text:
    LA GRANGE REALTY, Inc., v. G. Lafayette SHEEN and Orleans Storage Co., Inc.
    No. 20825.
    Court of Appeal of Louisiana. Orleans.
    March 25, 1957.

      Rudolph F. Becker, Jr., New Orleans, for plaintiff-appellant.
    Chaffe, McCall, Phillips, Burke & Hopkins and Leon Sarpy, New Orleans, for defendants-appellees.
   REGAN, Judge.

Plaintiff, LaGrange Realty, Inc., instituted this suit against the defendants, G. Lafayette Sheen and Orleans Storage Company, Inc., for the reduction of the purchase price of a cabin cruiser from $2,500 to the sum of $633.73; the sum of $1,866.27 having been expended to repair the alleged defects which existed therein prior to the sale.

Defendants answered and denied that any defects existed in the vessel when it was sold to the plaintiff on September 17, 1953; but if a defect did exist at the time of the sale, that defendant possessed no knowledge thereof and the plaintiff’s action is prescribed in one year by virtue of the limitation in Revised Civil Code, Articles 2534 and 2544, since suit was not i i-stituted until July 1, 1955, or one year and nine and a half months after the consummation of the sale.

From a judgment in favor of the defendants dismissing plaintiff’s suit, it has prosecuted this appeal.

The record reveals that the cabin cruiser when sold by the defendant to the plaintiff on September 17, 1953, was warranted to be sound and seaworthy, but that the plaintiff, through the efforts of John R. Perez, Jr., its Secretary-Treasurer, discovered the alleged defects on or about Oc- . tober 25, 1954; that the plaintiff, on several occasions thereafter, unsuccessfully endeavored to secure a compromise from the defendant and finally was compelled to resort to the institution of this suit for the reduction of the purchase price of the boat on July 1, 1955.

In order to substantiate the existence of the defects in the cruiser prior to the date of sale plaintiff principally relies upon the testimony of Philip Duvic, Charles G. Justice, Jr., Gray Weaver and William T. Wells.

Duvic testified that he and Cook were friends and that prior to the date of the sale he visited Cook at Oak Grove Lodge in DeLisle, Mississippi, on Wolf River, and that Cook invited him aboard the cruiser ■ on the day that he was bringing it to the R. C. Sellier Shipyard at DeLisle, Mississippi, for repairs and while they were cruising in the Bay of St. Louis he asked Cook what repairs were contemplated and “I was told the nature was thought to he rot and that she was leaking and that his intention was to take it to the shipyard for repairs. To what extent, however, I - have no knowledge, but I knew that it was with the idea of selling the vessel shortly thereafter.”

Charles G. Justice, Jr., testified that he had heard that the defendant’s boat was for sale and that he visited Sellier’s Shipyard in August of 1953, about one month prior to the sale for the purpose of making an inspection thereof. He observed at that time that the employees of the shipyard were in the process of installing a new “toe rail” and that, in doing so, they were covering up rotten wood rather than replacing it; that when this “toe rail” was affixed from bow to stern it would be-impossible to detect the decayed wood underneath ; “it was obvious to me that the boat was rotten and if it is rotten above the water line and alongside the side, it surely follows that there is rot below the water line.”

Gray Weaver testified that he had occasion to supervise the repair of the boat in November, 1954, and he knew that “there was rot in the wood and the boat seemed to have been in a collision.” When interrogated as to how long the rot had existed in the boat he responded “I cannot answer that question, I do not know * * *. There is no way for me to tell when that started.”

William T. Wells testified that the “hull had considerable wood decay” but he was unable to determine the cause thereof or to say how long the condition had existed.

On the other hand the defendant’s evidence discloses that during the month of August, 1953, or one month prior to the sale, the defendant, through its Vice President, A. M. Cook, had this cabin cruiser drydocked in Sellier’s Shipyard in DeLisle, Mississippi. Cook testified that he had instructed Sellier to make all necessary repairs and that he had made every effort to see that the vessel was seaworthy before the date of its sale. The principle work done at this time was the installation of plywood patches on the port and starboard side of the hull near the bow stern. The work that Duvic referred to as “rot”' were these patches, and whether it was rot or cracks in the plywood hull which Sellier repaired, Cook testified that he “really didn’t know.” He further asserted that within his knowledge no defects of any sort or nature whatsoever existed in the hull of the cruiser prior to the sale thereof to the plaintiff.

Noel Sellier, who had been working at the shipyard for twenty years, which was owned by his father, testified that he examined the boat thoroughly and that the hull was not rotten and that when it was removed from the shipyard it was in good condition. To substantiate the statement that the hull was not rotten he .asserted that the nature of the work required the use of brass screws which would “not have held” if the hull had been rotten. He emphasized that if the hull had actually been rotten he would have notified the owner immediately.

The testimony of John R. Perez, Jr., taken by the defendant pursuant to the Discovery Rule of the State of Louisiana revealed that several days prior to the sale he had the boat inspected by a small boat operator. This man, whose name was never revealed on the trial hereof, inspected the vessel in the Southern Yacht Club pen, located in that section of the City of New Orleans which has been colloquially designated as West End, took a trial run over the waters of Lake Pontchartrain and as a result thereof he pronounced the vessel in good condition.. This witness was not produced by the plaintiff and the only explanation offered as to why he was not called was that he had been introduced to Perez by a mutual friend and he knew nothing more about his identification. Perez further related that after plaintiff purchased the boat it was kept at an open dock in Wolf River, near DeLisle, Mississippi, where, for 13 months, it was exposed to the elements and used almost every weekend for trips averaging five or more miles, d.uring all of which time it manifested no defects. It was never taken out of this water, was not kept in a boathouse and the canvas cover that had been used when the defendant owned the boat was not used after it was acquired by the plaintiff and no other form of shelter was provided. Perez further testified that during this period of 13 months or in July of 1954, he piloted the boat on a trip of more than 200 miles to Grand Isle, Louisiana, and back to Wolf River. The first leg of this journey was from Wolf River to Scar-iano’s Boat Works, located at the west end of New Orleans. The vessel was removed from the water, placed on the ways for the first and only time since its acquisition and the bottom was copper painted. According to Perez, Scariano’s Boat Works pronounced the boat “all right.” Perez continued to pilot the cruiser on its journey to Grand Isle where it participated in the Tarpon Rodeo and from there returned to Wolf River without the manifestation of any defects.

The only question which is posed for our consideration is one of fact and that is whether any defect existed in the cruiser prior to the consummation of the sale to the plaintiff?

The trial court was obviously of the opinion that no defects existed in the hull of the cruiser prior to the sale and our examination of the record fails to disclose any error in his legal or factual conclusions.

Plaintiff’s counsel in oral argument before this court laid great stress upon the testimony of Duvic and Justice. Apparently the trial judge, who heard these witnesses, was not impressed with their testimony. On the other hand, he was obviously impressed with the evidence adduced in support of the defendant’s position that no latent defects existed in this cruiser at the time it was sold to the plaintiff on September 17, 1953, and that plaintiff had failed to carry the burden of proving the existence of any defects. We believe that his conclusion in this respect was predicated upon Sellier’s testimony, who repaired the boat when it was on the ways in DeLisle, Mississippi, and upon the more pertinent fact that the plaintiff had the hull of the boat painted by Scariano’s Boat Works in New Orleans in July, 1954, or approximately nine months after the purchase thereof and they reported the boat to be “all right.” It certainly seems reasonable to believe that if any portion of the hull was in a state of decay when it was copper painted that the management of the Scariano’s Boat Works would have notified the owner thereof by whom it had been retained.

But assuming arguendo that latent defects did exist in the vessel, we are convinced that the defendant possessed no knowledge thereof and, therefore, the red-hibitory action or the action for a reduction of price was prescribed a year from the date of the sale of the cruiser to the plaintiff.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

      . G. L. Sheen and his stepson, A. M. Cook, were respectively President and Vice-President of the Orleans Storage Co., Inc., and it is conceded by the litigants that Sheen knew little or nothing about the nature of the case, but that Cook handled all negotiations leading up to the sale of the boat.

      . The action for the reduction of price is subject to the same rules and the same limitations as the redhibitory action. LSA-C.C. Art. 2544. See also LSA-C.C. Art. 2534.

      . Originally registered as the Margaret S.

      . The limitation does not apply if the seller knew of the defect and failed to declare it to the purchaser. LSA-Civil Code, Art. 2534.

      . The defects were alleged to be rot which existed in various sections of the hull and decking causing the cruiser to be unsound and unseaworthy.

      . Foreman of small boat repairs at Higgins, Inc.

      . Employee of Higgins, Inc., who worked on cruiser.

      . DSA-R.S. 13:3741 et seq., Depositions and Discovery Act, 202 of 1952.

      . The plaintiff had previously purchased the real estate from the defendants.

      . It is significant to note that no employee of this shipyard was called to testify, who obviously would have been in an excellent position to testify about the condition of the hull.

      .LSA-C.C. Art. 2530 provides: “The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. * * * ”

      . LSA-C.C. Art. 2534 provides:
      “The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.
      “This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser. * * *»

      . LSA-C.C. Art. 2544 provides:
      “The action for a reduction of price is subject to the same rules and to the same limitations as the redhibitory action.”

      . Sale was September 17, 1953; suit was instituted July 1, 1955.


source: Caselaw Access Project

author: O’CONNELL, Justice.

license: Public Domain

text:
    Jerry MANNING, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, Division B.
    March 13, 1957.
    Rehearing Denied April 12, 1957.

