39 Fla. 535 | Fla. | 1897
After a thorough re-examination of this case, aided by the elaborate oral arguments and briefs of the parties appellant and appellee, we are all of opinion that the conclusions reached upon the former disposition •of the case were correct, and that the judgment of the ■court below should be affirmed.
I. It is contended by the first assignment of error that the court below erred in overruling the demurrer of the defendants to the plaintiff’s amended declaration. And it was very earnestly and confidently argued before us that the demurrer, particularly the second, third and fourth grounds thereof, was well taken, but we entertain a different view, and in discussing this assignment of error we will consider each point of law endorsed on the margin of the demurrer, in consecutive order.
A. It was unnecessary for the declaration to show that Williams had exclusive control and authority ■over plaintiff at the time of the alleged accident. It was entirely sufficient that Williams had at ■the time authority to command plaintiff to do the act resulting in the injury. The law does not confine the master’s liability to those cases only, where his servant is invested with exclusive authority to do a particular act, or to exercise a particular control, because
B. The second ground of demurrer contended that it was shown by the allegations of the declaration that plaintiff’s injuries were received in consequence of the negligence of a fellow servant, and hot by reason of the negligence of the defendants. The rule is well settled in this State, as well as in the United States and England, that in the absence of statute a master is not liable to his servant for personal injuries received in the course of his employment, through the negligence of a fellow servant, when engaged In the same undertaking or common work. Parrish vs. Pensacola & Atlantic Railroad Co., 28 Fla. 251, 9 South. Rep. 696; South Florida Railroad Co. vs. Price, 32 Fla. 46, 13 South. Rep. 638; South Florida Railroad Co. vs. Weese, 32 Fla. 212, 13 South. Rep. 436; Duval, Receiver, vs. Hunt, 34 Fla. 85, 15 South. Rep. 876. From this general proposition there is no dissent; but when we undertake to analyze it, and attempt to define what, is meant by the terms “fellow servant,” and “same undertaking or common work,” we find the courts and text writers very inharmonious. There are, however,, certain duties required of a master to his servant,, which if left unperformed, or negligently performed f
D. The demurrer did not question the sufficiency of the declaration as a whole, or the sufficiency of its allegations as to Williams’ authority to direct the removal of the cars (unless, perhaps, inferentially by the third and fourth grounds), although appellants’ argument here is based almost exclusively on these-grounds, it being insisted that the declaration was. faulty in that it alleges evidentiary matters of the ultimate facts, instead of alleging the ultimate facts, themselves, i. e., that defendants did the act complained of either by themselves or by a duly authorized agent acting in the line of his duty. This latter contention is no doubt true, but as the evidentiary facts alleged are sufficient, if true, to establish conclusively the ultimate facts, the defect in this respect is one of form, and not one of substance. If the evidentiary facts alleged were insufficient in law to establish the ultimate facts, the defect would be one of substance, proper to> be reached by general demurrer, but if the objection be simply to this manner of pleading the ultimate facts, the defect is one of form, and could formerly be reached by special demurrer only. The statutes of Elizabeth and Anne distinguished between matters of substance and matters of form in pleading, and required a special demurrer in order to take advantage-of defects in the latter. Stephens on Pleading, sec. 107; 1 Chitty’s Pleadings, pp. 694-6; Gould’s Pleadings, pp. 433 et seq. Our Legislature, following the English Common Law Procedure Act, by sections 14
II. It is insisted that the referee erred in admitting certain testimony, objected to; showing that the injury occurred while plaintiff was assisting in moving cars on a railroad side-track at defendants’ mill, on the. ground that there was no allegation in the declaration that defendants controlled, owned or operated said cars, or that the cars were being moved either by direction of defendants, or by their foreman acting within the scope of his authority. These objections were properly overruled because, as shown in the preceding paragraph of this opinion, the declaration was sufficient to admit this testimony as against these objections.
III. Another assignment of error is based upon the action of the referee overruling an objection to a question propounded to a witness, on the solé ground that the same was leading. The objection is not mentioned in appellants’ brief here, and must, therefore, be considered as abandoned. Other objections to the question are argued here, but we can not consider them because appellants are confined to the objections made in the court below. J. T. & K. W. Ry. Co. vs. P. L. T. & M. Co. 37 Fla. 1, 9 South. Rep. 661; Tuten vs. Gazen, 18 Fla. 751.
IY. The referee sustained objections, to the following question propounded by defendants to their wit
Y. It is further insisted that the referee erred in refusing to grant a new trial upon the ground that the finding and j udgment was contrary to the law and the weight of the evidence. There was evidence from which the referee could have found these facts, viz: that plaintiff, a boy batween thirteen and fourteen years of age, was hired by his father in the latter part of 1882 to the defendants to make vegetable and fruit crates in a shed “off to itself, but attached to” defendants saw mill; and for no other purpose, and the father never knew until his son was injured that he was ever required by defendants to do any work more hazardous than making crates; and in the month of April, 1883, plaintiff, with the other workmen at the mill, was under the full and exclusive control and supervision of one Williams, foreman of defendants’ mill, who was superintending and directing the work of pushing two lumber cars on the side-track to be loaded with lumber from the mill, for the defendants. Plaintiff and other young employes were near the crate shelter, pushing little tram cars, and Williams called out to these boys to assist in pushing the lumber cars on the side-track eight or ten steps away, which were too
It is insisted, however, that plaintiff’s own negligence was the real cause of his injury. We are again •confronted with the finding of the referee against appellants on this point. It is perfectly clear that but for the order given plaintiff by Williams, the foreman, to assist in pushing the cars, plaintiff would never have'gone between the cars; neither would he have been injured. Plaintiff had never been warned of the danger which is clearly shown of going between moving cars; he had never had any experience in pushing lumber cars; he was a mere boy and presumptively wanting in discretion; there was no convenient place from which he could perform the duty assigned him • except between the cars; he had the example before him of a man, engaged m the business and familiar with its hazards, occupying the same position which he took, and this work being outside of his employment and much more hazardous than his regular employment, we can not say that as a matter of law he was guilty of any negligence in obeying the orders of his superior. When a person authorized by the master to control and direct another youthful and inexperienced servant, directs the latter to perform a dangerous service not in the line of .his employment, without warning or instructing him as to the danger of the particular service, the obedience of the latter servant will not be contributory negligence on his part, and he '■will be entitled to recover for any injury which may
VI. It is also contended that whatever rights of action arose from this injury accrued to plaintiff’s father, and not to the plaintiff; and that this right of action in the father was barred by the statute of limitations, though it is not pretended that if the plaintiff had any right of action, that it was barred. And it is insisted that as plaintiff was a minor, the father was entitled to his services, and having hired him to defendants, the father only was entitled to sue for damages for the injury. The character of the injury received by plaintiff was of a permanent nature, necessarily affecting him for life. At the time of the institution of this suit plaintiff had reached the age when his father was no longer entitled as a matter of law to the services of his son, and notwithstanding any rights his father may have had to recover damages for such injury, it is very clear that if the injury is permanent, and continues to disable plaintiff after his majority, and after all control of the father over him has legally ceased, and was caused by negligence, that he can also recover dam
It is proper to state that the cause of action in this case arose prior to any statutory enactments concerning fellow servants in this State.
Judgment affirmed.