text:
    HARTFORD FIRE INSURANCE COMPANY et al., Plaintiffs-Appellees, v. A. W. STAGGS, Defendant-Appellant.
    No. 8611.
    Court of Appeal of Louisiana. Second Circuit.
    April 26, 1957.
    Hunt & Morris, William R. Boles, Ray-ville, for appellant.

      Hayes, Harkey & Smith, Thomas M. Hayes, Jr., Monroe, for appellees.
   AYRES, Judge.

From a judgment rendered against him on confirmation of a default, defendant has appealed. The appellees have moved to dismiss the appeal. The basis of this motion is that the appeal was prayed for by oral motion in open court at a term of court subsequent to that in which the judgment was rendered and signed, without the appellant having prayed for either the issuance or service of a citation of appeal.

The facts upon which the motion is predicated are conceded. The judgment áppealed was rendered and signed June 7, 1956. The •orders of appeal were prayed for, as aforesaid, by oral motion made in open court, September 14, 1956. The record discloses that July and August are the vacation months of the Fifth Judicial District Court, from which this appeal was taken. Therefore, the appeal was taken at a term subsequent to the term in which the judgment was rendered and signed. No citation of appeal was served.

It is a uniform rule, well established in the jurisprudence of this State, that the ■omission of an appellant to ask for citation of appeal and to have it served on the ap-pellee when the order has been granted on motion in open court at a different term from that during which the judgment was -rendered and signed is fatal to the appeal, which, in such instance, must be dismissed. Bass v. Lane, 169 La. 681, 125 So. 853; Jacobsen v. McGarry, 178 La. 79, 150 So. 838; Officer v. American Ins. Co., 182 La. 1054, 162 So. 771; Graves v. D’Artois, 210 La. 857, 28 So.2d 457; Bascle v. Perez, 224 La. 1014, 71 So.2d 551; Resweber v. Jacob, 229 La. 355, 86 So.2d 64; Bolton v. Mansfield Hardwood Lumber Co., La.App., 70 So.2d 228; Succession of Acker v. Zor, Inc., La.App., 80 So.2d 592.

Appellees’ motion to dismiss presents a jurisdictional question. Where orders of appeal are taken in the aforesaid manner, without the issuance or service of a citation of appeal on the appellee, the appellee is not before the court and the appellate court has no jurisdiction over him and no proceedings can be had on the appeal. Graves v. D’Artois, supra; Jacobsen v. McGarry, supra; Bascle v. Perez, supra.

It is urged by appellant, however, that the delayed and untimely filing of a motion on a rule for a new trial during the same term of court in which the judgment was signed, but which motion or rule was not disposed of, or tried, until the subsequent term, so forestalled or delayed the effect of the judgment until said motion or rule was acted upon in the subsequent term. Therefore, the taking of the appeal in such subsequent term was timely without compliance with the formality of the issuance and service of a citation of appeal. Under the facts of this case, we think the point made is untenable. The motion for a new trial was not filed until June 18, 1956, or until the 11th day following the signing of the judgment. Only three days are allowed following the signing of a judgment within which a motion for a new trial may be timely filed. Code of Practice Arts. 546, 558, 560.1. Therefore, the delay for filing the motion or rule for a new trial had expired. The judgment at the time had become final, subject only to a devolutive appeal, which might be perfected within a period of one year. It was not, therefore, within the authority or province of the trial court, as it correctly held, to set aside, alter or modify the judgment in any respect to the prejudice of the parties in whose favor it was rendered. The filing of a motion for a new trial after the delays provided therefor had no effect whatsoever, particularly upon the time or manner in which an appeal from the judgment rendered might be taken. A different situation would probably have resulted had the judgment been prematurely signed and although a motion for a new tidal had been timely filed but not acted upon until a subsequent term of court.

Finally, appellant urges that the fact that appellees, who, through their attorney, were required by defendant’s counsel to draw jointly with him a statement of facts proved in the cause upon the confirmation of judgment a default entered against him, pursuant to the provisions of Code of Practice Arts. 602 and 603, was sufficient to dispense with a citation of appeal. In support of this contention, there are cited the cases of State ex rel. Nixon v. Graham, 25 La.Ann. 433 and Lafayette v. Farr, 162 La. 385, 110 So. 624. These authorities are without application to the facts established in the instant case. For instance, in the Graham case, the statement of facts signed by the appellee was recited “to facilitate the trial and to be used on the trial in the Supreme Court”, and apparently voluntarily entered into. To the contrary, the statement in the instant case was made pursuant to a statutory requirement but in which appellees specially reserved their rights to object to the taking of an appeal, as well as their rights to move for its dismissal, should an appeal be taken. In the Lafayette-Farr case, the appellees made an appearance in the appellate court and moved to advance the case to the summary docket. They, therefore, voluntarily appeared in the appellate court, after which they were before the court and subject to the jurisdiction thereof just as effectively as if they had been served with a citation of appeal.

No comparable situation exists here. Ap-pellees only appeared for the purpose of filing and urging the motion to dismiss the appeal. Moreover, in the Graham case, a rule for an appeal was timely filed and tried contradictorily with the appellee, and in the trial court the right to an appeal was denied. On appellant’s application, writs of mandamus and prohibition were issued by the Supreme Court, which, on trial, were made peremptory and the appeal ordered granted. It was there held that the order granting the appeal related back to the time the appeal was denied in the trial court during the term in which the judgment was rendered and, therefore, there was no necessity for the issuance or service of a citation of appeal.

Moreover, it has been held that if an appellee moves to dismiss an appeal for want of citation after first urging some other ground for the dismissal, he thereby waives the objection to the want of citation. State ex rel. Nixon v. Graham, supra; Hefner v. Hesse, 26 La.Ann. 148; Vallee v. Hunsberry, 108 La. 136, 32 So. 359; Lane v. Ferre, 147 La. 796, 86 So. 186; Phillips v. Phillips, 160 La. 813, 107 So. 584; Lafayette v. Farr, supra.

Appellees’ motion to dismiss is well founded because on motion for an appeal in open court at a subsequent term in which the judgment was signed, appellant prayed neither for the issuance nor service of a citation of appeal and none was issued or served. This omission was a substantive defect and not merely a technical one, one, however, for which the appeal must be denied.

For the reasons assigned, the motion is sustained and, accordingly, the appeal, is dismissed at appellant’s cost.

Appeal dismissed.


source: Caselaw Access Project

author: GLADNEY, Judge.

license: Public Domain

text:
    Tony BEARD, Plaintiff-Appellee, v. JEFFERSON LIFE AND CASUALTY COMPANY, Defendant-Appellant.
    No. 8625.
    Court of Appeal of Louisiana. Second Circuit.
    April 26, 1957.
    McBride & Goff, Ruston, for appellant.
    Holloway & Baker, Jonesboro, for appel-lee.
   GLADNEY, Judge.

This is a suit by an insured to collect from his insurer indemnity allegedly arising under two sick and accident policies. The claim predicated on one of the policies has been abandoned so that the only issues herein relate to Jefferson Life and Casualty Company’s policy No. GS-155646, issued to Tony Beard on November 5, 1954, to afford indemnity to the insured for loss of time from accident or sickness, at the rate of $75 per month in case of total disability,, and one-half of the monthly payment in case of partial disability. The case was tried on its merits and resulted in a judgment in favor of plaintiff, Tony Beard, in the sum of $338.50, as for four and one-half months of entitlement to indemnity. The defendant has appealed from the judgment so rendered, which appeal has been answered to obtain an amendment to the judgment for attorneys’ fees and penalties as authorized by LSA-R.S. 22:658.

The material facts are not in dispute. Plaintiff underwent surgery on January 26, 1955, at which time Dr. Faheam Cannon, orthopedic surgeon of Monroe, Louisiana, amputated a portion of plaintiff’s right forearm and right leg. Thereafter plaintiff remained in the St. Francis Hospital for a period of thirty days and sustained loss of time resulting from the medical attention so received of four and one-half months. Tony Beard, at the time of his application for the policy in question, was fifty-seven years of age and had a condition of deformity affecting his right arm and right leg, which had existed since childhood. Despite this handicap Beard has worked regularly.

On October 27, 1954, two agents of the defendant company called upon plaintiff and solicited his application for insurance, which form was filled out in the handwriting of these agents. Upon payment of the initial premium, the application was forwarded to defendant’s office in Birmingham, Alabama, where the same was approved, and on November 5, 1954, the policy herein involved was issued and forwarded to the plaintiff. On November 3, 1954, through arrangements made by a representative of the Vocational Rehabilitation Service of Louisiana, Tony Beard called upon Dr. Cannon and was given an examination. Dr. Cannon testified that at the time he found plaintiff was suffering from or handicapped by a “dislocation, fixed, old, head of radius, right deformity acquired severe equino-varus, probably post poliomyelitis, right foot, painful for the past five months.” He related that according to the patient’s complaints the discomfort was such in the last five months Beard thought it necessary to seek medical attention. The testimony so given was in a large measure corroborated by both Beard and his wife, especially as to the pain suffered for some months prior to his first visitation with Dr. Cannon. The doctor was of the opinion the condition had existed probably for two or three years. He thought the discomfort from the leg was brought about through wear and tear over the years, superimposed upon the existing' deformity. At a later date Dr. Cannon changed his opinion that the condition had its origin in poliomyelitis and decided it was the result of cerebral palsy.

