Goldstein v. Acme Concrete Corp.

• Decision Date: 21 May 1958
• Parties: Nathan GOLDSTEIN, Appellant, v. ACME CONCRETE CORPORATION, a Florida corporation, Appellee.
• Court: Florida Supreme Court

Page 202

103 So.2d 202

Nathan GOLDSTEIN, Appellant, v. ACME CONCRETE CORPORATION, a Florida corporation, Appellee.

Supreme Court of Florida.

May 21, 1958.

Rehearing Denied June 24, 1958.

Rassner, Miller & Roth, Miami, for appellant.

Jacobs & Reedy, Miami, for appellee.

DREW, Justice.

Nathan Goldstein, an employee of the general contractor in a housing project construction job, was injured when struck by a concrete mixer truck owned by Acme Concrete Corporation. At the time of the injury the mixer was on the job for the purpose of pouring its load of ready mixed concrete into forms prepared by the general contractor. To recover for such injuries, Goldstein brought this action against Acme.

The question was immediately raised that Acme was a sub-contractor and not a third party against whom an independent action could be maintained under the Workmen's Compensation Act. § 440.39 (1), F.S.A. Depositions were taken, the matter was considered by the trial court and summary judgment was entered against Goldstein on the finding of the lower court that his remedy was exclusively under the Workmen's Compensation Act.

It is conceded by the parties that the record here is sufficient for us to pass upon and decide the ultimate question presented by this appeal, viz.: whether Acme was a sub-contractor. Our examination of the record sustains this view and we proceed to dispose of the issue.

The facts are not in conflict, and under the circumstances the question presented is one of law. Bossom v. Gillman, 70 Fla. 310, 70 So. 364; Nelson v. Montgomery Ward & Co., 312 U.S. 373, 61 S.Ct. 593, 85 L.Ed. 897. 53 Am.Jur., trial, Sec. 253.

There was no written contract between Acme and the general contractor. There was an oral agreement that during the period required by the contractor to complete the project of building some two or three thousand houses. Acme would deliver to the job, and pour into forms previously prepared by the general contractor, ready mixed concrete at a fixed price. There is some evidence as to a variation of price shown on some delivery tickets but it is clear that these, if so made, were made in error. In any event this point is not of any consequence in our disposition of the case.

According to language printed on the delivery tickets, the concrete became the property of the general contractor when placed in the mixer. The driver of the mixer was engaged in delivery of concrete to the site of this job or others as instructed by Acme. When on the site of this job his only duty was to pour the concrete (a mechanical process) in forms that had been previously prepared by the general contractor and in the manner directed by the general contractor. Acme had nothing to do with tamping, leveling, smoothing or finishing the concrete or the removal of the forms after it had set. In fine, its sole responsibility was to deliver the ready mixed concrete to the job site and put it where the general contractor directed. We fail to see, from the facts in this case, where Acme was in any different position than if it had been delivering concrete blocks or bricks or other similar material. Nor can we distinguish any difference between Acme's status under the facts here and that of any other materialman from whom the general contractor purchases materials for inclusion in the project.

The mechanics' lien statutes are, of course, not decisive of this question by any means, but in both the mechanics' lien statutes (F.S. ch. 84, F.S.A.)...