Stearns & Culver Lumber Co. v. Fowler

• Decision Date: 09 November 1909
• Citation: 58 Fla. 362,50 So. 680
• Parties: STEARNS & CULVER LUMBER CO. v. FOWLER.
• Court: Florida Supreme Court

50 So. 680

58 Fla. 362

STEARNS & CULVER LUMBER CO. v. FOWLER.

Florida Supreme Court, Division A.

November 9, 1909

Error to Circuit Court, Walton County; J. E. Wolfe, Judge.

Action by Richard Fowler against the Stearns & Culver Lumber Company. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

One who employs others is liable in damages for injuries to employés caused by the negligence of the employer or of those who sustain to such employés the relation of employer by discharging duties properly belonging only to the employer where the party injured has not contributed to the injury complained of. Risks resulting from the master's negligence are not assumed by the servant.

A master is not bound to indemnify one servant for injuries caused by the negligence of another servant in the same common employment as himself, unless the negligent servant was the master's representative.

An employer, who exercises proper care in selecting employés and in providing for employés reasonably safe places in which to work and suitable implements to work with, and performs other duties due from the employer to the employé, is, in general not liable for injuries to an employé caused by the negligence of fellow servants engaged in the same service where the employer does not contribute to the injuries.

To render an employer not liable to those in his employ for injuries caused by the negligence of a fellow servant, it is not necessary that the servant who causes and the one who suffers the injury should be at the time of the injury engaged together in the same particular work. It is sufficient if they are in the employment of the same master engaged in the same common enterprise, and both are employed to perform duties tending to accomplish the same general purpose, where such duties are not peculiar to the master as such.

Where the duty negligently performed does not appear as a matter of law to be a duty devolving upon the master, or the conceded facts relating thereto are not such that an inference of law may be drawn therefrom by the court, the question whether the duty negligently performed did devolve upon the master in the particular case is for the jury to determine from all the facts and circumstances of the employment in evidence under proper instructions from the court.

In an action by an employé to recover from the master damages for an injury caused by the negligence of another employé, the burden is upon the plaintiff to show that the negligence causing the injury was done while performing a duty cast upon the defendant master as such.

A master assumes the duty towards his servant of exercising reasonable care and diligence to provide the servant with a reasonably safe place at which to work, with reasonably safe machinery, tools, and implements to work with, with reasonably safe materials to work upon, and with suitable and competent fellow servants to work with him; and, when the master has properly discharged these duties, then, at common law, the servant assumes all the risks and hazards incident to or attendant upon the exercise of the particular employment or the performance of the particular work including those risks and hazards resulting from the possible negligence and carelessness of his fellow servants and co-employés.

At common law, whenever the master delegates to any officer, servant, agent, or employé, high or low, the performance of any of the duties which really devolve upon the master himself, then such officer, servant, agent, or employé stands in the place of the master, as to such delegated duties, and becomes a substitute for the master, a vice principal, and the master is liable for his acts or his negligence to the same extent as though the master himself had performed the acts or was guilty of the negligence.

At common law, where the master himself has performed his duty, he is not liable to any one of his servants for the acts or negligence of any mere fellow servant or co-employé of such servant, where the fellow servant or co-employé does not sustain a representative relation to the master.

An employer is liable in damages for injuries to employés caused by the negligent performance or nonperformance of any duty to the employés devolving upon the employer by virtue of the express or implied requirements of the employment, whether such duty is performed or neglected by the employer or one acting for the employer. The particular duties imposed upon the employer with reference to the employés may depend to some extent at least upon the circumstances of the employment.

In determining whether a particular agent or servant represents the master, the duty required to be performed, rather than the title by which the servant is known or called, is to be considered.

In order to recover, the plaintiff should make it appear that the negligence causing the injury was in the performance of a duty or an act imposed upon the master as such by law or by the express or implied requirements of the employment. It is immaterial who performed the act, if it was one properly devolving upon the employer as such in view of the circumstances of the employment.

In this action for damages for negligent injuries, brought by an employé against the employer, where the question whether the negligence was in the performance of a duty properly devolving upon the employer as such may be largely one of evidence, the declaration using general language is held not to be so framed as to wholly fail to state a cause of action.

Whatever may be the true rule as to the status of a conductor on a train of a railroad system, the conductor, or 'boss,' or 'foreman' of a log train belonging to and used solely by a sawmill company only for its own mill purposes, who has no authority to employ or discharge an employé, and who is in authority subordinate to others engaged in the same business, is not in law necessarily the representative of the master discharging a duty peculiarly devolving upon the master while signaling the movements of a machine used in loading the log train, so as to give a right of action against the master by an employé who is injured by the moving of the loading machine because of alleged negligence of the conductor or boss in signaling, where no negligence is shown in the performance of duties cast properly upon the master.

COUNSEL Blount & Blount & Carter, for plaintiff in error.

S. K. Gillis, for defendant in error.

OPINION

WHITFIELD C.J.

The defendant in error recovered a judgment against the Stearns & Culver Lumber Company for personal injuries received by the plaintiff below in the moving of a loading machine on a log train as a result of the negligence of the 'foreman or boss, who was the agent and employé of the defendant,' who is alleged to have 'carelessly, negligently, and wrongfully caused said loading machine to be put in motion by then and there having it moved forward' on the track upon the log car on which was the plaintiff, an employé, thereby causing the injury. The declaration alleges, and there is evidence, that the plaintiff was 'under the supervision and control of the said foreman or boss, who was the agent and employé of the defendant.'

On writ of error the defendant below contends that no recovery should be had because the alleged negligence appears to have been that of a fellow servant, and not of the employer defendant.

One who employs others is liable in damages for injuries to employés caused by the negligence of the employer or of those who sustain to such employés the relation of employer by discharging duties properly belonging only to the employer, where the party injured has not contributed to the injury complained of. Risks resulting from the master's negligence are not assumed by the servant. 1 Labatt on Master & Servant, § 2 et seq. A master is not bound to indemnify one servant for injuries caused by the negligence of another servant in the same common employment as himself, unless the negligent servant was the master's representative. 2 Labatt on Master & Servant, § 470.

An employer, who exercises proper care in selecting employés and in providing for employés reasonably safe places in which to work and suitable implements to work with, and performs other duties due from the employer to the employé, is, in general not liable for injuries to an employé caused by the negligence of fellow servants engaged in the same service, where the employer does not contribute to the injuries. This rule was established by the courts, based largely upon public policy for the mutual protection of servants, and upon the theory that by implication of law an employé assumes the risk of injury resulting from the negligence of fellow servants with whom the employé may or may not engage to work at his own volition. Though the rule when applicable has the force of law, it furnishes no property right or vested interest to any one, and there is no special constitutional provision in this state relating to it. Like all rules relating to rights and remedies, it may in whole or in part be regulated, changed, or modified by a duly enacted statute when constitutional guaranties are not violated. The Legislature may exercise a wide lawmaking discretion as to regulating...