Frantz v. McBee CompanyFrantz v. McBee Company
This is an appeal from a summary judgment in favor of the defendants entered in a suit brought by the plaintiff-appellant, Barbara W. Frantz, as the widow of George Frantz, to recover for the death of her husband allegedly caused by the wrongful act of the defendant-appellee Finley. At the time of his death, the deceased was employed by the defendant-appellee, the McBee Company, a foreign corporation (“McBee” hereafter) as the agency manager in charge of its Jacksonville office. Finley was also an employee of McBee and worked out of the home office in New York. The deceased and Finley were on a field trip, with Finley driving decedent‘s car, when the car overturned, fatally injuring the deceased.
After various pleadings, the lower court entered a summary judgment for the defendants upon their motion, accompanied by affidavits. As to McBee, the court based its judgment on the fact that McBee had complied with the Florida Workmen‘s Compensation Act by taking out insurance to cover its Florida employees; and that since the remedy of the plaintiff‘s decedent was exclusively under this Act, no liability could be imposed by the plaintiff upon McBee under the Wrongful Death Act,
There was, then, no error in entering a summary judgment in favor of McBee.
As to Finley, the lower court based its summary judgment in his favor on the fact that, at the time of the accident, Finley and plaintiff‘s decedent “were fellow servants engaged in the common business of their employer, the McBee Company, and said Robert Birch Finley was not and is not a third party tort feasor within the provisions of the Florida Workmen‘s Compensation Act * * *.”
Counsel for the appellee Finley has cited no case, and our independent research has revealed none, in which it has been held, in the absence of a specific statutory provision similar to those quoted above, that a Workmen‘s Compensation Act has abrogated the common-law rule of liability for negligence of an employee to his coemployee, except in Massachusetts. Cf. Bresnahan v. Barre, 1934, 286 Mass. 593, 190 N.E. 815; Wechsler v. Liner, 1951, 328 Mass. 152, 102 N.E.2d 92. In fact, it appears to be the general rule that, where there is no legislative mandate to the contrary, fellow workmen or coemployees are treated as third parties within the meaning of a Workmen‘s Compensation Act. See 58 Am.Jur., Workmen‘s Compensation, Sec. 60, p. 616; annotation in 106 A.L.R. at page 1059; Tawney v. Kirkhart, 1947, 130 W. Va. 550, 44 S.E.2d 634; Sylcox v. National Lead Co., 1931, 225 Mo. App. 543, 38 S.W.2d 497; Schumacher v. Leslie, 1950, 360 Mo. 1238, 232 S.W.2d 913; Webster v. Stewart, 1920, 210 Mich. 13, 177 N.W. 230; Rehn v. Bingaman, 1949, 151 Neb. 196, 36 N.W.2d 856; McGonigle v. Gryphan, 201 Wis. 269, 229 N.W. 81; Churchill v. Stephens, 1917, 91 N.J.L. 195, 102 A. 657; Wells v. Lavitt, 1932, 115 Conn. 117, 160 A. 617; Morrow v. Hume, 1936, 131 Ohio St. 319, 3 N.E.2d 39; Thompson v. Lacey, 1954, 42 Cal.2d 443, 267 P.2d 1; Zimmer v. Casey, 1929, 296 Pa. 529, 146 A. 130.
The Florida Workmen‘s Compensation Act,
It is true that in Younger v. Giller Contracting Co., Inc., 1940, 143 Fla. 335, 196 So. 690, 693, in holding that the plaintiff, an employee of a general contractor, could not sue a subcontractor whose employee had injured plaintiff, we said:
“The intention of the legislature in amending section 10(a) was to abrogate the common law to the extent of making all of the employees engaged in a common enterprise statutory fellow servants. They were never to be considered inter se third parties as to each other or to the immediate contractual employers. * * *” (Emphasis supplied.)
The first sentence of the quoted excerpt is eminently correct. As stated by Thompson in his work on Negligence, 2d Ed., Sec. 4999, p. 1016: “Servants of different contractors engaged in a common employment upon the same work are not fellow servants within the meaning of the rule under consideration, because they do not work under the control of a common master.” (Emphasis supplied.) The “rule under consideration” was the rule that a master is not liable to his servant for the negligence of a fellow servant. By the provision of the Act in question,
But the italicized portion of the excerpt is dictum only, and thus not binding on the court in the consideration of the question here presented. A recent decision by this court, Jones v. Florida Power Corp., Fla. 1954, 72 So.2d 285, 287, charts the path which we should follow in our decision here, much more than does the dictum in the Younger case.
In the Jones case, we held that “It is the liability to secure compensation which gives the employer immunity from suit as a third party tort-feasor. His immunity from suit is commensurate with his liability for securing compensation — no more and no less.” There is, of course, no liability on the part of an employee to secure compensation for a coemployee. And since there is no liability under the Act, there is no immunity from suit under the Act. A similar conclusion was reached in Sylcox v. National Lead Co., supra, 38 S.W.2d 497, 502, where a bus driver was held to be a third party tort-feasor in a suit by his coemployee to recover for injuries caused by the driver‘s negligence. The Missouri court said:
“Now there is no doubt that at common law one servant is liable to another for his own misfeasance, and there is nothing in the Compensation Act which destroys such liability, or in any way disturbs the common-law relationship existing between coemployees.
Certainly the negligent employee is not liable for compensation, and therefore he is a stranger to the act, being a person other than the employee entitled to receive compensation or the employer liable to pay it. The right of the injured employee to sue the third person depends upon whether the latter is subject to the act. Since the coemployee whose misfeasance produces the injury is not subject to the act, he must be regarded as a `third party’ and therefore amenable to an action at common law. Such conclusion may lead to complications in the enforcement of the employer‘s right of subrogation, but we nevertheless think that it is the logical and necessary conclusion to be drawn from the language of our local act.”
And, again, as stated in Tawner v. Kirkhart, supra, 44 S.E.2d 634, 641:
“There is no contract as between coemployees and they are subject to the provisions of the compensation act in their relationship with each other in no way. They pay nothing into the fund that entitles them to protection under its terms. We can perceive nothing in sound reasoning that would entitle a coemployee to gratuitous protection for his own misconduct. To hold that a coemployee is not liable for his own negligence would increase the hazard of employments and be contrary to public policy.”
We hold, then, in accordance with the almost universal rule in those jurisdictions where there is no express legislative mandate to the contrary, that a coemployee or fellow servant is a “third party tort-feasor” within the meaning of our Workmen‘s Compensation Act. It was, then, error to enter summary judgment in favor of the defendant Finley.
For the reasons stated, the summary judgment is affirmed as to the defendant McBee, and it is reversed as to the defendant Finley, and the cause is remanded for further proceedings as to this defendant.
Affirmed in part and reversed in part and cause remanded.
MATHEWS, C.J., and TERRELL and SEBRING, JJ., concur.