text:
    FERRO v. FOOD FAIR STORES OF FLORIDA, Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


source: Caselaw Access Project

license: Public Domain

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


text:
    HART v. TOLE ELECTRIC CO.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


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


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


text:
    SAV-A-STOP CO. OF TAMPA v. KIMPEL.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


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


text:
    WARR v. FLORIDA POWER CORPORATION.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


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


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


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


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


text:
    FIRST ATLANTIC NATIONAL BANK OF DAYTONA BEACH v. TAPPY.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    JOHNSON v. PAN AMERICAN BANK OF MIAMI.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


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


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


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


text:
    BANKERS LIFE & CASUALTY CO. v. ROSS (three cases).
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


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


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


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


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


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


text:
    STATE ex rel. BANK OF HAINES CITY v. HARDEN.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    TOWNSEND SASH & DOOR LUMBER CO. v. GILLESPIE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


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


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


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


text:
    PIONEER DEVELOPMENT CO. v. MARKS.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    BARTLETT v. GUARANTEE ABSTRACT CO.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    COWAN v. CLEARWATER ISLAND BRIDGE CO.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


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


text:
    SPRING VILLAS, Inc. v. WILLIAMSON.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


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


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


text:
    MAASS BROS., Inc. v. BENITEZ.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    LAIRD v. LYKES BROS., Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    TATUM v. LYKES BROS., Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    THOMAS v. LYKES BROS., Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    BRICE v. LYKES BROS., Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    BRANNON v. LYKES BROS., Inc. (two cases).
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    GIBBONS v. LYKES BROS., Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    EDGE v. LYKES BROS., Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    WILLIAMS v. LYKES BROS., Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    McDANIEL v. LYKES BROS., Inc. (two cases).
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    LEE v. LYKES BROS., Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    BUTTS v. LYKES BROS., Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    ROBINSON v. LYKES BROS., Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    BOATWRIGHT v. LYKES BROS., Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    HUGHES v. LYKES BROS., Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    YARN v. LYKES BROS., Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    IVORY v. LYKES BROS., Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    WADLEY v. LYKES BROS., Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    John Robert McDANIEL v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    Hugh H. COLSON v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    Covie Berry STRICKLAND v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    Joseph ROBINSON v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    Eliza GOUVEIA v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    STATE v. Lola Mae TURNER.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    Wesley Lamar WILLIAMS v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    Clarence MELTON v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    Ernest HIGGINBOTHAM v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    Rene PEREZ and Margaret Perez v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    Ronald Victor ROUSSELET v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    Robert WALLACE v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    Otto THARP v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    O’BARR v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    STATE ex rel. MOSS v. KELLY.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    Eddie GRAHAM v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    Charles HINSON v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    Charles ADAMS, Bell Oliver and Roy Bradberry v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    Charlie JONES v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    W. A. BRAY v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    John HEWETT v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    Robert VANN v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


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


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


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


text:
    SKELTON v. INTERNATIONAL INSURANCE CO.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    FLORIDA LITH-I BAR, Inc. v. BORKO.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    GLENS FALLS INDEMNITY CO. v. STATE ROAD DEPARTMENT (two cases).
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion,


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


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


text:
    EAST COAST REALTY CONSTRUCTION CO. v. JERONIMO (two cases).
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


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


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


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


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


text:
    McCUTCHAN v. JACKSON.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without' opinion.


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


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


text:
    HAAS v. PALM BEACH COUNTY.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


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


text:
    STEVENS MARKET, NO. I v. PIERETTI.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    COPELAND v. FLORIDA PUBLISHING CO.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    SPRINGER v. McDonnell (two cases).
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    STATE ex rel. MURRAY v. SAUNDERS.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    BROWNING v. FLORIDA POWER & LIGHT CO.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    GERRITS v. O’NEIL.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


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


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


text:
    RAINEY LAND CO. v. SPIRES.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


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


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


text:
    SIMON v. STERN (two cases).
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    PRESIDENTIAL INSURANCE CO. v. MATZ.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.--


text:
    STATE ex rel. HOPPER v. HALL.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinión.-


text:
    GNANN v. SIMARD.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.- •


text:
    STATE ex rel. MILLER v. SWEAT.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinión.


text:
    FOX v. FLORIDA POWER & LIGHT CO.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    BEACONFIELD BUILDERS, Inc. v. FIRST NATIONAL BANK OF MIAMI.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    OLIN’S, Inc. v. CARROLL.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


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


text:
    CARROLL v. OLIN’S, Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    STATE ex rel. HARTMAN v. CITY OF DAYTONA BEACH.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


text:
    GREEN v. STATE ex rel. DOSH.
    Supreme Court of Florida.
    Jan. Term 1957.
   Dismissed without opinion.


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


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


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


text:
    Coy MESSER v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    KINLEY v. MILLER.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    NELSON v. FOOD FAIR STORES.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without .opinion.


text:
    John Tommy GLASCOE, II v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    Herman R. BERR v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    Don ORLANDO v. STATE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    LEWIS STATE BANK v. MARKS.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    L. & R. CORPORATION v. BETHEL.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari • de'nied without opinion.


text:
    GREEN v. MAULE INDUSTRIES, Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    FLORIDA STATE UNIVERSITY CAFETERIA v. QUICK.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    WILLIAMS v. TOWN OF REDINGTON BEACH.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    POWER v. JOSEPH G. MORETTI, Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    ROBINSON v. McCOY.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    ARTIST v. LAWLER.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    FREEMAN v. BURNUP & SIMS.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. KIGHT and Florida Industrial Commission.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    LYMAN v. SHERRY FRONTENAC HOTEL.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    FILOMIO v. MAULE INDUSTRIES, Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    MAULE INDUSTRIES v. SICKLER.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    GULF BEACHES PLASTERING CO., Inc. v. WELCH.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    AR-WIN PLASTERING CO. v. STYLES.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    FOWLER CORPORATION v. McPHAIL.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    HUMANE SOCIETY OF GREATER MIAMI v. DALTON.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    RED TOP CAB & BAGGAGE CO. v. FROST.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    SUMMERALL v. BROWN.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    CENTURY INDEMNITY CO. v. RAINEY.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    BURDINE’S, INC. v. EDDINGTON.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion,


text:
    WILSON v. COSGROVE.
    Supreme Court of Florida.
    Jan. Term, 1957.
   Certiorari denied without opinion.


text:
    DIXIE BEDDING MANUFACTURING CO., Inc. v. PERIOD WOOD WORKS, Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    ARNOLD PRODUCTS CO. v. KEENAN.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    JAL-DOR CO. v. KEENAN.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    BEVIS v. McDOWER.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    ASSOCIATED FIBRE CO. v. COMFORT SPRINGS CORP.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    CITY OF ORMOND BEACH v. THE CASEMENTS, Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    GLASSMAN v. DEAUVILLE ENTERPRISES, Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    THE JESTERS v. TAYLOR.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    LAUTENZI v. LAURENZI.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    ELLIOTT v. ABRAHAM.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    ROOD CO. v. LUBER.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    SLAFF v. CHAPMAN.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    DeWALT v. DeWALT.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    GULLE v. SHIELDS.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    MOTAK v. SHIKANY (two cases).
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    WEEKS v. ROBERTS.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    WRIGHT v. WATSON.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    MOLINA v. MOLINA.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    ASTOR v. ASTOR.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    CONKLIN v. THE CASEMENTS, Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    MIAMI SHORES VILLAGE v. CLARK.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    JAMES v. JAMES.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    DEWING v. DAVIS.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    ZARET v. AD-HER BAKERIES, Inc.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    DAVIS v. CARTER.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    IOWA NATIONAL MUTUAL INS. CO. v. LEGGETT.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


text:
    FISHER v. ROWE.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari , denied without opinion.


text:
    METROPOLITAN LIFE INS. CO. v. KIMBRO.
    Supreme Court of Florida.
    Jan. Term 1957.
   Certiorari denied without opinion.


author: PER CURIAM.

text:
    W. I. SHUMAN et al., Appellants, v. Emmett A. RUCKMAN et ux., Appellees.
    Supreme Court of Florida.
    Oct. 2, 1957.
   PER CURIAM.

Affirmed.


text:
    CITY OF ST. PETERSBURG BEACH, FLORIDA, a Municipal Corporation, et al., Appellants, v. TOWN OF BELLE VISTA BEACH et al., Appellees.
    Supreme Court of Florida.
    Oct. 4, 1957.
   PER CURIAM.

Affirmed.


text:
    Bertha ZABNER, Appellant, v. Murry KORETZKY, Appellee.
    Supreme Court of Florida, Division A.
    June 12, 1957.
    Petition for Rehearing Withdrawn Oct. 7, 1957.
   PER CURIAM.

Affirmed.


text:
    Lillian AUSTIN and Edward Austin, her Husband, Appellants, v. MIAMI HOME MILK PRODUCE ASSOCIATION, a Florida Corporation, Appellee.
    Supreme Court of Florida.
    Oct. 2, 1957.
   PER CURIAM.

