Co-operative Sanitary Baking Co. v. Shields

• Decision Date: 05 February 1916
• Citation: 70 So. 934,71 Fla. 110
• Parties: CO-OPERATIVE SANITARY BANKING CO. v. SHIELDS.
• Court: Florida Supreme Court

70 So. 934

71 Fla. 110

CO-OPERATIVE SANITARY BANKING CO. v. SHIELDS.

Florida Supreme Court

February 5, 1916

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by George Shields against the Cooperative Sanitary Baking Company, a corporation. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

A declaration should contain sufficient allegations of all the facts that are necessary to state a cause of action. As a general rule, only ultimate facts need be alleged.

Where the facts are, or reasonably should be, within the knowledge of the plaintiff, the declaration should contain sufficient statements of facts to apprise the defendant of the particular acts or circumstances upon which the action is based, in order that there may be no embarrassment in preparing a defense.

In actions for negligent injuries it may be necessary to allege only the relation between the parties out of which the duty to avoid negligence arises, and the act or omission that proximately caused the injury, coupled with a statement that such act or omission was negligently done or omitted.

Where a declaration is filed in an action at law containing unnecessary counts, the trial court is warranted in requiring a compulsory amendment thereof of its own motion, under the provisions of section 1433 of the General Statutes of Florida.

Under the statutes of this state, a demurrer may be interposed to a pleading only for matters of substance in stating a cause of action or matters of defense. Where a pleading alleges a cause of action for any relief, or states any substantial matter of defense, it is not subject to demurrer even though it contains irrelevant, immaterial, or improper matters. Such matters contained in a pleading may be reached upon proper application by motion to strike or for compulsory amendment under the statute.

A verdict should be set aside when it clearly appears to be contrary to law.

Where contributory negligence prevents recovery, and it clearly appears from the evidence that the negligence of the plaintiff so contributed proximately to the injury complained of that it would not have occurred but for the plaintiff's negligence, a verdict awarding damages should be set aside.

At common law a plaintiff could not recover for injuries to himself caused by the negligence of another if he in any appreciable way contributed to the proximate cause of the injury, upon the theory that there is no apportionment of the results of mutual negligence.

It is the duty of the master to use due diligence in providing a reasonably safe place for the servant to work in, and also to inform the servant of any dangers in the employment that are not of such a character that the servant should know of them and to warn young and inexperienced employés of dangers in their employment as to which they have no knowledge or appreciation.

If a servant fails to exercise ordinary care for his safety, he cannot in general recover damages for an injury.

Where dangers are obvious and the servant is capable of appreciating them, a warning as to such dangers by the master is unnecessary.

The common law is in force in this state, except where it has been modified by competent governmental authority. In actions for the recovery of damages for injuries to a person or his property, alleged to have been occasioned by the negligence of the defendant, the common-law principle which prevents a recovery if the plaintiff's own negligence contributes proximately to his injuries has not been modified or changed except in the case of railroad companies.

COUNSEL Lunsford & De Vane, of Tampa, for plaintiff in error.

Mabry &amp Carlton, of Tampa, for defendant in error.

OPINION

SHACKLEFORD J.

George Shields brought an action at law against the Cooperative Sanitary Baking Company, a corporation, whereby he sought to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. The declaration was amended, and as it finally stood contained seven counts. The defendant, after having unsuccessfully interposed demurrers to the declaration as amended, filed three pleas, not guilty, contributory tributory negligence, and that it was 'no part of the duty of the plaintiff in his employment by the defendant to operate, clean, or otherwise manipulate, handle, or come in contact with the said 'dough divider' or 'scaling machine'; nor was the plaintiff required or instructed by the defendant to operate, clean, or in any manner manipulate or come in contact with said dough divider or scaling machine.'

The plaintiff joined issue upon all these pleas, and a trial was had before a jury, which resulted in a verdict and judgment in favor of the plaintiff for the sum of $2,250, which judgment is brought here for review. Twenty-four errors are assigned, the first two being based upon the overruling of the demurrer to the amended declaration, which consisted of five counts, and the overruling of the demurrer to the sixth and seventh additional counts of the declaration. We have frequently had occasion to discuss the essential allegations of a declaration in an action for damages for personal injuries caused by the negligence of the defendant. See Warfield v. Hepburn, 62 Fla. 409, 57 So. 618, wherein we held as follows:

'A declaration should contain sufficient allegations of all the facts that are necessary to state a cause of action. As a general rule, only ultimate facts need be alleged.

'Where the facts are, or reasonably should be, within the knowledge of the plaintiff, the declaration should contain sufficient statements of facts to apprise the defendant of the particular acts or circumstances upon which the action is based, in order that there may be no embarrassment in preparing a defense.

'In actions for negligent injuries, it may be necessary to allege only the relation between the parties out of which the duty to avoid negligence arises, and the act or omission that proximately caused the injury, coupled with a statement that such act or omission was negligently done or omitted.'

Also, see Consumers' Electric Light & St. R. Co. v. Pryor, 44 Fla. 354, 32 So. 797, and authorities therein cited; Louisville & N. R. Co. v. Jones, 45 Fla. 407, 34 So. 246; Jacksonville Electric Co. v. Schmetzer, 53 Fla. 370, 43 So. 85; Wood Lumber Co. v. Gipson, 63 Fla. 316, text 320, 58 So. 364; Coombs v. Rice, 64 Fla. 202, 59 So. 958; Florida East Coast Ry. Co. v. Knowles, 68 Fla. 400, 67 So. 122. We would also refer especially to our discussion of the object of judicial proceeding, the functions performed by pleadings, and what should characterize them, in Seaboard Air Line Ry. v. Rentz, 60 Fla. 429, 54 So. 13. As will be seen from an examination of these cited cases, the allegations of unnecessary matters may prove dangerous. The declaration in the instant case is unduly prolix and contains unessential and unnecessary allegations. It may well have been open to attack by a motion for compulsory amendment, in accordance with the provisions of section 1433 of the General Statutes, as we can see no necessity for seven separate counts and we are of the opinion that they would tend to confuse the jury, if not also the trial judge, as to the issues to be tried and determined. We do not copy the declaration which as it stood at the trial covered nearly eight typewritten pages, or the grounds of the two demurrers interposed thereto which covered nearly three typewritten pages. It is sufficient to say that the declaration, however subject to criticism, does state a cause of action, and we are of the opinion that the trial court committed no error in overruling the two demurrers.

In view of the conclusion which we have reached, it becomes unnecessary for a proper disposition of the case to treat the numerous assignments of error. As we have frequently stated the common law is in force in this state, except where it has been modified by competent governmental authority. See the express provisions of section 59 of the General Statutes, to which we have referred in a number of cases, from which we mention Hart v. Bostwick, 14 Fla. 162, text 173; Atlanta & St. A. B. Ry. Co. v. Thomas, 60 Fla. 412, text 422, 53 So. 510; Prairie Pebble Phosphate Co. v. Taylor, 64 Fla. 403, text...