text:
    George Edward MARIANI, as Administrator of the Estate of E. A. Mariani, deceased, Appellant, v. Anthony SCHLEMAN, as Tax Collector of Hillsborough County, et al., Appellees.
    Supreme Court of Florida, Division A.
    April 24, 1957.
    Rehearing Denied May 22, 1957.

      Herbert D. Wentworth and Wm. Earle Tucker, Tampa, for appellant.
    Wm. C. McLean, Tampa, for appellees.
   THORNAL, Justice.

Appellant Mariani, who was plaintiff below, seeks reversal of a decree of the •Chancellor adjudicating the validity of a tangible personal property tax assessment.

For reasons hereafter pointed out the only •question to consider is the authority of the County Tax Assessor under the circumstances to correct the name of the owner of tangible personal property after the tax roll had been approved and filed in the office of the Tax Collector.

According to the complaint the Tax Assessor of Hillsborough County assessed personal property taxes for the year 1954 against a valuation of $2,000 of property shown by his records to be owned by Mariani Emulsified Asphalt Plant. At the same time for the same year, he assessed taxes against a valuation of $23,800 of tangible personal property shown by his records to be owned by Mariani-O’Brien, Inc. The tax bills were mailed to the same address about November 1. “Emulsified” paid its taxes. Mr. Mariani notified the Tax Collector that Mariani-O’Brien did not own the property assessed in its name. Title to the property apparently had been transferred by the corporation to the individual sometime during the tax year. Thereupon the Tax Assessor merely changed the name of the owner from Mariani-O’Brien, Inc. to Mariani Emulsified Asphalt Plant. This correction was made on the tax roll in the office of the Tax Collector, obviously after the roll had been approved and certified to the Collector for collection.

It is significant that neither Mariani nor Mariani-O’Brien, Inc. returned any tangible personal property taxation for the year 1954. It is not denied that the property was owned by Mariani Emulsified Asphalt Plant. The testimony indicates that the property actually has a value in excess of the amount fixed by the assessment. The complaint merely assaults the validity of the correction. By his answer the Tax Collector admitted that, through an over-sight, the assessment totaling $23,-800 included the $2,000 assessment. To this end he concedes a duplication. By the final decree the Chancellor corrected the error with reference to duplication. He otherwise affirmed the validity of the assessment. Reversal of this decree is now sought.

Appellant contends that the Assessor had no authority to correct the name of the property owners. There are other contentions which are pointed out hereafter.

The appellee Tax Collector contends that the correction of the name was merely a clerical correction and one authorized by statute.

Sections 193.12 and 200.08, Florida Statutes, F.S.A., make it the duty of the owner of tangible personal property to file a return of his property,' giving the description, location and full cash value thereof. This return should be filed before April 1 of each year. We have held that where the owner of tangible personal property fails to make a return thereof as required by law, he is not entitled thereafter to assault the ultimate assessment on the ground that he had no knowledge thereof or was deprived of an opportunity to contest the assessment before the Equalization Board. Arundel Corporation v. Sproul, 136 Fla. 167, 186 So. 679; Amos v. Jacksonville Realty & Mortgage Co., 77 Fla. 403, 81 So. 524; Tampa Gas Co. v. Sparkman, 153 Fla. 177, 14 So.2d 196; Sanders v. State ex rel. Shamrock Properties, Fla.1950, 46 So.2d 491.

By Section 200.02, Florida Statutes, F.S.A., the County Tax Assessor is authorized to correct any erroneous omissions or commissions in the tangible personal property tax roll in like manner as if he had performed the act correctly in the first instance. The roll when so corrected is thereby validated ab initio and the ultimate validity of the tax is not adversely affected. While conceivably it is possible that there may be some jurisdictional defects which could not be so corrected, we find none in the instant case. As pointed out above, the appellant does not by his complaint or testimony deny ownership of the property. Actually, if his decedent had complied with the law and returned the property for taxation, the error in name doubtless never would have occurred. He not only failed to file a return but he likewise failed to register any objection before the Board of Equalization. If there is any aspect of life that approaches the certainty of death, it is the certainty of taxes. Appellant’s decedent certainly must have known that he owned the property; he must have known that the property would be subjected to ad valorem taxes; he is presumed to have known that it was his duty to file a return. Likewise, he is charged with the presumption of knowledge that the opportunity was available to him to appear before the Board of Equalization and remonstrate against any unfairness or invalidity in the assessment. He cannot now be heard to assault the assessment on the ground set forth in his complaint. The error was not jurisdictional and it did not affect the validity of the tax.

The briefs of the parties appear to tender argument on the proposition that the land occupied by the appellant was owned by the Hillsborough County Port Authority and that under Section 20, Chapter 23338, Special Acts of 1945, creating the Authority, all lands owned by the Authority are exempt from taxation. It is pointed out that the bulk of the property subjected to the tax herein consisted of buildings and large storage tanks attached to the land on concrete foundations. By his brief, appellant contends that his decedent was merely a lessee of the land and that the alleged tangible personal property is not such at all. He states that the bulk of the property has become so attached to the land that it is real estate and therefore exempt from taxation under the cited statute.

By his brief, the appellee takes the position that the buildings, tanks and machinery are personalty and subject to the tax.

It is a rule of long standing that on appeal this Court will confine itself to a review of those questions, and only those questions, which were before the trial court. Matters not presented to the trial court by the pleadings and evidence will not be considered by this court on appeal. Jacques v. Wellington Corporation, 134 Fla. 211, 183 So. 718; Southern Liquor Distributors v. Kaiser, 150 Fla. 52, 7 So.2d 600.

We have diligently and cautiously examined not only the appendices to the briefs but also the original record in its entirety. Although there are conclusions of law that the assessment is “illegal” and “confiscatory”, we fail to find anywhere in this record that the question of the alleged exempt status of the property was ever presented to the trial judge. The record clearly indicates that this question could not have properly been presented to the trial judge. For example, nowhere in the complaint does appellant deny ownership of the property. The complaint in no place alleges ownership of the land by the Port Authority. There is no allegation that the property involved is either real estate or enjoys a tax exempt status. Although there is testimony that appellant’s decedent occupied the land under a formally executed lease, the terms of which could have a direct bearing on the problem suggested, nowhere in the record does the lease, or any copy thereof, appear.

By his brief, appellant contends that the Tax Assessor assessed the actual tanks, buildings and machinery. By his brief, on the other hand the appellee asserts that the Tax Assessor assessed the lease itself. In such a situation an appellate court is certainly not in a position to try a question of this nature de novo. The problem obviously was not tendered to the trial judge and is not available to the parties for review on appeal. See Jones v. City of Sarasota, Fla.1956, 89 So.2d 346; see also, People ex rel. International Navigation Co. v. Barker, 153 N.Y. 98, 47 N.E. 46; Thompson on Real Property, Vol. 3, Sec. 1365; Cooley on Taxation, Vol. 2, Sec. 593, and Vol. 3, Secs. 1065 and 1157.

Among other incidental alleged errors appellant contends that inasmuch as there was an admitted duplication that was corrected by the final decree, the Circuit Judge committed error in dismissing the complaint at final hearing with the alleged resultant imposition of the burden of costs ■on appeal. Examination of the final decree ■does not reveal that the costs were taxed against the appellant. There is nothing in the record to show who paid the costs or whom the Chancellor directed to pay the costs. Here again, there is nothing acted upon by the Chancellor subject to our review.

We have not overlooked the other points of alleged error assigned. It appears to us that the cause was well and thoroughly considered by the able Chancellor who committed no errors in the ultimate disposition thereof.

The decree is affirmed.

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


source: Caselaw Access Project

author: DREW, Justice.

license: Public Domain

text:
    L. B. SMITH AIRCRAFT CORP., a Delaware corporation, Appellant, v. Ray E. GREEN, as Comptroller of the State of Florida, and Thomas J. Kelly, as Sheriff of Dade County, Florida, Appellees.
    Supreme Court of Florida, Division B.
    April 24, 1957.
    Rehearing Denied May 22, 1957.

      Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, for appellant.
    Richard W. Ervin, Atty. Gen, Phillip Goldman, Asst. Atty. Gen, and Lewis H. Tribble, Gen. Counsel, Tallahassee, for Comptroller, appellees.
   DREW, Justice.

This appeal is prosecuted on stipulated facts from a final decree upholding an assessment against L. B. Smith Aircraft Corp. for sales and use taxes, together with interest and penalties.

