lands at an expense of $1,500; that O'Hara | your orator and Talbot, and of the terms had notice thereof; that subsequently, in thereof, and had notice, also of your oraNovember, 1909, Massengale became suspi- tor's fulfillment of all of his (your orator's) cious of Talbot, and then explained to obligations and undertakings therein and O'Hara at length and in detail his trans- thereunder. actions with Talbot and the acts of Massengale connected therewith, particularly his advertising of said lands, and the cost thereof, borne by himself, and stated and explained to O'Hara his fears that he thought the conduct of Talbot "not only would fail to make his proper profits out of said land sale enterprise, but would lose entirely the money already paid out in advertising said lands"; that Massengale then and there stated to O'Hara that he contemplated stopping and discontinuing said advertising, and refused to go to further expense therein because of his said fears that he would be subjected to loss by or through the conduct of Talbot, and that if so damaged he would be remediless; that said O'Hara then and there requested Massengale "not to abandon and discontinue said advertising, but to continue same, and said O'Hara promised, in consideration of your orator's undertaking to continue said advertising, vigilantly to watch over the interest of your orator, and, as far as was in his (O'Hara's) power, to prevent said Talbot from defrauding your orator or defeating the rights of your orator in said option held by him (said Talbot) by any act or acts of him (the said Talbot); that said O'Hara | your orator had contracted with said Talhad a substantial reason to hope that benefits and profits would the more certainly accrue to him by reason of your orator's continuing said advertising as he (said O'Hara) requested and urged. "(9) Said Talbot, in and under his said option from said O'Hara, had the exclusive right and option to buy or sell the entire tract of the Kalamazoo farm lands, fortysix hundred (4,600) acres, as aforesaid, and, your orator having contracted with said Talbot only in respect to four thousand (4,000) acres of said lands, this left the said Talbot an option on six hundred (600) acres of said lands in which your orator was not interested and had no rights. Said Talbot, on days and dates unknown to your orator, sold or contracted to sell to some person or persons unknown to your orator a portion of the said six hundred (600) acres, to wit, two hundred (200) acres of said lands. As said Talbot never made any report to your orator of said sales, your orator infers that he (the said Talbot) never deemed said sales to have been made out of that portion of the entire tract with respect to which your orator had contracted. The said sales by said Talbot left a total of forty-four hundred (4,400) acres of said lands unsold, all of which was covered by the said option granted by said O'Hara to said Talbot and included the four thousand (4,000) acres with respect to which bot, and in the said option to buy or sell which your orator had acquired an interest and equity. "(10) Your orator avers further that, subsequently to the said sale or sales of two "(8) And your orator having great faith hundred (200) acres by said Talbot, and In the reputation of said O'Hara for integ-subsequently to the execution of your orarity and business probity and respectability, tor's said second contract with Talbot, and in consideration of the promises made but prior to the 15th day of March, A. D. by said O'Hara vigilantly to watch over 1910, the said O'Hara induced said Talbot the interests of your orator, as aforesaid, to release and assign to him the said option entered into and signed a second written to buy or sell the remaining forty-four agreement with said Talbot, * said hundred (4,400) acres of said lands. Your second agreement being dated the 9th day orator is informed and believes that the of December, A. D. 1909, and providing that consideration for said release was five hunyour orator was to spend at least two hundred ($500) dollars in money, paid by said dred and fifty ($250) dollars net in further advertising four thousand (4,000) acres of said lands, and that your orator was to have one-half of the proceeds of all sales of said lands, or parts thereof, over and above five ($5) dollars an acre, whether such sales should be made by reason of said advertising or otherwise; and your orator avers that he executed promptly and fully all his undertakings made in the said second contract with the said Talbot by further advertising said lands as provided in said contract and in the manner. hereinbefore described, which caused a further expense and outlay by your orator of a large sum of money, to wit, five hundred ($500) dollars. Said O'Hara had notice both of the O'Hara to said Talbot, and warranty deeds, executed by the said O'Hara without further consideration, conveying to said Talbot, or his nominees, title to the two hundred (200) acres of said lands which said Talbot already had sold or contracted to sell. Your orator avers that he had no notice whatsoever, either from said Talbot, said O'Hara, or any other person, that said release or assignment, or any other release or assignments, or any other thing that might affect his (your orator's) rights, was even contemplated by said Talbot or O'Hara, and the said release and assignment of the said option was without your orator's knowledge or consent. "(11) Your orator says further that at further that he (your orator) will be entitled to a share similarly computed and calculated, in the portion of the purchase price of said lands yet unpaid by said company, if said lands have not now been paid for in full. And your orator avers that his share in any money in excess of five ($5) dollars an acre which has arisen or may arise from the sale of said lands by said O'Hara to the said Florida Land Company should be computed and calculated as follows, to wit: Your orator is entitled, first, to a sum sufficient to reimburse him for advertising said lands as aforesaid; and, second, to one-half of whatever balance remains." ed the said option the Florida Land Com- must be held and deemed to be your orator's pany, a Minnesota corporation, was then trustee, and to hold as such that portion and there a prospective purchaser of the of whatever part of the purchase price of forty-four hundred (4,400) acres of said said lands has been already paid by said lands, then unsold by said Talbot. The said company as would have been so held by company, your orator now states to the said Talbot, had he (the said Talbot), incourt, became interested in said lands, ei- stead of releasing or assigning his interest ther through one or more of the advertise- in said option, made the sale of said lands ments thereof, which your orator caused to said company. And your orator avers to be published, as aforesaid, or through the personal solicitation of said Talbot, or through both said agencies. Being so interested, said company did purchase the said unsold portion of said lands, and the said O'Hara and his wife, Margaret J. O'Hara, executed a warranty deed, conveying the said forty-four hundred (4,400) acres to the said company, the said deed bearing date the 15th day of March, A. D. 1910, that being the last day of the period covered by the option granted by said O'Hara to said Talbot and released, as aforesaid, by said Talbot; that being the same option in which your orator was interested and had equities, as aforesaid. Your orator says further that the consideration named in the said deed was as follows, to wit: "Ten (10) dollars, lawful money of the United States of America, and other valuable consideration.' But your orator is informed and believes that the actual price paid or contracted to be paid for said lands by said company was sixteen ($16) dollars an acre, or a total of sixty-four thousand ($64,000) dollars. "(12) Your orator did not learn of said deed until some time after the execution thereof, and then only by chance; but when word of the same did reach him he promptly made demand upon both said O'Hara and said Talbot for his (your orator's) portion of the sale price of the said lands, calculated according to the terms of your orator's said two contracts with said Talbot. But, instead of receiving the sum to which he was entitled, your orator was then informed for the first time of the said release or assignment of the said option by said Talbot; and said Talbot and said O'Hara both then and there pretended that, because of the said release, your orator was not entitled to any part whatever of the moneys arising from the sales of any parts of the said Kalamazoo farm lands. "(13) But your orator avers that, in accepting a release or assignment of said option from said Talbot, without notice to and without the knowledge of your orator, the said O'Hara took said release or assignment subject to all the rights and equities of your orator in said option; this more particularly because of the notice and knowledge said O'Hara had of your orator's contractual rights with respect to said option and the moneys your orator had expended in the faith thereof, and because of the promises made to your orator by said O'Hara. And your orator avers that The prayer is for an accounting and the payment of any sums that may be found due by reason of the premises, and for general relief. The following demurrer was interposed to the bill: "(1) There is no equity in said bill. "(2) There is no privity between the complainant and defendant. "(3) It does not appear in said bill that any contract relation existed between the complainant and the defendant. "(4) It appears in and by said bill that if any one is liable to the complainant on account of the alleged transaction the said Alfred H. S. Talbot is liable, and not the defendant. "(5) It does not appear in said bill that the defendant agreed to pay or to insure the payment of any money or any other thing of value to the complainant. "(6) It does not appear from the bill that the defendant was guilty of any fraud, or was responsible for the contract between the said Talbot and the complainant. "(7) It is not alleged in the bill that the defendant agreed in writing to pay any debts or obligations from the said Talbot to the complainant." This demurrer was sustained, and the plaintiff appealed. [1] As the allegations do not show such a course of dealing or state of affairs between the parties as requires an accounting in equity, the bill of complaint must stand, if at all, upon some other equitable ground. See Dorman v. McDonald, 47 Fla. 252, 36 South. 