Russell v. Atlantic Coast Line R. Co.

• Decision Date: 20 September 1937
• Parties: RUSSELL v. ATLANTIC COAST LINE R. CO.
• Court: Florida Supreme Court

176 So. 778

129 Fla. 535

RUSSELL v. ATLANTIC COAST LINE R. CO.

Florida Supreme Court

September 20, 1937

Rehearing Denied Nov. 18, 1937.

Error to Circuit Court, Duval County; De Witt T. Gray, Judge.

Action bye Willie Russell against the Atlantic Coast Line Railroad Company. Judgment for defendant, and plaintiff brings error.

Affirmed.

COUNSEL Evan T. Evans, of Jacksonville, for plaintiff in error.

W. E. Kay, J. L. Doggett, and J. L. Doggett, Jr. all of Jacksonville, for defendant in error.

OPINION

CHAPMAN Justice.

On April 1, 1936, plaintiff below, who is plaintiff in error here, filed his declaration in the circuit court of Duval county, Fla., against the Atlantic Coast Line Railroad Company, a corporation, who is defendant in error here, in which it was alleged that he received permanent physical injuries caused by the negligence of the defendant on July 31, 1934, while in its employment. It is alleged that the defendant through its foreman assigned plaintiff the duty of moving scrap iron from the yards of the defendant by means of a car on rails and these articles placed in a bin. The plaintiff was injured when moving a 'draw head' of approximately 200 pounds weight from the yard to the waste iron bin. He was employed by the defendant at the time as a common laborer.

The record shows that no attacks were made by the defendant on the legal sufficiency of the declaration, but a plea of the general issue or one of not guilty was filed to this declaration on July 18, 1934. A jury was sworn to try the issues and, after all evidence iin behalf of the plaintiff had been adduced and an announcement by plaintiff's counsel was made 'that he at that time had no other evidence to offer,' counsel for defendant moved the court on various grounds to direct the jury to find a verdict for the defendant. Out of approximately proximately 30 reasons for a directed verdict, it seems the following are sufficient to dispose of this suit:

'1. The plaintiff has failed to prove any actionable negligence on the part of the defendant.

'2. The undisputed evidence in this case shows that the occupation engaged upon at the time of the accident and injury was the simple moving of 'draw heads,' and had nothing whatsoever to do with the occupation of railroading.

'3. The undisputed evidence in this case shows that the negligence of the plaintiff himself proximately contributed to his injury.

'4. Because the work that plaintiff was engaged in at the time of his alleged injury did not bring this case within the hazardous occupation act and all the evidence shows, he was proximately guilty of negligence, therefore there can be no recovery.

'5. The undisputed evidence in this case shows that the accident and injury resulted proximately from a cause other than the negligence on the part of this defendant.

'6. The plaintiff's own negligence was the proximate cause of the injury.'

The Court below sustained the motion for a directed verdict, overruled a motion for a new trial, and caused to be entered a final judgment for the defendant, and a bill of exceptions was signed by the lower court and the cause is here on writ of error. The assignments of error made here, broadly speaking, seek a review of the order of the lower court in granting defendant's motion for a directed verdict.

Counsel for plaintiff in error suggests the question for decision is: Does the plea of not guilty in a tort action admit the relation of the parties as alleged in the inducement of the declaration? That, if this question presents the issue to be settled, then the judgment appealed from should by this court be reversed. The following authorities are cited in his brief to sustain his position: Section 4332, 4333, C.G.L., 2666, R.G.S.; Crandall in Florida Common Law Practice p. 179; Harbeson Lumber Co. v. Anderson, 102 Fla. 731, 136 So. 557; McLeod Const. Co. v. Cooper, 101 Fla. 441, 134 So. 224; Atlantic Coast Line R. Co. v. Crosby, 53 Fla. 400, 43 So. 318; Atlantic Coast Line R. Co. v. Coachman, 59 Fla. 130, 52 So. 377, 20 Ann.Cas. 1047; City of Key West v. Baldwin, 69 Fla. 136, 67 So. 808; Smith v. Coleman, 100 Fla. 1707, 132 So. 198.

It is unfortunate that counsel for plaintiff in error failed and otherwise omitted to define, designate, or point out the exact words of the declaration which he considered or believed to be the inducement. It may be that pleadings vary from time to time as to the inducement part thereof. We take the definition of 'inducement' from Bouvier's Law Dictionary, being:

'In Pleading. The statement of matter which is introductory to the principal subject of the declaration or plea, and which is necessary to explain or elucidate it. Such matter as is not introductory to, or necessary to elucidate the substance or gist of, the declaration, plea, etc., nor collaterally applicable to it, is surplusage.

'And inducement is, in general, more a matter of convenience than of necessity, since the same matter may be stated in the body of the declaration; but by its use confusion of statement is avoided; 1 Chitty, Pl. 259.

'But in many cases it is necessary to lay a foundation for the action by a statement by way of inducement, of the extraneous or collateral circumstances which give rise to the plaintiff's claim. For instance, in an action for a nuisance to property in the possession of the plaintiff, the circumstances of his being possessed of the property should be stated as inducement, or by way of introduction to the mention of the nuisance; 1 Chitty, Pl. 292; Steph.Pl. 257.'

Also 49 Corpus Juris p. 139, par. 143:

'Matter of Inducement. Inducement is the statement of matter which is introductory to the principal subject of the pleading, and which is necessary or suitable to elucidate it and make its purport clear. If such matter is not so related to the constitutive facts of the cause of action it is surplusage, and whether matter is surplusage or proper inducement is to be determined by a sound construction of the entire pleading. Its office being merely explanatory, it does not require exact certainty, nor is it necessary that it be formal. If it substantially suffices to make the principal facts intelligible, that is enough.'

If the rule stated in the authorities, supra, applies, it is readily observed that more of the declaration is included under the 'inducement clause' than contemplated by counsel for plaintiff in error. Counsel for defendant in error assert in their brief the following portion of the declaration should be considered in this cause as the inducement, viz.:

'That on or about the 31st day of July, 1934, defendant was engaged in the occupation of...