Smith v. Poston Equipment Rentals, Inc., 58-7
| Decision Date | 25 September 1958 |
| Docket Number | No. 58-7,58-7 |
| Citation | 105 So.2d 578 |
| Parties | John R. SMITH, Appellant, v. POSTON EQUIPMENT RENTALS, Inc., a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
Krystow & Johnson, Miami, for appellant.
Dixon, DeJarnette, Bradford & Williams, Miami, for appellee.
John R. Smith, an employee of the general contractor on a construction job, was injured when a concrete bucket fell from a crane and broke the scaffold upon which he was working. The crane was being operated by an employee of the appellee, Poston Equipment Rentals, Inc. A helper or flagman, also an employee of Poston, was directing the movements of the crane. Smith, as plaintiff, filed a complaint claiming damages from Poston. The trial judge entered a final summary judgment for the defendant, Poston, and this appeal followed.
The pleadings, depositions and admissions on file, together with the affidavit of the defendant established the following factual basis for the summary final judgment. The general contractor, who was not a party to the cause, in order to facilitate the pouring of concrete to fill certain forms on the construction job, rented from the defendant a crane with a crane operator and helper. The crane with the operator and helper was being used by the contractor as an integral part of the building operation. The process followed was that the bucket attached to the crane was filled with concrete by employees of the general contractor and then the crane lifted the filled bucket and lowered it over the column and concrete poured into the forms. The plaintiff was on scaffolding near the column being poured. It is not clear from the record what the plaintiff was doing but he was by trade a carpenter and he was engaged in the construction of the building of which the poured concrete column was to be a part. While the bucket was being held over the form by the crane operator, the bucket fell, striking and breaking the scaffolding and the appellant was knocked off the scaffold and injured. There is no charge that the equipment furnished by the defendant, Poston, was defective. The negligence alleged is that the defendant by its employees negligently operated the crane.
The controlling question is whether the defendant, Poston, is a third party against whom an independent action can be maintained under the Workman's Compensation Act. In this connection it is necessary to refer to section 440.10(1) Fla.Stat., F.S.A., which is a portion of the Workman's Compensation Law, and reads as follows:
Further, section 440.11, Fla.Stat., F.S.A., makes workman's compensation the exclusive remedy in such cases.
The appellant urges that in order to apply section 440.11, supra, and thereupon find that workman's compensation was the exclusive remedy, the trial judge was required to find that Poston, who lent the men and equipment, was a subcontractor under section 440.10(1), supra. We do not think that such a finding is a necessary step to affirm the order of the trial judge. If the men, who were lent as a part of the rental contract, were actually engaged in the construction process and under the direction of the general contractor, they were, for the purposes of this action statutory fellow servants under a 'common employer', who was liable to secure the payment of workman's compensation for all of them. Miami Roofing & Sheet Metal Co. v. Kindt, Fla.1950, 48 So.2d 840.
A somewhat similar question was decided by the Supreme Court in the case of Goldstein v. Acme Concrete Corporation, Fla.1958, 103 So.2d...
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Nelson v. Union Wire Rope Corp.
...it necessary to discuss, Florida has a 'common employer' rule, the workings of which are best demonstrated by Smith v. Poston Equipment Rentals, Inc. (Fla.App.), 105 So.2d 578. In that case a general contractor rented a crane from Poston for use on a construction project and was loaned an o......
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Scott & Jobalia Const. Co., Inc. v. Halifax Paving, Inc. for Use and Benefit of U.S. Fidelity and Guar. Co.
...inter se. Smith at 424. See also Zenchak v. Ryder Truck Rentals, Inc., 150 So.2d 727 (Fla. 3d DCA 1963); Smith v. Poston Equipment Rentals, 105 So.2d 578 (Fla. 3d DCA 1958). If no lease is involved, and the dangerous instrumentality is merely borrowed on a handshake, as in this case, our si......
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Foulk v. Perkins, 5248
...plaintiff may bring these actions. The cases of Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690, and Smith v. Poston Equipment Rentals, Fla.App.1958, 105 So.2d 578, urged by the appellant in support of its contentions on this question, are not in The judgment appealed from is h......
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Carter v. Sims Crane Service, Inc., 35136
...Company, 1940, 143 Fla. 335, 196 So. 690; Miami Roofing and Sheet Metal v. Kindt, Fla.1950, 48 So.2d 840; Smith v. Poston Equipment Rentals, Fla.App., 3d Dist.1958, 105 So.2d 578; Michaels v. United States Fidelity & Guaranty Co., Fla.App., 2d Dist.1961, 129 So.2d 427; Street v. Safway Stee......