Dykes v. Simkins

• Decision Date: 05 June 1940
• Citation: 143 Fla. 625,197 So. 327
• Court: Florida Supreme Court
• Parties: DYKES v. SIMKINS.

197 So. 327

143 Fla. 625

DYKES v. SIMKINS.

Florida Supreme Court, Division B.

June 5, 1940

Error to Circuit Court, Dade County; Worth W. Trammell, Judge.

Suit by Mary A. Dykes, a widow, against Agnes J. Simkins, a widow for injuries resulting from fall. To review a judgment for defendant, plaintiff brings writ of error.

Affirmed.

COUNSEL Roy S. Wood, of Miami, for plaintiff in error.

Paul C Taylor, of Miami, for defendant in error.

OPINION

CHAPMAN Justice.

This case is here for review on writ of error to a final judgment for the defendant below entered by the Circuit Court of Dade County, Florida. The case went to trial on a declaration consisting of three counts. The general allegations of the declaration are that the plaintiff was a dressmaker and seamstress and was employed by the defendant for the sum of $3.50 per day and was furnished meals and board while at work in the home of the defendant.

On February 2, 1937, the plaintiff arose, dressed and went from the second floor of defendant's home where she slept to the first floor for breakfast. While breakfast was being prepared plaintiff sat on the porch and read the Miami Herald. She was called to breakfast and when walking from the porch through the living room to the dining room, she stepped on a small Oriental rug kept on the floor and the rug slipped under her weight and she fell and as a result her hip was broken. The plaintiff was in her sixties and weighed more than 150 pounds. The allegations of injury are fully set out in the declaration.

The theory of the plaintiff's case was that she was a servant of the defendant and was acting within the scope of her employment when injured and that her injury was due to the negligence of the defendant in failing to provide a reasonably safe place in which to work.

The first count charged that the defendant was negligent in failing to keep and provide floors in her said residence in a safe condition for the plaintiff to walk upon. The second count charged that the place where defendant was employed to work was slippery and unsafe to walk upon because of excessive wax or polish on the floor and had thereupon an Oriental rug unequipped with pads or devices to hold the same in place. The third count charged that it was the duty of the defendant to warn the plaintiff against known dangerous conditions about the residence and that the defendant knew or should have known, that the Oriental rug was not equipped with pads or other devices to hold same in place and keep same from slipping, with accumulated wax thereunder.

To the declaration the defendant filed pleas of not guilty assumption of risk, and pleas of special traverse, and upon replication by the plaintiff to some of the pleas of the defendant, the cause was submitted to a jury, which returned a verdict for the defendant. After a motion for a new trial was made and overruled a final judgment was entered for the defendant below and an appeal therefrom has been perfected to this court.

The parties will be referred to hereafter as plaintiff and defendant as they appeared in the lower court. It is contended here that the lower court erred in charging the jury in behalf of the plaintiff viz:

'In order for the plaintiff to prevail in this case it is necessary for her to prove by a preponderance of the evidence the material allegations of her declaration. The plaintiff alleges in her declaration that the injury which she alleges she received occurred while she was engaged in the service of the defendant as a seamstress.

'If you find from the evidence that Mrs. Dykes, at the time and place of the accident, was a guest or licensee in the home of Mrs. Simkins, and that her daily employment as a...