author: PEARSON, Judge.

text:
    Alex MEYERSON and Muriel Meyerson, his wife, Appellants, v. Alice BOYCE, now known as Alice Boyce Morgan, and Guy Morgan, her husband, Appellees.
    No. 57-145.
    District Court of Appeal of Florida. Third District.
    Oct. 15, 1957.
    Miller & Jordan, Fort Lauderdale, and Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, for appellants.
    Carr & O’Quin and Marshall G. Curran, Jr., Miami, for appellees.
   PEARSON, Judge.

The appellants were plaintiffs in a bill of complaint brought to foreclose a mortgage, which they had received by assignment after the same was in default. The answer claimed fraud in the procurement of the mortgage. The Chancellor upon trial found that there was clear and convincing proof that the note and mortgage were originally procured by fraud, and that the plaintiffs-assignees of said note and mortgage had notice of these infirmities when purchasing them. He therefore, dismissed the cause with prejudice. There being sufficient evidence, before the Chancellor, upon which to base the finding, the decree is affirmed. The findings of the Chancellor were as follows:

“The uncontradicted testimony shows that the defendant, Guy Morgan, was an uneducated and illiterate colored man, and his wife, Alice Boyce Morgan, was an uneducated colored woman who lacked full possession of her faculties. The evidence shows that the Mortgage to Florida Stone and Marble Industries — Ribbonstone Sales, Inc., was executed under circumstances clearly showing fraud and therefore that the mortgage between the parties was void and subject to the defense of fraud in the procurement thereof.

“The testimony shows that a representative of Florida Stone and Marble Industries — Ribbonstone Sales, Inc., requested permission of the Morgans to 'make certain improvements on defendants’ home property, representing to defendants that said work was done for advertising purposes and without any obligation on their part, and that the company would, instead, pay the defendants in order to get the benefit of advertising their home as a ‘Model Home’ on television. The defendants, thereafter, were induced to execute the mortgage and note, which were represented to defendants to be a contract allowing the Florida Stone and Marble Industries— Ribbonstone Sales, Inc., to make improvements for advertising purposes only, and to pay defendants for this privilege.

“The testimony shows that the plaintiffs in this cause, who are the assignees of the fraudulent mortgage, took the same at a time when the mortgage and note were approximately four months in default. The note was tainted with a usurious discount of approximately twenty percent, and the record shows on its face that this note and mortgage were overdue at the time the plaintiffs purchased them.”

Appellants admitted that they took the note and mortgage while in default and that they hold the same subject to all defenses available against the original mortgagee.

Error is urged only upon the ground that the Chancellor overlooked the proposition that, “the uncorroborated testimony of mortgagors as to fraud in the procurement of the mortgage is not legally sufficient to overcome or impeach the notary public’s certificate of their acknowledgment.” In support of this statement the ap-pellants have cited the following cases as the law governing this case. Hart v. Sanderson’s Administrators, 18 Fla. 103; Shear v. Robinson, 18 Fla. 379; Herald v. Hardin, 95 Fla. 889, 116 So. 863; McEwen v. Schenck, 108 Fla. 119, 146 So. 839; Smith v. McEwen, 119 Fla. 588, 161 So. 68. Each of these cases concerned an attempt to impeach the legal sufficiency of an acknowledgment to a mortgage and thus of the mortgage itself. In the instant case the acknowledgment is not in question. The parties admit the signing and acknowledgment of the mortgage and they claim fraud in the procurement of their signatures upon the mortgage. Thus the cases cited do not support the proposition urged, nor do we find it to be a correct statement of the law.

It is true that proof of fraud must be by clear and convincing evidence. McGill v. Boulevard & Bay Land & Development Co., 100 Fla. 906, 130 So. 460; Buscher v. Mangan, Fla.1952, 59 So.2d 745; Biscayne Boulevard Properties, Inc. v. Graham, Fla. 1953, 65 So.2d 858. The Chancellor found that the testimony before him, together with the circumstances surrounding the procurement of the mortgage were clear and convincing proof of fraud. A review of the record reveals that the Chancellor had sufficient evidence before him to support his finding. The appellants declined to offer evidence to repute the charge of fraud in the procurement of the mortgage, choosing to rely upon the position that the appellees could not prove such fraud. If the position of appellants was correct, it would mean that when the facts constituting fraud in the procurement of a mortgage were known only to the perpetrators and the victims, no relief could be granted because the mortgage was acknowledged.

Affirmed.

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


source: Caselaw Access Project

author: HORTON, Judge.

license: Public Domain

text:
    6551 COLLINS AVENUE CORP., a Florida corporation, doing business as Monte Carlo Hotel, Appellant, v. Beverlee MILLEN, a single woman, Appellee.
    No. 57-38.
    District Court of Appeal of Florida. Third District.
    Oct. 8, 1957.
    Rehearing Denied Nov. 6, 1957.

      Edwin H. Underwood, Jr., and George B. Pomeroy, Miami, for appellant.
    Nichols, Gaither, Green, Frates & Beck-ham, Miami, for appellee.
   HORTON, Judge.

The appellee brought suit in the lower court against the appellant for personal injuries sustained while a guest in a hotel operated by the appellant. The cause was tried and resulted in a jury verdict and judgment for the appellee. The appellant has assigned as error the following: (1) Failure of the lower court to direct a verdict for the appellant during the course of the trial; (2) Failure of the lower court to direct a verdict after trial and verdict; (3) The record shows the appellee voluntarily assumed the risk of the undertaking that resulted in her injuries; and (4) The record shows that the appellant was not guilty of any act of negligence proximately causing the appellee’s injuries.

This cause is now before the court on the motion of the appellee to dismiss the appeal. The grounds of the ap-pellee’s motion are two-fold: (1) The appellant failed to renew its motion for directed verdict at the conclusion of all the evidence, and (2) The appellant failed to file a motion for a new trial, both of which are premised solely on the fact that the appellant’s assignments of error challenged the sufficiency of the evidence to support the jury’s verdict. A review of the assignments of error compels the conclusion that only the sufficiency of the evidence produced in the lower court to sustain the verdict has been challenged on appeal. The motion is granted and the appeal is dismissed.

The record discloses that the appellant moved for directed verdict at the conclusion of the appellee’s case. The lower court reserved ruling on the motion and the appellant thereupon put on its case. The appellant did not renew its motion for directed verdict at the close of all the evidence and the case was submitted to the jury. Subsequent to the jury’s verdict, but prior to the entry of judgment, the appellant renewed its motion for directed verdict which was denied, but made no motion for a new trial, or other post trial motions.

In examining the appellee’s first ground in her motion to dismiss, we feel it necessary to consider the rule pertinent to that issue. Rule 2.7, Florida Rules of Civil Procedure, Fla.Stat., 31 F.S.A., provides as follows:

“(a) Effect. A party who moves for a directed verdict at the close of the evidence offered by the adverse party may offer evidence in the event the motion is denied without having reserved the right to do so and to the same extent as if the motion had not been made. The denial of a motion for a directed verdict shall not operate to discharge the jury.
“A motion for a directed verdict shall state the specific grounds therefor.
“(b) Reservation of Decision on Motion. Whenever a motion for a directed verdict made at the close of all of the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury at such time subject to a later determination of the legal questions raised by the motion. Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with the motion for a directed verdict.
“(c) Joined with Motion for New Trial. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.”

In line with Rule 2.7(a), the appellant moved for a directed verdict at the conclusion of the plaintiff’s case and the court reserved ruling on the motion.- The rule does not authorize the court to reserve ruling on such a motion, but when the appellant proceeded to put on its case without a ruling from the court on its motion, it is deemed to have waived the same. See O’Malley v. Cover, 8 Cir., 221 F.2d 156, and Hart v. Grim, 8 Cir., 179 F.2d 334, infra, and cases cited thereafter.

Although exhaustive research has been made, we have been unable to discover any case in Florida that has ruled directly on the point in question. However, from a reading of Section (b) of Rule 2.7, supra, it would appear to the court that only those litigants who have moved for a directed verdict at the close of all the evidence are in a position to renew their motion after verdict. This would appear to be the intent and purpose of the rule and we further feel that it is supported by sound logic. The litigant who does not avail himself of the opportunity to move for a directed verdict at the conclusion of all the evidence obviously must feel that the evidence is sufficient to go to the jury and should not thereafter be heard to complain of his neglect or failure to so move. Under Rule 2.7(b), supra, it is only when a motion for directed verdict has been made at the close of all the evidence, and the motion is either denied or for any reason is not granted, that the motion is carried over beyond the verdict in order to attack the legal sufficiency of the evidence to support the verdict.

Rule 2.7, supra, is almost verbatim with Rule 50 of the Federal Rules of Civil Procedure, 28 U.S.C.A. Under the interpretations given to Rule 50, the federal courts have generally concluded that the failure to move for a directed verdict at the close of all of the evidence, after motion for such verdict at the conclusion of the plaintiff’s case precludes an appellate review of the sufficiency of the evidence to sustain the verdict. In O’Malley v. Cover, 8 Cir., 221 F.2d 156, the defendant moved for a directed verdict at the close of the plaintiff’s case. The court reserved its ruling on the motion, whereupon the defendant proceeded to introduce his evidence. In that instance, the appellate court concluded that the defendant waived his motion for directed verdict, observing that it was an ancient and familiar rule that an appellant is not entitled to a review of the sufficiency of the evidence to support a jury verdict unless at the close of all the evidence taken at the trial he moved the trial court to direct a verdict in his favor on specified grounds.

