Vanlandingham v. Florida Power & Light Co.

• Decision Date: 23 June 1944
• Citation: 154 Fla. 628,18 So.2d 678
• Parties: VANLANDINGHAM et al. v. FLORIDA POWER & LIGHT CO.
• Court: Florida Supreme Court

18 So.2d 678

154 Fla. 628

VANLANDINGHAM et al. v. FLORIDA POWER & LIGHT CO.

Florida Supreme Court

June 23, 1944

Rehearing Denied July 25, 1944.

Appeal from Circuit Court, Palm Beach County; Jos. S. White judge.

O. S Miller, of West Palm Beach, for appellants.

Earnest Lewis & Smith, of West Palm Beach, for appellee.

ADAMS, Justice.

This appeal brings for review a final judgment entered for defendant after sustaining a demurrer to plaintiff's declaration.

From the verbose declaration we gather these ultimate facts. Plaintiff's intestate, Vanlandingham, a young man about 25 years of age, was engaged as an electric lineman in the employ of R. H. Bouligny Inc., a corporation; that Bouligny Inc. was engaged under contract with Florida Power &amp Light Company, the defendant, to make certain repairs on their electric lines and pursuant to the fulfillment of such contract it became Vanlandingham's duty to climb the poles sustaining the electric wires and in so doing came in contact with an uninsulated ground wire and was killed. The gist of neglect charged to defendant is the exposed and uninsulated ground wire while it was charged with electric current. There were also charges of neglect to properly supervise, failure to furnish suitable tools and allowing deceased to overtax his physical capacity.

The challenge of defendant to the right of action is primarily that the Workmen's Compensation Act, Sec. 440.11, F.S. 1941, F.S.A., defines and circumscribes the right of recovery and that such right is exclusive.

We must reject appellee's claim of the exclusiveness of the right of action under Sec. 440.11 because that section has reference to the extent of liability of the employer.

It is further urged that the action will not lie under Sec. 440.39, F.S. 1941, F.S.A., against defendant as a third party because the deceased left no dependents, hence there was no person entitled to such compensation who might sue.

It is claimed that by implication this section repeals our wrongful death statute. With this we do not agree. Where there is no relationship of employer and employee the Workmen's Compensation Act does not come into play. Our wrongful death statute has been on the statute books many years and is as firmly established as if it were a part of our common law. While the legislature had the authority to repeal it we cannot say that any such intention was shown. Great stress is laid on the claim that since deceased left no dependents there could be no 'person entitled to compensation' (Sec. 440.39, supra), hence there was no person authorized to sue. This section does not limit the right of action or otherwise affect the amount of recovery in so far as the third party is concerned. See State ex rel. v Lewis et al., 125 Fla. 816, 170 So. 306; Hartquist v. Tamiami Trail Tours, Inc., 139 Fla. 328, 190 So. 533. Where the relationship of employer and employee exists under our Workmen's Compensation Act it is a form of voluntary contract sanctioned by this law. This is so inasmuch as either may elect not to come under the act, Sec. 440.05, F.S. 1941, F.S.A. It would be unreasonable to say that an employee had jeopardized a cause of action which he might have against a third party who was not a party to the contract...