Smith v. Arnold

• Decision Date: 05 August 1952
• Citation: 60 So.2d 281
• Parties: SMITH et al. v. ARNOLD et al.
• Court: Florida Supreme Court

Page 281

60 So.2d 281

SMITH et al. v. ARNOLD et al.

Supreme Court of Florida, Special Division B.

Aug. 5, 1952.

Rehearing Denied Sept. 8, 1952.

Milton Kelner, Miami, for appellants.

Dixon, DeJarnette & Bradford and Joseph F. Jennings, Miami, for appellees.

FUTCH, Associate Justice.

Appellants sued appellees in the Circuit Court of Dade County, Florida, to recover damages for the wrongful death of their infant son.

At the time of his death the boy was nine years of age. He died as the result of falling from and being run over by a truck belonging to appellees, Arnold, and driven by appellee Smith, who was then employed by the Arnolds to work in the grocery store owned and operated by the Arnolds. On this particular occasion and as part of his duties as an employee of the Arnolds, Smith was driving the truck while appellants' son and another boy rode on the running boards of the truck from house to house. The truck was stopped by Smith at frequent intervals when the boys, one or both, would jump from the truck to deliver circulars advertising the Arnolds' grocery business. The appellants' son, Charles Smith, Jr., was riding on the right side of the truck and the other boy, Curtis Lazier, aged eight, was riding on the left side. The truck had been stopped for the boy, Curtis Lazier, to deliver a circular. The truck was then turned around, the gear shift was bad and during the process of turning and attempting gear shifting, the Smith boy fell or was thrown off the running board and under the truck so that the rear wheel of the truck ran over his head causing severe injuries from which he died.

That the employment of the two boys and the purpose of such employment, as well as the position on the running board of the truck where they were required to ride, was known to and approved by defendants, is not disputed.

The defendants, by their pleadings, admit ownership and operation of the truck and the agency of defendant, Earl Gordon Smith, as an employee of the defendants Arnold in the use of the truck and employment of the deceased child.

Defendants interposed as defense of law that Charles Smith, Jr., being employed by defendants Arnold came under the provisions of the Florida's Workmen's Compensation Act, Chapter 440, F.S.A. (F.S.1952), with specific emphasis on the provisions of Section 440.11.

The lower Court sustained this defense as a matter of law and entered summary final judgment in favor of the defendants.

The record discloses that no effort was made by the defendants to comply with the Child Labor Law of this State, Chapter 450, F.S.1952, F.S.A. The employment of this child, Charles Smith, Jr., was in direct violation of the provisions of Section 450.03, F.S.1952, F.S.A., and therefore void. Wechsler v. Novak, 157 Fla. 703, 26 So.2d 884. Section 440.02, F.S.1952, F.S. A. (Workmen's Compensation Law), defines an employee as including 'every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also including minors whether lawfully or unlawfully employed'. Appellees lay special stress on the phrase 'and also including minors whether...