Cooney-eckstein Co. v. King

• Decision Date: 24 February 1915
• Citation: 67 So. 918,69 Fla. 246
• Parties: COONEY--ECKSTEIN CO. v. KING.
• Court: Florida Supreme Court

67 So. 918

69 Fla. 246

COONEY--ECKSTEIN CO. v. KING.

Florida Supreme Court

February 24, 1915

Error to Circuit Court, Duval County; D. A. Simmons, Judge.

Action by Ed King against the Cooney-Eckstein Company, a corporation. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

In passing upon an assignment based upon the overruling of a demurrer to a declaration, or other pleading, an appellate court will consider only such grounds of the demurrer as are argued, treating the other grounds as having been abandoned.

A declaration in an action at law, wherein it is sought to recover damages for personal injuries alleged to have been sustained by reason of the defective condition of a wharf, is not subject to demurrer on the ground that it fails to allege that the defendant was the owner or occupant of the wharf at the time the alleged injury was sustained by the plaintiff by reason of the defective condition of such wharf, when it is positively alleged therein that the defendant 'had exclusive control and management' of the wharf at such time. If the defendant had the exclusive control and management of the wharf, that is sufficient to make it liable for injuries occasioned by reason of its defective condition.

The common-law rule of liability of lessees who have control or occupancy of premises, for injuries caused by the defective or dangerous condition of the premises, where such defective or dangerous condition reasonably should have been known to and remedied by the occupying tenant, is in force in this state.

All the points adjudicated by an appellate court upon a writ of error or an appeal become the law of the case, and are no longer open for discussion or consideration.

In an action at law, wherein it is sought to recover damages for personal injuries alleged to have been sustained by reason of the defective condition of a wharf, if the defendant conceives that the description of such wharf is insufficient to enable it to plead with certainty to the declaration, it should apply to the court to have the declaration amended in such particular.

There is a clear distinction in the functions performed by a motion to strike out or for the compulsory reformation of a pleading and a demurrer thereto, and this distinction should be observed. They cannot be used interchangeably and indiscriminately employed, as they are governed by essentially different rules of procedure.

Contributory negligence is an affirmative defense and need not be negatived in the declaration.

Where a single assignment of error attacks the ruling of the trial court in sustaining a demurrer to four separate pleas, an appellate court, in passing thereon, need go no further than to ascertain that the demurrer was properly sustained ty any one of such pleas, as the assignment, being single, must fail, unless all of the pleas are good.

At common law the tenant and occupier of premises is bound, as between himself and the public, to keep the premises in such condition that they will be reasonably safe for persons who go lawfully upon the premises, by express or implied invitation; and such tenant or occupier is prima facie liable for damages caused by defects in or dangers on the premises that reasonably could have been avoided by appropriate care taken by the tenant or occupier. This is the law, even though the lessor covenanted to keep the premises in repair.

As a general rule, the doctrine of assumption of risk pertains to controversies between masters and servants, though circumstances may arise between parties other than masters and servants when the doctrine may apply.

As a general rule, assumption of risk rests upon contract, and is only available as a defense by reason of the contract.

COUNSEL J. E. & Julian Hartridge, of Jacksonville, for plaintiff in error.

J. M Carson, of Jacksonville, for defendant in error.

OPINION

SHACKLEFORD, J.

This case has been here once before. For the former opinion, see 66 Fla. 246, 63 So. 659. As we stated therein:

'In an action to recover compensatory damages for personal injuries alleged to have been caused by the negligence of the defendant corporation, the court directed a verdict for the defendant; and, to a judgment rendered on the verdict, the plaintiff took writ of error.'

This judgment we reversed, for the reasons stated in the opinion. Upon the going down of the mandate, the case came on again for trial upon the same pleadings and the issues thereby made. By stipulation of counsel for the respective parties the case was submitted to the circuit judge for trial and determination without a jury. Such stipulation further provided that the testimony, as contained in the transcript upon the former writ of error, should be used, and, as a matter of fact, no other testimony was adduced by either party, except as to the measure of damages. The trial court found, as a matter of law, that the plaintiff was entitled to recover, and assessed his damages at the sum of $2,000, for which amount judgment was rendered, which judgment the defendant has brought here for review.

The first assignment is based upon the overruling of the demurrer interposed to the declaration. The demurrer contains eight grounds or 'substantial matters of law intended to be argued,' but we shall discuss only such of the grounds as are insisted upon here, treating the other grounds as having been abandoned. Jacksonville Electric Co. v. Schmetzer, 53 Fla. 370, 43 So. 85. It is contended that the declaration is defective because it fails to allege that the defendant was the owner or occupant of the wharf at the time the alleged injury was sustained by the plaintiff by reason of the defective condition of such wharf. We are of the opinion that the contention is without merit, since the declaration positively alleges that the defendant 'had exclusive control and management' of the wharf, which was in bad repair and had been for a long space of time prior to the injury; that the defendant knew, or should have known, of such defective condition, and negligently and carelessly failed to repair the same; and that the plaintiff was lawfully upon such wharf at the time the injury occurred by the permission and invitation of the defendant. Ownership of the wharf by the defendant was not necessary in order to render the defendant liable for the injury. This point was decided adversely to the defendant in the former opinion, which has become the law of this case. See Paul v. Commercial Bank, 68 So. 68 (decided here at the present term). If the defendant had the exclusive control and management of the wharf, that is sufficient to make it liable for injuries occasioned by its defective condition. It is sufficient to refer to the reasoning and the authorities cited in our former opinion. As we held therein:

'The common-law rule of liability of lessees who have control or occupancy of premises, for injuries caused by the defective or dangerous condition of the premises, where such defective or dangerous condition reasonably should have been known to and remedied by the occupying tenant, is in force in this state.'

It is further contended that the declaration is defective in that the wharf upon which the accident is alleged to have occurred is not particularly or sufficiently described, so as to put the defendant 'upon sufficient notice to make it possible for it to plead with certainty.' Even so, this would not constitute a ground for a demurrer. Different functions are performed by a demurrer, a motion to strike out, and a motion for the compulsory amendment of a pleading, as we held in Southern Home Insurance Co. v. Putnal, 57 Fla. 199, 49 So. 922. If the defendant conceived that the description of the wharf was insufficient to enable it to plead with certainty to the declaration, it should have applied to the court to have the declaration amended in such particular. City of Orlando v. Heard, 29 Fla. 581, 11 So. 182.

It is still further contended that the allegations of the declaration are so framed that the plaintiff was shown to have been guilty of...