Bucki v. Cone

• Decision Date: 18 May 1889
• Citation: 6 So. 160,25 Fla. 1
• Parties: BUCKI v. CONE.
• Court: Florida Supreme Court

6 So. 160

25 Fla. 1

BUCKI v. CONE.

Florida Supreme Court

May 18, 1889

Appeal from circuit court, Madison county; ENOCH J. VANN, Judge.

Syllabus by the Court

SYLLABUS

1. Action on the case, and not trespass vi et armis, is the proper remedy for damage to the reversioner, both in relation to real and personal property; and under our statute the venue may be either in the county where the cause of action accrued, or in the county of the residence of the defendant.

2. A declaration is not faulty in omitting to set forth facts that are more properly matters of evidence, when its general allegations include the facts, and are not mere conclusions of law.

3. A partnership may be sued for a tort, and if one of the partners dies pending the suit, an order to carry it on against the survivor is proper, and a judgment against the survivor will not be error, there being no question of debt or of the rights of creditors of the partnership involved.

4. Rivers in which the tide ebbs and flows are navigable streams at common law, and in this country all rivers are regarded as navigable as far up as they may be conveniently used at all seasons of the year for the purposes of commerce, and also when declared by statute to be navigable; but, further than this, what constitutes a navigable stream, so far as to make it a public highway, is a question of fact to be determined by the natural conditions in each case. A stream of sufficient capacity and volume of water to float to market the products of the country, of whatever kind or however floated, will answer the latter conditions of navigability and it is not essential that the stream should be continuously in a state suited to the floatage.

5. The Suwanee river at and above White Sulphur Springs, in Hamilton county,held, on the evidence, to be a navigable stream and public highway for the floatage of logs.

6. But as the statute authorizes the building of a bridge across such a stream, if built so as not to obstruct or unreasonably impede navigation, the floatage of logs must be with due and reasonable regard to the rights of the bridge-owner. If he provides sufficient space and proper conveniences for the passage logs, singly or in rafts, the floatage must be conducted in such manner as to numbers or condition of logs as will suit the passage way. Failing in this, if injury results to the bridge, the owner will be entitled to compensation therefor.

7. The bridge in this case being shown to have a space of over 50 feet for the passage of logs, and to have guide-booms to direct the floatage, is held not to conflict with proper navigation of the river there; and the letting loose 3,500 or 4,000 logs on rising waters, to be precipitated against the bridge, is negligence, which, if resulting in the destruction of the bridge, entitles the owner to damages from the negligent party.

8. In addition to the definition of 'negligence,' constituting a cause of civil action given by this court another apt one for this case is that it is such an omission by a responsible person, to use that degree of care, diligence, and skill which it was his legal duty to use for the protection of another person from injury, as in a natural and continuous sequence causes unintended injury to the latter.

COUNSEL A. W. Cockrell & Son, for appellant.

B. H. Palmer, for appellee.

OPINION

MAXWELL, J.

This action was brought in Madison county, and in the original and amended declarations is styled an 'action on the case.' It was against Louis Bucki and Charles Bucki partners doing business under the name, firm, and style of L. Bucki & Son, and the declaration ran against them accordingly. The amended declaration avers that 'on the 30th day of June, 1884, the plaintiff (Cone) was lawfully enfranchised, and the legal owner of a certain toll-bridge spanning the Suwanee river at the White Sulphur Springs, Fla., the northern abutments of said bridge resting upon the bank of said river in Hamilton county, * * * and the southern abutments * * * resting upon the southern bank, in Columbia [county,] * * * which said bridge on the aforesaid day was in the possession and occupation of O. K. Paxton, as tenant thereof, to the said plaintiff, the reversion thereof then and still belonging to the plaintiff, and that the defendants are the owners of a certain boom north and above the said toll-bridge, * * * said boom made and constructed for the purpose of holding and detaining logs, timber, etc., in said river; that in said boom * * * defendants had collected and amassed a large lot or number of logs; that upon a considerable swell or rise of the water in said river on or about the 26th day of June, 1884, the defendants, by their agents, employés, or servants, wrongfully, carelessly, and negligently cut loose said boom, and turned out in mass said logs from said boom, and so improperly, carelessly, and negligently drove or managed said logs that by and through said wrongfully, carelessly, and negligently cutting said boom, and turning said logs out of said boom in mass, and the improper, careless, and negligent driving and managing said logs by said agents, employés, or servants * * * the said logs ran down said river with such velocity, and in such mass, as to wrongfully and unlawfully, on the said 30th day of June, 1884, strike plaintiff's bridge, and carry away and utterly destroy the said * * * bridge, * * * to the damage of plaintiff,' etc.