Affirmed.


text:
    ATLANTIC COAST LINE RAILROAD COMPANY, a Corporation, and H. E. Weekly, Appellants, v. John Earl HERRING, Appellee.
    Supreme Court of Florida.
    Sept. 20, 1957.
    Rehearing Denied Oct. 14, 1957.
   PER CURIAM.

Affirmed.


author: CARROLL, CHAS., Chief Judge. HORTON, Judge

text:
    Carroll BAILEY, Appellant, v. Rose R. SWARTZ, Appellee.
    No. 57-146.
    District Court of Appeal of Florida. Third District.
    Oct. 10, 1957.
    Hylan H. Kout, Miami Beach, for appellant.
    Sibley & Davis, Miami Beach, for ap-pellee.
   CARROLL, CHAS., Chief Judge.

This is an appeal from a judgment rendered in the Circuit Court for Dade County. The appellant was the defendant in the court below, in a law action brought by a broker for the recovery of a commission on. a real estate transaction.

The jury’s verdict was for $5,175, representing a five percent commission on a sale price of $103,500. In granting judgment on the verdict, on November 8, 1955, the court added interest for almost three years prior to the judgment, which interest had not been found or included in the verdict. The pertinent part of the judgment was as follows:

“It is thereupon ordered and adjudged that the plaintiff, Rose R. Swartz, do have and recover of and from the defendant, Carroll Bailey, the sum of Five Thousand One Hundred Seventy-five Dollars ($5,175.00), together with interest thereon at the rate of six (6%) percent per annum from December 30, 1952, and her costs in this behalf expended and hereby taxed at $39.15, for all which said amounts let execution issue.”

The issue on which the case turned was whether or not the plaintiff broker was the procuring cause of the sale. The jury resolved that question in the plaintiff’s, favor, and the record discloses substantial evidence to support the verdict on that feature.

We have examined the record in the light of the twenty-two assignments of error which were filed, including those-dealing with charges to the jury, and no. error is made to appear, except for the inclusion in the judgment of interest which was not found by the jury in its verdict.

In a post-judgment order denying a motion to amend the judgment, the trial court defended its inclusion of the interest in the judgment as being supported by the case of Tucker v. Hughey, D.C.S.D.Fla. Miami Div.1947, 6 F.R.D. 545.

The Tucker case was a decision of a federal trial court, which does not appear to have been reviewed on appeal. The federal court referred to the Florida cases of Shoup v. Waits, 91 Fla. 378, 107 So. 769, and State ex rel. Boulevard Mortgage Co. v. Thompson, 113 Fla. 419, 151 So. 704, holding that a trial court is without authority to add interest to the verdict of a jury, but the federal court ruled to the contrary in the case before it because of certain features in the handling of that case.

We find no reason here why those decisions of the Florida Supreme Court should not be followed.

Accordingly, the cause is remanded with directions to enter a proper judgment in accordance with the verdict of the jury, so that the judgment, as of the date it was originally entered, will be in the amount of $5,175, plus the costs but without interest prior to that date; and, as so modified and entered, the judgment will stand affirmed.

Affirmed in part and reversed in part.

PEARSON, J., concurs.

HORTON, J., dissents.

HORTON, Judge

(dissenting).

I beg to differ with that portion of the opinion of my colleagues modifying the judgment of the lower court so as to remove therefrom the item of interest. The interest was not included in the jury’s verdict but only the debt. Interest was added by the trial judge in rendering judgment on the verdict. In so doing, the majority opinion concludes that the trial judge was in error and supports this view by the authority expressed in State ex rel. Boulevard Mortgage Co. v. Thompson, 113 Fla. 419, 151 So. 704. This case was decided by the Supreme Court of Florida in 1933. I have been unable to find any case in Florida since that time that has dealt directly with the point at issue here. However, in Parker v. Brinson Construction Company, Fla. 1955, 78 So.2d 873, 874, the Supreme Court, through Justice Drew said:

“The fact that there is an honest and bona-fide dispute as to whether the debt is actually due has no bearing on the question (interest). The rule is that if it is finally determined that the debt was due, the person to whom it was due is entitled not only to the payment of the principal of the debt but to interest at the lawful rate from the due date thereof. Sullivan v. McMillan, [37 Fla. 134, 19 So. 340, 53 Am.St.Rep. 239] supra; Everglade Cypress Co. v. Tunnicliffe, 107 Fla. 675, 148 So. 192.” (Emphasis supplied.)

In the instant case, the appellee claimed a specific amount as damages for breach of an oral contract of employment as a real estate broker and interest on said sum from a specified date. The trial judge, in instructing the jury, said in substance that if the appellee was entitled to recover, she was entitled to recover the amount sued for or nothing. In other words, the appellant was indebted to the appellee for a sum certain or nothing at all. The appellant denied the indebtedness and that was the whole issue of the case for the jury to decide. Interest was a mere incident to the debt, if and when the jury should find that a debt actually existed. It would appear most inconsistent under the pleadings in this case to theorize that the appellee had two causes of action, one for the debt and another for interest, or to say that she was entitled to two types of damages, those flowing from the debt found due the appellee and damages in the form of interest. Certainly the appellee could not have sued for or sustained an action for interest alone without proving the existence of the debt. In the present case, it seems to me that it was clearly within the province of the trial judge to enter the judgment that the law required to be entered on the pleadings after the only issues of fact were settled by the verdict in favor of the appellee without qualification.

I,therefore, conclude that the judgment of the lower court should be affirmed.


author: DAYTON, Associate Judge.

text:
    James E. MARSH, Appellant, v. SARASOTA COUNTY et al., Appellees.
    No. 6.
    District Court of Appeal of Florida. Second District.
    Sept. 18, 1957.
    Rehearing Denied Oct. 29, 1957.
    Early & Early, Sarasota, for appellant.
    Wood & Bailey, Sarasota, for appellees.
   DAYTON, Associate Judge.

The .1945 session of the Florida Legislature enacted Chapter 22860, Laws of Florida (Section 253.351, Florida Statutes 1955, F.S.A.) authorizing qualified veterans to homestead not more than forty acres of public land and authorizing any county of Florida to “open up any wild and vacant lands owned by the county for homestead purposes” by resolution of the Board of County Commissioners.

The Board of County Commissioners of Sarasota County adopted a resolution on September 29, 1947, which had the effect of opening up county-owned land for homestead purposes. On March 7, 1949, the Board of County Commissioners of Sarasota County adopted a resolution to the effect that all acreage owned by the County be set aside for county purposes and be withheld from public sale. On August 1, 1955, the Board adopted a resolution instructing the County Clerk not to sell any county-owned lands without specific instructions from the Board of County Commissioners. On August 22, 1955, appellant presented his application for homestead to the County Clerk who declined to accept it. On September 12, 1955, appellant presented another application which was received by the Clerk and, upon instruction by the Board of County Commissioners, transmitted to the Trustees of the Internal Improvement Fund at Tallahassee, together with copies of various resolutions of the Board of County Commissioners setting forth the position of the County Commissioners in the matter. The application was confirmed by the Trustees of the Internal Improvement Fund on September 20, 1955.

Appellant filed his original bill of complaint on October 20, 1955, against Sarasota County, et al., to enjoin the sale of the land which he sought to homestead, but the land was sold by the County to the highest bidders on October 21, 1955. The bill of complaint was then dismissed but an amended complaint naming the purchasers as defendants was sustained. Pursuant to notice the matter was set down for final hearing on the amended complaint and answer, and at such hearing the chancellor dismissed the complaint upon his finding that the land in question was not available for homesteading at the time appellant presented his application. The chancellor indicated that he was proceeding upon “Defendants’ motion for summary judgment”, although the record does not disclose a formal motion for summary judgment or summary final decree. The procedure at the final hearing was that the defendant county offered two witnesses and documentary evidence of resolutions of the Board of County Commissioners, following which the Plaintiff made a proffer of the evidence which he proposed to introduce. The chancellor ruled that the proffer was “not sufficient to counteract the testimony of the defendants in this case” and entered a final decree in favor of the County, from which this appeal is taken.

We are, therefore, concerned with the determination of two questions: (1) Was .the entry of the final decree at that time in the trial and pursuant to the notice given proper under the 1954 Rules of Procedure ?, and (2) Was the resolution of the Board of County Commissioners of March 7, 1949, effective to withdraw county-owned lands from availability for homestead purposes?

Concerning the first question, we make the observation that objections to procedural matters not raised in the lower court cannot be raised on appeal, and a party who fails to make timely objection to what he considers procedural irregularities at the time of trial will be deemed to have waived the same by acquiescence. Watkins v. Riverside Military Academy, 156 Fla. 398, 23 So.2d 386.

It clearly appears from the record in this cause that the appellant made no objection in the court below to what he now contends were procedural irregularities, and it further appears that the appellant acquiesced in the procedure had by requesting and receiving assurances that the chancellor would give proper consideration to his amended complaint and his proffer of evidence. We find no impropriety in the entry of a judgment by the chancellor at any time in the proceeding when it clearly appears that upon all questions of fact before him the court may give judgment as a matter of law. Hillsborough County v. Sutton, 150 Fla. 601, 8 So.2d 401; Manning v. Clark, Fla., 71 So.2d 508; Anderson v. Maddox, Fla., 65 So.2d 299.

