Volume 64 — Florida Reports

State of Florida, Executive Department, Tallahassee, September 19, 1912.

<p>When the legislature is convened in extra session by executive proclamation, it is the duty of the Governor under the Constitution to transmit to the Senate for its action thereon, appointments to the offices of Circuit Judge, State Attorney and Judge of the Criminal Court of Record that have been made since the adjournment of the last session of the Senate.</p>

State of Florida, Executive Department. Tallahassee, September 27, 1912. To the Honorable Chief Justice and Justices of the Supreme Court of Florida.

<p>1. In an action for personal injury where it is shown that the-injury was caused by the operation of a train of a railroad company, the burden is upon the defendant company to show that it exercised all ordinary and reasonable care and diligence to avoid the injury.</p> <p>2. It is the duty of the trial court on a proper motion for new-trial upon the ground that the verdict is excessive in amount,. to determine, when liability clearly appears, whether the verdict is excessive. The court has the power and duty of passing on the verdict and of determining the legal effect of the evidence, or of the lack of evidence.</p> <p>S. In directing that a remittitur be entered for a stated amount upon a verdict awarding damages, and that upon failure to do so a new trial be granted, the court, whether trial or appellate, does not usurp the functions of a jury or deny to either party a right to a jury trial. The power and duty rests in the court to determine the validity of the verdict both as to its nature and amount; and in ordering a remittitur, the court merely adjudges that the amount of the verdict ordered to he remitted is, on the pleadings and evidence illegal.</p>

<p>1. A vendor’s lien is a right which the law by implication accords to the grantor of land, who has conveyed the title and reversed no express lien and has taken no security for the purchase money other than the personal obligation of the grantee, to subject the land in equity to the payment of the purchase money, when the rights of others are not injured and the circumstances and relations of the parties, with reference to the land conveyed, make it equitable to do so. The conveyance of the legal title to the vendee is essential to the existence of th grantor’s lien.</p> <p>2. The equitable lien for the purchase money which the law implies in the absence of an express lien or other remedy is for the benefit of the grantor of land, and it may be waived. Such waiver may be expressly made, or it may be inferred froms facts and circumstances. Any conduct on the part of the grantor tending to show that he does not rely solely upon the legal implication in his favor may operate as a waiver of the grantor’s lien.</p> <p>3. A subsequent purchaser with notice' of a vendor’s implied lien, or of facts that in law create such a lien, takes the land subject to the prior equity of the original vendor.</p> <p>4. Where the sufficiency of the allegations of the bill of complaint are not duly tested, all reasonable intendments will, after final decree, be indulged in support of the pleading.</p> <p>5. The waiver of a vendor’s lien is defensive matter, and the burden of proving it rests on the defendant, unless it otherwise appears.</p> <p>6. The mere fact that a vendor knew the purchaser borrowed money to make a part payment for the property and gave a mortgage on the property to secure the loan, does not operate to destroy or waive the vendor’s lien, where no act or conduct of the vendor causes a waiver of his implied lien.</p>

<p>Upon a trial of two jointly indicted for murder, when conspiracy is not shown, when the evidence warrants it, either is entitled to a separate charge on self-defense.</p>

<p>Appealed from the Circuit Court for Alachua County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Jackson County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Walton County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

Appealed from the Circuit Court for Leon County. Statement. During the regular session of the legislature of 1911, certain proposed amendments to the State constitution were considered by both houses of the legislature under the designation of House Joint Resolution No. 222. The Secretary of State is publishing the propositions contained in the said Joint Resolution and the further publication and certification thereof have been enjoined.

<p>1. In' a prosecution for homicide instructions asked by the defendant on the subject of self-defense which do not include the proposition that the defendant to justify his acts on the ground of self defense must have Used all reasonable means within his power and consistent with his own safety, to avoi.d danger and to avert the necessity of taking the life of the deceased, a limitation which has been approved by this court'in several cases, are property refused when the charge given by the court as to self defense was full and correct under the facts of the case.</p> <p>2. An instruction that in considering the testimony of witnesses, including that of the defendant, the jury will take into consideration the interest, if any, that any witness has in the result of the trial, is not such a reference by the court to the testimony of the defendant alone as to pointedly aim at the credibility of the defendant as a witness for himself or to impress the jury with the idea that the judge questioned his credibility.</p> <p>3. Where charges as to self defense are not clearly erroneous, or misleading or confusing on the evidence, they will not cause a reversal of a conviction that is amply sustained by the evidence.</p> <p>4. Where the defendant in a criminal trial is permitted to make illustrations before the jury, similar illustrations may in the reasonable discretion of the trial court be made by the prosecution when no positive provision or principle of law is violated, and the defendant is not clearly injured thereby.</p> <p>5. Where there is substantial evidence to sustain a verdict of conviction and no reversible errors of law or procedure appear, the judgment will not be reversed.</p>

