Burch v. Strange, C-23
| Decision Date | 21 February 1961 |
| Docket Number | No. C-23,C-23 |
| Citation | 126 So.2d 898 |
| Parties | Ernest W. BURCH, Appellant, v. J. L. STRANGE and Horne Lumber Supply Company, a corporation, Appellees. |
| Court | Florida District Court of Appeals |
Clayton, Arnow, Duncan & Johnston and Tench & Reynolds, Gainesville, for appellant.
Bates, McGowan & Jones and Gray, Chandler, O'Neal & Carlisle, Gainesville, for appellees.
One of the defendants in an action for trespass has appealed from a final judgment entered against him by the Circuit Court for Alachua County, based upon a verdict directed by the court for the plaintiff during the trial.
The principal question on this appeal is whether the trial court committed error in directing the verdict against the appellant. The plaintiff alleged in his complaint that he and the appellant were adjoining land owners and that the appellant wrongfully trespassed upon the plaintiff's lands and, while upon them, cut trees and otherwise defaced the said property, and thereby greatly and permanently damaged the lands. The plaintiff demanded both compensatory and punitive damages.
At the trial evidence showed that numerous trees on the plaintiff's lands were cut by one Lawrence Simmons, a logger, without the plaintiff's knowledge or consent. Simmons also cut trees on the adjoining lands owned by the appellant. The appellant testified that he had made a contract with Simmons to sell the latter certain of the trees on his lands and that he did not instruct Simmons to cut trees on the plaintiff's lands and did not indicate to Simmons that the plaintiff's lands belonged to him, the appellant. The appellant's testimony was such that, if believed, the jury could have found therefrom that Simmons bore to the appellant the relation of an independent contractor, rather than that of an agent or employee. There was no evidence that the appellant himself cut any trees on the plaintiff's lands.
If the jury were to find that the said Simmons bore the relation of an independent contractor to the appellant, was the appellant thereby legally responsible for the acts of Simmons in cutting down the trees on the lands of the appellee Strange? The answer to this question can be found only after a consideration of the decisions of the courts of this state concerning the liability of a person for the acts of his independent contractor.
The general rule that a person is not liable for the torts of his independent contractor is subject to a number of exceptions recognized by the courts of Florida. See discussion of this rule and its exceptions in 17 Fla.Jur. Independent Contractors, Sec. 5, pages 178-80. A major exception is when the employer has the right to direct or control the performance of the work or the manner of its accomplishment, for then the master and servant relationship arises as a basis for imposing liability upon the employer. See Mumby v. Bowden, 1889, 25 Fla. 454, 6 So. 453, and St. Johns & H. R. Co. v. Shalley, 1894, 33 Fla. 397, 14 So. 890, and Gulf Refining Co. v. Wilkinson, 1927, 94 Fla. 664, 114 So. 503. This exception, basically considered, is more apparent than real, for, when such control exists, the worker bears the relation of servant or employee to the employer rather than that of independent contractor. This distinction is ably delineated by Judge Kanner, speaking for the District Court of Appeal, Second District of Florida, in King v. Young, 1958, 107 So.2d 751, 753 when he wrote, and we quote with approval:
Another exception to the above general rule of nonliability for the torts of an independent contractor arises when the act contracted for is tortious. This exception was recognized by the Supreme Court of Florida in National Bureau, Inv. v. Florida Power Corporation, 1957, 94 So.2d 809, 811, 64 A.L.R.2d 859, involving a suit to enjoin an electric utility from occupying a certain strip across the plaintiff's lands without payment of damages for cutting certain trees on the strip. The lower court held that the utility was not liable for damages, as these were the responsibility of an independent contractor who had done the cutting. The Supreme Court held:
On rehearing, the Supreme Court reiterated its conclusion 'that the act contracted for being tortious, the defendant cannot escape responsibility for the acts of the contractor because he was an independent contractor.'
Another exception to the above general rule of nonliability was recognized...
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Windham v. Florida Dept. of Transp.
...the employer has the right to direct and control the performance of the work or the manner of its accomplishment, Burch v. Strange, 126 So.2d 898 (Fla. 1st DCA 1961); Peairs v. Florida Publishing Co., 132 So.2d 561 (Fla. 1st DCA 1961). Another basis for potential liability appears when an e......
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Mattes v. Coca Cola Bottling Co. of Miami
...admits every reasonable inference that a jury might fairly and reasonably arrive at favorable to the adverse party. Burch v. Strange, Fla.App.1961, 126 So.2d 898.' See also Mathis v. Lambert, Fla.App.1973, 274 So.2d 601. The evidence was of such nature from which the jury could have inferre......
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Peairs v. Florida Pub. Co., C-2
...could not absolve itself from liability by employing an independent contractor to make the repairs. In the case of Burch v. Strange, Fla.App.1961, 126 So.2d 898, we recognized the foregoing exceptions and held that in an action of trespass, where the trespass is done by an independent contr......
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Scott v. TPI Restaurants, Inc.
...781 So.2d 1122 (Fla. 3d DCA 2001); Edwards v. Orkin Exterminating Co., 718 So.2d 881, 883 (Fla. 3d DCA 1998) (citing Burch v. Strange, 126 So.2d 898 (Fla. 1st DCA 1961)); Houghton v. Bond, 680 So.2d 514 (Fla. 1st DCA 1996); see also Scott v. Otis Elevator Co., 680 So.2d 462, 462 (Fla. 1st D......