25 Fla. 1 | Fla. | 1889
This action was brought in Madison* county, and in the original and amended declarations is>styled an action on the case. It was against Louis Bucki and Charles Bucki, partners, doing business under the name, firm and style of L. Bucki & Son, and the declaration ran against them accordingly. The amended declaration avers that “on the 80th day of June, 1884, the-plaintiff (Cone) was lawfully enfranchised and the legal owner of a certain toll bridge spanning the Suwanneeriver at the White Sulphur Springs, Florida, the northern' abutments of said bridge resting upon the bank of said river, m Hamilton county, * and the southern abutments resting upon the southern bank, * in Columbia (county), *' which said bridge on the aforesaid day was in the possession and occupation of O. K. Paxton as tenant thereof to the said plaintiff the reversion thereof then and still belonging to the plaintiff; and that the defendants are-the owners of a certain boom north and above the said toll* bridge, * said boom made and constructed for the purpose of holding and detaining logs, timber &c. in said river;; that in said boom * defendant had collected and amassed a large lot or number of logs.; that upon a considerable swell or rise of the water in said river on or about the 26th day of June, 1884, the defendants by their agents, employees- or servants wrongfully, carelessly and negligently cut loose-said boom and turned out in mass said logs from said boom, and so improperly, carelessly and negligently drove- or managed said logs that by and through said wrongfully,, carelessly and negligently cutting said boom and turning said logs out of said boom in mass, and the improper,, careless and negligent driving and managing said logs by said agents, employees or servants * the said logs ran down* said river with such velocity and in such mass as to wrongfully and unlawfully on the said 80rh day of June,.,
There had been a demurrer to the original declaration, .-and the amended one was also demurred to. The court overruled both. This action of the court is assigned forerror as to each, but we confine our attention to the latter, .as the former was practically out of the case when the latter was filed. It is said for demurrer in the first place, that while the “ declaration is. entitled an actiou on the ease, yet the injury complained of, if the allegations therein made constitute an injury, is a case of trespass vi et arms/’ If this be a good ground of demurrer in any trespass case, it is not in a case like this. The plaintiff sues as owner of the bridge, not being in possession thereof at the time of its destruction, but the possession being in the tenant to whom he had let it. That tenant would be the proper person"to sue for any injury to the possession, but for injury to the reversion an action on the case by the plaintiff is the proper remedy. This is'the rule as to both personal and real property. Chitty on Pl., (16 Am. Ed.) 71-2. And as to venue the question arising from the fact that the bridge stretches from one county to another, while the action was brought in a third, where defendants resided, we incline to the opinion that under our statute such an action. not involving the property itself, but only damages ibr injuries to it, may be brought either in “the county in -which the defendant resides, or (in which) the cause of action accrued.” McClellan’s Dig., 811,section 5. Eor construction-of the statute see Russ vs. Mitchell, 11 Fla., 80. But if there is doubt on this, the objection to the venue •should have been made by plea in abatement, which was oot done, and it was not available either on demurrer or .after trial on pleas to the merits.
Ye think the.declaration sufficient in the averments made, not being mere conclusions of law, and that the facts mentioned as not being set forth are matters of evidence to be brought out on the trial. And the same is our view as to other facts not averred, which need not be recited here, and the absence of which constitute other grounds of demurrer. It is our opinion the demurrer was properly overruled.
During the pendency of the case there was a suggestion of the death of Louis Bucki and an order to amend so as to make the surviving partner, Charles L. Bucki, the defendant, and the judgment was agaiust the latter as surviving partner. This is assigned for error. The objection seems to us to be untenable. In sq far as it may rest upon an idea that a partnership cannot be sued for a tort, that is a mistake. The law is otherwise. 1 Bindley on Partnership. 283; Linton vs. Hurley, 14 Gray, (Mass.) 191. Then the action could be maintained against the partners as a firm, and it both had lived a judgment could have gone against the firm. When one of them died that did not abate the action, and it was altogether proper to carry it on under suitable order against the survivor. It is no answer to this to say that it was not a debt, and that to make it a debt by judgment would be in derogations of the rights of creditors of the firm. In the first place, even if
The parties having waived a jury, the case was tried on the facts by the court. The findings of the court on “ all the issues of fact,” and the refusal of the court to grant the motion of defendants to set aside the findings and judgment thereon, are assigned for error. The grounds are that the findings are contrary to the evidence and the law, and that the judgment is not warranted by the pleadings. As to the last, we have already expressed our opinion in favor of the judgment. The others bring up the important and main questions we have to determine, namely, whether the Suwannee river at the point where it was spanned by the bridge was a navigable river, and if it was, what were the relative rights of those entitled to its use and the owner of the bridge ; and (if these questions should be so determined as to leave the enquiry necessary) whether appellant’s firm were guilty of negligence from which arose liability in damages ?