The defense raises two issues: First, that plaintiff’s claim does not fall within the loss payable clause, as the cause for loss of time did not originate while the policy was in effect and more than thirty days after the date of the policy, as prescribed in the contract between the parties; and second, that the insured falsely answered material questions which induced the defendant to issue the policy.

The first defense urges that the loss payable clause of the policy does not indemnify loss of time for sickness, unless the cause thereof originates while the policy is in effect and more than thirty days after the date of issue of the policy. The clause in part, reads:

“ * * * hereby insures Tony Beard herein called Insured, subject to all of the provisions and limitations hereinafter contained, against:
Hi * * * * *
“(2) loss of time commencing while this policy is in effect and resulting from sickness, the cause of which originates while this policy is in effect and more than thirty days after the date of issue hereof, hereinafter referred to as such sickness.”

The plaintiff testified that before going to see Dr. Cannon on November 3, 1954, he was told by the representative of the State Vocational Rehabilitation Agency his medical expenses would be taken care of by the Agency. The doctor testified his bill was so paid. Undoubtedly, plaintiff knew his visit to Dr. Cannon was to determine upon the feasibility of an operation. Beard testified:

“Q. Tony, just a minute, you did tell Dr. Cannon when you went over there on your first visit on November 3, 1954, that it had been painful for tli'e past five months prior to that time, didn’t you ? A. Oh, yes, it pained, ’it had moved an inch over in them joints.
“Q. Those, joints had been hurting' for a good, long while before you first went to Dr. Cannon, hadn’t they? A. For awhile, yes, sir.
“Q. In Dr. Cannon’s report, he said* he first saw you on November 3, 1954, and he says ‘painful — for the past five-months’. Dr. Cannon got that informa- . tion from you — you told him that it had been painful for the past five months before that time? A. I told him it has been paining me, it hadn’t • slipped though, but it was dragging,”..

Plaintiff takes the position the operation-was necessitated by his right foot twisting-over or turning, which occurred about, thirty days prior to his first visit to Dr. Cannon. Dr. Cannon, however, testified! this condition came about gradually.

The preponderance of the evidence shows-the condition which required the operation was of several years duration, but as it became worse and pain increased, the necessity for some relief became apparent. Certainly, it must be recognized the cause-which brought about the hospitalization and loss of time did not originate while the policy was in effect. Therefore, we find that the benefits claimed under the policy must be denied.

The resolution of the foregoing issue is decisive of the case, and we think obviates the necessity of deciding the second point raised by the defense, which involves only the question of the waiver by the insurer of false answers in the application.

For the reasons above set forth, the judgment from which appealed is annulled, reversed and set aside, and plaintiff's demands are rejected at his costs.


author: REGAN, Judge.

text:
    Edward Paul CHEXNAYDER v. Herbert L. ROGERS.
    No. 20851.
    Court of Appeal of Louisiana. Orleans.
    May 27, 1957.
    McCloskey & Dennery, New Orleans, for defendant-appellant.
    Felicien Y. Lozes, New Orleans, for plaintiff-appellee.
   REGAN, Judge.

Plaintiff, Edward P. Chexnayder, as an owner of property located in Oak Park Subdivision, instituted this suit against the defendant, Herbert L. Rogers, also an owner of property in the same subdivision, endeavoring to preliminarily enjoin him from constructing a doctor’s office, pharmacy and cafeteria on his property in violation of a restrictive covenant running in favor of all other property within the subdivision.

Defendant pleaded the exceptions of no cause or right of action which were referred to the merits and then answered admitting the existence of plans for the construction of the facilities enumerated hereinabove, and then asserted, in justification thereof, that his property has been continuously used for commercial purposes from October of 1951 to the present time in violation of the covenant and, therefore, since more than two years have elapsed from the inception of commercial operations on the property, the restrictions contained in defendant’s title are now prescribed and the property is consequently free thereof.

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

The facts are relatively simple and undisputed. Plaintiff and defendant each ■own property, within a short distance of each other, in “Oak Park Subdivision” located in the City of New Orleans. Defendant’s property is subject to a restrictive covenant running in favor of other property within the subdivision which reads:

“A. No building or any portion of said premises in said area shall be used and no building shall be erected hereafter or structurally altered thereon except for one or more of the following purposes: Residences, churches, doctor’s offices and/or clinics.”

At the time that the restrictions were -imposed on this property, it was being used .as a real estate office and since October ■of 1951, it has been used, in part, as a pharmacy. This use has not been surreptitious, but on the contrary has been “open and notorious” during the entire ■period. The trial court also found as a fact that the restrictions placed upon this property have been violated by the establishment, initially, of a real estate office and subsequently, of a pharmacy.

In view of the foregoing undisputed facts, defendant insists that the property is now free of the restrictive covenant and points to LSA-R.S. 9:5622 in support thereof, which reads:

“Actions to enjoin or to obtain damages for the commission or continuance of a violation of restrictions contained in the title to land are prescribed by two years, reckoning from the commission of the violation. When this prescription shall have accrued, the particular parcel of land shall be forever free from the restriction which has been violated.”

Plaintiff on the other hand, concedes that the restrictive covenant has been violated by the defendant in excess of two years, by the operation of a pharmacy on the premises, and therefore, by virtue of the plain language of the statute, the defendant has acquired the legal right to operate a pharmacy; but he then rationalizes that it was the intention of the legislature to limit the running of prescription to the particular violation, that is, to limit defendant’s right so acquired to the mere operation of a pharmacy, and therefore it was never the legislature’s intent to permanently free the property from the restrictive covenant so as to permit an extensive commercial use thereof, such as the operation of a large drugstore and restaurant or cafeteria.

The only question posed for our consideration is one of law and that is, whether defendant’s property, by virtue of the provisions of LSA-R.S. 9:5622, is forever free from the restriction that he can only use the property for the four limited purposes set forth in the restrictive covenant.

It is too well settled to require citation in support thereof that stipulations contained in restrictive covenants are stricti juris and every doubt should be resolved in favor of the unencumbered use of the property. Here, there is no doubt to be resolved. The restriction against use for general commercial purposes • has been violated in excess of two years; therefore, in conformity with the unequivocal language used in the last sentence of the statute, the defendant, predicated on the evidence in this record, is entitled to a judicial declaration that his property is now free from the restriction that he can only use the property for the four limited purposes set forth in the restrictive covenant. If we were to reason otherwise, we would be invading the field of government and legislating rather than functioning as judges and applying the law as we find it.

For the reasons assigned the judgment appealed from in favor of plaintiff, Edward Paul Chexnayder, and against the defendant, Herbert L. Rogers, ordering that a preliminary injunction issue herein, enjoining and restraining defendant, Herbert L. Rogers, from building, constructing or erecting a restaurant or cafeteria on the parcel of ground owned by the defendant is reversed, and the rule for a preliminary injunction is recalled; and it is now ordered that the matter be remanded to the district court for a trial on the merits hereof and in conformity with the law made and provided therefor.

The costs of this appeal are to be borne by the plaintiff; all other costs are to await the final disposition of the matter.

Reversed and remanded.

      . The defendant’s property is classified as “E-Neighborhood Shopping” under the Comprehensive Zoning Ordinance of the City of New Orleans, No. 18,565 C.C.S.

      . Plaintiff has emphasized that the operation of a pharmacy on the premises should be considered as only a minor non-apparent infraction of the covenant.

      . “When this prescription shall have accrued, the particular parcel of land shall be forever free from the restriction which has been violated.”

      . In reaching this conclusion we have not over-looked the ease of Salerno v. De Lucca, 1947, 211 La. 659, 30 So.2d 678. A case is only authority for what it decides. It is our opinion that the ratio decidendi thereof is not applicable to this matter.


author: JANVIER, Judge.

text:
    Floyd A. VOLZ, Sr. v. Nettie FERTEL et al.
    No. 20642.
    Court of Appeal of Louisiana. Orleans.
    May 27, 1957.

      James E. Courtin, New Orleans, attorney for plaintiff-appellant.
    Curtis, Foster & Dillon; Gerard M. Dillon and A. Melville Wolf son, New Orleans, for defendants and plaintiff in re-convention and appellees.
   JANVIER, Judge.

This suit results from an intersec-tional collision which occurred on the morning of December 24, 1953, at the corner of South White and Banks Streets, in New Orleans. South White Street has a single roadway and Banks Street has two roadways which are separated by a neutral ground.

The plaintiff, Floyd A. Volz, Sr., was operating his Plymouth sedan on South White Street, going in a downtown direction, and Mrs. Nettie Fertel was driving her Chevrolet sedan on the upper roadway of Banks Street, going towards the Mississippi River. Mrs. Fertel was alone in her car and Volz was accompanied by Paul J. Colna, who occupied the front seat alongside him. The Fertel car struck the Volz car on its left side near the front. Both Mrs. Fertel and Volz suffered physical injuries and both cars sustained substantial damage.

