author: PLEUS, Judge.

text:
    F. L. REVELL, Appellant, v. J. W. CREWS and Shorewood Corporation, a Florida Corporation, Appellees.
    No. 5.
    District Court of Appeal of Florida. Second District.
    Oct. 4, 1957.
    Rehearing Denied Oct. 29, 1957.
    E. D. Treadwell, Jr., of Treadwell & Treadwell, Arcadia, for appellant.

      L. Grady Burton, Wauchula, for appel-lees.
   PLEUS, Judge.

On October 4, 1955, appellant, F. L. Re-vell, filed a complaint in equity against J. W. Crews and Shorewood Corporation seeking a decree: (1) imposing a resulting trust on a portion of real estate owned by the defendants and (2) ordering an accounting be had to determine his proportionate share of the net proceeds realized from the sale by the defendants of certain real property. On January 23, 1956 the original complaint was dismissed “for its failure to allege facts sufficient to show a resulting trust.” Leave was given to amend. On April 19, 1956 the amended complaint, seeking the identical relief as was sought in the original complaint, was dismissed on the ground that it failed “to allege facts sufficient to justify the relief prayed,” and the order dismissing the original complaint was adopted as applicable to the dismissal of the amended complaint. Again, leave was given to amend. Revell declined to amend within the time allowed, and has appealed to this court from the order dismissing his amended complaint.

The complaint as amended alleged the following facts:

Revell, an insurance agent and real estate salesman, had been employed by the Wau-chula Bank Building Association for a number of years prior to May 7, 1946 to collect the rentals from and insure the Association’s real estate holdings in Wauchula. Revell, with informal authority to find a purchaser of this realty, was negotiating a sale to a third party who had indicated that he was willing to purchase the premises for $60,000, pay Revell a 5% commission on the sale plus a 5% commission on any subsequent sale, permit Revell to continue collecting the rentals and insuring the properties provided Revell would take a 25% interest in the realty. In April of 1946 the stockholders of the Association formally authorized Revell to sell the property.

On the afternoon of the stockholders’ meeting Revell mentioned to Crews, president of the Wauchula State Bank, the proposed sale of the Association property. On the following morning at the request of Crews, Revell met with him in his office. There Crews proposed that he and Revell jointly purchase the premises for the sum of $65,000. Within two or three days the two again met and entered into an oral agreement which provided that: they would jointly purchase the premises for $65,000; Crews would furnish the purchase price; Revell would negotiate the sale and forego his commission; Revell would have the right to manage the property, collect commissions on the rentals and insurance, and be paid a commission on any subsequent sale at the rate of 5% of the sales price. It was further agreed that each was to have an individed one-half interest in the property, and that a protracted sales program would be undertaken and from the proceeds of such sale would be deducted the purchase price leaving the net proceeds to be divided equally between Revell and Crews.

Revell successfully negotiated the sale. On May 7, 1946 the Association executed a deed to Crews. On September 11, 1946 Crews gave a mortgage on the property to the First National Bank of Palm Beach to secure the payment .of funds borrowed to make up the purchase price. A short time later at Crews’ request, the oral agreement was modified whereby Revell renounced his right to a commission on rentals and insurance premiums and his right to a commission for managing the property. In December ,of 1946 Crews, joined by his wife, conveyed this property, excepting the bank building which it had been agreed would not be sold and another small parcel, to the Shorewood Corporation, a corporation, wholly owned or controlled by Crews and alleged to be his alter ego. Re-vell, relying upon their oral agreement, assumed the management of, solicited tenants for, collected rentals on, and insured each parcel of the property until that parcel was later sold.

Subsequently, the amended complaint so alleges, sales of various parcels of the property were made either by Crews individually or by the Corporation except for the bank building and another small parcel. All such sales were made with the “assistance” of Revell and “upon the joint consideration of” Crews and Revell. General allegations are made as to plaintiff reposing trust and confidence in defendant in connection with certain of the transactions.

On December 4, 1950 Revell received from Crews as president of the Shorewood Corporation a check for $500 which he has not presented for payment. Since then Re-vell has on several occasions asked Crews to account to him for his share of the net proceeds accrued as a result of rentals collected and gains realized from the sale of the various parcels as well as a division of the property unsold. These demands for an accounting have been unavailing.

Revell alleges a net balance of $59,624.83 exists to be divided between him and Crews based on the following computation:

Receipts:
Sales of Realty $63,000.00
Rentals Collected 68,605.99
Interest Income on Mortgages 10,648.62
Total $142,264.61
Expenses:
Taxes and Insurance $17,629.78
Purchase Price of Realty 65,000.00
Net balance to be divided
Total
82,629.78
59,624.83

It is obvious from the initial order of the court below which is incorporated into the order appealed from that the cause was submitted to it solely on the basis of whether or not the complaint stated facts sufficient to authorize a decree establishing a resulting trust. Although the complaint prays only for the imposition of the resulting trust and the ordering of an accounting, the briefs and argument in this court have enlarged the theory of plaintiff below and now seek to embrace any equity there might be in the complaint. Under the provisions of Rule 1.8(b), 1954 Florida Rules of Civil Procedure, 30 F.S.A., the question before us is whether or not the complaint as amended states a cause for any equitable relief in the light of Tellerine v. Public Realty Company, Inc., 1947, 158 Fla. 556, 28 So.2d 821.

We cannot accept appellant’s theory as apparently propounded that any generalized basis of possible equitable jurisdiction constitutes a basis for equity in the complaint. We therefore explore the only categories consonant with the allegations in which may be classified any possible basis for the chancellor below to have granted equitable relief:

1. As an equitable suit for an accounting it is obvious from the allegations that the basic requirements are not present and we dismiss this without further comment.

2. On the theory of a resulting trust the action of the chancellor below was eminently correct. There is total want of an allegation that plaintiff paid any specific sum for any distinct interest in or aliquot part of any of the land involved, nor did he obligate himself by agreement absolute to pay the same. Later agreements after title vests are not sufficient. The decisions of our Supreme Court are specific: Parramore v. Hampton, 1908, 55 Fla. 672, 45 So. 992; Rosenthal v. Largo Land Co., 1941, 146 Fla. 81, 200 So. 233; Womack v. Madison Drug Co., 1944, 155 Fla. 335, 20 So.2d 256, 257.

3. Nor could there have been a decree in plaintiff’s favor based upon a constructive trust absent a fiduciary relationship or fraud or both and no contention is made in the briefs or at the bar of this court that such theory is applicable.

4. Apparently advanced for the first time in this court is the theory that the allegations are sufficient to justify relief on the basis of there having been a joint adventure. The memorandum order of the court below fails to disclose that the chancellor had before him any such contention.

That, under the allegations, there was no joint adventure is obvious in that there is no allegation of joint control or right of control nor of a duty on the part of plaintiff to share in any losses which might have been sustained. There might have been sufficient for a court of equity to divine from the allegations a community of interest in the performance of the common purpose and a possible although most nebulous joint proprietary interest in the subject matter. The only right definitely alleged, however, is that of the plaintiff to share in the profits. These five requirements are held to be the prerequisites of-joint adventure in Kislak v. Kreedian, Fla. 1957, 95 So.2d. 510. While it may be difficult to reconcile the prior case of Russell v. Thielen, Fla.1955, 82 So.2d 143 with the requirements set forth in Kislak we not only accept the later decision in Kislak as controlling but are satisfied it can be reconciled because in Russell many hundreds-of dollars were invested by the plaintiff in preparation to placing the lots on the market whereby 110 of said lots had been sold and the value of the remaining lots was shown to have been greatly increased.

Having searched in vain to find any' known basis for equitable relief on the facts alleged in the amended complaint we affirm the court below.

Affirmed.

KANNER, C. J., and DAYTON, As-' sociate Justice, concur.

      . Under the authority of Alderman v. Puritan Dairy Co., 1940, 145 Fla. 292, 199 So. 44, we treat this as an appeal from final decree. See also Anderson v. Carlton, 1945, 156 Fla. 170, 22 So.2d 874.

      . Just what was involved in Kevell having to negotiate is not made to appear in view of Crews agreeing to buy at a price $5000. in excess of what the stockholders had already formally authorized.

      . There is no contention that there was a fiduciary relationship between plaintiff and defendant nor could the allegations support any such contention.

      . Lurking in the background as the basis for an attempted suit in equity after so long a period of time is the shadow of the Statute of Limitations which plaintiff might have sought to avoid by taking the chancery course.


source: Caselaw Access Project

license: Public Domain

text:
    H. E. ENGLISH, Appellant, v. Mrs. Edith SMITH, also known as Mrs. H. H. Smith, Appellee.
    No. 9.
    District Court of Appeal of Florida. Second District.
    Oct. 4, 1957.

      Chas. F. Chastain of Oxford & Oxford, Lakeland, for appellant.
    W. W. Whitehurst, Wauchula, for ap-pellee.
   PLEUS, Judge.

