(100 So.) Whatever may be the rule of liability of municipalities in Ohio as expressed in Aldrich v. City of Youngstown, 106 Ohio St. 342, 140 N. E. 164, 27 A. L. R. 1497; overruling Fowler, Adm'x, v. City of Cleveland, 100 Ohio St. 158, 126 N. E. 72, 9 A. L. R. 131, or in other jurisdictions, the rule in this state is that announced in the decisions of this court from City of Tallahassee v. Fortune, 3 Fla. 19, to Kaufman v. City of Tallahassee, 84 Fla. 634, 94 South. 697, and to Maxwell v. City of Miami, 100 South. 147, this day filed. In this case, as is stated in the Maxwell Case, the allegations of the declaration"state a course of conduct that the city should have remedied to avoid a nuisance that endangered the lives and property of persons lawfully using the streets; and liability of the city may result therefrom if duly established." See Martin v. Board of Fire Com'rs for City of New Orleans, 132 La. 188, 61 South. 197, 44 L. R. A. (N. S.) 68. No other points are presented. its constitution and by-laws. Held, that this was a complete defense and shifted the burden to plaintiffs, the beneficiaries, of showing by competent preponderating testimony that the insured was at the time of her death a member in good standing of the defendant society. Error to Circuit Court, Duval County; Daniel A. Simmons, Judge. Action by Nixon J. Smiley and others, by P. N. Strickland, their next friend, and another, against the National Council of the Knights and Ladies of Security. Judgment for plaintiffs, and defendant brings error. Reversed and remanded. Baker & Baker, of Jacksonville, for plaintiff in error. fendants in error. TERRELL, J. Nixon J. Smiley, Irene Morris, and Sam Morris, minors, by P. N. Strickland, their next friend, and Elizabeth Strickland, sued the National Council of the Knights and Ladies of Security in an action at law in Duval county. The former decision in this case (Kaufman v. City of Tallahassee, 84 Fla. 634, 94 South. Rep. 697) was predicated upon the prinThe declaration is in two counts; the first ciples of municipal liability that obtained in count in substance alleging that the Nationthis state, and not upon the opinion or the al Council of the Knights and Ladies of Sedecision in Fowler, Adm'x, v. City of Cleve-curity on the 11th day of September, A. D. land, 100 Ohio St. 158, 126 N. E. 72, 9 A. L. R. 131, cited in the Kaufman Case. Affirmed. WHITFIELD, P. J., and WEST and TERRELL, JJ., concur. TAYLOR, C. J., and ELLIS and BROWNE, JJ., concur in the opinion. NATIONAL COUNCIL OF THE KNIGHTS 1917, at Topeka, Kan., made and executed its certain instrument in writing, commonly called a policy of life insurance, and for a good, valuable, and sufficient consideration paid to it by Ruby Smiley, of Baldwin, Fla., delivered the same to said Ruby Smiley, thereby then and there agreeing to pay to the plaintiffs, in the event of the death of the said Ruby Smiley, the sum of $2,000, as per terms stated in the said policy attached to and made a part of the declaration as Exhibit A. It is further alleged that after the delivery of said policy, on October 15, A. D. 1918, in (Supreme Court of Florida. Feb. 14, 1924.) Charleston, S. C., the said Ruby Smiley de (Syllabus by the Court.) 1. Evidence 66-Constitution and by-laws of insured presumed known to policy holder. The constitution and by-laws adopted by a mutual benefit insurance company for its government are an important element of the contract in this case, and their terms presumed to have been known to a policy holder. 2. Insurance 750, 817(2)-Proof that insured suspended for nonpayment of dues is complete defense; proof held to shift burden to beneficiaries to show good standing. The beneficiaries under a mutual benefit in parted this life; that on the 25th day of November, A. D. 1919, the plaintiffs gave to defendant notice of the death of said Ruby Smiley; that on February 22, 1919, plaintiffs furnished to defendant proof of the death of the said Ruby Smiley; that the said Ruby Smiley during her lifetime kept, performed, and complied with all the terms, provisions, and conditions of the said policy; and that plaintiffs have at all times kept, performed, and complied with all the terms and provisions of the said policy required by them to be kept and performed. It is further alleged that by reason of the surance policy brought suit to recover the face foregoing facts defendant became liable to of the policy and damages. At the trial they the plaintiffs in the sum of $2,000, according introduced the policy and rested. The insurer offered its pleas, supported by testimony to the to the terms of said policy, with interest effect that at the time of death the insured thereon at 8 per cent. per annum from date had been suspended from membership in the of furnishing notice and proof of death; that, society for nonpayment of dues as required by although often requested by plaintiffs to pay For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the