Mrs. Fertel had secured liability insurance from National Surety Corporation, and Volz brought suit against that corporation and Mrs. Fertel, alleging that the accident had resulted from negligence on her part in that as he, Volz, was attempting to cross Banks Street while Mrs., Fer-tel’s car was still a safe distance away, she unnecessarily increased the speed of her car and struck his car before he could complete the crossing.

The Board of Administrators of Charity Hospital of Louisiana at New Orleans intervened, and, alleging that the accident resulted from fault on the part of Mrs. Fertel and that, as a result, it had rendered services to Volz for which a charge of $54.74 should be made, prayed for judgment against the two defendants in that amount.

■ Mrs. Fertel and National Surety Corporation answered, denying any negligence on the part of Mrs. Fertel and averring that the collision had resulted from negligence on the part of Volz in that he drove his car into the intersection directly in front of the car of Mrs. Fertel which had already entered, and in that he failed to stop at the stop sign as required to do; and also in that he failed to exercise ordinary care.

Mrs. Fertel then, assuming the position of plaintiff in reconvention, charged that the accident had resulted solely from negligence of Volz as above set forth, that her car had been damaged, and that she had sustained physical injuries and prayed for judgment against Volz in the sum of $2,-441.74.

There was judgment dismissing the suit of Volz and the intervention of the Charity Plospital. There was also judgment in reconvention in favor of Mrs. Fertel and against Volz in the sum of $1,691.74. Volz has appealed suspensively.

The record leaves no doubt at all that Volz was negligent. He says that before entering the intersection he brought his car to a stop at the stop sign and that, looking to his left, he saw the Fertel car approaching; that it was “about forty or forty-five, about a half block, I am not sure.” He later said that he meant forty or forty-five “feet” away when he first saw it. He then said that at the speed at which the Fertel car was approaching he had “sufficient” time to cross in front of it, but that Mrs. Fertel increased the speed of her car and struck his before it could cross.

Volz was half-heartedly corroborated by Colna, who says that he saw Fertel’s car approaching at a “slow” speed, and he added: “I think it increased its speed.” When asked whether the Fertel car, when it struck the Volz car, “was going faster than it was when you first observed it,” he again said: “I think it was.”

Mrs. Fertel’s version of the accident is that, as she approached the corner, she saw an automobile standing at the stop sign waiting for her to cross and that just as she reached the intersection, the Volz car, which was on the far side of the stationary car, entered the intersection directly in front of her car and that she could not bring her car to a stop before striking it.

It is contended by Volz that Mrs. Fertel was obviously mistaken in stating that there was a third car standing at the intersection and that it was from behind that car that the Volz car emerged into view.

It is true that there is no corroboration of the statement of Mrs. Fertel as to the presence of that third car, but even if she is mistaken in believing that there was such a car, she is certain that the car which she saw, which was dark in color, was stopped and that then suddenly a car entered the intersection right in front of her.

We are convinced that this is what happened and that, as she approached the intersection at moderate speed, the Volz car entered and attempted to pass in front of her when there was not time for it to do so. The fault, we think, was entirely with Volz. In Hooper v. Toye Bros. Yellow Cab Co., 50 So.2d 829, 831, we said:

“When confronted with a stop sign erected by the proper officials of the city, in addition to being legally obliged to bring his vehicle to a complete stop, a motorist is held to the duty of appraising traffic conditions in the intersecting street, and of making certain that the way is clear for him to make a safe passage across the intersection. It has been said that when a motorist stops his vehicle before entering a right of way street, he has performed only half of the duty which the law imposes upon him. To stop and then proceed forward in the immediate path of oncoming vehicles, constitutes gross negligence. See Glen Falls Ins. Co. v. Copeland, La.App., 28 So.2d 145.”

It is stipulated that the cost of repairing the damage to the Fertel car was $312.99 and that the hospital and medical bills of Mrs. Fertel amounted to $128.-75, which makes a total of $441.74. Thus it seems that for her physical injuries Mrs. Fertel was allowed $1,150. According to the stipulation the injuries sustained by Mrs. Fertel were as follows: She “suffered the loss of the second molar tooth”; an “existing bridge in her mouth had to be made longer to accommodate a false tooth in place of the extracted tooth”; and “two false teeth were broken and had to be replaced.” There was evidence of a “blow to her right breast * * * and of a blow to her right knee”. Her mouth and cheek were cut and lacerated. Both jaws and her left eye were bruised, and “there were other bruises in the lower region of her spine.” She herself said that she suffered pain which lessened “within a week or ten days,” but that it was sometime later before her knee began to feel better and that it was sometime before she could walk without pain.

Under the circumstances, the amount awarded was not too great.

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

Affirmed.


text:
    T. M. ANDERSON, doing business as T. M. Anderson Lumber Company, v. Herbert B. BARBER.
    No. 20861.
    Court of Appeal of Louisiana. Orleans.
    May 27, 1957.
    Zeringer & Zeringer, Harold J. Zeringer, Jr., New Orleans, for defendant-appellant.
    Andry & Andry, Lenfant & Villere, New Orleans, for plaintiff-appellee.
   REGAN, Judge.

Plaintiff, T. M. Anderson, conducting his business under the trade name of T. M. Anderson Lumber Company of Leakesville, Mississippi, instituted this suit against the defendant, Herbert B. Barber, a contractor, endeavoring to recover the sum of $969.41, representing the cost of lumber sold and delivered to the defendant in 204 Orchard Road, Jefferson Parish.

Defendant answered and admitted receipt and use of the materials, but pleaded payment. In explanation thereof, he asserted that the lumber had been purchased by him from E. L. Ivey, either as an individual lumber dealer or as an agent of the plaintiff, and that payment in full had been made by him to Ivey.

A third party action was also instituted by the defendant against Ivey, who, however, was never found and served with a citation.

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

The record discloses that Ivey ordered the lumber from the plaintiff who delivered it in his truck to the defendant in 204 Orchard Road together with an invoice specifically addressed to the defendant. The defendant paid Ivey for the lumber and then Ivey forwarded his check, less a commission, to the plaintiff, which when deposited proved to be worthless.

Defendant, in explaining his relationship with Ivey, very pertinently testified:

“Well, to tell you just my connection with Dan, he was a fellow that seemed particularly down and out and he was trying his best to reestablish himself and I gave him orders for lumber just to help him get back on his feet so I bought several loads'of lumber from him.”
ijí í{í í{*
“I was allowing him to collect percentage (a commission) to pay back a thousand dollars that he had borrowed from me * *

The defendant principally maintains that the lower court erred in failing to decide from the evidence adduced on the trial hereof that Ivey was an agent of the plaintiff, and therefore, payment by the defendant to Ivey constituted payment to the plaintiff.

Plaintiff, on the other hand, simply contends that Ivey bought lumber from him for the defendant’s account, and points to the above testimony of the defendant in substantiation of this assertion.

The foregoing elucidation reveals that, fundamentally, a question of fact was posed for the trial court’s consideration. The judge thereof, resolved the answer to this question in favor of the plaintiff as the following extract from the written reasons for his decision reveals:

“The evidence does not disclose that the third party, Ivey, acted as an agent or as a salesman for the plaintiff herein, or even that he was a regular lumber dealer operating his own, separate business. The defendant had had several dealings with Ivey, and appeared to be attempting to help the said Ivey out by allowing him to make commissions in ordering materials for him, and also to assist Ivey in reducing a debt which Ivey owed him.”

In the final analysis, the question which this appeal has posed for our consideration is whether that finding was so erroneous and unsupported by the evidence as to warrant reversal by us.

We are of the opinion that no useful purpose would be served by indulging in a protracted discussion of the collateral evidence so as to reemphasize the foregoing testimony which we believe rightfully influenced the result reached by the trial judge. He obviously concluded from all of the evidence adduced on the trial hereof that no relationship of agency existed between plaintiff and Ivey, but on the other hand, he was convinced that the relationship which did exist between Ivey and the defendant was one created for their mutual advantage. When one of two innocent persons must suffer loss through the fraud of another, the burden of the loss should be imposed on him who most contributed to its occurrence.

For reasons assigned, the judgment appealed from is affirmed.

Affirmed.

      . In conformity with the provisions of LSA-R.S. 18:3381.


author: HARDY, Judge.

text:
    Rufus LACY, Plaintiff-Appellee, v. Grady BULLARD and Traders & General Insurance Company, Defendants-Appellants.
    No. 8645.
    Court of Appeal of Louisiana. Second Circuit.
    April 26, 1957.
    Rehearing Denied May 27, 1957.

      Jackson, Smith, Mayer & Kennedy, Shreveport, for appellant.
    A. Eugene Frazier, Minden, for appellee.
   HARDY, Judge.

This is a suit for the recovery of damages sustained by plaintiff’s automobile. Named as defendants were Amos Taylor, Grady Bullard and the Traders & General Insurance Company. Defendant Taylor did not answer plaintiff’s suit and default judgment was duly confirmed against him. After trial there was judgment in favor of plaintiff and against the defendants Bullard and his insurer in the amount of $640.32, from which judgment the said defendants have appealed.

