Davidow v. Seyfarth
| Decision Date | 09 May 1952 |
| Citation | 58 So.2d 865 |
| Parties | DAVIDOW v. SEYFARTH. |
| Court | Florida Supreme Court |
Blackwell, Walker & Gray, Miami, for appellant.
Marx M. Faber, Miami, for appellee.
The appellee, plaintiff in the circuit court, brought an action against the appellant, defendant there, for damages he sustained when the car in which they were riding, driven by the defendant, collided with a train of Seaboard Air Line Railroad Company. The mishap, so it was alleged, resulted from the negligence of the defendant.
It was specifically averred that at the time of the collision 'the plaintiff, Fred Seyfarth, was a mechanic in the employ of the defendant, Nathan Davidow, * * * and was being transported by the said defendant to his place of employment * * *.'
Seven defenses were pleaded. Then the complaint was amended to allege that the plaintiff was defendant's guest and that he had been injured through the defendant's gross negligence. The amendment brought forth eleven defenses.
When the matter reached the judge for a pre-trial conference, an order was entered containing the recital that the plaintiff elected to try the case 'solely on the theory that the plaintiff was actually at the time of the accident an employee of the defendant, and not within the scope of the Florida Workman's Compensation Law [F.S.A. § 440.01 et seq.] * * *'; so the gross negligence feature and corresponding pleas were abandoned.
This is the background for appellant's first question. He claims that despite the clear-cut issue of employment of the appellee by him, the appellee proved employment by Diaz Construction Company, a partnership of which appellant was a member. This, he insists, constituted a conflict between allegation and proof requiring a reversal of the judgment.
In some of the testimony to which we have been directed we have found that the appellee testified he 'worked for Mr. Davidow,' asked Mr. Davidow for a job, was called to work by Mr. Davidow and so on. In other instances he said he worked for Diaz Construction Company, the partnership--or presumed he did. If appellee was actually employed by the partnership he could not recover against the appellant individually.
It is clear that appellant and appellee were the only ones who negotiated with reference to the job, but we cannot tell, and we do not see how the jury could have told, whether the appellant was speaking for himself or the partnership. This uncertainty is inherent in the testimony of the appellee, himself. It seems to follow that the position assumed by the appellee was not established by a preponderance of the evidence.
In reply, appellee says that his adversary's position, expounded in the pleas and in the opening statement to the jury, is not consistent with his present one.
As we have said, the complaint contained the direct allegation that Seyfarth was employed as a mechanic by Davidow. In the third defense it was averred that 'Nathan Davidow was an employer within the terms and provisions of the Florida Workmen's Compensation Law; that the plaintiff * * * was an employee * * *' under the act; that 'the defendant * * * had secured compensation * * *' under the act; and that the court had no right to try the controversy, jurisdiction being in the Industrial Commission.
We do not find in this plea any admission that appellee was employed by appellant as distinguished from a partnership of which appellant was a member, for when the plea is read in the light of the order entered at the pre-trial conference, it can only be construed as a presentation of the issue of jurisdiction in the court, if Davidow was acting individually, or the commission, if he was acting as a partner.
Next, we come to the opening statement of appellant which appellee urges as emphasizing a sort of estoppel that arose from the pleading. Counsel simply said that Davidow was a member of a partnership known as Diaz Construction Company and that he purposed to show 'that the plaintiff went out to Mr. Davidow's place, and he gave him a job.' He also said 'that Mr. Davidow was going to take Mr. Seyfarth out to this job, so they could begin work.' It would not be just to construe that comment as singling out Davidow as an individual who was doing the employing. Rather it would indicate he was acting for the partnership.
Further to buttress his contention appellee quotes a part of a charge requested by the appellant and given by the court. It started out: 'If you find from the evidence in this case that the plaintiff Fred Seyfarth was not an employee of Nathan Davidow individually * * *' and ended with a statement about wanton misconduct and gross negligence, although those features had been discarded at the pre-trial conference. Why this charge was requested or given we are not informed.
Considering the three elements separately and collectively we cannot agree with appellee that the plea, the remarks of counsel or the quoted portion of the charge obviated proof of the relationship or strengthened the foggy evidence of the plaintiff with reference to this feature of the case.
The second question involves the effect upon the claim against the appellant of a 'Covenant Not To Sue' executed by the appellee in consideration of money paid him by Seaboard Air Line Railroad Company.
Seyfarth had sued the company in a United States District Court. In the instrument he acknowledged receipt of three thousand dollars,...
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