Plaintiff-appellant filed complaint in equity to establish and foreclose a lien in the alleged amount of $2,628 on the predicate of an oral agreement between him and defendant-appellee to treat the trees in defendant’s grove for a certain citrus disease known as psorosis, commonly called footrot. On answer admitting an agreement but denying the terms as claimed by plaintiff and containing a counterclaim for damages for injury to the trees, the cause was referred to a special master solely for the purpose of taking the testimony and reporting the same to the court.

The lien was claimed pursuant to Section 85.04 Florida Statutes 1955, F.S.A. and it is admitted that the agreed price was to have been $1 per tree. The plaintiff contends that the agreement was to treat all the trees in defendant’s grove, numbering 2,628; and that regardless of the agreement plaintiff knowingly permitted defendant to so treat all the trees, accepted the benefits thereof and on the theory of quasi-contract is liable. The defendant contends that the agreement was to treat only the diseased trees numbering 314 and that such treatment was the extent of her knowledge or consent.

The decree of the chancellor below denied relief on the counterclaim and granted plaintiff a lien to the extent of $314.

. Plaintiff now contends that the evidence did not support such decree; that regardless of the terms of any express oral contract the evidence was sufficient to justify an award in full on the implied contract and acceptance of benefits and that the lower court erred in denying plaintiff an award of attorney’s fees.

We dismiss the latter contention because the procedure by foreclosure in equity does not permit the award of attorney’s fees.

Nor are we justified in trying the case de novo merely because the evidence "before the chancellor had been taken before a- master. There is ample evidence in the record which if believed by the chancellor will support his decree finding that the actual agreement between the parties was to treat only the diseased trees and that such trees numbered 314 and there is likewise ■such evidence to justify his denial of recovery on the basis of plaintiff having knowingly permitted all trees to be treated and accepting the benefit thereof.

While in such case the decree may not be on full parity with the verdict of a jury, the rule is well settled that in such ■case it must be clearly erroneous before it will be disturbed by an appellate court. Farrington v. Harrison, 1928, 95 Fla. 769, 116 So. 497; Marcus v. Hull, 1939, 142 Fla. 306, 195 So. 170, 172; Bethea v. Langford, Fla.1949, 45 So.2d 496, 498.

It not appearing that the decree below was clearly erroneous, we decline to disturb the same and therefore the cause below is hereby affirmed.

Affirmed.

KANNER, C. J., and DAYTON, Associate Justice, concur.


author: DAYTON, Associate Judge.

text:
    L. L. TAYLOR, Appellant, v. Homer WOODRUFF and M. F. Summers, Appellees.
    No. 13.
    District Court of Appeal of Florida. Second District.
    Oct. 9, 1957.
    Rehearing Denied Oct. 29, 1957.
    Early & Early, Sarasota, for appellant.
    Robertson & Robertson, Sarasota, for appellee.
   DAYTON, Associate Judge.

On October 25, 1945, appellant Taylor, as owner, contracted with appellee Wood-ruff, as purchaser, for the sale of three lots in Sarasota County for a price of $4,500. Woodruff paid Taylor $1,000 and the balance was to be paid on March 1, 1946, or upon delivery of a warranty deed from Taylor and wife. Taylor’s wife did not join in the contract and did not join in the deed which Taylor tendered to Wood-ruff in June, 1946, which deed Woodruff refused to accept.

On October 25, 1947, Summers filed suit against Taylor as title holder, Woodruff as contractor to purchase, and others, ■ for the foreclosure of a mortgage.

In January, 1948, Taylor .represented to Woodruff that he believed he could get his wife to join in the' deed if Woodruff would pay an additional $1,500. Woodruff agreed to this proposal and a supplemental agreement to that effect'was entered into between them. Taylor’s wife still refused to join in the agreement and deed. In 1951, Taylor offered to deliver a deed without his wife’s joinder, which offer Woodruff rejected.

On November .6, 1951, the Court entered a decree holding, that the mortgage sought to be foreclosed was barred by the Statute of Limitations but the decree upheld as valid the original and supplemental contracts between Taylor and Woodruff.

Negotiations between Taylor and Wood- ■ ruff and their attorneys continued in an effort to obtain joinder of Taylor’s wife in the deed. In November, 1954, when advised that Taylor’s wife positively would not join in the deed, Woodruff offered to accept a deed without her joinder, at the original purchase price. Taylor then refused to deliver a deed, with or without such joinder.

On March 11, 1955, Woodruff filed his petition in the Court below tó construe, clarify and enforce the decree of November 6, 1951, and deposited $5,000 in the Registry of the Court. Taylor’s Motion to Dismiss for Lack of Prosecution was denied for the reason that the parties were actively negotiating and were equally delinquent since 1951. At final hearing the Chancellor determined that Woodruff was entitled to a warranty deed from Taylor without his wife’s joinder, upon payment of $3,500, plus six percent interest from March 1,, 1946, and repayment of taxes from 1946. Upon the receipt of such payment Taylor was ordered to convey within twenty days or the decree would stand in lieu of the deed. If Woodruff refused to pay, all ’ parties were to stand relieved of obligation, except that Taylor was to repay Woodruff the $1,000 paid in 1945, with interest at. six percent.

Appellant first submits that the case should have been dismissed for lack of' prosecution. The finding of the Chancellor' that both parties “ * * * were equally delinquent in failing to progress the suit” is amply supported by the record. The case-did riot stand upon 'the pleadings without affirmative action from 1951 until 1955, but' rested upon a final decree. We deem the action by Woodruff in filing his petition for clarification, etc., of such final decree to be-the institution of “ * * * proper proceedings to revive the abated cause”, Hancock v. Hancock, 128 Fla. 684, 175 So. 734, 738. Appellant next contends that he tendered to appellee a deed executed by-himself and without joinder of his wife in< 1951, and that since appellee rejected the same at that time he cannot later be heard upon application for that which he refused earlier.

It is apparent from the record that in 1951 both parties still believed it would, be possible to obtain the joinder of Taylor’s, wife in the- deed. The final decree from which this appeal is taken recites “on or about the — day of November, 1954, Taylor’s attorney notified Woodruff’s attorney for the first time that Taylor’s wife positively refused to join in the deed and that further efforts to obtain the joinder of Taylor’s wife would he unavailing and without hope for success * * * (Emphasis supplied.) We observe that after being advised of the adamant attitude of Taylor’s wife in 1954, Woodruff agreed to accept a deed signed only by Taylor but that Taylor then refused to deliver such deed.

It is our view that because of the negotiations between the parties seeking the join-der in the deed by Taylor’s wife, appellee was not guilty of laches in seeking the relief prayed for. Had he known in 1951, when he refused Taylor’s tender of a deed signed by himself alone, that Taylor’s wife positively would never join in the deed, and with such knowledge rejected the deed, it could not be said that he exercised due diligence in seeking relief several years later. But such is not the case here. It was in November, 1954, that appellee learned “for the first time” that there was no hope , of obtaining a joinder of appellant’s wife in the deed. Under such circumstances we feel that the tender by appellant to appellee in 1951, on the same terms as contained in the final decree appealed from, is not a proper defense to the relief granted.

Appellant further contends that the Court erred in entering a decree upon the pleadings. Noting that the decree appealed from was entered for the purpose of clarifying and enforcing a former decree of the same court, we find that the record in the cause amply supports the findings of the Chancellor and we find no error in his entry of the decree.

The decree appealed from is, therefore, affirmed.

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


author: ALLEN, Judge.

text:
    Jack MARTIN, doing business under the trade name and style of Jack Martin’s Newer Cars, Appellant, v. Maude STORY, Appellee. Jack MARTIN, doing business under the trade name and style of Jack Martin’s Newer Cars, Appellant, v. Arthur B. STORY, Appellee.
    Nos. 85, 85-A.
    District Court of Appeal of Florida. Second District.
    Oct. 9, 1957.

      Sanders,. McEwan & Berson, Wm. Mc-Hardy Berson, Orlando, for appellant.
    Walter Warren, Leesburg, for appellee.
   ALLEN, Judge.

This is a consolidated appeal from two Final Judgments in two actions at law for negligence, one brought by Arthur B. Story and the other brought by Maude Story, husband and wife. The actions were consolidated for trial below and the judgments were based on verdicts by the jury of $17,-000 to the husband and $45,000 to the wife.

The appellant was defendant below in each of the cases and the two appellees were plaintiffs below. The parties will be referred to herein as they stood before the trial court.

This action resulted from an automobile collision between cars driven by Maude Story and Archie Carroll Crooke, Sr. The plaintiff, Maude Story, stated her action in three counts; the first two alleging simple negligence and the third alleging culpable negligence.

The plaintiff, Arthur B. Story, sued for damages as the husband of Maude Story.

The defendant moved for directed verdicts at the conclusion of plaintiffs’ evidence and at the conclusion of all the evidence. Both motions were denied. Plaintiffs each moved for a directed verdict at the end of all the evidence, which motions were granted.

The defendant filed a motion for the court to set aside the verdicts and grant a directed verdict to defendant in each case or in the alternative, to grant a new trial. These motions were denied.

The appellant contends that the court directed a verdict for the plaintiff, Maude Story, on all three counts of her complaint, which included the count upon which she based her request for punitive damages. It is also contended by the appellant that the effect of the court’s charges was to authorize the jury to include in its verdict punitive damages for Arthur B. Story, even though Arthur B. Story did not claim such damages in his complaint.

