Cuyler v. Elliott.

• Citation: 182 So.2d 55
• Decision Date: 27 December 1965
• Docket Number: No. 168,168
• Parties: John CUYLER, Appellant, v. Donald ELLIOTT, Appellee.
• Court: Court of Appeal of Florida (US)

Page 55

182 So.2d 55

John CUYLER, Appellant, v. Donald ELLIOTT, Appellee.

No. 168.

District Court of Appeal of Florida, Fourth District.

Dec. 27, 1965.

Appeal from Circuit Court of Broward County; O. E. Williams, Jr., judge.

Oscar C. Edrington, Miami, for appellant.

Eugene L. Heinrich, of McCune, Hiaasen, Crum & Ferris, Fort Lauderdale, for appellee.

PER CURIAM.

Affirmed. See Slack v. Acousti Engineering Company of Florida, Fla.App.1960, 122 So.2d 574.

SMITH, C. J., and ANDREWS, J., concur.

BARNS, PAUL D., Associate Judge, dissents.

BARNS, PAUL D., Associate Judge (dissenting).

This is an appeal by the plaintiff from a final summary judgment entered against him on motion of the defendant after the defendant had answered. The defendant's motion for summary judgment was heard on the pleadings, plaintiff's deposition taken by the defendant, and the defendant's answers to written interrogatories submitted by the plaintiff. I find error and would reverse.

The complaint alleges that plaintiff, while grinding the terrazzo floor of a dwelling, was injured by falling trusses; that the trusses fell by reason of their negligent installation by the defendant, a 'fellow servant'.

The uncontroverted facts appear to be that the plaintiff, a terrazzo tile grinder, was an employee of Tropical Tile and Terrazzo Company, and that 'Terrazzo' was a Subcontractor to the general contractor. The defendant, Elliott, was a carpenter by trade and was an employee or subcontractor as to H. F. Mayer (a subcontractor of the general contractor), and for his services was to receive 'approximately $700.00 to $750.00, including extras on this particular house.'

The plaintiff, while grinding on Sunday, August 25th, was injured by reason of the falling of prefabricated trusses which had been installed by Elliott on the previous Friday and held in position by furring strips. The installation of the trusses were incomplete.

By reason of his injuries, the plaintiff was awarded and is receiving benefits under the 'Workmen's Compensation Law pursuant to coverage procured by his employer--'Terrazzo'.

The trial court based its summary judgment against the plaintiff upon the findings 'that the plaintiff was injured as a result of an industrial accident arising out of and in the course of his employment as an employee of a subcontractor upon a construction job as to which the defendant was then and there a subcontractor and as to which accident and injuries workmen's compensation benefits were required and in fact provided by plaintiff's employer', and held the benefits under workmen's compensation to be his exclusive remedy for his injury.

The holdings in the decisions in the Younger case, and adhered to in the Miami Roofing case, support the lower court's decision, but both of these cases have now been overruled on this point.

Younger v. Giller Contracting Co., 1940, 143 Fla. 335, 196 So. 690, was an action by an employee of the general contractor against a subcontractor for injury caused by subcontractor's employee. The general contractor was within the scope of the Workmen's Compensation Law and the Supreme Court held: 'The subcontractor is not 'some person other than the employer' against which 'third person' a commonlaw action for damages may be maintained' as provided by the Workmen's Compensation Law.

Miami Roofing & Sheet Metal Co. v. Kindt, Fla.1950, 48 So.2d 840, was an action by an employee of a subcontractor against another subcontractor for injuries caused by the negligence of the defendant's employees. Plaintiff's employer came within the scope of the Workmen's Compensation Law and benefits under it were paid. The Supreme Court held that plaintiff's remedy under the Workmen's Compensation Law was exclusive and, after citing the Younger case for authority, reversed judgment for the plaintiff.

After making note of the holdings in the Younger and the Miami Roofing cases, the Supreme Court in Frantz v. McBee Company, Fla.1955, 77 So.2d 796, stated:

'* * * A recent decision by this court, Jones v. Florida Power Corp., Fla.1954, 72 So.2d 285, 287, charts the path which we should follow in our decision here, much more than does the dictum in the Younger case.

'In the Jones case, we held that 'It is the liability to secure compensation which gives the employer immunity from suit as a third party tort-feasor. His immunity from suit is...