Gainesville & Gulf R. Co. v. Peck

• Decision Date: 24 March 1908
• Citation: 55 Fla. 402,46 So. 1019
• Parties: GAINESVILLE & GULF R. CO. v. PECK.
• Court: Florida Supreme Court

46 So. 1019

55 Fla. 402

GAINESVILLE & GULF R. CO. v. PECK.

Florida Supreme Court, Division B.

March 24, 1908

Rehearing Denied May 14, 1908.

Headnotes Filed July 6, 1908.

Error to Circuit Court, Marion County; William S. Bullock, Judge.

Action by John B. Peck against the Gainesville & Gulf Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

When any ground of demurrer to a declaration is sustained, the demurrer to that declaration is sustained. In ruling upon a demurrer the court either sustains or overrules the demurrer generally. It is of no consequence that the court may, in terms, overrule one or any number less than the whole of the assignments of error. The sustaining of any ground is as effectual as the sustaining of the demurrer generally. The court is not required to specify the particular ground or point of law in his ruling upon a demurrer where several substantial matters of law are stated, though it may be more convenient to the party demurring for the court to do so.

Where one ground of the demurrer to the declaration is sustained and other grounds thereof are overruled, the plaintiff amends the declaration, and the defendant does not demur to this amended declaration, but files pleas thereto, the demurrer thus ruled upon does not apply to the amended declaration. If the defendant desires to make a point on the court's overruling the other grounds of the demurrer, he should specifically demur to the amended declaration setting up those grounds.

A licensee is a person who is neither a passenger, servant, or trespasser, and not standing in any contractual relation to the railroad, and is permitted by the company to come upon its premises for his own interests, convenience, or gratification.

While the rule of liability to trespassers may be very much the same as the liability of an owner of premises to licensees yet where a particular individual, or the public, has express or implied license to enter the premises in question, the probability of the presence of persons thereon may be more readily contemplated than in the case of mere trespassers and so there was no abuse of judicial discretion in the trial court making an order for the compulsory amendment of a plea wherein the plaintiff was charged with being a 'trespasser or licensee.'

Pleas that deny matters set up in the declaration as mere inducements to the action to show the plaintiff's right to sue do not amount to the general issue only.

While the court erred in sustaining a demurrer to special pleas the action of the court will be regarded as error without injury when the case was tried afterwards upon a plea of not guilty, and defendant was permitted to introduce evidence in support of the matters set up in the special pleas and the court gave the jury appropriate instructions thereon; these pleas having been regarded by the court, in the trial of the case, as being equivalent to the general issue, and the defendant having had the benefit of evidence which might have been offered in support of them.

Where an exception is not taken to the ruling of the trial court sustaining an objection to a question propounded to a witness, the appellate court will not consider an assignment of error based upon such ruling.

A witness was asked this question: 'Mr. Peck, did you have any conversation with this man Cook while he was agent of the railroad company after you had received this injury, in relation to the condition of the door?' This was merely a preliminary question, propounded for the purpose of finding out whether the witness had a conversation with Mr. Cook. It did not call for the conversation, and was not subject to the objection that it was hearsay.

A general objection to evidence without stating the precise ground of the objection is of no avail, unless the evidence objected to is palpably inadmissible and prejudicial for any purpose or under any circumstances.

A motion to strike the whole of the testimony of a witness should be denied where part of it was admissible and given without objection.

Where no objection was made in the trial court to questions propounded to a witness, and he testified without objection there is nothing for an appellate court to review.

COUNSEL

F. M. Simonton and Hocker & Duval, for plaintiff in error.

H. M. Hampton, for defendant in error.

OPINION

PARKHILL J.

The defendant in error, John B. Peck, hereinafter referred to as the plaintiff, sued the plaintiff in error in the circuit court for Marion county for an injury sustained by the plaintiff by reason of the falling of a certain sliding door in the depot or station house of the defendant at Fairfield, in Marion county. There was judgment for the plaintiff, and the defendant sued out a writ of error.