In the case of Hart v. Grim, 8 Cir., 179 F.2d 334, the defendant interposed a motion for directed verdict at" the close of the plaintiff’s evidence. His motion was overruled and he proceeded to introduce evidence in support of his defense. He failed, however, to interpose a motion for directed verdict at the close of all the evidence. The court in that case construed the defendant’s action in introducing evidence in support of his defense as a waiver of his motion for directed verdict and in that situation, the question of the sufficiency of the evidence to sustain the verdict was not reviewable in the appellate court. See H. F. Wilcox Oil & Gas Co. v. Skidmore, 8 Cir., 72 F.2d 748; Minnehaha County, S. D., v. Kelley, 8 Cir., 150 F.2d 356; Capital Transp. Co. v. Compton, 8 Cir., 187 F.2d 844; Auto Transport v. Potter, 8 Cir., 197 F.2d 907; and Home Ins. Co. of New York v. Davila, 1 Cir., 212 F.2d 731.

This rule has long been followed in the United States Court of Appeals Fifth Circuit. In Baten v. Kirby Lumber Corp., 5 Cir., 103 F.2d 272, 274, the court said: '

“Whether the verdict is authorized by the evidence is a question not reserved in the trial. The defendants went to the jury without challenging its sufficiency, and no error can be attributed to the judge thereabout. Federal appellate courts do not directly review jury verdicts but only rulings of the judge which may have affected the verdict. Rule of Civil Procedure 50, 28 U.S.C.A. following section 723c, does not do away with but emphasizes the necessity of a motion for directed verdict to raise the legal question whether the evidence is sufficient.”

The rule was further affirmed and explained in a recent decision (1957), an appeal from the U. S. District Court S. D. of Florida, Stokes v. Continental Assurance Company, 5 Cir., 242 F.2d 893, 894, wherein the court stated:

“The reason for this rule makes clear that it is no mere technicality. If a party believes that his opponent has failed to produce the sufficiency of evidence that will support a verdict in his favor, he can choose either to ask the court to direct a verdict in his favor or he can take his chances with the jury. It is something of a gamble with him. If the court directs a verdict in his favor and this action is later reversed, he must face a new trial. He may therefore, in a doubtful case, prefer to leave his case up to the jury, as he did here. Having done so, and having lost before the jury, he cannot be heard later to say that the trial judge should be put in error for having submitted the matter to the jury in the first place. As has been so succinctly stated by Judge Sibley, under the circumstances of this case, ‘no error can be attributed to the (trial court) thereabout.’ Baten v. Kirby Lumber Co., supra, 103 F.2d [272] at page 274.”

See Aetna Casualty & Surety Co. v. Yeatts, 4 Cir., 122 F.2d 350; F. W. Woolworth v. Seckinger, 5 Cir., 125 F.2d 97; United States v. Harrell, 8 Cir., 133 F.2d 504; Burroughs v. United States, 5 Cir., 151 F.2d 647; Jorgensen v. York Ice Machinery Corporation, 2 Cir., 160 F.2d 432; Novick v. Gouldsberry, 9 Cir., 173 F.2d 496.

Barron and Holtzoff, Federal Practice and Procedure, Volume 2, Sec. 1081, has this to say with reference to motions for directed verdict:

“It is well established that the sufficiency of the evidence is not reviewable on appeal unless a motion for directed verdict was made in the trial court. There are sound reasons for this rule. The party who makes no motion for directed verdict must be of the view that the evidence makes a case for the jury and should not be permitted to impute error to the court for sharing that view. The appellate court, therefore, is powerless to review the sufficiency of the evidence to support the verdict if the appellant made no motion for directed verdict.”

The motion filed by appellant after verdict could not serve to revive its motion made at the close of appellee’s case for the reasons hereinabove stated. There having been no motion for directed verdict made at the conclusion of all the evidence as contemplated by subsection (b) of the rule, there was nothing upon which the appellant’s motion after verdict could have operated.

Therefore, we conclude that the appellant’s failure to interpose a motion for directed verdict at the conclusion of the evidence precluded the appellant from exercising his right to test the legal sufficiency of the evidence to support the verdict by the post trial motions contained in Rule 2.7(b), supra. Such failure on the appellant’s part in the lower court likewise precludes appellate review in this court of the evidence in the lower court.

In view of the opinions herein expressed, the court does not feel it necessary to decide the second question raised by the ap-pellee.

The motion is granted and the appeal is dismissed.

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


text:
    Elsie STAIGER, as Executrix of the Estate of Olga Winkler, deceased, Appellant, v. Nat J. GREB and Bessie Bloomberg, Appellees.
    No. 57-23.
    District Court of Appeal of Florida. Third District.
    Oct. 10, 1957.
    Rehearing Denied Nov. 6, 1957.

      Edward Walterman and Richard Touby, Miami, for appellant.
    M. H. Rosenhouse and David Rosen-house, Miami, for appellees.
   PEARSON, Judge.

This appeal is from a final decree dismissing an amended complaint for failure to state a cause of action within the cognizance of a court of equity. The decree dismissed the cause but without prejudice to any right the plaintiff might have to prosecute an action or actions at law in a court of competent jurisdiction. The decree is reversed, insofar as it dismissed the cause with directions to proceed under Rule 1.39(a), Florida Rules of Civil Procedure, 30 F.S.A., to try the cause upon the law side.

The amended complaint had as its primary purpose the re-establishment of certain lost negotiable notes and the collection of the same. As an incident of the collection the plaintiff asked for additional relief as follows: (1) that the court determine the legal significance, if any, of a certain letter, which it was anticipated might be pleaded as evidence of a discharge of the obligation represented by the notes; and (2) that an accounting be had between the parties to determine the sums of money owing by one of the defendants to the plaintiff, “including debts evidenced by the re-established lost instruments, together with interest and attorney’s fees provided in said instruments and by law.”

The Chancellor in his decree cited Burleson v. Jesse French & Sons Piano Co., 90 Fla. 16, 104 So. 860 and Clore v. Drebach, 111 Fla. 788, 150 So. 135. These cases demonstrate that a bill of complaint to re-establish a lost note and to have a personal decree against the defendant for the amount of the debt to be evidenced by the re-established note is without equity. This is true because lost instruments may be established by secondary evidence at law as in equity and the defendant is entitled to a jury trial upon the instrument itself. Renner v. Bank of Columbia, 1824, 9 Wheat. 581, 22 U.S. 581, 6 L.Ed. 166; Chitty, Bills, 268 (1842).

The appellant urges that her prayer for the court to determine the legal significance, if any, of a letter which might be pleaded as evidence of a discharge of the obligation represented by the notes, is sufficient ground for equity jurisdiction. In this connection it should be pointed out that the order of the Chancellor was made after answer and the taking of testimony, and that both the answer and the testimony demonstrated the fact that there was no conflict upon the effect of the letter to which reference was made in the prayer. The defendants-appellees did not claim a discharge because of the letter, and a determination of its legal significance was not necessary for a determination of the suit. Therefore it is not necessary for this court to investigate this prayer as a basis for equity jurisdiction.

It is next urged that it was error for the Chancellor to refuse to take jurisdiction in equity because the amended complaint contained a prayer for an accounting. Courts of equity and courts of law have concurrent jurisdiction in the matter of accounting. Scott v. Caldwell, 160 Fla. 861, 37 So.2d 85; 1 Pomeroy, Equity Jurisprudence § 186a (5th ed. 1941). This state recognizes a distinction between equity jurisdiction and law, especially when a full, complete and adequate remedy exists at law. See Scott v. Caldwell, supra, and cases therein cited. In the cause before us neither the complaint nor the evidence offered made a case for the exercise of equity jurisdiction because of extensiye, mutual or complicated accounts. Unless it clearly appears that the demands of the plaintiff cannot be expeditiously and accurately adjudicated in a court of law, the ruling of the Chancellor refusing to take jurisdiction in equity should not be held to be error. See Escambia County v. Blount Const. Co., 66 Fla. 129, 62 So. 650; Royal Indemnity Co. v. Knott, 101 Fla. 1495, 136 So. 474.

The trial judge, having determined that the cause was not properly before him as a Chancellor, dismissed the case. The Florida Rules of Civil Procedure provide for a transfer to the law side under such circumstances. It should be pointed out that the Chancellor may have been influenced in this decision by the fact that ordinarily the separate notes concerned could not be joined at law for the purpose of obtaining the jurisdictional amount in controversy. Burkhart v. Gowin, 86 Fla. 376, 98 So. 140. However, Section 71.03, Fla.Stat., F.S.A. under which the plaintiff was proceeding, expressly states that the action shall be brought in the circuit court. It should be noted that notwithstanding Section 71.04, Fla.Stat., F.S.A., courts of inferior jurisdiction do not have jurisdiction to entertain suits to re-establish lost negotiable instruments. Courts of law do not have an inherent power to re-establish such papers not already a part of their records. Ex parte Greenway, 6 Ves.Jun. 811, 31 Eng.Rep. 1321 (Ch.1802); Pierson v. Hutchinson 2 Camp. 210, 170 Eng.Rep. 1132, (N.P.1809) ; Bayley, Bills of Exchange 413 (1836); Chitty, Bills, 269, 270 (1842); Daniel, Negotiable Instruments, § 1737 (7th ed. 1933); Story, Equity Jurisprudence, §§ 126, 127 (14th ed. 1918). Therefore the proper procedure in the circuit court would have been to transfer the cause to the law side and go forward with the case. This result will have the additional advantage that the Chancellor having already heard the testimony, will be in a position to simplify by proper order the issues to be submitted for the common law trial.

Affirmed in part and reversed in part.