The facts are stipulated as follows:

“It is hereby stipulated by and between the parties that there are only two issues involved in this case.
“Issue I
“Is the plaintiff taxable under Chapter 212, Florida Statutes, 1953 [F.S.A.], on the sale of aircraft parts sold to persons regularly engaged in interstate or foreign commerce for incorporation into or use on or by their vehicles, not common carriers, which transport or move executives and other employees across staté lines or in foreign commerce?
“Agreed Stipulation of Facts Pertinent to Issue I
“1.1. The parties agree that during the period involved the plaintiff sold and delivered in the State of Florida, $63,375.83 worth of aircraft parts to various large companies, all of which shipped their products to and sold their products in numerous i (if not all) of the forty-eight states and some in foreign commerce.
“1.2. These aircraft parts so sold by plaintiff were all installed in the State of Florida by plaintiff into aircraft owned by the said customers of plaintiff which they used in their businesses to transport or move their executives and other employees across state lines and/or in foreign commerce.
“1.3. The parties agree that these said aircraft were not used as common carriers but were used by plaintiff’s customers to move their own executives and/or employees across state lines and/or in foreign commerce in furtherance of their respective businesses.
“1.4. The parties agree that the undisputed amount of the portion of the sales tax in controversy under this issue and which is attributable to these said sales is $2,509.68 (which includes penalty and interest thereon through April 4, 1955).
“1.5. The parties further agree that this said portion of the tax was not properly assessed and should be set aside if these said sales were sales in interstate commerce within the provisions of Chapter 212, Florida Statutes [F.S.A.] and Rules and Regulations of the Comptroller, lawfully promulgated thereunder.
“1.6. The parties also agree that this said portion of the tax was properly assessed if these said sales were not exempt as sales in interstate commerce under the provisions of Chapter 212, Florida Statutes, 1953 [F.S.A.], and Rules and Regulations of the Comptroller, lawfully promulgated thereunder.
“Issue II
“Is the plaintiff taxable under Chapter 212, Florida Statutes, 1953 [F.S.A.], on the purchase of aircraft parts used by it in the State of Florida in changing old non-certified cargo type aircraft into plush executive certificated passenger type aircraft for resale ?
“Agreed Stipulation of Facts Pertinent to Issue II
“II. 1 During the period involved, plaintiff in the State of Florida was engaged in the business of buying old cargo type aircraft (which although flown into Miami were not and could not be certificated by the C.A.A. for regular flights without undergoing an 8,000 hour overhaul) and changing these cargo type planes into plush certificated executive passenger type aircraft for resale.
“II.2. The parties agree that during the period involved, the plaintiff purchased $382,349.60 worth of aircraft parts and materials. Plaintiff used these parts and materials in the making of said changes in the said cargo type aircraft and these parts and materials became component parts of the plush executive passenger type airplanes into which the cargo type planes were changed.
“II.3. The character and extent of the activities of plaintiff in using these materials and parts in changing cargo type planes into executive type passenger planes can be determined from the typical representative specifications for such changes (attached hereto as Exhibit A) and pictures of a typical airplane, before, during, and after the changes made by plaintiff (attached hereto as Exhibit B). In this connection it is agreed that the planes involved were DC-3’s when the plaintiff acquired them and they were DC-3’s when the plaintiff sold them.
“II.4. The parties also agreed that the undisputed amount of the portion of the tax in controversy under this issue is $15,141.04 (which includes penalty and interest thereon through April 4, 1955).
“II.5. The parties further agree that this ' portion of the tax was properly assessed if the use made in the State of Florida of the materials in changing the said non-certificated aircraft for resale was not an exempt use under the provisions of Chapter 212, Florida Statutes, 1953 [F.S.A.], and Rules and Regulations of the Comptroller lawfully promulgated thereunder.
“II.6. The parties further agree that this portion of the tax is improper and should he set aside if the use made in the State of Florida of these materials in changing the said noncertificated cargo type planes into plush executive passenger type certificated ■aircraft is an exempt use under the provisions of Chapter 212, Florida Statutes, 1953 [F.S.A.], and Rules and Regulations ■of the Comptroller lawfully promulgated thereunder.”

Appellant and appellees rely upon the Comptroller’s rules interpreting the Sales and Use Tax. Such administrative interpretations, although made by an extrajudicial body, have “considerable persuasive force” before a court called upon to interpret the same statute. Harvey v. Green, Fla.1956, 85 So.2d 829. The statute provides for administrative rules and regulations in Section 212.18(2), Florida Statutes 1955, F.S.A.

Issue I

This issue involves a tax levied on parts installed by the petitioner in Florida on airplanes which were used to transport employees of the owners across state lines and in foreign commerce. The owners are engaged in interstate and foreign commerce; but the airplanes in question were not common carriers. It is clear that Section 212.05, Florida Statutes 1955, F.S.A. imposes a tax on these items unless a specific exemption applies. While the statute as a whole must be read in order to grasp the full impact of its comprehensiveness, the following excerpts from the section labeled “Declaration of legislative intent” are indicative :

“(2) It is hereby declared to be the specific legislative intent to tax each and every sale, admission, use, storage, consumption, or rental levied and set forth in this chapter except as to such sale, admission, use, storage, consumption, or rental, as shall be specifically. exempted therefrom subject to the conditions appertaining to such exemption. * * *
“(3) It is further declared to be the specific legislative intent to exempt from the tax or taxes or from the operation or the imposition thereof only such sales, admissions, uses, storages, consumption or rentals in relation to or in respect of the things set forth as exempted from the tax, as may be exempted in accordance with the provisions of the constitution of the state and of the United States, and it is further declared to be the specific legislative intent to tax each and every the taxable privileges made subject to the tax or taxes or the operation of the tax or taxes, or the imposition of the tax or taxes except such sales, admissions, uses, storages, consumption or rentals as are specifically exempted therefrom, and such exemption is made only to the extent that such exemption may be made in accordance with the provisions of the constitution of the state and of the United States.” Section 212.21, Florida Statutes 1955, F.S.A.

See Gay v. Canada Dry Bottling Co. of Florida, Inc., Fla. 1952, 59 So.2d 788.

Appellant claims the sales are exempt under Section 212.08(3); “Also exempted are vehicles and vessels and parts thereof used to transport passengers or property in interstate and foreign commerce.” He also claims exemption under Rule 64 of the Comptroller’s Rules and Regulations for the Sales and Use Tax: “Sales in Interstate Commerce. If goods are sold within the State of Florida, but possession is taken by the purchaser without the state the sales tax does not apply. Possession will be considered to be taken by the purchaser without the state if * * * (c) the taxable items are sold to a person regularly engaged in interstate or foreign commerce- for incorporation into or use on or by their vehicles which transport or move either,passengers or property across state lines or in foreign commerce.”

We cannot say with certainty what the Legislature intended to exempt by using the language: parts of vehicles “used to transport passengers or property in interstate and foreign commerce.” The broadest interpretation would include parts installed on any vehicle which at some time carried humans or property across a state line or to a foreign country. We think, however, when the entire statute is read and its basic purpose is considered, such a broad interpretation was not intended. It was the manifest purpose in enacting this law to tax as completely within its sphere as organic provisions would allow, e. g. Section 212.21(3). A common understanding of the language “passengers or property in interstate and foreign commerce” would lead to the conclusion that it was used in its narrower sense and relates only to what is more generally referred to as common carriers. An application of this statute to the parts involved in Issue I does not amount to an attempt to regulate or operate to discriminate against interstate commerce and that is what was obviously intended. This is a genuine and clearly legal means of producing revenue from sources which have substantial contact with the state. The “sale” and installation were completed in Florida. The sole remaining question would be whether the tax as applied, unreasonably burdens interstate commerce within the general idea which has been clothed in various terms in pronouncements of the United States Supreme Court. In McGoldrick v. Berwind-White Coal Mining Co., 1940, 309 U.S. 33, 45, 60 S.Ct. 388, 391, 84 L.Ed. 565, the United States Supreme Court announced certain principles in the course of upholding a state sales tax statute, which still appear to be valid in dealing with sales and use taxes:

“In imposing taxes for state purposes a state is not exercising any power which the Constitution has conferred upon .Congress. It is only when the tax operates to regulate commerce • between the states or with foreign nations to an extent which infringes the authority conferred upon Congress, that the tax can be said to exceed constitutional limitations. * * * Not all state taxation is to be condemned because, in some manner, it has an effect upon commerce between the states, and there are many forms of tax whose burdens, when distributed through the play of economic forces, affect interstate commerce, which nevertheless fall short of the regulation of the commerce which the Constitution leaves to Congress. A tax may be levied on net income wholly derived from interstate commerce. Non-discriminatory taxation of the instrumentalities of interstate commerce is not prohibited * *, courts are called upon to reconcile competing constitutional demands, that commerce between the states shall not be unduly impeded by state action, and that the power to lay taxes for the support of state government shall not be unduly curtailed * * *.”

Cf. Braniff Airways, Inc., v. Nebraska State Board of Equalization and Assessment, 1954, 347 U.S. 590, 74 S.Ct. 757, 98 L.Ed. 967, where the U. S. Supreme Court interpreting the commerce clause upheld a state ad valorem property tax levied on flight equipment of a non-domicilliary interstate air carrier. The instant tax as applied is valid under the United States Constitution. Holding, as we do, that the words “used to transport passengers or property in interstate and foreign commerce” has reference to a public business of transport for value, or' what is generally understood by the term “common carrier,” and since the airplanes involved in Issue I were concededly not within this class, the parts installed on them are not within the exemption.

Issue II

Petitioner contends that parts used to change cargo type planes into executive type passenger airplanes are among those things exempted by Section 212.02(3) (b):

“The terms ‘retail sale’, ‘sale at re- ■ tail’, ‘use’, ‘storage’ and ‘consumption’ shall not include the sale, use, storage or consumption of industrial materials for future processing, manufacture or conversion into, articles of tangible personal property for resale where such industrial materials become a component part of the finished product or are used directly and immediately dissipated in fabricating, converting, or processing such materials or parts thereof, * % ijí 33

We again advert to the plenary operation of Chapter 212, and emphasize the many provisions in the chapter designed to prevent multiple taxes on the same items. See Sections 212.05(2); 212.06 (4); 212.07(7); 212.12(11). With this in view we must examine Section 212.08 (4) (a) which, among other things, provides : “Also exempted from the tax imposed by this chapter are * * * motor vehicles * * * (not including parts thereof when sold as separate transactions).’’ The laws of this State treat aircraft as motor vehicles for purposes of tax exemption under Florida Constitution, Article IX, Section 13, F.S.A. See Section 330.06, Florida Statutes 1955, F.S.A. In compliance with this requirement the comptroller has promulgated a rule which reflects such .legislation and gives full effect to the specific language of Section 212.08 (4) (a). This rule provides:

“Ordinarily the sale of used and second hand property is subject to the sales or use tax. Therefore, parts, supplies, and materials used in rebuilding or reconditioning such used and second hand property for resale are exempt. However, as rebuilt or reconditioned used and second hand motor vehicles, airplanes, and motor propelled agricultural equipment are exempt from the sales tax, parts, supplies and materials used in rebuilding or reconditioning such property are subject to the sales or use tax.” Rule 6(7).

This rule is clearly consistent with the act and was properly applied in the instant case.