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

Jerry Manning and Robert Shepard were indicted on February 21, 1956, in two counts with the crime of rape and in the alternative with aiding and abetting the rape of Carol Ann Donnelly. Upon trial, the jury returned a verdict against Manning of guilty of assault with intent to commit rape. A verdict was also returned finding the accused, Robert Shepard, not guilty. Manning received a twenty-year sentence and thereupon entered this appeal.

Carol Ann Donnelly, the victim of the alleged assault, was fifteen years of age. The sordid events which are alleged to have taken place will not be set out in detail. Briefly, the following events appear to have transpired.

Defendant Manning approached the girl on Wednesday night, July 20, 1955, asking to be allowed to take her home. Miss Donnelly was at the time working as a curb girl at a drive-in restaurant. Manning had met the girl on a previous occasion but the two had never before gone out together. She informed him she would go home with him if he would first go inform her mother that she would be working a bit late that night and that Manning would bring her home. Manning left and when he returned informed her that her mother said it was all right for him to take hgr home, and that they could go have a cold drink first. Miss Donnelly discovered later that Manning had not approached her mother at all. After Miss Donnelly, the prose-cutrix, got off work she and Manning went to another refreshment place for their cold drinks. When they left, Manning did not head for her home and when she asked where they were going he replied he wished to show her where he raced motorcycles on Sundays. She protested, due to the lateness of the hour. However, Manning proceeded, driving out to a deserted air strip near Opa Locka. He parked near another parked car. The prosecutrix testified that he attempted against her will to have intercourse with her and then called to the other car, whereupon the accused Shepard and another young man, James Wiltsey, got out of that car and came over to Manning’s car. The prosecutrix claims they all three tried to have intercourse with her against her will. At one time, prior to trial, she had intimated that all three of the young men raped her and it was her intention to prosecute the three of them. Her testimony at the trial was to the effect, however, that Manning and Shepard actually had intercourse with her but that Wiltsey did not, although he attempted to against her consent. It was her testimony that both Manning and Shepard threatened her. She alleged that Shepard put his hands around her throat and said, in effect, that he would kill her if she did not allow him to accomplish his purpose. Manning, she said, threatened her and twisted her arm behind her back. After the assaults took place, Manning and Wiltsey drove one car and Shepard the other, returning to the city. The prose-cutrix climbed over the seat to sit between the two boys. She testified she did this because she could not bear, to remain on the rear seat with all its associations.

James Wiltsey, who was not prosecuted, testified for the State. He said that Manning arranged beforehand with Shepard and himself to be at the air strip with the idea that they join him in having intercourse with the prosecutrix. Wiltsey said he assumed she would do so voluntarily. Wiltsey testified that when Manning called Shepard and him to his car, the prosecutrix was sitting up and sobbing. When he got in the car and requested her to have intercourse with him she protested violently, whereupon he left the car. Manning then told Shepard he could threaten her but not to slap her or put any bruises upon her. Wiltsey said when Shepard got out of the car he informed them he had had intercourse but when Wiltsey got in the car the second time the prosecutrix said she had not “given in” to any one. Wiltsey then bargained with her that if she would give in to his wishes he would see that she got home and that she thereupon agreed, but that he was not successful in his attempt to have intercourse with her. Wiltsey then alleged Manning got back in the car and assaulted her. He heard Manning threaten to slap her.

After the alleged events took place the two cars proceeded to a filling station. Defendant Shepard produced at the trial the station attendant, who testified that he saw all four of the parties but that the girl gave no indication of there being anything wrong. She did not appear to be upset, and said nothing to him.

The prosecutrix’ mother testified that when her daughter got home she was crying and very upset. She informed her mother of what had happened. This was early Thursday morning. On Saturday morning the mother and her daughter went to a doctor and related the story. The police were then called and informed by the doctor that he had just examined a possible rape victim.

The doctor made only a superficial, visual inspection of the girl. His testimony indicated the possibility of recent intercourse or attempted intercourse. Another doctor made a careful examination and his testimony at least indicated the possibility of recent intercourse. A third doctor, who did not examine the prosecutrix, related facts which' indicated the observations of the other two doctors could be explained by means other than intercourse. An examination of the panties worn by prosecu-trix the night of the assault revealed the presence of male semen and a slight indication of blood.

Manning, the appellant, contends the evidence was insufficient to sustain the vtrdict. We do not agree. The accused dtd not' take the stand in his own behalf and produced no witnesses. The state presented both the. prosecutrix and the witness James Wiltsey whose testimony, if true, definitely implicated Manning, evidencing his guilt of the crime of assault with intent to commit rape. Wiltsey testified he had been made no promises by the state in exchange for his agreement to testify. The .jury chose to believe such testimony and the doctors’ testimony was at least not effective in overcoming that belief.

We are not entitled to substitute our judgment for that of the jury. Manning insists, however, that there was no evidence to substantiate the jury’s finding but rather the testimony of the prosecutrix itself reveals that he did not intend to consummate intercourse regardless of the girl’s lack of consent. The gravamen of the crime of assault with intent to commit rape is that the intent of the accused was to consummate the act regardless of resistance and want of consent. Dannelley v. State, 1920, 80 Fla. 773, 87 So. 44; Rye v. State, 1943, 153 Fla. 559, 15 So.2d 255.

According to the testimony of the prosecutrix, Manning did attempt to have intercourse with her when they first parked. The attempt was against her will and, according to her, failed due to her continued efforts of resistance. Subsequently, Manning again used force and threats to accomplish his purpose and was successful. We have only her testimony that he used force and threats the first time, but Wiltsey did testify that he was sitting in his car nearby and heard the girl on several occasions exclaim “no”; he also said that when he approached Manning’s car he found her sitting up and sobbing. It appears that even if Manning did desist the first time he did not voluntarily desist without unusual resistance on the girl’s part. Rye v. State, supra. The evidence of the subsequent, successful attempt was sufficient in itself to support the verdict and was strengthened by the testimony of the witness Wiltsey. Even if the evidence did tend to sustain the conclusion that Manning’s final act of intercourse was done with no resistance, defendant Manning confesses the rule to be that one may be guilty of assault to commit rape ‘even though the female subsequently gives her consent and intercourse is achieved.

Manning also contends the conduct •of the girl after the alleged events took place did not support her subsequent claim. He referred to the facts she made no outcry to the filling station attendant, did not appear unusually emotional to him, got on the front seat with her attackers, and did not report the attack for two days. We believe all those facts were satisfactorily explained by the State which alleged her fear of Manning influenced her actions. She testified he made various threats as to what would happen should she tell what had happened.

The defendant Manning also contends the verdict of the jury was inconsistent in that he was adjudged guilty but Shepard not guilty when all the evidence showed the two to be equally guilty, if guilty at all.

There was a slight difference in the evidence produced against the two accused men. Although both the prosecu-trix and Wiltsey testified as to Manning’s threats and force, only the prosecutrix testified that Shepard threatened her. Where several persons are jointly indicted and tried for an offense which may be committed by one person alone, the jury can by separate verdicts convict one or more and acquit the others, unless the evidence against all of the defendants is the same. “However, where there is the slightest difference in the testimony as between two jointly indicted, the fact that the evidence also involves the other to some •extent will not relieve the one of culpability.” 23 C.J.S., Criminal Law, § 1402(c).

Futhermore, we have previously ruled that a verdict in a criminal case will not be condemned for inconsistence. Goodwin v. State, 1946, 157 Fla. 751, 26 So.2d 898. A jury may by separate verdict acquit one and convict the other, where the two are jointly indicted. Each defendant is entitled to have his guilt or innocence determined by the jury without reference to the guilt of his codefendant. Harper v. State, 1945, 156 Fla. 331, 22 So.2d 766.

In the case of Taylor v. State, 1947, 159 Fla. 74, 31 So.2d 47, we held that there was no inconsistency warranting a reversal of a conviction of grand larceny because one jointly charged in the information was found guilty of petit larceny. The contention made was that the verdicts were inconsistent and this court said, 31 So.2d at page 49:

“ * * * It is quite true that the two verdicts appearing in the record sustain this view, but Kelley apparently is satisfied therewith as he has not perfected an appeal here. The appellant cannot sustain his contentions of inconsistency of the verdicts because' the Kelley verdict and judgment is not before us.”

It is our conclusion that there was sufficient evidence to support the verdict of the jury against Manning. The difference in evidence against Manning and Shepard prevented the verdicts from being • inconsistent, but even were we to hold them inconsistent, Manning is entitled to no reversal because of such inconsistency since this court has previously ruled on that issue adversely to him. Taylor v. State, supra.

The judgment and sentence appealed from is affirmed.

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


author: THORNAL, Justice. BIRD, Associate Justice

text:
    Walter WAHRENDORFF et al., Appellants, v. Leo H. MOORE et al., Appellees.
    Supreme Court of Florida, En Banc.
    March 20, 1957.
    Rehearing Denied May 2, 1957.
    Ward & Ward, Miami, for appellants.
    Von Arx, Von Arx & Hope, Miami, for appellees.
   THORNAL, Justice.

Appellants Wahrendorff, who were plaintiffs below, seek reversal of a final decree dismissing their complaint in equity praying for the cancellation of certain restrictions on the use of a parcel of land.

The determining points are whether the restrictions actually- existed and if so, whether the proofs were adequate to justify cancelling the same.

In 1938 a plat of Flagler 'Groves Estates was recorded in Dade County. On the faca of the plat under a heading reading “Restrictive Covenants” appeared in part the following:

“1. The official County Zoning Regulations for the area shall be observed.
* * * * * *
“4. There shall be no more than a single residence on each lot which shall be used for residential purposes only and shall be used and limited to the use of single family and the dependents and guests thereof. This section shall not apply to Lots 1 to 7, inc., Block 2 of attached plat.”

