Hall v. O'neil Turpentine Co.

• Decision Date: 31 October 1908
• Parties: HALL et al. v. O'NEIL TURPENTINE CO.
• Court: Florida Supreme Court

47 So. 609

56 Fla. 324

HALL et al. v. O'NEIL TURPENTINE CO.

Florida Supreme Court

October 31, 1908

Headnotes Filed December 8, 1908.

In Banc. Error to Circuit Court, Hillsborough County; Joseph B Wall, Judge.

Action by T. C. Hall and another against the O'Neil Turpentine Company. Judgment for defendant, and plaintiffs bring error. Reversed and remanded.

Syllabus by the Court

SYLLABUS

Courts can take judicial notice of all questions relating to public policy, inform themselves from any accessible sources of facts bearing on the same, and apply the principle that a contract is not void, as against public policy, unless it is injurious to the interests of the public or contravenes some established interest of society. It is the province of a court to expound the law only, and not to speculate upon what is best in its opinion for the advantage of the community.

The statute laws of this state do not indicate a public policy with reference to the subhiring of convicts, and give the board of state institutions and county commissioners a very extensive discretion in all matters relating to the hiring of convicts, under which system the practice of subhiring has prevailed for several years, without objection, if not with their express assent, under conditions which seem to most amply provide for the humane treatment and care of convicts. This practice has been well known to the Legislature, and it has not seen fit to prevent it by legislation, or to announce a public policy on the subject variant from that which prevails. Under such circumstances, and where the contract and subcontract omit nothing essential to the humane treatment of the convicts, and where the hirer, by subletting, does not undertake to exempt himself from the responsibility assumed in his contract, and where the subhirer binds himself to observe in all respects the terms of the original contract, we cannot say that such a subhiring contract is void, as against public policy.

A demurrer is not the proper method of treating a single feature of a declaration. A motion to reform or to strike, or objections to testimony in support of the objectionable feature, or a charge by the court to the jury in regard thereto, affords the appropriate remedy.

COUNSEL Glen & Himes, for plaintiffs in error.

Sparkman & Carter, for defendant in error.

OPINION

HOCKER J.

The plaintiffs, T. C. Hall and W. R. Bigham, sued the defendant the O'Neil Turpentine Company, in the circuit court of Hillsborough county. A final judgment was entered in favor of the defendants on a demurrer to the declaration, and the plaintiffs are here on writ of error. In February, 1908, the plaintiffs filed their declaration. It is as follows:

'That heretofore, to wit, on the 3d day of January, A. D. 1907 the county of Hillsborough, by and through its board of county commissioners, made and entered into a certain contract in writing with the plaintiffs, whereby the plaintiffs were given the use and control of the labor and services of all prisoners, whether male or female, under sentence or to be sentenced to imprisonment in the county jail of Hillsborough county, Florida, for a term of thirty days or more, for a period of two years commencing on the 3d day of January, A. D. 1907, and ending on the 3d day of January, A. D. 1909, all of which will more fully appear by reference to a true copy of the contract hereto annexed, marked 'Exhibit A,' and hereby made by reference a part of this count as fully as if the same were herein incorporated in haec verba.

'And the plaintiffs allege that thereafter, to wit, on July 29, A. D. 1907, the plaintiffs made and entered into a certain agreement in writing with the defendant in the words and figures following, to wit:

"July 29th, 1907.

"O'Neil Turpentine Company, City.

"Dear Sirs: Referring to our previous negotiations, we are willing that you should have the use and benefit of the services of such of the county convicts of Hillsborough county, Florida, as we do not require, and as we are entitled to under the terms of a certain contract between the county commissioners of Hillsborough county and ourselves, dated January 3, 1907, upon the understanding and condition that you shall pay us for such services the sum of thirty-five dollars per head per month for each convict whose services are so furnished you, and on the further consideration that this agreement shall continue in force until the 1st day of January, 1908, and the convicts shall at all times be under our direction and control as the lessees thereof, and you shall assume in regard to the convicts whose services you may have the use of all liabilities of every character and nature whatsoever imposed upon us under the terms of the said contract between us and the county commissioners of Hillsborough county. It is further understood that you shall pay us on the 1st day of August, 1907, in advance, the amount due for the services of all convicts then delivered to you up to the 1st day of October, 1907, and that you shall pay us on the 1st day of October, 1907, for the services of all convicts not already paid for up to that time, as well as for the services of all convicts then in your custody up to the 1st day of January, 1908, and that on the 1st day of January, 1908, you shall pay us for the services of all convicts not already paid for between October 1, 1907, and January 1, 1908.