The accident occurred at about 9:00 o’clock, A.M. on July 4, 1955, at which time plaintiff was driving his 1955 Cadillac Co upe east on Louisiana Highway 4, known as the Ringgold-Castor Highway, in Bienville Parish, Louisiana. Plaintiff was following a 1949 Chevrolet Sedan owned and driven by the defendant Taylor. Both these vehicles were proceeding at a speed of some 30 miles per hour on the right-hand side of the two-lane asphalt highway. The highway slab was of the usual width of 18 feet and the two lanes were separated by a white center line. Plaintiff alleged and testified that defendant Taylor suddenly pulled his car partially onto the right shoulder of the highway and brought it to a stop without warning signals of his intention, and that the Taylor car occupied some two or three feet of the extreme right side of the asphalt slab of the highway. Plaintiff, unable to stop in time to avoid a collision, turned his car to the left with the intention of passing, at which time the 1953 Chevrolet truck, owned and driven by the defendant Bullard, appeared in view topping a rise in the road some 150 feet distant. Plaintiff applied his brakes, pulled his car to the extreme right and brought it to a stop with the right front side of his car against the left rear side of the Taylor vehicle. The testimony is clear on the point that when Lacy brought his car to a complete stop his left front wheel was directly on the white center line of the highway and the left rear wheel was across the center line only to the extent of some three inches. The testimony also establishes the fact that the shoulder on the north side of the paved slab was some 9 feet in width. This evidence conclusively indicates that the defendant Bullard, driving his truck west, had almost the entire 9 foot half of the asphalt highway and an additional 9 foot shoulder available to permit his free passage of plaintiff’s automobile, which, at most, occupied only a few inches of Bullard’s lane of travel. Despite this fact Bullard made no real effort, so far as the record discloses, either to bring his car to a stop or to turn aside a matter ot a few inches. Bullard’s testimony is most unsatisfactory, and only one fact is clearly established thereby, namely, that he appeared to be more concerned with preserving the watermelons, with which his truck was loaded, from damage than he was with any other purpose.

The district judge concluded that the defendant Bullard had been guilty of negligence, rejected the plea of contributory negligence as against plaintiff, and further found that Bullard had the last clear chance to avoid the accident after perceiving the peril. We think all these conclusions were completely substantiated by the evidence.

The defendant Taylor, who neither answered the suit nor was called as a witness, was clearly guilty of negligence in bringing his car to a sudden stop without pulling completely off the highway and without giving any signal of his intention. Conceding, arguendo, that plaintiff Lacy was guilty of negligence in following too closely behind the Taylor car and therefore failing to have his own automobile under sufficient control to enable him to stop without danger of a collision, nonetheless he is exonerated of the charge of contributory negligence, under the facts. His failure to have his car under such control as to permit him to stop was not a cause of the accident, since it is clearly established that he did stop his car without obstructing approaching travel from the opposite direction to any appreciable or material degree.

It is equally clear that Bullard was guilty of negligence in failing to keep a proper lookout, in failing to have his car under control, and in failing to take any action to avoid the collision.

Finally, there is no question as to the conclusion that the facts of this case bring it squarely within the doctrines of last clear chance and discovered peril clearly enunciated by the Supreme Court in Rottman v. Beverly, 183 La. 947, 165 So. 153; Jackson v. Cook, 189 La. 860, 181 So. 195, and many times since emphasized and reiterated by all the appellate courts of this State. Bul-lard could, and should, have perceived the danger and had ample time and distance within which to take action which would have avoided the collision. His failure so to do, and thus to avail himself of the last clear chance, clearly subjects him to liability.

For the reasons assigned the judgment from which appealed is affirmed at appellant’s cost.


author: PER CURIAM.

text:
    The STATE of Florida ex rel. The FLORIDA BAR, Complainant, v. William B. GRIFFITH, Respondent.
    Supreme Court of Florida, En Banc.
    May 22, 1957.
    A. T. Cooper, Jr., Clearwater, for The Florida Bar, complainant.
    Baynard, Baynard & McLeod and Leonard W. Cooperman, St. Petersburg, for respondent.
   PER CURIAM.

This is a petition to review a judgment and recommendation of the Board of Governors of The Florida Bar in The State of Florida ex rel. The Florida Bar, vs. William B. Griffith, the charge against Griffith being that of unprofessional conduct, prosecuted pursuant to Article Eleven of the Integration Rule of The Florida Bar. The pertinent part of the recommendations of the Board of Governors is as follows:

“1. The Board of Governors recommends that the Respondent, William B. Griffith, be suspended from the practice of law for a period of one year.
“2. The Relator further recommends that, should the Respondent^make restitution to the complainant, ■ Johnye E. Stotts, of the rebates received by the Respondent from -Dr. Irwin Leinbach and Lars Peterson, said one year’s suspension be withheld, and the Respondent placed on probation for a period of two years commencing on the date when proof of said restitution is filed in the Supreme Court of Florida.
“Dated this 21 day of January, 1957.”

The petition and return of respondent were filed in this court March 11, 1957. April 15, 1957, respondent, by counsel, advised the court that he did not desire the cause to be set for oral argument but would submit it for final disposition on the record. Petitioner further advised the court that “he is willing to abide by recommendation of the Board of Governors of The Florida Bar but he desires that the terms of probation be clearly defined.”

We have examined the record and find the judgment below to be free from error. The respondent is, therefore, suspended from the practice of law for the period of one year. If he makes restitution of the rebates received from Dr. Irwin Leinbach and Lars Peterson, in a sum agreed on by counsel for both sides, such suspension may be withheld and respondent placed on probation for a period of two years from the date restitution was made and proof thereof sworn to and presented to this court. If respondent makes restitution and goes on probation, then he shall make report of his conduct with proof thereof to the Senior Judge of the Circuit Court of his circuit on the first Monday of each quarter during the period of his probation. Copy of said reports shall be promptly filed with the clerk of this court under oath of respondent.

TERRELL, C. J., and THOMAS, HOB-SON, ROBERTS, DREW, THORNAL and O’CONNELL, JJ„ concur.


author: TERRELL, Chief Justice.

text:
    STATE of Florida, Appellant, v. CITY OF TAMPA, a municipal corporation, Appellee.
    Supreme Court of Florida, Special Division B.
    May 22, 1957.
    James M. McEwen, Tampa, for appellant.
    Ralph A. Marsicano, Tampa, and Mitchell, Pershing, Shetterly & Mitchell, New York City, for appellee.
   TERRELL, Chief Justice.

This appeal is from a final decree validating Special Obligation Capital Improvement Bonds of the City of Tampa which will hereinafter be referred to as improvement bonds. It is first contended that the City is devoid of power to issue the proposed improvement bonds payable from the proceeds of its utilities service tax and second that even though the City had such power, it does not appear that the requirements of Chapter 75, Florida Statutes, F.S.A., the validating law, have been complied with.

The first contention is negatived by Sections 159.02, 159.03, 167.01, 167.21, 169.02, 169.04, 170.01, 180.06, 183.03 and 184.03 Florida Statutes, F.S.A. See also Chapter 21593, Special Acts of 1941; Chapter 23564, Special Acts of 1945, and Chapter 24931, Special Acts of 1947. These provisions of the law were construed in State v. Miami Shores Village, Fla., 60 So.2d 541; State v. City of Miami, Fla., 76 So.2d 294; Welker v. State, Fla., 93 So.2d 591, and Panama City v. State, Fla., 93 So.2d 608, 609, wherein the contention of appellant was refuted and under similar charter provisions as those involved here, the court found that ample power existed to issue the bonds involved.

In this connection, it is not amiss to point out that Section 208, Ordinance 2166-A of the City of Tampa, provides that improvement bonds may be issued payable solely from the utilities service tax imposed by the City as authorized by said section from time to time to provide funds for paying all or any part of the cost of capital improvements which are defined by Section 101 of Ordinance 2166-A as “any facility or facilities, structure or structures, lands, interests in land, rights, rights-of-way, property or equipment, or any combination thereof, for which the City may raise or appropriate money.” A list of “capital improvements” contemplated by said ordinance is listed in Section 208 thereof and is contained in Sections 1 and 2, Chapter 9095, Special Acts of 1921, now Sections 74 and 75, Revised Charter of the City adopted by the qualified electors of the City December 6, 1927, and it is not suggested that any of the improvements proposed are not embraced within those named in the City Charter. It is accordingly our view that the City had ample power to issue the improvement bonds.

Under the authority of Chapter 22829, Acts 1945, Section 167.431, Florida Statutes, F.S.A., the City of Tampa by its Board of Representatives adopted Ordinance No. 1017-A imposing a utilities service tax on every purchase of electricity, metered or bottled gas (natural, liquefied petroleum gas or manufactured), water service and local telephone service within the corporate limits of the City, which as amended and supplemented (Sections 35-11 to 35-20.1, inclusive, of the City of Tampa Code), is in force and effect and is the law imposing the tax on which the improvement bonds will be serviced. They cannot be serviced from any other source as by their face and the resolution authorizing them provide.

