Hartquist v. Tamiami Trail Tours, Inc.

• Decision Date: 18 July 1939
• Parties: HARTQUIST v. TAMIAMI TRAIL TOURS, Inc. (two cases).
• Court: Florida Supreme Court

190 So. 533

139 Fla. 328

HARTQUIST v. TAMIAMI TRAIL TOURS, Inc. (two cases).

Florida Supreme Court, Division B.

July 18, 1939

Rehearing Denied Aug. 1, 1939.

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

Actions by E. A. Hartquist against the Tamiami Trail Tours Incorporated, to recover damages for personal injuries. To review a judgment for defendant in one action and an order dismissing the other action, plaintiff brings error.

Order of dismissal affirmed, judgment for defendant reversed, and cause remanded.

COUNSEL

E. F. P. Brigham and Philip E. Paine, both of Miami and Whitfield & Whitfield, of Tallahassee, for plaintiff in error.

Knight & Green, of Miami, for defendant in error.

OPINION

BROWN Justice.

A second amended declaration was filed by plaintiff, E. A Hartquist, before Division 'C' of the Circuit Court of Dade County, Florida, the first count of which alleged in substance that the defendant, Tamiami Trail Tours, Inc., was engaged in the business of transportation for hire over the public highways, and in its business, through its servants, agents and employees, operated and maintained a motor vehicle commonly referred to as a trailer truck, which was propelled by gasoline motor power; that defendant parked its said trailer truck adjacent to the curb of the sidewalk; that the defendant, through its servants, negligently and carelessly insecurely fastened a door of said trailer truck while unloading a cargo from the truck; that plaintiff was engaged in the lawful use of the public sidewalk in the exercise of due care and caution when the door suddenly flew open and struck him, and as a proximate result of the negligence of the defendant, by and through its servants, the plaintiff was injured.

The second count of the amended declaration differs from the first in that it alleges that the defendant, Tamiami Trail Tours, Inc., was delivering a cargo of glass to the plaintiff's employer, Southern Glass Company, and that the servants of the defendant unloaded the crate of glass from the trailer truck by means of a crane or derrick and deposited the same upon the sidewalk in front of the Southern Glass Company; that the servants of the defendant, Tamiami Trail Tours, Inc., were unable to remove the crate of glass from the sidewalk to the place of business of the Southern Glass Company; that thereupon they called to the plaintiff, who was then performing his duties as servant and employee of the Southern Glass Company, and asked him to assist them in pushing the crate of glass off the sidewalk and into the place of business of the Southern Glass Company, and that while he was so engaged he was struck by the out-swinging door as described in the first count.

The number of this case was No. 16456-C.

A demurrer was filed by defendant to each count of the declaration. Plaintiff, on August 10, 1936, presented to Judge Trammell, who presided over Division 'C', his motion for order of dismissal without prejudice, which motion was granted and the action dismissed without prejudice on the same day. For the sake of clarity the above proceeding will hereinafter be referred to as the first suit.

On October 5, 1936, the declaration in the second suit was filed and fell to Division 'D' of said Circuit Court, presided over by Judge Paul D. Barns, which declaration alleged in clearer detail and better form the same cause of action as that set out in the first suit. Counsel later alleged that this was the reason why he dismissed the first suit. The case number of this second suit was No. 16815-C.

On November 2, 1936, defendant filed its demurrer to said declaration, motion for better bill of particulars and motion for compulsory amendment. On the same day defendant filed a rather unusual petition, being one seeking to get the court to vacate the court's order of dismissal rendered in the plaintiff's first suit and reinstate the cause. This petition was granted and the first suit was reinstated on November 18, 1936.

The following day plaintiff filed his entry of discontinuance in the first suit with the clerk of the circuit court, and on the same day the clerk entered an order of dismissal. On December 4, 1936, defendant filed a motion to vacate the clerk's order of dismissal and to strike from the files plaintiff's entry of discontinuance. Judge Trammell entered an order to that effect on June 9, 1937.

In the meantime defendant had filed its motion to transfer the second suit to Division 'C' of the court below, the division over which Judge Trammell presided and before which the first suit was filed. Plaintiff filed a response to said motion, denying the facts set out therein. It is shown by the record that the cause was transferred to Judge Trammell's division on December 22, 1936.