The questions considered by this Court are first, was plaintiffs’ evidence as to culpable negligence of such conclusive force that the lower court was justified in directing a verdict for punitive damages and second, does the record reflect that the lower court improperly instructed the jury that they could consider punitive damages for the husband in reaching the amount of their verdict in his action?

The attorney for the plaintiffs in his argument to the jury (T. 485) said:

“ * * * Now, this is an element of damage, that I am saving for last. It applies to both cases, I saved it till last, because of that fact. The Court will instruct you to the meaning of punitive damages. After all Counsel are through talking. To me it means this, and I believe this is a fair statement of it. Where a person starts a chain of ■circumstances that leads to a motion, somethings (sic) that leads to a set of •circumstances or may lead to that and when those circumstances finally arrive, then that situation is so dangerous that it is beyond human control to escape, hurting other people and damaging their property.”

The attorney then argues for several •pages as to the effects of punitive damages -and concludes with the following on page •490 of the record:

“ * * * I Say this in considering punitive damages and they are for you to consider in the sizable award that’s been determined by the Court. You determine the amount, unless it is a ■substantical (sic) amount, then you have failed to do the thing that punitive •damages call for to make the example. If it’s not an example, then the whole •thing is lost, so your verdict, that part that you include in punitive damages, 'because of the entire settlement set up •why the damages are awarded of their own nature they call for a very substantial amount of money. Gentlemen, I believe at this time that is all I have to say.”

The Court on page 474 of Vol. 3 of the Transcript said:

“* * * Gentlemen of the Jury, in your absence Plaintiffs interposed a motion for a directed verdict in their favor in each of the two cases, which were considered. That motion has been granted by the Court, which means that you are to find for the Plaintiffs in both cases, leaving to you from the evidence the question of the amount of damages to be accessed (sic) by you in each case and to that subject the attorneys for the respective parties will direct their arguments, after which the Court will undertake to charge you what the law is.”

The Judge in his charge to the jury on page 502 of the Transcript said:

“* * * Both of the instructions that I am giving are applicable in each ease. There are some instructions that I will designate going to one case and some going to the other. I will advise you those as I give them. Unless I tell you differently, these instructions go to both cases.”

The Court, following the above quoted matter, proceeded to instruct the jury generally as to various elements that go to make up allowable damages in negligence actions. The Court then stated, on page 505 of the Transcript:

“* * * You may also take into consideration the pain and suffering which the plaintiff has undergone, if any, and which you believe from the evidence she is reasonably certain to undergo in the future in arriving at a verdict for the plaintiff, Maude Story. It will then be your duty to assess her damages. In so doing you are entitled to take into consideration the physical pain and suffering which she endured as a result of her injury and the mental pain and anguish, if any, that she has endured as a result thereof, as well as any personal inconvenience which she sustained by reason of any incapacity resulting from the injury. You are further instructed that personal injury, physical pain and suffering, mental pain and anguish, cannot be measured by any standard or pecuniary value and the law makes it the peculiar province of the jury to ascertain the amount of damages to be awarded therefor. The Court instructs the jury that punitive damages can be allowed in cases of negligence where the negligence is of a gross and flagrant character evincing reckless disregard of human life or the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise a presumption of a conscience (sic) indifference to consequences or which shows a wantonness or recklessness of a grossly careless disregard of safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of it. Exemplary or punitive damages are to protect the interest of society and the aggrieved individual, not only recompense to the sufferer but also a punishment to the offender and and an example for the community.
“The charges I am about to read here now are peculiarly applicable in the case of Maude Story. * * *”

In view of the Court’s instructions to the jury generally with reference to punitive damages and considering the argument of counsel for the plaintiffs to the jury as to punitive damages in both cases, this Court must conclude that the jury, in considering damages in both cases, was led to believe that punitive damages could be included in their verdict for Arthur B. Story.

This Court has read the record in this case and concludes that the most favorable testimony of the plaintiffs as to culpable negligence was the conclusion of one of their witnesses that the driving of a towed car was dangerous and, in effect, a dangerous instrumentality, and that the plaintiff’s automobile was struck by the car of the defendant on the wrong side of the road. If this was evidence of culpable negligence, there was sufficient evidence adduced by the defendant that the practice of transporting automobiles by driving a car towing another car was common among car dealers, and that whether or not such method of doing business presented a special hazard depended upon the experience of the operator handling that type of set-up (see Appendix — Defendant page 87) to require that the issue of culpable negligence go to the jury for determination.

The plaintiffs offered H. N. Kirkman, Director of the State Department of Public Safety, as an expert witness. Colonel Kirkman testified that he had headed the Department for some 10 or more years and that through his Department he had made various studies relative to traffic conditions and safety on the highways of Florida. He was asked if he could give statistics on the frequency of towed vehicle collisions in the State. The plaintiffs’ counsel asked this question:

“Q. You may answer the question. I believe you said you had a ratio ? A. These are F. H. P., Florida Highway Patrol investigations only. Our reporting is not complete from other law enforcement agencies. During the first 5 months of this year, Florida Highway Patrol investigated 6,787 accidents statewide. Of that number, towing another vehicle involved 34 of those accidents. Percentage wise, that’s Y2 of 1% of those wrecks investigated by this department.
“Q. Now, you probably, or do you have any statistics on how many total wrecks, I mean total vehicles on the road are towed vehicles? A. No we do not. There is no way of compiling this data.
“Q. Now, Colonel, I want to ask you. I’ll ask you the question formerly asked you, which was objective and the objection was overruled. The Reporter took it down and I’ll ask him to read it to you at this time. Is such a towbar arrangement as you have seen in the photographs and where by the car shown in Exhibit Number Six would be hooked to a Chevrolet Sedan for use, for towing on the highways of the State of Florida, there being no one in the car being towed, in your opinion, is such a combination towed dn that manner safe to be operated on the highways of the state of Florida? A. No, in our opinion, no.
“Q. Now, Colonel, in your opinion is such a combination as described in the preceding question a dangerous instrumentality on the highways of the State of Florida? A. Definitely yes.”

The questions put to the witness by plaintiffs’ counsel were objected to by the defendant and the objections were overruled by the trial judge.

Colonel Kirkman testified that he had no personal knowledge of the use of the type of vehicle under discussion (Appendix, Appellant p. 53) and his knowledge was based on a study of his records, which studies were those get forth in the above quoted matter.

We are of the opinion that the court committed prejudicial error in permitting the witness so to testify and to give the opinions given in this case.

Several other matters were assigned as errors by the appellant, but in view of the fact that the lower court must be reversed for overruling the defendant’s motions for new trials, we will not pass on said assignments.

The judgment of the lower court is reversed in each of the two cases and is instructed to grant new trials to the defendant.

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


author: HORTON, Judge.

text:
    FLAGLER FUNERAL SERVICE, Inc., and Iowa Home Mutual Casualty Company, Petitioners, v. Vivian SCHULZ and Florida Industrial Commission, Respondents.
    No. 57-89.
    District Court of Appeal of Florida. Third District.
    Oct. 10, 1957.

      Walters, Moore & Costanzo, Miami, for petitioners.
    Danton V. Ferrero, Miami, and Rodney Durrance, Tallahassee, for respondents.
   HORTON, Judge.

This cause came before the court on a petition for certiorari to review an order of the Florida Industrial Commission affirming an order of one of the Deputy Industrial Commissioners of Dade County, Florida. The Deputy found that the respondent, Vivian Schulz, was the common law wife of Werner Schulz, who died as the result of an accident while in the employ of the petitioner, Flagler Funeral Service, Inc.; that at the time of his death, there were residing with him Vivian Schulz and three children of Vivian Schulz by a prior marriage, who were dependent upon him for support and entitled to benefits under the Florida Workmen’s Compensation Law, Chapter 440, Fla.Stat., F.S.A.

The petitioners have assailed the order of the Full Commission affirming the findings of the Deputy that a common law marriage had existed between the respondent, Vivian Schulz, and the deceased, Werner Schulz. We find no error in this order.

Under the Workmen’s Compensation Law, Sec. 440.25, Fla.Stat., F.S.A., as amended, the Deputy is charged with the duty of holding hearings, making determinations of fact and of making a compensation award. After the making of an award,, designated in the Act as the “compensation, order,” if no interested person files an application for a review of such order within-twenty days with the Full Commission, such; order becomes final. The Deputy’s position, then, under the law, is somewhat analogous-to that of a chancellor and the Full Commission then occupies a position similar in many respects to that of an appellate court. The Deputy exercises quasi-judicial functions-with the power and authority to make findings of fact and, just as any group or board created by lawful authority, when acting in a quasi-judicial capacity, their findings-are entitled to great weight and should not be lightly set aside unless there appears no-competent substantial evidence to support their findings and judgment. See Nelson v. State ex rel. Quigg, 156 Fla. 189, 23 So. 2d 136; De Groot v. Sheffield, Fla.1957, 95 So.2d 912.

