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evidence of what the law is. In the statute RROR to the Circuit Court for Duval as amended in 1818 reference is made to County to review a judgment in defend. the parties in a way to indicate an intenant's favor in an action brought to recover tion to punish the male particeps equally damages for the death of plaintiff's intes. with the woman; besides, although ever tate, alleged to have been caused by desince 1797 a single man has been deemed fendant's negligence. Reversed. guilty under the so-called "blanket act," and since 1818 a single woman having sex- Statement by Whitfield, J.: ual intercourse with a married man has The declaration herein is as follows: been deemed guilty of adultery, a single "Louise McKinney, as administratrix of man having sexual intercourse with a mar- the estate of Mary E. Proctor, deceased, ried woman has been outside the pale of plaintiff, by her attorneys, in this the first the law, unless the legislature intended count of her second amended declaration, that both parties to the act should be sues W. H. Adams, defendant, for that hereequally guilty of adultery. Taken togeth-tofore, on, to wit, July 7, A. D. 1912, the er, these facts make it doubly certain that said defendant was operating and maintainunder the statute in question marriage on ing a certain public bath house and bathing the part of the man is wholly immaterial. pavilion where bathing suits were furnished Our conclusion is that the county court for hire or rent, at Pablo Beach, a seaside did not err in overruling the respondent's resort in the state of Florida, situated in motion in arrest of judgment.

the county of Duval and state of Florida; Judgment that there is no error in the that the defendant had exclusive control proceedings, and that the respondent take and management of said bath house and nothing by his exception. Let execution be bathing pavilion; that said bath house and done

bathing pavilion was situated at or near the waters of the Atlantic ocean at said

Pablo Beach; that said defendant extended FLORIDA SUPREME COURT.

an invitation to the public to rent from

him bathing suits, and to avail themselves LOUISE MCKINNEY, Admrx. etc., of Mary of the dressing room and kindred facilities E. Proctor, Deceased, Plff, in Err., of the defendant at said pavilion; that the

waters of the Atlantic ocean, situated diW. H. ADAMS.

rectly in front of said pavilion and bath

house, and extending up and down the (- Fla. 66 So. 988.)

beach for a space of a few hundred feet on Bathing resort absence of life lines of said bath house and pavilion, were the

either side of said point directly in front liability.

Under the laws of this state an action facilities for bathing which the defendant may be maintained against a person who offered to the patrons of his bath house and operates or maintains a bath house where bathing pavilion; that said defendant, by bathing suits are furnished for hire, at the renting said bathing suits, invited such seaside resorts in the state, for negligence members of the public as rented bathing in failing to maintain proper and safe lines ! suits from him, to avail themselves of the and life rafts for the protection of his pa- | facilities aforementioned for bathing, and trons, when the patrons, who are not guilty to bathe in the waters of the Atlantic ocean of contributory negligence, are injured as a proximate result of the negligence of such in front of and adjacent to the said pavilion operator or his agents.

as aforesaid; that said waters aforesaid

were the waters customarily used by the (Hocker, J., dissents.)

patrons of said bath house, which the de

fendant well knew; that on, to wit, July 7, (November 6, 1914.)

A. D. 1912, one Mary E. Proctor did rent

from the said defendant a bathing suit for Headnote by WHITFIELD, J.

valuable consideration in that behalf; Note. As to the duty and liability of that it was the intention of the said Mary proprietor of bathing resort, see notes to E. Proctor, which the defendant then and Larkin v. Saltair Beach Co. 3 L.R.A.(N.S.) | there well knew, then and there to bathe 982; Higgins v. Franklin County Agri. Soc. in the waters of the Atlantic ocean adja3 L.R.A. (N.S.) 1132; Greene v. Seattle cent to which the defendant's said bath Athletic Club, 32 L.R.A. (N.S.) 713; Tur- house and bathing pavilion was located, and lington v. Tampa Electric Co. 38 L.R.A. which waters constituted the facilities for (N.S.) 72; and Wodnik v. Luna Park Amusement Co. 42 L.R.A. (N.S.) 1070, 1073. / bathing offered to defendant's patrons as

Generally, as to liability of proprietor of | aforesaid; that thereupon the said Mary place of amusement, see Index to L.R.A. E. Proctor did bathe in said Atlantic occan Notes, under title “Amusements."

