Pinkerton-Hays Lumber Co. v. Pope, PINKERTON-HAYS

• Decision Date: 01 March 1961
• Docket Number: PINKERTON-HAYS
• Citation: 127 So.2d 441
• Parties: LUMBER COMPANY, Inc., Petitioner, v. Doyle POPE, Respondent.
• Court: Florida Supreme Court

Page 441

127 So.2d 441

PINKERTON-HAYS LUMBER COMPANY, Inc., Petitioner, v. Doyle POPE, Respondent.

Supreme Court of Florida.

March 1, 1961.

Keen, O'Kelley & Spitz, A. Frank O'Kelley and H. O. Pemberton, Tallahassee, for petitioner.

Roy T. Rhodes of Horne & Rhodes, Ausley, Ausley & McMullen, Tallahassee, and Marks, Gray, Yates, Conroy & Gibbs, Jacksonville, for respondent.

HOBSON, Justice.

The petitioner brought an action in the circuit court of Taylor County against the respondent for fire damage to petitioner's sawmill, allegedly suffered as a result of respondent's negligence. From an adverse verdict and judgment, respondent appealed to the District Court of Appeal, First District, on the ground that, as a matter of law, the evidence failed to establish that the respondent's negligence was the proximate cause of the damage suffered by petitioner.

The District Court of Appeal, In Pope v. Pinkerton-Hays Lumber Co., Fla.App., 120 So.2d 277, reversed the judgment of the circuit court, with directions that it be set aside and a judgment entered dismissing the cause. Petitioner now seeks, by petition for certiorari, the review by this court of the decision of the District Court of Appeal, alleging that the decision is in direct conflict with the decision of this court in Cone v. Inter County Telephone & Telegraph Co., Fla., 40 So.2d 148.

The facts of the case are adequately set out in the opinion of the District Court of Appeal, and are quoted herewith :

'Plaintiff owned and operated a sawmill located one-half mile outside the corporate limits of the City of Perry. Defendant is a contractor who was engaged in a road construction job inside Perry. One of defendant's employees, while in the performance of his duties, negligently operated a bulldozer in such manner as to sever a telephone cable which connected the telephone located in plaintiff's sawmill with the switchboard of the telephone company. In the early hours of the morning following the severance of the telephone cable on the preceding afternoon, a fire occurred on the premises where plaintiff's sawmill was located. Because the night watchman at the sawmill was unable to communicate by telephone with the Perry Fire Department, the fire spread to the sawmill causing considerable damage before it could be extinguished. The evidence shows that on several prior occasions fires had occurred in a similar fashion at plaintiff's sawmill, but in each instance the local fire department was summoned by telephone and arrived at the mill in time to extinguish the blaze before any material damage was suffered.'

The source of the alleged conflict between the decision of the District Court of Appeal in the instant case and that of this court is contained in the following language which appears in the opinion of the District Court of Appeal:

'Under the definition adopted by the Supreme Court in the Cone case, the defendant could be liable only if the proof showed that in the past the mill had frequently caught on fire, and that a loss had been suffered because of interrupted telephone service between the mill and the fire department. Had this been the case, the defendant could have reasonably foreseen that by his negligent act of severing the cable and thus interrupting telephone service, the loss was likely to happen again because losses under similar circumstances had frequently happened in the past. There are no allegations in the complaint, nor proof in the evidence, that the plaintiff's mill ever suffered a loss by fire in the past by reason of interrupted telephone service to the fire department. This being so, the facts in this case do not come within the rule of proximate cause as defined by the Supreme Court in the Cone case.'

The District Court of Appeal apparently drew this conclusion from the following language contained in the Cone case, which was quoted in the opinion of the District Court of Appeal :

'* * * [W]hen the loss is not a direct result of the negligent act complained of, or does not follow in natural ordinary sequence from such act but is merely a possible, as...