Vaughn v. Smith

• Decision Date: 10 April 1957
• Citation: 96 So.2d 143
• Parties: Jerry VAUGHN, Appellant, v. Thomas M. SMITH, and B. A. Barth and R. A. Barth, d/b/a Barth Construction Company, Appellees.
• Court: Florida Supreme Court

Page 143

96 So.2d 143

Jerry VAUGHN, Appellant, v. Thomas M. SMITH, and B. A. Barth and R. A. Barth, d/b/a Barth Construction Company, Appellees.

Supreme Court of Florida, Special Division A.

April 10, 1957.

Rehearing Denied July 17, 1957.

Robbins, Cannova & Franza, Hollywood, for appellant.

Blackwell, Walker & Gray, Miami, for appellees.

PER CURIAM.

Appellant filed his amended complaint against Nathan R. Cannon, Thomas M. Smith and B. A. Barth and R. A. Barth, d/b/a Barth Construction Company, to recover damages for personal injuries resulting from his being run over by a truck driven by Cannon in the course of construction work being performed for the Gulfstream Park Race Course, appellant's employer. There is no dispute that Barth Construction Company was the general contractor. The amended complaint alleged that Cannon was an employee of both Thomas M. Smith and Barth.

The trial judge entered a final summary judgment for defendant Thomas M. Smith on October 5, 1955. An appeal from that judgment was subsequently dismissed by this court on June 19, 1956, because of failure to file notice of appeal within 60 days as required by Rule 12, 31 F.S.A.

On January 6, 1956, following a pre-trial conference, the trial judge entered an order in the cause reading in part as follows:

'Nathan R. Cannon was an independent trucker hauling rock for the use of Barth Construction Company in the construction of said paving. The court has determined in this cause that Nathan R. Cannon was an independent contractor and that Barth Construction Company is only liable for its own negligence or breach of duty to the plaintiff and is not liable for the negligence, if any, of Nathan R. Cannon. The court will so instruct the jury upon request at the time of trial.'

The case then proceeded to jury trial on two issues as pronounced by the pre-trial order. First, whether the negligence of Nathan R. Cannon, an independent contractor, was the proximate cause of appellant's injury. Second, whether Barth Construction Company assumed such control over Cannon, an independent contractor, when delivering rock to the job site so as to make it [Barth Construction] liable for its own negligence to Cannon.

The trial judge, in keeping with his order at pre-trial conference, instructed the jury that Cannon was an independent contractor, that Barth Construction Company was liable only for the negligence of Cannon while operating the truck under the direction and control of Barth Construction Company or its employee, and that both Cannon and Barth Construction Company would be jointly liable if the injury resulted from both the negligence of Barth Construction Company in directing the truck, and from the negligent operation by Cannon while under such direction.

The jury returned a verdict in favor of appellee Barth Construction Company and against Nathan R. Cannon in the sum of $45,000. Appellant's motion for a new trial as to appellee Barth Construction Company was denied. Final judgments for appellee Barth and against Cannon were duly entered. Cannon did not appeal. Vaughn appealed from the judgment for Barth Construction Company entered February 11, 1956, and from the final summary judgment for Smith entered October 5, 1955, the latter appeal being dismissed as heretofore stated.

The first point for consideration is whether or not appellant preserved his right to attack the ruling of the trial judge that Nathan R. Cannon was an independent contractor as a matter of law. Appellee contends that appellant not only acquiesced in such ruling but made no...