adjacent to said bath house and bathing

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pavilion; that while so bathing the said to the said pavilion as aforesaid ; that said Mary E. Proctor remained within the limit waters aforesaid were the waters customaof the waters of said Atlantic ocean, which rily used by the patrons of said bath house, constituted defendant's facilities for bath which the defendant well knew; that on, to ing as aforesaid; that the defendant negli- wit, July 7, A. D. 1912, one Mary E. Proctor gently and carelessly failed to provide and did rent from said defendant a bathing suit maintain proper and safe lines and life for a valuable consideration in that behalf; rafts for the protection of its patrons, that it was the intention of the said Mary bathers at the said seaside resort, contrary E. Proctor, which the defendant then and to the statutes of the state of Florida in there well knew, then and there to bathe in such cases made and provided; that by rea- the waters of the Atlantic ocean adjacent son thereof, and by reason of the careless-to which the defendant's said bath house ness and negligence of the defendant, the and bathing pavilion was located, and which said Mary E. Proctor was then and there waters constituted the facilities for bathdrowned in the waters of the Atlantic ocean ing offered to defendant's patrons as aforenear the bath house and bathing pavilion said; that thereupon the said Mary E. of the defendant, and while within the Proctor did bathe in said Atlantic ocean waters of the Atlantic ocean in which the adjacent to said bath house and pavilion; defendant invited patrons to bathe; that that while so bathing the said Mary E. the said Mary E. Proctor died leaving Proctor remained within the limit of the neither husband nor minor child or children, waters of said Atlantic ocean which constinor any person or persons dependent upon tuted defendant's facilities as aforesaid; her, the said Mary E. Proctor, for support; that the defendant negligently and carethat the said Louise McKinney, plaintiff, lessly failed to provide suitable and proper was heretofore, on, to wit, the 17th day of persons to superintend and watch over bathJuly, 1912, duly appointed as administra- ing in the waters customarily used by the trix of the estate of Mary E. Proctor. patrons of said bath house, and in which

"Wherefore, the plaintiff brings this her waters deceased was bathing, and to watch suit and claims $50,000 damages.

over and superintend its (defendant's) pa"(2) And the plaintiff by her attorneys trons who were bathing in such waters; in this the second count of her second that by reason thereof, and by reason of amended declaration, sues W. H. Adams, de- | the carelessness and negligence of the defendant, for that heretofore, on, to wit, fendant, the said Mary E. Proctor was then July 7, a. D. 1912, the said defendant was and there drowned in the waters of the Atoperating and maintaining a certain public lantic ocean near the bath house and bathbath house and bathing pavilion where bath. ing pavilion of the defendant, and while ing suits were furnished for hire or rent within the waters of the Atlantic ocean, in at Pablo Beach, a seaside resort in the state which the defendant invited its patrons to of Florida, situated in the county of Duval bathe; that the said Mary E. Proctor died and state of Florida; that the defendant leaving neither husband nor minor child or had exclusive control and management of children nor any person or persons dependsaid bath house and bathing pavilion; that ent upon her, the said Mary E. Proctor, for said bath house and bathing pavilion was support; that the said Louise McKinney, situated at or near the waters of the At- plaintiff, was heretofore, on, to wit, the lantic ocean at said Pablo Beach; that said 17th day of July, 1912, duly appointed as defendant extended an invitation to the administratrix of the estate of Mary E. public to rent from him bathing suits, and Proctor. to avail themselves of the dressing rooms "Wherefore the plaintiff brings this her and kindred facilities of the defendant at suit, and claims $50,000 damages. said pavilion; that the waters of the Atlan- “(3) And the plaintiff by her attorneys, tie ocean situated directly in front of said in this the third count of her second pavilion and bath house, and extending up amended declaration, sues W. H. Adams, and down the beach for a space of a few defendant, for that heretofore, on, to wit, hundred feet on either side of said point July 7, A, D. 1912, the said defendant was directly in front of said bath house and operating and maintaining a certain public pavilion, were the facilities for bathing bath house and bathing pavilion where bathwhich the defendant offered to the patrons ing suits were furnished for hire or rent at of his bath house and bathing pavilion; Pablo Beach, a seaside resort in the state that said defendant, by renting said bathing of Florida, situated in the county of Duval suits, invited such members of the public as and state of Florida; that the defendant rented bathing suits from him to avail had exclusive control and management of themselves of the facilities aforementioned / said bath house and bathing pavilion; that for bathing, and to bathe in the waters of said bath house and bathing pavilion was the Atlantic ocean in front of and adjacent 'situated at or near the waters of the At