The court below found that as a matter of law the land was not available for homesteading by veterans after March 7, 1949, by virtue of the aforesaid resolution of the Board of County Commissioners on that date, and that such land was not available when appellant filed his first application.

Appellant contends that the county, having “opened up” the public lands for homestead purposes, was without authority to close such lands for homestead for the reason that such power was not granted by the veterans’ homestead act aforesaid, and is not necessarily implied therefrom. It is our view that the power to close such lands to homestead is a necessarily implied power vested in the Board of County Commissioners. The operation of other statutes which govern the Board of County Commissioners in the disposition and management of county-owned lands of necessity requires that there be such authority; otherwise the force of such statutes could not be construed “in harmony with the whole course of legislation” governing the actions of the Board of County Commissioners in the disposition of county-owned lands. City of St. Petersburg v. Pinellas County Power Co., 87 Fla. 315, 100 So. 509.

We agree with the finding of the learned chancellor that the lands in question were not available for homestead by veterans at the time of appellant’s original application. The final decree, therefore, is affirmed.

KANNER, C. J., and PLEUS, J., concur»


author: CARROLL, CHAS., Chief Judge.

text:
    Elizabeth M. SCHEUERMANN and Henry Scheuermann, Appellants, v. George J. SHAMAS, Intervenor, Appellee.
    No. 57-123.
    District Court of Appeal of Florida. Third District.
    Oct. 8, 1957.
    Rehearing Denied Oct. 31, 1957.

      Franks & Gordon, Miami, for appellants.
    George J. Shamas, Miami, appellee, in pro. per.
   CARROLL, CHAS., Chief Judge.

This is an appeal by both of the parties to a divorce suit, challenging the fee allowed by the circuit court to an attorney who represented the wife during the first part of the suit.

The appellee Shamas acted as the attorney for the appellant Elizabeth M. Scheuermann, in the suit for divorce which she filed against her husband on November 1, 1954. She dispensed with his services after the case became at issue, but before trial.

On the attorney’s motion, the court fixed his fee, allowing him $7,500, which the court required the plaintiff wife to pay to him at that time, reserving for subsequent determination the ultimate charging thereof as between the parties. The fee was paid, and there was a substitution of counsel. The new attorneys for the wife then amended the complaint and proceeded with the cause which ended with a final decree dated March 28, 1955, divorcing the parties and approving a stipulation by which they had adjusted between themselves the other matters in litigation, including disputes as to property and 'custody of the children.

In the final decree the court confirmed the allowance of the fee to the attorney Shamas in the amount of $7,500, and charged one-half against the plaintiff wife and one-half against the defendant husband.-

The wife took no appeal from the final decree. The husband appealed, but later dismissed his appeal by stipulation with the attorney Shamas. The reason for dismissing the appeal, and the object of the stipulation, was to reopen the case for the purpose of presenting additional evidence relating to the Shamas fee, in connection with which the attorney Shamas was to intervene as a party in the case.

On July 25, 1955, four months, lacking three days, after the final decree was entered, the lower court made the following order:

“Ordered, Adjudged, and Decreed that that portion of the final decree in reference to attorneys fees for George J. Shamas, be and the same, is hereby set aside for the purpose of allowing additional testimony to be taken. It is:
Ordered, Adjudged, and Decreed that George J. Shamas be and he is hereby allowed to intervene and take additional testimony relating to all phases of said attorneys fees. It is further:
“Ordered, Adjudged, and Decreed that additional testimony may be taken by A. C. Franks, if he deems it necessary.”

A year later, on July 24, 1956, the court made an order reestablishing the final decree as to the attorney fee allowance, without change. It is this last order, which has been appealed from by both of the original parties to the divorce suit. For the reasons set out below, the questions raised on their appeal relating to the allowance and charging of the attorney’s fee, must go unanswered.

At the outset, we are met with the situation that this appeal was taken from a post-final-decree order. Such an order being interlocutory in nature, the proper method of obtaining review at the time of this appeal was by writ of certiorari. Section 59.02(3), Fla.Stat., F.S.A.; Connolly v. Connolly, Fla.1956, 86 So.2d 167. However, under Section 59.45, Fla.Stat., F.S.A., the notice of appeal will be considered as a petition for certiorari. Cf. Smehyl v. Hammond, Fla. 1950, 44 So.2d 678; and Thomas Jefferson, Inc., v. Hotel Employees Union, Fla.1955, 81 So.2d 731, 732. See, also, Houk v. Dade County, Fla.1957, 97 So.2d 272.

The final decree of March 28, 1955, became absolute when the time allowed for rehearing elapsed. Mabson v. Christ, 96 Fla. 756, 119 So. 131, 132-133; Eberle v. Wilson, 97 Fla. 384, 120 So. 851; and Pace v. Pace, 99 Fla. 859, 128 So. 488, 489.

The court was without jurisdiction to grant the order, four months after the final decree, opening the case for further litigation of the fee question, and that order was a nullity. Atwell v. Atwell, 111 Fla. 352, 149 So. 555, 556; Bartlett & Sons Co. v. Pan-American Studios, Inc., 144 Fla. 531, 198.So. 195, 196; and Jappe v. Heller, Fla.1953, 65 So.2d. 302.

The subsequent order of July 24, 1956, to which this appeal or review was directed, was a nullity for the same reason.

The allowance of attorney fees, which is-being challenged on review, was' made in. the final decree of March 28, 1955, and not by the last order, dated July 24, 1956.

The present appeal or certiorari can not serve to reach the allowance of attorney fees made in the final decree; first, because this review is directed to the post-final-decree order which, as stated above,, was made without jurisdiction and was a. nullity, and, secondly, since the fee allowance was made in the final decree and not by the subsequent order, and no appeal from the final decree was perfected, the review directed to the later order can not reach back to the final decree. See Klemenko v. Klemenko, Fla.1957, 97 So.2d 11.

Accordingly, this appeal must be treated as a petition for certiorari, which hereby is denied.

So ordered.

HORTON and PEARSON, TT„ concur.


author: ALLEN, Judge.'

text:
    James Raymond CLOWNEY, Appellant, v. STATE of Florida, Appellee.
    No. 80.
    District Court of Appeal of Florida. Second District.
    Oct. 16, 1957.

      J. Ben Watkins (of Truett & Watkins), Tallahassee, Elmer O. Roberts, Ft. Lauder-dale, and Reasbeck & Fegers, West Hollywood, for appellant.
    Richard W. Ervin, Atty. Gen., and David U. Tumin, Sp. Asst. Atty. Gen., for ap-pellee.
   ALLEN, Judge.'

The appellant in this case was convicted on a charge of driving an automobile while intoxicated and causing the death of a human being. Appellant moved for a new trial, which was denied, and was sentenced to a term of two years in the State Penitentiary.

The information filed against the appellant was in two counts, the first charging manslaughter by culpable negligence and the other charging manslaughter from operating an automobile while intoxicated.

Two separate counts or charges are often made by the State when prosecuting a defendant for a death resulting from driving an automobile while intoxicated, one of which charges culpable negligence. If the State proves a death resulting from the operation of an automobile while intoxicated, this meets the requirements of statutory manslaughter set forth in Florida Statutes, Section 860.01, F.S.A.

It is not sufficient under Section 860.01, Florida Statutes, F.S.A., to prove that the defendant was under the influence of intoxicating beverages; it must be proved the defendant was intoxicated. If, however, manslaughter by reason of culpable negligence is charged, the State may show that the defendant was intoxicated or under the influence of intoxicating beverages in addition to other acts which tend to ■show culpable negligence.

In this case, the defendant, Clowney, was charged on two counts. One, manslaughter through culpable negligence, and the other causing a death while driving an automobile in an intoxicated condition; two separate charges. Was the defendant prejudiced by the charge of the lower ■court that:

“If the death of any human being be caused by the operation of an automobile by a person under the influence of intoxicating liquor, he shall be deemed guilty of manslaughter, and upon conviction, shall be punished as provided by the law relating to manslaughter.” ?

Florida Statutes, Section 860.01, F.S.A., provides:

“Driving automobile while intoxicated; punishment. — It is unlawful for any person, while in an intoxicated condition or under the influence of intoxicating liquor to such extent as to ■deprive him of full possession of his normal faculties, to drive or operate ■over the highways or streets or thoroughfares of Florida any automobile, truck or vehicle or motorcycle or any other vehicle propelled by gasoline, gas, vapor, electricity, steam or other power. Any person convicted of a violation of this section shall be punished as provided by section 317.20.
“If however, damage to property or person of another, other than damage resulting in death of any person, is done by said intoxicated person under the influence of intoxicating liquor to such extent as to deprive him of full possession of his normal faculties, by reason of the operation of any of said vehicles mentioned herein, he shall upon conviction be fined not more than five hundred dollars, and also be imprisoned not less than three months nor more than twelve months, and if the death of any human being be caused by the operation of a motor vehicle by any person while intoxicated, such person shall be deemed guilty of manslaughter and, on conviction be punished as provided by existing law relating to manslaughter.
“Convictions under the provisions of this section shall not be a bar to any civil suit for damages against the person so convicted.”