Both taxes were correctly exacted under Chapter-212, therefore, the decree appealed from is hereby

Affirmed.

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


text:
    PINELLAS COUNTY, a political subdivision of the State of Florida, Appellant, v. Frank J. LAUMER and National Rating Bureau, Inc., a corporation, Appellees.
    Supreme Court of Florida, En Banc.
    March 6, 1957.
    Rehearing Denied April 4, 1957.

      Cramer, Smith & Hobbs, C. Ray Smith and J. D. Hobbs, Jr., St. Petersburg, for appellant.
    L. D. Martin and Bussey & Simmons, St. Petersburg, for appellees.
   DREW, Justice.

We are here concerned with the validity under Florida Constitution, Art. Ill, Sections 20, 21 and Declaration of Rights Section 1, F.S.A. of an act of the Legislature of Florida delegating authority to the Board of County Commissioners of Pinellas County to zone land in the unincorporated areas of said County. The act is Chapter 26164, Special Acts of 1949. Of immediate interest are Sections 17 and 18 of said act which we quote in full:

“Section 17. Notice of intention to apply for the passage of this Act by the Legislature has been published as required by Section 21 of Article 3 of the Constitution of the State of Florida, and affidavit of proof of such publication, together with true copy of such notice, was duly attached to this Act when the Bill therefor was introduced in the Legislature, and accompanied said Bill throughout the Legislature as required by Section 11.02 and 11.03, Florida Statutes 1941, and the Legislature hereby declares that said notice and affidavit are sufficient in form and in substance and that said Section 21 of Article 3 of the Constitution and said Sections 11.02 and 11.03 have been complied with in every respect.
“Section 18. This Act shall not become effective until and unless the same be confirmed by a majority of the qualified voters of Pinellas County, Florida, voting at the next general or primary election as provided by law. In the event of the ratification of this Act the same shall become effective immediately upon the official determina1 tion of said ratification.”

The trial judge held the foregoing act to be unconstitutional and unenforceable on two principal grounds. The first ground which we shall discuss is the holding of the trial judge that the vote by which the qualified voters of Pinellas County ratified the act under the provisions of Section 18 above quoted was invalid because said paragraph permitted qualified voters outside the “territory affected” to have a voice in determining “whether or not that territory should be zoned and regulated as provided in the statute and to that extent was a violation of the spirit and intent of Section 21, Article III of the Florida Constitution.”

As we understand the ruling of the trial court he held that the referendum portion of Art. Ill, Section 21 wherein the term “territory affected” is used became controlling since the Legislature provided in the act that it should not become effective unless and until approved by a referendum procedure included in the act, even though there had been an affirmative and specific compliance with all of the provisions of the Constitution relating to notice as a condition precedent to the passage of such act. The trial judge then interpreted the constitutional language “territory affected” as allowing only those voters outside the incorporated areas of the county to participate in such election.

Art. Ill, Section 21 authorizes the passage of special or local laws in two alternative ways, each alternate being introduced by the word Provided, viz.:

“Provided that no local or special bill shall be passed, * * * unless notice of intention to apply therefor shall have been published in the manner provided by law where the matter of thing to be affected may be situated, which notice shall be published in the manner provided by law at least thirty days prior to introduction into the Legislature of any such bill. The evidence that such notice has been published shall be established in the Legislature before such bill shall be passed, and such evidence shall be filed or preserved with the bill in the office of the Secretary of State in such manner as the Legislature shall provide, and the fact that such notice was established in the Legislature shall in every case be recited upon the Journals of the Senate and of the House of Representatives; * * *.”

The act here in question complies with the organic requirement just recited. Where this portion of Section 21 has been followed, the second portion,

“ * * * Provided, however, no publication of any such law shall be required hereunder when such law con- '• tains a provision to the effect that the same shall not become operative or effective until ratified or approved at a referendum election to be called and held in the territory affected in accordance with a provision therefor contained in such bill, or provided by general law,”

has no application.

This conclusion is not altered by the fact that the Legislature chose to have the act come into effect only after it was approved by a vote of the qualified electors of the whole county. Having acquired absolute jurisdiction and power to enact the law upon compliance with the notice provisions, the Legislature could validly condition the adoption of the act upon the approval of those voters whom the Legislature considered most vitally interested in the matter. See Nabb v. Andreu, 1925, 89 Fla. 414, 104 So. 591; Town of San Mateo City v. State ex rel. Landis, 1934, 117 Fla. 546, 158 So. 112. Since the referendum provision in the Constitution is an alternative method and since we do not construe the legislative act as attempting to comply with this portion of the Constitution, there is no need to interpret the language “territory affected” as used in the Constitution. The legislative determination of persons who should have, what is in effect, the veto power over a particular act will not be upset where it appears, as it does to us, that there is a reasonable connection between the persons taking part in the referendum and the act to be approved. The Legislature “looks to the Constitution for limitations on its power, and if [such limitations are] not found to exist, its discretion reasonably exercised is the sole brake on the enactment of legislation.” State v. Board of Public Instruction, 1936, 126 Fla. 142, 170 So. 602, 606.

It is a well-established rule that in determining the constitutionality of an act of the legislature the courts must give to such enactment a construction which will uphold rather than invalidate it, if there is any reasonable basis for so doing. Lightfoot v. State, Fla., 64 So.2d 261; Spencer v. Hunt, 109 Fla. 248, 147 So. 282; Florida Sugar Distributors v. Wood, 135 Fla. 126, 184 So. 641; Hiers v. Mitchell, 95 Fla. 345, 116 So. 81. If it were necessary to accomplish this we could resort to Section 15 of Ch. 26164, supra, which provides:

“If any section, sentence, clause, phrase, or word of this Act is for any reason held or declared to be unconstitutional, inoperative or void, such holding or invalidity shall not affect the remaining portions of this Act; and it shall be construed to have been the legislative intent to pass this Act without such unconstitutional, invalid or inoperative part therein; and the remainder of this Act, after the exclusion of such part of parts shall be deemed and held to be valid as if such parts had not been included herein; * * *.”

Therefore, even were we to hold Section 18 invalid the application of Section 15 would leave the remainder of the act in effect and necessitate reversal of the trial court on this point.

Nor can we sustain the second ground for the trial judge’s ruling, which is based upon the Florida Constitution, Art. Ill, Section 20 and Declaration of Rights, Section 1. He concluded that “Comprehensive zoning of rural property to the extent that it abridges the right to acquire, possess, use and enjoy property is in its fundamental concepts a subject inherently state-wide which should be authorized by uniform law applicable to all counties alike. * * * ” The position appears to be that fundamental rights such as those contained in Declaration of Rights, Section 1, cannot be regulated through special or local acts. We are cited to no authority for this position and our search reveals none. Art. Ill, Section 20 does not support such an argument, because zoning is not one of the expressly enumerated cases:

“ * * * that is to say, regulating the jurisdiction and duties of any class of officers, except municipal officers, or for the punishment of crime or misdemeanor, regulating the practice of courts of justice, except municipal courts; providing for changing venue of civil and criminal cases; granting divorces; changing the names of persons ; vacating roads; summoning and empaneling grand and petit juries, and providing for their compensation; for assessment and collection of taxes for State and County purposes; for opening and conducting elections for State and County officers, and for designating the places of voting; for the sale of real estate belonging to minors estates of decendents and of persons laboring under legal disabilities; regulating the fees of officers of the State and County; giving effect to informal or invalid deeds or wills; legitimizing children; providing for the adoption of children; relieving minors from legal disabilities; and for the establishment of ferries.”

“Section 20 of Article III forbids the passage of special or local laws in certain enumerated cases. On these subjects legislation must be of general and uniform operation throughout the State. But in all cases not expressly enumerated, special or local laws may be passed without violating this constitutional limitation on the exercise of power by the Legislature.” State ex rel. Green v. Pearson, 1943, 153 Fla. 314, 14 So.2d 565, 567.

The vast majority of' the legislation of this State on the subject of county and municipal zoning has been by special or local law. Although Ch. 176, Florida Statutes 1955, F.S.A., is a general law on the subject of municipal zoning, it is merely one delegating the power to cities and towns to do so; it is not applicable unless utilized by such political entities. We hold that the power to zone at the county and municipal level may properly be granted by the Legislature to local authorities by local or special act.

Reversed and remanded for further proceedings consistent with the views herein expressed.

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

THOMAS, J., not participating because of illness.


text:
    Bertha Martin NEWMAN, Appellant, v. George F. NEWMAN, Appellee.
    Supreme Court of Florida. Division B.
    April 3, 1957.
    Rehearing Denied April 22, 1957.

      Glen W. Martin, De Land, for appellant.
    Adams & Judge, Daytona Beach, for ap-pellee.
   DREW, Justice.

The sole question raised in this appeal by the wife, who was successful in the lower court in her suit against the husband for a divorce, is whether the chancellor below erred when he refused to grant the wife any award for permanent alimony.

These parties were married in 1941. They lived together as husband and wife until 1956. At the time of the separation (brought about, according to the overwhelming weight of the evidence, by the cruelty of the husband) the wife was 48 years of age. From time to time she worked as a garment maker at an hourly wage ■of $1 but her health was such that she ■could not hold a steady job. The husband was retired from the Pennsylvania Railroad because of disability and was receiving $132 a month as a pension. The extent of his disability in recent years is not entirely clear but it does appear from the record that he is a boat racing enthusiast and seems to be able to perform labor for almost everybody except his wife and around ¡his own home. He has several thousand dollars in government bonds and the people with whom he lives owe him some $4,000 on a loan. Whether the loan is secured by a mortgage or otherwise does not appear. In any event, the record establishes conclusively that the husband is able to contribute to the support of his wife, and that there is a need on her part for support.

There is little doubt as to the cause of the separation. There is a French phrase that expresses it well — cherchez la femme. Not only is it undisputed from the record that the husband has been guilty of extreme cruelty to the wife at a period in her life when she was undergoing great emotional disturbance due to the menopause but it is also clear that he strayed into greener pastures in the vicinity of Eustis with what the witnesses described as “a very attractive blonde.”

