Moore v. Lanier

• Decision Date: 27 November 1906
• Citation: 42 So. 462,52 Fla. 353
• Parties: MOORE v. LANIER.
• Court: Florida Supreme Court

42 So. 462

52 Fla. 353

MOORE v. LANIER.

Florida Supreme Court

November 27, 1906

In banc. Error to Circuit Court, Lake County; William S Bullock, Judge.

Action by B. C. Lanier against W. S. Moore. Judgment for plaintiff and defendant brings error. Affirmed.

Shackleford C.J., and Cockrell, J., dissenting in part.

Syllabus by the Court

SYLLABUS

Grounds of a demurrer, interposed to a declaration, but not argued in the appellate court, will be treated as abandoned.

If a declaration wholly fails to state a cause of action, the appellate court may take notice of it, even though there be no demurrer.

In an action brought to recover damages for property destroyed through the negligence of another, the declaration should allege facts showing the negligence complained of to be a proximate cause of the injury sustained.

Proximate cause is that which naturally leads to or produces, or contributes directly to produce, a result such as might be expected by any reasonable and prudent man as likely to directly and naturally follow or flow out of the performance or nonperformance of any act.

When a person undertakes to connect a storeroom with a gas main by means of pipes, and in doing so carelessly and negligently permits gas to escape from the pipes into the storeroom, and an explosion of the gas occurs therein, such negligent person is liable, in the absence of an intervening independent cause, even though the ignition was caused by some one other than the defendant or his agents, since the gas so negligently allowed to escape into the storeroom was a present and directly contributing cause of the explosion, a result such as might have been expected by any reasonable and prudent man as likely to directly and naturally follow from the escape of gas into a storeroom.

In an action for damages in negligence cases, the plaintiff is not required to negative his own negligence; but the negligence of the plaintiff is a matter to be pleaded by the defendant.

A declaration that alleges that the defendant contracted to connect the storeroom of the plaintiff with acetylene gas mains by service pipes for illuminating purposes, and 'well knowing that the said acetylene gas was highly explosive, did so negligently and carelessly fit, install, and equip the said service pipe in the said storeroom that the gas escaped therefrom into the said storeroom and became ignited, whereby an explosion occurred,' to plaintiff's damage, states a cause of action as against a demurrer assailing the declaration on the ground that it does not allege 'by what means or in what manner the said gas became ignited,' since if the gas was present because of defendant's negligence, and it contributed directly to the explosion, the defendant is liable, even though the ignition was not caused by him. If the plaintiff or his agent or servant caused the ignition, it was a matter to be pleaded by the defendant.

Where a plea of contributory negligence is erroneously stricken, but the defendant is given full opportunity under the general issue to introduce evidence of contributory negligence of the plaintiff, the error is harmless.

Where the rulings of the court in refusing to give several separate and distinct charges are excepted to en masse, the appellate court will go no further than to ascertain if any one of the charges was properly refused, and, if any one of them was properly refused, the assignment fails.

It is not error to refuse charges that do not state the correct propositions of law as applicable to the facts of the case.

COUNSEL

J. M. Rivers, for plaintiff in error.

Hocker & Duval and J. B. Gaines, for defendant in error.

OPINION

WHITFIELD J.

