text:
    Lucille CHAVIS, Appellant, v. CITIZENS FEDERAL SAVINGS & LOAN ASSOCIATION OF HIALEAH, a United States banking corporation, and David Lewis, Appellees.
    Supreme Court of Florida, Division B.
    June 5, 1957.
    Rayman & Duhig, Miami, for appellant.
    Pallot, Cassel & Marks, Miami, for Citizens Federal Savings & Loan Assn, of Hialeah.
    Alfred D. Bieley, Miami, for David Lewis.
   PER CURIAM.

Affirmed on authority of Voss v. Forgue, Fla.1956, 84 So.2d 563, without prejudice to any right which appellant might have for damages or mesne profits, or both, arising from the unauthorized occupancy of her property.

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


source: Caselaw Access Project

author: THORNAL, Justice.

license: Public Domain

text:
    FLORIDA FUEL OIL, Inc., a Florida corporation, Appellant, v. SPRINGS VILLAS, Inc., a Florida corporation, Appellee.
    Supreme Court of Florida, Division A.
    June 5, 1957.

      Hendricks & Hendricks, Miami, for appellant.
    George C. McCaugham, Miami, for ap-pellee.
   THORNAL, Justice.

Appellant, Florida Fuel Oil, Inc., seeks reversal of a final order of the Circuit Judge sustaining a motion to dismiss with prejudice its counterclaim by which it sought to add certain third parties to a law action.

The point involved is whether, under the circumstances reflected by this record, 30 F.S.A. Rule 1.13(8), Florida Rules of Civil Procedure permits the counterclaim here asserted against third persons who were not parties to the original suit.

Springs Villas, Inc. was the original plaintiff. It filed a complaint against Florida Fuel Oil, Inc. in three counts. In one count it is alleged that Florida Fuel Oil contracted with Springs Villas to furnish and install an air conditioning and heating unit according to certain plans and specifications. In this count it alleged that appellant failed to install the system in accordance with the plans and specifications. By the second count it was alleged that appellant was negligent in the installation. By the third count it was alleged that the appellant breached its contract guaranteeing the materials and services for one year after the installation.

By pleading designated “counterclaim” appellant, Florida Fuel Oil, sought to bring into the case cross-defendants Petersen and Shuflin. By the “counterclaim” appellant alleged that Petersen and Shuflin were the architects who drew the plans and by these plans specified the particular type of air conditioning equipment to be used. It is claimed that the plans were negligently and carelessly drawn and appellant, Florida Fuel Oil, Inc., relied upon them. The air conditioning contractor by the counterclaim asked for a judgment against the architects in any amount that might ultimately be entered against it in favor of the plaintiff, Springs Villas. The trial judge sustained a motion to dismiss the counterclaim and by his order dismissed the same with prejudice. Reversal of this order is sought by this appeal.

The appellant contends that if it has any liability to the owner, Springs Villas, it results from the alleged negligence of the architects drawing the plans and that Rule 1.13(8), Florida Rules of Civil Procedure permits the assertion of the claim against the architects in this proceeding so that the entire matter may be disposed of in one case.

The appellees, Petersen and Shuflin, who are the architects, contend that they owed no duty to the air conditioning contractor and further that the claim asserted against the appellant contractor by the plaintiff below is completely unrelated to the claim attempted to be asserted against them by the contractor.

Although the pleading is designated a “counterclaim”, it could be more accurately described as a cross-claim. A counterclaim is a claim asserted by a defendant against a plaintiff. A cross-claim is a claim asserted by a defendant against a co-defendant or against a third party who might properly be brought into the cause. Disregarding this technicality, however, we proceed to the merits.

Rule 1.13(8), Florida Rules of Civil Procedure reads as follows:

“When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants if jurisdiction of them can be obtained, and their joinder will not deprive the court of jurisdiction of the action.”

Appellant relies on this rule to sustain its position that the cross-claim should have been permitted. To support its contention appellant refers to Ford Motor Co. v. Milby, 4 Cir., 210 F.2d 137; and Blair v. Cleveland Twist Drill Co., 7 Cir., 197 F.2d 842. On a casual examination the cited cases might appear to lend some support to appellant’s position. A more thorough examination, however, not only reveals that the facts are distinguishable but also indicates that the decisions turn on a construction of Rule 14 of the Federal Rules of Civil Procedure, 28 U.S.C.A., which authorizes a defendant to bring into a cause any “person not a party to the action who is or may he liable to Mm for all or part of the plaintiff’s claim against him.” (Emphasis supplied.) In the Florida Rules we do not find any rule comparable or analogous to Federal Rule 14. Even if we did have such a rule, however, it could offer no comfort to the appellant in the instant case.

It will be noted that under Federal Rule 14 the cross-claim is permitted against a third party who may be liable to the cross-claimant for all or a part of the original plaintiff’s claim. No such situation could possibly exist in the case before us. The original plaintiff sued the appellant for failure to install the air conditioning unit in accordance with the plans and specifications and in the alternative for negligence in the installation, and in the further alternative for breach of contract of guaranty. It is perfectly obvious, therefore, that any alleged negligence by the architects would have no bearing whatsoever upon the air conditioning contractor’s ultimate liability to the original plaintiff on the basis of the complaint filed by the plaintiff below.

The issue tendered by the cross-claim is completely and totally immaterial and unrelated to the issues tendered by the original complaint. The very claim asserted by the appellant against the appellee-architects would in and of itself amount to a defense against the original complaint. This is not a situation where a defendant seeks to bring into the principal case one who is indemnitor against liability of the defendant to the original plaintiff. The appellant here merely sought by counterclaim to introduce in the case below a completely new, separate and totally unrelated action against third parties.

The trial judge, therefore, properly sustained the motion to dismiss the cross-claim. Although no liability by the ap-pellee-architects to the appellant-contractor is reflected by this record, it is conceivable that the appellant might in some fashion by separate suit support a claim against them. The affirmance of the judgment, therefore, shall be without prejudice to any rights which the appellant might assert against the appellee-architects by separate suit.

Affirmed.

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


author: SANDLER, Associate Justice.

text:
    Isabel M. COWEN (Papert), Appellant, v. Edward L. COWEN, Appellee.
    Supreme Court of Florida, Special Division B.
    June 5, 1957.
    Sibley & Davis and Thomas H. Bark-dull, Jr., Miami Beach, for appellant.
    Brigham, Black, Niles & Wright, Miami, for appellee.
   SANDLER, Associate Justice.

This appeal brings for review an order or decree dismissing with prejudice a bill in the nature of a bill of review filed by the appellant, plaintiff in the lower Court. By her bill the plaintiff seeks to have the Court vacate and set aside the separation agreement of the parties in the divorce case and that part of the decree of divorce which satisfies, confirms and approves the separation agreement. By the terms of this agreement, which was later incorporated in the divorce decree, the plaintiff received 100 shares of A. T. & T. common stock of the then value of $15,000 plus the sum of $100 each week for 525 weeks, the payment of which to be secured by cash or securities of the market value of $50,000 to be deposited with a national bank in the city of Miami Beach.

The reason or grounds for such relief is that the

“plaintiff avers that said separation agreement was entered into by reason of a breach of confidence on the part of her attorney and positive misrepresentation on the part of the defendant; that it is contrary to equity and good conscience for the plaintiff to be held and bound by said separation agreement under the terms and provisions , as herein averred”.

The complaint further alleges that at the time said agreement was entered into the plaintiff possessed no knowledge of the wealth of the defendant and she had no means of ascertaining the defendant’s financial status, and seeks an allowance of $500 per week.

The question involved in this appeal is whether the Chancellor, under the evir dence and the applicable law, properly dismissed the complaint with prejudice.

The parties to this proceeding were married in the city of New York on the 21st day of September, 1950, and the marriage lasted until the 16th day of July, 1953, the date of the final decree, a period of approximately two years and ten months. Immediately upon the marriage, the parties embarked on a honeymoon trip to California, which lasted three to four weeks, driving in a brand new Cadillac “presumably a wedding gift for me (plaintiff) so I was told”. During the first year of their marriage the plaintiff testified she spent about $7,500 for clothes and purchased a fur jacket for $5,000; the second year she spent about $3,000 for clothes and her husband never objected and “there was no special limit” and she could buy anything she wanted; that upon their return to Miami Beach the parties lived lavishly, giving expensive parties, one of which the plaintiff testified cost $1,500 for between 50 and 60 people; that the defendant deposited $5,000 in the bank for her account; that he had offered to set up a trust fund for her in the sum of $50,000; that at one time they contemplated the purchase of a home on Miami Beach for which the defendant offered the sum of $72,000. And it is further alleged in her complaint that the living expenses for the two of them were approximately $40,000 a year.

The record is replete with evidence of the lavish scale on which the parties lived and the items herein mentioned, though briefly, are indicative of such scale and clearly indicate the plaintiff could not help but be aware of the defendant’s financial status, that he was a man of considerable financial means, and she could not possibly have been ignorant thereof, as she alleged.

At the time of the marriage of the parties, the plaintiff was 49 years of age, had been a widow for approximately 20 years, was the mother of two adult children, and was earning as a sales woman from $125 to $150 a week, so that the plaintiff could not have been without ordinary or average business experience.