The Judge of the Criminal Court of Record charged the jury that the defendant, James Raymond Clowney, was charged with manslaughter in two counts, the first count being that the defendant did unlawfully, by and through his own act, procurement and culpable negligence, operate an automobile in such a manner as to cause the death of Claude L. Todd, and in count 2 did unlawfully, while intoxicated by the voluntary use of alcoholic liquor, operate a certain automobile in such a manner as to run up or against an automobile in which Claude L. Todd was present, with such force and violence as to cause said automobile in which the said Claude L. Todd was present to catch afire, thereby inflicting in and upon the person of said Claude L. Todd certain mortal injuries, of which injuries the said Claude L. Todd then and there languished and died, etc.

The Judge below then charged the jury-on the various degrees of homicide and manslaughter, all of which were applicable to count 1 of the Information. The court then charged the jury as follows:

“As to the second Count of Manslaughter While Intoxicated by the Voluntary Use of Alcoholic Liquor. It is unlawful for any person, while in an intoxicated condition or under the influence of intoxicating liquor to such extent as to deprive him of full possession of his normal faculties, to drive or operate over the highways or streets, or thoroughfares of Florida, any automobile, truck or vehicle or motorcycle or any other vehicle propelled by gasoline, gas, vapor, electricity, steam or other power. Any person convicted of a violation of this section shall he punished as provided by law. If the death of any human being be caused by the operation of an automobile by a person under the influence of intoxicating liquor he shall be deemed guilty of Manslaughter, and upon conviction shall be punished as provided by the law relating to Manslaughter.
“Intoxication, Lady and Gentlemen, I charge you, as used in the second Count of the Information, means under the influence of Intoxicating liquor to such an extent as to deprive one of the normal control of one’s body or mental faculties, or both.”

The Court then gave the following requested charge by the State:

“Lady and Gentlemen of the Jury, you are instructed that under the Statute creating offense of manslaughter by intoxicated motorist, the State has no burden to prove that at the time of the accident the defendant was negligent, but such element is established if it be shown that the defendant was not at the time of the accident in possession of his faculties due to the voluntary use of intoxicants.”
The jury returned the following verdict:
“We, the jury, at Fort Lauderdale, Broward County, Florida, this 26th day of January A.D. 1956, find the defendant James Raymond Clowney Guilty as to Count II of the Information. So say we all.”

The effect of the above verdict was to find the defendant Not Guilty of the manslaughter charge based on culpable negligence.

The defendant moved for a new trial and, among other grounds, alleged the errors of the court in instructing the jury the defendant could be found guilty of manslaughter if he caused the death of a person while operating an automobile while under the influence of intoxicating liquor; also for failing to give a requested instruction of the defendant.

In the case of Cannon v. State, 1926, 91 Fla. 214, 107 So. 360, 362, the Supreme Court in an Opinion by Chief Justice Brown, said:

“The language of the indictment, while sufficient to charge the offense defined in section 5039 [F.S.A. § 782.07], the gist of one element of which is the culpable negligence of the defendant as being the cause of the death, was not sufficient to constitute a charge of manslaughter under this amendatory act. The additional words in the indictment, ‘being at the time under the influence of intoxicating, liquor,’ are not, in the commonly accepted meaning of such words, synonymous with or equivalent to the words in the amendatory statute, which are ‘while intoxicated.’ Though all persons intoxicated by the use of alcoholic liquors are ‘under the influence of intoxicating liquors,’ the reverse of the proposition is not true; for a person may be under the influence of intoxicating liquors without being intoxicated.”

The Court further stated:

“It was permissible, as shown by some of the cases above cited, to allow the state to introduce evidence showing or tending to show that the defendant was under the influence of intoxicating liquor at the time the deceased was struck and injured, or that she was in that condition so shortly thereafter as to afford a reasonable inference that such condition existed at the time of the injury. See, also, 1 Wigmore on Evidence (2d Ed.) 235, This was admissible in support of the charge of culpable negligence, upon the theory that, ordinarily, persons under the influence of intoxicants to any considerable degree, though not actually intoxicated or drunk, are more apt to be heedless, reckless, and daring than when free from such influence. Hobbs v. State, supra [83 Fla. 480, 91 So. 555]; Meier v. State, supra [87 Fla. 133, 99 So. 124].”

In the case of Taylor v. State, Fla.1950, 46 So.2d 725, the Florida Supreme Court held in a case where the defendant was faced with two charges, one, that in operating an automobile while intoxicated he caused it to collide' with a car occupied by one, Morris Wellin, who died from the injuries received in the wreck, and the other, that while under the influence of intoxicating liquor he so negligently and carelessly drove his car that he inflicted injuries upon Wellin bringing about his death, that references in the second charge of driving while under the influence of intoxicating liquor were not prejudicial to the defendant though such words were not an element in the charge of manslaughter caused by culpable negligence. The court in its opinion said:

“In this particular case we are strengthened in this view because, after all, at the time the cause was submitted to the jury the defendant stood directly charged with the offense of operating his car ‘while intoxicated,’ a separate and distinct offense denounced under Section 860.01, Florida Statutes 1941, and F.S.A. Certainly . throughout the course of the trial the jury properly heard of the defendant’s alleged intoxication, and of course the term, ‘intoxicated,’ is stronger and includes the term, ‘under the influence of intoxicating liquor.’ Cannon v. State, 91 Fla. 214, 107 So. 360, 362.”

In the case of Dunning v. State, Fla.1955, 83 So.2d 702, the defendant was convicted of manslaughter resulting from the operation of an automobile. ■ . . ■

The State charged the defendant in, one count of the indictment with homicide resulting from culpable negligence, .and driving while intoxicated. >

The defendant claimed that where the State had elected to create one offense of culpable negligence and driving while intoxicated combine, the State should be required to prove all of the essential mate-trial allegations of the indictment pnd that failing to do so, the defendant should have been acquitted. The Supreme Court in its Opinion concurred in the premise that the State, when it elects to charge the defendant in one count with homicide resulting from negligent operation and from driving while intoxicated, must carry the burden of proving beyond a reasonable doubt both elements of the offense; and when properly requested, the trial judge should so instruct the jury.

The Court concluded from the charge of the lower court that both elements had been included and the lower court was affirmed.

The Supreme Court of Florida in the case of Smith v. State, Fla.1953, 65 So.2d 303, 306, said:

“* * * The jury had exonerated him of being ‘intoxicated’. That is the degree of drunkenness defined in the manslaughter statute and we held long ago that ‘intoxication’ and ‘being under the influence of intoxicating liquors’ are different terras and do not mean the same thing. Cannon v. State, supra. It is unlawful to drive a car while ‘under the influence of intoxicating liquors’ but it is not manslaughter if one in such condition runs into and kills another unless ‘culpable negligence’ is shown. We have held that ‘testimony tending to show that a defendant, charged only with culpable negligence, was under the influence of intoxicants at the time of an automobile collision is admissible, on the theory that a driver so exhilarated is likely to be abnormally reckless.’ Taylor v. State, Fla., 46 So.2d 725. Such evidence, however, cannot make an act wanton and reckless that was not otherwise so. It is valuable and useful only to corroborate or render more likely, evidence that is doubtful or disputed.”

This court is of the opinion that while the Judge of the lower court was in error in his instruction to the jury, to-wit:

“If the death of any human being be caused by the operation of an automobile by a person under the influence of intoxicating liquor, he shall be deemed guilty of manslaughter, and upon conviction, shall be punished as provided by the law relating to manslaughter.” ;

in view of the fact that the court in the subsequent paragraph defined intoxication as follows:

“Intoxication, lady and gentlemen, I charge you, as used in the second count of the Information, means under the influence of intoxicating liquor to such an extent as to deprive one of the normal control of one’s body or mental faculties, or both.”,

such error was not prejudicial.

A great deal of confusion is caused in criminal prosecutions by the use, interchangeably, of the terms “intoxicated” and “under the influence of intoxicating beverages”. These terms are not synonymous. A person intoxicated is under the influence of intoxicating beverages, but it does not necessarily follow that a person under the influence of intoxicants is intoxicated. If a person is prosecuted on a charge of causing the death of a person while intoxicated, it must be proven beyond a reasonable doubt that the defendant was intoxicated and not just under the influence of intoxicants.

In view, however, of a study of all the charges given by the Judge of the lower court, we are of the opinion that the misuse in one part of the charge of the words “under the influence of intoxicating liquors” for the word “intoxicated” was not prejudicial.

The Attorney General, in his brief, questions the right of this Court to consider the questions appearing in the appellant’s brief on the basis that:

“A perusal of the record on appeal reveals that, in fact, the appellant has filed no Assignments of Error as required by law, although his brief refers to specific Assignments of Error. It has long been the law that a brief of appellant must refer to specific Assignments of Error.”