<p>Appealed from the Circuit Court for Dade County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Madison County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. When, the death of a sole plaintiff is suggested on the record and his heirs are by order of the court under the statute substituted as plaintiffs in his stead, such substitution sufficiently adjudicates the death of the original plaintiff for the purposes of the case.</p> <p>2. Oral testimony that a deed of conveyance was reported to have been made is incompetent to show title.</p> <p>3. In' an action of ejectment where there is no evidence on which a verdict may lawfully be found for the defendants, and the title of the plaintiff appears, a verdict for the plaintiff may be directed.</p>

<p>Equity Practice — Supplemental Bill — Collateral Attack on Judgments of Bankruptcy Court— Abatement of Suit Brought by Sole ' Trustee in Bankruptcy on His Resignation.</p> <p>I Where a sole trustee of a bankrupt estate institutes a suit to recover property of the estate and resigns during the pendency thereof, such suit does not abate on his resignation, but may be proceeded with by his successors when appointed just as though the same had been instituted originally by such successors. And supplemental bill is the proper procedure to have such successors formally brought into the case as parties thereto.</p> <p>2. A law that confers power to supply by appointment, a place vacated by death, disability or removal, authorizes an appointment to be made where the vacancy is occasioned by resignation.</p> <p>3. A collateral attack cannot be made in a suit pending in a State court upon the judgments, orders and proceedings of a' Federal Court in Bankruptcy, either by way of defense to a supplemental bill brought for the purpose of having successors td a resigned trustee of the bankrupt’s estate made formal parties to a pending suit instituted by the resigned trustee to recover property of the bankrupt’s estate, or as a defense to the original bill so instituted.</p>

<p>Appealed from the Circuit Court for Jackson'County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court'for Jackson County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Jackson County.</p> <p>The facts in the case are stated in the opinion of the Court.</p>

<p>Appealed from the Circuit Court for Osceola County.</p>

<p>Appealed from the Court of Record of Escambia County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>' Appealed from the Circuit Court for Monroe County.</p> <p>The facts in the case are stated in the opinion of the Court.</p>

<p>Forcible Entry and Unlawful Detainer — Disputed Boundary' Cannot Be Settled By — Jurisdiction of County Judge Where County Court Established.</p> <p>1. When under the provisions of Section 18 of Art. Y of the Florida Constitution a County Court is established in any county the jurisdiction of the County Judge as such is at once suspended in all those cases jurisdiction over which is placed in said County Court by said Section 18, and remains so suspended so long as the Legislature shall see proper to continue such County Court in existence in such County.</p> <p>2. Said Section 18 of Art. V simply provides for a bigger court and places the County Judge over it to preside, and all of his jurisdiction formerly exercised by him as County Judge in the lesser tribunal that is expressly given by said Section 18 to the County Court when established is at once merged in him as the presiding Judge of such greater tribunal, and so long as such County Court exists, be cannot, as County Judge, exercise any jurisdiction that is expressly given to such County Court by said section 18 of Article V.</p> <p>3. Where boundaries to real estate are essentially involved in a dispute between parties the same cannot be settled in an action of unlawful detainer either in the County Judge’s Court, or in a County Court, since under the provisions of section 11 of Art. V of our constitution our Circuit Courts are clothed with exclusive original jurisdiction of all actions involving the boundaries of real estate.</p>

<p>Appealed from the Circuit Court for Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the Court.</p>

This is a case of Original Jurisdiction. Statement. The following alternative writ of mandamus was issued herein: “Whereas by a petition filed by our Railroad Commissioners in our Supreme Court in the name of The State of Florida, through Louis C. Massey as Special Counsel for our said Railroad-Commissioners designated by them, it has been made to appear: 1.