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


author: STURGIS, Chief Judge.

text:
    ATLAS TRAVEL SERVICE, Inc., a Florida corporation, Appellant, v. Frank J. MORELLY, Appellee.
    No. A-75.
    District Court of Appeal of Florida. First District.
    Oct. 15, 1957.

      Thomas T. Cobb, Daytona Beach, for appellant.
    W. W. Judge, Daytona Beach, for appel-lee.
   STURGIS, Chief Judge.

This appeal was perfected prior to July 1, 1957, and is thus governed by the Supreme Court Rules then in effect rather than by the Florida Appellate Rules now in force.

The parties undertook by stipulation to advance the cause for oral argument, but this court refused to recognize such stipulation. Any other course would lead to confusion and would afford undue preference to litigants.

Following that action the appellant filed a motion to advance the cause for oral argument on the ground that the suit was brought by appellant to enforce by injunction the restrictive provisions, limited as to time, of an employment contract, and alleged that the subject of the appeal will become moot unless the decision of this court is rendered in a reasonably short time. Motions seeking to advance a cause for final hearing should be complete within themselves and must contain such appropriate references to or excerpts from the record as will relieve this court of the burden of reviewing the entire record in order to act thereon. The motion is incomplete in that respect.

Under Supreme Court Rule 43, 31 F.S. A., the only cases entitled to preference on the calendar are those involving crimes, habeas corpus proceedings, appeals from the Florida Railroad and Public Utilities Commission, certiorari proceedings to review the orders of the Workmen’s Compensation Commission, causes in which the state is the real party in interest, and other cases entitled to advancement by statute or rule of the court. The case on review does not fall within that class.

For the guidance of the bar, we wish to observe that while Florida Appellate Rule 3.12, governing appeals filed after July 1, 1957, affords complete latitude to this court to advance causes for final hearing upon a showing of good cause, the rule will be strictly construed to the end that litigants shall receive equal treatment, and only those cases which have traditionally been entitled to preferential consideration will be taken up out of order. Mere possibilities or threat of inconvenience or hardship will not justify this court in giving preference to any individual suit- or upon a crowded calendar. See Spratt v. City of Jacksonville, 29 Fla. 171, 10 So. 734.

The motion under consideration must be and it is denied.

WIGGINTON, J., and THOMAS, Associate Justice, concur.


author: TAYLOR, Associate Judge.

text:
    W. H. MARGRABE and Dorothea S. Margrabe, Appellants, v. W. H. GRAVES, Vivian Graves and Adams Realty Company, a Florida corporation, Appellees.
    No. A-5.
    District Court of Appeal of Florida. First District.
    Oct. 15, 1957.
    Raymond, Wilson & Karl, Daytona Beach, for appellants.
    Hull, Landis, Graham & French, Daytona Beach, for appellees W. H. Graves and Vivian Graves.
    Horn & Ossinsky, Daytona Beach, for appellee Adams Realty Co.
   TAYLOR, Associate Judge.

Appellants sued appellees for damages sustained by reason of their falling into a sunken driveway located upon property owned by Adams Realty Company. Summarized, the complaint alleges that appellee Adams Realty Company and the appellees W. H. Graves and Vivian Graves own adjoining parcels of land in Daytona Beach abutting on South Atlantic Avenue; that there is located upon the Adams Realty Company property, “close” to the boundary between the two parcels of land, a sunken driveway some four feet deep; that on the Graves property are two or more buildings containing apartments or rented units; that between this sunken driveway on the Adams property and the boundary between these two parcels of land “there were growths of shrubs, flowers, long grass and vines which concealed the sunken driveway from view and made it impossible to detect except in a good light”; that appellants were guests of tenants of the Graves and had parked their automobile in a parking lot on the Graves’ property; (although not alleged in the complaint the appellants’ brief states that this occurred before dark;) upon leaving the apartment of their hosts at about 11 o’clock at night, appellants in attempting to return to their parked car crossed over the unmarked boundary between the two parcels of land and fell into the driveway on the Adams property and sustained injuries. It is alleged that the Graves were negligent in that with knowledge of the sunken driveway on the Adams property they did not provide a fence, barrier or other warning device or maintain lights to protect persons in the position of appellants, and that the Adams Realty Company was negligent in failing to provide similarly to protect persons in the position of appellants.

Upon motion of the appellees the Circuit Court dismissed the complaint as to all appellees and entered final judgment accordingly.

We will first consider the complaint as against the defendants W. H. and Vivian Graves.

Appellants cite no authority, and independent research has revealed none, which holds a landlord liable for damages resulting from injuries sustained upon and resulting from dangerous conditions existing upon adjoining property owned by and under the exclusive control of another. It is not alleged that the sunken driveway was so close to the property of the Graves that it constituted a hazard to persons while upon the Graves property. The allegations of the complaint negative this idea. There existed between the North line of the Graves property and the sunken driveway a strip of land wide enough to support a growth of shrubs, flowers, long grass and vines sufficient to conceal the sunken driveway from view and make it impossible to detect it except in good light. Obviously appellants were in no danger until they had crossed the boundary and entered upon the property of Adams Realty Company. In Corpus Juris Secundum the rule is stated that “In order to establish liability of the landlord it is necessary that the condition involving danger should have existed not only on the leased premises but on a portion of them which the landlord knew or should have known would be used by the tenant’s invitees.” 52 C.J.S. Landlord and Tenant § 422, p. 76, Brenner v. Central Realty Co., 130 Conn. 666, 37 A.2d 230, 231.

Appellants were injured only after they had left the Graves property and penetrated the shrubs, flowers, long grass and vines which intervened between the Graves property and the sunken driveway. There was no duty upon the Graves to warn plaintiffs of a sunken driveway upon the property of another when they had no reason to anticipate that appellants would wander from the parking area which had been provided upon the Graves property, cross the intervening area occupied by shrubs, flowers, long grass and vines and fall into such driveway. The complaint fails to state a cause of action against the Graves.

With respect to the appellee Adams Realty Company the plaintiffs were trespassers. Obviously they were innocent of willful wrong and their trespass was unintentional, but they were nonetheless trespassers.

The legal duty owing by Adams Realty Company to appellants is measured by the legal status of the appellants as trespassers upon its property. The complaint is clearly insufficient to state a cause of action against Adams Realty Company and was properly dismissed as to it.

There was another reason why the complaint was properly dismissed as to all the appellees.

In the case of McNulty v. Hurley, Fla., 97 So.2d 185, 187, the Supreme Court stated:

“This cause sounds in tort. In such an action it is essential that the complaint allege facts either showing a duty owed to the plaintiff by defendant and a breach thereof by the defendant, or that plaintiff has a legal right which right has been invaded by the defendant, and further that the plaintiff has been damaged thereby.”

The negligence alleged in this case is the failure to provide a fence, barrier, lights or other warning to the appellants. But there is no duty to warn or give notice of a dangerous condition to persons already possessed of knowledge of such dangerous condition. A lack of knowledge on the part of the appellants of the dangerous condition (if one existed) is an essential element in establishing the duty to give notice or warning. The complaint in this case does not allege such lack of knowledge. The complaint, therefore, does not allege a state of facts giving rise to the duty, the failure to perform which is the charge of negligence against the appellees.

In this connection it is significant that the pleader was at great care to allege knowledge of the dangerous condition by Adams Realty Company, and that it was known or should have been known by the Graves, and that appellants did not know the location of the boundary between the two parcels of land, but, as stated does not allege that appellants did not know of the existence or location of the sunken driveway. It is also significant that the brief of the appellant admits, although the pleadings do not disclose, that the plaintiffs arrived at the premises during daylight hours when the driveway would have been obvious upon the most casual observation.

The judgment appealed from is affirmed.

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


author: PER CURIAM.

text:
    Henry R. CHARLOT v. LOUISIANA LIFE INSURANCE COMPANY, Inc.
    No. 21096.
    Court of Appeal of Louisiana. Orleans.
    Oct. 21, 1957.
    Ricard & Dejoie, Albion T. Ricard, Jr., New Orleans, for defendant-appellant.
    Hurndon & Weber, George W. Weber, New Orleans, for plaintiff-appellee.
   PER CURIAM.

This appeal by the defendant, Louisiana Life Insurance Company, Inc., emanates from the First City Court of New Orleans, wherein the plaintiff, Henry R. Chariot, recovered a money judgment against the defendant. The judgment of the First City Court was rendered on July 19, 1957, and signed on July 25, 1957. On August 6, 1957, the defendant obtained an order for a suspensive appeal but did not file the bond until August 9, 1957, the thirteenth day, exclusive of Sundays, after the judgment was signed. In view of the foregoing facts, the plaintiff contends that this appeal from the First City Court of New Orleans should be dismissed since the bond was not timely filed.

The defendant, we believe, concedes that the suspensive appeal was tardy; however, it insists that the appeal may, nevertheless, be perfected as a devolutive' appeal and cites in support of this assertion the case of Kelly, Weber & Co., Inc., v. F. D. Harvey & Co., 1933, 178 La. 265, 151 So. 201, a case in which the appeal emanated from a district court as distinguished from the First City Court of New Orleans, and which held that a tardy suspensive appeal from a district court may be perfected as a devolutive appeal. It appears to be well settled that appeals from the city courts must be perfected in conformity with LSA-R.S. 13:1971, which reads:

“Appeals shall be allowed within ten days, exclusive of Sundays, from the signing of the judgment, on giving bond, according to law, in a sum exceeding by one-half the amount of money judgments, in case of suspen-sive appeal, and in a sum to be fixed by the judge, in case of devolutive appeal, and other than money judgments.”