said sum as provided in said policy, defendant has wholly neglected and refused to pay the same, or any part thereof, to the damage of the plaintiffs in the sum of $4,500. The second count of the declaration is the same as the first count, except it alleges that plaintiffs are entitled to recover attorney's fees. To the foregoing declaration defendant interposed four amended pleas, which are in substance that defendant is a fraternal beneficiary society, organized and existing under the laws of Kansas and authorized to do business under the laws of Florida; that it has a representative form of government, with ritualistic work; that for mutual convenience its members are grouped together in lodges, called subordinate councils; that for government and control its members have adopted a constitution and by-laws; that by the constitution and by-laws so adopted the application for membership in its beneficiary | department by Ruby Smiley and the beneficiary certificate or policy attached to the declaration constitute the contract between the parties; that it is provided in the beneficiary certificate or policy as a condition precedent for any recovery that Ruby Smiley should have complied prior to her death with the constitution and laws of defendant required to be complied with by her, which she did not do, in that she did not pay the monthly assessments for the months of May, June, July, August, and September, 1918, to wit, the sum of $1.45 per month, as per terms, conditions, and penalties prescribed in laws 103, 104, and 112 of defendant, by reason of which the said Ruby Smiley in her lifetime was suspended, and forfeited all her rights under the said policy as provided in defendant's laws, section 112, the pertinent part | thereof being as follows: had in fact been suspended. It is further alleged that prior to execution of said certificate or policy Ruby Smiley filed application therefor, in which she agreed that, should she cease to be a member of the order, by suspension, expulsion, or otherwise, she would forfeit all claim to any funds of the defendant. The fourth amended plea alleged defendant's right to certain credits against the policy, which were recognized in the verdict and judgment. This plea need not, therefore, be further considered here. Issue was joined on the foregoing amended pleas, the case went to trial, and the jury returned a verdict for plaintiffs in the sum of $1,502, with interest at 8 per cent. per annum from February 22, 1919, together with an attorney's fee of $250. On this verdict judgment was entered, a new trial was denied, and defendant took writ of error from this court. There are ten assignments of error, and the case is well presented on both sides, briefs of counsel being very illuminating as to questions raised; but, on an analysis of the whole matter presented, we are persuaded that the sole question necessary for our determination is whether or not the evidence shows such a compliance with the terms of the contract on the part of Ruby Smiley entered into by her and the plaintiff in error as would entitle her beneficiaries, defendants in error, to recover. [1] The constitution and by-laws adopted by plaintiff in error for its government are an important element of the contract in this case, and their terms presumed to have been known to Ruby Smiley. Kennedy v. Grand Fraternity, 36 Mont. 325, 92 Pac. 971, 25 L. R. A. (N. S.) 78; Knights of Columbus v. Burrough's Beneficiary, 107 Va. 671, 60 S. E. 40, "Sec. 112. Members Suspended by Their Own 17 L. R. A. (N. S.) 246; Lehman v. Clark, 174 Act. The financier of each subordinate coun- Ill. 279, 51 N. E. 222, 43 L. R. A. 648; Gilcil shall keep a book wherein all regular and more v. Modern Brotherhood of America, 186 special assessments and dues received from Mo. App. 445, 171 S. W. 629; Day v. Supreme each member holding a valid certificate shall be Forest, Woodmen Circle, 174 Mo. App. 260, credited. Such entries shall be made showing the date when actually received by the finan-156 S. W. 721; Boyce v. Royal Circle, 99 Mo. cier. All assessments for every month shall App. 349, 73 S. W. 300; Modern Woodmen of become due and payable on the 1st day of the America v. Tevis, 117 Fed. 369, 54 C. C. A. month. The certificate of each member who has 293. not paid such assessment or assessments and dues on or before the last day of the month shall by the fact of such nonpayment, stand suspended without notice, and no act on the part of the council or any officer thereof, or of the National Council, shall be required as essential to such suspension, and all rights under said certificate shall be forfeited." It is further alleged in the amended pleas that the beneficiary certificate or policy provided that Ruby Smiley should be a member of defendant in good standing at the time of her death to entitle her beneficiaries to recover on same, and that, for reasons stated in laws 103, 