<p>1. Section 3151 General Statutes of 1906, giving a trial court discretionary power in a suit for damages for personal injury to appoint a physician to make a physical examination of an injured party, is to be construed with due regard to the rights of the parties, and its scope is not to be extended beyond the terms of the statute; and if an X-Ray examination is deemed necessary, he may make such examination himself, but he is not authorized to take X-Ray photographs of the person of the injured party; nor is he authorized to appoint a photographer to use the X-Ray or to take X-Ray photographs without the consent of the injured party.</p> <p>2. If a physician is appointed by a trial court to make the physical examination provided for in section 3151 General Statutes of 1906, and the injured party refuses to permit the physician to make an X-Ray examination of her person when such an examination is necessary, the trial judge commits no error in continuing the case because of this action of the injured party.</p>

<p>1. Where the defendant is charged with the statutory offense of wantonly and maliciously shooting at or into an occupied house, testimony as to whether persons in the house were struck by the shots fired into the house is admissible, even though it relates to a distinct crime, since such testimony is relevant to the issue being tried and it may be material.</p> <p>2. In a prosecution for wantonly and maliciously shooting into an occupied house, testimony that a person who was with the accused at the time was struck by shots fired from the house and that persons in the house were drinking whiskey, is not material to the issue being tried.</p> <p>3. In a prosecution for maliciously shooting into a house, testimony as to the circumstances but not the merits of a previous difficulty between the defendant and a party in the house may be material and relevant in showing a motive for the offense charged.</p>

<p>Appealed from the Circuit Court of Manatee County.</p> <p>The facts in the case are stated in the opinion of the court. ,</p>

<p>Appealed from the Circuit Court for Volusia County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Brevard County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Washington County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>The Constitution does not authorize the Governor to suspend an. incumbent of the office of County Commissioner for an act-of malfeasance or misfeasance in office committed by hint-prior to the date of the beginning of his current term of' office as such County Commissioner.</p>

<p>Appealed from the Circuit Court for Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Suwannee County</p> <p>The facts in the case are stated in' the opinion of the court.</p>

<p>Appealed from the Circuit Court for Suwannee County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. Where, in an action for a negligent personal injury, the declaration in effect alleges that the plaintiff, an employee, was. about fourteen years of age; that he was without knowledge or experience in the dangerous work assigned to him by defendants; and that because of his youth and inexperience, he did not know or appreciate the risks and dangers of the employment, such allegations are essential elements-, in the cause, and a plea averring that the plaintiff was not-free from fault, with other averments in support that do not make an issue as to the capacity of the plaintiff to appreciate the risks and dangers of the employment, is not good against a specific ground of a demurrer that “the said plea fails to-charge or allege that the plaintiff was of sufficient age or understanding to appreciate any warning or danger communicated to him by language or appearance.”</p> <p>2. While a sufficient warning of an employee as to the dangers of an employment is a duty imposed by law upon an employer, such warning does not relieve the employer of liability for an injury caused by the youth and inexperience of an employee put at a dangerous work by the employer.</p> <p>3. Whether a youth of about 14 years of age has capacity to appreciate,the risks and dangers of the employment stated in the declaration so as to render him subject to the rule that contributory negligence bars a recovery, depends upon the age, the mental and physical attainments, the experience and other conditions affecting the conduct of the youth, as well as the character of the work and the circumstances of the injury.</p> <p>4. Where error in sustaining a plea apparently influenced the finding and sustaining of a verdict that is not supported by the evidence and the law applicable thereto, a new trial should be granted.</p>

<p>1. Under the provisions of Rule 18, Supreme Court Rules, adopted March 2, 1905 (page 11 of such rules prefixed to 51 Fla., 37 South Rep. viii), no objection will be allowed to be taken in the appellate court to the admissibility of any evidence, oral or documentary, found in the record in a chancery cause, unless the record affirmatively shows that the objection thereto was presented to the chancellor, and expressly ruled upon by him in the court below, at or before the final hearing of the cause. Every matter purporting to he evidence,, found copied by the clerk into the record in such cause, will be presumed to have been used in evidence in the court below, unless the record affirmatively shows the contrary.</p> <p>2. If a complainant in a suit in equity desires to avoid the probative force of a sworn answer, he may do so by expressly waiving the oath in his bill. Where the complainant fails to do this, an answer under oath, in so far as it is responsive to the allegations of the bill and direct, positive and unequivocal in its terms, is evidence in favor of the defendant, in order to overcome which two witnesses are required, or one witness and corroborating circumstances.</p> <p>3. While the findings and conclusions of a chancellor, where the testimony is not taken before him, but before a master or examiner, by reason whereof he is not afforded an opportunity of seeing and hearing the witnesses, are not entitled to the same weight as the verdict of a jury, yet even in that case they should not be disturbed by an appellate court, unless they are clearly shown to be erroneous.</p> <p>4. In equity, as well as at law, every presumption is in favor of the correctness of the rulings of the trial judge, and a final decree rendered by him, based largely and solely upon questions of fact, will not be reversed unless the evidence clearly shows that it was erroneous.</p>