Therefore, in cases appealed devolutively and/or suspensively from the city courts as distinguished from the district courts, the bond must be filed within ten days exclusive of Sundays from the signing of the judgment. Montaldo Ins. Agency, Inc., v. Bonck, La.App.1950, 43 So.2d 555.

For the reasons assigned it is ordered that this appeal be and the same is hereby dismissed.

Motion sustained, appeal dismissed.


author: JANVIER, Judge.

text:
    PACIFIC INDEMNITY COMPANY and Robert A. Campbell, Sr. v. Donald J. CAVALIER.
    No. 20924.
    Court of Appeal of Louisiana. Orleans.
    Oct. 21, 1957.
    Wheeler, Stewart, Exnicios & Mestayer,, New Orleans, Roland J. Mestayer, Jr., Me-tairie, for Plaintiffs-Appellaits.
    Defendant absent and not represented.
   JANVIER, Judge.

At about 1:30 o’clock in the early morning on November 27, 1954, a Ford Convertible automobile belonging to Robert A., Campbell, which had been on its way towards New Orleans and was standing stationary on the Mississippi River Bridge just above New Orleans, was run into from. the rear by a car which belonged to and was driven by Donald J. Cavalier.

Campbell had secured a policy of collision insurance from Pacific Indemnity Company and that Company, having paid all but $100 of the cost of repairing Campbell’s car and, having obtained from Campbell a subrogation pro tanto against anyone who might be liable, joined with Campbell and brought this suit against Cavalier, the insurance company praying for judgment in the sum of $183.76 and Campbell praying for judgment in the sum of $100.

Plaintiffs alleged that the accident resulted from negligence of Cavalier in failing to have his car under proper control while operating it at too high a rate of speed and too closely behind the car of Campbell which, it is alleged, was moving forward at the time.

Defendant, Cavalier, denied any negligence on his part, and averred that the sole cause of the occurrence was the fact that, after Campbell had brought his car to a stop in the left lane of the two-lane roadway, making it necessary for Cavalier to pass the stationary Campbell car on its right side, a passenger in the Campbell car suddenly opened the right front door of that car with the result that there remained not sufficient roadway for defendant’s car to pass without striking the open door and possibly also striking the passenger who was opening the door, and who might be expected to alight from that doorway.

Defendant contends that it appeared best to him to swerve slightly to his left and into the rear of the stationary Campbell car rather than to continue on his course which would have endangered the passenger who was apparently about to alight.

Cavalier also alleged in the alternative that Campbell was guilty of contributory negligence in stopping his car on the left side of the road and in permitting a passenger to open the door “in the face of the oncoming traffic.”

There was judgment dismissing the suit of plaintiffs and they have appealed.

It was agreed that if there is liability in defendant, which is denied, the total amounts of the judgments in favor of plaintiffs should be $185.

The record makes it clear that the Campbell car was not moving forward at the time. Campbell had stopped his car because another car had stopped immediately in front of his and he says that both the car ahead of him and his car were stopped partially in the right lane and.that it would have been impossible for Cavalier to pass to the right even if the door had not been opened, and that thus it must appear that the true cause of the accident was the fact that Cavalier was driving too closely in the rear and could not have brought his car to a stop in any event. Campbell bases this contention on his statement that, although still another car which was ahead of the Cavalier car had passed to the right of the two stationary cars, it does not necessarily follow that Cavalier also could have passed since, as counsel for plaintiffs put it in their brief, “cars vary greatly in size and drivers differ in skill”.

In spite of Campbell’s statement that Cavalier was not attempting to pass on the right and that Cavalier actually was driving too closely behind him when he stopped, the record makes it certain that Cavalier’s version of the occurrence is the correct one.

We are convinced that, when the Campbell car and the car ahead of it had come to a stop so that Campbell and the other driver might amicably or otherwise adjust a personal difficulty which had arisen between them and which had caused them to stop, Cavalier could have passed both cars on the right and that the only reason for his swerve into the rear of the Campbell car was the sudden and unexpected opening of the right door of that car.

It is conceded, as of course it must be, that it is well settled that when a following :ar runs into the rear of a leading car or into a stationary car, ordinarily there is liability in the operator of the second car (Raziano v. Trauth, 15 La.App. 650, 131 So. 212), and in order to avoid being held liable, the driver of the following car must point to most unusual circumstances. Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377; Washington Fire & Marine Ins. Co. v. Travelers Indemnity Co., La.App., 86 So.2d 743. In Woodall v. Southern Scrap Material Co., La.App., 40 So.2d 495, 498, in considering a case in which a second vehicle ran into the rear of one which was ahead, we discussed certain decisions of the Supreme Court and then said:

“It is also settled that there may be exceptional circumstances which will serve to exculpate a driver * *

And we believe that those exceptional circumstances existed here.

Ordinarily a following car should not attempt to pass on the right of another car, but when that other car is standing stationary in the left lane of the highway, it cannot be said that the driver of the car which must pass must wait until the driver of the stationary car sees fit to move it forward and into the correct lane of traffic.

Cavalier was within his rights in attempting to pass to the right of the Campbell car, and he could have done so had it not been for the sudden opening of the door of that car. He was justified in concluding, in the very short period of time which remained to him, that it would cause less damage and certainly less personal injury for him to swerve into the rear of the car itself rather than to go forward and possibly injure some person. We find no fault in Cavalier.

The judgment appealed from is affirmed at the cost of appellants.

Affirmed.


author: REGAN, Judge. McBRIDE, Judge. REGAN, Judge

text:
    THOMAS JORDAN, Inc. v. Raymond RALPH.
    No. 20736.
    Court of Appeal of Louisiana. Orleans.
    April 15, 1957.
    On Rehearing Oct. 21, 1957.
    Further Rehearing Denied Nov. 4, 1957.

      Sydney J. Parlongue, New Orleans, for •defendant-appellant.
    Milling, Saal, Saunders, Benson & Woodward, W. S. Shirley, Jr., New Orleans, for plaintiff-appellee.
   REGAN, Judge.

Plaintiff, Thomas Jordan, Inc., instituted this suit against the defendant, Raymond Ralph, endeavoring to recover the sum of $450, representing the unpaid purchase price of a steel barge, designated as BJ-242 which the plaintiff sold to the defendant on July 9, 1953 “for scrap, without any warranty as to its condition.”

Defendant pleaded the exceptions of vagueness and no right or cause of action which were overruled. He then answered and admitted that he agreed to buy the barge from plaintiff for $450, but denied that he was indebted unto it for the purchase price thereof since the sale had never been perfected for the reason that it was conditioned upon defendant being able to “cut the barge up for scrap”.

From a judgment in favor of plaintiff as prayed for, defendant has prosecuted this appeal.

Plaintiff, in order to sustain the validity of the allegations of its petition, introduced in evidence the testimony of W. S. Graner, its Marine Superintendent, who stated that the barge was no longer seaworthy and, therefore, it had been beached or moored for about a year on the batture of the Mississippi River near the “Bisso Fleet” at the foot of Walnut Street in the City of New Orleans; the overall measurements of the barge were thirty feet wide, one hundred thirty-five feet long with a draft of eight feet and the value thereof new was about $35,000. He asserted that defendant met him in Peters Road and asked how much the plaintiff wanted for the barge and “I told him the price was $450.00 at * * * Bisso’s Fleet. * * * He agreed to take the barge at that (price)”, and nothing was said about what use would be made of the barge.

However, .on cross-examination Graner modified the foregoing assertions by testifying that since more than two years had elapsed after the sale of the barge he was unable to remember if the defendant told him, at that time, that “he wanted to cut the barge up for scrap.” Graner related that after the sale he met the defendant “on the road” and was told by him that the (U.S.) engineers would not permit “cutting of the barge on the batture” of the river.

James Jacque was the only witness called by the plaintiff and he testified that he had been employed by Captain Billy Bisso for twenty-six years as a watchman for his “fleet”; that part of the barge was in the water and part on the batture “which was controlled by Mr. Bisso” ; he said that he saw defendant twice, “the first time * * * he looked over the barge and told me he had bought * * * or intended to buy it. * * * After * * * a. week more or less, he came back there with two winch trucks and tried to pull the barge on the bank * * * he didn’t have any success so he quit * * * after that I never seen him any more.” Jacque stated that he was not in a position to know what Bisso may have told the defendant with respect to “cutting up the barge for scrap” while it rested on the batture of the river.

Defendant, on the other hand, testified that he had been in the “scrap-iron business since 1933” and that in July of 1953 he met Graner in “Phil’s place in Peters Road” and asked him if he had “anything to sell for scrap” and that he replied that they had a “barge at Bisso’s Fleet that they would take $450.00 for it, so I agreed to purchase the barge if I could cut it up there.” Captain Bisso, Sr. said he could cut the barge up for scrap while it rested on the bat-ture provided I gave him “a couple of bitts for his derrick” which I would salvage from the barge so “I brought my trucks and tied the barge securely * * * and made arrangements to get a crew * * * to cut up the barge” but subsequently W. A. Bisso, Jr., “phoned me and said that I couldn’t cut up this barge, * * * they had too much stuff left and sunk * * Defendant asserted that as soon as he learned that he could not cut the barge upon the batture it had no value for him, “it wouldn’t float and if you would bring it out (on the river) you would be sued by the (U.S.) engineers.” He then informed Graner of Bisso’s refusal to permit him to-“cut the barge up” and he heard “nothing more about it until six or seven weeks later when Tom Jordan told him he would have to pay for the barge. * * * I told him * * * it was a misunderstanding, but rather than have a lawsuit I offered him half of the money for the barge and he turned it down.”