52. [2] It is contended that a trust relation between the parties is shown by the bill. There is no claim that the bill discloses ac tual or constructive fraud on the part of the the bill must be found on some other theory | gale apparently acquired a right to share in maintainable on the allegations, or the order the profits derived from a sale of the lands, sustaining the demurrer should be affirmed. but no right in the lands as such, or in the A consideration of the pertinent allegations title that passed to a purchaser. The allegawill be made in determining whether they tions of the bill of complaint do not disclose are sufficient to show some inequitable con- a substantial basis for the equitable relief duct on the part of the defendant that will prayed. justify the relief sought. As no ground of equity cognizance is apparent on the pleadings, if Massengale has any substantial legal right of recovery from O'Hara, the common-law remedies will afford ample redress. The order appealed from is affirmed. TAYLOR, SHACKLEFORD, COCKRELL, and HOCKER, JJ., concur. (63 Fla. 191) J. G. CHRISTOPHER CO. v. RUSSELL. (Supreme Court of Florida. Feb. 27, 1912.) (Syllabus by the Court.) No property is brought into court as the subject of a trust relation between the parties. If the conduct of the parties towards each other created a relation of debtor and creditor, there is apparently adequate remedy at law. While the demurrer admits the allegations that O'Hara knew of the agreements existing between Talbot and Massengale, the only allegation of an obligation assumed by O'Hara growing out of his knowledge of the agreements is that, in consideration of a continuance by Massengale of his advertising the land, O'Hara promised "vigilantly to watch over the interests of" Massengale, and, as far as was in his 1. NEGLIGENCE (§ 110*)-ACTIONS-PLEADING. (O'Hara's) power, to prevent said Talbot Allegations that the defendant was engagfrom defrauding Massengale or defeating his ed in the general machinery, supply, and ship chandlery and hardware business, and for that rights in the option held by Talbot by any purpose had and did business in certain rooms acts of said Talbot. There is no allegation in the city of J., that said storerooms were that O'Hara failed to perform his promise open to the general public, who were invited "vigilantly to watch over the interests of" by defendant to enter said storerooms and buy goods and merchandise of defendant, and that Massengale, "and, as far as was in his pow- plaintiff entered the storerooms for the purpose er, to prevent" Talbot from defrauding Mas-of buying rope, and was examining rope with sengale or defeating Massengale's rights in Talbot's option. The contention is that as O'Hara, with knowledge of the agreement between Talbot and Massengale, induced Talbot, for a consideration, to release and assign to him the option Talbot had from O'Hara to buy or sell the lands, after O'Hara had promised Massengale to vigilantly watch over his interests, and, as far as in his power, to prevent Talbot from defrauding Massengale in his rights in Talbot's option, that a trust relation arose between O'Hara and Massengale, by reason of which O'Hara should be held to account to Massengale, according to Massengale's agreement with Talbot, for profits arising from the sale of the lands to persons who "became interested in said lands, either through one or more of the advertisements thereof which Massengale caused to be published, as aforesaid, or through the personal solicitation of said Talbot, or through both of said agencies." Even if O'Hara's promise to Massengale to vigilantly watch over his interests, and, as far as in his power, to prevent Talbot from defrauding Massengale, can be regarded as a binding obligation to carry out Talbot's contract with Massengale, and such obligation has been violated, the courts of law can afford adequate and full redress; there being no complicated accounts to adjust that cannot be readily determined in an action at law. No trust relation with reference to any specific property is made to appear. intent to purchase it, sufficiently show a rela tion of merchant and customer. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 177, 178; Dec. Dig. § 110.*] 2. NEGLIGENCE (§ 32*)-ELEMENTS-CONDITION OF PREMISES. Those who impliedly invite others upon their premises for purposes of lawful business are by law required to have and keep the premises in a reasonably safe and suitable condition for the purposes of the particular business; and, if a failure to observe this duty proximately causes injury to one lawfully on the premises in connection with the business, compensatory damages may be recovered, if the injured person is not at fault. Cent. Dig. 88 42-44; Dec. Dig. § 32.*] LIGENCE-EFFECT. If the negligence of an injured person contributes in any appreciable degree to the injury received by him as a result of another's mere negligence, damages cannot be recovered for the injury under the principles of the common law; and these principles have not been changed by statute in this state, except as to running of the locomotives, cars, and machininjuries to persons and property caused by the ery of railroad companies. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 84; Dec. Dig. § 80.*] 4. NEGLIGENCE (§_67*)—CONTRIBUTORY NEGLIGENCE-CARE REQUIRED "DUE CARE." The law contemplates that in any given case a normal adult person shall take "due care" for his own safety and protection, which is such care as an ordinarily prudent person would exercise under the circumstances. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 90, 91; Dec. Dig. § 67.* For other definitions, see Words and Phrases, Under his contract with Talbot, Massen-vol. 3, pp. 2221-2222; vol. 8, p. 7643.] 