Frantz v. McBee Co.

• Decision Date: 04 February 1955
• Citation: 77 So.2d 796
• Parties: Barbara W. FRANTZ, Appellant, v. McBEE COMPANY, a foreign corporation, and Robert Birch Finley, Appellees.
• Court: Florida Supreme Court

Page 796

77 So.2d 796

Barbara W. FRANTZ, Appellant, v. McBEE COMPANY, a foreign corporation, and Robert Birch Finley, Appellees.

Supreme Court of Florida, Division A.

Feb. 4, 1955.

Rehearing Denied Feb. 22, 1955.

Edward S. Hemphill and Victor Blue, Jacksonville, for appellant.

Adair, Kent & Ashby and W. Robert Mann and Howell & Howell, Jacksonville, for appellee.

ROBERTS, Justice.

This is an appeal from a summary judgment in favor of the defendants entered in a suit brought by the plaintiff-appellant, Barbara W. Frantz, as the widow of George Frantz, to recover for the death of her husband allegedly caused by the wrongful act of the defendant-appellee Finley. At the time of his death, the deceased was employed by the defendant-appellee, the McBee Company, a foreign corporation ('McBee' hereafter) as the agency manager in charge of its Jacksonville office. Finley was also an employee of McBee and worked out of the home office in New York. The deceased and Finley were on a field trip, with Finley driving decedent's car, when the car overturned, fatally injuring the deceased.

After various pleadings, the lower court entered a summary judgment for the defendants upon their motion, accompanied by affidavits. As to McBee, the court based its judgment on the fact that McBee had complied with the Florida Workmen's Compensation Act by taking out insurance to cover its Florida employees; and that since the remedy of the plaintiff's decedent was exclusively under this Act, no liability could be imposed by the plaintiff upon McBee under the Wrongful Death Act, Sec. 768.01, Florida Statutes, F.S.A. To combat this defense, plaintiff sought to show that McBee had not qualified to transact business in Florida as a foreign corporation nor in any way complied with the Florida foreign corporation law, Chapter 613, Florida Statutes, F.S.A. It is here contended that the lower court erred in refusing to allow plaintiff to do so. The gist of plaintiff's argument on this question is that, by failing to qualify to do business in this state, McBee has not acquired any 'rights, powers and privileges' under the laws of this State, Section 613.02, Florida Statutes, F.S.A., so that it is not entitled to take advantage of the 'exclusiveness of remedy' provisions of our Workmen's Compensation Act, Section 440.11, Florida Statutes, F.S.A. There is no merit to this contention.

Section 613.04, Florida Statutes, F.S.A., provides that 'The failure of any such fosreign corporation to comply with the provisions of this chapter shall not affect the validity of any contract with such corporation, * * *.' Thus, the contract of employment between McBee and plaintiff's decedent was a valid and subsisting one, despite McBee's failure to qualify under Chapter 613. It contemplated work to be performed wholly within this State, wherever it was executed (which is not shown by the record). If the death of plaintiff's decedent had occurred without the fault of anyone, and was otherwise within the terms of the Act, could McBee be heard to say that it was not liable for the death benefits awarded by the Act, since it had not qualified to do business in this state? We do not think so. By the same token, it has the right to say that its liability under the Act carries with it a corresponding right as to the limit of its liability under the Act.

There was, then, no error in entering a summary judgment in favor of McBee.

As to Finley, the lower court based its summary judgment in his favor on the fact that, at the time of the accident, Finley and plaintiff's decedent 'were fellow servants engaged in the common business of their employer, the McBee Company, and said Robert Birch Finley was not and is not a third party tort feasor within the provisions of the Florida Workmen's Compensation Act * * *.'