The appellant in his reply brief states:

“Assignments of Error were prepared and a copy furnished the County Solicitor of Broward County, the prosecuting attorney in this cause, by personal delivery on March 28, 1956. A certificate evidencing such service was signed by trial counsel in this cause and appears on the certified copy of the Assignments of Error now before this Court. These Assignments of Error did not appear in the original Transcript of Record, which can be explained in either one of two ways—either the original was delivered to the Clerk’s office for filing and subsequently became either misfiled or not filed, or the original never did reach the Clerk’s office either by reason of misdirection or by failure of trial counsel to deliver such Assignments to the Clerk’s office.
“Duplicate Assignments of Error ■were subsequently on 1 March, 1957, filed in the office of the Clerk of the Criminal Court of Record of Brow-ard County, and a certified copy of such Assignments forwarded to this Court for inclusion in the Transcript of Record and a copy mailed to counsel for the State.
“The original Brief of Appellant in this cause referred to the Assignments of Error in support of the points raised, as these Assignments appeared in the office file of trial counsel in this cause. This Brief of Appellant was served upon counsel for the State by mail on October 12, 1956, and filed with this Court on the same day.
“Stipulations extending the time for filing of Appellee's Brief were subsequently executed pursuant to requests by counsel for the State, and these stipulations, as they appear in the record in this cause, reveal Appel-lee’s Brief, which ordinarily in the usual course of procedure would have been due on November 2, 1956, was by stipulation post-poned until on or before March 20, 1957. These stipulations were all executed at the request of counsel for the State.”

The record in this cause shows that a certified copy of the Assignments of Error were filed in this cause on the 12th day of March, 1957.

In the case of Richardson v. State, 1916, 72 Fla. 154, 72 So. 665, 666, the Florida Supreme Court held in a case with facts very similar to the facts in this case, where appellant had filed Assignments of Error which stated only one ground for appeal but in the appellant’s brief 19 additional assignments were argued, the State had contended that the 19 additional assignments were improperly before the Court and the appellant, at the time of filing her reply brief, had sent up assignments of error to the Supreme Court which included the 19 additional grounds referred to without an order of the court allowing further time to file such assignments, that such assignments would be considered.

The Court, in its opinion, said:

“ * -i* * We call attention to the advisability of a plaintiff in error complying with the statutory requirements in regard to filing the assignment of errors, and if for any reason the same is not filed within the time specified an application should be made to this court for further time. We think that it is advisable to throw out these suggestions, but as it is a criminal case, and the plaintiff has been sentenced to confinement in the state prison at hard labor for a term of 10 years, we shall proceed to discuss such of the assignments argued before us as, we think, merit treatment.”

We are of the opinion that we are justified in following the Florida Supreme Court in Richardson v. State, supra, by considering the assignments of error filed by the defendant.

Judgment of the trial court is affirmed.

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


author: KANNER, Chief Judge.

text:
    Mattie TAYLOR, a widow, and Sam Taylor, a single man, Appellants, v. Viola TAYLOR, a widow, Samson Green, Benjamin Green, Rachel St. Clair, Joe Green and Beatrice Green, Appellees.
    No. 90.
    District Court of Appeal of Florida. Second District.
    Oct. 11, 1957.
    Rehearing Denied Nov. 1, 1957.
    Dayton & Dayton and Charlie Luckie, Jr., Dade City, Carroll W. Fussell and David Davis, Bushnell, for appellants.
    P. B. Howell, Bushnell, for appellees.
   KANNER, Chief Judge.

The chancellor issued final decree declaring appellees to be the owners in fee simple of the lands set forth in appellants’ complaint. Appellants sought partition of all the lands, asserting title as co-tenants to an undivided three-fifths. The appeal emanates from the adverse decision refusing to recognize appellants as co-parceners and to grant decree of partition of the lands. No brief was filed by the appellees.

The following factual situation as gleaned from the record presents the background of this controversy.

One Jerry Taylor died intestate in the year 1928, survived by five heirs at law. At the time of his death, he owned all the lands which are the subject of this litigation. The appellant, Mattie Taylor, was married to one of the heirs and the other appellant is a son of the marriage. The appellees here, defendants in the lower court, include the husband and children of Willie B. Green, one of the original heirs of Jerry Taylor, and Viola Taylor, widow of another original heir. The children as heirs at law of Willie B. Green, who died intestate while this suit was pending in the lower court, became parties to this suit upon her death.

Willie B. Green had acquired part of the subject lands by master’s deed through tax certificate foreclosure proceeding and the remainder by deed dated January 26, 1944, through Trustees of the Internal Improvement Fund under what is commonly known as the “Murphy Act”. See chapter 18296, Laws of Florida 1937, sections 192.35 to 192.3.8, Florida Statutes, F.S.A. The master’s deed referred to the property as “mortgaged premises”, but the record indicates that the sale was pursuant to decree of foreclosure of tax sale certificates and not of a mortgage, and it has been so presented to and considered by this court.

Subsequent to the conveyances mentioned into Willie B. Green, two heirs not involved in this suit conveyed by warranty deed to Walter Taylor, husband of appellant Mattie Taylor and father of the other appellant, their interest in the lands. Thus the source and basis of appellants’ claim of title is the one-fifth interest of Walter Taylor, an original heir, plus the two-fifths interest he had acquired during his lifetime from two other heirs.

Appellant, Mattie Taylor, had resided on the property for eighteen years and was so residing when the suit was instituted, and her son had resided there during portions of the time. Not only was she residing on the property, but during the time mentioned, she exercised dominion over it as an owner.

There is no dispute that, at the time of the acquisition of these lands through master’s deed pursuant to a tax lien foreclosure suit and under the Murphy Act by Willie B. Green, she and the other heirs were co-parceners of the lands inherited from Jerry Taylor.

It is a firmly entrenched rule of law in Florida that one co-tenant cannot deprive his other co-tenants of their interest in land by acquisition of title to the lands by purchase due to tax default. The effect of such acquisition is simply a payment of taxes by the purchasing co-parcener and his right in the land is not enhanced except to secure the payment of the amount, with interest, thus expended by him for taxes for the other co-parceners. The reasoning upon which this principle is predicated is that co-parceners’ obligations as well as interests are mutual. See Williams v. Clyatt, 1907, 53 Fla. 987, 43 So. 441; Spencer v. Spencer, 1948, 160 Fla. 749, 36 So.2d 424; Morrison v. Byrd, Fla. 1954, 72 So.2d 657; and Gates v. Roberts, Fla.1956, 85 So.2d 862.

The record in this case discloses no basis by or under which the property was acquired by Willie B. Green other than that due to default by the co-tenants in paying the taxes. So the case here is embraced within the scope of the rule stated, and the chancellor erred in not adjudging in conformity to this rule.

The chancellor should therefore decree that the appellants are the owners of an undivided three-fifths interest and should also decree partition of the lands.

The chancellor is directed to hold such hearings as may be necessary for the purpose of ascertaining and determining the amount paid for taxes as well as other proper charges, expenditures and allowances that should be accounted for and borne by the co-tenants. Each co-tenant shall be liable for such sums as shall be found chargeable and due in proportion to his interest and same shall be secured by his interest in the lands. In addition each co-tenant shall pay a share of the costs and charges including attorney’s fee incurred by appellants arising from the suit for partition as provided by the partition statute. See 66.08, Florida Statutes, F.S.A.

The decree of the court below is hereby reversed and remanded for further proceedings consistent herewith.

PLEUS and ALLEN, JJ., concur.


author: ALLEN, Judge.

text:
    Mary C. REGAN, Appellant, v. Sarah Lee Thompson DAVIS et al., Appellees.
    No. 11.
    District Court of Appeal of Florida. Second District.
    Oct. 11, 1957.

      Parkinson & Sessions, Daytona Beach, for appellant.
    Coles, Himes & Germany, Tampa, for appellees Mertz, LaVoy and Davis.
    Richard W. Ervin, Atty. Gen., for ap-pellee Bob Gates.
    Bogue & Harris, St. Petersburg, for appellee Betty Zentgraf.
    McClure & Turville, St. Petersburg, for appellee Christian.
   ALLEN, Judge.

Mary C. Regan filed a complaint in Hills-borough County charging the several defendants with maliciously and willfully conspiring together to defame her and to cause her to lose her position as a speech therapist, which deprived her of the opportunity of making a livelihood in her profession. Motions were filed by all of the defendants to dismiss the complaint on the ground, among others, that it failed to state a cause of action. Defendant, Davis who was served in Walton County, claimed lack of jurisdiction of the Court over her as an additional basis for dismissal. The trial judge dismissed the complaint with leave to amend as to all of the defendants except Davis. He dismissed the complaint as to Davis for lack of jurisdiction. Plaintiff declined to amend, whereupon the trial judge entered a final judgment for the defendants.