Counsel for the respective litigants concede that the only question posed for our consideration is whether it was the intention of the plaintiff to sell and the defendant to buy the barge conditioned upon the defendant possessing the opportunity to-cut it up for scrap while it rested on the batture of the Mississippi River?

The whole tenor of the record leads us to the inevitable conclusion that the perfection of the contract for the sale of the barge by the plaintiff to the defendant was conditioned upon defendant possessing, at least, the opportunity of cutting it up for scrap while it rested upon the batture. We believe that this condition was expressed when the contract was entered into by the-parties, if not it was certainly implied from the nature of the contract or from the presumed intent of the parties. The record ■clearly establishes as a fact that the steel barge was thirty feet wide, one hundred thirty feet long with a draft of eight feet; that it was no longer servicable to the plaintiff — for the reason that it had holes in its sides, therefore, it had been beached on the batture of the river for over a year .and was apparently not capable of being floated. The record likewise establishes as •a fact that Bisso, who possessed the authority refused to permit the defendant to ■cut the barge up for scrap while it rested ■on the batture near the “Bisso Fleet.” The •record shows that plaintiff’s representative, ■Graner, knew that the defendant was en;gaged in the “scrap iron business” and he also knew that the barge was unfit to be used for any purpose except scrap iron as the sale price thereof indicates. When the •sale was made Graner could not, as a reasonable man, have believed that it was the intention of defendant to physically move this tremendous steel barge from the bat-ture to some other location to be cut up for scrap iron. We, therefore, believe that the ■sale was subject to the express condition •of defendant being able to cut the barge up for scrap while it rested on the batture.

This conclusion is additionally substantiated by virtue of the admission appearing in plaintiff’s petition which reads:

“The said barge was no longer serv-icable to petitioner and was purchased by defendant for scrap, without any warranty as to its condition.” (Italics ours.)

This admission in plaintiff’s pleadings is significant in view of the fact that Graner on direct examination testified that at the time of the sale nothing was said about what use would be made of the barge, but on cross-examination he more pertinently stated that since more than two years had elapsed after the sale of the barge he was unable to remember if the defendant told him at that time that “he wanted to cut the barge up for scrap.”

Assuming arguendo that the condition was not express, a view which plaintiff believes to be most favorable to his case, we then are of the opinion that the condition was implied from the nature of the contract and from the reasonable intent of the parties thereto.

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that there be judgment herein in favor of the defendant dismissing plaintiff’s suit at its cost.

Reversed.

On Rehearing

McBRIDE, Judge.

We granted a rehearing in this case because we doubted that defendant had shown that W. A. Bisso, Jr., who telephoned him, was possessed of authority to refuse to permit the defendant to cut up the barge for scrap while it rested on the batture near the “Bisso Fleet.”

There is no question that defendant purchased the barge, which could not be floated, for the specific purpose of cutting it up for scrap metal, and that this condition was at least tacitly understood by the parties to the sale.

While the defendant in his answer sets up that there never had been any delivery of the barge nor was the sale ever completed, his real defense is that he could not use the barge for the purposes for which it had been purchased. There is no question that the barge had been delivered to the defendant, for he brought his trucks to the scene and tied the barge securely and then left to make arrangements to secure a crew of workmen to cut up the barge. It is also shown that the defendant had negotiations with Capt. Bisso, Sr., who consented to defendant’s cutting- the barge up for scrap provided defendant gave him “a couple of bitts for his derrick.” Defendant takes the position that W. A, Bisso, Jr., who telephoned him the next day or soon thereafter forbidding him to cut up the barge on the batture, had authority to prevent his doing the work, but the record does not show that Mr. Bisso had any authority to prevent the defendant from proceeding.

The defense that Bisso prevented defendant from using the barge for the purposes for which defendant had purchased it amounts to a special defense and the burden of proving it by a preponderance of evidence rested with defendant. Clarke Garage Co., Inc. v. Rosenberg, 13 La.App. 374, 128 So. 62.

The barge was located on the bat-ture between the levee and the waters of the Mississippi River, or in a public place, and what right Mr. W. A. Bisso, Jr., had to prevent defendant from cutting up the barge not being shown, the defendant has failed in carrying the onus of proving the special defense upon which he relies in resisting plaintiff’s claim for the purchase price of the barge.

Therefore, our former decree is annulled, recalled and avoided, and it is now ordered, adjudged and decreed that the judgment of the district court be and the same is hereby reinstated and affirmed.

Original decree recalled and annulled; judgment affirmed.

REGAN, Judge

(dissenting).

I respectfully dissent. I adhere to the views expressed in the original opinion of this court.

In view of the relatively small monetary interest involved herein, I am motivated to-dissent as Judge Walter Clark must have-been when he wrote:

“Every dissenting opinion is necessarily a declaration that, in the opinion of the dissenting member of the Court, the law has been erroneously declared by the majority. It is not every time, however, that a Judge who disagrees with the majority is justified in dissenting. The matter should either be of enough importance to justify putting his dissent on record on the prospect that on some future occasion the Court may change its view, or the matter should be of such a nature that the dissenting Judge-deems it in the public interest to point out the injurious consequences which in his-judgment will result from the principles, laid down in the opinion of the Court. The purpose to be served in filing opinions is to give the reasons actuating the Courts, and this applies as much to dissenting opinions and to opinions on a divided Court as. where there is unanimous opinion. If the reasons given can not be sustained, upon examination by the bar and by public opinion, as sound, sooner or later the ruling is reversed by the Court itself or is cured by legislation.”

A casual reading of both opinions will' serve to emphasize the pertinency of the foregoing rationale.

      . It had holes in its side and was generally in bad condition.

      . Defendant states that it was W. A. Bisso, Jr., who refused him permission to cut the barge up for scrap while it was on the batture of the river, for the reason “that they had too much stuff left and sunk.”

      . Italics ours.

      . The owner of the barge.

      . LSA-Civil Code, Article 2439 provides:
      “The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.
      “Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price and the consent.”

      . LSA-Civil Code, Article 2021 provides:
      “Conditional obligations are such as are made to depend on an uncertain event. If the obligation is not to take effect until the event happens, it is a suspensive condition; if the obligation takes effect immediately, but is liable to be defeated when the event happens, it is then a resolutory condition.” The “suspensive condition” is the equivalent of the condition precedent at common law, and the “resolutory condition” is the equivalent of the condition subsequent at common law. See City of New Orleans v. Texas & Pac. Ry. Co., 1898, 171 U.S. 312, 18 S.Ct. 875, 43 L.Ed. 179; Godchaux v. Iberia-Vermillion R. Co., 1913, 132 La. 77, 60 So. 1027. It matters not whether the condition was suspensive or resolu-tory since in either event it was not fulfilled, however, it is our opinion that it was resolutory.

      .LSA-Civil Code, Article 2026 provides:
      “Conditions are either express or implied. They are express, when they appear in the contract; they are implied,, whenever they result from the operation of law, from the nature of the contract, or from the presumed intent of the parties.”’

      . This fact stands uncontradicted in the record, and it was further substantiated by the testimony of plaintiff’s witness, Jacque.

      . Former Oliief Justice of the Supreme Court of North Carolina.


author: McBRIDE, Judge.

text:
    Cencil MARTIN, Jr. v. NEW AMSTERDAM CASUALTY CO.
    No. 20862.
    Court of Appeal of Louisiana. Orleans.
    Oct. 21, 1957.
    Bienvenu & Culver, New Orleans, H. F. Foster, III, New Orleans, of counsel,, for plaintiff and appellee.
    Lemle & Kelleher and H. Martin Hunley,. Jr., New Orleans, for defendant and appellant.
   McBRIDE, Judge.

This appeal presents a claim asserted1 by plaintiff for damages sustained by his automobile suffered in a collision with an automobile driven by Chalaire at the intersection formed by the inbound roadway of St. Bernard Avenue and the downtown-bound roadway of North Broad Street in the early morning hours of December 11,. 1955. Plaintiff directs his suit against Chalaire’s liability insurer. After a trial' on the merits of the case plaintiff was awarded a judgment in the amount of $1,085.91, from which defendant appeals.

The locus in quo is a wide, open intersection with no impediment to the view of either driver, and it was well lighted at the time the accident occurred. Both St. Bernard Avenue and Broad Street are classified as boulevards as each contains two roadways accommodating traffic bisected by a neutral ground. Semaphore signals controlled traffic movement; a blinking amber light faced vehicles moving on Broad Street, while a blinking red light confronted motorists traveling on St. Bernard Avenue. Plaintiff, Martin, was driving in a downtown direction on Broad Street and the Chalaire automobile, which was being driven on St. Bernard Avenue, approached from Martin’s left at a right-angle.

Both drivers are charged with having been negligent in several respects, but there is no necessity at all to enumerate the reciprocal allegations made by each party. It is frankly conceded by defendant that its insured, Chalaire, was negligent, and thus the only issue in the case is whether Martin was guilty of contributory negligence which would bar his recovery. Among enumerations of contributory negligence are the charges that he failed to keep a proper lookout or to notice the presence of the Chalaire automobile in the intersection and also that he failed to avail himself of the last clear chance to avoid the accident.

Chalaire’s story is that he stopped at North Broad Street in obedience to the blinking red light facing in his direction and then started off at a speed of from IS to 20 miles per hour; that upon reaching the neutral ground of Broad Street he observed the plaintiff’s automobile which was then at a distance of 15 to 20 feet from the intersection. Chalaire insists plaintiff came out into the intersection immediately into his path and that the accident was unavoidable so far as he is concerned.