The plat showed that the restrictions were approved by the Dade County Zoning Director and the subdividers of the subdivision. On Lots 1 to 7, inclusive, Block 2, described as an exception to the restriction, was located the well known Rare Bird Farm. Appellants owned Lot 8, Block 2, located immediately south of the Bird Farm and facing U. S. Highway No. 1. The highway existed when the subdivision was platted although it was then a two-lane road as contrasted to the heavily traveled four-lane highway now existing.

Appellants alleged in their complaint that over the years conditions had so changed that the restrictions had become an unjustifiable burden on the use of their lot. In the meantime, the County Zoning Board has zoned the lot for business uses. To support the alleged changed conditions appellants cite the general development in the area, the tremendously increased traffic on U. S. Highway 1 and the fact that a motel has been constructed in violation of the restrictions in Block 1 of the subdivision. Block 1 is north of the Bird Farm and the motel is in the northwest corner of the Block.

Appellees responded with the allegations that the covenants appearing on the plat restricting the use of the property for residential purposes were for the benefit of all purchasers of lots in the subdivision. They assert that they have constructed expensive residences on their lots in reliance on the restrictions. They, of course, allege that conditions have not sufficiently changed to justify equitable interference with their contended contractual rights under the circumstances.

The Chancellor heard all of the testimony and in the ultimate agreed with the appel-lees who were among the defendants. The final decree dismissing the complaint was entered. Reversal of this decree is now sought.

On appeal the appellants contend that the so-called restrictive covenants appearing on the face of the plat were not included in each of the deeds. It is their position that these covenants as a matter of law never became effective and should not now be enforced. In addition they contend that the changed conditions in the area justify the cancellation of the restrictions as to their lot if it should be concluded that the restrictions were once effective.

On the other hand the appellees contend that the restrictions were binding and that there has not been a sufficient showing to justify cancelling them.

On the basic point as to whether the restrictions came into being upon the recording of the plat and the subsequent sale of lots according to the plat, we agree with the Chancellor. The record here reveals that each deed subsequent to the plat referred thereto and in substance recited that the property was “subject to restrictions of record”. The restrictions were not repeated verbatim. Although strangely enough the authorities on the subject are sparse, we are of the view that a deed and a plat which includes the property granted must be read together and whatever properly appears on the plat should be considered a part of the deed. Conditions, reservations and restrictions shown on the face of the recorded plat are notice to subsequent purchasers who accept conveyances based on the plat. 14 Am.Jur., Covenants, Conditions and Restrictions, Sec. 203, p. 615. Although we have never passed upon the point directly, we have in a number of cases construed deeds of conveyance in the light of provisions or reservations shown on the recorded plat of the subdivision involved. Hall v. Snavely, 93 Fla. 664, 112 So. 551; McCorquodale v. Keyton, Fla. 1953, 63 So.2d 906; Burnham v. Davis Islands, Inc., Fla. 1956, 87 So.2d 97.

It is true, as contended by appellants, that the law favors the free use of real estate and restrictions on usage will customarily be strictly construed. Nevertheless, such restrictive covenants are valid and will be recognized and enforced when established by contract between the parties involved. In a case such as this the mere filing of the plat containing the restrictive covenants does not in and of itself subject the land to the restrictions of the covenants so long as the title to the property remains in the subdivider. However, upon a severance of title by the grant of one or more lots according to the plat and by reference thereto, the restriction then springs into existence and becomes binding as between the subdivider and his purchasers and as between the purchasers inter sese.

We therefore conclude, as did the Chancellor, that the lots involved in this subdivision were subject to the restrictive covenants shown on the face of the plat.

We come to the second point as to whether there was an adequate showing of changed conditions that would justify can-celling these contractual restrictive covenants. In Dade County v. Thompson, 146 Fla. 66, 200 So. 212, we held in substance that to justify the-removal of restrictive covenants such as those before us, it must be alleged and proved that conditions and circumstances existing at the time the restrictions were placed on the land have changed to the extent that the effect of the covenants has been brought to nought. We there stated that the test to be applied is whether or not the original intent of the parties to the restrictive covenants can be reasonably carried out or whether the changed conditions are such as to make ineffective the original purpose of the restrictions. See also, Allen v. Avondale Co., 135 Fla. 6, 185 So. 137; 8 Fla.Jur., Covenants and Restrictions, Sec. 40.

In Dade County v. Thompson, supra, we further pointed out that each case in which cancellation of such restrictions is sought must stand or fall on the equities presented and the evidence offered to support the position of the parties. In the instant case the principal evidence of substantial changes tendered by the appellants was the widening of U. S. Highway No. 1, the substantial increase in the flow of traffic and the single violation of the restrictions in another block in the subdivision. Appellants also showed that the County Zoning Board had rezoned the particular lot in question for business uses. As to the effect of the rezoning in cases such as this, we are of the view that such action by an official body is admissible in evidence but it is not conclusive. In and of itself it will not shift the burden of proof to the opposite party. It is merely a fact to be considered along with all of the other evidence pointing to the same ultimate fact. The restriction here provided that “zoning regulations for tire area shall be observed.” However, reference to the zoning regulations reveal that by the terms thereof in the event of a conflict between a restrictive covenant and the regulation, the one providing “the more restrictive requirements shall prevail”. Hence, here as between the two, the residential requirement of the covenant prevails.

As against this showing, the appellees, all of whom are other lot owners in the same subdivision, pointed to the proposition that they had acquired their property in reliance upon the restrictions, they have built substantially valuable residences on the various lots and that in their view, the lifting of the restrictions from a particular lot would not only greatly affect the value of their property adversely but would also be the inception of a sort of chain reaction or “creeping eruption” that would in the ultimate destroy the value of the property in the subdivision for residential purposes. They too supported their position by competent evidence.

In such a situation we must give due cognizance to the fact that the Chancellor heard all of the evidence, evaluated the weight thereof, had an opportunity to determine the credibility of witnesses and in the ultimate was in a much better position than this Court to determine the equities on the basis of the evidence presented. We cannot conclude from the showing made that his decision was erroneous.

We have not overlooked the existence of the Rare Bird Farm, a commercial enterprise immediately north of appellants’ lot. We do not give any substantial weight to the effect of this enterprise for the reason that it was in existence when the subdivision was established; it was specifically excluded from the restrictive covenants and it was in full operation when appellants purchased their lot. True, the business of the Bird Farm has increased but certainly it cannot safely be concluded that such an increase in business was not anticipated at the outset. Appellants therefore cannot rely upon this as evidence of a change in conditions that would justify removing the contractual restrictions.

The decree appealed from is—

Affirmed.

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

BIRD, Associate Justice, and HOBSON, J., dissent.

BIRD, Associate Justice

(dissenting).

I fully concur with the first part of the excellent opinion prepared by Mr. Justice THORNAL in this cause, wherein he concludes that deeds to the lots in the subdivision carried the covenants set out and contained in the plat of such subdivision, and I agree that the findings of the 'Chancellor who heard the evidence .should be accorded great weight, but I cannot agree with his conclusions.

The plaintiffs own Lots 8 and 9, Block 2, Flagler Estates, in Dade County. Lot 9 lies immediately east of Lot 8 and is occupied by plaintiffs as their home.

The zoning board of Dade County has, since the filing of the plat of said subdivision, zoned Lot 8 of Block 2, along with other property abutting U. S. Highway 1, for business.

Said Lot 8 is in the extreme southwest corner of the subdivision and is the only lot in Block 2 facing said highway which is effected by restriction No. 4 of the subdivision plat.

Many changes affecting the character of the property along said highway have taken place since the plat was filed, among which are the conversion of the two-lane state road into the very busy U. S. Highway No. 1, and the growth of the Rare Bird Farm, from a modest beginning to one of the major attractions of the Florida East Coast, with its attendant daily hosts of people and the consequent increase of traffic.

It is my view that the First “Restrictive Covenant” on the plat, which reads,

“1. The official County Zoning Regulations for the aiea shall be observed”

is a contract as well as the Fourth, which restricts this lot to one-family dwelling. When the zoning board zoned this lot for limited business a conflict «was created between the two covenants and the question now is which should prevail. The law is certain that free use of real estate is favored and restrictions on usage will be strictly construed. It follows, therefore, that the first restriction, being the more liberal, should be applied here.

In Washingtonian Apartment Hotel Co. v. Schneider, Fla., 75 So.2d 907, 908, Mr. Justice Thomas, speaking for the Court said:

' “It is the rule recognized by this Court in Moore v. Stevens, 90 Fla. 879, 106 So. 901, 904, 43 A.L.R. 1127, that such covenants, restraining the free use of real property, are to be strictly construed in favor of the grantee and ‘substantial ambiguity or doubt must be resolved against the person claiming the right to enforce the covenant’ ”.

The provision of the zoning regulations which provides that when there is a conflict between the regulations and the covenant the “more restrictive requirements shall prevail”, can be no deciding factor here because the plat provides otherwise.

If it were not for the fact that the parties by their respective- deeds based upon the plat had agreed that “The Official Zoning Regulations for the area shall be observed”, then the more restrictive requirements would prevail.

It seems to me that when, as here, the zoning authorities who are charged with the important duty of determining the question of zoning a great county o.f many conflicting interests, including that of the public as well as the immediate parties, have acted their determination should carry great weight with the courts and be considered prima facie valid, as here, where the parties have so agreed their acts should be final, unless clearly shown to be unreasonable, oppressive or confiscatory.

A glance at the plat of the subdivision, in view of the present conditions, shows that the restrictive covenant, No. 4, if applied to this lot, located as it is in the extreme southwest corner of the subdivision, surrounded by the busy four-lane U. S. Highway 1 on the west, South Street on the south, the Rare Bird Farm on the north and the home of the plaintiff on the east, separated and remote from the other residential lots, and is undesirable, unsuitable and valueless for one-family residence, would amount to confiscation and be unreasonable and oppressive, and should not be enforced.