On the 7th day of August, 1905, the plaintiff filed his declaration, as follows:

'The plaintiff, by his attorney undersigned, sues the defendant, Gainesville & Gulf Railroad Company, a corporation organized and existing under the laws of the state of Florida, which has been summoned in an action at law.

'For that, whereas, in the county aforesaid, on the 10th day of May, 1905, the defendant was engaged in the business of a common carrier of freight by rail, and operated a railroad in and through the county of Marion, state of Florida, and had and maintained at a place known as Fairfield, in said Marion county, a depot or station house for the reception of freights to be transported over its said road; that the plaintiff was at the time aforesaid engaged in the business of raising and shipping vegetables to markets, and did ship same over the road of the said defendant, and that the vegetables of the plaintiff and other persons were, under the custom and manner of doing business by the said defendant at said Fairfield station, received at the station for the purpose of being marked and directed and shipped to a place of destination, which marking and directing in the case of the plaintiff's vegetables was done by the plaintiff at the station aforesaid; that on the 10th day of May, 1905, the plaintiff was at the aforesaid station house of the defendant for the purpose of marking and directing packages of vegetables of the said plaintiff to be transported by the defendant to their place of destination; that at the time aforesaid the defendant had in the building used by it as a station house at said Fairfield, and where the vegetables were received and marked and shipped, a sliding or rolling door, which the defendant negligently and carelessly permitted to become, and which on the day aforesaid was, in an insecure and unsafe condition, so as to be liable, when being operated by being rolled or pushed, in opening it, to fall, and that on the date aforesaid, while the plaintiff was at the station house aforesaid, for the purpose of marking and shipping his vegetables over said road, the defendant, by its agent and servant, attempted to open the said door, and therepon, by reason of the insecure condition in fastenings, the same was thrown from its runway and fell upon and struck the plaintiff, and injured the arm, shoulder, and body of the plaintiff, thereby causing him great bodily pain and injury and damage, by reason whereof, and by reason of the said injury, the plaintiff was prevented from following his vocation, and doing manual labor for a great length of time, and was compelled to incur and expend large sums of money in procuring and paying for medical attendance and medicine and assistance, wherefore plaintiff sues, and claims $15,000 damages.'

The declaration was amended by adding, after the word 'assistance,' the following: 'And the plaintiff alleges that at the time of receiving the injuries aforesaid the plaintiff was exercising reasonable care, and that the injuries complained of happened without fault of the plaintiff, and that, by reason of the said injuries, the plaintiff then and there received a lasting and permanent injury and hurt, from the effects of which the plaintiff will never during this life fully recover.'

The declaration was further amended so as to allege that the sum of $50 was incurred and expended for medical attendance, medicine and assistance.

The defendant demurred to the declaration as amended, stating six points of law to be argued. The cause coming on to be heard upon demurrer to the declaration as amended, it was 'ordered that the first, second, fourth, fifth, and sixth grounds of the demurrer be and the same are overruled,' and 'that the third ground of the demurrer be and the same is sustained.' The action of the court in overruling the first, second, fourth, fifth, and sixth grounds of the demurrer is made the basis of the first assignment of error.

The effect of the ruling of the court was to sustain the demurrer. The third ground of the demurrer was sustained, but that was equivalent to sustaining the demurrer on the third ground. In ruling upon a demurrer the court either sustains or overrules the demurrer. Under our statute either party may object by demurrer to the pleading of the opposite party on the ground that such pleading does not set forth sufficient ground of action, defense, or reply, as the case may be. The demurrer is the assertion or declaration by the defendant that the declaration is bad in substance; and the statute requires a statement of the substantial matters of law intended to be argued. Sections 1441, 1444, Gen. St. 1906. The substantial matters or points of law intended to be argued do not constitute the demurrer. They are the grounds or reasons assigned in support of the demurrer, or assertion that the declaration is bad in substance. In Terry v Allen, 132 Ala. 657, 32 So. 664, the...