<p>1. In an action for a negligent injury to persons or property, it is in general necessary to allege only ultimate facts showing the relation between the parties out of which the duty to avoid negligence arises under the law, and the act or omission that proximately caused the injury, coupled with an allegation that such act or omission was negligently done or omitted.</p> <p>2. Where the allegations of a declaration show a relation of bailor and bailee for mutual benefit between the plaintiff and defendant, out of which relation there arose a duty to use ordinary care for the preservation of a boat, the subject of the bailment, and state that the “defendant did, by his negligence in fastening said boat or vessel and leaving it unattended at a place exposed to imminent danger from fires, neg-gently permit said boat or vessel to be burned and destroyed by fire,” a cause of action is stated, and in such a case a recovery must be predicated upon proof, by a preponderance of the evidence, of the burning of the boat as a result of the particular negligence alleged, viz: that the defendant was negligent in fastening the boat and leaving it unattended at the place where it was burned.</p> <p>3. Where a bailment is for mutual benefit, tbe bailee is held to the exercise of ordinary care in relation to the subject matter thereof, and is responsible only for ordinary negligence.</p> <p>4. In an action to recover damages for a negligent injury to property, if the evidence does not support the specific allegations of negligence from which the injury proximately resulted, a verdict for the plaintiff is unauthorized and should be set aside.</p>

Appealed from the Circuit Court for Leon County. Statement. On the 12th day of August, 1910, the appellee, as complainant, filed its bill in chancery, against the appellant, as defendant, which bill, omitting the formal parts thereof, is as follows: “The bill of complainant I. B. Hilson, against the Capital City Bank, alleges: 1. That the complainant is an adult, and a citizen and a resident of the County of Santa Rosa, State of Florida. 2.

<p>Appealed from the Circuit Court for Jackson County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. Where a demurrer is to the whole bill, special grounds there in that are not applicable to the whole bill will not be considered.</p> <p>2. Multifariousness goes to convenience more than to the merits; and when there is a general demurrer for want of equity, a ground of demurrer for multifariousness may not avail if there is equity in the bill.</p> <p>3. A bill is not multifarious because it seeks in a proper case to procure partition and an accounting.</p> <p>4. An accounting by one in possession of lands is a proper incident to the partition of the lands, while an injunction and a receiver are merely ancillary to the main purpose.</p>

<p>1. When a casé is uot within the operation of a statute, the constitutionality of the statute even if questioned, may not be involved in the proper disposition of the case.</p> <p>2. If a cause can be fully disposed of without adjudicating constitutional questions raised therein, the courts will generally ignore such questions and dispose of the ease on other grounds.</p> <p>3. When a party claims rights under a penal statute, .he should show facts bringing him within the terms and purpose of the statute.</p>

<p>Writ of error to the Criminal Court Walton County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Where a defendant charged with murder in the first degree is granted a change of venue to another county, it is not error to refuse an application for another change of venue where it appears that a fair trial could be had; and where a fair trial was had resulting in a conviction of murder in the second degree, the judgment will be affirmed.</p>

<p>Where a lease of timber for turpentine purposes dated January 11th, 1904, provides that “in consideration of the sum of thirty-two and 50/100 dollars per thousand turpentine boxes, to be paid for when timber is boxed,” the lease is “for the full period of three years from the date of the cutting of each and every parcel of said timber,” “for turpentine purposes,” “for the full period of three years from the cutting of each and every part thereof,” the law implies a reasonable time within which the timber must be boxed- so that the stated period of three years will begin to run, and upon failure of the lessee to box the timber within a reasonable time under all the circumstances of the case, the rights under the lease will-cease ; and on the circumstances disclosed, the chancellor in this case properly held the rights of the lessee to have ceased when the bill was filed December 10th, 1910.</p>

Appealed from the Circuit Court for Citrus County. Statement. This writ of error was taken to a judgment for the defendant in an action brought against the Florida Power Company, a corporation, by James T. Davis to recover damages accruing to the plaintiff under the statute for the death of plaintiff’s minor son caused by the alleged wrongful act of the defendant corporation.