Mr. Justice Terrell, speaking for the majority of the Court in Siegel v. Adams, Fla., 44 So.2d 427, 428, said:

“Zoning restrictions, like other phases of the law, are subject to removal or change when the reason for them or the circumstances that prompted them ceases. When they become obsolete or run afoul the public welfare would seem to be a good test to prompt the time for change or removal. The public welfare is a concept that broadens with changing times and circumstances and it now embraces many species of regulations that the courts of yesterday would not have brought within its range. There must be a positive showing of physical, economic or social change rather than esthetic or group caprice to justify the release of zoning regulations. Neither will they be released at the behest of community or group pressure, if in doing so constitutional guaranties are undermined.”

Consideration of evidence of the plaintiffs, and an inspection and study of the plat, clearly shows that the planners and owners of the subdivision anticipated the probable change of the character and usefulness of the land as the vicinity developed, and for that reason considered provision No. 1 of the restriction first in importance and so appropriately placed it first on the plat. To subordinate this provision to the Fourth restriction is to nullify the plain intent of the planners.

The evidence of the respondents fails to show that they are damaged by the zoning of this isolated lot for business. At most it shows that they have only a fear that .such action will start a kind of creeping erosion which will ultimately destroy their property for residential purposes.

I think the decree appealed from should be reversed.

HOBSON, J., concurs.


author: • O’CONNELL, Justice.

text:
    J. B. HARRIS, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, Division B.
    March 22, 1957.
    David Lanier, Madison, for appellant.
    Richard W. Ervin, Atty. Gen., Jos. P. Manners and David U. Tumin, Asst. Attys. Gen., for appellee.
   • O’CONNELL, Justice.

Defendant, J. B. Harris, was' charged with violation of Sec. 590.28(1), Florida Statutes 1955, F.S.A. under an information containing three counts. Count one of the information charged him with unlawfully, wilfully and intentionally setting fire to forest, grass and woodlands of another; count two charged him with so burning the forest, grass and woodlands of another; and court three charged him with so causing to be burned the forest, grass and woodlands of another. A jury found him guilty of the third count. No finding was made by the jury as to the first and second counts of the information. Sec. 590.28(1), Florida Statutes 1955, F.S.A. reads as follows:

“Whoever wilfully, maliciously or intentionally burns, sets fire to, or causes to be burned or any fire to be set to, any forest, grass, or woodlands not owned by, or in the lawful possession of, the person setting such fire or burning such lands or causing such fire to be set or lands to be burned shall, upon conviction thereof, be deemed guilty of a felony, and punished as provided in § 590.30.” (Emphasis ours.)

Several fires were discovered in the area involved and evidence was produced which was sufficient to persuade the jury such fires were not accidental. Defendant was seen by several people walking along a road and ditch adjacent to the land being burned and within a few hundred feet of the smallest of the fires. The next day, witnesses testified, tracks were observed indicating some one had walked along the road and in the ditch in that vicinity. These tracks indicated also that the person making such tracks left the road and went into the woodlands or grasslands towards the fire and then returned. The tracks were not visible on the grass and it was impossible to tell how far the person had gone in the woods before returning. No comparison of those tracks were made with the shoes or feet of defendant but they were the only set of tracks appearing in that vicinity and defendant was found in that immediate vicinity immediately after the fires started. Defendant denied he set the fires. No direct evidence was submitted to show defendant set the fires.

During the trial testimony of various witnesses was introduced which, if accepted by the jury, impeached that of the defendant.

Judgment was entered on the verdict and defendant was sentenced to 18 months in the State Penitentiary.

On this appeal defendant raises two questions. It is necessary only to discuss defendant’s contention that the evidence is insufficient to sustain the verdict and judgment appealed from.

After the trial of this cause below, we decided the case of Sheffield v. State, Fla. 1956, 90 So.2d 449. In that case we held, on page 452, that

“Section 590.28, Florida Statutes 1955, F.S.A., by its terms expressly requires a specific criminal intent to damage or destroy property of another. It further provides that such intent must be engendered ‘by malice or spite or by the hope of material gain or employment to be derived either directly or indirectly.’ No such specific intent is alleged or proved in the instant case.”

In the case before us the intent specified in Sec. 590.28(2), F.S.1955, F.S.A. was neither alleged in the information nor proved at the trial.

We must therefore conclude that the evidence was insufficient to sustain the verdict and judgment of guilty.

The State, in the brief of the Attorney General,-contends that the information was drafted under Sec. 590.28, F.S.1955, F.S.A. Nevertheless, we have considered, as was done in the Sheffield case, the sufficiency of the evidence to sustain a conviction under Sec. 590.08, F.S.1955, F.S.A.

We must conclude that while the evidence, which is all circumstantial, may be consistent with guilt, is not wholly .inconsistent with every reasonable hypothesis of innocence. Horton v. State, Fla.1956, 91 So.2d 304; Smoak v. State, Fla.1956, 87 So.2d 513; and Raybon v. State, Fla.1954, 75 So.2d 7.

The verdict and judgment is reversed.

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


author: PER CURIAM.

text:
    John W. MARTIN, as Trustee of the Florida East Coast Railway Company, Appellant, v. Mamie CAMPBELL, Appellee.
    Supreme Court of Florida, Division B.
    March 13, 1957.
    Rehearing Denied April 12, 1957.
    Scott, McCarthy, Preston, Steel & Gille-land, William B. Killian, Miami, Russell L. Frink, Jacksonville, for appellant.
    Adams, Phillips & Hathaway, West Palm Beach, for appellee.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appealed from pursuant to 31 F.S.A.Rule 38 of the rules of this court 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 ancj -decreed that the motion to affirm the judgment appealed from be, and the same is, hereby granted, and the judgment is

Affirmed on authority of Hutton v. Atlantic C. L. Ry. Co., Fla., 92 So.2d 528.

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


author: DREW, Justice.

text:
    Phyllis K. HULLUM and Calvin Hullum, her husband, Appellants, v. BRE-LEW CORPORATION, a Florida corporation, et al., Appellees.
    Supreme Court of Florida, Division B.
    March 22, 1957.
    Douglas D. Reed, Miami, for appellants.
    L. J. Cushman, Miami, for appellees.
   DREW, Justice.

This is an appeal from an order of the trial court dismissing- an amended complaint to impress and foreclose an equitable lien against real estate.

The salient facts around which this litigation revolves as set forth in the amended complaint are as follows:

Chester G. Breese and Ruth B. Breese (hereinafter called Mr. and Mrs. Breese) were the owners of a parcel of real estate located in Dade County, Florida, known as Lots 2, 4, 6 and 8 of Elmira, a subdivision within said county. Mr. and Mrs. Breese and Don Lewis and Helen Lewis, his wife (hereinafter called Mr. and Mrs. Lewis), entered into an agreement to construct and operate a motel on said real estate. In order to provide financing for such construction, Mr. and Mrs. Breese borrowed $25,000 from Borton Investment Company and secured said indebtedness by a first mortgage on the above real estate. This first mortgage shall be hereafter referred to as the Borton mortgage. A little while after the Borton mortgage was executed Mr. and Mrs. Breese borrowed $3,159.69 from their daughter, Phyllis Hullum, and secured said loan by a second mortgage on the premises. Financial difficulties were encountered in the development of the project and the holders of the Borton mortgage threatened foreclosure in the latter part of 1951. Faced with this situation, Mr. Breese prevailed upon his daughter, Mrs. Hullum, and upon a third party to advance sufficient funds to pay off the sum owing on the Borton mortgage at that time in order to prevent a foreclosure. Such funds were advanced and the Borton mortgage, upon which there was then due an amount in excess of $15,000, was paid off and satisfied. Mr. Breese promised adequate security to his daughter and the third party for these loans and, according to the record, an attorney was employed to prepare the necessary papers but according to the complaint and unknown to Mrs. Hullum and the third party, Mr. and Mrs. Breese had conveyed the land prior thereto to Bre-Lew Corporation, of which Mr. Breese was president, Mrs. Breese, vice-president and Mr. Lewis, secretary and resident agent. Shortly after funds were advanced to pay off the Borton mortgage, Mr. Breese signed a memorandum which he sent to his agent which directed the agent to hold the Borton mortgage, which had been satisfied, with the understanding that it was to be assigned to Mrs. Hullum and the third party who had joined Mrs. Hullum in furnishing the funds and that said mortgage would be held by them until suitable security was provided. The security, however, was never provided and the third party who had joined with Mrs. Hullum in furnishing a substantial part of the funds to pay off the Borton mortgage threatened to sue for the recovery of his funds sometime in December, 1952 whereupon Mr. Breese again persuaded his daughter to pay off the third party in order to protect the motel and the business venture even though at this time the property had been conveyed by Mr. Breese to the corporation, a fact which was unknown to the daughter. It is alleged that Mr. Breese continued to assure his daughter that adequate security in the form of the assigned first mortgage or a new one would be provided or was provided to protect her on the advances she had made. Sometime later and on to-wit: February 9, 1953, the corporation, still in financial difficulties, secured a loan from a Mr. Jordan and executed a mortgage to Mr. Jordan to secure the payment of another loan. The holder of this mortgage is not a party to this litigation and the plaintiffs admit that their claim is subordinate and junior to the rights of this mortgagee. March 1, 1953, Bre-Lew Corporation executed a note signed by Mr. Breese, as president, to his daughter for $6,000 mentioning a first mortgage which was to be security for the payment of the obligation evidenced by the note and on March 4, 1953, Mr. and Mrs. Breese is'suéd another note to their daughter’s husband, Mr. Hul-lum, for $2,500. Mrs. Hullum continued in her efforts to obtain the promised security on the obligation and on March 6, 1953, Bre-Lew Corporation executed and delivered to Mrs. Hullum an $8,000 note signed by Mr. Breese, president, and Mr. Lewis, secretary. This note was an attempt to recapitulate the debts then owing to the daughter but apparently was not accurate as to amount and the $8,000 note refers to the fact that a first mortgage is to be executed to secure the sum involved but said mortgage was never so executed. Some four months later, on to-wit: June 6, 1953, and with the foregoing notes outstanding representing the indebtedness of the corporation, Bre-Lew Corporation executed a note for $9,000 secured by a mortgage on the real estate to Mr. and Mrs. Lewis which was shortly thereafter assigned to Lloyd Averett Grace, who was the accountant for the corporation. It is this latter mortgage which the complaint alleges to be fraudulent and void or at least entirely subordinate to the claims of the plaintiffs. After alleging the foregoing facts the complaint then alleges:

“Plaintiffs aver that in equity and good conscience, by reason and on account of the facts and circumstances as herein related, they are subrogated to all of the rights and interest of the Mortgagee in, and to said Borton Mortgage aforesaid, and have by virtue of same, acquired an equitable lien upon the premises hereinabove described, enforceable as against said premises to the extent of all of the moneys so advanced by the Plaintiffs, as related, for the express purpose of paying off and satisfying the indebtednesses so secured by said Borton Mortgage, aforesaid, and liquidating same, which said equitable lien is evidenced by the Memorandum, copy of which is hereto exhibited, as aforesaid, and the Defendants are estopped from denying the same.
“That none of the moneys advanced by the Plaintiffs, as aforesaid, have been repaid, and the interest provided for has not been paid, semi-annually, as the same matured and became due and payable under the provisions of said notes aforesaid, and that by reason and on account of said non-páyment, said notes are now in default.
“Plaintiffs aver that by reason and on account of the foregoing and by reason and on account of the confidential relationship of father and daughter, the Plaintiffs were by the Defendants, and their actions, lulled into a sense of security, trusting the father of the Plaintiff Phyllis K. Hullum, the said Defendant Chester G. Breese, who continuously has asserted to and assured the Plaintiffs that everything would be done properly insofar as these matters and circumstances related above are concerned, to the end that the Plaintiffs would be fully and completely protected with adequate security as herein related; that, by reason and on account of the foregoing, all to the complete knowledge of all of the Defendants, the Plaintiffs aver that the indebted-nesses due them by reason of the advances made, as aforesaid, all of said moneys so advanced having gone into the property and premises hereinabove described, the sums evidenced thereby by said advances, together with interest thereon at the legal rate, reasonable solicitor’s fees in and about this cause and the costs incident hereto, including abstracting, expended by the Plaintiffs, constitute an equitable lien upon said premises described, inferior in dignity only to the Mortgage given to Berta Malone Jordan, which said equitable lien they, the Plaintiffs are herein entitled to have impressed and foreclosed as against said real property hereinabove described, and as against each, every and all of the Defendants.”

Reverting back to the mortgage of $9,000 executed June 6, 1953, by the corporation to Mr. and Mrs. Lewis and thereafter assigned to Mr. Grace, the complaint charges that said mortgage was fraudulent as to plaintiffs because it was made at a time when the corporation was insolvent and with an intent to secure one of its officers or directors, to-wit: the Lewis’, interest in direct violation of the provisions of Sec-tíon 608.55, Florida Statutes, F.S.A. and that at the time of the execution thereof all of the officers and directors, including the accountant to whom the mortgage was assigned, had full knowledge of plaintiffs’ indebtedness and of the purpose for which the funds ■ evidenced by the same were advanced. The complaint further alleged that the assignment to Mr. Grace was void and fraudulent and-was a subterfuge conceived and designed solely for the purpose of defrauding the plaintiffs and that the as-signee thereof was acting “solely and only as the agent of said defendants with full knowledge” of the facts above related and that Mr. Grace was then and still is the accountant for the defendant corporation and for a long time had been employed in that capacity, and was a party to the fraudulent and iniquitous conspiracy to defraud the plaintiffs.

The trial court was clearly in error in dismissing the amended complaint.

It is argued by the appellees here that the cause of action set forth in the complaint is unenforceable under the Statute of Frauds, Section 725.01, Florida Statutes 1955, F.S.A., and the Conveyancing Statute, Section 689.01, Florida Statutes 1955, F.S.A. We summarily dispose of this contention with the observation that neither of these statutes has any application whatever in this case. An equitable lien is not an estate or property in the land itself nor a possessory right of any character. It is a charge or encumbrance upon the land “so that the very thing itself may be proceeded against in an equitable action, and either sold or sequestered under a judicial decree, and its proceeds in the one case, or its rents and profits in the other, applied upon the demand of the creditor in whose favor the lien exists.” Jones v. Carpenter, 1925, 90 Fla. 407, 106 So. 127, 129, 43 A.L.R. 1409. The very nature of an equitable lien and of the facts and circumstances which would authorize a court of equity to impose and enforce such a lien upon lands demonstrates the total inapplicability of the two foregoing statutes in-this case.

As we understand the allegations of the complaint, all of the sums advanced by the plaintiffs were either for the purpose of paying off existing encumbrances-on the property or other indebtednesses-against it or in the construction of improvements on it and in each event with the understanding and oral representations that the property would be the security for the-loans. The allegations of the complaint, if true, show a preconceived, definite and calculated plan on the part of Mr. and Mrs. Lewis and Mr. and Mrs. Breese to avoid doing the very thing that they had agreed to do and on the basis of which they had obtained these funds from the plaintiffs. Fundamental concepts of equity would require that these defendants be required to do that which in equity and good conscience they should have done voluntarily. On the subject of equitable liens generally it is said in 33 Am.Jur., page 427, paragraph 18:

“An equitable lien is a right, not recognized at law, to have a fund or’ specific property, or its proceeds, applied in whole or in part to the payment of a particular debt or class of debts. It is not an estate or property in the thing itself, nor is it a right to recover the thing, that is, it is not a right which-may be the basis of a possessory action, but it is merely a charge upon it. Such a lien may be created by an express contract which shows an intention to charge some particular property with a debt or obligation, or it may arise by implication from the relations and dealings of the parties whose interests are involved. Likewise, a lien may be created by an equitable assignment of a contract, debt or fund. In fact, if a transaction resolves itself into a security, whatever may be its form and whatever name the parties may choose to give it, it is in equity a lien. Possession ' by the lienor of the thing sought to be’ charged is not essential to the. existence of an equitable lien, which differs in this respect from a common-law lien.
“The doctrine of equitable liens has been liberally extended in modern times to give effect to the intention of the parties to create specific charges, and to facilitate mercantile transactions. Such a lien cannot, however, be based only upon moral obligations, but must find a basis in established equitable principles.”

The attempt of the corporation to prefer one of its stockholders and directors by the devious but rather obvious plan alleged in the complaint is a direct violation ■of the provisions of Section 608.55, Florida Statutes 1955, F.S.A., the pertinent portions of which read as follows:

“No corporation which shall have refused to pay any of its notes or other obligations when due, nor any of its officers or directors, shall transfer any of its property to any of its officers, directors or stockholders, directly or indirectly, for the payment of any debt, or upon any other consideration than the full value of the property paid in cash. No conveyance, assignment or transfer of any property of any such corporation by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered, lien created or security given by it or by any officer, -director or stockholder when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation, shall be valid.”

While this statute is clearly applicable to the situation presented here, it is doubtful that it would be a necessary condition precedent to the granting of relief to the plaintiffs in this case under the broad principles of equity.

We hold that the allegations of the complaint if established by competent evidence are sufficient to entitle plaintiffs to an equitable lien on the subject land under the principles announced in Jones v. Carpenter, supra, and the authorities therein recited, and that the lower court erred in sustaining the motion to dismiss the complaint.

Reversed with directions for further proceedings not inconsistent with the views herein expressed.

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


author: ROBERTS, Justice.

text:
    Haskell DAVIDSON and Harold H. Cummings, Petitioners, v. S. S. JACOBS COMPANY, a corporation, Respondent.
    Supreme Court of Florida, Special Division B.
    March 20, 1957.

      Arthur J. Gutman, Jacksonville, for petitioners.
    Harry W. Reinstine and Franklin Rein-stine, Jacksonville, for respondent.
   ROBERTS, Justice.

Haskell Davidson and Harold H. Cummings, the owners, contracted with S. S. Jacobs Company, a corporation, for the construction of a building. The contractor inadvertently misplaced the building on the lot by approximately twenty-five feet and, as a result of this error, voluntarily agreed to pay the owners $21,400, which settled all existing claims between them except the installation cost of a sump pump in connection with the discharge of sewage from the building. The owners contended that if the building had been placed on the lot where designated the sewage would flow by gravity; the contractor contended that even if the building had been erected where designated by the owners, conditions would have required the installation of the sump pump and, since in either event the pump would have been required, the owners should bear the cost. The parties agreed to submit to an engineer, as arbitrator, the sole question of whether or not the location of the building necessitated the installation of a sewage pump.

On July 12, 1955, the arbitrator filed his report, announcing a conclusion in favor of the owners and against the contractor. At the request of the contractor the arbitrator re-evaluated the situation and on August 8, 1955, adhered to his original position. Notwithstanding the fact that the arbitration agreement had provided that the decision with respect “to the pump shall be final and binding upon the parties”, the contractor still refused to pay. The contractor also denied that the pump cost was $2,552 and says that the cost was $1,700.