In answer to the second question, it is sufficient to say that in Sections 75.03 and 75.04, Florida Statutes, F.S.A., the requirements a validation petition must contain to equip it as such, are detailed. Florida’s validating statute was first embraced in Chapter 6237, Acts of 1911, later amended by Chapter 6868, Acts of 1915. Section 2 of the latter act specifies the factual matters that must be recited in the petition. The act of 1941, Chapter 21593, modifies these requirements slightly but such modifications are not material here.

We have examined the resolution and other proceedings being a part of the validation procedure and we think they meet every requirement of the law, the purpose of which is to determine the authority of the municipality or other entity to issue the bonds or incur the proposed debt and we think all proceedings shown were ample to authorize the validation of the bonds. State v. City of Miami, 116 Fla. 517, 157 So. 13; State v. Citrus County, 117 Fla. 792, 158 So. 705; State v. City of Miami, Fla., 41 So.2d 888; State v. State Board of Education, Fla., 67 So.2d 627; Pirman v. Florida State Improvement Commission, Fla., 78 So.2d 718.

Affirmed.

HOBSON, THORNAL and O’CON-NELL, JJ., concur.


author: O’CONNELL, Justice.

text:
    John R. HOUGH, Jr., Appellant, v. David MENSES and Ruth V. Menses, his wife; and Max Jeruss and Ida Jeruss, his wife, Appellees.
    Supreme Court of Florida, Division B.
    May 22, 1957.

      Guión T. DeLoach, Miami, for appellant.
    Joseph A. Boyd, Jr., Hialeah, for ap-pellees.
   O’CONNELL, Justice.

John R. Hough, Jr., appellant here, as plaintiff in the court below brought an action at law for ejectment and damages for trespass, waste and mesne profits, against the defendants, David Menses and wife, and Max Jeruss and wife, who are appellees here. From an order dismissing the complaint plaintiff appeals.

In his complaint the plaintiff alleged among other things: the description of the lands involved; that plaintiff claimed title to said lands and deraigned his chain of title; that defendants were in possession of said lands, had received the profits therefrom, and that the defendants had refused to deliver to plaintiff possession of the subject lands or pay to plaintiff the profits therefrom. These allegations comply in substance with the requirements of Sec. 70.03, F.S.A.

The plaintiff further alleged the chain of title under which the defendants claim, including a suit to quiet title brought by one of the defendants’ predecessors in title, and undertook to explain the invalidity of the defendants’ title.

The defendants filed a document entitled “Motion to Dismiss.” The grounds of the motion are as follows:

(1) the complaint failed to state a cause of action on which the relief sought could be granted.

(2) the issues raised were res judicata because of the previous suit to quiet title.

(3) the bill of complaint on its face showed the clerk of the court had acted in accordance with law concerning the tax deed and the quiet title suit.

(4) on the face of the pleadings the statute of limitations barred plaintiff from recovery.

(5) the public records revealed the defendants Menses had conveyed all their interest in the property to the defendants Jeruss and thus should not have been named as defendants.

After hearing argument on the motion to dismiss, the court entered an order stating:

“ * * * [T]his cause be, and the same is hereby dismissed, with leave to amend within 20 days, hut in event the plaintiff elects to amend the amended complaint shall be as a complaint in equity for even if the plaintiff is entitled to relief it is only on the equity side.”

Grounds (2) and (4) of the motion to dismiss are affirmative defenses which are not properly raised on motion to dismiss, but should be raised in an answer. See Fla. Rules Civ.Proc. rules 1.8 (d) and 1.11(b), 30 F.S.A. The reason for this is that the plaintiff should not have the burden of anticipating a defense and then overcoming it in his initial pleading. Akin v. City of Miami, Fla. 1953, 65 So.2d 54, 37 A.L.R.2d 691 and Tuggle v. Maddox, Fla.1952, 60 So.2d 158. Furthermore the burden is on the defendant to prove his affirmative defenses, which cannot be done in proceedings on a motion to dismiss.

Ground (3) apparently relates to matters of proof which the defendants might be required to show in proving their title and are not matters to be urged in a motion to dismiss. Ground (5) is also a matter to be pleaded in an answer.

Therefore it appears that the trial court could have properly dismissed the complaint only because of ground (1) of the motion to dismiss i. e. because the complaint failed to state a cause of action. We cannot agree that the complaint failed to state a cause of action.

As we stated above the complaint alleged the essentials required under the statute Sec. 70.03, F.S.A.

It is true, however, that the plaintiff in addition to alleging the essentials required by the statute set forth at least in part the chain of title on which he alleged that defendants rely for their claim of ownership and he undertook to show why the defendants’ title was inferior to his.

But the fact that the plaintiff in his complaint anticipated the defenses and/or claim of title which defendants might plead and undertook to show them defective is not a fatal defect, if the complaint without such matter states a cause of action.

On this point this Court in Moses v. Woodward, 109 Fla. 348, 140 So. 651, on page 653, 141 So. 117, 147 So. 690, adopted the following statement found in 49 C.J. 151:

‘If the pleading itself states a cause of action, the fact that it also attempts to negative or avoid a defense is not a fatal defect, but allegations made for this purpose are immaterial and may be treated as surplusage, unless defendants wish to rely upon them, in which case he will be relieved from specifically setting up his defense and may accept the issue presented by the plaintiff.’ ” See, also, 71 C.J.S. Pleading § 84.

Having decided that the complaint stated a cause of action and that the inclusion in the complaint of the allegations by which the plaintiff anticipated the defenses and/or claim of title of defendants is not a fatal defect, we must conclude that it was error to dismiss the bill. However, this opinion is not to be considered, in anywise, as an adjudication of the merits of this cause or the sufficiency or deficiency of the claims of title of either of the parties.

We have considered the possibility that although the document filed by the defendants is entitled “Motion to Dismiss” it might have been considered by the trial judge to have been an answer or a motion for judgment on the pleadings. Fla.R. Civ.P. 1.11(c). We have concluded, however, that the motion is neither an answer nor a motion for judgment on the pleadings.

Reversed for further proceedings consistent herewith.

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


author: THOMAS, Justice.

text:
    NEW AMSTERDAM CASUALTY COMPANY, a Maryland Corporation, Appellant, v. Julius N. KNOWLES and Laura D. Knowles, his wife, Appellees.
    Supreme Court of Florida, Division A.
    May 22, 1957.
    A. Frank O’Kelley and Chas. H. Spitz of Keen, O’Kelley & Spitz, Tallahassee, for appellant.
    John C. Ausley of Ausley & Ausley, Tallahassee, for appellees.
   THOMAS, Justice.

New Amsterdam Casualty Company of Maryland issued to Laura and J. N. Knowles, doing business as Oak Grove Convalescent Home, a liability insurance policy obligating the company to pay on behalf of the insured certain sums for which the policy holder might become liable. In the insurance contract was a provision that no responsibility was assumed by the insurer for claims “resulting from the rendering of any professional services or omission thereof.”

We are principally concerned with the construction of the quoted exclusion clause in the light of the facts appearing in the record, but other pertinent conditions of the policy will be stated as we discuss the point of law to be resolved.

The appellees sought a declaratory decree establishing their right to have the appellant provide a defense in an action brought against them by the wife and next friend of William Grimmig, Jr., a mental and physical incompetent, a paralytic, who had been placed in appellees’ convalescent home for nursing and care. According to the complaint in that case William Grim-mig, Jr. suffered serious injuries by reason of the negligence of an incompetent attendant in the service of the appellees while the attendant was engaged in the performance of his duties.

In the complaint filed in the present suit it was alleged that appellees had no direct knowledge of any defect in the bed occupied by the invalid and knew of no reason why he had fallen from it. From their investigation of the incident they learned that the attendant while “making his early morning rounds” found the bed bars down and the invalid on the floor. The appellees averred that the injury resulted from an accident and that under the policy the insurer was bound to defend them in the suit brought on behalf of William Grimmig, Jr.

By the denial of any responsibility for the defense of the appellees, the clear-cut question whether or not the services being furnished to Grimmig by the appellees were from their nature “professional” is presented.

The chancellor concluded that the appellant was obligated to defend the appel-lees in the action brought against them and this appeal followed.

When the policy was issued to Oak Grove Nursing Home the insurer should have become aware of the nature of the enterprise in which the appellees were ■engaged. Under the contract for which, •of course, the insurance company was ■compensated, an obligation arose to defend suits against the policy holder for •damages resulting from “bodily injury, ■sickness, or disease * * *.”

It is true that the appellant was privileged by the contract to make investigations in connection with any liability that might be claimed against it, but we •do not find provisions in the contract or .allegations in the pleading that justify the position, presumably taken after investigation, that what happened to Grim-mig in the nursing home resulted from the rendition of professional services, therefore, that the appellant could wash its hands of the whole affair.

It seems to us it would be more logical to expect that in the action against the ap-pellees it might be shown that the injury was one that could happen in a nursing home without any connection with professional services. And if the insurer can under such a policy decide for itself that such an injury as described in the complaint filed against appellees sprang from professional services, we cannot resist the rhetorical questions: “What did the appellant intend to insure when it issued the policy to a nursing home” and “What sort of protection were the appel-lees to receive for the premium paid?” In other words, if the appellant considered a nursing home a place in which professional services only were furnished, what did it propose to insure? The only person shown by the record to have had any connection with the injury was an attendant.