<p>Appealed from the Circuit Court for Marion County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

Appealed from the Circuit Court for Duval County. Statement.

<p>Appealed from the Circuit Court for DeSoto County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>A contract to convey land to “G. and associates” will not be specifically enforced in favor of R. & F. the assigness of G. alone, when it does not appear that R. & F. were the associates of G. or the word “associates” means assigns.</p>

<p>Appealed from the Circuit Court for Manatee County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Alachua County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from tbe Circuit Court for DeSoto County. ■</p> <p>The facts in the case áre stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court of Suwannee County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Where a party who is the payee of a negotiable promissory note, places his name on the back of the note under the words “we, as endorsers, waive demand, notice and protest, and guarantee payment of this note, and acknowledge that we sign with full understanding of this contract,” such person is an endorser, since by the endorsement he does not “clearly indicate by appropriate words his intention to be bound in some other capacity,” as contemplated by the statute; and parol evidence is not admissible to show the status of such endorser to be that of a maker, so as to compel an action against him jointly with the three persons who signed the note as the makers thereof.</p>

<p>Writ of error to the Criminal Court for Orange County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. Where the facts of the particular case warrant it, the doctrine of estoppel may be applied to married women with reference to conveyances of their separate property.</p> <p>2. Where there is ample evidence to warrant the chancellor in applying the doctrine of equitable estoppel, the decree will be affirmed, no errors of law appearing.</p>

<p>Writ of error to the Circuit Court for Santa Rosa Coutny.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Whatever may be the statutory power and duty of the county board of public instruction in canvassing the returns made by the inspectors of an election held under the statute in a Special Tax School District, when the actual legal results of an election are duly established by pleadings or proofs in a proper quo warranto proceeding, it is the duty of the court to award judgment in accordance with the law and the established facts.</p>

<p>1. To permit the State to introduce the mere opinion of wit nesses that an alleged cutting of a coat, and pencil in the pocket of the coat, of the prosecuting witness by the defendant would have turned the prosecutor around or cause him to stagger back considerably, was harmful error since such opinion evidence tended to rebut the statement of the defendant’s witnesses especially as there was a conflict in the evidence as to what transpired when the alleged assault was made by the defendant.</p> <p>2. In order to a conviction an assault must have been unlawfully made, and this fact should not be ignored in charges given to the jury.</p> <p>3. Proper practice requires that in felony cases the defendant should be arraigned, and have the opportunity offered him to plead to the indictment or information.</p>

’Appealed from the Circuit Court for Duval County. Statement. The original bill of complaint in this cause will be found in L’Engle v. Overstreet, 61 Fla. 653, 55 South. Rep. 381, where an order overruling a demurrer to the bill was reversed.

<p>Appealed from the Circuit Court for Jackson County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. Actual adverse possession for less than one year is no bar to a claim under a tax title.</p> <p>2. Actual possession under a deed conveying one acre of a forty is not constructive possession of the whole forty, though the deed purports to make the grantee an agent to hold the forty adversely.</p> <p>3. A grantee in possession under a deed for one acre of a forty, does not acquire possession of the rest of the forty by merely using some of the dead wood thereon and putting up signs, as against one who fences the entire forty and cultivates a part of it.</p>

<p>1. The provision of the constitution relative to municipal taxation that “all property shall be tawed upon the principles established for state taxation,” contemplates that the power of taxation given and exercised by a municipality shall “provide for a uniform and equal rate of taxation, and shall prescribe such regulations as shall secure a just valuation of all property, both real and personal, excepting such property as may be exempted by law for municipal, educational, literary, scientiiv, religious or charitable purposes” as required by section 1 of article IX.</p> <p>2. Municipal assessments including the valuations of property for taxation must observe the “principles” requiring “a just valuation of all, property, both real and personal,” except such as is lawfully exempted, and the “assessments” must have a fair relation to “a uniform and equal rate of taxation;” but the valuations included in the “assessments” are not required to be the same as those used for purposes of State taxation.</p> <p>3. Tbe provisions of the charter granted to the city of St. Petersburg by special statute clearly contemplate that in assessing property for municipal purposes the city may make its own valuations, provided the valuations are just and have a fair relation to a uniform and equal rate of taxation.</p>

