Crowder v. Wolary

• Decision Date: 02 August 1940
• Citation: 144 Fla. 149,198 So. 9
• Parties: CROWDER v. WOLARY.
• Court: Florida Supreme Court

198 So. 9

144 Fla. 149

CROWDER v. WOLARY.

Florida Supreme Court, Division B.

August 2, 1940

Rehearing Denied Oct. 8, 1940.

Error to Circuit Court, Brevard County; M. B. Smith, Judge.

Action by Marvin Crowder against Carl Wolary to recover for personal injuries. To review an adverse judgment, plaintiff brings error.

Affirmed.

On Petition for Rehearing.

COUNSEL G. P. Garrett, of Orlando, for plaintiff in error.

Russell Snow and Lloyd Campbell, both of Cocoa, for defendant in error.

OPINION

CHAPMAN Justice.

This case is before the Court on writ of error to a final judgment on demurrer for the defendant entered by the lower court. The case turns on whether or not the amended declaration states a cause of action.

The amended declaration is, viz.:

'Amended Declaration.

'Marvin Crowder, plaintiff herein, sues Carl Wolary, defendant herein, by this his amended declaration, and says that:

'Count No. 1.

'(a) On, to-wit: January 31st, A. D. 1939, in to-wit: Brevard County, Florida, the said Marvin Crowder, while employed by and working for Carl Wolary, and while acting within the course and scope of his said employment, was injured at a filling station in Cocoa, Florida, which was then and there being operated and managed by the said Carl Wolary defendant herein.

'(b) At the time and place of the said injury, the said Carl Wolary was temporarily absent from said filing station but had placed the said Marvin Crowder under the authority of one Hardy Bonner, as vice-principal of the said Carl Wolary, said Hardy Bonner having been put by Carl Wolary in charge of said filling station during the said temporary absence of the said Carl Wolary from said filling station.

'(c) And it was then and there the duty of Carl Wolary then and there to furnish the said Marvin Crowder with a safe place in which to work, and to leave said filling station, during his said temporary absence in the charge of a competent vice-principal, who would and could properly discharge the duties of such vice principalship, and it was then and there the further duty of the said Carl Wolary to see to it that his vice-principal, Hardy Bonner, who was acting for him in his absence, then and there acted toward the said Marvin Crowder without wilful misconduct and without neglect for his personal safety.

'(d) Nevertheless, the said defendant, Carl Wolary, disregarding his said duties, did not then and there furnish Marvin Crowder a safe place in which to work and did not then and there leave said filling station in the charge of a competent vice-principal because defendant knew that Bonner was a prankster and did not then and there see to it that his said vice-principal acted toward Marvin Crowder without wilful misconduct and without neglect for his personal safety.

'(e) The injury to plaintiff occurred as follows: While the said Marvin Crowder was then and there cleaning the grease rack in said filling station and bending his body over the said grease rack for that purpose, the said Hardy Bonner, without cause or excuse, deliberately pushed one of the air hose in use at said station in the rectum of the said Marvin Crowder and turned on the air pressure therein to the extent of approximately 175 pounds, causing said compressed air to escape from said hose into the rectum of Marvin Crowder and thereby greatly inflated with air under high pressure the stomach and intestines of said Marvin Crowder and thereby caused a rupture of said intestines and cause him to suffer great shock, injury, physical pain and temporary and permanent physical disability.

'(f) And the said injury to Marvin Crowder resulted from said neglect of duty on the part of the defendant, Carl Wolary, in then and there failing to furnish Marvin Crowder a safe place in which to work and in then and there leaving said filling station and the said Marvin Crowder in charge of a vice-principal who the defendant knew, or should have known, was incompetent to assume the duties of vice-principal and in then and there failing to see to it that said vice-principal then and there acted toward Marvin Crowder without wilful misconduct and without neglect for his personal safety.