Where the tide ebbs and flows in a river the common law regarded it as a navigable stream, in which the public had a right of way, and in this, country all rivers, without regard to the ebb and flow of the tide, are generally
We think the evidence in this case imparts the character of navigability to the Suwannee river in the sense of a public highway above and to the point at which the bridge of appellee was erected. The testimony is, that the stream had been used a long time for floating logs, that for eight or nine months of the year its ordinary stage of water admits of such floatage, and that it has been used for the purpose both in driving logs thrown in singly and for
This brings us to the question of appellee’s rights in respect to the bridge. Did he have a right to build it at all, and if he did, what are the limitations on that right? The statute authorizes the County Commissioners of each county to grant licenses for keeping toll bridges, and where
The bridge of appellee was authorized by double license, one from the county of Hamilton, and the other from the county of Columbia, and both counties fixed rates of toll. There is nothing in the statute to indicate the class of streams over which bridges may be kept, and it is to be presumed that it authorized them wherever public convenience and public travel and trade made a demand for their use, as well over navigable streams of the character of this one as over others. The bridge of appellee, therefore, had its existence from legal authority. But it is to be understood that this authority conferred no right to so construct it as to obstruct or materially interfere with the navigable uses of the river. Cooley’s Con., Lim., 231-2. There are two rights to be observed, that of the public in the highway, and that of the bridge owner to his structure across the highway ; and it is obvious that each must exercise the right possessed with due and reasonable regard to the right of the other. As expressed in Veajie vs. Dwinel, 50 Me., 479, the privileges of the bridge owner “ must be so exercised as not to interfere with the .substantial rights of the public in the stream as a highway for the purpose of transporting such property as, in its natural capacity, it is capable of floating. The use of both parties must be a reasonable use, and the rights of both must be exercised in a reasonable manner.” So the question comes: Is appellee’s bridge constructed in a way to give reasonable facility for floating logs between its piers or supports ? There must be a convenient and sufficient passage-way left for the purpose, having regard to the character of the floatage, and on the other hand a driving or
The right of the bridge owner being sustained thus far, has he made a case against appellant’s firm for damages on account of the destruction of his bridge ? The evidence is that the firm had in a boom fifteen miles above the bridge between 8,500 and 4,000 logs, and that on a rise of the waters of the river an employee of the firm opened the boom and let loose the logs in a mass, and that they floated down the river to the bridge in a mass, and after pressing against it three or four days carried away all except the abutments. They struck and broke one of the guide logs, having come down the river jammed together as close as they could be, and pressing in mass till they got to the bridge. Several persons were engaged iu trying to relieve the bridge, but only a few logs were got through, and a witness familiar with the business says that in the condition of the logs they “ could not have been put through by any force.” This is the material portion of the evidence
In Jack. St. Ry. Co. vs. Chappell, 21 Fla., 175, it is pronounced that “ negligence is the failure to observe for the protection of another’s interests such care, precaution and vigilance as the circumstances justly demand, and the want of which causes him injury.” The facts of this case fit this definition most pertinently. In Railroad Co. vs. Jones, 95 U. S., 439, negligence is defined to be “ the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in the omission or commission. The duty is dictated and measured by the exigencies of the occasion,” citing Wharton on Neg., sec. 1. Tested by this the essence of the fault in this ease was in the commission of an act, namely, opening the boom to let the logs out in mass, which put the bridge in jeopardy. A fuller definition of negligence, and one very suitable to this case, is this: “Negligence, constituting a cause of civil action, is such an omission by a responsible person, to use that degree of care, diligence and skill which it was his legal duty to use for the protection of another person from injury, as in a natural and continuous sequence causes unintended damage to the latter.” 1 Sher. & Redfield on Law of Neg., see. 3. Surely it can. not be said that to precipitate 3,500 or 4,000 logs down the rising river to run their course, as the evidence shows, without guidance or attempted control, was the use of that de. gree of care, diligence and skill which it was the legal duty to use under the circumstances, and it was as if done upon
But it is contended that this is not a case of negligence, but one of intentional wrong — that the employee of applicant’s firm cut the boom purposely, and that for a tort thus committed, the firm is not responsible. Without stopping to consider the doctrine on which this contention rests, it is in our opinion not applicable here. The business of the employee was to get logs down the river to the mill of the firm. That w7as his object in cutting the boom. There is not shown any intention to injure or destroy the bridge, but only a purpose to accomplish his work as speedily as the condition of the river permitted. He took the risk of injuring the bridge by doing an act, not against the bridge itself, but. in the course of his business, which in its natural sequence was calculated to result in the injury. That was not an intentional tort, but one which in its consequences became a tort, on the ground that under the cir cumstances the act was without due care and caution, and therein an act of negligence.
It is suggested that if there was negligence in the employee in letting the logs loose in mass, it does not follow that this caused the destruction of the bridge, since three or four days elapsed after the logs struck the bridge before it was carried away, and it “ only yielded at last to the con
We see nothing in this to set aside the charge of negligence.
And the negligence was that of an employee or servant of the appellant’s firm, for which the firm was responsible. See 1 Sher. & Red. on Neg., sec. 141, where it is said that “ it is an old and thoroughly established doctrine that where the relation of master and servant exists, the master is responsible to third persons for the damage caused by the wrongful acts or omissions of his servants in the course of their employment as such.” It was in evidence that the servant was employed by another employee of the firm who had supervision of the logging business, but that makes no difference as to the liability of the firm. In the book quoted above, sec. 157, the law is thus stated : “ The master is, of course, liable, for the negligence of one whom his servant employs, by his authority, to aid such servant in the master’s business. Such authority need not be express, but may be implied from the nature of the business, or the course of trade. Thus such authority would almost necessarily be implied in favor of a servant entrusted * * * with any task which could not be performed within a reas- • onable time by one man and necessarily also in behalf of a servant employed in a busines requiring the assistance of others.