5. NEGLIGENCE (§_68*)-CONTRIBUTORY NEG- [that the J. G. Christopher Company was, on LIGENCE-CARE REQUIRed. Where a normal adult person, while exercising such care for his own safety and protection as an ordinarily prudent person would do under the circumstances, is injured as the proximate result of the negligence of another, contributory negligence is not imputed to the injured person. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 92; Dec. Dig. § 68.*] 6. NEGLIGENCE (§ 32*)-CONDITION OF PREM ISES-CARE AS TO PERSONS INVITED. One who conducts a store or place for the sale of goods impliedly, if not expressly, invites the public to come into his place of business; and he owes them a duty, with respect to their safety, which may vary with the circumstances of each case. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig. § 32.*] May 22, 1908, engaged in the general machinery, supply, and ship chandlery and hardware business, and for that purpose had and did business in certain storerooms in the city of Jacksonville, Fla.; that a hole six feet by four feet existed in the floor of one of the storerooms, opening into a basement below said floor; that defendant carelessly and negligently permitted and caused said hole to be left open and without sufficient guard, covering, or warning; that said storeroom, with said hole so carelessly and negligently open and uncovered, was open to the general public, who were invited by defendant to enter said storeroom and buy goods and merchandise of defendant; that on the date mention 7. NEGLIGENCE (§ 32*)-CONTRIBUTORY NEG-ed the plaintiff, the captain of a vessel, en- RELIANCE ON CARE OF OTHER LIGENCE PARTY. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig. § 32.*] 8. NEGLIGENCE (§ 4*)-ELEMENTS "REASONABLE CARE." tered the storeroom for the purpose of buying rope, and had no knowledge or notice of A customer may, while in a place where the existence of the hole; that plaintiff was the proprietor of a store displays goods for sale, reasonably expect to be in safety, unless examining certain rope with intention of purwarned of danger, not only while making exam-chasing it, and stepped into said hole so careination or bargain, but also while waiting for lessly and negligently left open and uncovered, delivery of purchases. the plaintiff falling to the basement, and by reason of, and as a direct result of, said negligence and carelessness of the defendant plaintiff was injured. In the second count, similar language is used, with the additional allegation that, it being late in the afternoon and dark in the storeroom, the plaintiff did not see the hole. The third count differs only in alleging that the plaintiff was being shown by a servant or agent of the defendant certain rope, and was examining the rope with the view of purchasing the same; that said agent or servant of defendant whol The "reasonable care" which persons are bound to take, in order to avoid injury to others, is proportionate to the probability of injury that may arise to others. And where a person does what is more than ordinarily dangerous, he is bound to use more than ordinarý care. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 6; Dec. Dig. § 4.* For other definitions, see Words and Phrases, vol. 7, pp. 5954-5956; vol. 8, p. 7779.] 9. NEGLIGENCE (§ 70*) - CONTRIBUTORY NEG-ly failed and neglected to warn plaintiff of LIGENCE-CARE REQUIRED. It is not contributory negligence to fail to look out for danger when there is no reason to apprehend any. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 97; Dec. Dig. § 70.*] 10. NEGLIGENCE ($$ 134, 135*) - ACTIONS SUFFICIENCY OF EVIDENCE. Evidence examined, and found to sustain a verdict and judgment for damages for personal injuries proximately caused by the defendant's negligence; the plaintiff not being guilty of contributory negligence. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 267-273, 274-276; Dec. Dig. 88 134, 135.*] Error to Circuit Court, Duval County; F. P. Fleming, Referee. Action by A. B. Russell against the J. G. Christopher Company. Judgment for plaintiff, and defendant brings error. Affirmed. H. H. Buchman, for plaintiff in error. B. B. Shields and Bryan & Bryan, for defendant in error. the existence of said hole. A demurrer to the declaration was overruled. The defendant filed a plea of not guilty and three special pleas, tendering issues as to the publicnature of the storeroom where the injury occurred and the right of the plaintiff to be therein and of contributory negligence. Issue was joined on all the pleas, and the cause was, by consent, tried by Hon. F. P. Fleming, Jr., a practicing attorney, as referee. Judgment, awarding $1,000 damages to the plaintiff, was rendered. A motion for new trial was denied and exceptions noted. The defendant took writ of error. [1] It is suggested that the demurrer to the declaration should have been sustained, because it does not sufficiently show that the plaintiff was on the defendant's premises by invitation, or as matter of right, and not as a trespasser or mere licensee. The allegations of the declaration, above stated, sufficiently show a relation of merchant and customer actually existing between the plaintiff and defendant in the merchant's place of business, into which the public, including the plaintiff, was impliedly invited. WHITFIELD, C. J. In an action brought by A. B. Russell against the J. G. Christopher Company to recover damages for personal injuries sustained by Russell, the declaration in effect alleges in the first count If the evidence shows liability of the defendant, the damages awarded are not clear