This court has never been called upon to decide whether a coemployee may be sued for his negligence in injuring a fellow employee in a case where the injured person's remedy against the common employer is exclusively under the Florida Workmen's Compensation Act. There is a diversity of opinion among the courts of other jurisdictions on this question. There can be no doubt that, at common law, servants mutually owed to each other the duty of exercising ordinary care in the performance of their service and were liable for a failure in that respect which resulted in injury to a fellow servant. 5 Thompson Neg., Sec. 5777, page 247. Our research indicates that most of the courts which hold that this common-law rule is abrogated by a Workman's Compensation Act have done so on the basis of the wording of the particular Act in question. Thus, the North Carolina, G.S. § 97-9, and Virginia, Code 1950, § 65-99, Workmen's Compensation Acts expressly provide that '* * * while such insurance remains in force he (the employer) or those conducting his business shall only be liable to an employee for personal injury or death by accident to the extent and in the manner herein specified.' (Emphasis supplied.) It is therefore held in these states that an officer or agent of a corporation who is acting within the scope of his authority for and on behalf of the corporation and whose acts are such as to render the corporation liable therefor, is entitled to the immunity given by the Act to the employer "or those conducting his business." Warner v. Leder, 234 N.C. 727, 69 S.E.2d 6, 7; Feitag v. Chalkley, 1946, 185 Va. 96, 38 S.E.2d 73. The New York Workmen's Compensation Law, McKinney's Consol. Laws, c. 67, Section 29, Subds. 1, 6, provides that the remedy thereunder shall be exclusive 'when such employee is injured or killed by the negligence or wrong of another in the same employ.' (Emphasis supplied.) So it is that in New York recovery cannot be had against a coemployee for injuries sustained in the course of the common employment. D'Agostino v. Wagenaar, 183 Misc. 184, 48 N.Y.S.2d 410, affirmed 268 App.Div. 912, 51 N.Y.S.2d 756, motion for leave to appeal denied 294 N.Y. 639, 640, 58 N.E.2d 522. Eight other states appear to have provisions in their Acts, referring to the third party as 'another not in the same employ' or 'employment,' under which it is held that an injured employee has no right of action for ordinary negligence against his coemployee or fellow servant, to wit, Alabama, Arizona, Colorado, Montana, Oklahoma, Oregon, Utah and Washington. See the discussion in Feitag v. Chalkley, supra, 38 S.E.2d 73, in this respect.

Counsel for the appellee Finley has cited no case, and our independent research has revealed none, in which it has been held, in the absence of a specific statutory provision similar to those quoted above, that a Workmen's Compensation Act has abrogated the common-law rule of liability for negligence of an employee to his coemployee, except in Massachusetts. Cf. Bresnahan v. Barre, 1934, 286 Mass. 593, 190 N.E. 815; Wechsler v. Liner, 1951, 328 Mass. 152, 102 N.E.2d 92. In fact, it appears to be the general rule that, where there is no legislative mandate to the contrary, fellow workmen or coemployees are treated as third parties within the meaning of a Workmen's Compensation Act. See 58 Am.Jur., Workmen's Compensation, Sec. 60, p. 616; annotation in 106 A.L.R. at page 1059; Tawney v. Kirkhart, 1947, 130 W.Va. 550, 44 S.E.2d 634; Sylcox v. National Lead Co., 1931, 225 Mo.App. 543, 38 S.W.2d 497; Schumacher v. Leslie, 1950, 360 Mo. 1238, 232 S.W.2d 913; Webster v. Stewart, 1920, 210 Mich. 13, 177 N.W. 230; Rehn v. Bingaman, 1949, 151 Neb. 196, 36 N.W.2d 856; McGonigle v. Gryphan, 201 Wis. 269, 229 N.W. 81; Churchill v. Stephens, 1917, 91 N.J.L. 195, 102 A. 657; Wells v. Lavitt, 1932, 115 Conn. 117, 160 A. 617; Morrow v. Hume, 1936, 131 Ohio St. 319, 3 N.E.2d 39; Thompson v. Lacey, 1954, 42 Cal.2d 443, 267 P.2d 1; Zimmer v. Casey, 1929, 296 Pa. 529, 146 A. 130.

The Florida Workmen's Compensation Act, Chapter 440, Florida Statutes, F.S.A., contains no immunity...