Tucker v. Daugherty, 1457
| Decision Date | 13 July 1960 |
| Docket Number | No. 1457,1457 |
| Parties | B. M. and R. L. TUCKER, Individually and d/b/a Tucker's Heavy Equipment Service, a co-partnership, Appellants, v. Andrew DAUGHERTY, Appellee. |
| Court | Florida District Court of Appeals |
Harrison D. Griffin of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellants.
Ray M. Watson, South Miami, for appellee.
Andrew Daugherty sued B. M. and R. L. Tucker, doing business as Tucker's Heavy Equipment Service, a co-partnership, for injuries he sustained while employed by Sample Rock Company and while attempting to move a rock crushing machine, which defendants had sold to plaintiff's employer. He recovered and defendants appeal.
Count One in substance alleges that plaintiff, an employee of Sample Rock Company, was an operator of a bulldozer type of machine known as a towing or front-end loading machine; that the defendants had sold or were attempting to sell and demonstrate to Sample Rock Company a heavy equipment machine known as a rock crusher and that defendants were in the sole exclusive and complete control of said equipment; that the plaintiff in compliance with orders of defendant B. M. Tucker, backed his towing machine so as to be attached to and coupled with the rock crusher machine; and that in accordance with further orders of the said Tucker the plaintiff drove his towing vehicle forward for the purpose of moving said rock crushing machine to a new location. Then, it was alleged, as he attempted to do so the front wheels of the machine became detached causing the machine to fall, injuring the plaintiff. The plaintiff charged that the defendants had undertaken to reattach and reinstall the front wheels on said machine; that said defendants failed to properly, firmly, and securely fasten, attach, and lock said front wheels in place, and instead carelessly left said wheels loose and unsafe; and that as a direct and proximate result of the negligent and careless act of the defendant B. M. Tucker the plaintiff was injured.
Count Two of the amended complaint alleged that the machine was so defectively and negligently manufactured and/or assembled that when plaintiff drove forward at the direction of B. M. Tucker the front wheels became detached, and that the dangerous condition of the machine should have been known to the defendants.
The testimony in support of said counts is that the rock crushing machine, which weighed forty thousand pounds, was sold by appellants to Sample Rock Company F.O.B., Leesburg, Florida, where the said machine was manufactured on order of Sample Rock Company. Prior to the crusher being transported from Leesburg to Pompano where Sample Rock Company operates a rock pit, the front wheels of the rock crushing machine were removed to facilitate its transportation. The machine was transported by Watt Smith Trucking Company.
The machine was delivered to Sample Rock Company about 5:00 p. m. on April 9, 1957. Shortly after its arrival B. M. Tucker along with Leon Martin, his mechanic, Everett Casper, general manager of Sample Rock Company, a Mr. Stone, foreman for Sample Rock Company, and others replaced the front wheels of the rock crushing machine. To quote Mr. Casper:
'Well, probably we had five or six there, it might could have been done with less, but a lot of men will take hold and help push it under.'
There is no testimony that B. M. Tucker or his employee made any representation to any person that the machine had been properly reassembled or that the front wheels were properly in place. The machine was...
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...satisfy ... due process" when the plaintiff sought and was awarded relief not properly pleaded in the complaint); Tucker v. Daugherty, 122 So.2d 230, 232 (Fla. 2d DCA 1960) (remanding for new trial when the plaintiff was permitted to amend its negligence complaint to add a new theory of neg......
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