Santa Rosa Island Authority v. F. Rust Smith & Sons, Inc.

• Decision Date: 30 May 1962
• Docket Number: No. 18871.,18871.
• Citation: 303 F.2d 576
• Parties: SANTA ROSA ISLAND AUTHORITY et al., Appellants, v. F. RUST SMITH & SONS, INC., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

303 F.2d 576 (1962)

SANTA ROSA ISLAND AUTHORITY et al., Appellants, v. F. RUST SMITH & SONS, INC., Appellee.

No. 18871.

United States Court of Appeals Fifth Circuit.

May 30, 1962.

Robert P. Gaines, of Yonge, Beggs & Lane, Pensacola, Fla., for appellants.

Joe J. Harrell, Jones & Harrell, Pensacola, Fla., for appellee.

Before HUTCHESON, WISDOM and BELL, Circuit Judges.

GRIFFIN B. BELL, Circuit Judge.

A barge loaded with a derrick owned by appellee was being towed through the intracoastal waterway at night, and while passing through the draw span of the Pensacola Beach Bridge across Santa Rosa Sound the boom of the derrick struck the south bascule leaf of the bridge twenty one inches from the outer extremity of the leaf while it was in an open position. A libel in personam was filed against appellant alleging damage to the derrick caused by the negligence of an agent or employee of the Authority while acting as bridge tender. Judgment was rendered in favor of appellee for the damages sustained and this appeal was taken therefrom.

Appellant denied that the requisite statutory notice had been given it and also denied that the bridge tender was its agent or employee, or that he was negligent in any event, and the case was tried on these issues. The errors specified here embrace these denials, and assuming the negligence of the bridge tender arguendo, whether half damages rather than whole damages should have been awarded because the tug operator was also negligent.

Appellant was created by the Legislature of the State of Florida, Special Acts of 1947, Chapter 24500, with its board members, also named as respondents in the libel, to be appointed by the County Commissioners of Escambia County. It was to be used for such purposes as the commissioners should deem to be in the public interest. Section 7 of the creating Act provides:

"No suit, action or proceeding shall be instituted or maintained in any Court against the County or the Authority for or upon any claim, right or demand of any kind or nature, other than those arising out of contract, unless within 30 days after the alleged accrual of such claim, right or demand, a notice in writing is filed with the County or the Authority, as the case may be, signed by the claimant or his agent, setting forth the nature of such claim, right or demand, the amount thereof and the place and manner in which such claim, demand or right accrued, all with sufficient detail to enable the County or the Authority to make a full investigation thereof; and no such suit, action or proceeding shall be instituted within three months after such notice shall have been given."

Appellee filed an exception to the libel on the basis of insufficient notice, and this having been overruled, moved to dismiss at the trial on the same ground. The trial court again overruled this contention and we affirm. The morning following the collision an officer of appellee contacted the manager of the Authority and notified him of the collision. The manager instructed him to notify the Florida State Road Department and this was done through the medium of a letter with a copy to the manager of the Authority. The letter set forth the details of the incident, stating time, place and the cause of the damage, but the amount of the damage was not stated. The letter indicated a claim would be made in the following language: "This is to notify you that we expect to press a claim not only for the damage to the derrick, but also for the loss of use of the equipment since it was in constant daily use on one of our construction jobs." The incident was discussed at the next regular meeting of the Authority. The State Road Department thereafter denied liability by letter "pending investigation."

In Florida as a general rule substantial compliance with notice requirements is sufficient to maintain an action against a municipality or governmental authority. Hammontree v. City of Tampa, 1933, 108 Fla. 343, 146 So. 556; Crumbley v. City of Jacksonville, 1931, 102 Fla. 408, 135 So. 885 and 138 So. 486. In Kibbe v. City of Miami, 1931, 103 Fla. 793, 138 So. 371, it was held that municipal authorities may waive mere defects in the manner and form of notice. In Tillman v. City of Pompano Beach, Fla. 1957, 100 So.2d 53, 65 A.L.R.2d 1273, the city was held estopped to deny that the notice was insufficient where it appeared that the official had actual notice and had actually investigated the accident.

Here appellee actually notified the manager of the Authority and was directed by him to submit the written notice to another governmental agency or department. There is no claim that the notice was insufficient as a means of affording the Authority opportunity to make a full investigation, the purpose of the notice requirement. Under these particular circumstances we hold that there was both a waiver and an estoppel. And Buck v. City of Hallandale, Fla., 1955, 85 So.2d 825, holding that there was not substantial compliance with the notice requirement is not to the contrary in view of the facts here.

Nor do we think there is any merit in the contention that the bridge tender was not the employee of the Authority, the manager and supervisor of the bridge operation. The Authority selected, employed, trained and paid him and could discharge him. Its manager was his "boss".

"He is deemed to be the master who has the supreme choice, control, and direction of the servant, and whose will the servant represents, not merely in the ultimate results of the work, but in all the details." Childers v. C. I. R., 9 Cir., 1935, 80 F.2d 27, 30; 56 C.J.S. Master and Servant § 1b.

We also affirm the holding of the trial court that the sole...