The owners instituted a suit in the Civil Court of Record of Duval County for the purpose of collecting the installation cost of the pump, in accordance with the arbitration award. The contractor’s answer alleged that the decision of the arbitrator was invalid and not binding upon him for that “it is based on information obtained from others by the delegation of the Arbitrator’s authority in those particulars wherein it was the duty of the Arbitrator to make personal investigation; further that the conclusions of the Arbitrator that gravity drainage could have been accomplished without the use of mechanical equipment to discharge the sewerage is based on erroneous facts in the following particulars, i. e., at the time plans were prepared for the construction of the building by the Defendant for the Plaintiffs and the beginning of the construction by the Defendant thereof, there was no trunk sewer extension along Roswell Road beyond the manhole which was located approximately 150 feet South on Roswell Road from the point of entry as indicated on the original drawings. Subsequently, this trunk sewer along Roswell Road was installed by the City of Atlanta in accordance with its master sewerage system and grades in accordance therewith. The extension was installed at an elevation of approximately 3 feet under the existing road surface and not 6 feet as stated in the Arbitrator’s report. The contractor used cast iron pipe in accordance with the specifications, but even with the use of cast iron and even with a fall of 1/8 inch per foot, (if that were permitted by the City of Atlanta) a gravity flow sewer would have terminated below the sewer as installed by the City of Atlanta and required a power lift. That the building elevation was constructed as designed.” The presiding Judge of the Civil Court of Record, upon considering owners’ motion for a summary judgment, entered his order as follows:

“This cause came on to be heard, after due notice, and was argued by counsel for the respective parties and it .appearing to the Court that the conclusions expressed in exhibits C and D forming a portion of plaintiffs’ complaint are too indirect, indefinite and ambiguous to constitute a valid determination of the matter submitted for arbitration pursuant to exhibit B also forming a part of the complaint, and.it further appearing from the pleadings that a genuine dispute exists concerning a material issue of the controversy, namely: the exact elevation of the trunk sewer extension in Roswell Road to the closest point at which connection thereto could be made by the service line leading, from the building in question, and the Court being advised in the premises, upon consideration thereof, it is
“Ordered and Adjudged that plaintiffs’ motion for summary judgment be and it is hereby denied; and
“It is Further Ordered and Adjudged that defendant’s motion to dismiss plaintiffs’ complaint be and it is hereby granted, and plaintiffs are allowed thirty days in which to file amended complaint and defendant is hereby allowed fifteen days following service of copy of such amended complaint upon it within which to plead thereto as it may be advised.”

The owners having elected to stand on their original pleading, the Court entered its final judgment for the defendant and against the plaintiffs. Appeal was taken by the owners to the Circuit Court of Duval County as the appropriate reviewing court, and the judgment of the Civil Court of Record was by the Circuit Court affirmed.

A petition for certiorari has been filed in this court on the theory that there has been a departure from the essential requirements of the law, and we agree.

The arbitrator’s original and supplemental reports, designated “Exhibits C and D”, read as follows:

“This is to give you the report requested of this office relative to the sewer connection for the above mentioned building.
“We have contacted various parties for information relative to this job and find the following facts as pertains to the installation of the sewer.
“The length of the sewer run from the end of the sewer within the building to the street connection is 378 feet. The sewer in Roswell Road in front of the building is approximately 6 feet below the street surface level. The building floor line proper is 1.3 feet below the street elevation at Roswell Road. With the above conditions, I would like to give the following information.
“The City of Atlanta prefers a 1/4 inch fall per foot of run on a gravity sewer line and this fall at the length of run of 378 feet requires a fall of 7.-875 feet. Mr. Fitzpatrick gave the following elevations, and we have coordinated the elevations and data accord- • ing to this information: building assumed elevation — -100.0; street eleva- ' tion over the sewer — 101.3. The sewer in the street being approximately 6 feet deep gives an elevation of the sewer of 95.3. The highest beginning flow elevation of the sewer within the building would be 12 inches lower than the finished floor elevation, elevation 99.0. The difference between the sewer invert in Roswell Road and the beginning flow line elevation within the building is 99.0 minus 95.3 equalling 3.7 feet. This difference in elevation of the sewer and beginning elevation of the sewer line does not provide sufficient difference to allow gravity flow into the sewer. The fall at inch Per foot is 7.875 feet, the fall at % inch is 3.937, or 0.237 feet lower than the invert of the street sewer at minimum permissible fall. (The % inch fall is permitted by the city when cast iron pipe is used throughout from the first ■fixture connection to the sewer, and since this is the type of material indicated by the drawings it would be per-missable to use the % inch fall.) The building floor line elevation as presently constructed (1.3 feet below street) even the % inch fall would not permit gravity drainage.
“Reviewing the possibility of a gravity sewer in relation to contract requirements, I would like to advise that the contract drawings had datum based apparently on geodetic survey data giving a flow elevation of 977.0, the elevation at the street 977.5, the sewer being approximately 6 feet deep gives the sewer elevation of 971.5. As mentioned above, the use of % inch fall with the cast iron pipe specified by the contract drawings would be permissible, and therefore the following data: floor level elevation 977.0, beginning house sewer elevation 976.0 (1 foot below finish floor), fall for length of sewer from beginning connection to the street sewer 3.937 feet giving an invert elevation at the sewer connection at Roswell Road of 972.063. The sewer elevation at the point of the above mentioned connection is 971.5, which would permit the connection of the house sewer to the Roswell Road sewer by gravity if the sewer was run at % inch fall per foot.
“The conditions evidenced above, the slight difference in the house sewer elevation and the street sewer elevation (being approximately 6 inches), it is readily seen how a slight variation in the floor line elevation of the building would necessitate the use of mechanical equipment to discharge the sewage from the building whereas the original design could have made use of gravity drainage.
* * * * * *
“Again in regards to the ability to obtain a gravity sewer from your store on Roswell Road, in Atlanta, I wish to advise that a gravity sewer was possible. A further re-check was made by this office in regards to information relayed to us after our original letter and my original viewpoint that sewer connections by use of gravity means was substantiated on our recheck. There is a sewer on Roswell Road running north with the manhole approximately Yio of a mile from the property on which the store is located.”

A careful reading of the arbitrator’s report of July 12, 1955, shows clearly that it was based on considerable hearsay evidence and approximations of distances under circumstances where even a few inches became important. It uses such language as "the sewer on Roswell Road in front of the building is approximately 6 feet below the street surface level.” (Italics supplied.) It also indicates that important information had been secured from various parties whose identity was not disclosed, with no detailed explanation as to the part of the important information which had been obtained in such irresponsible manner. The controlling question was obviously whether or not the city sewer was deep enough under the street to allow for gravity drainage had the building been properly located. It therefore became the responsibility of the arbitrator to determine by measurement or from some responsible acceptable source the exact depth of the city sewer. Further, the arbitrator’s report of July 12, 1955, was not in the clear, explanatory language that one might expect to come from an engineer. The report states “it is readily seen how a slight variation in the floor line elevation of the building would necessitate the use of mechanical equipment” (italics supplied) and it is therefore obvious that a slight variation in the street sewer line would have had the same result. Since the location of the sewer was approximated, we must agree with the contractor that in its present form the report is improper and we therefore hold that it amounts to no arbitration at all. For that reason, the lower court was correct in holding that the report did not constitute a basis for the entry of a judgment by the owners against the contractor. Cf. Maw v. Kitzman, 55 N.D. 463, 214 N.W. 273; Ball-Thrash Co. v. McCormick, 172 N.C. 677, 90 S.E. 916; 6 C.J.S., Arbitration and Award, § 84 a, p. 231.

We are, however, then confronted with a situation where the owners have a claim which may, or may not be valid but which they are entitled to have heard either in a proper judicial forum or by a complete arbitration. To deny the'm a valid arbitration and then deny them the right to litigate in court would, in our opinion, amount to a denial of due process. For that reason, it was error for the lower court to enter final judgment against the owners without making some provision for their right to further pursue their claim.

For the reasons stated, certiorari is granted and the order complained of is quashed with directions that the cause be remanded to the agreed arbitrator or some other arbitrator mutually agreed upon to the end that all parties may have a full and complete and accurate and just arbitration by which they must, under their agréement, be bound.

It is so ordered.

THOMAS, Acting C. J., and THORNAL and BUFORD, JJ., concur..


author: THORNAL, Justice.

text:
    PAUL SMITH CONSTRUCTION COMPANY, Petitioner, v. FLORIDA INDUSTRIAL COMMISSION, Workmen’s Compensation Division and Clifford Ford, Respondents.
    Supreme Court of Florida, Division B.
    March 13, 1957.

      Barnes & Inman, Orlando, for petitioner.-
    Cosgrove & Rose, Miami, Burnis T. Coleman and Rodney Durrance, Tallahassee, for respondents.
   THORNAL, Justice.

By petition for certiorari the petitioner, Paul Smith Construction Company seeks review of an order of the Florida Industrial Commission affirming an order of a deputy commissioner awarding attorney’s fees to the respondent, Ford, who was the employee-claimant.

The only point to determine is the correctness of the award of attorney’s fees under Florida Statutes, § 440.34, F.S.A.

The facts are not in dispute. Claimant Ford was injured on November 17, 1954, in an accident arising out of and in the course of his employment by Paul Smith Construction Company. Without dispute the employer provided medical aid and paid compensation for temporary total disability up to and including November 1, 1955. On that date claimant was discharged by his doctor and returned to work. Admittedly he performed only “light work” as contrasted to his previous type of work. The employer immediately began paying to him the same salary that he was paid prior to his injury. The employee was last seen by his attending physician on December 2, 1955.

