Avon Mfg. Co. v. Herrin
| Decision Date | 13 June 1927 |
| Citation | 114 So. 425,93 Fla. 1128 |
| Parties | AVON MFG. CO. v. HERRIN. |
| Court | Florida Supreme Court |
Rehearing Denied July 14, 1927.
Error to Circuit Court, Highlands County; George W. Whitehurst Judge.
Action by John G. Herrin against the Avon Manufacturing Company for personal injuries. Judgment for plaintiff, and defendant brings error.
Affirmed on condition.
Syllabus by the Court
Where year elapsed between filing declaration and filing amended declaration, default entered nearly month later for failure to plead to amended declaration will not be presumed unlawful. When the transcript of a record filed in this court on a writ of error to the judgment entered in the clause discloses that about a year elapsed between the filing of the declaration, to which a demurrer was sustained, and the filing of an amended declaration, and nearly a month later on a rule day, a judgment by default was entered by the clerk on praecipe by plaintiff's counsel for failure to plead or demur to the amended declaration, such entry of default will not be presumed to have been unlawfully entered.
Pleas to declaration, not permitted to be filed, are properly presented by bill of exceptions. Pleas to a declaration, that are proffered and not permitted by the court to be filed, are properly evidenced to this court by bill of exceptions.
Where plaintiff won on merits on plea of general issue filed after default, defendant may not complain of entry of default. When the transcript of record discloses that a default was entered against the defendant for want of a plea, but a plea of the general issue nevertheless was filed after the entry of default, and the parties went to trial upon that issue, which resulted in a verdict for the plaintiff on the merits, the defendant has no ground for complaint on that account.
Court's leave should be obtained for additional or amended pleas to declaration. When additional or amended pleas are desired to be interposed to a declaration, leave of court for so doing should first be obtained.
In personal injury action, where default for want of plea is entered, only assessing damages remains for jury. Where, in an action for damages for personal injuries, a default for want of a plea is entered, there remains only the matter of the assessment of damages by the jury.
Where plaintiff won on merits on general issue pleaded after default, without effort to open default, defendant cannot complain of refusal to allow filing special pleas, or striking pleas filed without authority, unless declaration on face was wholly bad. When, after the entry of a default for want of a plea to a declaration, the parties nevertheless go to trial on a plea of the general issue, interposed after the default, which results in a verdict for the plaintiff, no effort having been made to open the default, the defendant may not be heard to complain of the trial court's refusal to allow the filing of special pleas, or an order sustaining motions to strike them from the files, when they had been filed without authority from the court, unless the declaration upon its face was wholly bad, and stated no cause of action.
Evidence examined, and found sufficient to sustain the verdict.
$8,350 for loss of left hand of middle-aged gang saw operator, held excessive by $3,350. Verdict of $8,350, for loss of left hand of middle-aged gang saw operator, held excessive by $3,350.
COUNSEL Leitner & Leitner, of Arcadia, for plaintiff in error.
George A. DeCottes and Fred R. Wilson, both of Sanford, for defendant in error.
John G. Herrin was an employee of the Avon Manufacturing Company in August, 1921. The company operated a crate mill for the manufacture of crates and crate material. In the business in which it was engaged it employed certain machinery, among which was a device called a gang saw, mounted upon a table-like structure about 3 1/2 feet high, and was driven by a pulley and belt. The pulley was located under the table. It became necessary from time to time, while the machine was in operation sawing lumber into crate material, to remove the sawdust which fell from the saws upon the floor below and, accumulating in a pile, tended to obstruct the free and regular rotation of the saws.
The plaintiff in error, Herrin, was employed to 'run and operate' the machine. He was a man of about middle age, or slightly more. It was part of his duty to remove the sawdust from time to time, to do which he was provided with a stick or an implement made by fastening a small board to a handle to serve as a rake. While engaged in this work on the 26th day of August, 1921, he allowed the stick or implement mentioned to come in contact with the pulley under the table, or the belt which connected it with the 'gang saw' machinery, his left arm was jerked upward toward the gang saw, and his left hand was severed by the revolving saws.
In October, 1921, he brought an action against the company for damages for personal injury. There was a demurrer to the declaration, which was sustained, and in October, 1922, one year afterwards, he caused to be filed an amended declaration. The first count of the declaration alleged that the plaintiff was employed by the defendant to operate the 'gang saws'; that it was a dangerous employment, 'more than ordinarily so in the removal of accumulated sawdust underneath, around, and about said gang saws' in the manner hereinafter set forth, which it was necessary for the plaintiff to do in the performance of his duties. It was alleged that the pulley underneath the gang saws was 'uncovered, unprotected, and unguarded,' which made the removal of the sawdust dangerous; that the plaintiff was inexperienced in the employment in which he was engaged, and was not familiar with the manner of the operation of the saws; that the 'plaintiff was directed by the foreman, who was authorized to do so, to operate the gang saws'; that the foreman failed to warn and instruct plaintiff as to the danger; that the foreman directed the plaintiff to 'remove said sawdust with a stick'; that plaintiff was not warned of the danger.
The second count alleged that the plaintiff was employed to operate the gang saws, but the defendant did not provide a safe place for the plaintiff to work, because the pulley was unguarded; that the foreman directed the plaintiff to remove the sawdust while the saws were running, and in undertaking to remove it the plaintiff was injured.
The third count alleged that the plaintiff was employed by the defendant to operate the saws, but failed to provide a safe place for the defendant to work, because the gang saws were not provided with a suitable device for 'stopping the running thereof' when it became necessary to do so; that the removal of the sawdust rendered it necessary to stop the saws from running.
The fourth count alleged that the plaintiff was employed by the defendant to operate the saws; that the defendant failed to provide a safe place for the plaintiff to work, because the gang saws were not provided with a blower for blowing away the sawdust as it accumulated, or other suitable device for removing it. Each count alleged that the foreman directed the plaintiff to remove the sawdust.
A default against the defendant for failure to demur or plead was entered on November 6, 1922.
No action seems to have been taken on the default, and on February 7, 1923, the defendant interposed its plea of not guilty. There was a trial and verdict for the plaintiff on that plea, rendered February 7, 1923. A motion for a new trial was granted, to which order the plaintiff took a writ of error, and the order was affirmed. The opinion was delivered by this court on April 11, 1924. The writ of error was taken June 30, 1923. See Herrin v. Avon Mfg. Co., 87 Fla. 385, 100 So. 174.
The record in the instant case discloses that on July 3, 1923, while the cause was pending in this court, the 'defendant filed its amended plea.' There appears to have been no authority for so doing.
This 'amended plea' consisted of three pleas to each count. In each set of pleas there was one which averred that the plaintiff by his negligence contributed proximately to his injury. On September 5, 1924, the plaintiff demurred to the pleas setting up the defense of contributory negligence. The demurrer was sustained. Defendant then tendered another plea of the same character, and plaintiff's counsel asked for further time to demur to the plea. The court denied both requests, and required the parties to go to trial. A jury was then called, and on the 6th day of September the parties went to trial on the 'issue joined.' There was a verdict for the plaintiff in the sum of $8,350, and judgment entered for that amount and costs.
A writ of error was taken by the defendant to the judgment.
The bill of exceptions shows that on June 14, 1923, the defendant moved the court for leave to withdraw the plea of not guilty and interpose a demurrer to the declaration. The motion was denied. That action of the court is made the basis of the first assignment of error.
The bill of exceptions also discloses that on September 5, 1924 the plaintiff moved to strike all the pleas filed by the defendant on July 3, 1924, except four, to which the defendant ...
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