The separation agreement was entered into on the 12th day of May, 1953, the bill for divorce filed July 6, 1953, and in the meantime in the latter part of May of the same year, the plaintiff took a trip to New York where she consulted her attorney who, according to her testimony, had represented her for about 18 or 19 years, and discussed the separation agreement with this said attorney. She then returned to Miami Beach and in the company of the defendant visited an attorney who had represented her husband in some previous litigation, with all of which she was familiar, and there the parties agreed upon the divorce proceeding. She now complains that this attorney did not properly represent her, but all of the details of the divorce case were agreed upon, there was no dispute between the parties, and she was advised by the attorney that he was willing to take the representation because of the complete accord between the parties, there being nothing in dispute.

The record fails to support hei charge that she was not properly represented, that she was not fully aware of the terms of the settlement, and that she did not have full and complete opportunity to consider the terms thereof prior to the time the bill for divorce was filed. Furthermore, at the time of the hearing; before the Special Master, the plaintiff was interrogated specifically as' to the terms of the agreement, whether or not she understood it and whether or not it was her voluntary agreement, to all of which she answered in the affirmative.

The plaintiff charges that the defendant had advised her that he had suffered extreme stock market losses, which is the only evidence which might tend to support her allegation that she was unaware of the defendant’s wealth, but her testimony is that this conversation took place about eight months prior to the settlement and that their scale of living remained the same until the divorce decree was entered.

The general rule applicable to a complaint of this kind is set out in Masilotti v. Masilotti, 158 Fla. 663, 29 So.2d 872:

“In suit to set aside decree granting plaintiff’s husband a divorce and their property settlement agreement, burden was on plaintiff to establish by competent evidence husband’s alleged fraud, deceit, duress, coercion, or overreaching in obtaining settlement.”

Likewise in the case of Gross v. Gross, 154 Fla. 649, 18 So.2d 538, the Court, quoting with approval from the case of Miller v. Miller, 149 Fla. 722, 7 So.2d 9, said:

“The burden of proof under the law was on the plaintiff, Blanche H. Miller, to establish by competent evidence, fraud, deceit, duress, coercion or overreaching on the part of Raymond F. Miller when obtaining an alimony settlement with her.”

To the same effect is Adler v. Becker, 130 Fla. 330, 178 So. 117, and Webber v. Webber, 156 Fla. 396, 23 So.2d 388.

This case was heard before the trial Judge who had the opportunity of seeing and hearing the witnesses and the rule is too well established to require the citation of authorities that where the evidence is heard by the Chancellor and the witnesses are before him, the Chancellor’s findings should not be disturbed by the appellate court unless shown to be clearly erroneous. The Chancellor in his decree stated

“the testimony of the plaintiff, Isabel M. Papert, before this Court is not of such weight and credit that the Court could justly grant her the relief which she seeks”.

The plaintiff discredited her own testimony when she disclosed to the Court that on numerous instances she deliberately gave false testimony under oath in order to attain her' desired ends. The divorce decree in this case, which approved the settlement, was entered on the 6th day of July, 1953, and this appeal filed March 11, 1955, during all of which time the defendant complied with the terms of the agreement and during all of which time the plaintiff received and accepted the benefits and fruits thereof.

The decree appealed from is amply supported by the record and, being without error, it must be and is hereby

Affirmed.

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


author: O’CONNELL, Justice.

text:
    Jack MESE, Appellant, v. DADE TIRE COMPANY, a Florida corporation, Warren Ray, Inc., a Florida corporation, and Grace H. Lance, as Administratrix of the Estate of Ray O. Lance, deceased, Appellees.
    Supreme Court of Florida, Special Division B.
    June 5, 1957.
    L. J. Cushman, Miami, for appellant.
    George B. Everett, Miami, for appellees.
   O’CONNELL, Justice.

Jack Mese, appellant, was the plaintiff below and Dade Tire Company, Warren Ray, Inc., and Grace H. Lance, as ad-ministratrix of the Estate of Ray O. Lance, deceased, were defendants.

Mese alleged that when the two corporations were organized ten shares of stock in each corporation were ordered to be issued to both Mese and his ex-partner, Ray Lance. A partnership check was issued in 1947 by Mese for an amount sufficient to purchase the twenty shares in Dade Tire Company. The check on its face indicated it was for the purchase of twenty shares of stock. Stock in Warren Ray, Inc. was to be earned by services to be performed by the partnership composed of Lance and Mese.

In the latter part of 1951, Mese alleges, all the stock was issued to Lance and none to Mese. Plaintiff alleges this fact was not learned by him until after Lance’s death in 1952. In 1953 Mese instituted this suit asking that the two corporations each be required to issue him ten shares of stock and pay him accrued dividends thereon, or refund him the money he paid therefor, and that the administratrix of Lance’s estate be required to surrender for cancellation any stock certificates issued to Lance for the ten shares in each company which should have been issued to plaintiff.

At the trial plaintiff produced as exhibits stock certificates to the stock in each corporation, made out to Lance; copy of the minutes of Dade Tire Company; and a photostatic copy of the $4,000 check issued by the partnership for the stock. None of these exhibits were sent to this Court with the record of appeal.

In the original complaint, but not in the amended complaint, plaintiff alleged that Lance’s widow made some claim to his stock, saying that the minutes of the meeting of the Dade Tire Company of January 5, 1948 reflected that plaintiff Mese resigned from the corporation and that Lance agreed to purchase Mese’s stock. Plaintiff alleged, however,' that such was not the case and that the corporation had had but one meeting, the organizational meeting held in 1946. The record reflects that McLendon, officer of the corporation and witness at the trial, was presented with such minutes, signed by him, and questioned thereon but that counsel for plaintiff objected that those minutes had not been offered in evidence. The record is not clear thereafter whether such minutes were again referred to and were put into evidence. The exhibits are not before us.

McLendon testified that he knew or understood that plaintiff and Lance were to get an equal amount of stock but that the stock was issued to Lance only when he requested such and assured McLendon that he had already settled with plaintiff concerning his stock.

The trial judge, in his final decree, stated that the difficulty in the case was the credibility of the witnesses. He said that the lack of creditable records concerning the transactions and the long time involved made it impossible for the plaintiff to establish his claims. The court ruled that the plaintiff had failed to prove ownership of any stock in either corporation and decreed the ownership of the shares in question to be in Lance’s administratrix, dismissing plaintiff’s complaint.

We find very little in the record to assist us in reviewing this case. No exhibits were included therein for our perusal. We, of course, cannot question the trial court’s judging of the credibility of the witnesses and therefore have to rely . on documentary proof to overcome its decree. Having no" such proof before us, we are compelled to affirm the decree of the lower court.

TERRELL, C. J., THORNAL, J., and SANDLER, Associate Justice, concur.


author: PER CURIAM.

text:
    Larry Kendall LOWE, Appellant, v. L. O. DAVIS, Jr., as Sheriff of St. Johns County, Florida, Appellee.
    Supreme Court of Florida, Division B.
    June 5, 1957.
    Coxe & Stephens and Malcolm L. Stephens, Jr., St. Augustine, for appellant.
    Richard W. Ervin, Atty. Gen., Moie J. L. Tendrich and George R. Georgieff, Asst. Attys. Gen., for appellee.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appealed from pursuant to Rule 38 of the rules of this court, 31 F.S.A., and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument; . .

It is accordingly Ordered, Adjudged and Decreed that the motion to' affirm the judgment appealed from be, and the same is, hereby granted, and the judgment is

Affirmed.

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


text:
    Donald R. JALBERT, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, Division B.
    June 5, 1957.

      Methfessel & Willis, Miami, for appellant.
    Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.
   O’CONNELL, Justice.

Donald R. Jalbert, appellant, was defendant in the court below. In trial by the court without a jury he was adjudged guilty of breaking and entering a dwelling with intent to commit a felony, grand larceny, and sentenced to three years imprisonment.

Defendant and one John Gallagher were informed against for breaking and entering a dwelling in Dade County with intent to commit a felony, grand larceny, and in a second count for grand larceny. Both pleaded not guilty and waived trial by jury.

Gallagher later changed his plea as to the first count and pleaded guilty. Defendant Jalbert went to trial. The State announced a nolle prosequi of the second count. Upon completion of the trial, defendant Jal-bert was adjudged guilty as charged on the first count.

An accomplice, sixteen year old Daniel Diefenbach, Jr., testified that he, Gallagher and defendant Jalbert entered the dwelling and took from it a small metal tray. His testimony revealed some confusion about when the police contacted him after the burglary. He stated it was about a month and a half after the event whereas actually it was only thirteen days. His testimony also revealed he had entered the same dwelling on an earlier occasion. Defendant contends this witness’ conflict as to dates indicates the general unreliability of his testimony.

Upon the arrest of defendant, he was confronted with both the witness Diefenbach and the defendant Gallagher, in the presence of a deputy sheriff. Both of these men stated Jalbert entered the dwelling with them, whereupon Jalbert said they were “damned liars.”

Police officers entered Jalbert’s apartment with his permission and found the subject tray. Witness Diefenbach said that he recognized the tray, which was placed in evidence, as one he had seen before in the subject dwelling.

The police also found on the bureau in Jalbert’s apartment a small microphone. Diefenbach denied ever having seen it before. The owner of the dwelling testified that both the tray and the microphone were his property. Defendant argues, however, that the owner’s identification was not sufficiently specific.