There had been a demurrer to the original declaration, and the amended one was also demurred to. The court overruled both. This action of the court is assigned for error as to each, but we confine our attention to the latter, as the former was practically out of the case when the latter was filed. It is said, for demurrer in the first place, that while the 'declaration is entitled an action on the case, yet the injury complained of, if the allegations therein made constitute an injury, is a case of trespass vi et armis.' If this be a good ground of demurrer in any trespass case, it is not in a case like this. The plaintiff sues as owner of the bridge, not, being in possession thereof at the time of its destruction, but the possession being in the tenant to whom he had let it. That tenant would be the proper person to sue for any injury to the possession, but for injury to the reversion an action on the case by the plaintiff is the proper remedy. This is the rule as to both personal and real property. Chit. Pl. (16 Amer. Ed.) 71-72. And as to venue, the question arising from the fact that the bridge stretches from one county to another, while the action was brought in a third, where defendants resided, we incline to the opinion that under our statute such an action, not involving the property itself, but only damages for injuries to it, may be brought either in or [in which] the cause of action accrued.' or [in which] the cause of action accued.' McClel. Dig. p. 811, § 5. For construction of the statute, see Russ v. Mitchell, 11 Fla. 80. But, if there is doubt on this, the objection to the venue should have been made by plea in abatement, which was not done, and it was not available either on demurrer, or after trial on pleas to the merits.

The demurrer further holds the declaration faulty in averring that plaintiff is 'lawfully enfranchised and the legal owner' of the bridge, without setting forth the facts on which the averment is based, and also in failing to set forth the source and extent of the right to keep or maintain the bridge, so as to enable the court to determine whether the franchise has been so guarded and restricted as to protect the right of navigation. We think the declaration sufficient in the averments made, not being mere conclusions of law, and that the facts mentioned as not being set forth are matters of evidence to be brought out on the trial; and the same is our view as to other facts not averred, which need not be recited here, and the absence of which constitute other grounds of demurrer. It is our opinion the demurrer was properly overruled.

During the pendency of the case there was a suggestion of the death of Louis Bucki, and an order to amend so as to make the surviving partner, Charles L. Bucki, the defendant, and the judgment was against the latter as surviving partner. This is assigned for error. The objection seems to us to be untenable. In so far as it may rest upon an idea that a partnership cannot be sued for a tort, that is a mistake. The law is otherwise. 1 Lindl. Partn. 283; Linton v. Hurley, 14 Gray, 191. Then the action could be maintained against the partners as a firm, and if both had lived a judgment could have gone against the firm. When one of them died, that did not abate the action, and it was altogether proper to carry it on under suitable order against the survivor. It is no answer to this to say that it was not a debt, and that to make it a debt by judgment would be in derogation of the rights of creditors of the firm. In the first place, even if ordinary creditors were allowed a preference, that is not a reason why the judgment should not be given, for there might not be occasion for any question as to preference; and in the next place, if there should be occasion, it is not to be anticipated as a valid objection to a rightful judgment. It will be time enough to determine how the judgment will affect outside parties when they are in a position to interfere. The surviving partner has only to defend against liability of the firm, and, if unsuccessful in that, the judgment should condemn him as such surviving partner to pay the damages found. We think that in this respect the judgment was correct.

The parties having waived a jury, the case was tried on the facts by the court. The findings of the court on 'all the...