Putnam Lumber Co. v. Berry

• Decision Date: 15 April 1941
• Parties: PUTNAM LUMBER CO. et al. v. BERRY.
• Court: Florida Supreme Court

2 So.2d 133

146 Fla. 595

PUTNAM LUMBER CO. et al. v. BERRY.

Florida Supreme Court

April 15, 1941

Rehearing Denied May 26, 1941.

En Banc. [Copyrighted Material Omitted]

T. J. Swanson, of Perry, for plaintiff in error Joe Rauleson and Dewey Adkinson.

Marks, Marks, Holt, Gray & Yates and Harry T. Gray all of Jacksonville, and L. W. Duval, of Ocala, for plaintiff in error Putnam Lumber Corporation.

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

PER CURIAM.

This writ of error brings for review final judgment awarding plaintiff, R. L Berry, damages for personal injuries sustained.

Plaintiff's one count declaration was brought against the Putnam Lumber Co., Joe Rauleson and Dewey Adkinson.

The declaration alleged in substance that on or about February 25, 1937, at or near Gum Slough in Marion County, Florida, defendants were loading logs, cut for Putnam Lumber Co., upon motortrucks to be hauled to the saw mill and lumber yard of Putnam Lumber Co. in Shamrock, Florida; that plaintiff was employed by Putnam Lumber Co. as a truck driver in hauling logs from various points in the State to its sawmill and lumber yard in Shamrock, and plaintiff was by said defendant on said date instructed to drive one of defendant's trucks to said Gum Slough, pick up a load of logs and haul them to defendant's plant in Shamrock; that plaintiff had never before been to said loading point and had no opportunity to inspect the condition and sufficiency of the machinery and equipment there used by defendants in loading the logs; that the equipment, machinery and appliances there used for loading logs was unsafe, defective, inadequate and dangerous to persons at or near the loading point, in that the 'skidder' and the engine operating it were of inadequate size and power to lift large logs such as were then and there being loaded without snatching or jerking them upward by racing the engine and applying the power suddenly and violently, and the tree to which said machinery was attached, and which was used as a mast in lifting and loading said logs upon said trucks, was weak, unsafe and defective, and the guy wires or cables attached to said tree to strengthen it and to take up a large part of the stress and strain, were old, worn and weak and insufficient in number and strength; which facts were unknown to plaintiff and were not observable by him, but were known to, or in the exercise of ordinary care and diligence should have been known, to each of defendants; that it was the duty of defendant Putnam Lumber Co., as plaintiff's employer, and of defendants Rauleson and Adkinson as participators and coactors with Putnam Lumber Co. in said loading operation to use reasonable care to provide plaintiff with a reasonably safe place to work at said loading point, and to use reasonably safe and adequate appliances and equipment for the loading operations being carried on, and to warn plaintiff of the latent dangers before or upon his arrival at said loading point; but each of said defendants negligently and carelessly failed to perform their several duties toward plaintiff, consequently plaintiff arrived with defendant's truck at said loading point in the early morning of said day, and was and remained without knowledge or notice of said conditions and dangers, and without opportunity to discover them after his arrival, and while a large cypress log was being loaded by defendants on another truck of Putnam Lumber Co., one or more of the guy wires or cables gave way by reason of their worn and weakened condition and insufficiency, and said tree was snapped off at the butt by reason of its defective condition, under the excessive and dangerous strain exerted upon them by the operation of the 'skidder' in the manner above described, while lifting said log to load it upon said truck, causing the top of said tree to be pulled violently to the ground toward plaintiff who was then and there waiting with his truck in the course of his employment and a branch of said tree struck and tore off plaintiff's left arm between the shoulder and elbow, which injury was caused solely by said negligence of defendants; that as a result of said injury plaintiff for a long time suffered and still suffers intense and excruciating pain, both mental and physical; that while under treatment for his injuries by physicians and surgeons of Putnam Lumber Co., plaintiff was provided with and directed to take certain sedative drugs to ease said pain; that an infection called gas gangrene set up in plaintiff's arm and shoulder despite the treatment for many months by physicians of Putnam Lumber Co., so that it became necessary to remove, by successive operations, the remaining bones and flesh of plaintiff's left arm and shoulder, including the left shoulder blade; that the continued administration of said sedative drugs created a mental derangement of plaintiff and an addiction to such drugs, which plaintiff was unable to control with the result that he was committed to an insane asylum for treatment of such conditions, and has only recently recovered therefrom; that plaintiff is totally and permanently disabled from following his usual or any gainful occupation, and plaintiff has lost and will continue throughout his life to lose large sums of money, which he would otherwise have earned, and has expended and will expend large sums of money for medical and surgical care and medicines, and plaintiff claims $20,000 damages.