The order of the trial judge does not show the basis for his order refusing to permit the plaintiff to amend the complaint as against the defendant, Davis, nor does the record show the basis of the court’s holding that it had no jurisdiction as to Davis. We note, however, that in the Brief of the attorneys for Sarah Lee Thompson Davis, page 14, under Question No. 2, stated as being:

“Whether or not the Court was correct in dismissing the complaint against the Appellee Sarah Lee Thompson Davis on the ground that it did not have jurisdiction.”,

they cite Rule 1.8(b) of the 1954 Florida Rules of Civil Procedure, 30 F.S.A., and italicize a portion of the same as follows:

“Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, or cross-claim, must state a cause of action, and must contain allegations of fact sufficient to show the jurisdiction of the court.”

Defendant Davis’ attorneys then state:

“The lower court found that there were not sufficient facts contained in appellant’s complaint to justify jurisdiction over the appellee Sarah Lee Thompson Davis, and therefore, dismissed the cause as to the appellee Davis for lack of jurisdiction.”

We will not' further allude to the distinction made in the order between the defendant Davis, and the other defendants as to the right of the plaintiff to amend, since we conclude that the complaint stated a cause of action against all the defendants.

The complaint was apparently grounded on conspiracy to defame and we are of the impression that the able judge of the lower court so construed the action and concluded that it did not set out sufficient facts to show defamation, necessitating the dismissal of the complaint. We are inclined to agree with the lower court that the facts set forth in the complaint are insufficient for an action of defamation, but even if it be conceded that this is true, a question arises as to whether or not the complaint stated a cause of action on any ground. If so, the motions to dismiss should have been overruled.

We believe that the complaint states sufficient, facts to state a cause of action against all of the defendants for conspiracy to interfere with her right to practice her profession as a speech therapist.

In 4 Florida Law and Practice, page 213, Conspiracy, III, Civil Liability, Section 5, Scope of action, it is stated:

“ * * * a civil action will lie where any combination of two or more persons to commit an unlawful act, or to commit a lawful act by unlawful means, results in private injury.”

It is then stated:

“As discussed in § 2, supra, an action of conspiracy lies for any combination to commit any offense. However, the scope of the action is much broader than this, for under the common law it includes combinations to commit crimes, torts or any other wrongs which cause private injuries to individuals.
“It may be said generally that a civil action will lie where any combination of two or more persons to commit an unlawful act, or to commit a lawful act by unlawful means, results in private injury. The Florida court has recognized conspiracy as a separate tort for which the person injured may sue all or any one or more of the conspirators.”

In Loeb v. Geronemus, Fla.1953, 66 So. 2d 241, the Court held that the gist of a civil action for conspiracy is not the conspiracy itself, but the civil wrong which is alleged to have been done pursuant to the conspiracy.

In the case of Faulk v. Allen, Fla.1943, 12 So.2d 109, 110, the Court held that in one count of the complaint it was charged, in effect, that two parties wrongfully and maliciously conspired with each other to procure the dismissal of plaintiff from his employment by complaining and falsely swearing to the Governor of Florida that plaintiff had accepted bribes.

The Court, in its opinion, said:

“ * * * The gist of plaintiff’s suit is the wrongful and malicious act of defendant which resulted in plaintiff’s losing the emoluments of the office. It is asserted that there is no adjudicated case in England or this country where an action has been maintained to collect damages for wrongfully procuring the removal of an officer. We are dealing with an administrative office holder under the executive branch of the state government. * * * If therefore the defendant as it is alleged wrongfully and maliciously procured the governor to exercise his discretion and remove plaintiff, we can see no good reason why the defendant should not be answerable to plaintiff.”

Also in Faulk v. Allen, supra, the Court said:

“ * * * Appellant asserts that conspiracy as an independent civil action was unknown at common law as well as in this country. Some respectable authority is cited for this assertion. We do not feel that the question is open in this state however since it was held in the affirmative in Garsed v. Sugarman, 99 Fla. 191, 126 So. 157; Quigg v. Helm, 119 Fla. 693, 161 So. 55. Hunter Lyon, Inc., v. W. H. Walker, Fla., 11 So.2d 176, opinion filed December 11, 1942. A comprehensive discussion of this question will be found in Chapter XVI, Carson’s Revised Edition Florida Common Law Pleading, Practice and Procedure. See also Law of Conspiracy by Harrison.”

A complaint alleging a conspiracy to damage the credit and financial rating of the plaintiff, an overt act done in pursuance with the conspiracy and damages resulting from such overt act was held to contain all the essential elements of malicious conspiracy. See Dr. P. Phillips and Sons, Inc., v. Kilgore, 1943, 52 Fla. 578, 12 So.2d 465.

30 Am.Jur. 86, Topic “Interference”, Section 38, states:

“There is in the various jurisdictions of the United States ample authority in support of the broad dictum laid down by Holt, Ch. J., so many years ago that an action lies for every injury suffered by reason of a violent or malicious act done to a man’s occupation, profession, or way of getting a livelihood. Thus, it is said, that every person sui juris is entitled to pursue any lawful trade, occupation, or calling as a part of his civil rights and is as much entitled to be protected therein as is the citizen in his life, liberty, and property. In fact, it has been held that every man’s trade or profession is his property, since it is his means of livelihood and since through its agency he maintains himself and family, and is enabled to add his share towards the expenses of maintaining the government. Moreover, one who has followed a certain trade or calling for years may be to a great extent unfitted for any other business. Such an invasion of his legal rights is therefore not only an injury to him individually, but is also an injury to the public on account of its tendency to produce pauperism and crime.
“Possibly the broadest statement of the doctrine as it has been applied in the United States is to be found in the following language which has been widely quoted: ‘The common law seeks to protect every person against the wrongful acts of others, whether committed alone or by combination, and an action may be had for injuries done which cause another loss in the enjoyment of any right or privilege or property. * * * ’ ”

In Section 52, Pleading, 30 Am.Jur. 97, “Interference”, it is stated:

“ * * * A complaint seeking damages for inducing breach'of contract has been held sufficient where it alleges that the contract was entered into, that its performance was refused, that such refusal was induced by the unlawful and malicious acts of the defendant, and that damages have resulted, although it fails to allege that the plaintiff complied with the requirements of the contract on his part. The complaint need not set out the contract, but is sufficient if it states the effect thereof so far as it is material. Hence, a prima facie case of wrongful interference with a contract is made out if it is alleged (1) that the acts were intentional and wilful; (2) that they were calculated to cause damage to the plaintiffs in their lawful business; (3) that they were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant (which constitutes malice); and (4) that actual damage and loss resulted. * * * ”

With the foregoing rules in mind, let us see if the complaint stated a cause of action:

Paragraph 1 refers to all of the defendants named in the caption of the complaint and also the various positions of the defendants.

Paragraph 2 sets forth the qualifications of the plaintiff including the college degrees obtained in speech therapy by plaintiff.

Paragraph S alleges defendant, Davis, wrote a malicious, scurrilous and false letter concerning the plaintiff to Mrs. Thelma Godfrey, who was the plaintiff’s superior in the public school system of Duval County.

Paragraph 6 alleges that all of the named defendants conspired with each other maliciously to defame plaintiff and maliciously to prevent plaintiff from earning a livelihood as a speech therapist.

Paragraphs 7, 8, 9, 10, 11 and 12 allege employments in the schools of Pinellas and Hillsborough Counties and the subsequent loss of such employments through alleged interference on the part of the various defendants.

Paragraph 13 alleges:

“Defendants have conspired and confederated with each other and, upon information and belief, with parties unknown to plaintiff for the purpose of harassing plaintiff and ruining her reputation and keeping her from securing a position in the public schools or following her profession as a speech therapist. Each of the acts of the various defendants about which plaintiff complains as hereinabove set forth, was performed by one or more of the defendants as hereinabove mentioned, as a part of and pursuant to said conspiracy. Some of the overt acts which have been performed by defendants in accomplishing the purposes of said conspiracy are hereinabove set forth, but, upon information and belief, there are many other acts which defendants have done in such connection which plaintiff has been unable to learn. In their attempts to harass plaintiff and ruin her life as above set forth, defendants have been, and are, acting secretly and cov-inously. Plaintiff has pleaded with certain of defendants from time to time to let her know the details as to said malicious rumors that have circulated concerning plaintiff, and the names of the persons who have been circulating the same, so that plaintiff would be able to prove her innocence of said wicked and malicious charges and so that plaintiff could terminate the circulation of said rumors; and plaintiff has begged defendants from time to time to, place formal charges against her so that her innocence may be established; and plaintiff has begged defendants to have the police investigate any and all of such rumors so that plaintiff's innocence could be established; but defendants refused; and have refused to pay any attention to the investigation made at the request of plaintiff by the Police of the City of St. Petersburg, Florida, and have refused to give to plaintiff any information as to the present source of said rumors, but on the contrary, have wickedly and scurrilous- ■ ly conspired together, to defame plaintiff; and to keep plaintiff from being able to establish her innocence and put an end to said rumors; and to keep plaintiff from being able to obtain and keep a position in the public schools or to practice her profession as a speech therapist. Until said conspiracy is terminated, it is useless for plaintiff to make further attempts to secure a position as a speech therapist. Plaintiff’s attempts to refute said rumors that are revealed to her in a tantalizing way by defendants as aforesaid, but without sufficient definiteness to enable plaintiff to do anything about them, have worried plaintiff so much that she is on the verge of a breakdown and has been required to submit herself to the care of a physician.'
“As a direct and proximate result of the malicious and wilful acts of defendants conspiring together as aforesaid, plaintiff has been prevented from securing and keeping a position and making a livelihood in her chosen profession and her health has been impaired and her good name and reputation have been besmirched and she has been made to endure untold agony and suffering.”