Martin, on the other hand, testified that as he approached St. Bernard Avenue two cars were stopped ahead of him at the intersection awaiting the clearance of traffic, and that after said cars started their forward motion he came up to the intersection and stopped. He claims he looked both to the right and to the left and admits having seen the lights of a car (which later developed to be Chalaire’s) on St. Bernard Avenue which he says were beyond North Broad Street and about 75 to 80 feet away from the intersection. He states he believed that the approaching car would stop upon reaching the intersection in compliance with the blinking red light and on that assumption started forward at about 5 miles per hour and had traversed about one half the intersection when the Chalaire car struck his left front fender. Martin is positive that Chalaire ignored the red light. It was not until he had started forward and driven his car out into the intersection did he observe that Chalaire had not stopped and then it was too late for him to take any effective measures to avert a collision. Martin claims he accelerated the speed of his car in an unsuccessful attempt to remove himself from Chalaire’s path.

Defendant’s counsel contend that it was negligent for Martin to have entered the intersection into the pathway of Chalaire’s car which, it is argued, was traveling at a greater speed than attributed to it by Chalaire. We are in accord with counsel that Chalaire grossly underestimated his speed. This is attested to by the fact that his automobile left skid marks 30 feet long on the pavement as a result of his emergent application of the brakes and also by the fact that Chalaire traveled over 100 feet while Martin’s car was traveling only a portion of the intersection.

The gravamen of the plea of contributory negligence is that Martin should have had good reason to know or should have known that by virtue of Chalaire’s excessive speed it was impossible for him to stop his car at the intersection.

A motorist having the right of way such as Martin had has a right to assume that the driver approaching the intersection on the less-favored street will observe the law by bringing his automobile to a full stop before entering the intersection. But a motorist cannot indulge in such an assumption if he sees or should see that the driver on the intersecting street has not observed or cannot observe the law with respect to stopping at the intersection.

We do not believe that it can be said that Martin should have sensed or have been cognizant of Chalaire’s speed and inability to stop. He only sighted the headlights of the latter’s car which was approaching at a right angle and which was more than 100 feet away from him. We must recognize that it might he difficult under such circumstances to judge the speed of the approaching car. Martin stated: “I couldn’t see anything but the lights coming; so I couldn’t tell how fast he was coming. * * * I had no reasons to believe that Mr. Chalaire was not going to stop for the light.” We can detect no contributory negligence on Martin’s part.

Defendant’s counsel have cited the case of Franklin National Insurance Co. v. Zurich General Accident & Liability Insurance Co., La.App., 92 So.2d 600, but we do not believe that the cited case has any applicability to this case. In the cited case the driver against whom the plea of contributory negligence was leveled did not take the trouble of looking into the intersection to see if there was any oncoming traffic.

There is no dispute whatever regarding the damage sustained by plaintiff’s car or the claimed expenses entailed in restoring the automobile to its original condition.

Therefore, the judgment appealed from is affirmed.

Affirmed.


author: THORNAL, Justice.

text:
    Harry GENDZIER and Sheldon Gendzier, as Co-Partners, trading and doing business as Florida Rag Company, Appellants, v. Adam BIELECKI and Walter Bielecki, as Co-Partners, trading and doing business as Miami Graded Paper & Rag Salvage, Appellees.
    Supreme Court of Florida.
    Oct. 16, 1957.
    Rehearing Denied Nov. 13, 1957.

      Adams & Rothstein, Jacksonville, for appellants.
    Wallace N. Maer and Edward L. Lust-garten, Miami, for appellees.
   THORNAL, Justice.

Appellants Gendzier, who were plaintiffs below, seek reversal of a final judgment based on a jury verdict in favor of ap-pellees Bielecki, defendants below, in a suit on an alleged account stated and for goods sold.

The appeal tenders for decision the correctness of the ruling of the trial judge in admitting certain evidence with reference to the intent of the appellees in signing a document and also the refusal of the trial Judge to instruct the jury on the effect of a “signature” by initials accompanied by remarks of the Judge alleged to be prejudicial.

The parties were all engaged in the rag and paper waste materials business. The Gendziers as Florida Rag Company did business in Jacksonville. The Bieleckis as Miami Graded Paper and Rag Salvage did business in Miami. In 1951 the parties entered into a formal written agreement whereby the Gendziers purchased certain merchandise, stored it in the Bieleckis’ Miami warehouse and when they sold it, shared profits and losses with the Bieleckis. In addition they sold merchandise to each other. Their dealings could be described in three phases, towit: the formal contract with reference to the storage and sale of waste paper; sales by the Gend-ziers to the Bieleckis; and sales by the Bieleckis to the Gendziers.

In August, 1953, after a conference between Sheldon Gendzier and Adam Bielec-ki, a three-page handwritten document was prepared. An examination of this document reveals a tabulation of various items stored and sold and various credits given on the account. The document is headed “Amounts due to Florida Rag Co. from Miami Graded Paper and Rag Salvage Co. — Arising from losses on Stored Paper accounts.” Under a section of the document designated “Summary” we find the statement “Due us as of this settlement” and a tabulation of figures totaling $6,037.-83. This total figure is the result of the debits and credits in connection with the rag and waste paper contract. The document also contained a statement “Roofing not settled as yet” and “Merchandise account to be handled as discussed.” Each of the three pages contain the initials “AB” and “WB” and the last two pages contain the initials “SG”. It is admitted that the initials SG were placed on the document by Sheldon Gendzier and the initials AB and WB were placed on the document by Adam Bielecki and Walter Bielec-ki, respectively.

The parties continued doing business until July, 1954, when the Gendziers rendered statements to the Bieleckis for a total of $6,885.39, representing the amount included in the document above described plus certain merchandise sold and less certain credits since the document of August, 1953. The .amount of the demand not having been paid, the Gendziers sued the Bieleckis to recover the total sum alleged to be due. Their ■complaint was in two counts, the first alleging indebtedness “for merchandise sold by the plaintiffs to the defendants,” and the second alleging indebtedness by the ■defendants “to the plaintiffs on accounts stated for merchandise sold.” By answer the appellees denied the indebtedness and the trial resulted in a jury verdict for the defendants.

In the course of the trial, over obj ections "by appellants’ attorneys, the trial Judge permitted the appellees to testify in substance that by affixing their initials to the handwritten document they did not intend it as an agreement to account stated but on the other hand merely attached their initials for purposes of “identification.” There is no claim, nor was there any testimony, that such purpose or intention was ■communicated to the plaintiffs or otherwise manifested in any way. The document alluded to, with the initials of the partners affixed in accordance with the un-denied request of the plaintiffs, was mailed back to the plaintiffs along with a letter which stated only, “Enclosed you will find papers we are to send back.”

After retiring to consider its verdict, the jury returned to the courtroom and one ■of the jurors questioned the Judge as follows: “This initialed document here, is that as legal as a full signed name, sir?” The Judge replied: “I am afraid, Mr. Juror, I cannot answer that question for you. You will have to apprise that document as you have and see it and from the evidence that was introduced pertaining to it.” At this point plaintiffs’ counsel requested the Judge to instruct the jury “that the initialing of the papers has the same effect as if they had signed their names in full, whatever that might carry along with it.” In response to this request the Judge replied in the presence of the jury, “It doesn’t carry any weight with me, so I will deny it.” The jury then returned to the jury room and on reappearing in the courtroom returned a verdict for the defendants. Motion for new trial was denied and judgment was entered on the verdict. Reversal of this judgment is now sought.

The appellants contend that it was error to permit the appellees to testify as to their intent when they signed the document with reference to the accounts. They also contend that the Judge should have instructed the jury with reference to the effect of the initials on the document and that the comment of the Judge in the presence of the jury constituted reversible error.

The appellees contend that it was proper to permit testimony as to their intent when they initialed the document and that the comment of the Judge was intended as an observation with reference to the requested instruction rather than an inappropriate comment on the evidence.

We approach first the contention with reference to the refusal of the trial Judge to give the requested instruction and his comments in the presence of the jury at the time the instruction was requested. It is understandable that in the competitive atmosphere of a warmly contested trial, both Judge and counsel often make remarks or observations that would be less likely to occur under more deliberate conditions. Many times such remarks afe harmless. Florida Motor Lines Corporation v. Barry, 158 Fla. 123, 27 So.2d 753. The fact remains, however, that an inappropriate comment on the testimony or the expression of a judicial opinion on the credibility of witnesses or the value of certain evidence often leads a jury of laymen to an erroneous conclusion. 53 Am. Jur., Trial, Sec. 76, p. 75. In the instant case when the juror expressed concern over the weight to be given the initials as contrasted to a full signature, he should have been advised that a set of initials is just as effective to bind a party to an agreement as would be a full signature. 17 C.J.S. Contracts-§ 62(b), p. 412. In other words there is no material difference whether a party to a contract executes it by affixing his initials or his complete signature. If either is an act of the party in authentication of the document it is equally binding upon him.

The juror in this case was instructed to the effect that the court could not answer the question and that he would have to evaluate the document in the light of the evidence introduced pertaining to it. This response, of course, involves the other point presented by the appeal with reference to the allowing of testimony with reference to the intent of the appellees when they initialed the document. After the juror made his inquiry, plaintiffs’ counsel requested an instruction to the effect that the initials would be just as effective as a full signature. In response to this request the Judge gave the reply, “It doesn’t carry any weight with me, so I will deny it.” The appellees contend that the Judge in making this remark had reference to the requested instruction rather than to the documentary evidence signed by the use of initials.