Defendant Jalbert testified in his behalf. He denied having gone to or entered the dwelling with Gallagher and Diefenbach. He stated he loaned his truck to Gallagher and Diefenbach and subsequently found the tray and microphone in his truck, whereupon he put them in his apartment. Diefen-bach, however, said the truck had not been used on that occasion.

The owner of the dwelling did not testify as to the value of the two articles. He did state that he had in the dwelling at the time of the entry personal property worth several thousand dollars.

When the defendant was accused of having accompanied the other two men by those men in the presence of the officer, the defendant immediately denied the accusation. At the trial defendant’s counsel cross-examined that officer and obtained from him the testimony as to defendant’s denial of the accusation. The defense counsel, in his brief as appellee, complains that the remarks of the officer as to what the other two men said to him were hearsay and inadmissible, since the defendant Jalbert immediately denied the accusation. It does not appear from the record that objection was made to that testimony nor was error assigned on that point. We agree with the State’s view that since the testimony was not obj ected to the error did not come to the trial court’s attention and since the error was not assigned, this Court will not give it consideration.

The defense attacked the reliability of the witness Diefenbach’s testimony because of the conflict of the dates and also because he had not told investigating officers he had entered the dwelling on a previous occasion but, on cross-examination, testified he had entered it previously.

Defendant waived trial by jury. It was therefore up to the trial judge to determine the credibility of the witness’ testimony. We are not at liberty to substitute our opinion for that of the trier of facts, as to the credibility of this witness.

In this case we find the testimony of an accomplice involving the defendant. In addition we find the defendant was in possession of recently stolen property. That property was identified by the owner. On the other hand, we find a denial by the defendant of the accusation of the alleged accomplice and an explanation of his possession of the property.

It is well settled in this State that the testimony of an accomplice, even though uncorroborated, is sufficient to sustain a conviction. Land v. State, Fla.1952, 59 So.2d 370. This Court will presume the trial judge properly considered the accomplice’s testimony with due caution, since the trial judge is presumed to have committed no error and that presumption has not been overcome by the defendant.

It is also the rule in this State that the unexplained possession of recently stolen goods raises the presumption the possessor is the thief. Cone v. State, Fla. 1953, 69 So.2d 175; Kemp v. State, 1941, 146 Fla. 101, 200 So. 368.

In Cone v. State, supra, this Court said the circumstances raise the presumption when the possession is unexplained or unsatisfactorily explained. In the instant case it was within the province of the judge, sitting as the trier of facts, to consider defendant’s explanation of his possession of the goods either untrue or unsatisfactory.

We are therefore of the view there was sufficient testimony to sustain the finding of the lower court as to defendant Jalbert’s breaking and entering the dwelling and taking the tray and microphone.

The next question to be considered is whether the evidence was also sufficient to sustain the conviction of breaking and entering with the intent to commit a felony, grand, larceny. The State’s argument is simply that, according to testimony of the owner of the dwelling, there was in the dwelling personal property worth several thousand dollars. The State contends any determination as to why defendant took only the two small articles would he mere conjecture and that the availability of the large amount of personal property worth several thousand dollars was sufficient to establish an intent on the part of the defendant to commit grand larceny. The State relies on the case of Rebjebian v. State, Fla.1949, 44 So.2d 81 for this reasoning.

Defendant argues that no evidence whatsoever established the value of the tray and microphone either as to being in excess of $50 or less' than $50. Defendant also argues that the Rebjebian case, supra, is not applicable to establish his intent to take property of the value of more than $50.

In Rebjebian v. State, supra, the defendant therein entered a dwelling and proceeded directly to an upstairs bedroom in which jewelry of the value of $20,000 was located. The downstairs rooms contained other personal property of lesser value. This Court reasoned that in the light of those particular circumstances it was the inevitable conclusion he had entered to steal property of such value that had he accomplished his purpose (he was apprehended in the bedroom) he would have committed grand larceny.

In the instant case it does not appear why the defendant took only the property he did. It does not appear from the record that some circumstance prevented him from carrying out a purpose to take more. We are of the view that the principle of the Rebjebian case, supra, does not govern this case. We cannot say that merely because there was in the dwelling personal property worth in excess of $50 the defendant intended to steal more than he did. In the absence of other evidence or circumstances, the best evidence of what he intended to steal is what he did steal. Since no proof of value of the tray and microphone was offered, we cannot assume they were of a value equal to or in excess of $50. In the Rebjebian case the circumstances strongly indicated the thief entered the dwelling only to take the jewelry of the value of $20,000. In the instant case no evidence indicated that the defendant intended to take more than he did.

It is our holding that the evidence does not sustain a conviction of the charge of breaking and entering with intent to commit grand larceny, Sec. 810.01, Fla. Stats.1955 F.S.A., but that it does warrant entry of a judgment for breaking and entering with intent to commit petit larceny, which is also felony under the provision of Sec. 810.05, Fla.Stats.1955, F.S.A. The first mentioned offense necessarily includes the latter as a lesser offense.

Under the provisions of Sec. 924.34, Fla.Stats.1955, F.S.A., where we find that the evidence does not prove the offense of which defendant is found guilty, but does establish his guilt of a lesser offense necessarily included therein, we are authorized to reverse the judgment of the trial court with directions to enter judgment for such lesser offense and to pass sentence accordingly. Bronson v. State, 1942, 152 Fla. 28, 10 So.2d 718.

Accordingly the judgment appealed from is reversed with directions to the trial court to enter a judgment against the defendant-appellant for the offense of breaking and entering a dwelling house with the intent to commit a misdemeanor, to wit, petit larceny, and to impose sentence accordingly.

TERRELL, C. J., and HOBSON and! DREW, JJ., concur.


author: TERRELL, Chief Justice.

text:
    Dorothy Louella HOLMES, Appellant, v. Charles Edward HOLMES, Appellee.
    Supreme Court of Florida, Division B.
    June 5, 1957.
    Rehearing Denied June 28, 1957.
    Horace E. Hill, Daytona Beach, for appellant.
    Knee & Koeppel, Miami, for appellee.
   TERRELL, Chief Justice.

Charles Edward Holmes sued Dorothy Louella Holmes for divorce alleging extreme cruelty. Defendant answered denying the material allegations of the complaint, cross-claimed for separate maintenance and prayed that the premises known as 2550 N. W. 152nd Terrace, Miami, owned jointly by them be decreed to be hers. At final hearing the plaintiff was granted a divorce, custody of their minor child was granted to defendant and plaintiff was required to contribute $65 per month for its support. Thereafter the premises above described were ordered sold for $500 over the first mortgage and from the purchase price all commissions, brokerage costs, mortgage payments, including an attorney’s fee of $150 for defendant’s attorney and closing costs be deducted and if there be anything left, it be paid to plaintiff. This appeal is from the decree so entered.

The decree appealed from must be reversed because (1) this court is committed to the doctrine that a final decree of divorce cannot be granted on the uncorroborated testimony of one of the parties. Dean v. Dean, 87 Fla. 242, 99 So. 816; Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694; Homan v. Homan, 144 Fla. 371, 198 So. 20; Garland v. Garland, 158 Fla. 643, 29 So.2d 693; Martin v. Martin, Fla., 66 So.2d 268; Morgan v. Morgan, Fla., 40 So.2d 778. Aside from the dearth of corroborating evidence to support the decree of divorce, it appears that if the parties are as arbitrary and devoid of responsibility one to the other as their testimony shows them to be, the marital vows must have fallen on parched earth where there was no probability of germination or development into a congenial family relation. (2) It further appears that the chancellor let go his sympathy or imagination without prayer, importunity or suggestion in the complaint to support it and ordered the property owned by the parties by the entireties sold and the proceeds less expenses distributed to the plaintiff. We find nothing in the pleadings or the proof authorizing such a sale and distribution.

The decree appealed from is accordingly reversed with directions to vacate and set aside the decree of divorce and the decree ordering sale of the premises.

Reversed.

THOMAS, ROBERTS and THORNAL, JJ-, concur.


text:
    Leonard Perry RUSS, Appellant, v. The STATE of Florida, Appellee.
    Supreme Court of Florida, En Banc.
    June 7, 1957.

      Raymond E. Ford, Fort Pierce, and Otis Whitehurst, Okeechobee, for appellant.
    Richard W. Ervin, Atty. Gen., and Jos. P. Manners, Asst. Atty. Gen., for appellee.
   O’CONNELL, Justice.

Leonard Perry Russ was tried by jury upon an indictment for murder in the first •degree and was found guilty as charged. No recommendation of mercy was made. His motion for new trial was denied.

On appeal to this Court the judgment and sentence of death by electrocution was affirmed by opinion of this Court rendered January 16, 1957, 92 So.2d 811. Rehearing was denied on March 13, 1957.

Russ now presents to us a petition for permission to apply to the trial court for writ of error coram nobis. This is the proper procedure after an appellate court has affirmed a conviction sought to be disturbed. Chambers v. State, 1934, 117 Fla. 642, 158 So. 153, and cases therein cited.

