Red Top Cab & Baggage Co., for Use and Benefit of Fontaine v. Dorner

• Decision Date: 31 October 1947
• Citation: 32 So.2d 321,159 Fla. 538
• Parties: RED TOP CAB & BAGGAGE CO., for Use and Benefit of FONTAINE et al. v. DORNER.
• Court: Florida Supreme Court

32 So.2d 321

159 Fla. 538

RED TOP CAB & BAGGAGE CO., for Use and Benefit of FONTAINE et al. v. DORNER.

Florida Supreme Court

October 31, 1947

Rehearing Denied Nov. 19, 1947.

Appeal from Circuit Court, Dade County; Charles A Carroll, judge.

E. F. P Brigham and Cushman & Woodard, all of Miami, for appellant.

George J Baya, of Miami, for appellee.

BARNS, Justice.

On April 9, 1943 M. F. Fontaine, an employee of the appellant 'Cab Company' was injured while so employed by reason of a collision between a cab of the 'Cab Company' driven by him and an automobile driven by the appellee-defendant-Dorner.

The 'Cab Company' was within the provision of the Workmen's Compensation Act which among other things provides that:

'Compensation for injuries where third persons are liable.

'(1) If on account of a disability or death, for which compensation is payable under this chapter, the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect by giving notice to the employer and the commission in such manner as the commission may provide, to receive such compensation or to recover damages against such third person. This notice must be given within thirty days from the date of the accident.

'(2) The giving of notice to accept such compensation shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person.

'(3) Such employer on account of such assignment may either institute proceedings for the recovery of such damages or may compromise with such third person either without or after instituting such proceedings, provided * * *.' 440.39(1), (2), (3), F.S.A.

The appellant-plaintiff 'Cab Company' filed its declaration as assignee (by operation of law) of the cause of action of M. F. Fontaine and Virginia Fontaine against the defendant-appellee Dorner sounding in tort for the negligent injury and death of M. D. Fontaine, the husband of Virginia Fontaine, and as an inducement in said declaration to show plaintiff's right to sue recited that:

'At the time of his injury as aforesaid, M. F. Fontaine was duly and regularly employed as a taxicab driver by the plaintiff, Red Top Cab and Baggage Co., and he did, within 30 days from the date of said accident, duly elect to receive and accept compensation and other benefits under the Florida Workmen's Compensation Act including payment of his doctors', nursing, hospital and medicine bills, and other compensation provided for in the Act, which Plaintiffs allege is small in view of the grave and serious injuries and great damage to the said M. F. Fontaine; after his death, his widow, Virginia Fontaine, likewise elected to receive and accept compensation under said Act, and pursuant to such election Plaintiffs' said insurer has paid Virginia Fontaine compensation at the rate of $18.00 per week since November 8, 1943, and will be required to continue * * *.' The parties went to trial upon plaintiff's declaration and three pleas of the defendants which were (1) not guilty; (2) contributory negligence and (3) a plea denying that M. F. Fontaine died as a result of the alleged injuries.

On trial at the close of the plaintiff's case the defendant made a motion for directed verdict upon the following grounds:

'* * * (a) That M. F. Fontaine had been guilty of a contributory negligence; (b) that M. F. Fontaine had not made an election within thirty days after the date of his injuries as provided by Section 440.39(1), F.S.A.; (c) that the cause of action abated on the death of M. F. Fontaine pursuant to Section 45.11, F.S.A. and was barred by the statute of limitations; (d) that the personal representative of M. F. Fontaine is a real party in interest; (e) that it does not affirmatively appear that the widow elected to receive compensation under the Workmen's Compensation Act; and (f) that death was due to causes unconnected with the injuries.' Red Top Cab & Baggage Co. v. Dorner, Fla., 31 So.2d 409, 410.

The appellee's motion for a directed verdict was granted, plaintiff moved for a new trial which was denied and appellant brings this appeal and the substance of such assignments is that trial judge erred in directing a verdict for the plaintiff and in denying the motion for a new trial.

Counsel for appellant by his brief poses his 'questions' on assignments of error 1, 2, 3 and 4, yet fails to copy into his brief such assignments of error.

The trial judge can only be reversed and the errors presented by the assignments and the brief of appellant of necessity should be addressed to the trial judge's acts of harmful error which should have been presented by the assignments. The brief is in support of the assignments which the appellant by way of argument resolves into 'questions involved.'

When assignments are copied into the brief transcript page references should be given as to where the assignments of error appear and also the assignments as copied should parenthetically give record-page references to subject matter of the assignments.

On appeal such assignments serve as a declaration or complaint against the trial judge and the proof vel non of the assignment is within the record-on-appeal. An appeal without an assignment of error would be similar to a suit without a complaint, bill or declaration.

...