69 F.2d 948 | 5th Cir. | 1934
Appellant sued appellee to recover damages for negligently causing the death of her son. The District Court sustained a demurrer to a second amended declaration, denied leave to amend further, and entered judgment final on the demurrer. These ruling’s are assigned as error.
The declaration is in four counts. Allegations common to all the counts are to the following effect: Appellee maintained a plant for the storage of oil and gasoline, and in connection therewith a large tank with a floating roof for the storage of gasoline. As gasoline was pumped out of the tank, the roof went downward inside and was forced up when the tank was being filled with gasoline. When the tank was being filled, it was necessary to have some one on its top to release the roof when it jammed against the tank as it frequently did. For the purpose of enabling employees to reach the roof from the tank, a stairway was provided by appellee. When an employee went down the stairway onto the roof, he was placed in a position of peril by reason of the fact that he was thereby exposed in a partially inclosed place to the fumes of gasoline. Appellant’s son, George B. Self, age 24, was employed by appellee as a laborer. His usual work was in the yard at the plant. He was inexperienced in and. did not appreciate or know the extent of the peril incident to employment on the roof of the tank. While so employed, he was directed by appellee’s superintendent or foreman to at
The allegations as to dependency are substantially in the language of the statute, C. G. L. Fla. § 7048. In our opinion they are sufficient as against a general demurrer, In Florida special demurrers have been abolished and only defects of substance may now be reached by general demurrer. Only ultimate facts need be alleged. If the objeetion be merely to tbe manner of pleading such facts, or that they axe so generally stated as to prejudice or embarrass the opposing party in preparing or making .defense against them, the remedy is by motion to! strike or for compulsory amendment. Camp v. Hall, 39 Fla. 535, 568, 23 So. 792;- German-American Lumber Co, v. Brock, 55 Fla. 577, 46 So. 740. The allegation that appellant was dependent upon the decedent for support necessarily means that she was unable to support herself by reason of poverty, It was unnecessary for her to allege how her ‘ poverty came about or was caused. It would only be pleading evidence to allege illness, inability to work or to secure employment, or any other reason for her financial condition. Duval v. Hunt, 34 Fla. 85, 15 So. 876, strongly relied on by appellee, is not in point, as the court was there discussing the sufficiency of the evidence and not of the pleadings. This is apparent from the fact that there was no demurrer to the declara^ tion.
Upon the second question raised by ¿euuirrer, that is, whether there was any ealigai connection between any negligence ,apege¿ an¿ the accident, it becomes neeessary to consider the counts separately. In oru, option yjug not erro,r to sustain the <jemurrer to the first and second counts. In tbe first there is no averment of negligence because &f appellee’s failure to have at hand &e means of rescue; and y. ig not alleged that a helper or assistant could have saved gglf’g life. If Self was overcome as he went dowll the stairway, it is a fair inference that a helper or assistant in attempting to go- to bis rescue would have suffered a like fate, q*be omission in the second count of an aver-me:nt that Self went upon the tank or roof obedience to instructions given makes that eouut bad. We tMnk the last two counts are good. It appears from the third that Self was ahve arld working on the roof of the tank f0r more than two hours. It is for the jury to say whether in the exercise of reasonable care an inspection should have been made during that period, and also if made whether, under the facts to be developed at the trial, death by asphyxiation could have been avoided. It fairly appears from the fourth count that the employee charged with the duty of going to Self’s assistance if he ■ should become suffocated was withdrawn and sent by appellee to perform other duties, leaving Self alone on top of the tank-. In view of tMs, it is hard to understand how it can be argued, as it is, that it is not alleged eÍthei’ that tte Mlow-employee absented bimself of that Self was left alone on tbe top or r0<>:^ ^le
Assumption of risk is a matter of defense in the absence of averment or proof
Appellant should be permitted to amend the first and second counts of her declaration, and also to make any other amendment she sees fit at any time before the case is finally submitted to a jury. It is not a commendable practice to enter judgment final on demurrer to the declaration without first giving the plaintiff further opportunity to amend. Whether it is over a permissible practice, it is not now necessary to decide.
The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.