a

lantic ocean at said. Pablo Beach; that said plaintiff, was heretofore, on, to wit, the defendant extended an invitation to the 17th day of July, 1912, duly appointed adpublic to rent from him bathing suits, and ministratrix of the estate of Mary E. Procto avail themselves of the dressing room tor. and kindred facilities of the defendant at "Wherefore the plaintiff brings this her said pavilion; that the waters of the Atlan- suit and claims $50,000 damages. tic ocean situated directly in front of said "(4) And the plaintiff by her attorneys, pavilion and bath house, and extending up in this the fourth count of her second and down the beach for a space of a few amended declaration, sues W. H. Adams, hundred feet on either side of said point defendant, for that heretofore, on, to wit, directly in front of said bath house and pa- July 7, A. D. 1912, the said defendant was vilion, were the facilities for bathing which operating and maintaining a certain public the defendant offered to the patrons of his | bath house and bathing pavilion where bath house and pavilion; that said defend bathing suits were furnished for hire or rent ant, by renting said bathing suits, invited at Pablo Beach, a seaside resort in the state such members of the public as rented bath of Florida, situated in the county of Duval ing suits from him to avail themselves of and state of Florida; that the defendant the facilities aforementioned for bathing, had exclusive control and management of and to bathe in the waters of the Atlantic said bath house and bathing pavilion at or ocean in front of and adjacent to the said near the waters of the Atlantic ocean at pa vilion as aforesaid; that said waters said Pablo Beach; that said defendant exaforesaid were the waters customarily used | tended an invitation to the public to rent by the patrons of said bath house, which the from him bathing suits, and to avail themdefendant well knew; that on, to wit, July selves of the dressing room and kindred fa7, A. D. 1912, one Mary E. Proctor did rent cilities of the defendant at said pavilion; from the said defendant a bathing suit for that the waters of the Atlantic ocean sit