Under the provisions of the Workmen’s Compensation Law, whether or not: the respondent in this instance was the widow of the deceased and whether or not the-children of the surviving widow were dependents within the meaning of the Act,, were questions of fact to be decided by the-Deputy. See Tigertail Quarries v. Ward, 154 Fla. 122, 16 So.2d 812; Hillyer & Lovan v. Florida Industrial Commission, 155 Fla. 144, 19 So.2d 838; Great American Indemnity Co. v. Williams, Fla.1956, 85 So.2d 619. This he did, and although others viewing-the testimony at a later date might draw-different inferences and conclusions from-, that of the Deputy, this would not of itself’ justify setting aside his order. The testimony was sufficient to support the findings-of the Deputy and where there is any competent testimony supporting such findings,, they should not be disturbed. United States-Casualty Co. v. Maryland Casualty Co., Fla.1951, 55 So.2d 741; Persico v. Samac Corporation, Fla.1954, 74 So.2d 683. No-useful purpose could be served by a delineation of what in our opinion justified the Deputy’s findings.

It is thereupon concluded that the Full Commission did not depart from the essential requirements of the law in affirming the order of the Deputy, and, therefore, the petition for certiorari should he and it is hereby denied.

Certiorari denied.

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


text:
    STATE of Florida ex rel. Harry BRANNON, Jr., Appellant, v. CITY OF MIAMI BEACH, a Municipal Corporation, et al., Appellees.
    No. 57-116.
    District Court of Appeal of Florida. Third District.
    Oct. 10, 1957.
    Rehearing Denied Oct. 30, 1957.
    Perlmutter & Lehrman, Miami Beach, for appellant.
    Ben Shepard, Miami, and Joseph A. Wanick, Miami Beach, for appellees.
   HORTON, Judge.

The appellant, relator in the court below, brought an action of mandamus against the appellees seeking reinstatement to his position as a police officer for the City of Miami Beach. An alternative writ of mandamus was issued by the lower court. To the alternative writ, the appel-lees filed motion to quash, which motion, after hearing, was sustained by the lower court and final judgment entered quashing the alternative writ. It is from this final judgment that appeal was taken.

The appellant, who had been in the employ of the City of Miami Beach since January, 1950, was á regular employee in •the classified services and his duties were that of a police officer. On July 19, 1956, the appellant was served with notice that he was removed as a police employee of the City of Miami Beach by the chief of police, effective July 20, 1956. Appended to the notice of removal was a specification of charges upon which the removal was based. In general, the appellant was charged with conduct unbecoming an employee of the city. Specifically, he was charged with stopping an official car belonging to the City of Miami Beach and falsely and maliciously placing under arrest the operator thereof upon a charge that said operator had violated a traffic ordinance of the City of Miami Beach, to-wit: the failure to stop at a street intersection. It was further charged that the car was operated by the City of Miami Beach for the convenience of guests of the city and that at the time of the appellant’s alleged false charge and arrest of the operator of the city car, said operator was transporting two guests of the city on an official mission under orders from the mayor; that the appellant knew that the arrest of the operator of the city car would hinder, delay and prevent the performance of the operator’s official mission to the detriment of the city.

Based on the foregoing charges and pursuant to the provisions of Chapter 27735, Section 8, Special Acts of 1951, Laws of Florida, a hearing was had before the Miami Beach Civil Service Board on August 2, 1956, for the purpose of determining the truth of the charges against the ' appellant. After hearing testimony and considering the evidence submitted, the Board found that the charges made against the appellant had been substantiated and, in effect, upheld the removal order theretofore issued by the chief of police of Miami Beach.

The gravamen of the charges against the appellant was that he had falsely and maliciously accused and charged the operator of the city car with violating a traffic ordinance of the City of Miami Beach. There was offered and admitted into evidence at the appellant’s trial before the Board a memorandum dated May 21, 1956, by Captain Stewart of the Miami Beach Police Department, that all persons involved in moving violations who did not have current driver’s licenses were to be brought to the station and booked. The testimony shows that the appellant requested the driver’s license of the operator of the city car at the time that he stopped him and was shown a 1955 driver’s license which had expired, and on this basis, following the dictates of the orders of his superior, the appellant placed the operator of the city automobile under arrest and took him to the police station to be booked. After arriving at the police station, the operator of the city car located his 1956 driver’s license, exhibited it to the appellant and no charge for failure to have a driver’s license was made by the appellant against the operator. A charge of failing to stop at a street intersection was lodged against the operator, he was brought into municipal court on the latter charge, pleaded not guilty, was found guilty by the court and fined $10. No appeal was taken from that conviction.

Two guests who were being transported in the city car at the time the incident occurred testified before the Board that the operator of the city automobile did stop at the intersection; that when the appellant stopped the operator of the city automobile and placed him under arrest, he, the appellant, in order to require the operator to accompany him to the police station, threatened to shoot the tires off the city-owned automobile. The appellant admits that he made such a statement, but says that it was made when the operator of the city car indicated that he was not going to comply with the appellant’s request to go to the police station. Other evidence in the record indicates that the appellant may have been prejudiced against the operator as shown by his statements concerning the operator of the city-owned automobile at prior Board meetings. It was evident also that the operator of the city automobile had on at least two prior occasions some difficulty with a law enforcement officer of another agency and with law enforcement officers of his own agency other than the appellant.

Although the appellant has assigned three grounds for reversal of the final judgment appealed from, we deem it necessary only to decide what we consider to be the basic question, that is, whether or not the appellant’s actions as described in the charges constituted just cause for his removal. In our opinion, this question demands a negative answer.

The appellant’s case would in some particulars appear to parallel the case of Hammond v. Curry, 1S3 Fla. 245, 14 So.2d 390, 393. Hammond, a member of the vice squad of the Police Department of the City of Miami, received a directive from his immediate superior to locate a woman who was reportedly soliciting for prostitution on one of the street corners of the City of Miami. Hammond was furnished with her description by his superior. Hammond observed a woman fitting the description furnished by his superior walking along one of the streets of Miami late one evening. He accosted her in an attempt to ascertain if she was the person about whom his superior was concerned and apparently walked several blocks with her before identifying himself as a police officer. Upon learning that he was a police officer the woman refused to identify herself and was taken by Hammond to the police station. It was later revealed after she arrived at the police station with Hammond that she was a woman of good reputation and was not the woman that Hammond’s superior had described to him. The basis of the charge which resulted in Hammond’s removal from the force in substance was that he had classified the woman as a prostitute after discovering that her reputation was good and that she could not have been the woman of whom his superior had spoken. He brought mandamus proceedings. An alternative writ issued and upon motion of the city to quash, a judgment was entered quashing the alternative writ and upholding Hammond’s ouster as a police officer of the City of Miami. In reviewing that judgment, the Supreme Court of Florida said:

“It is important to recall, in this connection, the instructions given by the sergeant and the vice squad to the relator that the woman whose description coincided with hers should be apprehended because diseased. Taking into account this order from a superior officer and the purpose intended by its execution, we cannot conceive how a report by the relator to the department to which he owed allegiance, indicating obedience to that order, could form just cause for discharge.”

It would seem novel indeed to say that a public employee who discharges the duties imposed upon him by his employer is by reason thereof subject to discharge and loss of valuable rights. To state the proposition is sufficient to demonstrate its evils.

The appellant not only was discharging duties normally imposed upon police officers, but in arresting the operator of the city car acted in specific compliance with prior orders of his superior. No showing has been made that either the operator or the automobile owned by the City of Miami Beach was exempt from the observance of traffic ordinances of that city, and in the absence of such showing we assume that the operator was held to the same degree of observance of traffic regulations as any other citizen. It may be that the City of Miami Beach was embarrassed in the eyes of its guests by the conduct and the actions of the appellant; nevertheless, we cannot hazard a guess that such was the criteria upon which the city based the appellant’s removal.

As the Supreme Court of our state has said in Kennett v. Barber, 159 Fla. 81, 31 So.2d 44, 46:

“In reaching its determination of whether or not one has been ‘guilty of conduct unbecoming a City employee’ the city cannot act on an arbitrary or capricious judgment, neither must it act on a judgment shrouded in the fog of bias and skepticism. Such judgment must above all be one illuminated by the light of truth and justice.”

Upon the record as a whole before this court, it does not appear that the charges made against the appellant constituted just cause for removal and it therefore follows that the judgment quashing the alternative writ should be and it is hereby reversed, and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

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


text:
    Morris S. STONE, Appellant, v. Evelyn L. STONE, Appellee.
    No. 57-127.
    District Court of Appeal of Florida. Third District.
    Oct. 10, 1957.

      Miller & Miller, Miami, for appellant.
    Dixon, Dejarnette, Bradford & Williams, Miami, for appellee.
   HORTON, Judge.