104, and 112 herein, she was not in good standing at the time of her death, but At the trial plaintiffs introduced the insurance policy or beneficiary certificate and some testimony as to what would be a reasonable attorney fee, and rested. Defendant called Charles Lenz, who testified that he and Ruby Smiley were members of Baldwin Council, No. 3144, Knights and Ladies of Security, he being president and Ruby Smiley financier; that said Ruby Smiley had charge of the books and collected all dues for the local council; that Ruby Smiley left Baldwin, Fla., in April or May, 1918, and never returned; that the last meeting of the council was held about April, 1918; that the council disbanded after Mrs. Smiley's departure, and she had all the books of the council, (100 So.) and was the only one that ever collected, who was temporarily in the office, and at a dues; that he had never had the books of the time when help was hard to get. council, and did not know where they were; that he heard of Mrs. Smiley's marriage and death; that no one collected dues but her; that the council was disbanded and no meeting was held after Mrs. Smiley left. [2] The pleas supported by the testimony of Lenz and Abrahams set up a complete defense to the declaration, and placed the burden on plaintiffs below of refuting the evidence of Lenz and Abrahams, and showing by competent or preponderating testimony that Ruby Smiley was at the time of her death a member in good standing of Baldwin Council, Knights and Ladies of Security, No. vided, been transferred to some other subordinate council in which she was a member in good standing at her death. Siebert v. Supreme Council of the Order of Chosen Friends, 23 Mo. App. 268; Sovereign Camp, W. Q. W., v. Eastis, 206 Ala. 49, 89 South. 63. Under by-law 112 of defendant below, supported by the defense herein referred to, Ruby Smiley was automatically suspended from Baldwin Council, Knights and Ladies of Security, in May, 1918, and was not reinstated or transferred to any other council. The testimony submitted by plaintiffs does not refute this defense. The refusal to grant a new trial was therefore erroneous. J. V. Abrahams, National Secretary of the defendant, by deposition outlined in detail the system of bookkeeping employed by it to keep check on the standing of the individual members of its subordinate councils. He fur-3144, or had, as the by-laws of defendant prother testified that he had charge of the books and records of the defendant, which was a fraternal benefit association doing business on the lodge plan, with ritualistic form of work, incorporated not for profit under the laws of Kansas, and authorized to do business under the laws of Florida. He further testified that Baldwin Council voluntarily went out of existence in May, 1918, when it had dwindled to seven members; that the financier (Ruby Smiley) did not send in any further reports for any payments on account of any members after the month of April, 1918, and the council became suspended under the laws of the society; that Ruby Smiley was financier of Baldwin Council, No. 3144, throughout its entire existence; that she made monthly reports as required by the bylaws each month the council was in existence, and that the last report received from her, shortly after the month of April, was the report for collections for April, 1918; and that there was no record in his office of any payment ever having been made for or on account of Ruby Smiley after the payment which was made on her account for the month of April, 1918, and shown in last report which the society received from hersaid report showing that she was remitting for herself for the said month of April, 1918. The judgment is reversed, and the cause remanded. WHITFIELD, P. J., and WEST, J., con cur. TAYLOR, C. J., and ELLIS and BROWNE, JJ., concur in the opinion. No testimony was offered by plaintiffs to contradict that of Lenz and Abrahams, ex-1. cept a letter, dated November 25, 1918, addressed to Mrs. E. B. Strickland, one of the plaintiffs, and bearing the signature of "J. V. Abrahams, National Secretary," the first paragraph of which letter was as follows: "Your letter of the 18th inst., notifying me of a death in your council, came to hand, and herewith inclosed find death proof blanks to be used in making claim on account of the death of Sister Smiley, as according to our records her certificate was in good standing at the time of her death." This letter contains further instructions with reference to making out death proofs, which is not necessary to be adverted to in this connection. J. V. Abrahams explained by deposition that the foregoing letter was a form letter usually sent out in case of persons asking for blanks; that it was not set by him personally, but was sent by an inexperienced clerk, FRAZIER v. STATE. (Supreme Court of Florida, Division A. March 10, 1924.) (Syllabus by the Court.) Statutes 118(1)-Statute denouncing