Peairs v. Florida Pub. Co., C-2

• Decision Date: 06 September 1961
• Docket Number: No. C-2,C-2
• Citation: 132 So.2d 561
• Parties: Louise PEAIRS and J. Herbert Peairs, her husband, Appellants, v. FLORIDA PUBLISHING COMPANY, a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 561

132 So.2d 561

Louise PEAIRS and J. Herbert Peairs, her husband, Appellants, v. FLORIDA PUBLISHING COMPANY, a corporation, Appellee.

No. C-2.

District Court of Appeal of Florida, First District.

Sept. 6, 1961.

Rehearing Denied Sept. 18, 1961.

Bedell, Bedell & Dittmar, Jacksonville, for appellants.

Howell, Kirby, Montgomery and Sands, and Harold B. Wahl, Jacksonville, for appellee.

CARROLL, DONALD, K., Chief Judge.

The plaintiffs, Louise Peairs and J. Herbert Peairs, her husband, have appealed from a final judgment entered by the Circuit Court for Duval County pursuant to the defendant's motion for a directed verdict made at the close of the plaintiffs' case in the trial.

The plaintiffs alleged in their complaint that prior to November 23, 1957, the defendant, a newspaper publisher, in the course of distributing its papers carelessly and negligently permitted a wire loop used for binding bundles of its papers, to remain and be on the parking lot of a certain restaurant in the City of Jacksonville, and that on that date the plaintiff Louise Peairs, a patron of the said restaurant, while walking from the restaurant to her car in the parking lot, tripped upon the said wire loop and fell, fracturing the bones in both of her wrists. The complaint is in two counts, which are the same except that the first count alleges the plaintiff-wife's injuries and the second count the damages sustained by the plaintiff-husband. In its answer to the complaint the defendant denied the alleged negligence and its consequences, and also denied that it was the defendant which distributed the papers and permitted the wire loop to remain and be on the said parking lot.

The evidence at the trial showed the following facts:

On November 23, 1957, Mr. and Mrs. Peairs the plaintiffs, had dinner at the restaurant mentioned in the complaint and left the dining room at about 8:05 p. m. on that date. Immediately north of the restaurant building there was a black asphalt parking lot provided for the benefit of patrons of the restaurant, and to the north of the lot was a building in which were located four business establishments, including one known as Strat's Garage. Leaving the restaurant, Mr. and Mrs. Peairs walked a few feet on the sidewalk in a northerly direction toward the parking lot and then turned to the left onto the lot in order to reach their automobile, which was parked there. The parking lot was in semi-darknes. Mrs. Peairs paused momentarily to admire the upholstery of one of the parked cars. Mr. Peairs was about three or four steps ahead of her at the time of the fall. In her testimony she thus described her fall:

'* * * I had taken just a few steps from that car when I stepped on something that hit my leg and it startled me and I screamed as the wire hit me, and the next step I took I had both feet entangled in this wire. I struggled for my balance but I went down and it felt like someone had taken a lasso and pulled both feet from under me as I went down so hard; so hard that I could feel my hands crushing my wrists.'

Mr. Peairs turned around and found his wife lying face down on the payment, unable to move and complaining that she had broken her wrists. He then found lying at her feet a wire loop, which they introduced at the trial as their first exhibit.

The defendant, the publisher of a Jacksonville newspaper, distributed its newspapers to route carriers under a carrier lease contract in which the defendant leased to the carrier a certain route, together with its subscription list, and the carrier undertook to deliver the papers to the subscribers on the route. Under this contract the defendant sold the papers to the carrier at a stipulated price and agreed not to interfere with or attempt to control the carrier with respect to the ways, means, or methods of performance, distribution, solicitation, or collection. A copy of such a contract was introduced in evidence by the plaintiffs as one of their exhibits.