On December 7, 1955, the employer through its servicing organization requested the attending physician either to send in a final report or advise whether the employee had suffered any permanent partial disability. Under date of December 16, 1955, the physician submitted a written report to the effect that employee Ford would suffer a permanent twenty percent partial disability of his leg. On December 20, 1955, the employee through his attorney filed with the Florida Industrial Commission a claim for compensation for disability to the extent of twenty percent of the body as a whole. On December 27, 1955, the attending physician filed his final report certifying the twenty percent permanent partial disability of the left leg. On December 29, 1955, the employer without further dispute started the payment of compensation for the permanent partial disability shown to exist. This was accepted by the employee as proper compensation in view of the findings of his attending physician. In the meantime the full salary had been paid.

The employer which was a self-insurer at no time denied or declined to pay the claim. Out of this situation the employee claimed a fee for his attorney for services in connection with the filing of the claim under date of December 20, 1955. The deputy commissioner allowed the fee and ordered it paid by the employer. On appeal the full Commission affirmed this order and allowed an additional fee for services there. Review of this order is now sought.

It is the contention of the petitioner that payment of the claim was never declined; that it had restored the employee to full pay on a “light work” basis; that the investigation was within reason to determine the extent of its ultimate responsibility and that it actually admitted its responsibility and started payments within nine days after the claim was filed.

It is contended by the respondents that that the employer had notice of the injury and that even though the extent of permanent disability was not determined until late in December, the employer was charged with notice of the disability when it restored the employee to the payroll on November 2. They then concluded that failure to begin payment until December 29 justified the imposition of the attorney’s fee penalty.

We are thoroughly cognizant of the beneficent objectives of Workmen’s Compensation Acts. We recognize that one of the motivating inducements to the enactment of this legislation is to relieve society of the burdens of caring for injured workmen and to place the responsibility on the industry served. We do not feel, however, that the liberal construction to be placed upon the Act justifies expanding it to the point where it becomes unreasonably burdensome to industry or actually stultifies the accomplishment of its objectives. Flor-ida Statutes, § 440.34, F.S.A., governs the allowance of attorneys’ fees in Workmen’s Compensation cases. Under that section if the employer files notice of intention to controvert a claim or declines to pay a claim on or before the twenty-first day after it has notice thereof or unsuccessfully resists payment of compensation and it is necessary for the employee to employ an attorney, then the allowance of a reasonable attorney’s fee in addition to the compensation award is authorized. However, the mere filing of a claim does not in and of itself justify such an award. If, within the period allowed after the claim is filed, the employer or carrier recognizes the compensable nature of the claim and begins payment then the award of an attorney’s fee is not justified. Actually, that is what happened in the instant case.

While it is true that compensation payments eo nominee were temporarily suspended on November 2, 1955, to enable the employer to have a reasonable time in which to ascertain the physical condition of the claimant, the fact remains that the employee was restored to the payroll on a full salary basis but with the privilege of doing relatively light work. In Townsley v. Miami Roofing & Sheet Metal Co., Fla.1955, 79 So.2d 785, 788, we held that payment of the full salary under such circumstances was the equivalent of “ ‘payment of compensation’ ” within the meaning of the Workmen’s Compensation law. We there held that such salary payments could be regarded by the employee as payment of compensation to the extent that so long as the salary was paid, it postponed the necessity of filing a claim otherwise required by the Act. This rule in and of itself would preclude the allowance of an attorney’s fee under the circumstances here present. This is so for the reason that under the rule so long as the full salary was being paid for reduced work consistent with the physical condition of the employee, it was tantamount to the payment of compensation under the Act.

Perhaps a stronger precedent to support the position of the petitioner is Balatsos v. Nebraska Ave. Cafe & Liquor Store, 159 Fla. 71, 30 So.2d 633. We there held that where the insurance carrier ¡did not deny liability but used the time between the notice of claim and the first hearing to make neédful investigations of the claim, and in the meantime the employer' paid to the claimants the full amount of the injured employee’s salary, then the award of an attorney’s fee against the carrier was , not justified. We there further held that the employer or carrier should have a reasonable time within which to investigate the claim. Logically 'that is the reason why the statute itself provides a period of twenty-one days within which the employer is permitted either to dispute the claim or admit it. If during that period he admits the claim and begins compensation, he is not subject to the penalty of having to pay an attorney’s fee.

We think this record reveals that the self-insuring employer did nothing more than was fair and reasonable under the circumstances and well within the provisions of the Workmen’s Compensation Act, F.S. A. § 440.01 et seq. With an admirable degree of frankness, the attorney for the employee by his'letter making' claim for compensation conceded that he had “no quarrel with the captioned employer (who appears to have adopted a very humanitarian policy toward disabled employees) * * *” This concession at least suggests that the petitioner here has adequately grasped the real purpose and significance of Workmen’s Compensation legislation. The inference is likewise justifiable that the record certainly suggests no refusal to meet the obligations imposed by the Act.

The Industrial Commission relies on our opinion in Great American Indemnity Co. v. Williams, Fla.1956, 85 So.2d 619, to support the award of the fee in the instant case. We do not feel that the cited case is a precedent for the order here under attack. In the Williams case while the carrier stated that it did not dispute liability, the fact remained that the course of conduct followed by the carrier was tantamount to a declination to pay until the conclusion of a full adversary hearing by the Industrial Commission.

It is interesting to note that the opinion of the Industrial Commission in the Williams case is reported in 7 Fia.Supp. 128. On page 133 of that volume Balatsos v. Nebraska Ave. Cafe & Liquor Store, supra, was discussed and distinguished. In its opinion in the Williams case, the Industrial Commission distinguished our Balatsos opinion on the basis of the showing that in the latter case the carrier was not only in the process of investigating the claim but as a matter of fact, pending the investigation, the equivalent of the salary of the deceased employee was paid to the surviving widow. The element in the Balatsos case which distinguished it from the Williams case is the very element which justifies applying the rule .of the Balatsos case rather than the Williams case to the situation in the matter before us.

We therefore conclude that it was error as a matter of law to allow the attorney’s fee against the employer both before the deputy commissioner and the full Commission.

The prayer of the petition for certiorari is granted, the order of the full Commission is quashed, and the cause is remanded to the deputy commissioner with directions to dismiss the claim for attorney’s fees and enter an order in favor of the petitioner.

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

THOMAS, J., dissents.


text:
    CITY OF TAMPA, a Municipal Corporation, Appellant, v. FANO TRAFFICANTE, Appellee.
    Supreme Court of Florida, Division A.
    March 13, 1957.
   PER CURIAM.

Affirmed.


text:
    DOMESTIC BROADTAIL PRODUCERS, Inc., Appellant, v. Louis REINSTEIN, Appellee.
    Supreme Court of Florida, Special Division B.
    March 13, 1957.
   PER CURIAM.

Affirmed.


text:
    ERNAL, Inc., a Florida Corporation, Appellant, v. MOMAR CONSTRUCTION CO., Inc., a Florida Corporation, Appellee.
    Supreme Court of Florida, Special Division B.
    March 13, 1957.
   PER CURIAM.

Affirmed.


text:
    Nat J. GREB, Appellant, v. Eva HOPKINS, Appellee.
    Supreme Court of Florida, Division A.
    March 13, 1957.
   PER CURIAM.

Affirmed.


text:
    Alice McGregor HAGLE, Appellant, v. Fred L. GRAVES and Thelma Graves, his Wife, Appellees.
    Supreme Court of Florida, Special Division B.
    March 13, 1957.
   PER CURIAM.

Affirmed.


text:
    SOUTH DADE FARMS, Inc., a Florida Corporation, Appellant, v. Joseph P. MITTERER, and Angela H. Mitterer, his Wife; Hugh B. Gordon; and John M. Brown and Laveta Brown, his Wife, Appellees.
    Supreme Court of Florida, Division A.
    March 13, 1957.
    Rehearing Denied April 8, 1957.
   PER CURIAM.

Affirmed.


text:
    Gerald WATSON, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, Division B.
    March 15, 1957.
   PER CURIAM.

Affirmed.


text:
    J. Holt KNIGHT, Appellant, v. Benn BLOOM, t/d/b/a Royal Palm Sportswear, Appellee.
    Supreme Court of Florida, Division B.
    March 13, 1957.
   PER CURIAM.

Affirmed.


text:
    FOOD FAIR STORES OF FLORIDA, Incorporated, a corporation, Appellant, v. Forrest H. MACURDA and Cherie K. Macurda, his wife, Appellees.
    Supreme Court of Florida, Division A.
    March 27, 1957.
    L. S. Julian, Shutts, Bowen, Simmons, Prevatt & Julian, Miami, for appellant.
    Walsh, Simmonite, Budd & Walsh, Miami, for appellees.
   THORNAL, Justice.

Appellant Food Fair, defendant below, seeks reversal of a judgment for $3,000 in favor of appellees Macurda, plaintiffs below, in an action for damages for alleged breach of an implied warranty.

We are called upon to determine what it is worth in damages to find worms and segments of worms in a half-consumed serving of canned spinach.

Appellant, Food Fair, sells food at retail. Mrs. Cherie Macurda purchased a can of “fancy” spinach at appellant’s store. The next evening she cooked the spinach and served a goodly helping to her husband, Forrest, and herself. When she had half-consumed her serving, she glanced at her plate. To her “horror” a worm adorned the remaining portion of spinach. Investigation revealed numerous “segments” of worms in the remainder. Forrest Macurda had by this time consumed practically his entire helping. A check on the spinach can produced a green worm about three-fourths of an inch long. Mrs. Macurda immediately started vomiting. Then Mr. Macurda took his turn at regurgitating. Healthy doses of milk of magnesia were absorbed. Mrs. Macurda, a recent mother, experienced nausea and abdominal pains until noon the next day. Mr. Macurda experienced nausea, abdominal pains and diarrhea for about three days. There were no doctor bills or loss of wages. Spinach, which was formerly a favorite food, has now become a noxious substance to these people. Alleging breach of an implied warranty to sell them food fit for human consumption, appellees sued. The jury gave them jointly a verdict for $3,000. Judgment followed this verdict. Reversal of the judgment or entry of a remittitur is here sought.