The purpose of the writ of error coram nobis is to enable a party against whom a judgment has been rendered to gain relief from the judgment by applying to the same court in which the judgment was entered. It is brought to show an error of fact, defect in process, default in performance of duty by ministerial officers, and other matters none of which are apparent from the record. The showing must be such that if the matters shown had been before the trial court when judgment was entered, the court would have been precluded from entering the judgment. The party seeking the writ must have no other remedy.

Upon presentation to this Court of a petition for leave to apply for a writ of error coram nobis it becomes our duty to determine the legal effect of the facts and matters alleged therein. If we find them to be sufficient in legal effect, if established, we then grant permission to the petitioner to apply to the trial court for the writ. The trial court should then determine the truth of the allegations in the same manner as other issues of fact are determined. Chambers v. State, supra.

The effect of our granting the petition is equivalent to an order or mandate that the trial court allow the writ, that it determine the truth of the facts alleged in the petition and that if they be established as being true then the judgment should be set aside and new proceedings be had.

In the petition now before us counsel for Russ alleges the following facts:

“ * * * at the conclusion of the trial on the 19th day of July, 1955, said jury retired to the jury room for consideration of its verdict. After some discussion, a ballot was taken with the result that said jury voted eight to four for a finding of guilty of murder in the first degree with a recommendation of mercy. Whereupon, a member of the jury, who had voted with said minority, stated openly to the whole jury that he could never accept such a verdict because he had personal knowledge that Appellant had severely beaten the deceased victim on numerous occasions, that Appellant had threatened to kill the deceased victim on numerous occasions, that the deceased victim’s father had shot the arm of Appellant off from his body with a shotgun because Appellant had beaten the( deceased victim unmercifully on the day preceding the Shooting; and that, while he knew that these matters of fact had not been heard in evidence on the trial, he personally knew them to be true. Said juror proceeded to describe such alleged beatings, threats and acts of the Appellant upon and against the deceased victim, in great detail. Other jurors questioned said juror at great length upon such matters outside the evidence produced in the trial. Upon a second ballot, following said statements, questions and answers the jury returned its verdict of guilty of murder in the first degree without a recommendation of mercy which resulted in said judgment and sentence.”

To the petition there is attached an affidavit of one of Russ’ counsel. He sets forth therein that during the month of January 1957, after judgment and sentence were ' entered and while his appeal was pending before us, he learned from the wife of one of the jurors serving in the trial of Russ that the jury had received prejudicial evidence out of court, other than through a view of premises, such having come about through the misconduct of a juror as set forth in that portion of the petition, above quoted. The affidavit further states that affiant contacted three of the jurors, who are named therein, and that each of said jurors verified each fact alleged in the petition and stated that they would, if called before the trial court, so testify under oath, but that they would not make affidavits because they feared punishment for violation of their oaths as jurors.

Russ contends that the matters of fact alleged in the petition and affidavit would have prevented entry of judgment and sentence by the trial court, if they had been, before that court. He argues that his-rights were prejudiced in that:

(1) One of the jurors was guilty of misconduct and had concealed his-bias and prejudice against Russ on; voir dire examination, and
(2) the jury had received strongly prejudicial evidence out of court, other than a view of premises.

He then concludes that both of the above reasons are grounds for new trial under Sec. 920.05, F.S.A.

An application for writ of error coram nobis is usually and should be made on sworn petition. It may be accompanied by affidavit in support thereof. It must set out the facts, not conclusions, which would vitiate the verdict and should show the evidence upon which the required facts can be proved and the source thereof. The burden is on one seeking to set aside a judgment of conviction to show and prove the facts relied upon by strong and convincing proof. 24 C.J.S. Criminal Law § 1606 c (6) and (8).

The rule generally is that affidavits and motions for new trial on the ground of jury misconduct should be based on positive knowledge either of the movant, or of the affiant whose affidavit is attached to the motion. However, it is obvious that there are situations where because of the secrecy afforded jury deliberations the moving party will have no personal knowledge of the misconduct and where he will for varied reasons be unable to obtain the affidavit of a juror as to such misconduct. At least two states have recognized that under such circumstances an affidavit in support of a motion for new trial made by one other than a juror on information and belief is sufficient, not as evidence, but for the purpose of activating inquiry by the court to determine the existence of such alleged misconduct.

In the case of State v. Page, 1908, 212 Mo. 224, 110 S.W. 1057, at page 1061, the court in considering a motion for new trial on the ground of jury misconduct, which motion was supported only by the affidavit of the defendant, said:

“ * * * We have no hesitancy in saying that, in order to warrant such course, [granting of motion for new trial] the affidavit should be full and explicit, indicating fully as to whether or not he was an eyewitness — that is, witnessed personally the misconduct — or, if not, as to the persons from whom he obtained the information, and further indicating at least some sort of a reason why he is unable to secure the affidavit of any other witnesses aside from himself to support his motion for a new trial.”

This rale was followed by the Missouri court in the more recent case of State v. Blair, Mo.App.1955, 280 S.W.2d 687.

In the case of Means v. State, 1925, 100 Tex.Cr.R. 1, 271 S.W. 613, the court in considering a motion for new trial on the ground of jury misconduct, which motion was supported only by the affidavit of the defendant, held that such affidavit was sufficient to cause the court to determine the truth of the matters set forth in the affidavit by calling the jurors to give oral testimony, although the defendant’s affidavit was alleged to be based on information and belief, not on actual knowledge. Subsequent opinions of the Texas court have recognized that the factual situation in the Means case made it an exception to the rule that affidavits of the jurors themselves must accompany a motion for new trial. However, Texas now follows the same rule as announced by the Missouri court in State v. Page, supra. Vyvial v. State, 1928, 111 Tex.Cr.R. 111, 10 S.W. 2d 83; Vowell v. State, 1951, 156 Tex.Cr.R. 493, 244 S.W.2d 214; and Moore v. State, 1955, 160 Tex.Cr.R. 642, 275 S.W.2d 673.

In a proceeding such as now before us, we are called upon only to determine whether the facts alleged in the motion and supported by the affidavit are sufficient, if proved to be true, to warrant a new trial. The truth of the allegations is to be determined by the trial court in the same manner that other issues of fact are tried and determined. The affidavit is not evidence and neither this Court nor the trial court are allowed to treat it as such.

The affidavit before us is sufficiently full and explicit, it states the misconduct complained of, it gives plausible reason why an affidavit of one with personal knowledge of the misconduct is not offered, it names the jurors who constitute the source and basis of the affiant’s information and belief, and alleges that said jurors will testify to such facts before the trial court.

We have considered also that the affidavit before us is made by defendant’s attorney. This attorney is first and foremost an officer of this Court and the trial court. His sworn duty as an attorney requires that he be as much dedicated to finding the truth as are the courts he serves. Above all else he owes to the courts the duty of good faith and honorable dealing. We must assume that the attorney for defendant made the affidavit in question in full view of his position as an officer of the court and his obligation not only to his client but to the court as well. If the trial court finds that the affidavit filed by the attorney was filed in bad faith, for the purpose of delay, or that he swore falsely the trial court can and should discipline him. The court does not have this control over the laymen who make such an affidavit. This factor does not support our holding that the affidavit in question is sufficient but it adds strength to it.

For the reasons above expressed we hold the affidavit and the petition to be in acceptable form.

We must now determine if the facts set forth therein are sufficient to warrant the granting of permission to apply to the trial court for the writ and annulment of the judgment and sentence if found to be true,

It is a long established and gem erally accepted doctrine that testimony ot affidavits of jurors impeaching a verdict rendered by them will not be received and considered where the facts shown therein are such as inhere in the verdict. Langford v. King Lumber & Mfg. Co., 1936, 123 Fla. 855, 167 So. 817; City of Miami v. Bopp, 1934, 117 Fla. 532, 158 So. 89, 97 A.L.R. 1035; Linsley v. State, 1924, 88 Fla. 135, 101 So. 273.

In the recent case of Marks v. State Road Dept., Fla.1954, 69 So.2d 771, this Court held that affidavits of jurors may be received for the purpose of avoiding a verdict by showing any matters occurring during the trial or in the jury room which matters do not essentially inhere in the verdict itself. This Court on page 774, quoted what it considered to be the true rule, as expressed in Wright v. Illinois & Miss. Telegraph Co., 1866, 20 Iowa 195:

“ ‘That affidavits of jurors may be received for the purpose of avoiding a verdict, to show any matter occurring during the trial or in the jury room, zvhich does not essentially inhere in the verdict itself, as that a juror was improperly approached by a party, his agent, or attorney; that witnesses or others conversed as to the facts or merits of the cause, out of court and in the presence of jurors; that the verdict was determined by aggregation and average or by lot, game or chance or other artifice or improper manner; but that such affidavit to avoid the verdict may not be received to show any matter which does essentially inhere in the verdict itself, as that the juror did not assent to the verdict; that he misunderstood the instructions of the court; the statements of the witnesses or the pleadings in the case; that he was unduly influenced by the statements or otherwise of his fellow-jurors, or mistaken in his calculations or judgment, or other matter resting alone in the juror’s breast.’ ”

If affidavits of jurors may be received to show matters which do not essentially inhere in the verdict, certainly their testimony before the trial court would be properly received as proof of such matters in: a proceeding such as must follow if permission to apply to the trial court for writ of error coram nobis is granted.