Although the evidence was in some conflict as to the exact point at which the defendant had long been dropping bundles of newspapers tied with wire loops, Mr. Peairs testified that the bundles were dropped on or near the sidewalk and scattered in front of the building to the north of the restaurant. These bundles were regularly delivered to the area and set off the truck by the defendant's district manager. Mr. Peairs testified that he frequently saw the defendant's newsboys in the area of the parking lot. When he stopped to purchase a paper on Sundays he ordinarily drove up to the sidewalk on the restaurant side and usually there would be a newsboy or two around there. When the papers were pretty well tied and ready for delivery, Mr. Peairs saw the boys slapping one another witht the papers. He usually bought a paper from a newsboy at a point about half-way across the area--within twenty feet of where his wife tripped and fell in the parking lot on the night in question.

There was evidence also that, unless a distribution point was cleaned up, wires and trash would be left about a drop area. It was against the defendant's policy to leave wires and other trash around the distribution points, and the defendant's circulation manager had given instructions to the district managers to see that the wires and trash were picked up at the distribution points. Some of the carrier lease contracts had been terminated by the defendant because of the carriers' failure to pick up trash at the distribution points after being told to do so. If the carriers did not pick up the trash, usually the defendant's district managers would do so.

The defendant's district manager for the area in question testified that he had instructed the carries to keep the drop areas clean, and that in riding back by the distribution points, if he noticed any trash about the distribution point, he would stop and pick it up. He also testified that on several occasions he found trash and wires about the distribution area in question and afterwards warned the carriers not to leave any more around there

The operator of Strat's Garage testified that almost every morning, while the defendant was using the area of his garage as a distribution point, he would have to 'police up' in front of his garage; and that he had made several complaints to the defendant prior to Mrs. Peairs' fall concerning the defendant's failure to remove the wires and trash. Although the defendant promised him that it would have the matter corrected, no effective action was taken by the defendant, and finally the garage operator asked the defendant to use some other place as a distribution point, whereupon the defendant moved its distribution point about two blocks to the north.

The evidence convincingly showed that the wire which caused Mrs. Peairs to fall was the wire of the defendant. In fact, the trial court, just before granting the defendant's motion for a directed verdict, stated that a jury would be justified in making this finding, and 'That is the clearest fact in this case.'

Among the exhibits introduced in evidence by the plaintiffs at the trial was a certified copy of an ordinance of the City of Jacksonville declaring it unlawful 'for anyone to spit or throw any hulls, peelings, or other litter upon the sidewalks or other public places * * *.'

When, at the close of the plaintiffs' case, the trial court granted the defendant's motion for a directed verdict, the court said, '* * * but this is the basis of the Court's feeling, that the carriers themselves were independent contractors and independent of the defendant's negligence for which they alone are responsible.' Just before this statement the trial court, in discussing the evidence at the trial on the question of how the wire got from the place where the defendant left it to the place where Mrs. Peairs fell, said, '* * * the most reasonable explanation is that it was impelled to that point by an independent contractor, one of the carriers, in the course of their horseplay.'

These statements point up the crux of the question before us on this appeal--did the newspaper carriers bear the relation of independent contractors to the defendant and, if they did, does that fact relieve the defendant of responsibility for their negligent acts?

The question as to whether the carriers are independent contractors can be readily answered, because the Supreme Court of Florida in two cases has held that newspaper carriers working under written contracts substantially similar to those involved in the instant case were independent contractors and not employees. Florida Publishing Company v. Lourcey, 1940, 141 Fla. 767, 193 So. 847, and Miami Herald Publishing Co. v. Kendall, Fla.1956, 88 So.2d 276. Accordingly, in the consideration of the matters raised on this appeal, we assume and hold that the newspaper carriers here bore the relation of independent contractor to the defendant, and we will discuss the rights of the parties and the applicable law on the basis of such holding.

The view seems widespread among many members of the bar and bench of this state that a person is not liable for the torts committed by his independent contractors. In fact, some encyclopedic treatises declare such to be the rule in this state. Perhaps this notion arose from the large number of automobile accident cases in which our courts have held that there was no liability when the automobile was being operated by an independent contractor. Perhaps the confusion has been unalleviated by some court decisions in which were discussed the test of control of work and the effect such an element has upon liability, without clearly pointing out the exact relationship that developed when such control was present. In any event, we feel it appropriate here to marshal some of the decisions of our courts in which, for various reasons, a person was held liable for the torts committed by his independent contractor, so that we might examine the...