Demurrers to the declaration were overruled, and motions to amend were denied.

Putnam Lumber Co. filed 27 pleas. In addition to the pleas denying allegations of the declaration, there were also pleas of not guilty; contributory negligence; that the persons loading the logs were not agents, servants or employees of Putnam Lumber Co., but were independent contractors; assumption of risk and release.

Demurrer to pleas Nos. 2, 19, 21, 22, 23, 24, 25 and 26 was sustained with permission to amend pleas Nos. 2, 24 and 26.

Pleas Nos. 2 and 24 were amended, and thereafter demurrer was sustained to amended plea No. 24 on the ground that all material facts averred therein were provable under the general issue.

No pleas were filed by defendant Dewey Adkinson. Defendant Joe Rauleson filed 27 pleas, substantially like those of Putnam Lumber Co.

Demurrer to his pleas Nos. 19, 21, 22, 23, 24 and 25 was sustained.

Plaintiff filed a replication stating that the release plead by defendants was not plaintiff's deed in that when he signed it he was under the influence of sedative drugs administered by defendant's physicians and had been for some time prior thereto, and did not know that he had signed the release until many months afterwards.

Demurrers to the replication were overruled, and a rejoinder was filed by defendant Joe Rauleson denying every allegation contained in the replication and asserting that plaintiff was fully aware of what he was doing when he signed the release.

Trial was had before a jury. A motion for directed verdict at the close of plaintiff's testimony was denied. The jury returned a verdict in favor of plaintiff and assessed his damages at $12,000.

Motions for new trial and in arrest of judgment were denied. Thereafter final judgment in favor of plaintiff was entered upon the verdict.

The method of loading logs employed here may be described in this manner: The logs, having been cut and 'skidded' out of the swamp, were piled near the rig tree, which was used as mast by means of which the logs were hoisted. This rig tree was approximately 50-60 feet high and 24-26 inches thick at the butt. To strengthen and steady the rig tree, one three-fourths inch and two five-eighths inch steel cables were attached to it 30-35 feet from the ground. The 'skidder', the machine furnishing the power for raising the logs, was 150 feet from the rig tree. The guy lines or cables were designated as right quarter guy, left quarter guy and center back guy, and were located on the right, on the left and on the opposite side of the rig tree from the 'skidder'. From a revolving drum on the 'skidder' a five-eighths inch cable was carried to the rig tree where it was passed through the loading 'block'. This loading 'block' was attached to a short 12-foot cable, called a 'sling'. The other end of the 'sling' was fastened to the rig tree approximately 18 inches below the point where the three guy lines were attached. The 'sling' was used to permit a log to be lifted a sufficient distance from the body of the rig tree so that a truck could be backed under the log while suspended in the air, without backing into the rig tree, and have the log lowered onto the truck. When one end of the 'skidder' cable was attached to a log and strain applied on the line to raise the log, the 'sling' permitted the 'block' and log to pull away from the rig tree some 8 [2 So.2d 137] to 10 feet. Having hoisted a log 8 or 10 feet into the air, the 'skidder' crew would direct the truck to be placed into position to receive the log. When the truck was so placed the 'skidder' crew lowered and loaded the log on the truck, released the 'skidder' line, and ordered the truck to move out until another log could be hoisted into position to load. Several logs, depending on their size, would thus be loaded on one truck.

It was during a loading operation such as that described above that plaintiff, Berry, received his injuries. It is contended by defendants that the loading operation in its entirety was being done by Joe Rauleson and Deway Adkinson owners of the timber, who sold it to Putnam Lumber Co., and contracted, as independent contractors, to load the logs on the trucks of Putnam Lumber Co. The only evidence that...