The fact that the lawyers themselves are at odds as to just what the Judge was commenting on adds further weight to appellants’ contention that to say the least it would be confusing and misleading to a jury. In the mind of the average juror the trial Judge is the arbiter and “final word” on any matter upon which he expresses an opinion. This is as it should be. In this state we are blessed with many exceedingly able trial judges of whom the one in the instant case certainly ranks high. Nevertheless, it appears to us that the appellants were entitled to have the requested instruction given and further that the judicial observation was such that the jury might have drawn an incorrect inference adverse to appellants’ case. Griffith v. Shamrock Village, Inc., Fla.1957, 94 So.2d 854.

In Griffith v. Shamrock Village, Inc., supra, we stated that when error is-made to appear, injury is presumed to follow, and that injury is not difficult to presume in a case in which a party’s evidence is not disputed yet the jury renders a verdict against him. This is illustrated in the instant case in that the plaintiffs’ claim included, under the count for goods sold, an-item for roofing material left on contract in the sum of $1,400.99. Upon his examination, defendant Adam Bielecki admitted that that amount of money was owing to the plaintiffs on that account, yet the jury’s not guilty verdict apparently omitted entirely any consideration of this item.

The advice which the Court did give to-the juror, which was in effect that he would have to evaluate the document as he viewed it from the evidence introduced, brings us to the other point with reference to allowing testimony regarding the intent of the appellees when they initialed the-so-called account statement. It will be recalled that they admitted affixing their initials to the document but were permitted to-testify that when they did so they did not intend to agree to the statement of account but rather affixed their initials merely for purposes of identification. It is not clear from the record exactly what they were attempting to identify if they had no intent to approve the words and figures in the document.

We do not overlook the rule that one claiming under a stated account is not entitled to the benefit of an absolute estoppel. An account stated is prima facie evidence of the correctness of the items and the liability of a party therefor. This presumed correctness may be overcome by proof of fraud, mistake or error. However, the burden of establishing fraud, mistake or error is upon the party asserting it and unless he disposes of this burden, the presumptive correctness of the stated account becomes conclusive. Martyn v. Amold, 36 Fla. 446, 18 So. 791; Brite v. Orange Belt Securities Co., 133 Fla. 266, 182 So. 892; City of St. Petersburg v. Meyers, 5 Cir., 55 F.2d 810. In the instant case no effort was made to establish fraud, mistake or error. The appellees merely undertook to prove a personal unilateral intent with reference to their own motive in signing the document. The rule is well established in this state as well as everywhere else that when competent parties reduce their engagements to writing in terms that create a legal obligation without any uncertainty as to the object or extent of the engagement as between them, it is conclusively presumed that the whole engagement and the extent and manner of their undertaking is contained in the writing. The writing itself is the evidence of what they meant or intended by signing it. The test of the meaning and intention of the parties is the content of the written document. Ross v. Savage, 66 Fla. 106, 63 So. 148.

It should be remembered that we are here dealing with an effort by one party to a writing to testify as to his own personal mental attitude with regard to the writing rather than an effort to show the mutual intent of the parties by surrounding facts and circumstances. Likewise, we are not here confronted with an assault on the validity of one’s assent to the terms of the agreement because of fraud, accident or mistake. The appellees concede that they signed the instrument and attempt merely to support their position by testifying as to their uncommunicated intention. They do not contend that the instrument on its face is ambiguous, contradictory or impossible of interpretation without supplementary extrinsic evidence.

Some courts have stated the rule to be that in determining whether there has been a mutual consent to a contract, the courts will not explore the “subjective intent” of the parties but only their “objective intent”; that is, the courts will undertake only to determine what a reasonable man would believe from the outward manifestations of the consent of the parties as evidenced by the language of the written document. Leo F. Piazza Paving Co. v. Bebek & Brkich, 141 Cal.App.2d 226, 296 P.2d 368. We think it unnecessary to burden this opinion with a theoretical discussion of the distinctions between objective and subjective intent in the problem of interpreting a contract which the parties themselves have expressed in writing. The rule is probably best expressed by the late Justice Holmes in “The Path of the Law,” 10 Harvard Law Review 457, where it was stated in part that “The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs— not on the parties having meant the same thing but on their having said the same thing.” See also Industrial Products Mfg. Co. v. Jewett Lumber Co., 8 Cir., 185 F.2d 866; Ray v. William G. Eurice & Bros., 201 Md. 115, 93 A.2d 272; and 12 Am.Jur., Contracts, Sec. 19, p. 516; 17 C.J.S,. Contracts §§ 32, 33, pp. 361, 362; Wigmore on Evidence (3d Ed.) Vol. IX, Secs. 2413, 2414.

So far as the record reveals there was no contention on the part of the ap-pellees that there were any extraneous facts or circumstances that prevented a meeting of the minds or that would adversely affect the validity of their signatures to the document. The sum of their position simply is that they examined the document thoroughly, signed it with their initials, returned it by mail to the appellants but reserved to themselves the private “intention” that it was not for the purpose of agreeing to the stated account but for some other less binding purpose. On this particular point it appears to us that the document should be permitted to “speak for itself” and the evidence as to the secret unilateral intention of any of the parties would be inadmissible.

Appellants objected to the testimony on the ground that it violated the parol evidence rule. Actually this is not the rule that precludes this type of evidence. More accurately the objection is that evidence of the unilateral secret intent of a party to a written instrument is in and of itself immaterial to the actual creation of a contract. Hobbs v. Massasoit Whip Co., 158 Mass. 194, 33 N.E. 495; Restatement of the Law of Contracts, Sec. 20. We have elaborated on this proposition to some extent, however, for the guidance of the parties at another trial of the cause.

For the reasons stated the judgment is reversed and the cause is remanded for further proceedings consistent herewith.

Reversed and remanded.

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


text:
    Homer GARY and Eleanor Gary, Appellants, v. MARION COUNTY, a political subdivision of the State of Florida, Appellee.
    Supreme Court of Florida.
    Oct. 23, 1957.
    Carl F. Crossley, Ocala, for appellants.
    Milbrath & O’Neill, Ocala, for appellee.
   PER CURIAM.

This cause caine on to be heard on the motion of appellee to affirm the judgment appealed from and it appearing to the Court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly ordered, adjudged, and decreed that the motion to affirm the appeal from be, and the same is hereby granted, and the judgment is

Affirmed.

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


text:
    Samuel KASHIN, Petitioner, v. FOOD FAIR, Inc., American Mutual Liability Insurance Co., and Florida Industrial Commission, Respondents.
    Supreme Court of Florida.
    July 31, 1957.
    On Rehearing Oct. 18, 1957.

      Julius Ser and Kaplan & Ser, Miami, for petitioner.
    Clemon J. Ehrlich and Blackwell, Walker & 'Gray, Miami, for Food Fair, Inc., and American Mut. Liability Ins. Co.
    Burnis T. Coleman and Rodney Dur-rance, Tallahassee, for Florida Industrial Comm.
   On Rehearing Granted

THORNAL, Justice.

We consider on rehearing granted a petition for certiorari filed by Kashin, an employee-claimant, seeking review of an order of the Florida Industrial Commission which reversed an order of the deputy commissioner who had found Kashin to be permanently and totally disabled as the result of a compensable injury.

We must determine whether there was competent substantial evidence to sustain the findings of the deputy commissioner and further whether the full Commission ruled correctly in dismissing the claim of the employee.

On November 10, 1952, Kashin, a sixty-nine-year old carpenter, severed the distal portions of the four fingers and thumb of his left hand as the result of a skill saw accident arising out of and in the course of his employment by Food Fair Stores, Inc. Surgery was performed by a Dr. Holmes who removed the damaged portions of the fingers and thumb leaving only short nubs. About thirty days after the accident Kashin complained to the doctor that he was suffering shoulder pains. X-rays were taken to ascertain whether arthritis was present. There was none. Dr. Holmes discharged Kashin on March 13, 1953, with the conclusion that he had reached maximum medical recovery and that the shoulder pains resulted from immobility following the accident. Two and one-half years later, on October 7, 1955, Kashin consulted Dr. Haverfield and complained that pains radiated up into his left arm and shoulder and that he could do nothing with his left hand. Dr. Haverfield found that the tips of the finger nubs were sensitive to pressure, and that he had very little hand mechanism with which to make any kind of grip. However, he was of the view that the shoulder pains were not related to the accident and that the man should be rated on the basis of the total disability of the hand itself.

On November 4, 1955, Kashin consulted Dr. Barrett, another neurosurgeon. Dr. Barrett reported that the man still had a shoulder condition, and that he had definite limitations of elevation and motion in his left shoulder. It was his view that there was a causal relationship between the accident and the left shoulder condition. When Dr. Barrett testified before the deputy commissioner there was testimony as to a subsequently determined heart condition. When so advised he expressed the opinion that regardless of the cardiac condition, the man’s shoulder condition would of itself be disabling “to a degree.” Dr. Barrett performed a stellate block on the left shoulder but this operation had admittedly questionable results. He referred Mr. Kashin to a Dr. Neal, an orthopedic surgeon, who administered some fourteen physiotherapy treatments. Dr. Neal was of the opinion that Kashin was suffering from a shoulder-hand syndrome which resulted from the amputation of the fingers and thumb of the left hand. He testified that he would be inclined to rate Kashin’s disability as to his left arm only, rather than to the body as a whole. About a week prior to the hearing before the deputy commissioner, Mr. Kashin consulted a Dr. Rosenblum who specialized in internal medicine and cardiology. This doctor was of the view that Kash-in was suffering from a cardiac condition which was, in his opinion, probably brought on by the loss of blood and shock at the time of the original injury, supplemented by inactivity following the injury. The doctor on cross-examination conceded that he had no idea as to the extent of loss of blood Kashin had suffered. He was further of the opinion that Kashin was suffering a causalgia of the left arm involving the left shoulder girdle. In his opinion Kashin could not work at the time of the hearing and, as to the extent of disability, he stated that “the trauma could be said to make a difference between sickness and health in this man.” This was the only testimony which even remotely related the heart condition to the accident.