The effect of a motion to dismiss is to admit the well pleaded allegations of the complaint. So we conclude that, admitting the truth of the various allegations of the complaint, a cause of action was stated.

The case is reversed for .further action not inconsistent with this opinion.

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


text:
    Austin PEARCE, Rosa Lee Pearce, his wife, John F. Pearce and D. L. Pearce, Appellants, v. J. O. PEARCE, Appellee.
    No. 92.
    District Court of Appeal of Florida. Second District.
    Oct. 16, 1957.
    Rehearing Denied Oct. 29, 1957.

      George J. Baya, Miami, for appellants.
    Thad H. Carlton, Ft. Pierce, and Henderson, Franklin, Starnes & Holt, Ft. Myers, for appellee.
   ALLEN, Judge.

The appellants were defendants below and the appellee was the plaintiff. The parties will be hereinafter referred to as they appeared in the trial court.

The plaintiff in his complaint charged the defendants with closing certain natural drains and causing surface waters to be diverted and cast upon lands owned and leased by the plaintiff by reason of the construction of dikes upon the lands of the defendants.

The plaintiff owned and leased lands lying west of the lands of the defendants &nd also east of the defendants’ land. The lands involved in this case are roughly bordered by the Kissimmee River on the east, Lake Okeechobee on the south and southeast and the Indian Prairie Canal on the west and southwest. The natural slope and drainage of the land was from the northwest, through .various natural sloughs and drains, across plaintiff’s land, then across defendants’ land to the southeast into Lake Okeechobee. These sloughs and drains carried off water from a large area to the northwest of the parties’ land and were taxed in times of heavy rainfall.

The plaintiff had originally built a levee on certain of his property lying east of the defendants’ property, which, to some extent, affected the flow of water across the defendants’ property to the Kissimmee River basin. Subsequently, the defendants built dikes or levees on their property extending along the length of their east boundary, the length of their north boundary and about the north % the length of their west boundary. On said west boundary, the dike ended near the common corner of Sections 31 and 6 owned by the defendants and Sections 36 and 1 leased and owned, respectively, by the plaintiff. The defendants were extending this dike southward along the common boundary of plaintiff’s Section 1 and defendants’ Section 6 when the action was instituted to restrain further construction by the defendants. The Circuit Judge refused to grant a temporary injunction, and during the progress of the case in the lower court, the defendants extended the dike several miles southward to the southwest corner of their lands.

Voluminous testimony was taken in the case, the record showing approximately 600 pages with additional pages of depositions. The lower court, after final hearing, entered a Decree in favor of the plaintiff and required the defendants to open their levee at two points to prevent further flooding of the plaintiff’s property. Supersedeas to this Decree was granted by the lower court.

The record discloses that the Circuit Judge personally inspected the lands and dikes involved in this case before making his decision. Since the Judge made certain findings of fact in his Decree, we deem it advisable to quote, in full, the Decree from which this appeal is taken, as follows:

“Final Decree. This cause coming on to be heard upon the Bill of Complaint herein, as amended, the Answer and Counterclaim of the several Defendants and the evidence submitted, and the Court having made a personal inspection of the lands and premises involved, and counsel for the respective parties having submitted their argument and the Court having considered' the same and being advised, in the premises, does make the following findings of fact:
“(a) The dike constructed by Complainant around lands owned by Complainant and known as the 'Beef Pasture’ does not impede the natural flow of water so as to measurably increase water on Defendants’ land.
“(b) Lake' Istokpoga lies northerly and westerly of the lands involved in this action and from said Lake and the area tributary thereto the land slopes in a southeasterly direction across lands of both Complainant and Defendants and into Lake Okeechobee.
“(c) There are well defined water courses, sloughs and drains extending in a southeasterly direction across the lands of the Complainant and Defendants; that one such water course or drain crosses lands of the Complaint and into lands of Defendants at the meander corner lying directly east of the northeast corner of Section 1, Township 39 South, Range 33 East, and another such water course or drain crosses lands of Complainant and into lands of Defendant approximately one-quarter mile north of the southeast corner of Section 12, Township 39 South, Range 33, East, and prior to construction of Defendants’ dike water flowed through such water courses or drains across lands of Complainant and Defendants and into Lake Okeechobee.
“(d) The dike constructed by Defendants obstructs the natural flow of water along and through the water courses and drains and causes said water to back up and flood the lands of the Complainant, particularly at times of heavy rainfall, and such flooding of Complainant’s lands causes damage and injury thereto and deprives the Complainant of the use and enjoyment thereof for long periods of time.
“Thereupon, it is Ordered, Adjudged and Decreed as follows:
“1. That the equities of'this cause are with the Complainant and the Complainant is entitled to the relief prayed in and by his Bill of Complaint.
“2. That the Defendants, Austin Pearce, Rosa Lee Pearce, his wife, John F. Pearce and D. L. Pearce, do within one hundred twenty (120) days from the date hereof, make or cause to be made, openings in the dike constructed by Defendants, such openings to be of. sufficient width and. depth to permit the free flow of water from the lands of Complainant through said natural drains to Lake Okeechobee, and to be located as follows:
“(a) One opening to be made at a point where the natural drain passes into lands of the Defendants at the meander corner lying directly east of the northeast corner of Section 1, Township 39 South, Range 33 East;
“(b) One opening to be made at the point where the natural drain passes into lands of the Defendants approximately one-quarter mile north of the southeast corner of Section 12, in Township 39 South, Range 33 East;
“3. The Court retains jurisdiction of this cause and of the parties hereto for the purpose of making such further Orders or Deci'ees as may be necessary for the enforcement of this -Decree.
“4. Costs herein in the amount of $355.85 are taxed against the Defendants.
“Done and Ordered at Moore Haven, Florida, this 23rd day of December, 1955. /s/ Lynn Gerald, Circuit Judge.”

The defendants in their brief state the following questions as involved on this appeal:

“I. Whether or not flood waters are a common enemy against which the defendants were entitled to protect themselves without commission of any wrong. (Raised by Defendants’ Assignment of Error -No. 7.)
“II. Whether or not an owner of land may pump and divert water on his land onto lands of the lower owner.
“III. Whether or not an owner of land may draw off and carry surface waters in its natural direction and protect such land from additional water caused by upper adjoining owner.
“IV. Whether or not the trial court improperly rejected evidence and exhibits proffered by the defendants with respect to the acts and conduct of the plaintiff, similar to the acts and conduct of the defendants. (Raised by Defendants’ Assignment of Errors Nos. 1, 2, 3, 4 and 5.)
“V. Whether or not the evidence as a whole compels the conclusion that the position of the plaintiff is inconsistent, because the plaintiff asked the corirt to prohibit the defendants from doing the same things which the plaintiff had theretofore done. (Raised by Defendants’ Assignment of Error No. 7.) '
' “VÍ. Whether or not a mandatory injunction will be issued to a plaintiff Who'loses his interést in arid to a portion o-f the subject matter prior to the issurance of the mandatory injunction.”

The plaintiff states the following questions'

“First Point. Has any person the right to dam up by dike or otherwise, natural water courses, divert the waters from their natural courses, and cast them upon an adjoining owner to his injury?
“Second Point. Must a party changing or restraining the flow of water provide against more than ordinary rainfall occasionally occurring at irregular intervals?
“Third Point. Where evidence is conflicting, the trial court’s findings, based upon substantial evidence, will not be set aside unless substantial error clearly appears.”

The defendants in their brief argue that the law is well settled that a person has a right to protect himself against flood waters and contend that the plaintiff admitted on cross-examination that the dike of defendants did not hold back waters caused by normal rainfall, but only flood waters. Many citations are given in the defendants’ brief to substantiate their theory in this case, including the following quotation from Davis v. Ivey, 1927, 93 Fla. 387, 112 So. 264, 269:

“* * * It (i.e. the Railroad) was not required to provide openings at all low, wet, swampy or depressed places which were not natural water courses, nor was it required to provide openings at the natural water course for unprecedented and unanticipated floods.” (Italics supplied.)

We believe that a study of the cited case (Davis v. Ivey, supra) would show that instead of aiding the defendants it is against the defendants.