Instead of exhibiting that degree of patience and understanding which he owed his wife of nearly fifteen years, he proceeded not only to physically abuse her but by a course of conduct with the “very attractive blonde” that was obviously much more than platonic, caused her far greater pain and humiliation than the physical punishment.

The case of Kahn v. Kahn, Fla.1955, 78 So.2d 367, is not authority for the decree appealed from. In that case the wife was 25 years of age and the marriage, according to the opinion, had existed for “several years.” No children were born of that marriage (as is the case here) and it appeared that the wife was in excellent health (such is not the case here) and earning some $30 a week. Moreover, in that case there was only a narrative statement in the record of the testimony in the lower court, the contention of the wife “being that a wife who successfully sues her husband for divorce is automatically entitled to alimony under the rule stated in Montgomery v. Montgomery, Fla.1951, 52 So.2d 276, 277, that ' * * * where the husband has caused the separation he should remain liable for support.’ ” On that narrow issue the case was decided.

On the record before us we are impelled to the conclusion that the lower court erred when he failed to award the appellant wife permanent alimony. So much of the decree appealed from, therefore, as denies the wife permanent alimony is hereby reversed with directions to enter an appropriate decree in accordance with the views herein expressed.

Reversed with directions above.

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


text:
    Rachel MANSFIELD, by and through Max Mansfield, Guardian ad litem, Appellant, v. ACME PRODUCE, Inc., and Lee Taylor, Appellees.
    No. 28216.
    Supreme Court of Florida, En Banc.
    March 13, 1957.
    Rehearing Denied April 16, 1957.
    Kelner & Lewis, Miami Beach, for appellant.
    J. Ben Watkins of Truett & Watkins, Tallahassee, and Roland W. Granat, Miami Beach, for appellees.
   DREW, Justice.

The plaintiff in the trial court appeals from a final judgment in a negligence action entered pursuant to a directed verdict after plaintiff had rested. The complaint charged defendant Taylor with negligently operating the truck of defendant Acme Produce, Inc. in such a manner as to strike and injure the plaintiff. Defendant’s answer denied negligence, asserted that plaintiff’s injury was the proximate result of her own negligence and that plaintiff was guilty of contributory negligence.

The following is a summary of plaintiff’s evidence. The driver, called as an adverse witness, admits he saw plaintiff standing on the raised cement divider in the center of the street before the alleged accident. The divider was shown by photographs to be about eighteen inches wide and six inches high. There is no evidence that she changed her position during the sequence of events which followed. The driver testified he was travelling north in the middle lane of the east half of a six-lane highway which was bisected by the raised cement divider. At a point opposite plaintiff’s position on the divider the driver was forced to turn toward plaintiff, and thereafter to pass between plaintiff and two. trucks and an automobile which were parked abreast. Upon completing the passage the driver turned his stake body truck, the rear portion of which extended some eight inches outward of the wheels, back into the middle lane. Then, by the driver’s estimate, he travelled forty feet before he stopped in response to a shout from the sidewalk for Acme to stop. At that time people from the sidewalk moved across the street to aid plaintiff who was lying in the east half of the street near the divider.

It was only a second or two between the time the truck passed plaintiff’s position and the time a shout stopped him; the investigating officer testified that four vehicles could be maneuvered abreast on the street, but that it takes careful driving; the officer also testified that he found marks on the white divider near where plaintiff was found and white marks on the front left tire of the truck; and the doctor who examined plaintiff testified that a wound in plaintiff’s right arm could not have been caused by a fall, but must have been caused by the force of a sharp object. There was no eyewitness testimony as to the actual collision. Plaintiff could not testify because at the time of the trial she was non compos mentis. The driver did not testify that he saw plaintiff after his truck cab passed her position. Plaintiff’s case, therefore, rested entirely on circumstantial evidence as to whether or not the rearward portion of the truck struck her.

It is trite, but necessary, to state that the driver had a duty to avoid striking a pedestrian whom he saw. See Greiper v. Coburn, 1939, 139 Fla. 293, 190 So. 902. There is no evidence in the case presented here which would make it necessary for the court to discuss possible factors which might reduce or qualify this duty.

The directed verdict cannot rest on the theory that the plaintiff was guilty of contributory negligence as a matter of law. There was no evidence before the trial court that plaintiff walked into the truck or moved at all, and it was not contributory negligence as a matter of law for her to be standing on the cement street divider at a place outside of a crosswalk in the process of crossing the street. See Brandt v. Dodd, 1942, 150 Fla. 635, 8 So. 2d 471. The only other basis on which the court could have directed the verdict was the failure of plaintiff to establish prima facie a case of negligence on the part of defendant Taylor. The evidence above narrated, although circumstantial, presented facts sufficient under our holdings in De Hon v. Heidt, Fla.1945, 38 So. 2d 39 and Goff v. Miami Transit Co., Fla. 1955, 77 So.2d 636 to require submission to the jury. Also see Nelson v. Ziegler, Fla.1956, 89 So.2d 780 and Cadore v. Karp, Fla., 91 So.2d 806.

Reversed.

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

THOMAS and O’CONNELL, JJ., dissent.


text:
    In the Matter of Lacy A. NELSON.
    Supreme Court of Florida, Division B.
    April 3, 1957.
    Rehearing Denied April 22, 1957.
    Joseph A. St. Ana, Miami, for appellant.
    James Kytle Williams, Miami, for appel-lee.
   DREW, Justice.

While three points are argued in appellant’s brief, the sole question in this appeal is whether the trial court erred in refusing to appoint a curator for Lacy A. Nelson on the petition of his wife.

The order appealed from was entered following a written appearance and answer of the respondent, Lacy A. Nelson, and after testimony had been taken. Whether the court committed error in failing to appoint the curator cannot be determined in the absence of the testimony which was before the trial court. No such testimony appears in the original record filed in this Court nor in the appendix to the .brief. We glean, from the record that such testimony was not reported. It is, therefore, obvious that the appellant has failed to carry his burden in this Court of clearly establishing reversible error.

Affirmed.

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


author: THOMAS, Justice.

text:
    GOLDFARB NOVELTY COMPANY OF FLORIDA, Inc., a Florida Corporation, Philip Goldfarb and Saul B. Goldfarb, Appellants, v. David VANN, Appellee.
    Supreme Court of Florida, Division A.
    April 10, 1957.
    Rehearing Denied May 9, 1957.

      Anderson & Nadeau, Miami, for appellants.
    Theodore J. Sakowitz, Miami, for appel-lee.
   THOMAS, Justice.

The appellee filed a complaint by which he sought an accounting of the transaction to which he and the appellants-Goldfarb and Goldfarb Novelty Company, a corporation were parties, and recovery of monies found to be due him. He asked also for a decree providing that upon payment of $750 the company deliver to him 25 shares of its stock or, in the event it developed that all stock of the corporation had been issued to the individual appellants, they be required to transfer to him that number of shares.

As a basis for this relief, the appellee alleged that he was employed as a traveling salesman by Goldfarb Novelty Company, unincorporated, a firm composed of the appellants, Philip and Saul B. Gold-farb, to sell to retail dealers giftware manufactured or imported by the firm. The employment lasted from June 1947 until August 1954 and during all that period, except the last year, the appellee was given exclusive right to sell the merchandise in ten states. While he was so engaged, continued the appellee, one of the individual appellants became desirous of developing a business in Florida and proposed to the appellee that he and both individual appellants enter the novelty and souvenir business in Florida and organize a corporation for the purpose. After some negotiation, during which one George J. Kotler entered the picture, it was agreed that the capital of the corporation should be $3,000 and that 100 shares of stock of no par value be issued for which the in-corporators were to pay at the rate of $30 per share. Each of the Goldfarbs was to receive 32J^ shares, Kotler 10 shares and the appellee 25 .shares.

It was agreed that the corporation would buy its merchandise from the original firm on credit; that the corporation would pay that firm $2500 each year for “service and expense”; and that goods would be furnished to the corporation by the firm at cost plus ten per cent.

Appellee averred that it was agreed by the incorporators that he be employed as manager and salesman at a salary of $100 per week, and 25% of the net profits which would be paid at the end of the fiscal year. This arrangement was to cover the period of one year, from 1 September 1953 to 31 August 1954. The parties also agreed that Kotler would be employed as co-manager and salesman at a salary which was not stated in the complaint, plus 10% of the net profits to be paid at the close of the fiscal year. As a further consideration for the new employment, the appellee relinquished his right to sell for the firm •in five of the states where he had originally been given exclusive representation, and also surrendered the right to sell in a sixth state except for two accounts. Release of this territory, he charged, reduced his annual income to the extent of $5,000.

All the plan was launched, asserted the appellee, but a month before the expiration of the year, during which the appellee was to serve as manager and salesman, he was excluded from the premises of the corporation.

Parenthetically, Kotler was not a party to this litigation so there will be no further reference to him.

The appellee represented that he had fully performed, and he charged that the corporation had violated the terms .of the agreement by failing to account for the net profits and pay him his share of them, and had not paid his “salary for the last two weeks of said fiscal year.” He estimated the profits amounted to $19,000 and he claimed 25% of that sum, or $4,750, and $200 for unpaid salary.

The appellee further alleged that he had repeatedly called upon the defendants for satisfaction and had offered to pay $750 for the stock he was to receive, but all his efforts had been unavailing.

The answers filed by the defendants were, in effect, general denials of the salient allegations of the complaint.

In the corporation’s answer, however, it was admitted that the four men had agreed to form the corporation and to distribute the stock as appellee had alleged. The answer contained the allegation that appellee had not paid for his stock, that he had worked during the time alleged, except that he was absent for several weeks during the period he was receiving compensation. It was charged that he voluntarily terminated his services. The corporate defendant denied any indebtedness to appellee but admitted it had not paid to appellee a percentage of its net profits. In an amendment this appellant claimed damages it suffered by reason of the ap-pellee having entered direct competition while he was absent from his position.