ly excessive, in view of the nature of the | S. 577, 26 L. Ed. 235; Freer v. Cameron, 4 plaintiff's injury and suffering and conse- Rich. (S. C.) 228, 55 Am. Dec. 663; Wilsey v. quent losses as disclosed by the evidence. Jewett Bros. & Co., 122 Iowa, 315, 98 N. W. The important consideration, therefore, is 114; Rosenbaum v. Shoffner, 98 Tenn. 624, whether the evidence shows the alleged neg-40 S. W. 1086; Reid v. Linck, 206 Pa. 109, ligence of the defendant to have been the 55 Atl. 849; Welch v. McAllister, 15 Mo. proximate cause of the injury to the plain- App. 492; Montague v. Hanson, 38 Mont. 376, tiff, without any appreciable contributory 99 Pac. 1063; 2 Shearman & Redfield on Neg. negligence by the plaintiff. (5th Ed.) § 719; 2 Cooley on Torts (3d Ed.) 1258. Counsel for the plaintiff in error makes a very forceful presentation of the view that the proximate cause of the injury was the plaintiff's own negligence. If the facts and circumstances of the injury support this contention, there should be no recovery. But a careful consideration of the facts, in connection with applicable principles of law, impel a conclusion of liability on the part of the defendant. [8] The reasonable care which persons are bound to take in order to avoid injury to others is proportionate to the probability of injury that may arise to others. And, where a person does what is more than ordinarily dangerous, he is bound to use more than ordinary care. Brosnan v. Sweetser, 127 Ind. 1, 26 N. E. 555. [9] It is not contributory negligence to fail to look out for danger when there is no reason to apprehend any. Engel v. Smith, 82 Mich. 1, 46 N. W. 21, 21 Am. St. Rep. 549. [2] Those who impliedly invite others upon their premises for purposes of lawful business are by law required to have and keep the premises in a reasonably safe and suita- [10] Conflicts in the evidence have in efble condition for the purposes of the particu- fect been settled by the referee in finding for lar business; and, if a failure to observe this the plaintiff. The evidence shows that the duty proximately causes injury to one law- plaintiff entered the defendant's place of fully on the premises in connection with the business as did other customers, and in purbusiness, compensatory damages may be re-chasing rope made a personal examination covered, if the injured person is not at fault. of it in the storeroom where it was kept. [3] If the negligence of an injured person The clerk who sold the plaintiff the rope contributes in any appreciable degree to the left the room, and only a colored porter reinjury received by him as a result of an-mained in the room with the plaintiff, who, other's negligence, damages cannot be recov-in pulling the rope out of the coil and takered for the injury under the principles of ing the kinks out of it, and in backing, so as the common law; and these principles have to get some rope to measure it, stepped into not been changed by statute in this state, the hole in the floor, used as a hatchway, except as to injuries to persons and property 45 feet from the coil of rope, and falling incaused by the running of the locomotives, to the basement below was injured. Walkcars, and machinery of railroad companies. ing backwards in a storeroom is not per se [4] The law contemplates that in any giv-negligence in law. en case a normal adult person shall take due care for his own safety and protection, which is such care as an ordinarily prudent person would exercise under the circumstances. [5] Where a normal adult person, while exercising such care for his own safety and protection as an ordinarily prudent person would do under the circumstances, is injured as the proximate result of the negligence of another, contributory negligence is not imputed to the injured person. [6] One who conducts a store or place for the sale of goods impliedly, if not expressly, invites the public to come into his place of business; and he owes them a duty with respect to their safety which may vary with the circumstances of each case. [A customer may, while in a place where the proprietor of the store displays goods for sale, reasonably expect to be in safety, unless warned of danger, not only while making examination or bargain, but also while waiting for delivery of purchases. See McDermott v. Sallaway, 198 Mass. 517, 85 N. E. 422, 21 L. R. A. (N. S.) 456; Engel V. Smith, 82 Mich. 1, 46 N. W. 21, 21 Am. St. It appears there was sufficient light in the room, and the plaintiff could have seen the hole, if he had not been walking backwards. Plaintiff was properly in the room. He had a right to examine the rope he was purchasing; and it does not appear that in doing so he could, under no circumstances, with propriety, or in accordance with natural or ordinary conduct, walk backwards, as he did, with the rope in his hands to get the kinks out of it. He was in a storeroom which he had a right to assume was safe, and there was apparently nothing to put him on inquiry as to existing dangers. He apparently did not see the hole in the floor, and had no knowledge or notice of it, though the defendant's colored porter was with him, and, for aught that appears, reasonably could and should have observed the danger and warned him in time. Walking backwards under these circumstances was not negligence as matter of law. Where injury caused by the defendant's negligence appears, contributory negligence is an affirmative defense; and where contributory negligence is not sufficiently disclosed in the case |