voluntary drunkenness and section providing punishment therefor held void. Section 8 of chapter 7736, Acts 1918, providing, "That it shall be unlawful for any person to become or be drunk or intoxicated," and so much of section 18 of the same chapter as provides punishment for violating section 8 are void. 2. Drunkards-Circuit court has no jurisdiction of prosecution for voluntary drunkenness. The circuit court has no jurisdiction of the offense denounced by section 3549 of the General Statutes, providing punishment for whoever shall be guilty of drunkenness by the voluntary use of intoxicating liquors. Error to Circuit Court, Walton County; A. G. Campbell, Judge. D. A. Frazier was convicted of becoming drunk by the voluntary use of intoxicating liquors, and brings error. Reversed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Kehoe & Adams, of Pensacola, for plaintiff, ment not exceeding three months; but no prosin error. ecution shall be commenced after six months Rivers Buford, Atty. Gen., and J. B. Gaines, from the commission of the offense." Asst. Atty. Gen., for the State. [2] The circuit court therefore had no jurisdiction of the offense with which the acELLIS, J. The plaintiff in error was in-cused was charged. See sections 17-22, art. dicted in January, 1921, for becoming “drunk 5, Constitution; sections 3842, 3898, 3903, by the voluntary use of intoxicating liquor," General Statutes. after having been convicted once before of being drunk. The offense was alleged to have been committed on January 12, 1921. The indictment was filed three days later. The accused was tried upon a plea of not guilty, and a verdict was rendered against him. Sentence was suspended by the court upon condition that the accused remain "strictly sober," and at each term of the court should produce a written statement from six of the neighbors of the accused and the It follows that the trial, verdict, judgment, and sentence in this case were void. So the judgment is reversed. TAYLOR, C. J., and BROWNE, J., concur. RELL, JJ., concur in the opinion. MULLER & AUERBACK v. COWART. sheriff that the accused had been sober, and, (Supreme Court of Florida. Feb. 14, 1924. if he should be found drunk at any time, he was to be brought before the court, and sentence should be imposed upon him. The case remained on the trial docket, and was called each term thereafter, and the accused was "permitted to go under the former order of the court," until September 18, 1923, when the court sentenced the accused to hard labor in the state prison for a period of fif teen months. Rehearing Denied April 21, 1924.) (Syllabus by the Court.) Appeal and error 1123-Judgment affirmed when appellate court equally divided. Where the members of the appellate court are equally divided in opinion as to whether a judgment on writ of error should be reversed or affirmed, and there is no prospect of a change of judicial opinion, the judgment should be affirmed, so that the litigation may not be unduly prolonged. En Banc. Error to Circuit Court, Duval County; Daniel A. Simmons, Judge. [1] On June 20, 1921, this court, in the case of Albritton v. State, 82 Fla. 20, 89 South. 360, held that section 8 and so much of section 18 of chapter 7736, Acts 1918, as provided punishment for violating section 8, under which the indictment in the case at Proceeding between Muller & Auerback, a bar was framed, and the accused tried and corporation, and J. N. Cowart. Judgment convicted, were void, because the subjectmatter of the sections was not germane to, for the latter, and the former brings error. nor properly connected with, the subject expressed in the title of the act. The Revised General Statutes went into effect February 6, 1921; section 5472 of which provides that it shall be "unlawful for any person to become or be drunk or intoxicated," and section 5486 provides for the imposition of a penalty for a second offense of not exceeding $3,000 or imprisonment in the state prison not exceeding three years, or by both such fine, and imprisonment. But the accused in this case committed the offense of drunkenness, as alleged, on the 12th day of January 1921, before the Revised General Statutes went into effect. The only valid provision of the law against drunkenness, whether as a first or second offense, on the date upon which the accused was alleged to have committed it, was contained in section 3549, General Statutes, which is as follows: "Punishment.-Whoever is guilty of drunkenness by the voluntary use of intoxicating liquors shall for the first offense be punished by fine not exceeding five dollars, and for any like offense committed after the first conviction by fine not exceeding ten dollars, or by imprison Affirmed. John E. & Julian Hartridge, of Jacksonville, for plaintiff in error. A. H. & Roswell King, of Jacksonville, for defendant in error. PER CURIAM. In this case the CHIEF JUSTICE, Mr. Justice ELLIS, and Mr. Jus- An order will be entered affirming the judgment herein. All concur. (100 So.) THEO. HIRSCH CO. et al. v. SCOTT. (Supreme Court of Florida, Division B. April 4, 1924.) (Syllabus by the Court.) 