The language of the declarations in the policy under the title “Premises — Operations” does not strengthen the appellant’s position for it simply reads “Sanitariums or Health Institutions Not hospitals or mental-Psychopatic [sic], Institutions.”

Furthermore, the appellees were insured against loss from “hazards hereinafter defined.” Next, under the heading “Definition of Hazards” appears this language : “Premises — Operations. The ownership, maintenance or use, for the purposes stated in the declarations, of the premises, and all operations which are necessary or incidental to such purposes.”

To our mind, the title “convalescent home” does not connote an institution where “professional services” only are rendered, and the word “attendant” does not describe a person who renders them. City of Miami v. Oates, 152 Fla. 21, 10 So.2d 721.

When we undertake to reason that an insurance company may issue a policy to the operator of a “convalescent home,” stipulated to be a sanitarium or health institution and not a hospital, and insure for a price, against the loss from hazards incident to the operation, and then arrogate to itself the right of deciding that, after all, an injury with which no one except an attendant seems to have had any connection, resulted from professional services, hence responsibility to defend did not arise, we come full cycle in our thinking. And when we compare the allegations of the complaint filed against the appellees with the terms of the insurance policy, we discover no basis for the presumption that injury arose only from services of professional character. Moreover, the policy must be construed favorably to the holder. Poole v. Travelers Ins. Co., 130 Fla. 806, 179 So. 138.

We have referred to the situation disclosed by the record so far made in the action against appellees for damage to the invalid. If there actually existed a set of facts so different as to relieve the appellant from liability, that would be developed only in an eventual trial. But the appellant could not meanwhile decline any participation in the action. On the contrary it was its duty to defend it. Virginia Surety Company v. Russ, Fla., 86 So.2d 643.

We agree with the circuit judge that the appellant should be required to keep its bargain and defend the suit brought against the appellees.

Affirmed.

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


author: PER CURIAM. THORNAL, Justice

text:
    Clarence J. SAVAGE, also known as C. Julian Savage, Ethel Savage and Robert N. Savage, Appellants, v. ROWELL DISTRIBUTING CORP., a Florida corporation, and Dixie Plywood Company of Miami, Inc., a Florida corporation, Appellees.
    Supreme Court of Florida, En Banc.
    May 15, 1957.

      Charles & Watson, Miami, for appellants.
    Ray M. Earnest and A. M. Sandler, Miami, for appellees.
   PER CURIAM.

The principal issue here is whether the lower court erred in refusing to vacate a final decree based upon a decree pro con-fesso entered against the defendant, Robert N. Savage, a minor, in the following circumstances :

A creditors’ bill was filed by the plaintiff-appellees against the defendant-appellants, Clarence J. Savage, Ethel N. Savage, his wife, and Robert N. Savage, having for its purpose the setting aside of a deed, dated June 10, 1955, by which Clarence J. and Ethel N. Savage conveyed certain real property to Robert N. Savage, and alleging various facts as the basis for their claim that the June 1955 deed was a fraud against plaintiffs, who are judgment creditors of Clarence J. Savage. The prayer of the complaint was that the June 1955 deed be set aside as a fraud against Clarence J.’s creditors or, in the alternative, that title be declared to b.e held in trust by Robert N. Savage for the use and benefit of Clarence J., and thus subject to the demands of his creditors.

A motion to dismiss was filed on behalf of all three defendants without any suggestion as to the incompetency of Robert. The motion was denied and, in due course, a decree pro confesso was entered for failure of the defendants to file an answer. Final decree was entered on October 24, 1955, without notice to the defendants, setting aside the June 1955 deed/

On December 12, 1955, a motion to set aside the “default” ánd final decree was filed by Ethel N. Savage and Robert N. Savage, “a minor, by and through his mother Ethel N. Savage,” alleging that the default was entered due to the mistake and misunderstanding of counsel and that the decree is contrary to the interests of the minor defendant. An answer was appended in which it was claimed that Robert is the true owner of the property for reasons set forth therein. The motion was denied after a hearing, and this appeal followed.

It is here contended that the trial court had no jurisdiction to enter a final decree against Robert, a minor, without first appointing a guardian ad litem to represent him and file such pleadings as would be necessary to protect his interests. Whether the Chancellor was aware of the incompetency of Robert at the time he entered final decree is not shown by the record. Certainly, there is nothing in the pleadings up to that point to disclose his incompetency. Under one line of cases decided under the provisions of Sec. 47.23, Fla.Stat.19S5, F.S.A., prescribing the manner by which jurisdiction of minors may be obtained, it has been held that failure to appoint a guardian ad litem to represent an infant defendant is fatal to the jurisdiction of the court, so that a judgment or decree rendered against an infant in such circumstances is void. See Gissen v. Goodwill, Fla.1954, 74 So.2d 86, and cases cited in support of the decision. Under another line of cases, it has been held that the failure to appoint a guardian ad litem to represent an infant defendant or other incompetent person is an error in procedure only, subject to reversal on appeal or amenable to a direct attack, but not void nor subject, to collateral attack. See McDaniel v. McElvy, 1926, 91 Fla. 770, 108 So. 820, 51 A.L.R. 731; Polk v. Chase Nat. Co., 1935, 120 Fla. 243, 162 So. 521; Quigley v. Cremin, Fla.1926, 109 So. 312. See also Bronstein v. Roth, Fla.1953, 64 So.2d 272, in which it was held that under section 744.12, Fla.Stat.19SS, F.S.A., providing for the appointment of a guardian ad litem to represent an incompetent defendant where such incompetent “has no guardian, or when his interest is adverse to that of his guardian,” the trial judge’s refusal to appoint a guardian ad litem for an infant defendant was not reversible error, since his mother, as his natural guardian, appeared and defended the suit and the mother’s interest was not adverse to the minor’s interest.

All of these decisions were, however, made under the law as it existed prior to the adoption of 30 F.S.A. Rule 1.17(b), Fla. Rules of Civ.Proc., which provides that

“Whenever an infant or incompetent person has a representative, such as a guardian, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative he may sue by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall malee such other order as it deems proper for the protection of the infant or incompetent person.”

It should also be noted that section 3 of Chapter 29737, Acts of 1955, F.S.A. § 25.47 (1), provides that “When a rule is promulgated and adopted by the supreme court concerning practice and procedure, and it conflicts with the statute, the rule supersedes the statutory provision.”

Our Rule 1.17(b) is almost identical with Rule 17(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. and was patterned thereafter, so the decisions of the federal courts construing their rule are pertinent here. It is held by such courts that the appointment of a guardian ad litem to represent an incompetent defendant is not mandatory, so that the failure to appoint a guardian ad litem does not render the judgment void. See Till v. Hartford Accident & Indemnity Co., 10 Cir., 1941, 124 F.2d 405; Westcott v. U. S. Fidelity & Guaranty Co., 4 Cir., 158 F.2d 20; Zaro v. Strauss, 5 Cir., 1948, 167 F.2d 218.

The Zaro case is somewhat similar on its facts to the case at bar. There, a judgment by default was entered against an incompetent defendant without the appointment of a guardian ad litem, even though in an answer filed on her behalf by her counsel the defense of incompetency had been pleaded. A little over a year later, the defendant was adjudged competent and filed a bill in the nature of a bill of review to set aside the judgment against her. The court held that “while the judgment rendered was not null as one rendered entirely without jurisdiction, it was voidable upon a showing such as has been made here that defendant had a meritorious defense and was not properly represented in the action.” It was also held that representation by counsel alone is not proper representation under the rule.

We hold, therefore, under the authority of the above cited cases, that failure to appoint a guardian ad litem to represent an incompetent defendant does not render the judgment void; it is voidable merely, upon a showing that the incompetent defendant had a meritorious defense and was not properly represented in the action.

In the instant case, the infant defendant was not properly represented in the action and his proffered defense was not, on its face, entirely without merit. He exercised reasonable diligence in moving to set aside the decree pro confesso and final decree. In these circumstances, the lower court should have set aside the default and final decree, appointed a guardian ad litem to represent the infant defendant, and afforded to the infant defendant a full opportunity to prove his defense, if he could. Accordingly, insofar as the infant defendant is concerned, the final decree must be reversed.

As to the defendants, Ethel N. and Clarence J. Savage, it should be noted that the motion to set aside the final decree was not made within ten days after the entry of the final decree, as prescribed by 31 F.S.A. Rule 3.10, Fla. Rules of Civ.Proc., and that the “good cause” shown for setting aside the decree was that the default occurred “due to pure mistake and misunderstanding of counsel.” The Chancellor exercised his discretion in favor of denying the motion, and no abuse of discretion has been made to appear.

The other question argued here by appellants has been considered and we find no error.

Affirmed in part and reversed in part and the cause remanded for further proceedings not inconsistent herewith.

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

ROBERTS and THORNAL, JJ., dissent.

HOBSON, J., not participating.

THORNAL, Justice

(dissenting).