The court charged the jury in the case of Davis v. Ivey, supra, as follows:

“ ‘The court charges you that a railroad company which leaves ari opening tinder its tracks which is insufficient to carry the water flowing in natural water courses, is liable for whatever damages may accrue from the injury caused by a damming back of the waters upon the lands of persons in the vicinity, and the liability extends to injuries by unusual floods, but not to injuries caused by unprecedented floods.
“ ‘The court charges you that, if you find from a preponderance of the evidence that the defendant diverted the natural flow of water, which natural flow was the result of ponds and swamps being connected with other ponds and swamps which formed strands, drains, or gutters extending and continuing for long distances easterly from defendant’s embankment, and drained said waters from these strands, drains, or gutters, and caused said waters to be forced over plaintiffs’ land, and that this was the proximate cause of the injury to plaintiffs’ potato crop, then it is your duty to find a verdict for plaintiffs in accordance with the evidence and the further charges of the court.’
sfc ¿fi ‡ sfc
“It appears to us that these charges clearly and correctly stated the principles of law involved. The Supreme Court of Alabama in Smith v. Western Ry. of Alabama, 91 Ala. 455, 8 So. 754, 11 L.R.A. 619, 24 Am.St.Rep. 929, in considering the liability of a railroad company for damages caused by a heavy flood, said:
“ ‘While it is true that no human agency can prevent or stay an act of God, the act itself being that of omnipotence and irresistible, it is frequently the case that the results or natural consequences of an act of God, but the exercise of reasonable foresight and prudence, may be foreseen, and guarded against. When this can be done by the exercise of reasonable diligence and prudence, a failure to do soi would be negligence, and subject the party upon whom this duty devolved to damages, although the original cause was an act of God.’
“In Ohio & M. Ry. Co. v. Ramey, 139 Ill. 9, 28 N.E. 1087, 32 Am.St.Rep. 176, * * * the court say:
“ '* * * It is within the knowledge of all who have long resided in this state, that our streams are occasionally subject, after intervals, which are sometimes of shorter and at other times of longer duration, to great floods, occasioned by very heavy rainfalls, and their heights are known by those who have felt interested in them. Such rainfalls were not usual and ordinary, but they were unusual and beyond ordinary — i.e., they were extraordinary — and yet, it is just as certain that” like rainfalls will occur in the future as it is that the same laws of nature by which they are produced, and the same conditions to be affected by those laws, will continue to exist in the future as they have in the past. Though of rare occurrence, such rainfalls are not phenomenal, and therefore beyond reasonable anticipation, and it is hence but the prudence that a discreet man would exercise in 'his own affairs to provide against injury from them. The question, then, is not whether appellant has sufficiently provided for the escape of the water of ordinary floods, but has it provided for the escape of the water of such unusual or extraordinary floods as it should have anticipated would occasionally occur in the future, because they had occasionally occurred after intervals, though of irregular duration, in the past.’ ”

In the recent case of Lawrence v. Eastern Airlines, Inc., Fla.1955, 81 So.2d 632, 634, the Florida Supreme Court affirmed the principles enunciated in Davis v. Ivey, supra. In this case the Court said:

“This was not a model complaint, but we think it was sufficient under our liberal system of pleading to withstand a motion to dismiss. See Hotel & Restaurant Employees, etc. v. Boca Raton Club, Inc., Fla., 73 So.2d 867, [48 A.L.R.2d 986]. In Davis v. Ivey, 93 Fla. 387, 112 So. 264, we held that persons changing or restraining the flow of water must provide against the consequences which will result from extraordinary rainfall. And in Brumley v. Dorner, 78 Fla. 495, 83 So. 912, a much-cited case in the field of nuisances from accumulation of water, we held the applicable rule to be that ‘No person has the right to gather surface waters that would naturally flow in one . direction by drainage, ditches, dams, or otherwise, and divert them from their natural course and cast them upon the lands of the lower owner to his injury.’ See also Dade County v. South Dade Farms, 133 Fla. 288, 182 So. 858, and Panama City v. York, 157 Fla. 425, 26 So.2d 184, wherein we reaffirmed this rule. We think the rule is broad enough and the facts alleged herein sufficiently similar to those in the Brumley case to sustain the • instant complaint.”

The lower court in its findings of fact determined that the dike constructed by the defendants obstructed the natural flow of water along and through the water courses and drains so as to flood the lands of the plaintiff, particularly at times of heavy rainfall.

A study of the testimony in this case convinces this court that the Chancellor had sufficient evidence before him upon which to base his finding of fact.

The defendants insist that since the lower court denied the plaintiff’s prayer for a temporary injunction, the court was not justified in subsequently granting a man-' datory injunction in his Final Decree on the grounds that the law of the case was established by the denial of temporary relief. The record shows that subsequent to the hearing for temporary injunction, additional testimony was taken, and that the Chancellor made a personal inspection of the lands, levees, dikes, etc. involved in this dispute. The record also shows that the lower court, in denying the temporary injunction, told counsel:

“Please do not infer that I have made any decision as to the facts in such rulings.”

It would be hazardous indeed to apply for a temporary injunction if the court’s denial of such application would preclude the-granting of a permanent injunction at the conclusion of the case. Very often, on an application for a temporary injunction, the court includes in his consideration of the law and facts of the case, whether or not the plaintiff would be injured to an appreciable extent by denial of such temporary relief.

We are of the opinion that the denial of the temporary injunction did not preclude the lower court from issuing the Decree in this case.

The defendants also present the following question: Whether or not an owner of land may pump and divert water from his land onto lands of the lower owner. Mr. Turner Wallis, who testified at length as an expert witness on flood control problems, was asked whether or not, in his opinion, there would be an increase in the flow of water upon the lands owned by the defendants where waters were pumped from diked farms of some 90 to 110 acres onto outside lands, and where such waters flooded into the’ sloughs on the land and eventually flowed down through those sloughs onto and upon the lands of the defendants. His reply was that the area embraced within the farm dikes were too inconsequential in terms of the area and the water shed served by the sloughs to have any measurable effect upon the lands adjacent to the diked area. The lower court apparently concluded from this testimony that this question was of no importance in the case before it and that the defendants sustained no injury as a result of the water pumped from the farm dikes.

The defendants under Point 4 of their brief, complain about the rejection of certain exhibits proffered by them, especially Exhibit No. 19. This exhibit, the defendants argue, sustains their contention that the plaintiff wished to drain his land as he pleased and to prevent the defendants from so doing.

Exhibit No. 19 showed the location of the construction of a dike to the west of the Indian Prairie Canal which was outside the bounds of the water shed involved in this case. From an inspection of this exhibit, we conclude the lower court was correct in his ruling on its proffer.

The defendants also argue that the evidence as a whole compels the conclusion that the position of the plaintiff is inconsistent because the plaintiff asked the court to prohibit the defendants from doing the same things which the plaintiff had theretofore done.

The above contention is based upon the fact that plaintiff built a dike on certain land owned by him east of the lands owned by the defendants. This dike was constructed in 1944 and was rebuilt in 1947 after it broke. The defendants constructed a dike on their land immediately west of the dike of the plaintiff. One of the defendants testified that their dike was built because the dike of the plaintiff diverted water from the Brighton Slough and cast it upon the lands of the defendants, thereby flooding the same. The first dikes built by the defendants were on their east and north boundaries while the dikes in issue in the lower court and now involved on appeal, were on the west boundary of the defendants’ property. The latter border to a large extent on the properties of the plaintiff west of the lands of the defendants and lay approximately 4 miles west of the original dikes built by the plaintiff.

The Judge of the lower court in his findings of fact held:

“(a) The dike constructed by complainant around lands owned by complainant and known as the ‘Beef Pasture’ does not impede the natural flow of waters so as to measurably increase water on defendants’ land.”

Mr. Wallis, the expert witness to whom we have formerly referred, testified in the case to the effect that the construction of the original dike by the plaintiff did not measurably increase the water on defendants’ land. We cannot say that the Judge of the lower court, who heard the evidence, was incorrect in his conclusion of facts based upon such testimony.

The defendants also contend and argue, under their Point VI, that the mandatory injunction should have not issued to the plaintiff on the grounds that he had lost his interest in a portion of his land prior to the issuance of the mandatory injunction.

It is elementary that a party in an action will not be entitled to relief if he disposes of the subject matter of his complaint prior to the conclusion of his case, but it does not appear from the record in this case that the cessation of the interest of the plaintiff in certain property which he had leased in the Indian Reservation comes within the rule. The lands leased by the plaintiff were north of the lands owned by the plaintiff and east of the defendants’ land. Water drained from the leased lands onto the lands owned by the plaintiff and then onto defendants’ land. It is apparent that the lower court by its decree found, in effect, that the loss of interest of the plaintiff in the Indian Reservation lands did not effect the interest of the plaintiff in this case. We find no error in the court’s determination of this fact.

The Judge of the lower court heard all the testimony in this case and the defendants must maintain the burden of showing the court had no substantial evidence upon which to base his Decree. We conclude that the defendants have failed to maintain this burden. Parrish v. Clark, 107 Fla. 598, 145 So. 848; Jennings v. Pope, 101 Fla. 1476, 136 So. 471.

Decree affirmed.

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