<p>Appealed from the Circuit Court for Taylor County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. A certified copy of the minute entry of a Circuit Court-judgment, entered in open court, is admissible in evidence, as the basis for n sheriff’s deed thereon, even though the judge’s name does not appear in the judgment and there is no proof that he signed this entry.</p> <p>2. An evident clerical misprision in the sheriff’s return upon the execution, would not affect the sheriff’s deed to property sold thereunder.</p>

<p>Writ of error to the Circuit Court for Jackson County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Writ of error to the Circuit Court for Escambia County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Writ of error to the Circuit Court for Jackson County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>The remedy afforded by Section 148S of the General Statutes is not exclusive of the remedy for a discovery in equity, and in a proper case the equitable remedy should be applied.</p>

<p>Writ of error to the Circuit Court for Taylor Couuty.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. The common law rule is that when an employer has fully performed his duty to an employee, the employee assumes the obvious risks of danger in employment voluntarily engaged in when he is capable of understanding and appreciating such risks and dangers, and the employer is not liable in damages for injuries to the employee caused by the negligence of a fellow servant when the master does not by his negligence or other conduct proximately contribute to the injury.</p> <p>2. The members of a train crew such as engineer, fireman, and brakeman or switchman of the same train are fellow servants.</p> <p>3. If the master is negligent in his duty to take proper care in the selection of those who are to work with other employees he may be liable in damages for injuries proximately ■ resulting from such negligence if recovery by the injured party is not barred by reason of contributory negligence; but in such case the negligence of the master and resulting injury must be properly alleged and must be proven as alleged.</p> <p>4. Whre there is no evidence to sustain the particular allegation of negligence upon which an action is based, a ver: diet for the plaintiff will be reversed.</p>

<p>Appealed from the Circuit Court for Escambia .County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. In an action for negligence a plea that the defendant did not discover the peril of the plaintiff in time to avoid the accident is covered by a plea of not guilty.</p> <p>2. The mere fact that no license had been procured for the automobile does not relieve from liability one whose negligence injured a passenger while riding in the automobile on the public highways of the State.</p> <p>8. The negligence of a chauffeur in driving an automobile is not in general imputable to a person riding in the automobile, but having no authority or control over the machine or the driver.</p>

<p>Writ of error to the Circuit Court, for Santa Rosa County.</p> <p>The fads in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Orange County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Clay County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Writ of error to the Circuit Court for Suwannee County.</p> <p>The facts in the case are stated in the opinion of- the court.</p>

<p>Criminal Law — Change of Venue — Continuance—Public Trial — Charging on Interest of Defendant as Affecting His Credibility as a Witness — Reiterating Charges Al- . ready Given.</p> <p>1. An application for a change of venue is addressed to the sound judicial discretion of the court, and its ruling, refusing the change, will not be. disturbed unless it appear from the facts presented that the court acted unfairly and abused a sound discretion; and such ruling will not be disturbed where the application is supported by the uncorroborated ■ affidavit of the accused and where there is nothing to show that he was prevented by hostile public sentiment from getting corroborative evidence.</p> <p>2. An affidavit filed in support of a motion for the continuance of a cause is fatally defective when it fails to state, among other facts, “that the application is not made for delay only.”</p> <p>3. The words public, as used in the constitution guaranteeing to all persons accused of crime a public trial, is there used in opposition to secret. The constitutional requirement is «,fairly observed, if without partiality or favoritism, a reasonable portion of the public is suffered to attend, notwithstanding that those persons whose presence would be of no service to the accused, and who would only be drawn thither by a prurient curiosity are excluded altogether. The exclusion by the court of all persons other than those interested in the case, where, from the character of the charge and nature of the evidence, public morality would be injuriously affected, does not violate the constitutional right to a public trial.</p> <p>4. The following charge given by the court to the jury held not be erroneous: “The court charges you that under the law the defendant may become a witness and testify in his own behalf, and in consideration of his testimony and the weight and credibility which should be given to the same, it is proper for you to take into consideration the interest which the defendant has in the trial and its result, and all the circumstances by which he is surrounded at the time he testifies, and also the reasonableness or unreasonableness, the probability or improbability of what he says, just as you would the testimony of any other witness.”</p> <p>5. It is not error for the court to refuse to give requested instructions that have already been given in substance though couched in different language.</p> <p>6. There is no error in refusing an instruction that misleads the jury from the real issues in the case, and that is inapplicable to the facts as charged and proven.</p>

<p>Where a party is conducting his own case in court and suddenly becomes insensible from an attach of heart failure so as to render him unfit to properly protect his rights, the court should pursuant to section 1489 of the General Statutes of 1906 adjourn the cause to such time as would be proper under the circumstances.</p>