I do not differ with the rule of law announced by the opinion of the majority. However, I do not agree that the proffered defense tendered by the minor defendant reflected any merit whatsoever. In my judgment this record is literally saturated with fraudulent conduct of the principal defendants continuing and repeated from time to time over a period of years. This conduct permeated the position of all the defendants. I am unable to visualize the construction of a defense with merit founded on footings composed of nothing more substantial than fraud and misrepresentation.

I, therefore, respectfully dissent, and would affirm the Chancellor, whom I feel soundly exercised his discretion.

ROBERTS, J., concurs.


text:
    Helen ROBINSON, Appellant, v. GREAT SOUTHERN TRUCKING COMPANY, Inc., and Harold Owen Buchanan, Appellees.
    Supreme Court of Florida, Division A.
    May 8, 1957.
    Rehearing Denied June 5, 1957.

      Irving E. Dunn, Miami, for appellant.
    Knight, Smith & Underwood, Miami, for appellees.
   THOMAS, Justice.

In this case the appellant claimed damages in a substantial amount for the death of her husband which she alleged had resulted from the negligence of the driver of appellee’s truck by parking the vehicle partially on a highway without lights and causing a collision with the truck by a car in which the husband was travelling as a guest.

In the answer were denials of “[e]ach and every” allegation of the complaint except ownership and use of the truck by the defendant. Many affirmative defenses were presented. It was averred that the plaintiff’s husband and the driver of the car were joint adventurers; that the driver was the agent of the husband and operated the car negligently; that the husband, himself, was driving the car negligently; that at the time of the collision the driver was drunk and the husband knew of his condition ; and that the husband “proximately” contributed to the happening of the collision by not remonstrating with the driver about the negligent way the car was being operated.

The first motion by the defendant for summary judgment was denied. Later the motion was renewed and a different judge granted it. Meanwhile, it seems, one additional deposition had been submitted. In the later order the judge reviewed at some length the facts surrounding the fatal collision such as the amount of liquor consumed by the husband and his companions, the arrangement under which they began their journey, the relative positions of car and truck immediately preceding the impact, the absence of flares and the presence of light on the platform where the truck was being loaded, the familiarity of the husband with the locale, the presence in the car after the accident of broken and unbroken liquor bottles and the fact that the driver of the car had pleaded guilty to manslaughter for causing the death of plaintiff’s husband.

The record and the court’s analysis of what it contained convince us that it could not have been properly decided in this case that there were no genuine issues of fact requiring trial before a jury. For instance, there is dispute about the position of the truck at the time of the collision, that is, whether it was partly on or entirely off the highway. With reference to this feature of the case, the judge himself observed in his order: “[tjhere is also a question as to whether the front of the truck was parked in such a way as to extend over the yellow line marking the west side of the highway.”

We have so often announced the test, we will not reiterate it here other than to say that the factual situation was not so clearly and undisputably crystalized that only questions of law remained for decision, and services of a jury would have been useless. Yost v. Miami Transit Co., Fla., 66 So.2d 214; Wilson v. Bachrach, Fla., 65 So.2d 546.

We are impelled to hold that the summary judgment should be reversed and that the cause should proceed to trial before a jury. Because of this conclusion, there is no need to discuss or decide the propriety of the last order when a judge of the same jurisdiction had previously entered an order of contrary effect, a question we discussed in Groover v. Walker, Fla., 88 So.2d 312.

Reversed.

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


text:
    Charlotte R. TUCKER, Appellant, v. Augusta M. BESSEE, Executrix of the Estate of Truman S. Woodward, Deceased, Appellee.
    Supreme Court of Florida, Special Division A.
    May 15, 1957
    Rehearing Denied June 13, 1957.
    Henderson, Franklin, Starnes & Holt, Fort Myers, for appellant.
    Mellor & Watson, Fort Myers, for appel-lee.
   PER CURIAM.

We have examined the record and Briefs of Counsel in this cause, and heard oral argument at the Bar of this Court. From our perusal of the record we reach the conclusion that the Chancellor below based his findings upon conflicting evidence, and following the rule so often enunciated by this Court, that “the findings of a Chancellor, based upon conflicting evidence, will not be disturbed unless clearly shown to be erroneous”, and finding no reversible error , in the record we conclude that the cause should be, and it is, hereby affirmed.

Affirmed.

TERRELL, C. J., ROBERTS and O’CONNELL, JJ., and WELCH, Associate Justice, concur.


author: ROBERTS, Justice.

text:
    HANOVER REALTY CORP., Appellant, v. Sam CODOMO, Appellee.
    Supreme Court of Florida, En Banc.
    May 8, 1957.
    Rehearing Denied June 13, 1957.

      Schwarz & Zinn, and Bart L. Cohen, Miami, for appellant.
    Rothenberg & Burris, Miami Beach, for appellee.
   ROBERTS, Justice.

The appellant, defendant below, owned property upon which it proposed to construct a large shopping center. The rentals of the buildings proposed to be constructed .by defendant were handled exclusively by a rental agency in New York City headed by one Berkson. The appellee, plaintiff below, is a real estate broker. The negotiations which culminated in the instant suit for a broker’s commission filed by plaintiff against defendant were initiated by plaintiff on June 18, 1953, when he wrote defendant’s rental agent, as follows:

“ * * * I have a client who would be interested in leasing approximately forty thousand square feet, one or two stories for a furniture store. Please send me terms and length of lease required. Also, information that would apply to any type of business in addition to that of this particular client.”

The defendant’s rental agent Berkson replied, under date of June 19, 1953, quoting terms of $3 per square foot and stating that a 21-year lease was desired. A copy of the proposed building plan was enclosed. According to plaintiff’s statements contained in his deposition, he then called Berkson on the telephone and made the following “agreement” as to his broker’s commission:

“Q. Tell us what you said to him and what he said to you with reference to commissions. A. I informed him that I was a broker, as he already knew in my inquiries, and what is their commission arrangements with other brokers. He said, ‘We pay the customary commission that you ■ are entitled to,’ and I, realizing that they are a large New York brokerage house and they recognize a broker, that they would pay the local brokerage fees after he said he would pay the customary fees, so from that time forward there was never any discussion about commission.
“Q. Did you discuss what are considered to be the local or customary fees in leases? A. No, I didn’t. I figured they would know. They are building a big project here.
“Q. At that time did he discuss with you or caution you with reference as to what must be done in order for you to be entitled to a commission ? A. No, he did not.”

Plaintiff also stated in his deposition that no further reference to his commission was made until he received a letter from Berk-son, dated July 23, 1953, in which the following statement was made:

“I want it distinctly understood that you are not to be entitled to any commission on this negotiation until the leases have been actually signed by all parties concerned, and if, for any reason, these leases are not signed, you will not have any claims against either the owners of the property, or Mr. William W. Kamm and myself as agents.”

Plaintiff replied to Berkson’s letter under date of July 25, 1953, stating among others the following:

“It is "distinctly understood that I am not entitled to any commission on these negotiations unless the leases are executed.”

In the meantime negotiations by telephone and by letter between plaintiff on behalf of his client, one Richardson, and Berkson on behalf of defendant had taken place and a conference among Berkson, plaintiff and Richardson had been held in New York City. The trial judge, who tried the case, without a jury, found that prior to Berkson’s letter of July 23, noted above, Berkson had made an offer on behalf of defendant to enter into a 21-year lease of 20,000 square feet of space in either a one-story or a two-story building to Richardson on stated terms, and that this offer had been accepted by plaintiff on behalf of Richardson in a telephone call made by plaintiff to Berkson on July 23, 1953; and that, thereafter, defendant arbitrarily refused to enter into the lease agreement with Richardson “which had been completely negotiated, approved and accepted by both parties thereto.” He concluded that plaintiff had earned his commission when he brought about a meeting of the minds of the parties as to the terms of lease, and that “[t]he condition to payment of Plaintiff’s commission inserted for the first time in the Berkson letter of July 23rd was not binding upon Plaintiff, nor was Plaintiff’s letter of July 25th in which he partially accepted such condition. It was without consideration, as Plaintiff’s commission was already earned on meeting the terms of the listing through the production of a tenant ready, willing and able to perform.” The trial judge was also of the opinion that even if the subsequent written agreement were to be considered a part of the contract of the parties, “performance thereof was excused by the conduct of the Defendant and such condition did not contemplate in law or in fact an arbitrary refusal to consummate the transaction on the part of the Defendant.”

From a judgment awarding plaintiff a brokerage commission in the amount of some $25,000, the defendant has appealed.

In support of the trial judge’s conclusion that plaintiff was not bound by his written agreement because it was without consideration, plaintiff relies on Miller v. Moylan, Fla. 1954, 72 So.2d 380, 381. In the Miller case, the broker was given a written listing by the owner “to find a purchaser” for the owner’s property and was promised compensation “for finding a purchaser.” The listing provided for the payment of a portion of the commission “when deal is closed” and portions of the balance upon payments of the first two installments of the purchase price, and in a subsequent letter from the owner to the broker it was stipulated that the broker was to be paid a commission “for making the sale * * * The broker found a purchaser ready, willing and able to buy upon the terms stated in the listing, but the sale was not consummated because of the default of the owner-seller. This court held that the language used in the subsequent letter, quoted above, did not transform the original written listing “from one to' procure a purchaser to one to secure a binding contract of sale, * * *” and affirmed the lower court’s judgment awarding the broker his commission under the rule of Knowles v. Henderson, 156 Fla. 31, 22 So.2d 384, 169 A.L.R. 600, referred to hereafter.