To like effect' was the ’ answer of the appellants-Goldfarb.

We have examined the motions to dismiss and in them were raised only questions of jurisdiction of the subject matter and person and the sufficiency of the process or service. We have not discovered in these motions or the answers any specific basis for the present challenge that the arrangement was unenforceable because the negotiations did not culminate in the execution of a written contract.

Considering the complaint and answers together, it is clear that the capital stock of 100 shares was to be allotted in a certain way and that the plan was executed, except, of course, the 25 shares which the appellee now claims; that the corporation proposed to engage in the sale of novelties manufactured or imported by the 'Goldfarbs in New York and did; that the appellee was to do certain work for the corporation and did.

It seems to us in this state of the record, we are not obliged to explore or discuss the law with reference to agreements that may not be enforced because they never progressed beyond the stage of negotiations or preliminary discussion. The efforts of the parties to reduce their arrangement to a formal contract failed but we are unaware of any agreement that no one should be bound until a written contract had been executed; and the parties proceeded with the venture nonetheless. Hunt v. S. Y. Cattle Co., 75 Mont. 594, 244 P. 480.

The dispute here may be resolved, we think into pure questions of fact, namely, whether the appellee was discharged or voluntarily severed his relations with the corporation; whether or not he was entitled to compensation for the last two weeks of the period; whether or not he was dilatory in requesting transfer to him of the stock; and whether or not he was promised 25% of the net profits for the period.

All the factual matters seem to have been decided by the chancellor in appellee’s favor and we have not become convinced that his findings were clearly erroneous. Lluis v. Lluis, 91 Fla. 706, 108 So. 671; First Atlantic National Bank of Daytona Beach, Fla. v. Cobbett, Fla., 82 So.2d 870. Of course, once he decided that appellee was in the right, the determination of the amount of the salary was simple, $100 for each week that he had not been compensated. When the chancellor decided that appellee was entitled to the stock, it was proper for him to fix a time within which he should pay for it and the corporation should deliver the certificate. We attach no significance to his having fixed an arbitrary period within which the exchange should be made.

We cannot agree that appellee was guilty of laches for his suit was filed only a little more than six months after he and the corporation parted; and we find no support for the position, assumed by appellants, that the appellee’s right to the stock depended on his continuing in the service of the corporation. See Lewis v. Arthur, Fla., 72 So.2d 397.

It would, in our opinion, be unfair to hold that the appellants could exclude the appellee from the corporate premises and because of his absence defeat his action. This would amount to permitting the appellants to profit from their own wrong. The appellants in four of their questions have adopted the premise that appellee was given an option to purchase the 25 shares of stock but we have not discovered in the record, in respect of this stock, any of the characteristics of an option. This was simply the share appellee was to get in accordance with the original arrangement for distribution of the stock.

At the beginning of the trial of the issues, framed bv the pleadings we have analyzed, counsel for the appellants had suggested that the court first determine whether or not a contract had been formed and that if the contract should be established, it would then be ‘'convenient” to refer to a master the matter of accounting. The chancellor immediately assented to the first part of suggestion by announcing “All right,‘si'r. We will try the contract question — that is whether or not there is a contract.”

At the conclusion of the testimony, the chancellor found that a valid contract had been proved, and that the appellee was entitled to compensation and to the specified percentage of net profits of the corporation. He appointed a special master to take an accounting and render an accurate report of the affairs of the corporation for the period we have defined. This, procedure, suggested by counsel for appellants and followed by the court, seems to us logical but we cannot construe the eventual ruling as one determining the validity or invalidity of the contract on the narrow ground whether it was or was not in writing.

Upon appellants’ motion for clarification of the decree, so as to dispose of the issue whether or not appellee’s claim to the stock was well founded, the chancellor rendered a “clarifying order” in which he reiterated the existence of a valid contract, the performance by the appellee, and the establishment by appellee of his right to the salary and percentage of profits. He added that upon payment of $750 within 30 days, the appellee would be entitled to 25 shares of capital stock, and that in the event the Goldfarbs had caused all the stock to be issued to them they should disgorge 25 shares for appellee. He repeated that the master should inquire into the affairs of the corporation so that the net profits could be determined.

The appellants first challenged the court’s decree on the ground that the parties negotiated with the view of reducing their agreement to writing, but that this was not accomplished so no enforceable contract came into existence. We have concluded from an examination of the 'allegations of the complaint and the answers that the venture was actually launched and that appellee did perform services which were recognized and for which he was partially compensated. The chancellor found that he was entitled to the remainder of the compensation, that is, the salary for two weeks and the stipulated part of the profits. We have not been convinced his holding was clearly incorrect.

The computation of the net profits for the relevant period is more complicated. Decision that appellee was promised this remuneration was supported by testimony the chancellor believed, and when the chancellor so concluded, he appointed a master to take an accounting. This procedure was regular and sensible, and it accorded with the suggestion of counsel for appellants, to which we have alluded, made at the outset of the trial.

We find no error, so we affirm the decrees the appellants have assaulted.

Affirmed.

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


author: O’CONNELL, Justice.

text:
    Jean Mae ARONS, Appellant, v. Donald B. ARONS, Appellee.
    Supreme Court of Florida, Division B.
    April 10, 1957.
    Rehearing Denied May 9, 1957.

      Charles H. Wakeman, Jr., Miami, for appellant.
    Boardman & Bolles, Miami, for appellee.
   O’CONNELL, Justice.

Donald B. Arons, appellee, brought suit for divorce against his wife, Jean Mae Arons, the appellant.

Mr. Arons sought a divorce and custody of the three minor children of the parties. Mrs. Arons filed a counterclaim for divorce and custody of the three children of the parties. Other relief was prayed for by both parties but is not involved in this appeal.

On motion of Mr. Arons, a special master was appointed to take testimony and submit his findings of fact and law to the court. Mrs. Arons did not object to the appointment of a master. Pursuant to the order of reference, which was in usual form, the special master took voluminous testimony and thereafter made his report to the chancellor. This report, consisting of a total of 29 pages, was exhaustive.

In his report the master recited, among other things, that the testimony was conflicting, “that it is to the best interest and welfare of said children that the custody of said children be awarded to” Mrs. Arons, the mother of the children, whom the master found to be a fit and proper person to have the custody of said children. He found Mr. Arons guilty of extreme cruelty. He recommended Mrs. Arons be granted a divorce from Mr. Arons and that she be awarded custody of the three minor children, with reasonable rights of visitation with said children to be given Mr. Arons.

Mr. Arons filed exceptions to the special master’s report and after hearing thereon the chancellor entered a final decree wherein he decreed among other things that: (1) the parties be divorced each from the other; (2) the custody of the two younger children of the parties be given to Mrs. Arons; and (3) the custody of the oldest child of the parties be given to Mr. Arons. In each case the parents were given rights of visitation with the child or children living with the other. The decree also provided that when Mr. Arons was required to be out of the State of Florida for extended periods that the oldest child, custody of whom was given to Mr. Arons, was permitted to remain at the home of the paternal grandmother of the child, a -Mrs.' Arons, Sr.

Mrs. Arons filed her notice of appeal. Both parties filed assignments of error.

Mrs. Arons contends that the chancellor erred in awarding custody to Mr. Arons of the oldest child, Jack Roberts Arons, who at the time of the proceedings below was eight years of age.

Mr. Arons contends that the chancellor was correct in awarding him custody of the child, Jack Roberts Arons, but erred in not also awarding him custody of the two younger children, Cathy Jean Arons and Debra Arons, who were respectively six years and four months of age at the time of the proceedings in the court below.

The other provisions of the final decree are not involved in this appeal.

Mrs. Arons, the appellant, contends that under the decisions of this Court the findings of fact made by the special master in this cause, which master was appointed on motion of Mr. Arons and with the apparent consent of Mrs. Arons, came to the chancellor hearing the dignity of a verdict of a jury and should not have been disturbed unless shown to be clearly erroneous. Harmon v. Harmon, Fla.1949, 40 So.2d 209; Aldred v. Romano, Fla. 1952, 58 So.2d 436 and Frank v. Frank, Fla.1954, 75 So.2d 282. She contends that the master’s findings are correct and have not been shown to be clearly erroneous.

Mr. Arons, the appellee, agrees that the above cited cases are sound law, but argues that these same cases provide that the chancellor may override or modify the findings of the special master when justice requires, or when the record fails to contain competent substantial, evidence in support of the master’s findings. Mr. Arons contends that the record does not contain such evidence in support of the master’s findings.

Both parties agree that the questions in this appeal must be-decided by determining whether the special master’s findings were supported by competent and substantial evidence.

The transcript of the testimony consists of 663 pages and no effort will be made to summarize it. Suffice it to say there was evidence that Mrs. Arons was a good mother and capable of rearing her children, and there was evidence to the contrary. Much of the evidence on both sides came from members of the families of the parties with the bias and prejudice usually and naturally found in such testimony. The master heard this evidence personally and having had the witnesses, and particularly having had the parties to this cause before him, he under our decisions is considered to have had a better basis for judging the effect to be given such testimony and for determining the capabilities and actions of the parties, as parents, than did the chancellor who, as we have done, could only refer to the written record.

While the chancellor recited no findings of fact in his final decree we must assume from the provisions of the decree, measured by the rule established in the cases cited above, that he found that there was competent substantial evidence to support the finding of the master to the effect that Mrs. Arons was a fit and proper person to have the custody of all the children of the parties. If this were not true he should not have awarded custody of the two younger children to her.

Further, we must. assume that while he found the welfare of the two younger children would best be served by placing them in the custody of Mrs. Arons, the mother, he found the welfare of the oldest child would be best served by placing this child in the custody of Mr. Arons, the father.