<p>3. Equity will not take jurisdiction where there is a full, adequate and complete remedy at law. But where the remedy at law is not full, complete and adequate, or where complete relief at law is doubtful and a more ample and appropriate remedy may be thereby afforded, equity will take cognizance and give relief if it can be done in accordance with recognized principles of chancery jurisdiction and procedure.</p> <p>2. Where a bill of complaint contains allegations of overreaching misrepresentations and resulting injury to complainant in the settlement of partnership affairs, and seeks a rescinding of a written instrument, a matter for equity cognizance appears.</p>

<p>Appealed from the Circuit Court for Hernando County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Jackson County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1 An objection to a question as irrelevant propounded by the State to one of its witnesses asking whether the witness had a conversation with the defendant the day before the killing is futile when the answer of the witness gives the conversation which is apparently relevant.</p> <p>2. That a written statement of the facts of the homicide made by the defendant to the coroner’s jury is offered and introduced in evidence at the trial of the case affords no ground for reversible error, when the only incriminating fact in the statement is the act of shooting which had been admitted by the defendant to other witnesses and was never denied.</p> <p>3. An instruction requested by the defendant is properly refused which assumes that the defendant was assaulted by the deceased with a knife, a fact which was contested by the State.</p> <p>4. It was a question for the jury to determine whether a large pocket knife, which was introduced in evidence, was a weapon likely to produce death or great bodily harm.</p> <p>5. Where the general charge of the trial judge covered the law of self defense in such form as enabled the jury to apply the law to the facts of the case the refusal of the trial judge to give several other instructions upon self defense is not reversible error.</p>

<p>Appealed from the Circuit Court for Polk County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. Where a copy of a printed advertisement of a tax sale is filed with the clerk with proof of publication as required by the statute, the mere failure of the clerk to transcribe the advertisement in a record under section 558 of the General Statutes, does not in view of the facts in evidence render void the tax deed in this case.</p> <p>2. Where a deputy clerk who was connected with the department of the clerk’s office which arranges for the notices of tax deeds applied for, testifies that he did not remember giving the notice, but would not say he did not give the notice, such testimony alone does not overcome the prima facie effect of the tax deed under the statute.</p>

<p>1. In determining whether a regulation of the railroad commissioners is so unreasonable and arbitrary as to be illegal and unenforceable, the courts, in deference to the governmental functions conferred by law upon the commissioners, will not only require the prima facies of reasonableness impressed by the statute upon the regulation, to be overcome by admissions or proofs, but will require the admissions or proofs of unreasonableness to be clear and convincing, every reasonable doubt being yielded in favor of the regulation.</p> <p>2. Where it appears from any view of the evidence that a carrier will make at least some profit by the application of a rate prescribed by the railroad commissioners to a particular special service if it is voluntarily rendered by the carrier, the rate may be enforced.</p>

<p>Appealed from the Circuit Court for Pinellas County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Hillsborough County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court- for' Pinellas County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Appealed from the Circuit Court for Marion County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>1. Where in a criminal prosecution the sanity of the defendant is in issue, non-expert witnesses cannot express a general opinion as tíb sanity, nor can they give an opinion independent of the facts and circumstances within their own knowledge; but they can detail the facts known to them which show insanity, and thereupon express an opinion as to the sanity of the person whose mental condition is being investigated. The value of such testimony will depend largely upon the opportunities of the witnesses for correct observation of the appearances and conduct of the person whose mind is claimed -to be unsound, as well as the character of such appearances and conduct.</p> <p>2. Where in a prosecution for murder, the sanity of the defendant at the time of the commission of the alleged crime is a material issue, and non expert witnesses have testified as to facts known to them and as to their opinions as to the sanity of the defendant based on such facts, and charges are given to the jury that such evidence is admissible, “but at the same time you should bear in mind that such evidence 18§ merely for your enlightenment and consideration” and that “you are not bound even to believe the facts and circumstances as sworn to, but you may, if you think they are true; but as to the inferences and deductions and opinions drawn by the witness from the facts sworn to, that is a matter of their belief and opinion, and you are not bound thereby, but should draw your own deductions and conclusions and opinions from the facts and circumstances as related by the witnesses should you believe them,” such charges in the connection used in this case may fairly be regarded as bearing upon the probative force of the opinions testified to; and such charges conflict with the rule that “the value of such testimony will depend largely upon the opportunities of the witnesses for correct observation of the appearances and conduct of the person whose mind is claimed to be unsound, as well as the character of such appearances and conduct.”</p> <p>3. A charge that: “Moral depravity or moral insanity, so called, which results, not from any disease of the mind, but from a perverted condition of the moral system, where the person is mentally sane, does not exempt from responsibility for crime committed under its influence,” should not be given in a criminal prosecution where there is not evidence of “moral depravity or moral insanity,” or of a “depraved condition of the moral system” of the accused, and such language is not essential or appropriate to a definition of insanity as it is in issue in the case.</p> <p>4. The word “spontaneously” is not used in the definitions of reasonable doubt that have been approved by this court.</p> <p>5. Where material errors and inaccuracies in charges given are not cured by other charges given, and it does not appear from the whole record that the jury could not reasonably have been misled by such errors and inaccuracies, a judgment of conviction of murder in the first degree will be reversed.</p> <p>6. Where the insanity of the defendant is a real issue in a criminal prosecution, the court should charge the jury that if the defendant is acquitted on the ground of insanity, they should so state in the verdict in order that appropriate action may be taken by the court under section 3992 of the General Statutes of 1906.</p> <p>Shackleford and Cockrell, J. J., dissent.</p>