valuable consideration in that behalf, uated directly in front of said pavilion and that it was the intention of the said Mary bath house, and extending up and down the E. Proctor, which the defendant then and beach for a space of a few hundred feet on there well knew, then and there to bathe either side of said point directly in front in the waters of the Atlantic ocean adja- of said bath house and pavilion, were the cent to which the defendant's said bath | facilities for bathing which the defendant house and bathing pavilion was located, and offered to the patrons of his bath house and which waters constituted the facilities for bathing pavilion; that said defendant, by bathing offered to defendant's patrons as renting said bathing suits, invited such aforesaid; that thereupon the said Mary E. members of the public as rented bathing Proctor did bathe in said Atlantic ocean suits from him to avail themselves of the adjacent to said bath house and bathing pa- facilities aforementioned for bathing, and vilion; that while so bathing the said Mary to bathe in the waters of the Atlantic ocean E. Proctor remained within the limits of in front of and adjacent to the said pavil. the waters of said Atlantic ocean which ion as aforesaid ; that said waters aforesaid constituted defendant's facilities for bath were the waters customarily used by the ing as aforesaid; that the defendant negli- patrons of said bath house, which the degently and carelessly failed to provide fendant well knew; that on, to wit, July proper persons or appliances to rescue his 7, A. D. 1912, one Mary E. Proctor did rent patrons in the said waters customarily used from the said defendant a bathing suit for by his said patrons, which constituted the a valuable consideration in that behalf; facilities for bathing offered to such patrons that it was the intention of the said Mary by the defendant, and in which waters de- E. Proctor, which the defendant then and ceased was bathing, when such patrons were there well knew, then and there to bathe in or might have been in danger of drowning; the waters of the Atlantic ocean adjacent that by reason thereof, and by reason of to which the defendant's said bath house the carelessness and negligence of the de- and bathing pavilion was located, and which fendant, the said Mary E. Proctor was then waters constituted the facilities for bathing and there drowned in the waters of the At- offered to defendant's patrons as aforesaid; lantic ocean near the bath house and bath that thereupon the said Mary E. Proctor ing pavilion of the defendant, and while did bathe in said Atlantic ocean adjacent to within the waters of the Atlantic ocean in said bath house and bathing pavilion; that which the defendant invited its patrons to while so bathing the said Mary E. Proctor bathe; that the said Mary E. Proctor died remained within the limit of the waters of leaving neither husband nor minor child or said Atlantic ocean which constituted dechildren, nor any person or persons depend - fendant's facilities for bathing as aforesaid; ent upon her, the said Mary E. Proctor, for that the defendant negligently and caresupport; that the said Louise McKinney,' lessly failed to provide a proper person or persons, and to have such person or per. | fendant to provide the alleged lines, persons present on behalf of said defendant to sons, appliances, rafts, or other safeguards, search for and recover any of the patrons as alleged in the second amended declaraof said bath house, when such patrons were tion. bathing in the waters customarily used by "(7) The duty, if any, to provide such said patrons, and which constituted the safeguards or persons to guard or rescue facilities for bathing offered said patrons bathers in the Atlantic ocean is a public by the defendant, in which waters deceased duty, if any such duty exists, incumbent was bathing, when such persons were or upon the state or municipality, but not upmight have been in danger of drowning; on private individuals. that by reason thereof, and by reason of “(8) The deceased, attempting to bathe the carelessness and negligence of the de- in the Atlantic ocean, took the risk of any fendant, the said Mary E. Proctor was then damages in so doing, and there is no obli. and there drowned in the waters of the At- gation or duty upon any person or public lantic ocean near the bath house and bath- authority to provide safeguards for such ing pavilion of the defendant, and while bathers in such ocean. within the waters of the Atlantic ocean in “(9) That the second amended declarawhich the defendant invited its patrons to tion, and each count thereof, fails entirely bathe; that the said Mary E. Proctor died to show or set forth that the deceased or leaving neither husband nor minor child or the public were invited by the defendant children, nor any person or persons depend to bathe in the Atlantic ocean, or that the ent upon her, the said Mary E. Proctor, for defendant had any such proprietorship over support; that the said Louise McKinney, the Atlantic ocean as that he could or did plaintiff, was heretofore, on, to wit, the invite bathers to bathe therein as to be17th day of July, 1912, duly appointed as come responsible for any danger to such administratrix of the estate of Mary E. bathers from bathing in said ocean. Proctor.

"(10) That persons bathing in the Atlan"Wherefore the plaintiff brings this her tic ocean are not the guests of the defend. suit and claims $50,000 damages.”

ant, or under any protection of the defend. To this declaration the following demur- ant, or licensees of the defendant, but rer was filed:

voluntarily bathe in the said ocean and

take all risks therefrom. “(1) The allegations of the second

“(11) That neither of the said counts al. amended declaration show that the administratrix, as such, has no right of action in which the plaintiff, as

lege or set forth any facts, by reason of

an administratrix, this cause. “(2) The second amended declaration account of the said alleged death of the

has any interest in or right of action on does not state any facts or circumstances said Mary E. Proctor. or conditions that authorize an administra.

(12) That the said counts and each of trix to maintain the action.

them fail to allege or state any facts show“(3) Each count of the second amended ing that any estate of Mary E. Proctor declaration shows and sets forth that the would be added to or increased by reasons deceased intended to bathe and was at of the said alleged facts set forth in said tempting to bathe in the Atlantic ocean, counts of said second amended declaration. and the Atlantic ocean is in no sense a “(13) That the waters of the Atlantic bathing place or resort operated or ocean were in no sense the premises of or trolled by defendant.

property of the defendant, and were not un“(4) The facts stated in the second der his control, and were not, as a matter amended declaration show and establish of law, facilities which the defendant did. that the defendant could not and would not or could provide to the deceased for bathing invite the deceased to bathe in any bathing purposes. resort controlled by defendant, and defendant “(14) That each count of said second is in no wise responsible for any alleged amended declaration fails to allege or show lack of facilities for bathing in the Atlantic that the house of the defendant described ocean, as mentioned in the second amended as a pavilion and bath house were in the declaration.