1. Appeal and error 68-"Interlocutory orders or decrees" defined. Interlocutory orders or decrees are such as are given in the middle of a cause, upon some plea, proceeding, or default which is only intermediate, and does not finally determine or complete the suit. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Interlocutory Order.] 2. Appeal and error 82(1)—Matters arising after final appealable judgments or decrees requiring judicial action relative to rights litigated in main suit appealable. An appeal may be taken upon matters arising after a final appealable judgment or decree which require the judicial action of the court in relation to the rights litigated in the main suit making necessary a substantive and important order or decree, and such order or decree partakes of the nature of a final decision of those rights. 3. Appeal and error 82(I)-Subsequent decree requiring judicial action on matters arising after final decree reviewable. After a final decree adjudicating the rights between the parties to the suit and the principal subject of litigation, a subsequent decree, disposing of other matters arising after the final decree which required judicial action, may be reviewed on appeal. 4. Appeal and error 82(I)-Order in original proceeding collateral to main action appealable; "final order." Where a proceeding in an original action is a distinct proceeding in itself, and collateral to the main action, an order made in reference to that proceeding is a final one as to that matter that may be appealed from. [Ed. Note.-For other definitions, see Words peal from an order fixing his compensation as 7. Appeal and error 143, 329-Parties Persons incidentally interested in some branch of a cause are allowed to intervene for the purpose of protecting their interests, and may appeal or be brought into court on appeal, when a final decision of their right or claim has been made by the court below. Appeal from Circuit Court, Dade County; Mitchell D. Price, Judge. Suit by the Theo. Hirsch Company and another against the McDonald Furniture Com. pany, in which Paul R. Scott was appointed receiver. From a decree for defendant, plaintiffs appeal. On motion to dismiss appeal. Motion denied. all of Miami, for appellants. Robert H. Anderson, of Jacksonville, and BROWNE, J. This is a motion by Paul R. Scott, receiver for the McDonald Furniture Company, to dismiss an appeal entered by the Theo. Hirsch Company and the McDonald Furniture Company, jointly and severally, from certain orders and decrees, that will be stated hereafter. The Theo. Hirsch Company brought a bill in equity against the McDonald Furniture Company for accounting, for the appointment of receiver, and an injunction. Paul R. Scott was appointed receiver, and took over the control and management of the property. On March 28, 1923, a consent decree was and Phrases, First and Second Series, Final entered adjudicating the rights of the parOrder.] 5. Appeal and error 150(1)-Debtor in receivership has appealable interest in order diverting proceeds of his property to purposes other than extinguishment of his debt. In a receivership matter the debtor who is a party to the main suit has an interest in seeing that the proceeds of his property are properly applied to the extinguishment of his debt as far as possible, and any amount taken from the assets, which should be distributed among his creditors, prevents the reduction of his indebtedness to that extent, and he has an interest in the conservation and distribution of the assets which gives him an appealable interest in orders or decrees that divert these assets to other purposes, ties to the suit, but giving the complainant "leave to file with the receiver his proof of any additional claim he may have against said defendant," and ordering the receiver to make distribution of the assets of the estate, and to liquidate, settle, and wind up the affairs of the estate, "making to the court, from time to time, reports of his acts and doings in the premises under the final decree." On the 2d of May, after due notice, a petition was filed, by the receiver, Paul R. Scott, asking the circuit judge to fix the amount of compensation to be allowed him and his attorney. On May 14th, before the hearing of this petition, there was filed a suggestion of the disqualification of Judge H. F. Atkinson under the provisions of section 2674, Revised General Statutes 1920, and the receiver on A receiver, although not a party to the the same day gave notice of his intention to original suit, may be made a party to an ap-call up his petition before Hon. E. C. Davis, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 6. Appeal and error 327 (4)-Receiver may be made sole appellee in appeal from order fixing his compensation. |