<p>Appealed from the Circuit Court for Marion County.</p> <p>The facts in the case are stated in the opinion of the court.</p>

<p>Writ of error to the Circuit Court for Pasco County.</p> <p>The facts of the case are stated in the opinion of the court.</p>

<p>3. Allegations of mere conclusions not warranted by facts alleged in a divorce proceeding may not be admitted by demurrer and do not state a cause of action.</p> <p>2. A decree of divorce obtained by a wife who separates from her husband for adequate cause and in good faith removes to another State with the intention of permanently residing there and becomes a bona, fide resident there, is valid as against the husband who remains in the State of his residence and is served only by publication, without any appearance by him in the State in which the decree is rendered.</p> <p>3. If the defendant in a divorce suit is not a resident of the State it is not necessary for the affidavit on which constructive service by irablication is based, to state that there is no person in the State upon whom service of process could be made that would bind the defendant.</p>

<p>Where at the time an assignment of a note and mortgage for $2,250.00 bearing a given date is taken, the public records showed that such mortgage was recorded with the date of the note and the date of the execution and acknowledgment of the mortgage left blank, and such records also showed that a mortgage for $2,500.00 had been executed on the same land on the same day to the same mortgagee, and also that a conveyance had been made of the land to the mortgagee who assumed the $2,500.00 mortgage as a part of the purchase price, and that such conveyance contained a warranty that the title was “free from any lien or incumbrance in law or equity except taxes,” such record being constructive notiee was sufficient to put the assignee upon inquiry, and as such inquiry would have developed the fact that the $2,500.00 mortgage was given in substitution for the $2,250.00 mortgage, the assignee cannot be regarded as a purchaser without notice of the $2,500.00 mortgage, under the registry statute. But mere constructive notice of such circumstances is not sufficient to amount to bad faith in taking an assignment of the negotiable note under the negotiable instrument statute.</p>

<p>1. Where there is no evidence of the formation or existence of a partnership as between two defendants, it is hot error to so charge the jury, when the. question of such a partnership is in issue.</p> <p>2. Where a partnership is not shown, it is not error to reject as primary evidence, a mercantile report relative to such a partnership, where it does not appear that the report is a correct statement of information obtained from or with the knowledge of the persons involved.</p> <p>3. Where the issues whether a defendant held himself out or permitted himself to he held out as a partner, and - whether the plaintiff had knowledge of such holding out, and was induced to extend credit on the faith of such holding out, were fairly submitted, and there is evidence to sustain the finding made, it will not be disturbed, no material errors of law or procedure appearing.</p>

<p>A husband without the wife’s consent has the right to establish the family domicile and it is her duty to live with him at his domicile if it is reasonably possible for her to do so. But if a husband by his own acts intentionally brings the cohabitation to an end, and by his own acts keeps it at an end for the statutory period, showing no evidence of a reasonable purpose to renew his marital relation, he is guilty of desertion and she is entitled to a divorce on that ground.</p>

<p>Appeal from an order of the Circuit Court for Hamilton County.</p>

<p>Writ of error to a judgment of the Circuit Court for Jackson County.</p>

<p>Appeal from a decree of the Circuit Court for DeSoto' County.</p>