"It is further understood that you shall relieve and indemnify us from any and all liability of any kind or character whatsoever in respect to all convicts of which you are given custody, and that you shall be bound to take and receive from us at any time all convicts coming to us under the said contract between the county commissioners of Hillsborough county and ourselves, of whose services we are not in need.

"It is further understood that we shall have the right to see and determine whether or not the said convicts are properly treated by you in regard to food, accommodation, and otherwise, and that, if the treatment of the same in any respect is not satisfactory to us, we shall have the right to retake the said convicts at any time; it being understood that we do not, by making this offer to you, in any respect surrender the control and custody of the said convicts coming to us under the said contract between the county commissioners of Hillsborough county and ourselves.

"Hall & Bigham,

"By W. R. Bigham.

"We assent to the terms of the foregoing offer and agree to accept the services of the convicts on the terms therein set forth and to be bound to the performance of all provisions and conditions therein set forth.

"O'Neil Turpentine Company,

"By W. T. Hendricks, Mgr.'

'And the plaintiffs further allege that under and in pursuance of the agreement in writing herein set forth between them and the defendant they furnished to the defendant the use and benefit of the services of various county convicts of Hillsborough county, Florida, for which the defendant, to wit, on October 1, A. D. 1907, under the terms of the said agreement hereinbefore set forth, became liable to pay to the plaintiffs a large sum of money, to wit, the sum of sixteen hundred and thirty-eight dollars, yet the defendant did not pay to the plaintiffs the said sum of money, but only paid to the plaintiffs the sum of one thousand four hundred and twelve and 72/100 dollars on account thereof, whereby on the said 1st day of October, A. D. 1907, there became and was a balance due to the plaintiffs on account of the use of the said convicts amounting to a large sum of money, to wit, the sum of two hundred and twenty-five and 28/100 dollars.

'And the plaintiffs further allege that under and in pursuance of the said contract hereinbefore set forth the plaintiffs delivered to the defendant two convicts, to wit, Peter James and C. V. Hogan, whose sentences expired, respectively, on August 4, 1908, and August 6, A. D. 1908, and that while the said defendant had the custody and the right to the use of the services of the said Peter James and C. V. Hogan the said defendant negligently permitted them and each of them to escape from custody, and the said convicts, and each of them, still remain and now are at large and cannot be recaptured, and the plaintiffs have been compelled to pay to the county of Hillsborough under the terms of the said contract, Exhibit A hereto, to wit, on January 1, A. D. 1908, the sum of twenty-eight dollars per month for the said Peter James and the said C. V. Hogan, and will further be compelled to pay to the said county of Hillsborough on the 1st day of April, A. D. 1908, for the services of the said Peter James and C. V. Hogan, the sum of twenty-eight dollars per month, and will further be compelled to pay to the county of Hillsborough on the 1st day of July, A. D. 1908, for the services of the said Peter James and C. V. Hogan, the sum of twenty-eight dollars per month.

'Wherefore the plaintiffs sue the defendant, and claim fifteen hundred dollars damages.

Glen & Himes,

'Attorneys for Plaintiffs.'

Bill of particulars hereto attached.

Exhibit A.

'State of Florida, County of Hillsborough.

'This agreement, made and entered into on this the 3d day of January, 1907, between J. N. Holmes, C. B. Ware, J. M. Towne, G. F. Altman, and J. L. Hackney, as members of the board of county commissioners of Hillsborough county, Florida, hereinafter called the county, and T. C. Hall and W. R. Bigham, hereinafter called the lessee.

'Witnesseth first, that the said lessee, for and during the period of two years commencing on the 1st day of January, A. D. 1907, and ending on the 1st day of January, A. D. 1909, shall have, use, and control the labor, services, use, and custody of all the...