It is improper for jurors to receive-any information or eyidence concerning-the case before them, except in open court and in the manner prescribed by law. 23-C.J.S. Criminal Law § 1362, p. 1022.

Arguments of jurors should not be based on assertion of facts not in the evidence before them. Evidence to prove guilt may not be supplied by what a juror knows or believes independent of the evidence properly received in the course of the trial. The jury should confine their consideration to the facts in evidence as weighed and interpreted in the light of common knowledge. They must not act on the special and independent knowledge of any of their members.

Where a juror on deliberation relates to the other jurors material facts claimed to be within his personal knowledge, but which are not adduced in evidence, and which statements are received by the other members of the jury and considered in reaching their verdict it is misconduct which may vitiate the verdict, if resulting prejudice is shown. 23 C.J.S. Criminal Law § 1373.

If the statements by the juror are such that they would probably influence the jury, and the evidence in the cause is conflicting, the onus is not on the accused to show he was prejudiced for the law presumes he was. But it should be clearly understood that not all statements by a juror concerning evidence not properly before the jury will vitiate a verdict, even though such conduct may be improper. It is necessary either to show that prejudice resulted or that the statements were of such character as to raise a presumption of prejudice. 23 C.J.S. Criminal Law § 1449 j (1); PP- 1197-1198. See footnote 28, pp. 1197-1198 for examples of improper statements of jurors.

This Court has on several occasions stated the rule that when it is shown that the jury is influenced by considerations outside the evidence the trial court may set aside its verdict and grant a new trial. Seaver v. Stratton, 1938, 133 Fla. 183, 183 So. 335; Hart v. Held, 1942, 149 Fla. 33, 5 So.2d 878; Martin v. Stone, Fla. 1951, 51 So.2d 33.

The facts alleged in the affidavit, if established as true, are of such character as to raise the presumption of prejudice. They show that the jury in its deliberation considered statements of fact not properly before it. These statements would possibly substantiate defendant’s intent. They are likely to have prejudiced the jury against Russ.

According to the rule adopted in Marks v. State Road Dept., supra, the matters raised in the petition and affidavit are not such as essentially inhere in the verdict. They may properly be proved by testimony of the jurors, themselves, in a proceeding on the writ of error coram nobis before the trial court.

A new trial at this stage of the proceedings cannot be granted by the trial court. As the record stands this Court, in appellate proceedings, cannot give relief to the petitioner. His only remedy is error coram nobis.

We therefore hold that, if found to be true in appropriate proceedings, the allegations of the petition are sufficient to vitiate the verdict, judgment and sentence and entitle Russ to a new trial, and that he should have the opportunity to prove the allegations of his petition, if he can do so.

Accordingly the petition for permission to apply to the trial court for writ of error coram nobis is granted and this cause is remanded to the trial court with directions that further proceedings consistent with this opinion be had.

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

THOMAS, J., dissents.


text:
    McKESSON & ROBBINS, Incorporated, and Ryder Truck Rental System, Inc., Appellants, v. Rosa O. BARWICK and her husband, John L. Barwick, Appellees.
    Supreme Court of Florida, Special Division B.
    June 5, 1957.

      Walter Humkey and James O. Davis, Jr., and Fowler, White, Gillen, Yancey & Humkey, Miami, for appellants.
    Brown, Dean, Adams & Fischer, Miami, for appellees.
   SANDLER, Associate Justice.

The appellants here were defendants in the trial Court. Rosa O. Barwick and her husband John L. Barwick, filed their complaint charging McKesson & Robbins, Incorporated, with negligence when the plaintiff, Rosa O. Barwick, was injured at a street intersection in the City of Fort Lauderdale, Florida, the collision occurring' within the intersection lines. Ryder Truck Rental System, Inc. was the owner of the-truck involved. McKesson & Robbins, Incorporated, was the lessee and operator' of the truck, and Irving S. Pickel, an employee of McKesson & Robbins, Incorporated, the driver of the truck involved, was; likewise named as a defendant. This suit was filed December 10, 1954, and on October 20, 1955, the plaintiff voluntarily dismissed Pickel as a party defendant, which was approximately three weeks before the-scheduled trial.

On October 28, 1955, Pickel, then a-member of the armed forces was ordered-for duty in Tokyo, Japan. On November 4, 1955, defense counsel presented to the-Court a motion for continuance of the trial in this cause, alleging they intended to produce Pickel in person at the trial with the permission of the United States Government. The trial of the case was continued’ by the Judge for one week and the case went to trial on the complaint charging negligence, the defendants denying any negligence on the part of McKesson & Robbins, Incorporated, and on the plea of contributory negligence, which plea of contributory negligence was first filed on November 10, 1955, and which trial resulted in a verdict for Rosa O. Barwick for $61,800 and $20,000 for John L. Barwick. Motion for new trial being denied, this appeal followed.

The plaintiff, Rosa O. Barwick, was driving a plymouth sedan east on Los Olas Boulevard, a four-laned highway which was intersected by Southeast 15th Avenue which runs north and south, in the center of which intersection is a suspended traffic control light. There is, as is usual in many cases of this kind, conflicting testimony as to what happened in the intersection so that it became a question for the jury, and this cause was properly submitted to it. The order of the Court denying a motion for continuance was also assigned as error. 31 F.S.A. Rule 2.4 provides that

“if continuance is sought on the ground of nonavailability of a witness, the motion must show when it is believed the witness will be available”.

The motion for continuance was for an indefinite period and there was no showing when the appearance of the witness might be procured, if at all. In addition, the defendant had the benefit of the witness’s testimony, which it is true was taken on discovery, but which was read in evidence. There is no showing why the deposition of the witness could not have been taken prior to his induction into the military service, or before he left for Japan. Likewise, the defendant had the benefit of one Cyrus Emerick, an attendant at a filling station on the corner, who was an eye witness to the accident and a disinterested party. The rights and interest of the plaintiff are not to be overlooked in a situation of this kind. There was no abuse of discretion on the part of the trial Court in denying the motion. Due consideration has been given to the remarks of plaintiff’s counsel complained of, made in the course of argument to the jury relative to the time when the plea of contributory negligence was filed. We find nothing in these remarks to warrant granting of a new trial.

This brings us to the remaining question, the amount of the verdict which it is claimed is excessive.

“The rule is that ‘the burden is with him who assails the amount of the verdict to show that it is wholly unsupported by the evidence, or that the jury was influenced by passion (or), prejudice’, and that the amount of the award is such as to ‘shock the judicial conscience’. Breeding’s Dania Drug Co. v. Runyon, 147 Fla. 123, 2 So.2d 376, 377; Florida Power & Light Co. v. Brinson, [Fla.] supra (67 So.2d [407] 412). ‘When the verdict rendered is approved by the trial court and has a reasonable relation to the damages proven, it should not be disturbed. * * * We must be shown that it imposes a hardship out of proportion to the injury suffered.’ Margaret Ann Super Markets, Inc., v. Scholl, supra, 159 Fla. 748, 34 So.2d [238] 241.”

The questions of liability and the amounts of the verdicts were fairly submitted to the jury. They saw the parties, heard the evidence, and observed the witnesses. The trial Judge had the same opportunity. In the light of the evidence submitted to the jury as to the injuries suffered by Rosa O. Barwick, we see no reason to disturb the verdicts and judgments. Finding no error, the judgment is

Affirmed.

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


text:
    ADVISORY OPINION TO THE GOVERNOR.
    Supreme Court of Florida, En Banc.
    June 6, 1957.
   PER CURIAM.

Supreme Court of Florida

Glenn Terrell, Chief Justice

Tallahassee

June 6, 1957

Honorable LeRoy Collins

Governor of Florida

Tallahassee, Florida

Dear Governor:

We have the honor to acknowledge your letter of June 5, 1957, submitting to us under Section 13 of Article IV of the Constitution of Florida, F.S.A. a request for advice relating to your executive powers and' duties. Your letter reads as follows:

“Honorable Glenn Terrell, Chief Justice, and Honorable Justices of the Supreme Court of Florida
“Supreme Court Building
“Tallahassee, Florida
“Gentlemen:
Re: Effect of extended session upon time within which Governor may act upon bills presented to him within last five-days of extended session.
“Section 28 of Article III of the Florida Constitution provides in part:
“ ‘If any bill shall not be returned! within five days after it shall have been presented to the Governor, (Sunday excepted) the same shall be a law, in like manner as if he had signed it. If the Legislature, by its final adjournment prevent such action, such bill shall be a law, unless the Governor within twenty (20) days after the adjournment, shall file such bill with his objections thereto,' in the office of the Secretary of State, who shall lay the same before the Legislature at its next session, and if the same shall receive two-thirds of the votes present it shall become a law.’
“This provision was adopted by the people of Florida at the general election in 1954.
“In 1956, the people adopted an amendment to Section 2 of Article III, reading in part:
“ ‘Regular sessions of the legislature may extend to sixty (60) days, but no special session convened by the governor shall exceed twenty (20) days. Thé regular sixty (60) day biennial session of the legislature may, by a three-fifths vote of the membership of both houses, be extended not exceeding a total of thirty (30) days which need not be- consecutive. Recesses in such extended session shall be taken only by joint action of both houses. No extended session may last beyond September 1st following the regular biennial session. During such extended session, no additional proposed legislation shall be introduced unless consent is first obtained by a two-thirds (%) vote of the members of the House into which it is sought to be introduced.’
“The Legislature, at its current biennial session, has, by House Concurrent Resolution No. 2078, agreed to extend the session through Saturday, June 8th, to midnight. A copy of said resolution is attached.
“As a result of the extension of the regular session for said period of time, I have considered it to be my duty to act upon any bills enacted during the regular session but delivered to me during the extended session, within five days after the same have been presented to me. This has resulted in a large and unanticipated volume of work.
“In addition to the increased burden resulting from the extended session and the pressure of having to act within said five day period as aforesaid, I am now faced with the further problem that large numbers of bills passed during the regular session are now being processed daily by the Legislature and its staffs and presented to me for action. I anticipate that this deluge of bills will increase daily during the remainder of this extended session.
“Under the above circumstances, and pursuant to the authority of Section 13 of Article IV of the Constitution of Florida, I respectfully ask your advice upon the following question:
“Will I have twenty days after June 8 within which to act upon bills reaching me during the last five days of the extended session ?
“As I see it, this necessarily involves the basic question of whether or not the extension provided under the aforesaid resolution is the final action which this Legislature may take in extending the term of the current regular biennial session.
“Respectfully,
“/s/ LeRoy Collins
“Enclosure Governor”
Your question is answered in the affirmative.
By House Concurrent Resolution No. 2078 the regular sixty-day session resolved as follows:
“Section 1. Under the authority of Article III, Section 2, of the constitution, the Legislature of Florida extends ' the present session beginning on Saturday, June 1st through Saturday, June 8th, to twelve (12) o’clock midnight.”

Implicit in your inquiry is the necessity of determining whether the current extension of the regular sixty-day biennial session can be further extended by Concurrent Resolution beyond the terminal date fixed by House Concurrent Resolution No. 2078. In view of the manner in which the present extended session was accomplished we are of the view that the curent extension cannot be further extended.

A legislative body has no inherent power to convene itself in special or extraordinary session for any purpose. It enjoys such power only when so endowed by the organic law. When such authority is granted by the Constitution it must be exercised strictly in accord with the stipulations of the organic grant.

A careful analysis of Section 2,, Article III, as amended in 1956, suggests that only “the regular sixty (60) day biennial session” may be extended. There is no authorization for an extension of an “extended session.” The exercise of the power to extend the “regular session” is explicitly limited to the regular sixty day session by the following language of the Constitution itself, towit:

“The regular sixty (60) day biennial session of the legislature may, by a three-fifths vote of the membership of both houses, be extended * * *.”

So it is that by virtue of the specific language of the Constitution the power to vote an “extension” under Section 2, Article III, expires at the end of the sixtieth day of the regular biennial session.

This leads us to the view that such action as the Legislature takes making provision for an extension of its regular session must be taken during the regular session itself. The Legislature could have provided for an extension of a certain number of days not exceeding thirty and not necessarily consecutive. It then could have recessed from time to time within the extended period by joint action of the two Houses. This course, however, was not employed. Instead the Legislature extended its session for a stipulated period and established a definite terminal date and hour. Having done this it spent its authority under the organic provision quoted.

You may therefore safely assume that you will have twenty (20) days after June 8, 1957 within which to consider and act upon any bills presented to you within five days prior to June 8, 1957.

Nothing herein is to be construed as any limitation on the calling of an extra session under the so-called legislative “self-starter” provisions of Section 2, Article III, Florida Constitution, or your own authority as Governor to convene the Legislature in extraordinary session Under Section 8, Article IV, of the Constitution.

Respectfully,

GLEN TERRELL Chief Justice

ELWYN THOMAS T. FRANK HOBSON B. K. ROBERTS E. HARRIS DREW CAMPBELL THORNAL STEPHEN O’CONNELL Justices


author: FOURNET, Chief Justice.

text:
    232 La. 926
    Arthur T. JORDAN v. NEW ORLEANS POLICE DEPARTMENT.
    No. 43026.
    Supreme Court of Louisiana.
    May 6, 1957.
    Joseph A. Gowan, New Orleans, for plaintiff-appellant.
    Henry B. Curtis, City Atty., Beuker F. Amann, Asst. City Atty., New Orleans, for defendant-appellee.
   FOURNET, Chief Justice.

The plaintiff, Arthur T. Jordan, availing himself of the provisions of Article 14, Section 15 of the Louisiana Constitution of 1921, as amended, granting an appeal to this Court on questions of law from decisions of the Civil Service Commissions for the various cities, appeals from the ruling of the Civil Service Commission of the City of New Orleans on his appeal to that body from the action of the Superintendent of Police in fining him the loss of five days’ pay and demoting him from the rank of detective to that of patrolman.

The disciplinary action against appellant followed an investigation conducted by the Chief of Detectives, the results of which were submitted to the Superintendent of Police, covering incidents which occurred shortly after 4 p. m. on Monday, January 30, 1956, on Rampart Street at the corner of Canal Street, when the appellant, off duty and not in uniform, was involved in a scuffle with two other men, as a consequence of which nearby police officers were summoned, he was arrested, taken to the police station and booked “simple drunk,” placed in a cell and there kept until his release that night at about 10:30 p. m. The Superintendent of Police, in advising appellant of the disposition of the case, felt “obliged to concur in the findings by the investigators,” even though mitigating circumstances were found to exist in that the appellant had not been the aggressor, had been struck a severe blow in the face by an unknown person who left the scene, and’ the description of the two men fitted descriptions of wanted pickpockets; yet the facts were that he was under the influence of liquor and drunk, and because of that condition he was unable to perform the police work he had undertaken of arresting the pickpockets, by his actions reflecting discredit on the Department of Police.

Following a hearing the Civil Service Commission found the weight of evidence ■developed by the appointing authority was to the effect that appellant was in a drunken condition on the afternoon in question, and concluded as a matter of law that the appellant had failed to discharge the statutory burden of proof to establish that the action •of the employing authority was arbitrary, unreasonable, or without cause.

Counsel for appellant, contending that the record contains no evidence as a matter of law to support the ruling of the Commission, and that the disciplinary action of the appointing authority was unreasonable, argues that the opinion evidence expressed by the various police officers that Jordan was intoxicated should not be accorded the status of legal evidence because the witnesses first saw the appellant after he had received the brutal blow in the face, a blow so severe that, according to the physician who examined him the following afternoon, brain concussion and contusion resulted — ■ injuries which might produce in a normal sober person reactions similar to intoxication and not easily distinguishable therefrom by a layman.

The above argument, on which appellant has relied from the outset and which was advanced again unsuccessfully on motion for a rehearing before the commission, is without merit here. This Court has repeatedly stated that the ruling of the Commission upholding the dismissal of an employee would not be disturbed where there was some evidence before such body to support its decision, and the appellant himself admits that he had taken two drinks of vodka. This Court is without authority to examine into the question of the weight to be accorded that fact or the sufficiency of the evidence to establish intoxication, our appellate jurisdiction being limited to questions of law alone. Louisiana Constitution of 1921, Article 14, Section 15(0) (1); Rule XXII, Revised Rules of the Supreme Court of Louisiana; see Konen v. New Orleans Police Department, 226 La. 739, 77 So.2d 24; Gervais v. New Orleans Police Department, 226 La. 782, 77 So.2d 393; Marchese v. New Orleans Police Department, 226 La. 982, 77 So.2d 742; and Jais v. Department of Finance, 228. La. 399, 82 So.2d 689.

For the reasons assigned, the ruling of the Civil Service Commission of the City of New Orleans is affirmed.

      . According to appellant, while awaiting liis wife at the bus stop he observed a man behaving in a peculiar manner, suggestive of the movements of a pickpocket; observed another man nearby, who appeared to be an accomplice; and thinking he recognized these men as among “wanted” persons he mingled in the crowd close to the first man in the hope of catching him outright. A tug at his hip pocket caused him to turn and grab swiftly, when ho received a very hard blow in tlie face, was knocked to tlie sidewalk, and remembers nothing of the following hours. He later discovered his wallet had been taken.


author:
HAMLIN, Justice ad hoc. FOURNET, Chief Justice McCALEB, Justice
      SIMON, Justice

text:
    232 La. 931
    STATE of Louisiana v. Eric PETERSON.
    No. 43391.
    Supreme Court of Louisiana.
    May 6, 1957.

      Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. St. Clair Favrot, Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., Baton Rouge, for appellant.
    Major & Ponder, Baton Rouge, for ap-pellee.
   HAMLIN, Justice ad hoc.

The State of Louisiana appeals from a judgment of the trial court sustaining a motion to quash the information filed against the defendant.

By amended bill of information, the defendant, Eric Peterson, was charged with the theft of $7,000 from the Baton Rouge Millworks, a partnership composed of Eric Peterson and Herman Green. Pie applied for a bill of particulars, praying for the following information:

1. Was the money in the possession of Herman Green?

2. Under what circumstances did he take or come into possession of the money ?

3. If money was not in the possession of Green, in what bank and under whose name was it deposited?

4. What business relationship existed between Green and defendant prior to the alleged theft?

5. Was the partnership agreement written or oral, and when was the partnership formed and when was it dissolved?

The State answered that the partnership was formed on February 20, 1956, by oral agreement of the partners, Eric Peterson and Plerman Green; that the money was deposited in the Capital Bank and Trust Company, Baton Rouge, Louisiana, in the names of Eric Peterson and Herman Green; that the alleged theft, consisting of one misappropriation from the Capital Bank and Trust Company, occurred on or about May 18, 1956; and, that there had been no accounting or dissolution of the partnership.