In addition the chancellor must have found that the paternal grandmother of the children, Mrs. Arons, Sr., was also a fit and proper person to have the custody of the oldest child, and in fact that the oldest child would be better off in the care of the grandmother than in the care of the child’s own mother, since the decree provides that on those occasions when Mr. Arons, the father, is out of the State of Florida the oldest child may remain with the said grandmother rather than living with Mrs. Arons, the mother. The evidence shows that the father is out of the State at least six months of each year because of his employment.

The chancellor in effect overruled the special master in two particulars. First, he placed the oldest child in the custody of the father, Mr. Arons, whereas the master recommended that this child, as well as the other children, be placed with Mrs. Arons, the mother. Second, he provided that the oldest child could remain with the paternal grandmother when Mr. Arons was out of the State, whereas the master had found that the oldest child, who had spent about one half of his life in the care of the grandmother, Mrs. Arons, Sr., “did not receive proper care and training while in the custody of the Senior Mrs. Arons” and also found “that until the children, and particularly until Jackie Arons (the oldest child) is a little older and overcomes his present feeling of insecurity, that it would be for their best interest and welfare that they not be permitted to make any extended visits to the home of their grandmother Arons.”

We have carefully searched the record in an effort to determine whether those findings of the master which were overruled by the decree of the chancellor could be said to be clearly erroneous. We have concluded that there was competent substantial evidence as well as sound logical reasoning to support the master’s findings and recommendations on these points.

Although the father, Mr. Arons, contends that the chancellor erred in not giving him custody of the two younger children as well as custody of the oldest child, the real question before us is the custody of Jackie, the oldest child.

We have therefore given particular attention to determining whether the master . was clearly erroneous in his findings and recommendations as to custody of Jackie, and whether there were special facts or circumstances which would support the distinction which the chancellor made in the matter of the custody of Jackie, as opposed to the two younger children.

The evidence shows that Jackie by consent of both the parties and with the consent of Mrs. Arons, Sr., had lived about half of his life with Mrs. Arons, Sr., but there is nothing to indicate that by this Mrs. Arons had waived or should be considered to have lost any of her rights as to custody of Jackie.

There is evidence that on some of the occasions of these visits by Jackie with Mrs. Arons, Sr., he was ill with childhood diseases, but this is no reflection on either parent.

As above stated, the evidence shows that Mr. Arons, because of his occupation, is required to be out of the State for at least half of the year. He proposed, if given custody of the children, to have the assistance of his mother, Mrs. Arons, Sr., and his sister, who live in Dade County, in caring for the children. There is evidence that the relationship between Mrs. Arons, the mother, and Mrs. Arons, Sr., the grandmother, is not friendly. The right of visitation granted to the mother in the decree will, while the child lives with or is cared for by the grandmother, be at best a hollow right.

While there is little doubt that if Mr. Arons has the custody of Jackie, the child will, through Mrs. Arons, Sr., receive more of the material things of life than if he is in the custody of his mother, this factor does not of itself mean that the child’s total welfare will be best promoted thereby. Nor does it, of itself, justify the taking of a child from a parent who is a fit person to care for it.

The record shows that Jackie has had difficulties at school being somewhat backward and perhaps insecure. The ex-' planation for this is not apparent from the record, but it is obvious that the home •of the parties has not been harmonious, •else this case would not be before us. It is true also that Jackie has been shuttled between his parents’ home and that of his .grandmother and has been exposed to the .apparent conflict between his mother and grandmother. There is also the fact the father has been absent for more than half ■of each year. The master found as above stated that Jackie did not receive proper •care and training while with the grandmother, who has had the said child about half of his life. Any or all of these factors •could account for the child’s problems. But it cannot be said from the record that Mrs. Arons is the cause thereof. On the other hand we think that the evidence, and the inferences and the impressions which the master could have logically drawn therefrom, support his findings that the child would not be best off in the grandmother’s ■care, which he would be for the most of the year under the decree. We hasten to •say that the evidence does not show neglect •or abuse of the child by the grandmother, but many children who are considered as problem children are so as a result of being overprivileged, not underprivileged We do not intend to reflect on the grandmother for her motives were good, nor is she a party to this suit.

There is competent substantial evidence to show that Mrs. Arons is a proper mother to Jackie and as able to care for him as the other children. There is nothing to indicate either because of great difference in age between the children, which there is not, or because of Jackie’s problems that his mother cannot promote his welfare equally as well as that of the two younger children.

In fine, we find no reason which justifies the distinction made by the chancellor in dividing the children between the parties.

We are impressed with the fact too that the decree of the chancellor, which divides the children of the parties, will result in further destruction of what is left, after divorce, of this family unit. We are of the view that the children in a family should not be separated from each other and distributed about in different homes, except for the most compelling cause. For while brothers and sisters may not have a legal right to remain together, to share each others lives, and to grow up together, certainly they have a natural right to do so. Justice requires that society exercise its moral duty to insure that children in a family enjoy this right until such time as absolute necessity and the welfare of the children, itself, requires their separation. Such necessity does not exist here.

If further events show that the master’s findings and recommendations were not for the best interest of the children or if the mother does not prove her ability to properly care for the children the chancellor, who by his decree retained jurisdiction of matters pertaining to the children, can make such changes as are required by the circumstances.

That portion of the final decree in this cause awarding the custody of Jack Robert Arons to Donald B. Arons, the appellee here and plaintiff below, is reversed and the chancellor is directed to enter a decree as to custody of this child which is in keeping with the special master’s findings and recommendations. The chancellor is directed to take such further proceedings as shall be necessary to determine the question of support and maintenance for the minor child, Jack Robert Arons.

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


text:
    Rufus A. GRIFFITH, a minor, by his next friend, B. W. Griffith, Appellant, v. SHAMROCK VILLAGE, Inc., a corporation, Appellee.
    Supreme Court of Florida, Division B.
    May 1, 1957.

      Ellis & Adams, Fort Pierce, for appellant
    Sumner & Sumner, Fort Pierce, for ap-pellee.
   O’CONNELL, Justice.

Rufus A. Griffith, appellant here, was plaintiff in an action at law against the defendant, Shamrock Village, Inc., appel-lee here. The action was for compensatory and punitive damages alleged to have been suffered by plaintiff due to the alleged gross negligence of the defendant in failing to deliver a telephone message to plaintiff, who was at that time a tenant of the defendant. The parties will be referred to as they were below.

Plaintiff brings this appeal from a judgment for defendant rendered on a verdict of a jury for defendant.

Plaintiff was working in the City of Fort Pierce, Florida. He and two other men lived in one of the 200 rental units operated by Shamrock Village, Inc. Plaintiff was to be best man in the wedding of one of his brothers, which event was planned to be held in Cullman, Alabama on August 1, 1953.

The record shows the following events. On the night of 'Thursday, July 30, 1953, another brother, Frank Griffith, attempted .to call plaintiff from Jacksonville, Florida to inform him that the place of the wedding had been changed from Cullman to Birmingham, Alabama. A person to person call was placed to plaintiff at Shamrock Village between six-thirty and seven o’clock in the evening. It is alleged that the clerk of defendant answered the telephone and when asked- to get plaintiff on the line replied he would go see if he were in. The operator was asked to wait and in a few minutes she was informed that plaintiff had checked out and left no forwarding address. Plaintiff contends he returned from work to his apartment that night about seven o’clock. The records kept by defendant reveal plaintiff actually lived there for another two weeks. No message was placed in plaintiff’s box. The next evening, Friday, July 31, friends from Jacksonville, Florida informed plaintiff that his family had unsuccessfully attempted to reach him by telephone the previous day but they did not know for what reason. Plaintiff then tried to reach his family and their neighbors in Jacksonville but was unable to contact anyone who could advise him why his family had tried to reach him. Consequently, on Saturday, August 1, plaintiff traveled from Fort Pierce to Cullman, Alabama. He found no wedding there and after spending the night there returned to Fort Pierce the next day.

Plaintiff brought this action asking for compensatory damages for his travel expenses and loss from work. He also asked for punitive damages. Plaintiff contends that defendant voluntarily assumed the duty of receiving mail and telephone messages for its tenants and was grossly negligent in its lack of care and inattention to duty to him.

Defendant moved to dismiss the complaint. The court refused to dismiss as to compensatory damages but reserved its ruling as to punitive damages. Defendant filed its answer which consisted of denials. The case was tried before a jury. At the conclusion of the evidence the court granted the motion to dismiss as it pertained to punitive damages. The jury found defendant not guilty. A motion by plaintiff for new trial was denied and plaintiff appealed.

Witnesses for plaintiff corroborated his story as set out above. Their testimony also shows that shortly before the alleged telephone incident it came to the attention of plaintiff and his roommates that mail addressed to them at Shamrock Village had been returned to the senders marked “moved, left no address.” Their testimony also shows that two days before the telephone incident the plaintiff and his roommates approached the office of the defendant concerning their mail and were informed that the mistake would not again happen.

It appears from testimony produced for plaintiff that one answering the telephone at the desk of defendant’s office had but to turn his head to examine a revolving file placed nearby for the registration cards bearing the names of tenants then residing at Shamrock Village.

The person who supposedly answered the telephone call intended for plaintiff was not identified, and did not testify at the trial. Defendant’s only witness was the manager of Shamrock Village, Inc. This witness had no personal knowledge of the events which were alleged to have transpired. In summary he testified that: there were about 200 rental units in Shamrock Village and that there was no contract for telephone service to the tenants; there were two telephones, one at the desk in the office, and another, a pay station, “right in back of the front office”; that on several occasions calls to Shamrock Village had come over the pay phone rather than the desk phone; that when the pay telephone rang anyone near the phone, clerk or a guest would answer. On cross-examination he stated that if a call or message came in the office for a tenant the message would be put in the tenant’s box.

Plaintiff on appeal raises four questions.