Appellant contends that the illness of appellees was the product of psychological reactions rather than physical injury. It is further contended that the amount of the verdict is excessive to the point that it should shock the judicial conscience with a resultant reversal or remittitur.

Appellees contend that there was basis for legal liability and that the evidence adequately supported the verdict of the jury which should not be disturbed.

Appellant points to the growth and importance of the food canning and processing industry. We are then urged to protect the industry against allegedly excessive verdicts. This should be done, we are told, because of a potentially adverse influence on the development of the canning industry. It is insisted that unduly large verdicts in cases of this nature reflect upon' the reputation of the industry and in the ultimate places the financial burden on the consumer who buys the product.

While all of this may be true, we cannot measure the rights of these appellees by the suggested standard. In Sencer v. Carl’s Markets, Inc., Fla.1950, 45 So.2d 671, we held that a retailer selling canned food products to the public may be held liable on an implied warranty for injuries sustained by a purchaser because of unwholesome substances in the product.

The evidence here clearly supports the conclusion that the can of spinach was crawling with worms. Can the worms be considered deleterious, unwholesome or unfit for human consumption?

-Admittedly we are not connoisseurs of cuisine that qualifies us to view as delicacies some foodstuffs that might be indigestible by others. To certain tribes of American Indians we understand that such creatures as worms, grasshoppers, snails and the like are acceptable as delicious morsels of food. We are told that canned Mexican worms grace the shelves of many delicatessens and in certain swank social levels, which few of us ever reach, it is said that roasted snails are available with the trays of hors d’oeuvres at the pre-dinner cocktail party. However, for the masses who have moved ahead of the Indians but who perhaps have not yet reached the “snail set,” such invertebrates as worms and snails are generally frowned upon as totally unwholesome and -unfit for human consumption. Indeed they are in a class with roaches, mice, flies and other nauseous intruders that the cases indicate have at times found their way into bottles, cans or other foodstuff containers. We therefore hold that worms such as those revealed by the photographic exhibits here are deleterious and unfit for human consumption.

Appellant further contends that the psychological reactions of appellees rather than the worms themselves produced the vomiting, stomach pains and diarrhea. We are asked to apply the rule of Dunahoo v. Bess, 146 Fla. 182, 200 So. 541, and similar cases, to the effect that damages will not be awarded for mental suffering absent physical injury where no statute authorizes such an award. The rule is - sound but inapplicable here. The jury heard evidence from which they could properly infer that both appellees had consumed their full share of worms and that this rather than psychogenic reactions produced their illness.

Finally, it is contended that the amount of the verdict is shockingly excessive indicating that the jury was persuaded by sympathy and passion rather than facts and law. We are asked to set it aside or order a remittitur. Ordinarily the amount of damages rests with the jury’s discretion exercised within the limits of the facts and the law applicable. This Court will not upset a jury damages award for alleged excessiveness unless it can be said that the excess is such as to shock the judicial conscience, or indicates that the jury has predicated its conclusion on passion or prejudice. S. A. Freel Distributing Co., Inc., v. Lenox, 147 Fla. 550, 3 So.2d 157.

In the instant case it should be noted that this was a joint verdict for both plaintiffs. It may be that sitting as jurors the members of this Court would not have arrived at the same figure. We are willing to concede that it is certainly adequate and may be a little high. That, however, is not the test of our appellate authority in the matter. The line between mathematical accuracy and reasonable discretion is often exceedingly difficult to delineate. Despite the plausible and persuasive arguments of appellant’s able counsel (who suggested in oral argument that $100 for each meal of worms would be more than adequate), we are not convinced that the amount of the verdict is so shocking that we should exercise the extreme power to set it aside.

We have not overlooked the cases cited showing smaller verdicts in similar cases from other courts. If we were fixing the amount of the award in the first instance they would be most persuasive. Viewing them as an appellate court, however, the disproportion between the analogies and the case at bar is not' sufficient to force us to conclude that the jury here was motivated unduly by passion or prejudice. After all, that is the test.

The judgment is affirmed.

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


text:
    W. A. WALKER, Jr., Sumner Littlefield and T. Velie McFarland, as Trustees of Frances Avenue Advent Christian Church of Tampa, Florida, a voluntary association, Appellants, v. CITY OF TAMPA, a municipal corporation, Appellee.
    Supreme Court of Florida, Special Division A.
    March 22, 1957.
    Charles F. Blake, Tampa, for appellants.
    Ralph A. Marsicano, Neil C. McMullen and William R. McCown, Tampa, for ap-pellee.
   PER CURIAM.

Appellants by their complaint assaulted an ordinance of the City of Tampa amending the municipal zoning ordinance. The trial judge entered a final decree on the pleadings in favor of the appellee city.

Much could be written with reference to the contentions of the opposing parties. In so doing we would contribute little to what has been previously written on the subject. We find the case controlled by our decisions in City of Miami Beach v. Perell, Fla.1951, 52 So.2d 906, and Miami Beach United Lutheran Church v. City of Miami Beach, Fla. 1955, 82 So.2d 880. The cited decisions adequately support the decree of the Chancellor which is therefore

Affirmed.

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


text:
    Ray BARNES, Appellant, v. The STATE of Florida, Appellee.
    Supreme Court of Florida, Special Division B.
    March 27, 1957.
    J. Lewis Hall, Tallahassee, Strayhorn & Strayhorn, Fort Myers, and Farr & Farr, Punta Gorda, for appellant.
    Richard W. Ervin, Atty. Gen., and Jack A. Sudduth, Asst. Atty. Gen., for appellee.
   ROBERTS, Justice.

Appellant Barnes was convicted of assault with intent to murder one Bill Piper and has appealed from .the judgment of conviction. The controlling issue on this appeal is the propriety of the trial judge’s refusal to give a charge to the jury requested by the appellant.

Barnes, a state wildlife officer, agreed to help Bill Piper hunt some wild hogs on Piper’s pasture. An altercation developed at the pasture among Barnes, Bill Piper, and Piper’s nephew, David. In the ensuing fight, Barnes was beaten and kicked by his opponents and his pistol was taken away from him by Bill Piper. Barnes retired from the scene with a cracked rib and other injuries and went back to his home in town. After patching up his wounds, he took his shotgun and obtained some shells for it at the hardware store, telling the clerk he was going to kill an alligator. He then drove back in the general direction of Piper’s pasture, and on the way me,t one Fred Wilsky who told him that he had heard some shooting in the area and thought someone might be shooting a deer or turkey out of season. David Piper and another young man in David’s jeep met Barnes on the road and turned around and went back to tell Bill Piper, who was following in his own jeep, that Barnes was coming down the road. Bill Piper continued on down the road and stopped when he saw (Barnes parked on the side of the road. Both men got out of their vehicles, Barnes with his shotgun in his hand and Piper with Barnes’ pistol. Barnes was apparently the first one to get out of his car. According to Piper’s testimony he fired the pistol in the air to see if it had any shells in it and then shot Barnes in the leg when Barnes didn’t stop as requested by Piper. At this point, Barnes fired at Piper and hit him in the leg. He then fired another shot and hit him in the neck.

The theory of Barnes’ defense was that he was going about his usual business as a wildlife officer when the second altercation occurred, not only to shoot the alligator which someone had reported to him was in the area but also to investigate the shots that had been reported to him by state witness Wilsky; and that he had acted in self-defense when he shot Piper during the second altercation.

The trial judge’s charge to the jury on the law of self-defense included a charge that if a man is in combat and after having retired therefrom returns to the scene for the purpose of renewing the combat and as a result of the renewal of the combat he slays or assaults his adversary to save his own life or to avoid great bodily harm, he cannot avail himself of the plea of self-defense. He refused, however, to give a charge requested by Barnes that a person has a right to go about his usual pursuits, even though he may anticipate an attack, and if in such pursuits the difficulty is renewed through no fault of his own, he may claim self-defense. This is a proper charge, if justified by the evidence. See Danford v. State, 53 Fla. 4, 43 So. 593; Pell v. State, 97 Fla. 650, 122 So. 110; 26 Am.Jur., Homicide, Sec. 148, p. 258. The refusal to give this charge, is assigned as error here by Barnes.

It is well settled that “where the evidence is inconclusive or conflicting, the failure of the trial judge to provide a charge which lays down standards for the jury to follow under varying permissible views of the evidence constitutes reversible error.” Holley v. Kelley, Fla.1957, 91 So.2d 862, 864, and cases cited. Nor is there any legal principle more firmly established in our system of jurisprudence than that which makes the jury the sole arbiter of the credibility of the witnesses (except where contrary to demonstrable physical facts) including the reasonableness, probability and credibility of the testimony of the defendant. Cf. Tidwell v. State, 143 Fla. 397, 196 So. 837.

It is true that Wilsky testified that, after he told Barnes about the shots he had heard, Barnes said he was in a hurry to meet a man and would see about them later. And the trial judge, in declining to give the charge requested by Barnes, must have thought that Barnes’ testimony as to his motives in returning to the area was, in all the circumstances, so improbable as to be unworthy of belief. But howev¡er improbable, it was not demonstrably false, and the trial judge invaded the province of the jury when he disregarded it.

It was, then, error to refuse to give the charge requested by Barnes and it was clearly not harmless error.

Accordingly, the judgment appealed from should be reversed and the cause remanded for a new trial.

Reversed and remanded for new trial.

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