The defendant then filed a motion to quash, averring that—

“ * * * the bill of information charges the theft of partnership funds in the amount of $7,000.00; that the answers to the motion for the bill of particulars specifically admit, among other things, that the said funds were partnership funds deposited in the name of Eric Peterson and Herman Green;, that the basis of the charge is the withdrawal of said alleged partnership funds on or about May 18, 1956, by the said Eric Peterson; that the State admits that no accounting has ever been made or demanded with respect to the partnership property and that no dissolution of the alleged partnership has ever been had. This being true under the Louisiana Law and decision pertaining thereto, the bill of information considered along with the answers to the motion for a bill of particulars does not charge an infraction of the law or commission of any crime.”

To a request for a second bill of particulars, the State answered that the partnership was a commercial one; that the alleged theft occurred when the accused withdrew money of the alleged commercial partnership from the Capital Bank and Trust Company, for the purpose of converting said funds to his personal use; and, that the alleged misappropriation was by means of fraudulent conduct and practices.

Since it is conceded by appellee that the partnership was a commercial one, we are considering it as such.

In sustaining the motion to quash, the trial court stated:

“I have given this matter very careful consideration, and my first impression was that the motion to quash is without merit. However, after carefully studying the case of State v. Hogg, 126 La. 1053 [53 So. 225, 29 L.R.A.,N.S., 830], I have reached the conclusion that the motion to quash is well founded and should be sustained. It can be well admitted that a commercial partnership is in the eyes of the law a legal entity. I am of the opinion however that this is so only as between the partnership and third persons. In other words, it seems to me that a third person could be prosecuted under Article 67 of the Criminal Code [LSA-R.S. 14:67] for the theft of partnership funds. However, as I interpret the law as it now exists, the relationship of the individual partners to the partnership is no different than it was when the decision in the Hogg case was handed down. In that case it was in effect held that' a partner could not be guilty of a theft of partnership funds, for the reason that as to him the property of the firm is not the property of another in the sense of the law. Here it is obvious that each member of the partnership, which admittedly is or was a commercial partnership, had a proprietary interest in the money alleged to have been stolen. That being true, I am of the opinion that there should be no legal prosecution of the defendant for the theft of the funds on deposit in the name of the individual members of the partnership.”

LSA-Revised Statutes 14:67 provides:

“Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.” (Italics ours.)

The following comment is found in the footnotes to the above section:

“This section has the effect of combining the traditional offenses of larceny, embezzlement, and obtaining by false pretenses. In spite of the tremendously complicated nature of the problem as a matter of historical development, there seems to be absolutely no reason why today the fundamental notion that it is socially wrong to take the property of another, in any fashion whatsoever, cannot be stated as clearly and simply as it has been above. There is eminent theoretical and practical authority for this step. See Stumberg, Criminal Appropriation of Movables — A Need for Legislative Reform (1941) 19 Tex.L.Rev. 300.”

It is incumbent that we decide whether the word “another”, employed in the above statute, includes a commercial partnership of which the accused is a partner.

In the case of Henderson’s Estate v. Commissioner of Internal Revenue, 5 Cir., 155 F.2d 310, 314, we find the following interpretation of a commercial partnership :

“ * * * a commercial partnership is a fictitious person. It is a civil person possessing its peculiar rights and attributes. In contemplation of law it is a separate legal entity, distinct from the individuals composing it, capable of suing and being sued in the partnership name. * * * The law of Louisiana with reference to commercial partnerships is stated by the Supreme Court of that state in Succession of Pilcher, 39 La.Ann. 362, 1 So. 929, 932, as follows: ‘In Smith v. McMicken, 3 La.Ann. (319), 322, the court said: “The partnership, once formed and put into action, becomes, in contemplation of law, a moral being, distinct from the persons who compose it. It is a civil person which has its peculiar rights and attributes. * * * Hence, therefore, the partners are not the owners of the partnership property. The ideal being, thus recognized by a fiction of law, is the owner; it has the right to control and administer the property to enable it to fulfill its legal duties and obligations; and the respective parties who associated themselves for the purpose of participating in the profits which may accrue, are not owners of the property itself, but of the residuum which may be left from the entire partnership property, after the obligations of the partnership are discharged.” City of New Orleans v. Gauthreaux, 32 La.Ann. (1126), 1128.’
“See also Raymond v. Palmer, 41 La.Ann. 425, 6 So. 692, 17 Am.St.Rep. 398; Sherwood v. His Creditors, 42 La.Ann. 103, 7 So. 79; Darden v. Garrett, 130 La. 998, 58 So. 857; Southwestern Gas & Electric Co. v. Liles, 16 La.App. 500, 133 So. 835.”

It is the contention of the State that since a partnership is a legal entity, it necessarily follows that a person — in this particular case, Eric Peterson — can commit a theft from a partnership. It argues that under LSA-Revised Statutes 14:2 a partnership falls under the definition of the word “another”.

Partnerships are divided, as to their object, into commercial partnerships and ordinary partnerships. LSA-Civil Code, Article 2824.

LSA-Civil Code, Article 2872, sets forth the extent of liability of partners as follows :

“Ordinary partners are not bound in solido for the debts of the partnership, and no one of them can bind his partners, unless they have given him power so to do, either specially or by the articles of partnership.
“Commercial partners are bound in solido for the debts of the partnership.”

The above article was interpreted as to commercial partners, in the case of E. B. Hayes Machinery Co. v. Eastham, 147 La. 347, 84 So. 898, 900, as follows:

“ * * * The liability of commercial partners, while solidary, in the sense that they and each of them may ultimately be required to pay the whole of its debts, yet is not a primary one; neither is it a conventional liability, but one which the law alone imposes, in consequence of the relation of the parties and the character of the business in which the firm is engaged. Until the debt is established contradictorily with the partnership, so long as it exists, there is no debt within the meaning of article 2872 of the Civil Code, which can be enforced against the individual partner. The partnership is a necessary party to the liquidation of such a claim, just as in the case of any other contract in which all parties thereto and having and interest therein are necessary parties; and the individual partner, not being a party to such conventions in his personal capacity, cannot be sued individually until the rights of the debtor and creditor under their agreement have, as between them, been determined, especially when his connection therewith is not one of agreement, but his liability being imposed, as above stated, solely in consequence of the law. On the other hand, when the partnership has been dissolved, it ceases to exist as a separate entity, and the liability of the partners becomes fixed. Montague v. Weil & Bro., 30 La.Ann. [50] 55; Hall et al. v. Lanning et al., 91 U.S. 170, 23 L.Ed. 271.” See, also, Trappey v. Lumbermen’s Mutual Casualty Co., 229 La. 632, 86 So.2d 515; Sharman v. Phillips, 228 La. 560, 83 So.2d 127.

Although the liability of the individual partners of a commercial partnership comes into existence and becomes enforceable after the dissolution of the partnership, it follows that they are still eventually liable for unpaid partnership debts. Since the liability is in solido, any commercial partner is faced with the eventual obligation of having to pay all outstanding claims against a dissolved partnership. Therein lies the difference between a partner of a commercial partnership and a stockholder of a corporation whose liability is limited (LSA-C.C., Article 437).

Therefore, if a man can be held liable for an entire debt of a commercial partnership of which he is a member, the commercial partnership cannot be classed as “another” apart from himself.

In the case of State v. Hogg, 126 La. 1053, 53 So. 225, 226, this Court held:

“According to the established and well-nigh universal jurisprudence, when the foregoing statute was adopted and since, a partner could not be guilty of embezzling the property of the firm of which he was a member for two reasons (the merits of which we will not now inquire into), to wit, that he could not be the agent, clerk, or servant of such firm, and that as to him, the property of the firm is not the property of another in the sense of the law. In 1888 the General Assembly passed an act (No. 31) purporting to amend and re-enact section 905 of the Revised Statutes, but which reenacts the section without amending it, so far as we can see. It is true that no case seems to have arisen in this state in which the question here at issue has been presented, but we imagine that it is because it has been so well settled that a partner cannot embezzle partnership property (under a statute relating to an agent, clerk, mandatary, etc., misappropriating, etc., property received ‘for his employer, principal or bailor, or by virtue of his office, trust or employment, or which shall have been entrusted to his care, * * * by another/ or by his employer, etc.) that no prosecutions for such supposed offenses have been instituted. In some states, where the intention was to include partners dealing with partnership property, it has been so expressly provided, and we are of opinion that such a course would have been pursued by the General Assembly of this state, if it had had the purpose mentioned in view. As the matter stands, we should feel rather as if we were amending and enlarging the scope of the statute than construing it if we were to give it the application contended for by the state. * * * ”

We feel, as the Court felt in the Hogg case, supra, that to give LSA-Revised Statutes 14:67 the interpretation contended for by the State would have the effect of enlarging and amending the scope of the statute.

