Kirkland v. City of Gainesville

• Decision Date: 06 February 1936
• Parties: KIRKLAND v. CITY OF GAINESVILLE.
• Court: Florida Supreme Court

166 So. 460

122 Fla. 765

KIRKLAND v. CITY OF GAINESVILLE.

Florida Supreme Court, Division A.

February 6, 1936

Rehearing Denied March 23, 1936.

Error to Circuit Court, Alachua County; H. L. Sebring, Judge.

Action by Anna C. Kirkland against the City of Gainesville. After a judgment for plaintiff, defendant's motion for a new trial was granted, and plaintiff brings error.

Reversed and remanded, with directions.

BROWN and TERRELL, JJ., dissenting.

COUNSEL

Fielding & Duncan and J. C. A.dkins, all of Gainesville, for plaintiff in error.

Baxter Clayton & Watson, of Gainesville, for defendant in error.

OPINION

WHITFIELD Chief Justice.

For a decision herein on a former writ of error, see City of Gainesville v. Kirkland, 116 Fla. 319, 156 So. 601.

The declaration alleges that the defendant city failed to keep its electric light pole in a safe condition, and failed to furnish plaintiff's decedent a safe place within which to work; and, on the contrary, the said electric light pole was unsafe, unsound, cracked, split, sappy, and/or rotten, and because thereof, and on account of the negligence of the defendant in the said matter, the plaintiff's decedent fell from the said electric light pole, and in falling he was then and there killed. Decedent's widow brought this action for damages.

The pleas were: (1) Not guilty; (2) 'that the plaintiff's intestate, the said H. G. Kirkland, mentioned in said declaration, was for ten years or more immediately preceding his death employed by the defendant as superintendent of the Electric Light & Water Department of this city; and as such superintendent it was his duty to see that all electric light poles in use by the City were in good condition and repair and the defendant further avers that the said H. G. Kirkland well knew the condition of the pole which he had climbed and whether it was 'unsafe,' 'unsound,' 'cracked,' 'split,' 'sappy' and/or 'rotten,' or in any manner dangerous and that it was his duty to so know the condition of the said pole; and so knowing the condition of said pole, as it was his duty to do he negligently and carelessly failed to use ordinary care and caution, and by reason of such failure and negligence on his part the alleged injury was caused. Wherefore the defendant says that the plaintiff ought not to have and maintain her aforesaid action.'

On November 28, 1934, a verdict for $15,000 was returned, and judgment for the plaintiff in that amount was rendered.

On November 30, 1934, during the same term of the court, on motion of the defendant, the court ordered that the time for the making and presentation of a motion for a new trial be extended for a period of 10 days. Section 4498(2811), C.G.L.

On December 4, 1934, during the same term of the court, the defendant submitted to the court its motion for a new trial containing 9 grounds, including charges given and alleged errors in submitting the cause to the jury and in the amount of the verdict.

On December 11, 1934, during the same term of the court, the plaintiff moved to strike the motion for new trial; one of the grounds being that neither the plaintiff nor her attorneys have been served 'with three (3) days notice of the time and place that the same will be presented,' as required by the statute. Section 4498(2811), C.G.L. The court made the following order on the motion to strike:

'On November 28th, 1934, a verdict was duly rendered in the above cause against the defendant and in favor of the plaintiff. After rendition of said verdict, the defendant gave notice in open court of intention to file a motion for a new trial, and thereupon applied to the court for an extension of time within which to file said motion for a new trial. On November 30th, 1934, the court entered an order extending the time for the making and presentation of such motion for new trial, not to exceed ten (10) days from the entry of such order. On December 4, 1934, before the expiration of the time stated in the order of the court extending the time for the filing of a motion for a new trial, defendant presented its motion for a new trial to the court, at the same time requesting the court to set a date for the hearing of said motion before the expiration of the time provided by law. Thereafter, the parties plaintiff and defendant, by their counsel, orally agreed in the presence of the court that said motion for a new trial should be heard on December 11, 1934, being a date before the expiration of the time provided by law for the making and presentation of such motion.

