Crenshaw Bros. Produce Co., Inc. v. Harper

• Citation: 194 So. 353,142 Fla. 27
• Parties: CRENSHAW BROS. PRODUCE CO., Inc. v. HARPER (two cases).
• Decision Date: 23 February 1940
• Court: United States State Supreme Court of Florida

194 So. 353

142 Fla. 27

CRENSHAW BROS. PRODUCE CO., Inc. v. HARPER (two cases).

Florida Supreme Court, Division B.

February 23, 1940

On Rehearing March 15, 1940.

Error to Circuit Court, Pinellas County; John U. Bird, Judge.

Action by John T. Harper, Jr., against the Crenshaw Brothers Produce Company, Incorporated, and another, for personal injuries consolidated with an action by John T. Harper, Sr., against Crenshaw Brothers Produce Company, Incorporated, to recover damages sustained by him by reason of injuries to his son. To review adverse judgment, the named defendant brings error.

Affirmed.

COUNSEL

Shackleford, Farrior & Shannon, of Tampa, for plaintiff in error.

Worth Bivens & Lively, of Tampa, for defendant in error.

OPINION

BROWN Justice.

These two cases, which have been consolidated for the purpose of argument and disposition here, involve an important question. This question as we see it is the controlling question in both cases. It is this: Where a corporate employer places one of its employees in exclusive control and supervision of the operation of a dangerous instrumentality such as a heavy automobile truck, for operation by such employee upon the public highways in the business of employer, and also places such employee in direction and control of a student helper required by the employer to ride on its said truck, is such employee, in his management of said dangerous instrumentality, a fellow servant with the student helper under his direction, or a vice-principal of the employer?

The plaintiff in one of these cases was John T. Harper, Jr., and the plaintiff in the other case was John T. Harper, Sr. The Harper, Jr., suit was against the Atlantic Coast Line Railroad Company, a corporation and Crenshaw Bros. Produce Co., Inc., a corporation. The Harper, Sr., suit was against the Produce Company, alone. John T. Harper, Jr., who was nineteen years of age when his injury occurred, in his action, sought recovery of damages for his serious personal injuries, alleged to have been occasioned by the concurrent negligence of the defendants. The action filed by his father John T. Harper, Sr., was brought to recover damages sustained by him by reason of the injuries to his son, consisting of the cost of hospitalization charges; medical and surgical treatment; the loss of time from his work caused by the care, nursing, and cost of transportation of his son to and from the hospital and doctor's offices at various times, and the loss of earnings of his said son during his minority, etc.

The suit brought by John T. Harper, Jr. resulted in a verdict and judgment against Crenshaw Bros. Produce Co., Inc., in the sum of $3,000. The suit brought by the father resulted in a verdict and judgment in his favor against Crenshaw Bros. Produce Co., Inc., in the sum of $800. Both verdicts and judgments were rendered on the same day, which was February 12, 1938. The verdict in the case brought by John T. Harper, Jr., while finding for the plaintiff against the defendant Crenshaw Bros. Produce Co., Inc., in the sum of $3,000, expressly found the defendant Atlantic Coast Line Railroad Company not guilty. The judgment rendered that same day in that case was in favor of the plaintiff and against the defendant Crenshaw Bros. Produce Co., Inc., in the sum of $3,000 and costs, but did not dispose of the case as against the Atlantic Coast Line Railroad Company.

Writs of error were sued out in each of these cases by the defendant Crenshaw Bros. Produce Co. and after the cases had thus been brought to this court supplemental transcript of the record was filed showing that the court below had later entered a judgment nunc pro tunc disposing of the Harper, Jr., case as against the Atlantic Coast Line Railroad Company by adding to the former judgment a paragraph to the effect that the plaintiff 'do have and recover nothing of the defendant, the Atlantic Coast Line Railroad Company, a corporation', and that said corporation 'do go hence without day.' In this connection it was shown that this amendment was made by the consent of the parties to remedy an oversight by the court in its former final judgment and to which action of the court no objection was made and the supplemental transcript showing this nunc pro tunc entry was filed in this court by a stipulation of counsel.

