Holstun v. Embry

• Citation: 124 Fla. 554,169 So. 400
• Parties: HOLSTUN et al. v. EMBRY.[*]
• Decision Date: 25 March 1936
• Court: United States State Supreme Court of Florida

169 So. 400

124 Fla. 554

HOLSTUN et al. v. EMBRY.^[*]

Florida Supreme Court

March 25, 1936

En Banc.

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

Action by John D. Embry, an infant, suing by his next friend, Alonzo P. Meadows, against L. W. Holstun and Paul E. Holstun copartners doing business as Holstun & Son. Judgment for plaintiff, and defendants bring error.

Affirmed.

BUFORD and BROWN, J., dissenting on rehearing.

On Petition for Rehearing.

COUNSEL

Stanton Walker, of Jacksonville, William K Whitfield, and H. H. Wells, both of Tallahassee, and E. B Green, of Ocala, for plaintiffs in error.

Frank R. Greene, of Ocala, and S. Whitehurst's Sons, of Brooksville, for defendant in error.

OPINION

ELLIS Presiding Justice.

This is an action brought by a minor child by his next friend for damages for the wrongful death of the child's father. See section 7048, C.G.L.1927.

The person killed was Walter C. Embry. His child, John D. Embry, was four years old. The accident occurred in January, 1933. The action was brought by the child by his next friend, Alonzo P. Meadows, in March of that year.

Walter Embry was employed by L. W. Holstun and Paul E. Holstun, copartners as Holstun & Son, as an 'extra driver' of a truck with trailer attached on the occasion when the accident occurred. The truck was to have been driven from Ocala to a certain packing house near Lake Wales in Polk county to get a load of citrus fruit for transportation. On the journey from Ocala to Lake Wales the 'steering gear' of the truck broke, which deprived the driver, Embry, of control of the machine's forward movement, the front axle of the truck 'bent or buckled,' the truck swerved sharply, turned over, came to rest upside down, pinning Embry beneath it, crushing him to death.

The declaration rests upon the breach of duty on defendant's part to have furnished Embry, the 'extra driver,' with a machine in reasonably good condition and state of repair so that it would have been reasonably safe for the purpose for which it was used. See 3 Huddy, Ency.Auto Law, 132, § 76; Ryan v. Fall River Iron Works Co., 200 Mass. 188, 86 N.E. 310; Lonergan v. American Ry. Express Co., 250 Mass. 30, 144 N.E. 756; Wilson & Toomer Fertilizer Co. v. Lee, 90 Fla. 632, 106 So. 462; Sears v. Interurban Transp. Co., Inc., 14 La.App. 343, 125 So. 748; 39 C.J. 341.

The doctrine obtains in this state, as elsewhere, that the master is required to provide for his employees reasonably safe instrumentalities and places to work. The character of the work to be done, the suitableness of the instrument to be used, or the place where the work is to be done, are elements to be considered in determining the degree of care required of the employer. German-American Lumber Co. v. Brock, 55 Fla. 577, 46 So. 740; Florida East Coast Ry. Co. v. Lassiter, 59 Fla. 246, 52 So. 975; Furkovich v. Bingham Coal & Lumber Co., 45 Utah, 89, 143 P. 121, L.R. A.1915B, 426.

As to machinery supplied by a master for the employee to use, the rule, as stated in a number of cases in this state, is that a positive duty rests upon the master to exercise such reasonable care as prudence and the exigencies of the situation require in providing the employee with safe machinery and suitable instrumentalities. See South Florida R. Co. v. Weese, 32 Fla. 212, 13 So. 436; Camp & Bros. v. Hall, 39 Fla. 535, 22 So. 792; Green v. Sansom, 41 Fla. 94, 25 So. 332; German-American Lumber Co. v. Brock, supra; Stearns & Culver Lumber Co. v. Fowler, 58 Fla. 362, 50 So. 680; Harbeson Lumber Co. v. Anderson, 102 Fla. 731, 136 So. 557; Florida Saw Mill Co. v. Smith, 55 Fla. 447, 46 So. 332.

A motor vehicle operated on the public highways is a dangerous instrumentality. See Greene v. Miller, 102 Fla. 767, 136 So. 532; Wolfe v. City of Miami, 103 Fla. 774, 134 So. 539, 137 So. 892; Miami Transit Co. v. McLin, 101 Fla. 1125, 132 So. 99; Herr v. Butler, 101 Fla. 1125, 132 So. 815; Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 16 A.L.R. 255.

When the owner of a motor vehicle intrusts it to another to operate upon the public highway, the owner is liable for injury caused to others by the negligence of the person to whom it is intrusted. See Southern Cotton Oil Co. v. Anderson, supra; Engleman v. Traeger, 102 Fla. 756, 136 So. 527.