Kashin himself testified that he had no strength in his left arm, that he continued to have pains in his shoulder which were not quite as bad since he took the physiotherapy treatments, and that he noticed the heart condition coming on two or three months before the hearing which was begun on August 1, 1956. He exhibited his arm to the deputy who noted in his findings that the left arm was atrophied sufficiently to be detected. Kashin also demonstrated physically the restrictions in motion of his left arm and shoulder.

The deputy found that the heart condition was the product of the accident and further that the employee suffered a permanent total disability because of the shoulder-hand syndrome. He rated him as permanently and totally disabled and awarded him compensation on the basis of total permanent disability of the body as a whole.

The matter was reviewed by the full Industrial Commission, the majority of which found that there was no competent substantial evidence to support the deputy on any score. The full Commission entered an order reversing the deputy and directing the dismissal of Kashin’s claim. The matter comes to us for review by petition for certiorari. Upon our original consideration of the case we were of the view that the full Commission ruled correctly and certi-orari was denied. A petition for rehearing was filed and granted without re-arguments. We now have the matter under consideration on rehearing.

The contentions of the petitioner Kashin are that the full Commission undertook to weigh and evaluate the evidence and the credibility of the witnesses and disregarded “the substantial evidence rule.” He contends that he is entitled to compensation for permanent total disability of the body as a whole as distinguished from a permanent partial disability rating based on the loss of a hand.

The respondents contend that there was no competent substantial evidence to support the conclusions of the deputy that Kashin suffered a permanent total disability either because of the heart condition or because of the shoulder-hand syndrome.

It should be pointed out that Kashin originally was compensated for total disability from the time of the accident to March 14, 1953, when he was discharged by Dr. Holmes as having reached maximum medical recovery, and thereafter he was compensated for 175 weeks on the basis of the total loss of use of his left hand. The matter later came before the deputy commissioner on Kashin’s petition filed July 10, 1956, claiming that he did not reach maximum recovery on March 14, 1953, nor had he reached maximum recovery at the time of the filing of the petition. He claimed in the alternative that if maximum recovery was reached at some point then his permanent partial disability rating should be based on the body as a whole rather than the left hand.

The contention presents for our consideration whether compensation should be allowed for permanent partial disability for the loss of a hand under Section 440.-15(3) (c), Florida Statutes, F.S.A., or whether it should be allowed under Section 440.15(3) (u), Florida Statutes, F.S.A., covering “unscheduled injuries”. The difference is important because of the differential of time over which compensation is to be paid. It is even more important because for the scheduled injury of loss of a hand, the extent of permanent partial disability is specifically established by the statute. On the other hand, we have held that under the provisions of Section 440.15(3) (u), Florida Statutes, F.S.A., the deputy commissioner shall take into consideration not only the functional disability but the industrial or earning capacity disability which might be influenced by such elements as education, age,, experience, type of work and the like. See Ball v. Mann, Fla. 1954, 75 So.2d 758.

At the outset, of course, we are confronted with the rule which we have consistently recognized that the findings of the deputy commissioner will not be disturbed if they are supported by any competent substantial evidence, provided, of course, that he has complied with the essential requirements of the law. This rule governing the scope of review applies to the extent of review available to the full Commission when it reviews an order of the deputy commissioner in the same fashion that it applies to an appellate Court. Wilson v. McCoy Mfg. Co., Fla.1954, 69 So.2d 659; United States Casualty Co. v. Maryland Casualty Co., Fla.1951, 55 So.2d 741.

The petitioner takes the position that the full Commission totally failed to observe the competent substantial evidence rule in its examination of this record.

We consider first the matter of the alleged disability resulting from the heart condition which was apparently ascertained to exist only about a week prior to the hearing and some two and one-half years subsequent to the accident. Although one doctor testified that Mr. Kashin had a heart condition when he examined him just before the hearing, his conclusion as to a causal relationship between the accident and the ultimate cardiac ailment were at most rather nebulous and speculative and grounded on assumed factual conditions the extent of which he could not actually know to exist.

We do not here undertake to evaluate the weight of the conflicting medical testimony and certainly we would not undertake to comment on the relative credibility to be accorded the various medical experts. They all appear to be thoroughly trained and competent doctors. The fact remains, however, that the only evidence regarding the relationship between the accident and the heart condition was in terms of probabilities rather than reasonable certainties and could not be considered as competent substantial evidence to support the conclusions of the deputy on this point. We are, therefore, of the view that the full Commission ruled correctly in reversing the deputy on this finding.

We come next to the shoulder-hand syndrome aspect of the matter. Practically all of the medical experts were of the view that the shoulder condition was the product of the industrial injury. Some expressed the opinion that such disability as Mr. Kashin has experienced should be limited to the loss of the use of his hand. Others were of the view that the shoulder-hand syndrome was disabling “to a degree.” One doctor was of the view that he was suffering a causalgia of the left arm involving the left shoulder girdle and that this was directly related to the accident. Incidentally, one of the doctors described “causalgia” as a “first cousin” to a' syndrome. They are, therefore, not too' much at variance as to the technical designation of Mr. Kashin’s shoulder condition.

The respondents, however, insist that in the ultimate the disability that Mr. Kashin has suffered has been a loss of a hand which is a scheduled injury under Section 440.15(3) (c), Florida Statutes, F.S.A., which provides for the payment of sixty percent of the average weekly wages for a period of 175 weeks. They assert that he has been paid this and that they have no further liability.

Petitioner Kashin insists that the position of the respondents would be correct except for the fact that he has actually suffered an injury which disables him to an extent beyond that normally occasioned by the loss of a hand. Flis position is that superadded to the loss of the hand is the condition of his shoulder which is a genuinely real disabling physical condition.

In Blakiston’s New Gould Medical Dictionary, 2d ed., we find the following definition of a shoulder-hand syndrome, towit:

“A syndrome characterized by severe constant intractable pain in the shoulder and arm, limited joint motion, diffuse swelling of the distal part of the upper extremity, fibrosis and atrophy of muscles, and decalcification of underlying bones. The cause is not well understood. It is similar to and may be identical with, or may be a form of, causalgia (reflex sympathetic dystrophy).”

It appears to us that assuming Mr. Kashin is suffering a shoulder-hand syndrome or causalgia, as the doctors appear to agree, then the pain and limited joint motion in his shoulder is an injury which is superadded to the scheduled injury of the loss of a hand.

In Larson’s Workmen’s Compensation Law, Vol. 2, Sec. 58.20, it is stated:

“The great majority of modern decisions agree that, if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.”

Numerous decisions are cited to support the rule which Larson describes as the rule of the great majority of modern decisions. In the instant case, for example, when Dr. Haverfield examined Mr. Kashin he found that he had very little hand mechanism with which to make any kind of grip. The loss of the mechanical use of the hand was a part of the permanent partial disability contemplated in the scheduled injury. Incapacity or inconvenience or inability to work resulting from the lack of fingers would similarly come within the scheduled injury category of disabilities. However, when as the result of a scheduled injury a claimant suffers a loss of efficiency or pain in some other part of his body, not included in the specific schedule, as in the shoulder girdle area in the matter before us, then the disability or incapacity produced by the condition in such other part of the body cannot be said to be within the ambit of a scheduled injury under the Workmen’s Compensation Act. The amount allowed for the scheduled injury then ceases to be exclusive and it becomes the responsibility of the deputy commissioner in the first instance on the basis of competent substantial evidence to fix the extent of disability produced by the unscheduled injury. In such a case he is then authorized to consider the various elements reflecting adversely on the employee’s earning capacity as distinguished from a strictly functional disability. Ball v. Mann, supra. We find this rule to have support in numerous cases. See Lentz v. Mumy Well Service, 1954, 340 Mich. 1, 64 N.W.2d 673; National Surety Corp. v. Martin, 86 Ga.App. 77, 71 S.E.2d 666; Texas Employers’ Ins. Ass’n v. Polk, Tex.Civ.App.1954, 269 S.W.2d 582.

In the instant case, therefore, there was present competent substantial evidence upon which the deputy could make a finding of compensable injury under Section 440.-15(3) (u), Florida Statutes, F.S.A., and the full Industrial Commission ruled erroneously when they held to the contrary. However, the ultimate holding of the full Commission was correct to the extent that there was no competent substantial evidence whatsoever to sustain the deputy’s conclusions that the unscheduled injury produced permanent total disability. In fact there was no evidence at all that we can find in the record that would guide either the deputy or this Court to any conclusion as to the extent or percentage of disability produced by the unscheduled injury. We do not overlook the fact that in addition to the medical testimony the deputy had the benefit of viewing the claimant in person but there is nothing appearing in the record to suggest that the claimant himself even claims permanent total disability as the result of the unscheduled injury.

For this reason the conclusion of the full Commission reversing the matter will have to be sustained. However, the judgment of the Commission directing that the claim be dismissed will have to be reversed and the cause sent back to the deputy with directions to make findings on the basis of any competent substantial evidence that may be submitted to him with reference to the extent of disability produced by the unscheduled injury.

As to the portion of the order dismissing the claim of the petitioner, certiorari is granted, and that portion of the order is hereby quashed. As to the remainder of the order, the petition for certiorari is denied but with directions to return the matter to the deputy commissioner for further proceedings consistent herewith.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., and WIG-GINTON, District Judge, concur.