Watt & Sinclair of Florida, Inc. v. Hunter

• Decision Date: 05 January 1937
• Citation: 126 Fla. 750,171 So. 817
• Court: Florida Supreme Court
• Parties: WITT & SINCLAIR OF FLORIDA, Inc. v. HUNTER.

171 So. 817

126 Fla. 750

WITT & SINCLAIR OF FLORIDA, Inc. v. HUNTER.

Florida Supreme Court

January 5, 1937

Error to Circuit Court, Pinellas County; John I. Viney, Judge.

Action by E. J. Hunter against Watt & Sinclair of Florida, Inc. wherein defendant filed a demurrer. To review a judgment for plaintiff, defendant brings error.

Reversed.

BUFORD and DAVIS, JJ., dissenting.

COUNSEL Erle B. Askew and Osmond R. Bie, both of St Petersburg, for plaintiff in error.

Baskin Jordan & Richards, of Clearwater, for defendant in error.

OPINION

PER CURIAM.

Defendant in error, as plaintiff, brought a common-law action against the plaintiff in error, as defendant, to recover damages for personal injuries received while working as a painter on the post office building at Clearwater. The declaration was in three counts, the first count was predicated on the theory that the defendant was a general contractor and had a contract to erect the building indicated, that plaintiff was employed by the defendant as painter on said building, and that, by reason of such employment, defendant was bound to furnish him a safe place to work, that instead the scaffold on which he (plaintiff) was placed to work was so negligently constructed that it contained a defective board which broke under plaintiff's weight and caused him to fall twenty-two feet to a rough concrete floor from which he sustained severe injuries.

The second and third counts in substance restate the first count and, in addition, allege that defendant delegated the painting of said building to a subcontractor, G. A. Lord, who employed the plaintiff as a painter but that it was no less the duty of defendant to furnish Lord's servants safe places to work, that, notwithstanding Lord's contract as subcontractor, plaintiff constantly received instructions from the defendant's agent, who directed and controlled the work of the plaintiff done under Lord's contract.

A demurrer to the declaration was overruled, and the case was tried on the plea of not guilty, contributory negligence, that plaintiff assumed the risk incident to his employment, that plaintiff was the servant of Lord, an independent contractor, and that defendant owed him (plaintiff) no duty to furnish a safe place to work. There was a special plea to the second and third counts of the declaration to the effect that defendant's servant was without authority to give instructions to the plaintiff. The trial resulted in a verdict and judgment for the plaintiff, a new trial was denied, and final judgment was entered from which this writ of error was prosecuted.

The case was tried by plaintiff on the theory that the building in question was erected by the defendant, that, after it was completed, defendant placed scaffolds around the interior for the use of the painters and directed them in their work, and that, under such circumstances, it was the duty of defendant to provide a reasonably safe place for the painters to work.

If the evidence preponderated in support of this theory, plaintiff would be entitled to recover. The record shows that defendant secured a contract to construct the post office building at...