The appeal here is from a final decree dismissing with prejudice the appellant’s bill of complaint for divorce. The chronology of events in the lower court is as follows: the appellant, on August 23, 1956, filed a bill of complaint for divorce charge ing the appellee with habitual indulgence in a violent and ungovernable temper, and willful, obstinate and continued desertion for a period of one year. The appellee filed a motion to dismiss the complaint on October 2, 1956, which, in addition to the ground that the complaint failed to state a cause of action, included the grounds that the appellant was not a bona fide resident of the State of Florida, had not resided in the state for ninety days prior to bringing the action and that he and the appellee were residents of a state other than the State of Florida. The motion further set forth that the court lacked jurisdiction by reason of certain prior proceedings had between the parties in the Common Pleas Court of Cuyahoga County, Ohio. The motion was brought on for hearing before the court, after due notice, on December 12, 1956, and during the hearing the court permitted the introduction in evidence of certain exemplified copies of the record of proceedings in the Ohio court over the objection of the appellant’s counsel. After considering the documents submitted in evidence, the motion to dismiss filed by the appellee, and argument of counsel for the respective parties, the court entered its final decree on December 17, 1956, dismissing the cause upon the authority of Carducci v. Carducci, Fla. 1955, 82 So.2d 360.

The appellee, through her attorneys, upon the conclusion of the argument on the motion to dismiss, orally moved the court for attorneys’ fees, court costs and suit money. Later, on December 27, 1956, after the entry of the final decree which failed to provide for the requested costs and fees, the appellee filed written petition for rehearing on that question and the same was denied.

The appellant has assigned numerous errors of the lower court upon which he relies for reversal, but we consider the primary question to be whether or not the lower court was in error in entering a final decree, dismissing the complaint with prejudice, based upon a motion to dismiss, which raised the affirmative defense of res judicata and/or estoppel by judgment. The appellee has filed cross-assignments alleging error on the part of the lower court in failing to award her attorneys’ fees and costs. The question posed by the appellant, we conclude, should be answered in the affirmative, and that of the appellee in the negative.

The chancellor below, in granting the appellee’s motion to dismiss, applied the doctrine of res judicata and/or estoppel by judgment to the cqmplaint upon the authority of Carducci v. Carducci, supra. In the Carducci case, the appellee wife not only filed a motion to dismiss and an answer, but filed a cross-claim for alimony unconnected with divorce, setting up as an affirmative defense, res judicata and estoppel by judgment, arising out of prior proceedings in a Massachusetts court between the parties. In the case at bar, only a motion to dismiss was filed which set up, among other defenses, an affirmative defense of res judicata and/or estop-pel by judgment by reason of certain prior proceedings had between the parties in the State of Ohio. Rule 1.11(b), Florida Rules of Civil Procedure, 30 F.S.A., enumerates the specific grounds upon which a motion to dismiss will lie, none of which include estoppel by judgment and/or res judicata. Rule 1.8(d), Florida Rules of Civil Procedure, provides:

“Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption .of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”

Prior to the modern rules of civil procedure, a general demurrer served a similar office to that of a motion to dismiss, in that its primary purpose was to test the legal sufficiency of an opponent’s pleading before being required to make a responsive pleading thereto. Like the general demurrer, the motion to dismiss accepts as true those matters well pleaded in the complaint and points out wherein the complaint is legally deficient or has failed to state a cause of action. To supplement a complaint with additional facts, by way of motion to dismiss, in order to render the complaint legally insufficient, is a practice that is not authorized by the rules. The motion to dismiss certainly could not operate in this instance as a substitute for a motion for summary decree because to do so would deny the opposing party the benefit of notice and opportunity to reply provided for by the summary decree rule if not in effect denying him due process. See Rule 1.36, Florida Rules of Civil Procedure.

It is apparent, therefore, that the appellant was not put on notice that he would be called upon at the hearing before the court on the appellee’s motion to dismiss, to defend against the introduction of evidence to establish an affirmative defense.

Whether in the final analysis the lower court may have arrived at the correct solution is immaterial to a decision of the question raised, inasmuch as the method by which the court undertook to decide the case on the affirmative issue of res judicata and/or estoppel by judgment, deprived the appellant of the opportunity of presenting such evidence and testimony as he could to rebut the appellee’s affirmative defenses.

As we stated at the outset, the primary question was a determination of whether or not error was committed in entering the final decree on the appellee’s motion to dismiss, and having concluded that such was error, no useful purpose could be served by a discussion of the other issues raised by the appellant’s assignments of error.

The appellee’s contention that the lower court was in error in failing to award attorneys’ fees after the conclusion of the case on the granting of the appel-lee’s motion to dismiss, is without merit. The award of attorneys’ fees is discretionary with the lower court under the provisions of Sec. 65.07 and Sec. 65.08, Fla.Stat., F.S.A. It was the appellee’s burden to point out in what respects the lower court abused its discretion, and failing to do so, we must conclude that the court did not abuse its discretion.

In view of the opinions expressed herein, the final decree appealed from is reversed, and the .order of the lower court denying the appellee attorneys’ fees and costs is affirmed.

Affirmed in part and reversed in part.

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

       For court of appeals opinion see Stone v. Stone, 98 Ohio App. 240, 122 N.E.2d 404.


author: CARROLL, CHAS., Chief Judge.

text:
    Joseph HOFFMAN, Appellant, v. Martin BARLLY and Pan American Wholesale Distributors, Inc., a Florida corporation, Appellees.
    No. 57-111.
    District Court of Appeal of Florida. Third District.
    Oct. 10, 1957.
    Dubbin, Blatt & Schiff, Miami, for appellant.
    Joseph Pardo, Miami, for appellees.
   CARROLL, CHAS., Chief Judge.

Appellant, who was the plaintiff in the lower court, has appealed from a final decree rendered in an equity suit for dissolution of a corporation and accounting.

A receiver was appointed and an injunction granted. Later the receiver was discharged and the injunction dissolved.

The defendants answered, and counterclaimed for an accounting and to recover defendants’ attorney fees for wrongful issuance of the order appointing the receiver and granting the injunction.

The final decree denied relief to the plaintiff, dismissed his suit, and charged certain costs against him. On the counterclaim, the decree allowed and taxed defendants’ attorney fees, saying defendants “are awarded the fees of their counsel of record now taxed in the amount of Twenty Five Hundred Dollars, and their expenses herein incurred and now taxed in the amount of Five Hundred Twenty ($520.00) Dollars, and the plaintiff and counterde-fendant, Joseph Hoffman, is directed to pay said monies to the counterclaimants’ counsel of record forthwith; * * *” and the decree then made the attorney’s fees and expenses a lien on the plaintiff’s interest in the corporation.

Having heard argument and examined the record with reference to the assignments of error, we are of the view that they are without merit except as to the taxing of attorney’s fees and charging them against the plaintiff.

There was no agreement or statute to support an allowance or taxing of attorneys’ fees.

In Brite v. Orange Belt Securities Co., 133 Fla. 266, 182 So. 892, 895, the Supreme Court said:

“Attorney’s fees can not be charged, as a general rule, in the absence of statutory authority, unless the defendant is bound for their payment by contract. As stated in 15 C.J. 114:
“ ‘The general rule requires each party to the litigation to pay his own counsel fees. Attorney’s fees are not allowable in the absence of a statute or in the absence of some agreement or stipulation specially authorizing the allowance thereof, and it has been held that the rule applies equally in Courts of Law and in Courts of Equity.’ ”

See, also, Gregory v. Woodbery, 53 Fla. 566, 43 So. 504; Bass v. Alderman, 82 Fla. 490, 90 So. 378; State ex rel. Royal Ins. Co. v. Barrs, 87 Fla. 168, 99 So. 668; Webb v. Scott, 129 Fla. Ill, 176 So. 442; Dorner v. Red Top Cab & Baggage Co., 160 Fla. 882, 37 So.2d 160; and Phoenix Indemnity Co. v. Union Finance Co., Fla.1951, 54 So.2d 188.

Accordingly, the decree is affirmed except as to paragraphs numbered four and five thereof assessing and taxing defendants’ attorney fees against the plaintiff-appellant, as to which the decree is reversed.

Affirmed in part and reversed in part.

HORTON and PEARSON, JJ., concur.

      . Section 64.16, Fla.Stat., F.S.A., allowing a court to assess defendant’s damages (which would include attorney’s fees) under an injunction bond in the main suit, upon dissolution, was not applicable here. The injunction was issued July 6, 1956, without notice and without requiring bond. Bond was moved for and ordered August 6. The bond was not filed, and for that reason the injunction was dissolved August 8.

      . Assessing attorney’s fees under Section 64.16, id., is not contrary to the rale announced in this opinion, because such an allowance under that statute is based on a contract obligation of a bond.


author: TAYLOR, Associate Judge.

text:
    Prentiss T. PARRISH, Appellant, v. STATE of Florida, Appellee.
    No. A-7.
    District Court of Appeal of Florida. First District.
    Oct. 15, 1957.
    Rehearing Denied Oct'. 30, 1957.

      Carlton L. Welch, Jacksonville, for appellant.
    Richard W. Ervin, Atty-. Gen., for appel-lee.
   TAYLOR, Associate Judge.

The appellant, Prentiss T. Parrish, was charged by indictment with murder in the first degree, tried by a jury and found guilty of murder in the second degree and sentenced accordingly. He has appealed-.