'The said motion for a new trial coming on to be heard before the court on said date, and counsel for the plaintiff and defendant being present, and their argument being heard by the court on said motion, counsel for plaintiff objected to the hearing of said motion on the ground that neither the plaintiff nor her counsel had been served with three (3) days' notice of the time and place that the said motion for new trial would be presented and heard.

'But the court being of the opinion that it is of the hearing of the motion for a new trial, where the time for the making and presentation thereof has been extended by order of court, that notice is required, and that the right to insist upon the giving of such notice has been waived by counsel for plaintiff orally agreeing before the court to argue said motion for new trial on December 11, 1934; and the court being advised of its judgment in the premises; it is, upon consideration thereof

'Ordered and adjudged that said motion of the plaintiff to strike from the files of this case the said motion for a new trial be, and the same is hereby denied.'

The motion for new trial was granted December 14, 1934, after arguments by counsel for both parties.

On December 22, 1934, the following supplemental order was entered by the court:

'This cause coming on this day to be heard during the same term of court upon application of counsel for plaintiff for a supplemental order stating with more particularity the grounds upon which the motion for a new trial heretofore filed in this cause was granted, and for the entry of said supplemental order nunc pro tunc as of December 14, A. D. 1934, and counsel for the defendant interposing no objection to the entry of such supplemental order, and it appearing to the court that the motion for new trial in said cause came on to be heard on December 11, A. D. 1934, after due notice to plaintiff's attorneys, and that the same was submitted and argued and that upon consideration thereof the court entered an order granting said motion for a new trial;

'And the court being of the opinion that the underlying question involved is whether, under the Hazardous Occupation Act, there can be a recovery for the death of a servant who was entrusted by the master with the duty and responsibility of maintaining a reasonably safe place for himself and others to work upon, and who breached this duty, by reason whereof he was killed;

'And the court being of the opinion that this question must be answered in the negative; and that consequently the verdict is contrary to the law and the manifest weight of the evidence, and that the verdict should be set aside and a new trial awarded, it is, upon consideration thereof,

'Ordered and adjudged that said application for a supplemental order in this cause be, and the same is hereby granted; and that the order heretofore entered in this cause granting the defendant's motion for a new trial be, and the same is hereby supplemented, ratified and confirmed.'

In this case the motion for new trial was presented to the trial judge within the time allowed by the order extending the time, and thereafter the parties agreed in the presence of the court that the motion for new trial should be heard at a later day. In Bishop v. Chillingworth (Fla.) 163 So. 93, the motion was not shown to have been presented to the judge within the time allowed by the extension order, and opposing counsel merely requested thata hearing be postponed to a later day.

There was no error in denying the motion to strike the motion for new trial as made and presented in this case.

The statutes (Comp.Gen.Laws 1927, §§ 7058, 7059) provide that: 'Persons, firms and corporations engaged in * * * generating and selling electricity' 'shall be liable in damages for injuries inflicted upon their agents and employees, and for the death of their agents and employees caused by the negligence of such persons, firms and corporations, their agents and servants, unless such persons, firms and corporations shall make it appear that they, their agents and servants have exercised all ordinary and reasonable care and diligence.' There shall be no liability in damages for injuries to agents and employees or for the death of such agents and employees when caused by their own negligence. If the employees or agents injured or killed, and the employers or their agents and employees are both at fault, there may be a recovery, but the damages shall be diminished or increased by the jury in proportion to the amount of default attributed to both. 'The doctrine of assumption of risk shall not obtain in any case arising under the provisions of this Article, where the injury or death was attributable to the negligence of the employer, his agents or servants.' Sections 7058(4971) to 7061(4974), C.G.L.

Damages for the death of a person by the wrongful act of an individual or a corporation may be recovered by authorized persons where the injured person could have maintained an action for damages for the injury if death had not ensued. In such case the widow of decedent may recover such damages as she 'may have sustained by reason of the death of the party killed.' Sections 7047(4960),...