On October 3, 1904, the defendant in error brought an action in the circuit court for Lake county against the plaintiff in error; the declaration as amended being as follows: 'For that, on and before the 29th day of July, A. D. 1904, the plaintiff was the owner of a certain stock of goods, wares, and drugs located in a certain storeroom, known as the 'Crescent Drug Store,' on the north side of Main street, in the town of Leesburg, which storeroom was then and there equipped with certain showcases, shelves, and windows, and which storeroom was then and there occupied by the plaintiff as a tenant of one Mrs. E. M. Venable, and the plaintiff, as such tenant aforesaid, is liable to the said Mrs. E. M. Venable for any and all damage or injury done to said windows; and that the plaintiff is the owner of all showcases and fixtures in said storeroom, and in which storeroom the plaintiff was then and there conducting a mercantile business, and offering his said goods, wares, and drugs for sale; that about the middle of the said month of July, 1904, the defendant, for himself or for others, entered into a verbal agreement with the plaintiff, whereby the said defendant undertook with the plaintiff to furnish and lay a service pipe from and connecting with the gas mains in said Main street of said town into the said storeroom so occupied and used by the plaintiff, and to properly fit, install, and equip same for the purpose of conveying or conducting acetylene gas from said gas mains into the said storeroom, for the purpose of illuminating the said storeroom, for a certain reward in that behalf to be paid by the plaintiff; that after the making of the said verbal agreement by the defendant, and after he had laid the said service pipe into and about in the said storeroom and connected same with the gas mains in said street, and had turned the acetylene gas into the said service pipe, the defendant, well knowing that the said acetylene gas was highly explosive, did so negligently and carelessly fit, install, and equip the said service pipe in the said storeroom that the gas escaped therefrom into the said storeroom and bacame ignited, whereby an explosion occurred, and whereby the plaintiff was greatly damaged and injured in goods, wares, and drugs to the amount of $400, and whereby he was greatly damaged and injured in showcases, shelves, and windows to the amount of $300, and whereby the plaintiff was greatly damaged and injured in the closing of his business to the amount of $300. And the plaintiff claims $2,000 damages.'

The defendant demurred to the declaration on several grounds and the demurrer was overruled. As only the fourth ground is argued here, it alone is here quoted, as follows: 'That the plaintiff does not show or allege in his said declaration how, by what means, or in what manner the said gas became ignited.'

Subsequently the defendant moved the court to 'require the plaintiff to state definitely and issuably in his declaration the manner in which the gas became ignited, because the declaration as now framed prejudices, embarrasses, and delays a fair trial of the action in this: (a) Because it is not alleged therein that the defendant was the person liable or by whose fault the gas became ignited; (b) that it is not shown that the explosion of the gas was not the direct fault of the plaintiff; (c) that it is not shown in or by the declaration who fired the said gas, or that the mere fact that the gas escaped caused it to become ignited, without any direct cause or fault of any one.' This motion was overruled, and the defendant excepted.

The following pleas were then filed by the defendant:

'(1) That he is not guilty as alleged in plaintiff's declaration.

'(2) That the damage, if any at all, which plaintiff suffered, for which suit is here brought, was caused by and through the plaintiff's own negligence, by and through his agent and employé, Geo. Hanford, who then and there was the direct and sole cause of the explosion of gas complained of.

'(3) That this defendant was not the cause of the explosion and damage complained of in plaintiff's declaration, but that one Geo. Hanford, who then and there brought fire into contact with escaping gas, without any fault or negligence on the part of this defendant, was the direct and approximate cause of the explosion and damage complained of in plaintiff's declaration. And plaintiff prays to be hence dismissed, with his costs and charges in this behalf most wrongfully sustained.'

The plaintiff's motion 'to strike the defendant's second and third pleas, because the said pleas set forth matters proof of which may be taken under the defendant's first plea,' was granted, and the defendant noted an exception. Issue was joined on the first plea, and at the trial verdict and judgment were rendered for the plaintiff.

The defendant, on writ of error here, assigns as errors:

'(1) Because the court erred in overruling the defendant's demurrer to the plaintiff's declaration.

'(2) Because the court erred in overruling the first ground of the defendant's motion for compulsory amendments, and thereby refused to compel the plaintiff to state how the gas became ignited and who was the cause thereof.

'(3) Because the court erred in sustaining the plaintiff's motion to strike defendant's second and third pleas, and in striking said pleas.

'(4) Because the court erred in admitting over defendant's objection a paper purporting to be an estimate of the cost of putting in the store gas piping and fixtures.

'(5) Because the court erred in sustaining plaintiff's motion to strike defendant's evidence as to who piped the store, and what pipe was used.

'(6) Because the court erred in refusing to give the first, second, fourth, fifth, seventh, ninth, and tenth charges, and each of them, asked for by defendant.

'(7) Because the court erred in giving the first and second charges, and each of them, asked for by plaintiff.

'(8) Because the court erred in giving the third charge given of his own motion.

'(9) Because the court erred in...