He first contends that certain remarks made by counsel for defendant in his argument to the jury were prejudicial. Second, he says the court itself committed prejudicial eror in ruling and commenting on the objection made by plaintiff’s counsel to such remarks of defendant’s counsel.

We will consider these questions first.

Argument to the jury by counsel for defendant was not recorded, but the order of the court denying motion for new trial reveals:

“In his argument to the jury, after both parties had rested, Counsel For Defendant made the following statement, ‘Gentlemen of the Jury, I don’t believe this boy is telling the truth, I don’t believe you believe that he made a telephone call. What this Plaintiff wants is money.’, in which Counsel referred to the witness Frank Griffith by the phrase, ‘this boy’. Counsel for Plaintiff then objected. To overrule said objection, the Court then used the following words, ‘Gentlemen of the Jury, in making his argument, Counsel is only entitled to draw deductions from evidence.’ All of the foregoing occurred in the presence of the jury.
“In connection with the foregoing matter, the Court is of the view that the argument above referred to was not prejudicial and it may be further observed that in instructing the Jury in the case, the Court charged as follows :
“ ‘You as Jurors are to take the law and to it apply the facts as you find them from the evidence before you * * *. And right here, gentlemen, it is proper for me to say that it is upon this evidence, and this alone, that you are to try this case. * *

The remarks made by defense counsel were not discussion of the evidence in the cause nor were they in the nature of deductions or inferences which could properly be drawn from the evidence. No attempt was made to impeach plaintiff or his witnesses. Their testimony was neither contradictory nor contradicted by defendant’s evidence.

The statements of defense counsel suggest perjury and collusion on the part of plaintiff and his witnesses.

These remarks, being neither based on the evidence nor proper deductions from the evidence, were improper. Watkins v. Sims, 1921, 81 Fla. 730, 88 So. 764; 53 Am.Jur., Trial, Sec. 464, p. 370; Southeastern Greyhound Lines v. Groves, 175 Tenn. 584, 136 S.W.2d 512, 127 A.L.R. 1385.

The court’s comment in ruling on plaintiff’s objection to these remarks is ambiguous. The judge said, "Gentlemen of the Jury, in making his argument, counsel is only entitled to draw deductions from evidence.”

The jury might have understood this ■comment to mean that the objection was sustained, yet the judge in his order denying the motion for new trial labelled his remarks as an overruling of the objection.

It seems reasonable therefore that “the jury might well have taken the comment of the judge to mean that the judge was overruling the objection and that the judge agreed with defense counsel that his statements were proper deductions to be drawn from the evidence.

The statements of defense counsel being improper, the overruling of plaintiff’s objection thereto was error.

This error was not cured by the instruction which the court gave the jury. The court instructed the jury that it was to try the case only on the evidence presented before it. Yet he had also stated that counsel for defendant was entitled to draw deductions from the evidence and he allowed the improper statements of counsel to stand, undisturbed, before the jury as matters which could be reasonably deducted from the evidence.

It appears to us that the comment of the judge regarding deductions to be made from the evidence, following in the sequence it did, aggravated rather than corrected the improper statements. The instruction to try the case only on the evidence, in our opinion, did not cure this error.

Where error is made to appear, injury is presumed to follow. Southern Home Ins. Co. v. Putnal, 1909, 57 Fla. 199, 49 So. 922, 929.

Injury to the plaintiff is not difficult to presume under the facts of this case wherein the plaintiff’s evidence was not disputed yet the jury rendered a verdict adverse to him.

We conclude that statements of defense were improper and harmful to plaintiff, that the overruling of plaintiff’s objection to said statements was prejudicial error, and assuming, but not deciding, that such error could have been cured, it was not cured in this case.

Plaintiff’s third point charges that the verdict and judgment is against the weight of the evidence. It is unnecessary to answer this question in view of our ruling on the first two points presented.

Plaintiff’s fourth question relates to the court’s dismissing that part of his complaint pertaining to punitive damages.

Plaintiff contends that the defendant was guilty of an entire want of care in failing to deliver the telephone message and in advising the operator that he had moved and left no forwarding address. He says this amounts to gross negligence.

Plaintiff’s evidence shows and defendant in its evidence admits that it undertook to accept telephone calls and messages for its tenants and if the tenants were not in that a message would be placed in the tenants’ box in the office. While defendant denied that it contracted, either orally or in writing, to render such a service, it is clear to us that it had assumed such a duty to plaintiff.

The complaint on which this case was tried sounds in tort, not in contract.

The general rule is that punitive damages are not recoverable for breach of contract, irrespective of the motive of defendant. But where the acts constituting a breach of contract also amount to a cause of action in tort there may be a recovery of exemplary damages upon proper allegations and proof. In order to permit a recovery, however, the breach must be attended by some intentional wrong, insult, abuse or gross negligence which amounts to an independent tort. 25 C.J.S. Damages § 120, pp. 716-717.

In the case of City of Sebring v. Avant, 1928, 95 Fla. 960, 117 So. 383 and other related cases this Court has defined gross negligence as the want of slight care.

This Court has held that allowance of punitive damages is dependent on a showing of malice, moral turpitude, wantonness or outrageousness of tort. Dr. P. Phillips & Sons, Inc., v. Kilgore, 1943, 152 Fla. 578, 12 So.2d 465; Ross v. Gore, Fla.1950, 48 So.2d 412.

Plaintiff did not allege nor prove that defendant acted or failed to act from malice or wilfully. He argues that malice is imputed to defendant because of the entire want of care or attention to the implied duty which defendant owed to plaintiff.

In Kirksey v. Jernigan, Fla.1950, 45 So. 2d. 188, 17 A.L.R.2d 766 this Court held that punitive damages were allowable for and that malice could be imputed from the entire want of care or attention to duty, or great indifference to the persons, property or rights of others. This is consistent with the theory that punitive damages are allowed as a deterrent to commission by others of similar offenses. The holding in the Kirksey case was recognized in the later case of Crane v. Loftin, Fla.1954, 70 So.2d 574.

Since the trial judge allowed the claim-for punitive damages to remain in the complaint until after all evidence had been submitted at the trial, it seems to us that he reasoned as we have here that punitive damages can be recovered in actions such as this and that malice may be imputed to defendant from gross negligence, i. e., a want of slight care.

It further follows that the trial judge must have concluded that as a matter of law the proof submitted in this case would not support an award for punitive damages. We cannot agree.

There was evidence on which the jury could have found that there was an entire want of care or a want of slight care or attention by defendant to the duty it had assumed toward plaintiff. From this the jury could have imputed malice to the defendant. The evidence could have supported a verdict for punitive damages.

Inasmuch as it was not clear as a matter of law that an award for punitive damages could not be allowed to stand, if rendered by the jury, the court should have instructed the jury thereon and submitted the matter to it for determination. Whether or not the elements are present to warrant it is for the jury to determine in the light of all the evidence presented to it, Dr. P. Phillips & Sons, Inc., v. Kilgore, supra.

The appellee has not favored us with a brief and we do not have the benefit of its contentions in this matter. Briefs of the parties are of great assistance to this Court. If such were not true there would be no cause for allowing them to be filed. Failure to file a brief frequently reacts to the detriment of a party.

Counsel who allows his name to Ibe shown as representing a party in an -appeal, or in any other legal proceeding, ■should either do that which is reasonably required to advance his client’s cause, or see to it that his reasons for not doing so are apparent to the client and to the court considering the matter.

Reversed and remanded for new trial.

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


author: THORNAL, Justice. DREW, Justice PARKS, Associate Justice

text:
    Elaine Edna WARD, a minor, by her father and next friend, John Edward Ward; and John Edward Ward, individually, Appellants, v. Alva Rufus BASKIN, Appellee.
    Supreme Court of Florida, En Banc.
    May 1, 1957.
    Nichols, Gaither, Green, Frates & Beck-ham, Sam Daniels and J. B. Spence, Miami, for appellants.
    William R. Alvin, Miami, for appellee.
   THORNAL, Justice.

Appellant, John Edward Ward, individually, who was a plaintiff below, seeks reversal of a judgment entered in favor of appellee, Baskin, who was defendant below, in an action for damages for injuries to appellant’s minor daughter.

The sole point is the correctness of the ruling of the trial judge in instructing the jury that the contributory negligence of the mother would be a bar to recovery by the father, individually.

Appellant Ward, as father and next friend of his two-year-old daughter Elaine, and, individually, sued appellee Baskin for the alleged negligent injury of the daughter resulting from the operation of an automobile. The jury found for the child but against the father in his individual capacity. A judgment followed the verdict. No appeal was taken on the judgment in favor of the minor child. The father, however, in his individual capacity, seeks reversal of the judgment in favor of the defendant below.

The appellant contends that the trial judge committed error in instructing the jury to the effect that the contributory negligence of the mother of the child would bar recovery by the father as an individual.

The appellee contends that the instruction on contributory negligence was proper under our decision in Klepper v. Breslin, Fla.1955, 83 So.2d 587.

The briefs of the parties with admirable succinctness squarely present the issue. The discussions oí counsel are devoted entirely to a consideration of the applicability of the Klepper decision to the case at bar. The trial judge was obviously of the view that the Klepper case was controlling and accordingly gave the instruction under attack. The instruction to which objection is here made reads as follows:

“If, from the evidence, you find the mother of Elaine Edna Ward failed to observe reasonable care, or to exercise reasonable care, control and supervision of the child, Elaine Edna Ward, then the mother of the child would be guilty of negligence which would bar recovery by the father, John Edward Ward, as said negligence is applicable to the father.”

It is the position of the appellee that the decision in the Klepper case announced the rule that in all situations where a father brings suit for death or injury of a minor child and the normal family relationship exists, then the father is bound by the contributory negligence of the mother. In other words, it appears to be appellee’s analysis of the cited decision that the mere existence of the relationship of husband and wife justifies imputing the negligence of one to the other.