'(g) As the result of said injury, the said Marvin Crowder has thenceforward suffered, and still suffers, great physical pain and misery, and temporary and permanent physical disability, and it became necessary because of said injury to operate upon said Marvin Crowder and because of said injury said Marvin Crowder has lost much time and work and also has been put to a great expense for hospital bills, doctor's bills, for drugs and medicines and nursing bills, and has lost divers large gains, income, wages, salary and profits and has been and still is permanently physically injured and disabled.

'Wherefore, plaintiff sues defendant and claims damages in the amount of $10,000.00.'

It is contended that it was the legal duty of the defendant to furnish the plaintiff a safe place in which to work and to furnish him a competent fellow employee; and that plaintiff's vice-principal, Hardy Bonner, was not only incompetent but was a prankster and known to be such by the defendant and this fact alone rendered unsafe the place where plaintiff was required to work, and that these were nondelegable duties of the defendant. Some of the authorities cited to sustain this view are, viz: Ball v. I.C. Helmly Furn. Co., 132 Fla. 882, 182 So. 435; Crenshaw Bros. Produce Co. v. Harper, Fla., 194 So. 353; Tampa Shipbuilding & Eng. Co. v. Thomas, 131 Fla. 650, 179 So. 705; Sutton Bros. v. Hancock, 105 Fla. 497, 141 So. 532; Stinson v. Prevatt, 84 Fla. 416, 94 So. 656; Stearns & Culver Lbr. Co. v. Fowler, 58 Fla. 362, 50 So. 680; Euting v. Chicago & N.W. R. R. Co., 116 Wis. 13, 92 N.W. 358, 60 L.R.A. 159, 96 Am.St.Rep. 936; Zabawa v. Oberbeck Bros. Mfg. Co., 146 Wis. 621, 131 N.W. 826, Ann.Cas.1912C, 419; Robinson v. Melville Mfg. Co., 165 N.C. 495, 81 S.E. 681, 52 L.R.A.,N.S., 385. These cases and others cited in the brief of plaintiff in error have been carefully considered.

In the case of Zabawa v. Oberbeck Bros. Mfg. Co., supra., the court held that the question of whether or not the employee of the defendant was engaged in work within the scope of his employment at the time plaintiff was injured was for a jury to determine under appropriate instructions, while other courts hold that this question should be determined by the court as a matter of law.

The courts in recent years have decided cases involving injuries inflicted by means of compressed air devices used as a prank. These cases generally hold that the responsibility of the employer does not depend on the question of whether or not an inflicted injury was wilful and intentional or unintentional, but on the question of whether or not the employee when he did the wrong, thereby inflicting the injury, acted within the scope of his authority while prosecuting the employer's business or had stepped aside from that business and thereby committed an individual wrong. See Ferguson v. Rex Spinning Co., 196 N.C. 614, 146 S.E. 597, 62 A.L.R. 1430, and annotations at page 1433; Ballard's Adm'x v. Louisville & N. R. Co., 128 Ky. 826, 110 S.W. 296, 16 L.R.A.,N.S., 1052; Galveston, H. & S. A. R. Co. v. Currie, 100 Tex. 136, 96 S.W. 1073, 10 L.R.A.,N.S., 367.

The demurrer admitted the truth of the allegation that the plaintiff was injured while working for the defendant at the filling station and received the injury while discharging duties within the scope of his employment. Likewise it is admitted that the plaintiff was injured by the defendant's employee, but it is illogical and unreasonable to assume that the employee injured the plaintiff while acting within the scope of his employment when he deliberately pushed the air hose in use at the filling station into the rectum of the plaintiff and turned on the air, thereby inflating the intestines and stomach of the plaintiff. There is no legal liability of a master for the acts of his servant as to matters beyond the scope of his employment.

Labatt on Master and Servant, Vol. 2 (1904) pages 1536-1541, par. 537, says:

'537. No Responsibility as to Matters Beyond the Scope of the...