The facts in the instant case are different. While the testimony given by the plaintiff at the trial is not in the record, it is presumably not materially different from that contained in his deposition. As shown therein, the only agreement he had with Berkson was that he would receive “the customary commission” without any express agreement as to the terms of his employment. There is nothing sacrosanct about a broker’s contract. As in the case of any other contract, there must be a meeting of the minds of the parties — a “reciprocal assent to a certain and definite proposi-ti'Oii.” Webster Lumber Co. v. Lincoln, 94 Fla. 1097, 115 So. 498, 502. And we know of no alchemy by which an ambiguous oral agreement to pay a commission to a broker representing a prospective lessee can be transformed into a general contract of employment of the broker to find a tenant ready, willing and able to lease the owner’s property. There is, then, no basis for the trial judge’s conclusion that the plaintiff had earned his commission “on meeting the terms of the listing through the production of a tenant ready, willing and able to perform”; and it must be held that plaintiff is bound by the terms of the letters between him and Berkson memorializing their understanding of their previous oral •agreement — that is, that the plaintiff would not be entitled to his commission unless the lease with Richardson was actually executed. Cf. Kay v. Sperling, Fla.1956, 83 So.2d 881.

Only one question remains, and that is: Does the rule of Knowles v. Henderson, supra, 156 Fla. 31, 22 So.2d 384, 385, 169 A.L.R. 600, and similar cases, justify the trial judge’s holding that even if the written agreement were to be considered a part of the contract of the parties, “performance thereof was excused by the conduct of the Defendant and such condition did not contemplate in law or in fact an arbitrary refusal to consummate the transaction on the part of the Defendant.” We do not think it does. It was held in the Knowles case that “ * * * where a broker in good faith and in reliance upon his contract procures a purchaser ready, able and willing to buy the property in accordance with the terms fixed by the seller, and before the broker can effect the sale or procure a binding contract of purchase the seller defeats the transaction, not for any fault of the broker or purchaser but •solely because the seller will not or cannot .complete the transaction, then and in such ■case the broker is entitled to his commis•sion, if the customer remains ready, able ■and willing to purchase although the sale tats not Tbeen fully completed; the strict terms of the contract between the principal and broker as to completing the sale or procuring a binding contract of purchase from the customer being deemed waived by the principal.”

This is simply an application to broker's contracts of the general rules of contract law that “where a party contracts for another to do a certain thing, he thereby impliedly promises that he will himself do nothing which will hinder or obstruct that other in doing the agreed thing,” 7 Fla. Jur., Contracts, Sec. 145, and that “one who prevents or makes impossible the performance or happening of a condition precedent upon which his liability by the terms of a contract is made to depend cannot avail himself of its nonperformance.” Ibid, Sec. 148, p. 215. But we know of no case where these rules have been applied to permit recovery in the face of a specific agreement to the contrary. As pointed out in Kay v. Sperling, supra, 83 So.2d 881, 882, where the relationship of the parties was similar to that in the instant case and the broker agreed that “unless and until a deal is consummated, the contemplated lessor is not obligated for any commission,” in none of the cases allowing recovery by the broker where the owner refused to complete the transaction “had the party sought to be held liable for the commission protected itself with a provision similar to that embodied in the contract in the case at bar. None of these cases holds that a broker can recover in the face of a specific contract to the contrary.”

While, as has been indicated above, the testimony given by plaintiff and Richardson at the trial was not recorded and thus is not before this court, the deposition of plaintiff covered all the essential facts relied upon by him in support of his case. As shown by his statements therein, quoted above, and the letter agreements memorializing their understanding as to his commission, the only obligation ever assumed by the owner was to pay him a commission if the leases were actually executed. The plaintiff’s account of the negotiations, as set forth in his deposition, and the documentary evidence in the form of correspondence between plaintiff and Berkson, show unequivocally that plaintiff acted throughout the negotiations as the agent of Richardson, just as Berkson acted as the agent of the owner. The agreement to pay plaintiff a commission was sufficient to remove from him the onus of “volunteer” and justify a recovery on a quantum meruit basis, had a lease actually been consummated between Richardson and defendant; but we find in the circumstances here no justification for the application of the rule of Knowles v. Henderson, supra.

Accordingly, it was error to enter a judgment in favor of the plaintiff, so the judgment should be and it is hereby reversed with directions to dismiss his complaint.

It is so ordered.

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

THOMAS, J., dissents.


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    Sylvia Schindler HOLLAND, Appellant, v. Norman N. HOLLAND, Appellee.
    Supreme Court of Florida, Special Division A.
    May 1, 1957.
    Rehearing Denied June 5, 1957.
   PER CURIAM.

Affirmed.


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    STATE of Florida ex rel. Morgan SIMPSON, Petitioner, v. Nathan MAYO, as Custodian of The Florida State Prison, Respondent.
    Supreme Court of Florida, Special Division B.
    May 22, 1957.
    Morgan Simpson, petitioner, in pro. per.
    Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for respondent.
   ROBERTS, Justice.

This is an application for the writ of habeas corpus, in which petitioner alleged that he was convicted of robbery upon the false and perjured testimony of an accomplice, and that such testimony was induced by the threats and promises of reward made to the witness by the Honorable Clifton M. Kelly, County Solicitor, knowing such testimony to be false. The affidavit of the witness in question, Amos Pierce, was appended, in which Amos stated that he implicated petitioner in his testimony at the trial because the County Solicitor and the Sheriff told him that they would see that he got off with probation or not over one or two years in jail if he would do so; and that, in fact, the petitioner did not participate in the robbery in any way. We issued the writ under the authority of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; and White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348.

The respondent’s return to the writ denied the allegations of the petition referred to above, and we entered an order referring the matter to the judge of the Criminal Court of Recoid for Polk County as a commissioner of this court to take testimony on the issue of whether the prosecution knowingly used false and perjured testimony to obtain a conviction of petitioner, and to report his findings of fact and conclusions of law.

The Commissioner has now reported the results of his hearing in the matter. He found that “there was no testimony submitted to show that the prosecution knowingly used false and perjured testimony to obtain a conviction of the petitioner Morgan Simpson in the Criminal Court of Record in and for Polk County, Florida, said petitioner failing absolutely to maintain this allegation.”

We have examined the record of the hearing held by the Commissioner and find that there is nothing in the record that reflects in the remotest manner upon the integrity of County Solicitor Kelly and Sheriff Gordon, and that the Commissioner’s conclusion above quoted is fully warranted by the evidence submitted. In fact, at the hearing Amos Pierce completely exonerated the County Solicitor and the Sheriff of the charges previously made by him and testified that the reason he signed the statement accusing them of inducing him to give false testimony against the petitioner was because he was in fear of his life from other prisoners at Raiford if he did not do so. An investigator sent out by the Governor’s Office to interview Amos, in response to correspondence from the petitioner, testified at the hearing that Amos told him the same thing and that Amos ■ completely repudiated.his signed statement, both as to the charges against the County Solicitor and the Sheriff and also as to the statement therein that the petitioner was innocent.

It having been found that the petitioner failed to sustain his charge that the prosecution knowingly used false testimony to procure his conviction, and there being no other allegations in the petition sufficient to show that the proceedings upon which the judgment and sentence were rendered were void as being in violation of fundamental law and justice, the instant proceedings are dismissed and the petitioner is remanded to the custody of the respondent to serve out the remainder of his term unless sooner discharged in accordance with law.

It is so ordered.

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


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    Frank ORLANDO, Appellant, v. John W. MARTIN, as Trustee of the Property of Florida East Coast Railway Company, Appellee.
    Supreme Court of Florida, Division B.
    May 22, 1957.
    Leonard H. Rubin, Miami, for appellant.
    Scott, McCarthy, Preston, Steel & Gille-land, R. J. Beckham, Miami, Russell Frink, Jacksonville, for appellee.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appeale.d 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 and decreed that the motion to affirm the judgment appealed from be, and the same is, hereby granted, and the judgment is

Affirmed.

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


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    Theodore GRANIK and William H. Cook, Appellants, v. W. Wright ESCH, WMFJ, Inc., a Florida corporation, Telrad, Inc., a Florida corporation, and W. C. O. A., Inc., a Florida corporation, Appellees.
    Supreme Court of Florida, Special Division A.
    May 15, 1957.
    Cobb & Cole, Daytona Beach, for appellants.
    Louis Ossinsky, Sr., and Horn & Ossin-sky, Daytona Beach, for appellees W. Wright Esch and WMFJ, Inc.
    Francis P. Whitehair and Hall, Sweeny & Godbee, De Land, for appellees W. C. O. A., Inc., and Teirad, Inc.
   PER CURIAM.

Affirmed, without prejudice to any action at law, if any, which appellants may have against appellee W. Wright Esch.

TERRELL, C. J., ROBERTS and THORNAL, JJ., and WELCH, Associate Justice, concur.