The doctrine rests upon the rule of respondeat superior. Herr v. Butler, supra; Warner v. Goding, 91 Fla. 260, 107 So. 406; Eppinger & Russell Co. v. Trembly, 90 Fla. 145, 106 So. 879; Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975, L.R.A.1917E, 715.

By parity of reasoning, therefore, an employer, who intrusts a dangerous instrumentality to another, his servant, to be used in the employer's business upon the public highway, is bound to exercise such reasonable care as prudence and the exigencies of the situation or employment require to provide the employee with a safe instrumentality or machine, to the end that the employee may suffer no injury from defective machinery, which in the case of a motor vehicle may, on account of a weak steering wheel, defective guiding and controlling apparatus, or imperfect or weak axles, more or less concealed defects, cause accidents resulting in serious injury to the employee.

Seventeen pleas were interposed to the declaration. The substance of them were not guilty, assumption of risk, and contributory negligence, and that the plaintiff was not dependent upon his father for support and maintenance.

The verdict and judgment for the plaintiff, which were for the sum of $5,000, are both contained in the bill of exceptions.

It is the purpose of a bill of exceptions to preserve of record matters in pais. A verdict and a judgment are matters of record.

The preparation of the record in this case is the particular above noticed was made in violation of the rules prescribed by this court. Counsel for plaintiff in error, however, seem to prefer their judgment in the interpretation of the statute, chapter 12019, § 3, Laws 1927 (section 4612, C.G.L.1927), in such matters to the plain, orderly, clear, and efficient method prescribed by this court.

The effect of counsel's judgment in the matter is to leave this court without any properly certified copy of the verdict and judgment. The writ of error requires the judge of the court to send the record and proceedings under his seal to this court. The rule requires the clerk in the preparation of the transcript of the record to certify that it contains a correct transcript of the record of the judgment and to affix to such transcript the seal of the circuit court. When he does that, the mandate of the writ of error is obeyed. See special rule 3, Circuit Courts, Law Actions.

The responsibility for this kind of error on the part of counsel in supervising the preparation of a transcript of the record for consideration by this court should be strictly visited upon the plaintiff in error by a dismissal of the cause, as there is not now before this court any proper certification to this court of the judgment which was rendered in this case. The judge did not certify to the judgment under his seal, and the clerk merely certified in effect that the paper called a bill of exceptions was filed and that the copy of it appearing in the transcript is correct. Where, then, is the copy of the record of the judgment required by the rule?

This court had occasion to discuss chapter 12019, supra, in the cases of Branch v. State, 96 Fla. 307, 118 So. 13; Kidd v. City of Jacksonville, 99 Fla. 1023, 128 So. 31; St. Andrews Bay Lumber Co. v. Bernard, 106 Fla. 232, 143 So. 159, concurring opinion; Mungin v. State, 109 Fla. 310, 147 So. 577; Jarvis v. State, 115 Fla. 320, 156 So. 310.

An examination of the evidence and charges of the court reveal no error committed of substantial injury to the defendant in error.

In overruling the motion for a judgment non obstante veredicto, motion in arrest of judgment, and the motion for a new trial, the court used the following language:

'In the case at bar, I am unable to discover where by a preponderance of the evidence the injury was caused by means of the defective steering gear and front axle, causing the car to turn over, and that such defect was of such nature that it was known, or by the exercise of reasonable diligence could have been discovered by the defendant before the accident, and that he was negligent in not repairing the same; but as this case must ultimately go to the Supreme Court, where it will pass on the sufficiency of the evidence, and in view of the two cases cited, I shall deny the motion.'

That order appears in the bill of exceptions, not in the record proper.

The motion in arrest of judgment referred to in the order is not included in the record, but exception was taken to the order overruling a motion for a new trial and to the order overruling the motion for judgment non obstante veredicto. Exception should be taken to the court's ruling upon the motions for a new trial and for judgment non obstante veredicto because the office of an exception is to challenge the rulings and decisions of the trial court promptly when made, that they may be corrected by the court itself if deemed erroneous. The exception points out wherein the excepting party claims to have been prejudiced by the ruling. See Brown v. State, 91 Fla. 682, 108 So. 842.

'A motion for new trial and a ruling thereon, with exception duly taken, are necessary to question the sufficiency of all the evidence to sustain the verdict.' Osceola Fertilizer Co. v. Beville, 86 Fla. 479, text 483, 98 So. 354, 355; Greenblatt v. J. R. Bissell Dry Goods Co., 85 Fla. 83, 95 So. 302; Thomas Bros. Co. v. Price & Watson, 56 Fla. 854, 48 So. 262.

When exceptions to...