A judicial opinion should be evaluated as a precedent in the light of the factual situation that gives rise to the opinion. The law is not a mathematically exact science. A perfectly sound principle as applied to one set of facts might be entirely inappropriate when a factual variant is introduced. This leads us to a consideration of the Klepper opinion in view of the issue raised by this appeal.

We believe that a cautious analysis of the Klepper decision will not justify the conclusion suggested by the appellee. Admittedly, the strong and able dissent in that case suggested that the majority opinion for all practical purposes receded from our long-established rule against the imputation of negligence. Admittedly also, the author of an article in the Miami Law Quarterly seems to have arrived at the same conclusion. See Miami Law Quarterly, Vol. X, No. 4, p. 591. We, therefore, welcome the opportunity to use the instant case as a vehicle to delineate clearly the distinctions.

We begin with the proposition that the mere relationship of husband and wife does not in and of itself constitute a sufficient basis upon which to impute to the wife or husband the negligence of the other. Bessett v. Hackett, Fla.1953, 66 So.2d 694. We find nothing in Klepper v. Bres-lin, supra, contrary to this general rule. In order to justify this conclusion we think it well that the reader refer to the factual situation presented to the Court in the Klepper case and further bear in mind that we were there interpreting and applying Section 768.03, Florida Statutes, F.S.A., which is the act giving a right of action to parents for the wrongful death of a minor child. It was against this backdrop cyclo-rama that the tragedy unfolded in the Klep-per decision. We there pointed out the significant peculiarities of the cited Florida statute. It was noted that after considerable research we found this statute to be peculiar to Florida with no exact counterpart in any other state. Hence the many decisions of other courts dealing with the subject are necessarily of little persuasion in Florida. The peculiarity consists in the provision that when suing for the wrongful death of a minor child, the father is authorized to recover damages not only for the loss of services but also for the mental pain and suffering of himself and his wife. We emphasized that the damage award under the statute was an indivisible one.

In Florida East Coast Railroad Company v. Hayes, 66 Fla. 589, 64 So. 274, 275, Section 768.03, Florida Statutes, F.S.A., was initially subjected to an assault on its constitutionality. The validity of the statute was upheld entirely on the proposition that it permitted a defendant to interpose “any defense applicable to the demand” asserted by the complaint. Furthermore, by reference to the factual situation presented to us in the Klepper case one will observe that in that unfortunate tragedy we cautiously pointed out that the father was thoroughly familiar with the alleged negligent conduct of the mother; that he had made provision for protecting the child against the exact situation which ultimately occurred. Over a period of several months he knew that the mother was failing to make use of the precautions which he had provided for the child’s safety and that he had done nothing whatever to prevent such deviations from the degree of care dictated by consideration of the child’s safety. Again, in fairness to the parents in the Klepper case (just as we did in our opinion there), we do not intend to construe their conduct as negligence as a matter of law. The factual situation, however, was pointed out in order to justify the conclusion that there was evidence from which a jury could conclude that contributory negligence existed. Furthermore, time and again in the Klepper decision we attempted to emphasize that the ultimate judgment evolved around and radiated from the peculiarities of the particular statute and the actual factual situation that produced the result. To give further emphasis to our last statement, our judgment in the Klepper case concluded [83 So.2d 593] “that where a father institutes an action for the wrongful death of a minor child it is proper, if the facts so justify, as in the case before us, to assert against the father the defense of contributory negligence grounded upon the negligent acts or failure to act” of the wife and mother.

In referring to our opinion in Winner v. Sharp, Fla.1950, 43 So.2d 634, a case involving the defense of contributory negligence of a third party custodian of a minor child, we pointed out that we were not intending to hold that the mother occupies the position of a third party custodian whose contributory negligence might bind the parents who employ her.

In the ultimate, therefore, we feel that the foregoing analysis of the Klepper decision adequately and completely distinguishes it from the situation presented by the instant appeal. We have felt justified in dwelling ■ on the matter at considerable length for the simple reason that if confusion exists in applying the decision to the instant case it might well exist in its application to others. We think such potential confusion should be eliminated.

We now recur to the point before us. Was it proper to instruct the jury on the contributory negligence of the mother as binding the father in the instant case? This was an action for injury to the child rather than for wrongful death. The father sued in his own right to recover for expenses occasioned by her injury. We cannot hold him responsible for the alleged negligence of his wife because in this state we do not impute the negligence of a husband or wife to the other spouse merely because of the existence of the marital relationship. We have definitely held in other cases that this could not be done. Some courts appear to be receding from the rule but we have not done so in Florida. See Bessett v. Hackett, Fla.1953, 66 So.2d 694. See also, De Salvo v. Curry, 160 Fla. 7, 33 So.2d 215.

It was therefore error to give the instruction quoted in the forepart of this opinion. The judgment is—

Reversed.

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

DREW, J., concurs in judgment only.

PARKS, Associate Justice, dissents.

DREW, Justice

(concurring in judgment only).

I agree that the lower court erred in giving, as he did, the instruction quoted in full in the foregoing opinion of Mr. Justice THORNAL.

PARKS, Associate Justice

(dissenting).

I agree that the marital relationship of husband and wife of itself furnishes no basis to impute the contributory negligence of the mother in the care of their child to the father while they are in her sole custody and control. In my opinion, it is a misconception of the law to ground the responsibilities and obligations of the parents inter sese in their management and control of the persons of their children, strictly on the marital relationship. The true basis of imputing the contributory negligence of the mother to the father vel non in these circumstances is grounded solely upon their mutual duties and obligations as joint natural guardians. Such duties and responsibilities though springing from the marital status are independent positive obligations imposed by law.

At common law, as repeatedly declared in former decisions of this Court, the father was the natural guardian of the children and as such was vested with the custody and control of their persons to the exclusion of the mother. The law imposed upon the father the concomitant responsibility and duty of guarding and protecting the safety and welfare of his children. In the execution of his duties he was required to use all reasonable care and diligence. His sole natural guardianship continued until the enactments of the Legislature, now embodied in Section 744.13, F.S. 1955, F.S.A., converted such guardianship to a joint one of the father and the mother. Thenceforth the rights, duties and responsibilities of the father toward his children and their persons as natural guardian be- • came vested equally and jointly in the father and the mother.

Subsequent to this change in the status of the guardianship there appears no valid reason why it should not be held that the custody of the children by either of the natural guardians is also the custody of the other and therefore the negligence of either in the execution of the duties and responsibilities toward the children is the negligence of the other. It is a strained and narrow view that whittles away the scope of this joint obligation to hold that the father, while away for the day occupied with his duties as the breadwinner of the family, is exempt from the joint responsibility of himself and wife to see to the safety of their children on the theory that her negligence as the custodian of their persons was hers only and not his as well. To so hold would require a negligent third party to reimburse him for his loss of the services of the child and expenses incident to her treatment for the injuries received, notwithstanding the concurring negligence of his co-guardian in failing to look after the child. Such holding is an unrealistic view of the responsibilities of the joint guardianship. So long as we have the doctrine of imputation of contributory negligence it should be recognized in this case. And particularly is this emphasized when, as here, the child injured was only two years old and wholly incapable of looking after her own safety. In my opinion neither De Salvo v. Curry, 160 Fla. 7, 33 So. 2d 215, nor Bessett v. Hackett, Fla., 66 So. 2d 694, are applicable to this case because they involve merely the question of imputation of the husband’s negligence in the operation of his car, to his wife, a passenger. The question we have here is of first impression in this State as far as I can find. It is hardly necessary to add that the child’s right of recovery against such wrongdoer would not be prejudiced.

I think the charge of the Judge substantially complied with the law.


author: FOURNET, Chief Justice.

text:
    232 La. 614
    Dr. Sidney M. COPLAND v. William E. STAVIS.
    No. 43333.
    Supreme Court of Louisiana.
    April 1, 1957.
    Jorda S. Derbes, Raoul Sere, New Orleans, for defendant-appellant.
    Steeg, Shushan & Pradel, New Orleans, for plaintiff-appellee.
   FOURNET, Chief Justice.

The plaintiff (appellee) seeks to have us dismiss the appeal of the defendant insofar as it suspends execution of the lower court’s judgment condemning the defendant to vacate the premises at 330 N. Rampart Street. The judgment also decreed that the lease between the parties covering the premises had been terminated.

It appears that the judgment appealed from was rendered on the 19th of December, 1956, and on the same date bond was furnished to the amount of $750, as fixed by the Court in the defendant’s motion for a suspensive appeal. On trial of plaintiff’s-rule, an additional suspensive appeal bond in the sum of $1,500 was ordered by judgment dated January 14/1957, and bond was furnished in accordance therewith on the 16th of January following, at 10:30 a. m.

The appellee contends that the supplemental bond, having been filed more than twenty-four hours after reridition of the judgment ordering that the additional bond be furnished, comes too late to suspend execution of the judgment of ejectment; and that the provisions of R.S. 13:4572 et seq., dealing with bonds in judicial proceedings, do not relate to a suspensive appeal bond in an ejectment suit.

The appellee’s contentions are clearly without merit. The supplemental bond was furnished in strict conformity with the judgment of the court, requiring appellant “to furnish a supplemental or additional suspensive appeal bond herein in the sum of $1,500 in accordance with R.S. 13:4572 et seq. within the time prescribed by law and under the penalties prescribed by law.” In securing that judgment the appellee followed the procedure directed in R.S. 13:4573 for furnishing a new, additional or supplemental bond; appellant furnished the supplemental bond within the time therein prescribed; and“* * * Any new bonds so furnished, and any supplemental or additional bond, shall have the same effect as to principal and surety as if it had been furnished in the original bond and had been filed on the date of the filing of the original bond, and the surety or sureties thereon shall be liable to the extent of their obligation solidarily with the sureties on the original bond. * * * ” R.S. 13:4572. (Emphasis added.)

For the reasons assigned, the motion to dismiss the suspensive appeal is denied.