“ * * * In this State all crimes are statutory and the determination and definition of the acts which are punishable as crimes are purely legislative functions. State v. Comeaux, 131 La. 930, 60 So. 620. Nothing is punishable in this State which is not made an offense and the punishment of which is not provided by legislative authority.
“Unless an act can be brought within the meaning of the words of the statute, it is not a crime, though it comes within the mischief sought to be remedied by the statute, and is of equal atrocity with the acts enumerated by the statute. State v. Fontenot, 112 La. 628, 36 So. 630; State v. Trapp, 140 La. 425, 73 So. 255; and State v. Brinson, 149 La. 320, 80 So. 18.” State v. Vaccaro, 200 La. 475, 8 So.2d 299, 302. See, also, LSA-R.S. 14:7, and State v. David, 226 La. 268, 76 So.2d 1.

A member of a partnership, who believes that his co-partner is withdrawing partnership funds and appropriating them to his own use, has his remedy by bringing a suit for an accounting and a dissolution of the partnership; or, in certain exceptional cases, by direct action against his partner. Ingersoll Corporation v. Rogers, 217 La. 79, 46 So.2d 45; Parker v. Davis, 225 La. 359, 72 So.2d 877; Riley v. Riley, 150 Neb. 176, 33 N.W.2d 525; Cook v. Barrier, Tex.Civ.App., 73 S.W.2d 623. His recourse is not by instigating a criminal prosecution against one who can be held equally liable with him on any partnership obligation. 21 A.L.R., p. 124(b); 68 C.J.S. Partnership § 88, p. 528; 40 Am. Jur., p. 469, sec. 495. His remedy is specifically provided for in the LSA-Civil Code, Book 3, Chapter 3, Sec. 1 — Of The Obligations of Partners Towards Each Other — Articles 2858, 2859, 2860, 2861, 2862, and 2865.

For the reasons assigned, the judgment of the trial court, sustaining the motion to quash and discharging the defendant, is affirmed.

FOURNET, C. J., concurs in the decree.

McCALEB and SIMON, JJ., dissent.

HAWTHORNE, J., absent.

FOURNET, Chief Justice

(concurring).

The defendant having been furnished with a bill of particulars on an information charging him with theft of $7,000, the property of the partnership composed of himself and Plerman Green, showing that the money involved was deposited in the Capital Bank & Trust Company, Baton Rouge, in the names of the partners jointly and subject to withdrawal by either without restriction, and that no accounting had been made or demanded, the State is bound by these particulars; consequently, the trial judge properly sustained the motion to quash because the facts recited in the bill of particulars, even if proved, fail to constitute the crime charged.

McCALEB, Justice

(dissenting).

I cannot subscribe to the holding that a partner, who is charged with having taken and misappropriated the funds belonging to the partnership of which he is a member, is not amenable to the penal statute, R.S. 14: 67.

It is well settled that a partnership, under our law, is a legal entity separate from the partners who compose it. As recently as last year, we were called upon to determine in Trappey v. Lumbermen’s Mutual Casualty Co., 229 La. 632, 86 So.2d 515, 516, whether a partner could become an employee of a partnership and entitled, as such, to compensation under our Workmen’s Compensation Act. It was argued there, just as here, that a partner could not be an employee, as he would occupy a dual status of employer and employee. This contention was flatly rejected on the ground that the partnership, being a legal entity and “Under our civil law system, unlike that of the common law, a partnership is an abstract ideal being with legal relations separate and distinct from those of its individual members; * * * ”, it not only had the capacity to employ one of its own ■members but that, when it did, the relationship of employer and employee came into existence.

Accordingly, since a partnership occupies a separate status as an ideal being, I see no good reason, and none is suggested by the majority opinion, why one of the partners cannot commit theft of its funds just because he happens to be one of the members composing the legal entity.

The conclusion reached in the majority opinion appears to be predicated on certain dicta contained in State v. Hogg, 126 La. 1053, 53 So. 225, 226, 29 L.R.A.,N.S., 830 and it is also observed by the majority that the penal law (R.S. 14:67) does not apply in this case because the other partner may proceed civilly against the defendant for his alleged misappropriation of the partnership funds.

Insofar as the civil liability of one partner to the other is concerned, I find it difficult to perceive that this affords any basis for the conclusion that a criminal statute has or has not been violated.

And, it should be readily apparent that the cited dicta from State v. Hogg cannot be reconciled with the well-established jurisprudence to the contrary. In the Hogg case, wherein the defendant had been convicted of embezzlement, defense counsel had requested the judge to charge the jury that, if it found that the check (which was the subject of the theft) represented partnership funds belonging to defendant and Lizzie Hall, he would not be guilty. The judge refused this charge and, in considering on appeal whether error was committed in this respect, it was concluded that the ruling was correct because there was nothing in the record to indicate that any evidence was offered tending to show a partnership between defendant and Lizzie Hall. However, before reaching this result, the Court gratuitously engaged in a dissertation as to whether a partner could be guilty of embezzling the property of the firm of which he was a member and resolved that he could not because “ * * * he could not be the agent, clerk, or servant of such firm * * * ”. This dicta, as I have pointed out, is in direct conflict with the ruling in the Trappey case.

I respectfully dissent.

SIMON, Justice

(dissenting).

Being in full accord with the views expressed by my colleague in his dissenting opinion and fully concurring with his analytic application of the penal statute, LSA-R.S. 14:67, I am unable to subscribe to the holding announced in the majority opinion and am convinced that it is repugnant to our laws and jurisprudence on the subject of partnerships, the interrelationship of the partners towards the partnership, the classification of the rights of ownership in and to partnership property and the amenability of partners to the said penal statute LSA-R.S. 14:67, which serves as a basis for this prosecution.

Under LSA-R.S. 14:67, theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the owner or by means of fraudulent conduct, practices or representations with the essential element being the intent to deprive the other of what may be taken or misappropriated.

I do not agree with the majority opinion in its holding that a partnership is not “another” in the eyes of the penal statute.

It is elementary in law that a commercial partnership is a fictitious person. It is a civil person possessing the peculiar rights and attributes of a natural person. In contemplation of law it is a separate legal entity, distinct from the individuals composing it and capable of suing and being sued in the partnership name.

This fundamental law, with reference to commercial partnerships, is stated by us in the Succession of Pilcher, 39 La.Ann. 362, 1 So. 929, 932 as follows:

“In Smith v. McMicken, 3 La.Ann. [319] 322, the .court said: ‘The partnership, once formed and put into action becomes, in contemplation of law, a moral being, distinct from the persons who compose it. It is a civil person which has its peculiar rights and attributes. * * * Hence, therefore, the partners are not the owners of the partnership property. The ideal being, thus recognized by a fiction of law, is the owner; it has the right to control and administer the property to enable it to fulfill its legal duties and obligations; and the respective parties who associated themselves for the purpose of participating in the profits which may accrue, are not owners of the property itself, but of the residuum which may be left from the entire partnership property, after the obligations of the partnership are discharged.’ City of New Orleans v. Gauthreaux, 32 La.Ann. [1126] 1128.”

See also Raymond v. Palmer, 41 La.Ann. 425, 6 So. 692, 17 Am.St.Rep. 398; Sherwood v. His Creditors, 42 La.Ann. 103, 7 So. 79; Darden v. Garrett, 130 La. 998, 58 So. 857; Southwestern Gas & Electric Co. v. Liles, 16 La.App. 500, 133 So. 835.

I respectfully submit that a partnership, being a legal entity and “under our civil law system, unlike that of the common law, * * * is an abstract ideal being with legal relations separate and distinct from those of its individual members; * * * ” (Trappey v. Lumbermen’s Mutual Casualty Co., 229 La. 632, 86 So.2d 515, 516), and is by law endowed with the rights, attributes, privileges and immunities of that which under LSA-R.S. 14:67 is styled “another.”

Under the principles propounded in the above cited cases, all assets of the partnership being owned by the partnership are not owned by the individual partners, and a partnership being a legal civil being with all rights and attributes of others under our law, it is indubitable that a partner may be charged with and held responsible for the theft or misappropriation of the property owned by said partnership. A partner is not deprived of any ownership of property by its illegal taking or other misappropriation by an offending partner; it is the partnership itself, a legal being, which is occassioned the illegal and criminal loss and deprivation.

I respectfully dissent.

      . “Another” refers to any other person or legal entity including the State of Louisiana or any subdivision thereof.

      . In the absence of a showing that a demand had been made for an accounting and for restitution, the State could never have shown that there had been a conversion.

      . Such a bill, when furnished, operates “to limit the scope of proof on the trial by restricting the introduction of evidence to the proof of those facts set out in the bill of particulars.” 31 C.J. 752, Verbo Indictments and Informations, Sec. 310; 42 O.J.S. Indictments and In-formations, § 156, p. 1092; 27 Am.Jur. 672, Sec. 112; annotations, 8 A.L.R. 550 and 10 A.L.R. 982; State v. Bienvenu, 207 La. 859, 22 So.2d 196; State v. Bessar, 213 La. 299, 34 So.2d 785; State v. Masino, 214 La. 744, 38 So.2d 622.

      . “ * * * the court in considering the motion to quash the indictment must construe those facts as set out in the hill of particulars to be true and determine whether or not, if proved, they constitute the crime charged.” State v. Bessar, 213 La. 299, 310, 34 So.2d 785, 789.