Town of De Funiak Springs v. Perdue

• Decision Date: 24 March 1915
• Citation: 68 So. 234,69 Fla. 326
• Parties: TOWN OF DE FUNIAK SPRINGS v. PERDUE et al.
• Court: Florida Supreme Court

68 So. 234

69 Fla. 326

TOWN OF DE FUNIAK SPRINGS v. PERDUE et al.

Florida Supreme Court

March 24, 1915

Error to Circuit Court, Walton County; T. Emmet Wolfe, Judge.

Action by W. W. Perdue and another against the Town of De Funiak Springs. Judgment for plaintiffs, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

In an action against a municipal corporation for negligent injuries, the gist of the action is the negligence for which the corporation is liable; and it is essential to allege in the declaration ultimate facts showing the relation out of which arose the duty of the corporation to exercise appropriate care with reference to the rights of the plaintiff, and also the negligent act of omission or commission for which the corporation is responsible, that proximately caused the injury complained of; the specific ultimate fact that actually caused the injury being duly alleged, so that a definite issue may be presented for trial.

On an assignment of error based upon the overruling of a demurrer to the declaration, the plaintiff in error will be confined to the grounds stated in the demurrer and argued in the appellate court, and no other grounds will be considered unless there is an omission in the declaration of allegations of substantive facts which are essential to a right of action, so that the delaration wholly fails to state a cause of action.

Where in an action for damages, the declaration, when fairly considered as an entirety, states facts from which it may reasonably be inferred that the negligence alleged was a proximate cause of the stated injury, a demurrer addressed to that point is properly overruled.

Where a single assignment attacks the ruling of the circuit judge sustaining a demurrer to three separate pleas, an appellate court need go no further than to determine that the demurrer was properly sustained to one of such pleas, as the assignment must fail, unless all of such pleas are good.

Where the negligence of a municipality has contributed as the proximate cause of the injury complained of, such municipality cannot avoid liability by claiming that such injury was caused by an act of God. It is sufficient if the negligence of the municipality is an efficient cause, without which the injury would not have resulted, and that such other cause is not attributable to the person injured.

In an action against a municipality to recover damages alleged to have been occasioned by the falling of a tower owned by such municipality, which had been permitted to become and remain in a decayed and unsafe condition, no error is committed in refusing to permit a witness for the defendant to give his opinion as to whether or not the wind was sufficient in force to have blown such tower down, if the tower had been sound especially when such witness had not qualified either as an expert or skilled witness.

Evidence is properly excluded that has no relevancy to any issue in the cause.

Instructions should be confined to the issues made by the pleadings, and are properly refused when they do not state correct propositions of law as applicable to the facts of the case.

When a jury has rendered its decision through its verdict, it should be regarded as settling all controverted questions of fact submitted for determination, unless it clearly appears that the jurors, in arriving at such verdict, must have been improperly influenced by considerations outside the evidence.

In passing upon an assignment based upon the ruling of the trial court in denying a motion for a new trial, which questions the sufficiency of the evidence to sustain the verdict, the guiding principle for an appellate court is not what it may think the jury ought to have done, or what such court may think it would have done, had it been sitting as jury in the case, but whether, as reasonable men, the jury could have found such verdict from the evidence adduced. If this question can be answered in the affirmative, the action of the trial court upon such motion should not be disturbed.

COUNSEL D. Stuart Gillis, of De Funiak Springs, for plaintiff in error.

Daniel Campbell & Son, of De Funiak Springs, for defendants in error.

OPINION

SHACKLEFORD, J.

W. W Perdue and P. D. McDonald, 'partners trading and doing business as Perdue & McDonald,' brought an action against the town of De Funiak Springs, a municipal corporation, to recover damages for the killing of two mules, the property of the plaintiffs, by reason of the alleged negligence of the defendant municipality. A trial was had before a jury, resulting in a verdict for the plaintiffs for the sum of $425, upon which judgment was entered, which the defendant has brought here for review.