The first question requiring consideration is the sufficiency of the evidence to support the verdict of the jury. It,is not the function of an appellate court -to re-try the case or to substitute its judgment for that of the jury. But if the evidence is wholly insufficient to justify, a verdict of guilt, or if the facts established by the evidence do not constitute the offense of which the defendant stands convicted it is the duty of the appellate court to so declare and to reverse a judgment of guilt based upon such verdict. In performing this function the appellate court in order to give the proper weight to a jury verdict approved by the trial court must assume that the jury believed that credible testimony most damaging to the defendant and drew from the facts established those reasonable conclusions most unfavorable to the defendant.

Applying this rule we find that the jury in this case was justified in finding that the deceased was the former wife of the appellant who had divorced him because of extreme cruelty including brutal physical violence; that the appellant had stated in most solemn terms that if he could not “have” deceased no one else would, that deceased had married another man, that appellant had told deceased “if you stay in Jacksonville I am going to kill you”; that in the City of Jacksonville in the early hours of the morning of September 22, 1955, appellant was one of four men riding in a car driven by Edward W. Ramsey who was taking instructions from defendant; that appellant was looking for deceased as she left her place of employment about 12:30 A.M.; that a few blocks from the place of deceased’s employment they located deceased and another young lady riding in deceased’s car and began to pursue them; that deceased attempted to flee by increasing the speed of her car but still retaining some regard for traffic regulations but this proved inadequate; Ramsey maneuvered his car in front of deceased’s car forcing her to stop at a point where another car was immediately behind deceased making it impossible for her to get away; appellant left the car in which he was riding and approached deceased who had closed the window and locked the door of her car; deceased cried, “Oh! My God! There is Theo, he is going to kill me”; defendant having tried unsuccessfully to open the door of deceased’s car began striking the glass of the window with a bayonet, with which he was then armed, with such force that shattered glass was hurled across deceased and upon the other young lady who was on the opposite side of the car; this young lady opened the door on her side of the car and both the girls attempted to escape in that way; appellant then came around the car and while the first young lady escaped deceased was unable to do so, but the car behind having moved the deceased managed to get back under the wheel, evade the car in which appellant had been riding and renew her flight alone; appellant hurriedly reentered the car in which he had been riding and instructed Ramsey to give chase still holding the bayonet and refusing to surrender it to one of the other occupants of the car; during this pursuit Ramsey’s car reached a speed of 70 miles per hour; appellant gave Ramsey instructions to “catch her and run into her if you have to but stop her, block her off”; Ramsey finally passed deceased again but deceased cut sharply to her left and entered another street; Ramsey turned his car so quickly that he ran upon the curb and began still further pursuit of deceased. Under these conditions deceased disregarded a stop sign and drove at a high rate of speed into a through street and in doing so ran into another car being operated in a lawful manner upon that street and in this accident received injuries of which she died within a few hours. The degree of the deceased’s fear of appellant and her state of terror during her flight from him is demonstrated by the fact that immediately after the accident in which she had received the wounds of which she shortly died she cried to strangers, “Don’t let them cut me. Don’t let them cut me”.

The appellant urges that this state of facts is insufficient to justify a conclusion of guilt of murder in the second degree. Murder in the second degree is the killing of a human being “when perpetrated by any act imminently dangerous to another, and evincing a depraved mind regardless of human life.” Section 782.04, F.S.A.

As used in the statute the word “act” is not limited to a single muscular movement but includes a series of related actions arising from and performed pursuant to a single design or purpose. The acts performed by the driver of the car in which defendant was riding pursuant to instructions from defendant and in carrying out the design and purpose of the defendant are as much the acts of defendant as though he performed them himself. It is immaterial to defendant’s guilt whether this driver was a confederate or, as he testified, acted in the beginning without knowledge of any wrongful intent on the part of defendant and later (after the incident which occurred when the cars first stopped) in fear of the defendant. The jury was clearly justified in finding that the driver was the tool of defendant acting under his instructions and carrying out his purposes. His acts were, therefore, in law, the acts of the defendant.

Was this course of conduct imminently dangerous to another? Did it evince a depraved mind regardless of human life? The jury was justified in answering these questions in the affirmative. To place a young woman alone in a car at night in mortal fear of her life by the means and under the circumstances above described (and more elaborately detailed in the testimony) and to pursue her through the streets of the City of Jacksonville at a speed of 60 to 70 miles an hour obviously creates a condition imminently dangerous to her as well as to others who may be lawfully using the streets. The court would be blind to the realities of life if it held that the events narrated could not be properly found by a jury to evince a depraved mind regardless of human life. Thus the acts of the defendant come within the statutory definition of murder in the second degree.

But appellant argues that he is not criminally responsible for the homicide because the deceased died as a result of her own act in driving at a high rate of speed into a through street' and striking another car. The trial court correctly stated the law on this subject in his charge to the jury as follows:

“ * * * a person who by actual assault or threat of violence causes another person to do an act resulting in physical or corporal injury causing such other person’s death is criminally responsible for the homicide. However, to render a person criminally responsible for the death of another under such circumstances, it must appear beyond and to the exclusion of every reasonable doubt (1) that the act or acts done by the deceased to avoid the danger brought about and caused by the defendant were such as a reasonable person would have taken under the circumstances, although it need not appear that there was no other way of avoiding the danger or escaping therefrom, (2) that the apprehension on the part of the deceased was of immediate danger of suffering death or great bodily harm, (3) that the apprehension on the part of the deceased of suffering death or great bodily harm was reasonable and well-grounded and (4) that the injuries received by the deceased which produced death were the natural and probable consequences of the acts of the defendant. In such cases, the defendant’s responsibility or justification for such homicide is measured and determined by what would have been the case had the defendant killed such person at the time and place and under the circumstances of the original assault or threat of violence.”

This charge is amply supported by the authority. See Letner v. State, 156 Tenn. 68, 299 S.W. 1049, 55 A.L.R. 915; Whiteside v. State, 115 Tex.Cr.R. 274, 29 S.W. 2d 399; Commonwealth v. Dorazio, 365 Pa. 291, 74 A.2d 125; Sanders v. Commonwealth, 244 Ky. 77, 50 S.W.2d 37; Whaley v. State, 157 Fla. 593, 26 So.2d 656.

We have carefully examined the instructions given the jury and find them to be a full, fair, complete and correct statement of the law applicable to this case.

Appellant also complains of alleged ill effects upon the jury of a verbal exchange which occurred during the final argument of the case between the attorney for the appellant and the state’s attorney. This altercation was precipitated by appellant’s attorney. It was not of sufficient importance to justify a mistrial. No mistrial was then requested. Under these circumstances no error on the part of the trial court is made to appear.

The judgment appealed from is affirmed.

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


author: PER CURIAM.

text:
    Frank BUCHERT and Mae L. Buchert, Husband and Wife, Petitioners, v. Myrtle Bryan CHILES and James T. Chiles, Husband and Wife; and Max Gross, Respondents.
    No. 46.
    District Court of Appeal of Florida. Second District.
    Sept. 25, 1957.
    Richard M. Sauls and George L. Pallotto, Hollywood, for petitioners.
    Thomas A. Thomas, Miami, for respondents.
   PER CURIAM.

Petition denied.

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


text:
    Edna DELMOOR and her Husband, Egerton Delmoor, Appellants, v. Ralph LAZZARA, Doing Business as Lazzara’s Courtesy Market, Appellee.
    No. 82.
    District Court of Appeal of Florida. Second District.
    Sept. 27, 1957.
    Cooper, Cooper & Killian, Tampa, for appellants.
    Mabry, Reaves, Carlton, Fields & Ward, Tampa, for appellee.
   PER CURIAM.

Affirmed.

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


text:
    FIRST NATIONAL BANK OF LEESBURG, Leesburg, Florida, as Administrator of the Estate of James H. Cunningham, and Aquila Construction Company, a Florida Corporation, Appellants, v. William RICE and Mayme Rice, his wife, Appellees.
    No. 57-99.
    District Court of Appeal of Florida. Third District.
    Oct. 8, 1957.
    Evans, Mershon, Sawyer, Johnston & Simmons, Miami, and John F. Cherry, Lees-burg, for appellants.
    Roy L. Struble and Anderson & Nadeau, Miami, for appellees.
   PER CURIAM.

Affirmed.

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


author: FOURNET, Chief Justice.

text:
    233 La. 544
    Marion Palmer LARKIN et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 43356.
    Supreme Court of Louisiana.
    June 28, 1957.
    Rehearing Denied Oct. 8, 1957.
    Hynes, Mathews & Lane, Baton Rouge, for defendant-appellant.

      Steve A. Alford, Jr., Watson, Blanche, Wilson, Posner & Thibaut, Baton Rouge, for plaintiffs-appellees.
   FOURNET, Chief Justice.