Atlantic ocean, or immediately next to the “(5) The defendant, a private individual waters of the Atlantic ocean, but allege renting bathing suits, is not required to that same extended up and down the beach, provide protection or safeguards for bathers and not in the waters of the ocean. in the Atlantic ocean, as described in the "As to first count: second amended declaration.

"In addition to the foregoing above-men"(6) The mere renting of a bathing suit tioned grounds as to each of the counts of to deceased, as mentioned in said amended the second amended declaration, defendant declaration, is not sufficient to create any states the following as to the first count: obligation or duty on the part of the de- “(1) Said count does not allege or set

con

forth that at the time of the alleged renting the beach, and not in the waters of the of said bathing suit by the said Mary E. ocean. Proctor the defendant owned or operated "As to second count: any private bathing place where the de- “(1) As to the second count' defendant ceased, Mary E. Proctor, at that time, in- repeats each of the grounds hereinabove tended to bathe, or did bathe.

mentioned, and in addition the following: “(2) Said count does not allege or set "That there is no duty or obligation, forth that the deceased paid a consideration statutory or otherwise, upon the defendant for any right to bathe in the waters of the to provide a suitable person or persons to Atlantic ocean at said resort, but only al. superintend bathing in the waters of the leges that she hired from defendant a cer- Atlantic ocean. tain bathing suit.

“(2) The said count does not show or "(3) That there is no valid and constitu- set forth that the waters where deceased tional statute of the state of Florida that was bathing were the property of or conrequired defenılant to maintain life lines trolled by or in the possession of the deor life rafts for the protection of bathers or fendant. of deceased attempting to bathe in the At- “(3) That said counts show no duty or lantic ocean.

obligation of the defendant to the deceased “(4) That the said statute referred to at the time of said alleged drowning of in said first count is in violation of the deceased. Constitution of the state of Florida and “(4) That the waters of the Atlantic of the Constitution of the United States, ocean were in no sense the premises of or in attempting to interfere with and restrict property of the defendant, and were not legitimate business, and deprives the per- under his control, and were not, as a matson engaged in the business of renting suits ter of law, facilities which the defendant of his property without due process of law, did or could provide to the deceased for and is a taking of such property without bathing purposes. due compensation.

“(5) That said count fails to allege or (5) The said statute is unconstitutional show that the house of the defendant dein that it undertakes to put a burden or scribed as a pavilion or bath house was in tax upon said business therein mentioned the Atlantic ocean or immediately next to not authorized by the Constitution of Flor- the waters of the Atlantic ocean, but alida.

leges that same extended up and down the “(6) That said statute of Florida re- beach, and not in the waters of the ocean. ferred to in said count does not provide or “As to third count: give private individuals any right of action, "As to the third count defendant reor provide any penalty to be paid to pripeats each of the grounds hereinbefore menvate individuals for failure to comply there. tioned, and in addition the following: with.

"(1) That there was no legal duty up(7) That said statute referred to is in on the defendant to provide persons or apviolation of the Constitution of the state of pliances to rescue persons bathing in the Florida, in that it undertakes to compel said waters of the Atlantic ocean, as al. persons renting bathing suits to perform leged in said count. certain public duties, to wit, to provide "(2) That said count states a conclusion safeguards to bathers.

in said allegation, to wit, that the defend“(8) That the said statute has no ap ant did not provide persons or appliances to plication to, and does not relate to, persons rescue persons bathing in the waters cuswho themselves and of their own accord tomarily used by patrons of said bathing undertake to bathe in public waters, to wit, house. in the Atlantic ocean.

"(3) That the said count does not show “(9) That the waters of the Atlantic or set forth that the waters in which deocean were in no sense the premises or prop

ceased was bathing were owned, possessed, erty of the defendant, and were not under show that they were public waters of the

or controlled by the defendant, but does his control, and were not, as matter of law,

Atlantic ocean, not under the control of facilities which the defendant did or could

the defendant. provide to the deceased for bathing pur.

“(4) That said count shows no duty or poses.

obligation of the defendant to the deceased * (10) That the said count fails to al. at the time of such alleged drowning of delege or show that the house of the defend ceased. ant described as a pavilion and bath house “(5) That the waters of the Atlantic was in the Atlantic ocean or immediately ocean were in no sense the premises of or next to the waters of the Atlantic ocean, property of the defendant, and were not but alleges that same extended up and down under his control, and were not, as a mat

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