The collision between the motor truck and the train which caused the injuries to John T. Harper, Jr., occurred on March 22, 1935. The employment in which he was then engaged had comprised a period of some four or five weeks, but he only worked about one day out of each week, not being steadily employed, but making trips when directed to do so by Mr. Allen, acting for Crenshaw Bros. Produce Co., as a student helper for which he was paid $1.50 per trip. He had been employed on a previous occasion, during the year 1934, in the same kind of a job by said defendant for a period of nine or ten months. During his first, as well as his second, employment, plaintiff would report at the warehouse at whatever time Mr. Allen told him to, and help load different trucks. After trucks were loaded, Mr. Allen would put him under a truck driver to go out and assist in making delivery of merchandise, and he assisted the driver in delivering the merchandise at the various stores at which they stopped. Mr. Allen would tell the assistant deliverymen of whom there were three or four, which truck they were to go out on each morning and the time they were to report each morning. During each period of employment he worked about one day per week. Mr. Allen was general manager for the defendant corporation. Plaintiff made application for a job as truck driver, which was refused him, but Mr. Allen gave him a job, 'as an extra man to learn how to handle the trucks.' Plaintiff testified that Mr. Allen told him to learn how to drive a truck; how to load the truck; the different routes and the customers; that he was promised a job as a truck driver 'after he had learned,' that his duties were nothing more than that of 'a student'. That he went out over various routes from time to time as designated by Mr. Allen and that he had been over the particular road which they were driving on the day of the accident on numerous occasions before that day and that he went out with the driver, Harry Grimes, more than any of the other drivers, and that he assisted in the driving of the truck whenever the driver told him to do so. That Mr. Allen told him to do what the driver said, while he was on the truck with the driver, and that he drove the truck only on particular occasions when the driver instructed him to do so, and that it was not his duty to watch out and help the driver when the driver drove. That he had been directed to go with and learn from Harry Grimes more than from any other driver, although there were eight or nine deliverymen working for the defendant. That Mr. Allen was in charge of all the truck drivers and their assistants and did all the hiring and discharging.

Plaintiff testified that he left Tampa on the morning that the collision occurred in a truck driven by Harry Grimes headed for Pinellas County; that they made two stops in Safety Harbor and after leaving there had stopped to assist a man having car trouble. That after leaving this man with the broken car, plaintiff had gone to sleep. Before he went to sleep, Grimes, the driver, had crossed two railway tracks and at each of these he had stopped the truck before going across the grade crossing. At the time plaintiff went to sleep he was sitting on the right hand side in the cab with his feet braced against the dash board and with his head resting back in the corner. It was then a little after six o'clock and not then daylight. That the next thing he knew, he came to consciousness in a hospital in Clearwater. The accident, as shown by other testimony, occurred when the truck was proceeding at a speed of about ten or twelve miles per hour in a Westerly direction in the town of Largo. The train was proceeding only twice the speed of the truck. There was some obstruction to the view of the driver upon approaching the track, until within about forty feet of it, but the train had made the usual station blow, and testimony of the engineer and fireman was to the effect that as the engineer approached the crossing the bell was ringing and the air whistle blowing. This testimony was supported by that of several other witnesses who were not employees of the Railroad Company. One of the witnesses, Louis Truby, an employee of the Government to carry the mail to and from the trains, had gone to the platform and was reading the morning paper when he heard the train blow and heard it approaching. He was an eye witness to the collision. He said that the truck was evidently in low gear and was going about twelve miles per hour and that he saw it approaching the crossing and tried to draw the driver's attention to the fact by holding up his hands and calling, and that the driver could have seen him had he been looking in his direction. He called to the driver several times as loud as he could, when the truck was about forty feet from the main track. That the sun was then up and if the driver had heard him or seen him, in his efforts to direct his attention to the fact that he was in a precarious position, he could have stopped the truck before getting on the track. But the driver came on at the same rate of speed and the engine struck the cab of the truck and it was bounced and pushed down the track a distance of about 250 feet. Several witnesses testified that they heard the air whistle and heard the bell ringing after the train had come around the curve and was approaching the station.

Mr. G T. Allen, witness for the defendant, testified that ...