This suit was instituted by survivors of Charles Ray Draper against the State Farm Mutual Automobile Insurance Company, the public liability insurer of Carl S. Swilley, in whose automobile Draper met his death on or about May 27, 1954, the allegations of the petition being that Draper was riding as a guest passenger in the car which was being driven by Swilley on U.S. Highway 61 when an accident occurred; that on the following morning the said automobile was found completely submerged in water in a canal paralleling the highway, both occupants being dead at the time of discovery, and “That petitioners are without information regarding the actual happening of the accident, but the circumstances surrounding the discovery of the vehicle and its deceased occupants indicate that said accident and the resulting death of Charles Ray Draper were proximately caused solely and exclusively by the negligent and reckless operation of said vehicle by Carl S. Swilley, and that the accident would not have occurred in the absence of his negligence and recklessness; that therefore the doctrine of res ipsa loquitur is applicable and the burden is upon the defendant to prove that the said Carl S. Swilley was free from negligence.” The defendant in answer categorically denied all material allegations, with an alternative plea of contributory negligence, assuming Draper to have been driving, or, in the further alternative, should it be established that Swilley was the driver, then that Draper acquiesced in the manner in which the car was being driven and assumed the risk incidental to the trip. Following trial on the merits there was judgment for the plaintiffs to the limit of liability under the policy ($10,000), the trial judge having found from the evidence that Swilley was driving the car, that a prima facie case of negligence and want of ordinary care was made out, and that “the doctrine of res ipsa loquitur clearly applied.” The case is now before us on a writ of certiorari to review the judgment of the Court of Appeal, which affirmed the district court. See 91 So.2d 94.

The known facts are that early on the morning of May 27, 1954, passing motorists on Highway 61 (known as the Airline Highway, and connecting Baton Rouge and New Orleans) reported to police that an automobile was resting on its top, submerged in a canal adjacent to the highway near Sorrento, with only the wheels visible above the water. When the car had been righted and pulled from the canal the bodies of two men were discovered inside and were later identified as those of Swil-ley and Draper; Swilley’s body was in a seated position under the steering wheel and that of Draper was “crumpled up” under the dashboard in front of the adjoining seat. It was found that their wrist watches had stopped shortly after 2:30 a. m., and that death had been caused by drowning. Both men lived in Baton Rouge, worked as salesmen-collectors for the same mercantile company, and were often together on business and pleasure; but their whereabouts between 5:30 p. m. the previous day and the time of the accident is unexplained and unknown. The Airline Highway then consisted of only two concrete lanes, one for northbound and one for southbound traffic, but preparations were underway to construct two additional lanes destined to handle southbound vehicles and dirt for that project had been dumped alongside the west side of the highway for the roadbed base. Some rain had fallen that night and the dirt shoulders were soft and muddy. There were no witnesses to the accident, but tire tracks at the scene showed that Swilley’s car, traveling toward New Orleans, had run off the concrete onto the west (its right hand) shoulder, had traveled southward along that shoulder for a distance of 118 feet, both wheels being off the highway; had got back on the concrete and at a 45° angle had proceeded to the opposite side and onto the other shoulder — from which it had apparently flipped over into the canal, its front end pointing back toward the highway.

Counsel for defendant argue here that the ruling of the lower courts — i. e., the mere fact of the car leaving the highway while under the complete dominion and control of defendant’s assured created a prima facie case for plaintiffs and, under the rule “res ipsa loquitur,” shifted to defendant the burden of proving its insured free of negligence — points up an irreconcilable conflict among two lines of Louisiana cases, and that the weight of better authority holds the doctrine inapplicable in guest passenger cases where, as here, the accident could have been caused by the fault of a third party. Plaintiffs’ counsel, on the other hand, submitting that the lower courts correctly found from the facts that Swilley was the driver of the car, contend that an automobile carefully operated will, under ordinary circumstances, remain on the traveled portion of the highway, and that when a car is found to have followed the pattern here shown the inference may be drawn of negligent operation.

A determination of a proper instance for application of the principle of res ipsa loquitur has been the subject of volumes of discussion by learned jurists and legal scholars, who have been at pains to point out that the maxim means only that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that the rule rests for its justification upon the common experience that accidents from such causes do not commonly occur in the absence of negligence; and that it is the lack of direct evidence indicating negligence on the part of the defendant as the responsible human cause of a particular accident which actually furnishes the occasion and necessity for invoking the rule in its strict and distinctive sense. It is generally conceded that res ipsa loquitur in no way modifies the rule that negligence will not be presumed. The application of the rule does not, therefore, dispense with the necessity that the plaintiff prove negligence, but is simply a step in the process of such proof, permitting the plaintiff, in a proper case, to place in the scales, along with proof of the accident and enough of the attending circumstances to invoke the rule, an inference of negligence, thereby obtaining an advantage and placing on the defendant the burden of going forward with proof to offset that advantage. When all the evidence is in, the question is still whether the preponderance is with the plaintiff. All that is meant by res ipsa loquitur is “that the circumstances involved in or connected with an accident are of such an unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the accident was due to the negligence of the one having control of the thing which caused the injury. This inference is not drawn merely because the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that, unless an explanation can be given, the only fair and reasonable conclusion is that the accident was due to some omission of the defendant’s duty.”

Many instances are noted where the doctrine, though invoked, has no application; e. g., it is obvious that when there is, in addition to evidence disclosing the physical cause of the accident, either direct or circumstantial evidence which conclusively repels any inference of negligence that might otherwise arise, the plaintiff is deprived of any practical advantage from the rule. Nor is a resort to res ipsa loquitur warranted'in cases where the existence of negligence is an immaterial issue, such as cases dealing with food and drink for human consumption, since the manufacturer insured his product to be free from taint or injurious substances; or where the opposing parties or their witnesses are present and direct testimony as to the cause of the accident is available; and an accident due to a collision between two private vehicles is not, in the absence of further proof, a proper occasion for application of the rule, since it is improper to assume that one driver, rather than the other, was negligent, or to ignore the fact that the collision might have been caused by factors outside the control of either. It necessarily follows that the maxim is not appropriate where, from the nature of the facts, it is reasonable to assume that the actions of the defendant may have been caused by the negligence of another. In the case of Morales v. Employers’ Liability Assur. Corp., 202 La. 755, 12 So.2d 804, this Court aptly stated: “It is the duty of the plaintiff to prove negligence affirmatively; and, while the inference allowed by the rule of res ipsa loquitur constitutes such proof, it is only where the circumstances leave no room for a different presumption that the rule applies. When it is shown that the accident might have happened as the result of one of two causes, the reason for the rule fails and it can not be invoked.” 202 La. at page 769, 12 So.2d at page 808.

In the instant case, the evidence warranted the finding that Swilley was driving his car when the accident took place. However, there is nothing to show what caused his car to leave the pavement; it may have been forced off the narrow highway by oncoming traffic, or by a skidding motorist alongside, and the fact of his having driven onto the adjoining shoulder does not of itself warrant an inference of negligence since it does not exclude other reasonable hypotheses consistent with proper driving on Swilley’s part. It occurs to us that the very fact that all four wheels of the car were off the highway is a circumstance from which it would be fair to infer that a car approaching in Swilley’s lane of traffic forced him completely off the pavement as an alternative to a collision. Nor can we agree with our learned brothers of the Court of Appeal, who thought that the most plausible explanation of the car having traveled 118 feet on the shoulder then swerved diagonally across the road, was that the driver was going too fast or that he did not have his car under proper control. The record contains nothing to indicate the speed of the car, but a distance of 118 feet on the shoulder is not inconsistent with prudent driving — which dictates that when a car has left the paved highway it is better practice not to try to immediately regain the pavement, but to travel along the shoulder until it is felt safe to attempt the maneuver. The evidence does disclose that Swilley’s tire tracks in the soft mud of the shoulder were three or four inches deep; he necessarily had to insure sufficient momentum to lift the car from the shoulder over the edge of the concrete slab so as to regain the pavement; a wheel may have locked with the edge, and the additional power applied to free the wheel may have caused the car to leap forward so that Swilley lost control — yet those acts cannot be branded as negligence since a prudent and careful driver would very possibly have acted in the same manner under like circumstances. No causal connection between the accident and some phase of negligent operation of the car has been shown, and it is our opinion that when all the facts are considered, this case is not one in which the doctrine of res ipsa loquitur is applicable.

For the reasons assigned, the judgments of the district court and of the Court of Appeal are annulled and set aside, and it is now ordered that the suit be dismissed at plaintiffs’ cost.

      . These survivors are his widow, Mary Elizabeth Draper, and two minors by a previous marriage, Charles Ray Draper, Jr., and Carolyn Draper, represented by their mother, Marion Palmer Larkin, to whom letters of Guardianship have been duly Issued by the Probate Court of Alabama.

      . By amended petition, in the alternative to their allegation that the doctrine of res ipsa loquitur is applicable, plaintiffs alleged specific acts of negligence and carelessness on the part of Carl g. Swil-ley in the operation of the automobile, these being excessive speed and failure to keep the car under control.

      . These facts were, aside from the position of Swilley’s body in the car, that Swilley, according to his wife’s testimony, was driving when he left home the previous afternoon at 5:30 p. m.; that he always drove his own car; and that only once, some five years prior to the accident, had she seen Draper drive her husband’s automobile.

      . Annotation, 53 A.L.R. Res Ipsa Loquitur —Nature, 1494, at page 1499; see, also, Annotation, 59 A.L.R. beginning at page 486 ; 22 A.L.R. Annotation at page 1471 et seq.; 38 Am.Jux-. 933, Yerbo Negligence, Sec. 290; Idem. 989, sec. 295 et seq.

