Bruner v. Robins

• Court: Florida District Court of Appeals
• Writing for the Court: PEARSON
• Citation: Bruner v. Robins, 191 So.2d 567 (Fla. App. 1966)
• Decision Date: 01 November 1966
• Docket Number: No. 66--620,66--620
• Parties: Faye BRUNER, Appellant, v. Bessle ROBINS, Individually and as surviving spouse of Oscar Tobins, and as Executrix of the Estate of Oscar Robins, Deceased, Appellee.

Page 567

191 So.2d 567

Faye BRUNER, Appellant, v. Bessle ROBINS, Individually and as surviving spouse of Oscar Tobins, and as Executrix of the Estate of Oscar Robins, Deceased, Appellee.

No. 66--620.

District Court of Appeal of Florida, Third District.

Nov. 1, 1966.

Rehearing Denied Nov. 30, 1966.

Claude Pepper and Adele T. Weaver, Miami Beach, for appellant.

Dean, Adams, George & Wood and Don R. Livingstone, Shutts & Bowen, Miami, for appellee.

Before PEARSON, CARROLL and SWANN, JJ.

PEARSON, Judge.

This interlocutory appeal is from the chancellor's order denying defendant's motion to dismiss upon the ground of lack of jurisdiction over her person. The facts adduced at the hearing on the motion are admitted to be as follows. The appellee, Bessie Robins, individually and as surviving spouse of Oscar Robins, and as Executrix of the Estate of Oscar Robins, deceased, filed a complaint to cancel a change of beneficiary endorsement, impress a trust and for other relief. The appellant, Faye Bruner, and the New York Life Insurance Company were defendants. This complaint seeks relief upon the theory of 'fraud, misrepresentation, trickery, deceit breach of trust, undue influence and abuse of confidential relationship' on the part of the appellant, Bruner. The New York Life Insurance Company is made a party to the suit because it is the holder of the proceeds of a policy of insurance on the life of Oscar Robins. This is the property that is claimed to be subject to a trust in appellee's behalf.

Service of process was effected on the defendant, New York Life Insurance Company. Appellant, Bruner, is a resident of the State of New York. She came to Miami, Florida, for the sole purpose of appearing as a defendant and a witness in another suit. The prior suit was also in the circuit court of Dade County and was based upon similar allegations of misconduct. As appellant stepped from the elevator on her way to the Judge's Chambers for trial in that case, service was effected upon her in the instant case.

In the prior case, the plaintiffs were initially Bessie Robins and Oscar Robins individually. After Oscar's death, Bessie Robins, as the Executrix of the Estate of Oscar Robins, was substituted as a party plaintiff. ¹ The defendants were Faye Bruner and the Chase Federal Savings and Loan Association of Miami Beach, Florida. The Savings and Loan Association had been made a party to the suit because it is the holder of funds in a savings account which were deposited under appellant's name. The complaint in this suit sought to impress a trust upon the savings account for the benefit of the plaintiffs.

The theory of the action in the prior suit was fraud, undue influence and abuse of confidential relationship by defendant Bruner in procuring savings account passbooks from a safe deposit box and in procuring blank withdrawal slips signed by the decedent. It was alleged that she used said documents to transfer funds to her own account. In the instant suit, it is alleged that fraud and undue influence were used to procure a change of beneficiary upon the life insurance policy.

The rule is well established in Florida that witness and suitors in atendance in court outside of the territorial jurisdiction of their residence are immune from service of process while attending court and for a reasonable time before and after going to court and in returning to their homes. Rorick v. Chancey, 130 Fla. 442, 178 So. 112 (1937).

It is also well established that there is an exception to the immunity rule where the process (in the...