the striking of the blows by the defendant and the death of Brown, did not warrant the verdict, argues that, in order to sustain a verdict of manslaughter, the death of the person must have been not only directly or indirectly caused by the acts of the defendant, but must have been such as to be one of the reasonable or probable results of such acts, and if it be such as could not have occurred to the defendant as a probable result, then he should not have been held liable; that to hold otherwise is subversive of the accepted doctrine of intent which is the logical foundation of the law regarding crimes which are malum in se; that, if individuals are strictly held to a responsibility for the probable and reasonable results of their acts, society will be amply protected, without the injustice and oppression likely to be caused by the more extreme view necessary to sustain this verdict, if it can be sustained by any possible view of the evidence in this case.
“Of course, it is not necessary to the support of a verdict of manslaughter in the fourth degree that the death of the person killed should have been a reasonable or probable result of the defendant’s acts, in the sense in which this expression is used by the counsel, or, in other words, the fact that it could not reasonably have occurred to the defendant, or did not occur to him, that death was a probable result of the act, does not prevent a conviction of manslaughter in this degree. This being so, it is only necessary to say to the remainder of counsel’s contention that its discussion is beyond our functions, and that it can find practical consideration in the legislative department only.”

The court concerned itself with finding a causal connection between the assault and the death, and in a passing way disposed of an argument of defendant which the court interpreted as a contention that defendant must subjectively have foreseen the fatal results of his act in order for the manslaughter statute to apply. The court said “in other words, the fact that it could not reasonably have occurred to the defendant, or did not occur to him, that death was a probable result of the act, does not prevent a conviction of manslaughter in this degree.” Such a holding can be granted as valid without affecting the decision in the case at bar, therefore we will not discuss Gainer v. State, supra, which involved the same point.

The court in the Baker case continued as follows:

“Of course, no one believes that this assault would have killed a healthy man, but that it was calculated to excite in the highest degree any ordinary man, considering the unfair advantage at which the deceased was taken, the character of the blows, and the language and action of the accused, is indisputable. That the attack was hostile, excited, and angry is evident both from Bowen’s account and that of the accused, and the statement of McDonald also supports this view. The blows were, at least, severe; the language of the accused exhibited very positive hostility; and the degree of his excitement is well indicated by not only his acts and language, but by his own statement, that Bowen’s ‘voice brought me to myself.’ The testimony of the experts furnishes a reasonable theory of the operation of the assault as the cause of death; their cautiousness as to saying what produced the congestion and hemorrhage did not relieve the jury from the duty of passing upon the question of the prisoner’s guilt, nor does it raise any reasonable doubt of the correctness of their decision that the assault was the cause of the death. * *
“In his charge the judge said, inter alia: ‘The state must prove that the defendant assaulted Brown within Hills-borough county, State of Florida; that he assaulted him, and that Brown’s-death was caused or hastened by the assault alleged to have been committed upon him by the defendant at the bar. All these material facts are incumbent upon the state to prove, not for the defendant to disprove.’ It is urged that this was misunderstood by the jury, and misled them, in that the terms- or idea, death hastened by the assault,. might have been misunderstood to include a collateral as well as a casual' (sic) relation between the two. The-argument used is: If a person could be supposed to be in such a condition;, through the progress of some insidious disease, as that an unexpected touch, should cause abnormal heart action sufficient to produce death, and another person, ignorant of this peculiar condition, and with no intention of inflicting more than temporary discomfort upon the body, should come up behind' the first and inflict a blow however slight and with however innocent in- . tention, and the death of the diseased' person should ensue, the innocent,, though technically guilty movant, would be as much guilty of manslaughter as-was this defendant; that in either case the death was not the result of the blow, but the result of a pre-existing condition, and the blow only a collateral1 circumstance, at most, assisting to aggravate the condition.
“We must give the jury the credit of understanding that the court was speaking, as it was, of ‘the assault’ testified to by the witnesses or proved by the evidence, and of so applying the remarks of the judge; and must not impute to them a disregard of the actual case before them, and, action upon an extreme suppositious case, like that put by counsel. There is no ground for even supposing that the jury was misled or misunderstood the charge.”

Although the court in the Baker case did not decide the “argument horrible”, which was stated in terms which might apply to the case at bar, and the manslaughter statute has been relieved of degrees, the similarities in the facts and in the elements of the Criminal' Code of 1868, Section 18 (copied previously in this opinion) require an overruling of such parts of the Baker case as are in conflict with the present opinion. The Criminal Code of 1868 defined “excusable homicide” just as it is defined today. See McClel. Dig. p. 354, Section 24. However the court in the Baker case did not examine the possibilities of an application of “excusable homicide” to the facts of the Baker case as we have done with the' facts in the present case.

The trial judge should have granted defendants’ motion for a directed verdict the denial of which has been assigned as error, since the state failed to present any evidence to prove the cause of death or, even if proper instruction had been given, to prove that these defendants were guilty of manslaughter. See Section 918.08(1),. Florida Statutes 1955, F.S.A.

Reversed.

TERRELL, C. J., THORNAL, J., and STURGIS, District Judge, concur.

HOBSON and ROBERTS, JJ., dissent.

      . Hawkins Pleas of the Crown (Curwood Ed. 1824) p. 110, Section 2. Also cf. the adoption of similar criteria for tort liability. Restatement, Torts Section 18.

      . Clark and Marshall, Law of Crimes (5th Ed. 1952) Section 263(b), p. 355. See also, I Hale’s Pleas of the Crown (Stokes Ed. 1847) p. 474, footnote 4, or IV Blackstone’s Commentaries (Lewis Ed. 1898) pp. 192-193.


text:
    RITER v. DURRANCE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    COMMONWEALTH HOME CORPORATION v. FEDERAL NATIONAL MORTGAGE ASS’N.
    Supreme Court of Florida.
    Jan. Term 1957.
   .Dismissed without opinion.


text:
    TANGO v. TANGO.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.