On June 9, 1937, Judge Trammell entered an order dismissing the second suit on the ground that there was pending in the same court a former action between the same parties and over the same subject matter, and on the same day sustained the demurrer and entered final judgment on demurrer in the first suit.

Plaintiff Hartquist has sued out writs of error from the final judgment on demurrer in the first suit and the order of dismissal rendered in the second suit. Tamiami Trail Tours, Inc., is the defendant in error in each of the two cases, which cases have been consolidated in this Court for the purposes of argument and consideration together, though each case retains its identity otherwise.

The declaration in the first suit alleged that defendant was engaged in the business of transportation for hire; that defendant operated and maintained a motor vehicle and trailer truck; that defendant parked said trailer truck on the public highway adjacent to the sidewalk, and negligently and carelessly, while unloading the same, permitted a door of the trailer truck to be insecurely fastened and injured the plaintiff who was 'engaged in the lawful use of the public sidewalk aforesaid'.

Plaintiff in error contends that this is sufficient to show the relation between plaintiff and defendant so as to raise a duty on the part of defendant to refrain from negligently injuring him. In support of this contention plaintiff cites Pillet v. Ershick, 99 Fla. 483, 126 So. 784, and Florida Motor Transportation Co. v. Hillman, 87 Fla. 512, 101 So. 31.

In Pillet v. Ershick, supra [99 Fla. 483, 126 So. 787], the declaration alleged that: 'the plaintiff was crossing Central avenue, a public highway in the city of St. Petersburg, within the safety zone as indicated on the avenue by two white lines painted on the brick pavement; that such safety zone was created by the municipal authorities of the city; that in crossing the street he used all care and precaution as a pedestrian; that the defendant driving his automobile in an eastward direction along the avenue in a megligent and careless manner ran into and upon the plaintiff and caused the injury of which he complained.' The declaration was demurred on the ground, inter alia, the it failed to allege any violation of duty on the defendant's part toward plaintiff. The Court held the declaration was not amenable to the objections pointed out by the demurrer, saying: 'The relation of the parties is shown by the declaration as travelers on a city street, the defendant driving an automobile and the plaintiff a pedestrian. Each was required to use due care; one to avoid injury to himself, the other to avoid injury to others.' 126 So., text 787.

In Florida Motor Transportation Co. v. Hillman, supra, the Court said: 'The declaration alleged that the defendant 'carelessly and negligently propelled and ran its motor bus against and upon the said Clarence Hillman.' The relation between the parties was alleged to be that of travelers upon the common highway; the plaintiff walking across the highway, and the defendant driving a motor bus upon it.' 101 So., text 32.

In J. G. Christopher Co. v. Russell, 63 Fla. 191, 58 So. 45, Ann.Cas.1913C, 564, the declaration alleged that the general public was invited by defendant to enter certain store rooms and buy merchandise of defendant; that plaintiff entered the store rooms for the purpose of buying rope and was examining it with the intention of purchasing it when the accident happened. This Court held that the above allegations were sufficient to show the relationship of merchant and customer actually existing between plaintiff and defendant.

In Coombs v. Rice, 64 Fla. 202, 59 So. 958, the allegations were held sufficient to show a relation of bailor and bailee for mutual benefit between plaintiff and defendant.

The declaration in the case at bar, to show the relationship between plaintiff and defendant at the time of the injury alleges what the defendant was doing adjacent to the sidewalk, as above set forth, and that plaintiff was 'lawfully using the public sidewalk,' when he was injured by the negligence of defendant's servants. The allegation that he was using the public sidewalk negatives the idea that plaintiff was a trespasser. The right to use the public streets and sidewalks in any lawful manner is a right which any and all inhabitants of the city possessed--a right which is extended to visitors as well. If the plaintiff was using the public sidewalk for any lawful purpose, the duty of the defendant to avoid negligently injuring the plaintiff would necessarily be inferred. While the first count of the declaration herein may be distinguished to some extent from those discussed in the above cases, and while the purpose for which plaintiff was using the public sidewalk might well have been alleged, said first count does not wholly fail to state a cause of action, and the demurrer thereto should have been overruled. See numerous ca...