      . Doyle v. Fuerst & Kramer, 129 La. 838, 56 So. 908, 40 L.R.A.,N.S., 480; Hill v. Louisiana Coca-Cola Bottling Co., La. App., 170 So. 45; McLehan v. Loft Candy Stores, La.App., 172 So. 367; Kelly v. Ouachita Dairy Dealers Cooperative Ass’n, La.App., 175 So. 499; Ogden v. Rosendale Inn, La.App., 189 So. 162; Dye v. American Beverage Co., La.App., 194 So. 438; Hollis v. Ouachita Coca-Cola Bottling Co., La.App., 196 So. 376; Malone, Res Ipsa Loquitur and Proof by Inference, 4 La.L.Rev. 70, 97-98.

      . Hamburger v. Katz, 10 La.App. 215, 120 So. 391; Monkhouse v. Johns, La. App., 142 So. 347; Goner v. Anding, La. App., 146 So. 704; Dunaway v. Maroun, La.App., 178 So. 710; Levy v. Indemnity Ins. Co. of North America, La.App., 8 So. 2d 774; Storey v. Parker, La.App., 13 So. 2d 88; Bourg v. Aetna Casualty & Surety Co., La.App., 77 So.2d 131; Blashfield Cyclopedia of Automobile Law and Practice, Sec. 6046.

      . Malone, Res Ipsa Loquitur and Proof by Inference, op. cit. supra note 5, at 104; Dunaway v. Maroun, La.App., 178 So. 710.

      . Blashfield, Cyclopedia of Automobile Law and Practice, Sec. 6046; Malone, Res Ipsa Loquitur and Proof by Inference, op. cit. supra note 5, at p. 105; Dunaway v. Maroun, La.App., 178 So. 710; Brown v. Klein, 230 App.Div. 681, 245 N.Y.S. 654. See, also, Dorman v. T. Smith & Son, 223 La. 29, 64 So.2d 833.


author: McCALEB, Justice.

text:
    233 La. 556
    STATE of Louisiana v. Dalton LABORDE.
    No. 43493.
    Supreme Court of Louisiana.
    June 28, 1957.
    Rehearing Denied Oct. 8, 1957.

      Gravel, Humphries, Sheffield & Mansour, Alexandria, for relator.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Charles A. Riddle, Jr., Dist. Atty., Marksville, for respondent.
   McCALEB, Justice.

Relator was charged by a bill of information filed on the criminal docket (No.18,-984) of the Twelfth Judicial District Court for the Parish of Avoyelles with having violated Article 81 of the Criminal Code (R.S. 14:81) entitled “Indecent behavior with juveniles” in that he, being over the age of 17 years, did commit a lewd and lascivious act upon the person of a female over 12 but under age 17 with the intention of gratifying the sexual desires of said female. After a trial at which 25 bills of exceptions were reserved, relator was found guilty as charged and sentenced to pay a fine of $200 and to serve 4 months in the parish jail. Having no right of appeal from the conviction and sentence under Section 10 of Article 7 of the Constitution, relator applied to this Court for remedial writs.

In his application for writs relator contended, among other things, that the crime with which he was charged was triable only in the Juvenile Court and that the Twelfth Judicial District Court, sitting as a criminal division of the district court, was without jurisdiction of the case. As this claim appeared to be well founded, we granted a writ of certiorari and the case has been submitted on this writ for our determination. The question of the jurisdiction of the trial court stands at the threshold of the case and we direct our immediate attention to a consideration of it.

A prosecution for a violation of R.S. 14:81, defining and denouncing the crime of indecent behavior with juveniles, is cognizable only in the Juvenile Court. Section 52 of Article 7 of the Constitution, which establishes the Juvenile Courts in all parishes except Orleans and Caddo parishes, declares in part:

“The said Courts shall have jurisdiction * * * of the trial of all persons charged with the violation of any law now in existence or hereafter enacted for the protection of the physical, moral or mental well-being of children under seventeen years of age, not punishable by death or hard labor. * * * ”.

Since R.S. 14:81 was unquestionably enacted for the protection of the physical and moral well-being of children and since it is a misdemeanor in that it does not provide for a death penalty or imprisonment at hard labor (see R.S. 14:2), it is clear that only the Juvenile Court of Avoyelles Parish had jurisdiction of the case and that the judge, sitting as a district court, was without jurisdiction ratione materiae to try relator for the offense charged. See State v. Alford, 206 La. 100, 18 So.2d 666 and State v. Smith, 210 La. 581, 27 So.2d 359.

The district attorney apparently concedes that the trial court, sitting as a criminal district court, was without jurisdiction but he asserts that, since the district judge of the Twelfth Judicial District is ex-officio the juvenile judge, there is in reality no separate juvenile court; that, therefore, relator has not been prejudiced in any respect and that no useful purpose would be gained by reversing the conviction as relator would be tried before the same judge who would simply sitias a juvenile judge.

This argument is specious for, while it appears to furnish practical grounds to support its conclusion, it is legally unsound in view of the mandatory provisions of law, enacted pursuant to the authority given the Legislature by Section 52 of Article 7 of the Constitution, under which the juvenile courts function.

By Act 82 of 1950 the Legislature substituted a new Chapter 6 of Title 13 of the Revised Statutes (R.S. 13:1561-1592) reenacting a general law governing all juvenile courts in the State. That law provides that, when the district judge is serving as judge of the Juvenile Court for any parish in his district, he shall be known as the judge of the Juvenile Court of such parish and all official acts performed by him shall be acts of the Juvenile Court of such parish (see R.S. 13:1562); that said juvenile courts shall be in continuous session and “All sessions of said courts shall be held separate and apart from the sessions of all other courts * * * ” (see R.S. 13:1584); that the court shall make and keep records of all cases brought before it (see R.S. 13:1586) and that the judge of the court may employ such stenographic, secretarial and other personnel as may be deemed necessary to make the functions of. the court effective and provide adequate services (see R.S. 13:1587).

Thus it is seen that, although the judge of the district court is ex-officio judge of the juvenile court, the court itself is distinct and functions separately and apart from the district court. Accordingly, when he is sitting as a district judge in sessions of the district court, the judge cannot entertain jurisdiction of cases cognizable in« the juvenile court. State v. Kiffe, 210 La. 863, 28 So.2d 459. See State v. Hilaire, 216 La. 972, 45 So.2d 360 and compare State v. Tanner, 224 La. 374, 69 So.2d 505.

The District Attorney also contends that, since defense counsel (although they filed motions to quash, in arrest of judgment and other multifarious objections in the court below) did not question the court’s jurisdiction as a district court, it is too late to raise its lack of jurisdiction for the first time in the application for writs and that, under these conditions, it is proper to conclude that relator has waived the right to demand that he be tried before the juvenile court.

There is no merit in this argument. Jurisdiction of a court, ratione materiae, is not subject to waiver and the lack thereof may be pleaded at any stage of the proceedings, even in the appellate tribunal. See 14 Am.Jur. Section 214, page 917; State v. Foss, 158 La. 471, 104 So. 211; State v. Porter, 176 La. 673, 146 So. 465 and State v. Smith, 194 La. 1015, 195 So. 523.

In re Sherill, 204 La. 1096, 16 So. 2d 885 and the cases cited therein are not authority for the District Attorney’s position that relator’s failure to raise the jurisdictional question in the trial court bars him from now doing so. The Sherill case merely follows the rule, long established in our jurisprudence, that this Court will not issue a writ to a trial court, prohibiting further proceedings in a case for alleged want of jurisdiction, until a plea to the jurisdiction has been presented to and overruled by that court. The reason for that rule is that this Court will not exercise supervisory jurisdiction unless there has been an adverse ruling of the inferior court, upon which the application for writs is founded. Here, however, the matter is before us on a writ of certiorari to review the proceedings below, which is the same as though the case had been brought up on appeal, and any error patent on the face of the record may be considered and determined by this Court even though it was not submitted to and passed up on by the trial judge. See Article 558 of the Code of Criminal Procedure (R.S. 15:558).

Inasmuch as we find that the Twelfth Judicial District Court was without jurisdiction of the case, it is not necessary to consider the other grounds raised by relator for a reversal of his conviction.

For the foregoing reasons, the conviction and sentence are annulled and the proceedings against relator, which have been filed on the criminal docket of the Twelfth Judicial District Court, are dismissed; all without prejudice to the right of the State to bring further proceedings not inconsistent with the views herein expressed.

      . It provides: “The appellate jurisdiction of the Supreme Court shall also extend to criminal cases on questions of law-alone, whenever the penalty of death or imprisonment at hard labor may be imposed; or where a fine exceeding three hundred dollars or imprisonment exceeding six months has been actually imposed.”

      . The Legislature has, in R.S. 13:1570, substantially tracked the above quoted constitutional provision.

      . It provides in part: “The Legislature shall have power to regulate the manner of conducting all proceedings in said Juvenile Courts and appeals from all final judgments, and the number and duties of the officers thereof and all other matters pertaining thereto, and shall provide for the payment of the expenses of said Courts in any manner it shall see fit.