The first assignment is based upon the overruling of the demurrer, which was interposed to the declaration. The declaration consists of three counts, and covers over seven typewritten pages. We have several times had occasion to discuss the essential allegations in a declaration in an action for the recovery of damages for injuries occasioned by the negligence of the defendant. See Warfield v. Hepburn, 62 Fla. 409, 57 So. 618; Wood Lumber Co. v. Gipson, 63 Fla. 316, text 320, 58 So. 364, text 365; Coombs v. Rice, 64 Fla. 202, 59 So. 958; Gonzalez v. City of Pensacola, 65 Fla. 241, 61 So. 503. It would be well for counsel to heed the suggestions in these cases, as undue prolixity and unnecessary allegations may prove dangerous. As we held in Gonzalez v. City of Pensacola, supra:

'In an action against a municipal corporation for negligent injuries, the gist of the action is the negligence for which the corporation is liable; and it is essential to allege in the declaration ultimate facts showing the relation out of which arose the duty of the corporation to exercise appropriate care with reference to the rights of the plaintiff, and also the negligent act of omission or commission for which the corporation is responsible, that proximately caused the injury complained of, the specific ultimate fact that actually caused the injury being duly alleged, so that a definite issue may be presented for trial.'

We see no occasion for copying the declaration in the instant case. Very concisely stated, it alleges that the defendant municipality erected and owned and controlled a certain structure at a certain described location, known as the bell tower, upon which was placed a large and heavy bell, which bell tower had been constructed a number of years previous to the injury, and the foundation of which had been suffered and permitted to rot and decay to such an extent that it had become unsafe and dangerous, which unsafe and dangerous condition was known or should have been known to the defendant, its officers and employés; that the defendant had also extended electric wires throughout the municipality for the purpose of lighting the same and had placed such electric wires in reach of such bell tower in its unsafe condition; and that upon a specified date such bell tower, by reason of its decayed and unsafe condition, fell with great force across such electric wires, which were charged with electricity; thereby precipitating such wires upon and across the street, whereon two mules, the property of the plaintiffs, were standing, so that such mules, without the negligence of the plaintiffs or their employés, came in contact with such live wires and were immediately killed, to the damage of the plaintiffs in the sum of $450. The three counts differ from one another only as to the exact location of the bell tower.

We see no occasion for copying the demurrer interposed. Suffice it to say that it contained five grounds. As we have repeatedly held:

'On an assignment of error based upon the overruling of a demurrer to the declaration, the plaintiff in error will be confined to the grounds stated in the demurrer and argued in the appellate court, and no other grounds will be considered, unless there is an omission in the declaration of allegations of substantive facts which are essential to a right of action, so that the declaration wholly fails to state a cause of action.'

See Royal Phosphate Co. v. Van Ness, 53 Fla. 135, 43 So. 916.

Strictly speaking, the defendant municipality has not argued before us one of the grounds stated in the demurrer, but has undertaken to raise here, for the first time, other grounds. This cannot be permitted. We have carefully examined the declaration and also the grounds of the demurrer and are of the opinion that, notwithstanding the prolixity, redundancies, and unnecessary matter therein, the declaration does sufficiently comply with the requirements in Gonzalez v. City of Pensacola, supra, to enable it to withstand the attack made upon it by the demurrer which was interposed. See, also, Tampa & Jacksonville Ry. Co. v. Crawford, 67 Fla. 77, 64 So. 437, wherein we held:

'Where, in an action for damages, the declaration, when fairly considered as an entirety, states facts from which it may reasonably be inferred that the negligence alleged was a proximate cause of the stated injury, a demurrer addressed to that point is properly overruled.'

We must hold that the first assignment has not been sustained.

The second assignment is that:

'The court erred in sustaining plaintiff's demurrer to defendant's (amended) pleas 2, 3, and 4, filed August 17, 1914.'

The defendant had previously filed a plea of not guilty. We do not copy all three of the amended pleas to which the demurrer was sustained, for the reason that, where a single assignment of error attacks the ruling of the circuit judge sustaining a demurrer to three separate pleas, if we should find that the circuit judge acted properly in sustaining the demurrer to any one of the pleas in...