Reyes v. Zbin

• Decision Date: 17 December 1968
• Docket Number: No. 68--337,68--337
• Citation: Reyes v. Zbin, 217 So.2d 150 (Fla. App. 1968)
• Parties: Jose REYES, Appellant, v. Dan ZBIN, Appellee.
• Court: Florida District Court of Appeals

Page 150

217 So.2d 150

Jose REYES, Appellant, v.Dan ZBIN, Appellee.

No. 68--337.

District Court of Appeal of Florida, Third District.

Dec. 17, 1968.

Rehearing Denied Jan. 21, 1969.

Jerry Larotonda, Miami, for appellant.

Welsh & Carroll, Miami, for appellee.

Before HENDRY and SWANN, JJ., and WHITE, JOSEPH S., Associate Judge (Ret.)

WHITE, JOSEPH S., Associate Judge (Retired).

Plaintiff in the lower court has appealed from a final judgment in defendant's favor entered upon the latter's motion for summary judgment.

Plaintiff was injured while using a machine which defendant had leased to plaintiff's employer.Defendant was sued as a 'third party' under the Workmen's Compensation Law and plaintiff's cause of action was stated thus:

'* * *

'2.On or about August 27, 1965, the defendant had leased the said pulverizing machine to the said John Craft for use in clearing land on Pumpkin Key, Florida.

'3.At the time the machine was leased to John Craft, the defendant was advised that the plaintiff and a fellow employee, Armando Ramirez, were going to use the machine and that they did not know how to operate or manage the same.

'4.The said machine was operated by means of a motor and contained sharp blades which revolved and which made the machine dangerous to use.The machine was so constructed that when the motor was turned off the machine's revolving blades continued to operate for a few seconds before coming to a stop.

'5.The defendant undertook to instruct the plaintiff and his fellow employee in the use and operation of the machine, but in so doing, the defendant negligently failed to warn the plaintiff or the said Ramirez that when the machine was turned off the rotating blades would continue to operate for a period of time.

'6.On August 27, 1965, the plaintiff was feeding scrub branches into the pulverizing machine when the machine became clogged.The said Ramirez turned the machine off and the plaintiff then attempted to dislodge the machine by pulling parts of branches out from the feeding chute, when the rotating blades, which were still operating, came into contact with the plaintiff's right hand, causing him to sustain the injuries hereinafter alleged.'

Defendant did not test the sufficiency of the complaint by motion, but, instead, filed an answer in which a release was plead.Defendant's motion for summary judgment was based upon the release, and it is the legal effect of the release which is the subject of this appeal.

Notwithstanding defendant's failure to test the sufficiency of the complaint in the lower courtwe cannot...