Weis-patterson Lumber Co. v. King

• Decision Date: 27 November 1937
• Citation: 131 Fla. 342,177 So. 313
• Parties: WEIS-PATTERSON LUMBER CO. v. KING. [*]
• Court: Florida Supreme Court

177 So. 313

131 Fla. 342

WEIS-PATTERSON LUMBER CO. v. KING. ^[*]

Florida Supreme Court, Division A.

November 27, 1937

Error to Circuit Court, Escambia County; L. L. Fabinsinski, Judge.

Action by John King, an insane person, a person adjudicated insane by his guardian, Addie Wilson King, against the Weis-Patterson Lumber Company. To review a judgment for plaintiff, defendant brings error.

Reversed and remanded.

COUNSEL Watson & Pasco & Brown, of Pensacola, for plaintiff in error.

Caro &amp Caro, of Pensacola, for defendant in error.

OPINION

BUFORD Justice.

This is the second appearance of this case here. See King v Weis-Patterson Lumber Co., 124 Fla. 272, 168 So. 858.

The writ of error now brings for review a judgment in favor of the defendant in error based upon verdict rendered on the fourth count of the declaration.

The declaration was in six counts. Count 1 was in the following language:

'1. That John King has been duly adjudicated to be insane by the County Judge's Court of Escambia County, Florida, and is still insane; that Addie Wilson King has been duly appointed by the County Judge's Court as guardian of the estate and property of the said John King, an insane person, and is now the duly appointed, acting and qualified guardian of the estate and property of the said John King.

'That on October 9, 1933, plaintiff owned and possessed real property in Escambia County, Florida, which is particularly described in Exhibit 'A' attached to this declaration, and hereby expressly incorporated in and made a part of this count; that on said real estate plaintiff owned and possessed a certain frame dwelling house, a filling station constructed of wood, which was attached to said dwelling, and a garage building constructed of sheet metal and wood, said property being used as a filling station, garage and dwelling; that on said premises were fences, tanks and other improvements; that on said real estate and in said building plaintiff owned and possessed certain property, towit: automotive equipment and supplies, household and kitchen furniture, fixtures, clothing, jewelry, personal effects and money.

'That at said time the defendant owned and operated in said county a large lumber yard and lumber mill, and thereon defendant owned and maintained a saw mill, planing mill, dry kiln, a number of lumber sheds constructed of wood, and particularly a large wooden frame shed known as shed number one, with lumber therein, gasoline storage tanks, and in said sheds and about said yard large quantities of dry lumber was stored, and about said premises from said mill, to said lumber sheds, and about the lumber yard the defendant maintained tramways constructed of wood, and a tramway extended through shed number one; and defendant operated about said premises and over said tramways near said lumber and in said lumber sheds, tractors powered by internal combustion gasoline motors; and on said premises, operated said mill by steam, generated by fire, and on said premises were boilers, smoke stacks, furnaces and mill machinery, used and to be used in connection with the operation of said mill.

'That plaintiff's property, as described aforesaid, in Exhibit 'A' was in close proximity to the said mill and yard of the defendant, and it was defendant's duty to the plaintiff to use reasonable care in the maintenance and operation of said mill and yard to prevent fire on or from defendant's premises, injuring plaintiff's property.

'That notwithstanding its duty to the plaintiff, defendant, its agents and servants, did carelessly and negligently permit to accumulate on said yard, near said lumber, and in said sheds, and under and near said tramway, and in the said shed number one, a large quantity of inflammable trash, consisting of small particles of wood, wood dust, saw dust, oil drippings, paper and dry grass, and as a proximate result of defendant's said negligence, fire originated on defendant's said premises, in and about shed number one, and in and near said tramway, and as a proximate result thereof, said fire spread over the defendant's yard and to the plaintiff's property, thereby damaging and destroying the following property of the plaintiff, towit: plaintiff's frame dwelling house, filling station and garage were completely destroyed; plaintiff's automobile, supplies and equipment, kitchen and household furniture and furnishings, jewelry, clothing, personal effects, glassware, crockery, money, stock of groceries and merchandise, in said building were all destroyed as a result of said fire, and plaintiff as a result of said fire, lost a large quantity of gasoline, greases and oils, and all of said property and damage was of the value of $2999.00.'

Count 2 was in the same language, except that it closed with the following allegations:

'That notwithstanding its duty to the plaintiff, the defendant did carelessly and negligently operate over said wooden tramways and into and through said shed number one, certain tractors powered by gasoline internal combustion engines, which were not equipped with muffler or any device to prevent fire, red hot metal, hot carbon, and ignited gases passing from the exhaust thereof from coming in contact with said tramway, lumber and sheds and as a proximate result thereof, said tramway and shed was set on fire and said fire spread over defendant's yard, and to plaintiff's property, thereby damaging and destroying the following property of the plaintiff, to-wit: plaintiff's frame dwelling house, filling station and garage, were completely destroyed; plaintiff's automobile, supplies and equipment, kitchen and household furniture and furnishings, jewelry, clothing, personal effects, glassware, crockery, money, stock of groceries and merchandise, in said building, were all destroyed as a result of said fire, and plaintiff as a result of said fire, lost a large quantity of gasoline, greases and oils, and all of said property and damage was of the value of $2999.00.'

Count 3 was in like language, except that it closed with the following allegation:

'That notwithstanding its duty to the plaintiff, defendant was guilty of the following negligence, to-wit:

'Defendant permitted inflammable trash consisting of saw dust, wood dust and splinters to accumulate in and under said tramway, in and about shed number one, and under said tramway in shed number one, and operated through shed number one, over said tramway a tractor powered by a gasoline internal combustion engine, which was not equipped with muffler or any device to prevent fire, red hot metal, hot carbon, and ignited gas passing from the exhaust of said tractor, from coming in contact with said tram, the trash thereunder and lumber in said shed; and as a proximate result of said negligence, said trash, tramway, lumber and shed number one was fired, and said fire spread over and about defendant's yard and to the plaintiff's property thereby damaging and destroying the following property of the plaintiff, towit: plaintiff's frame dwelling house, filling station and garage were completely destroyed; plaintiff's automobile, supplies and equipment, kitchen and household furniture and furnishings, jewelry, clothing, personal effects, glassware, crockery, money, stock of groceries and merchandise in said building were all destroyed as a result of said fire, and plaintiff as a result of said fire, lost a large quantity of gasoline, greases and oils, and all of said property and damage was of the value of $2999.00.'

Count 4 was in like language, except that it closed with the following allegation:

'That plaintiff's property, as described aforesaid, in Exhibit 'A,' was in close proximity to the said mill and yard of the defendant, and it was the defendant's duty to use reasonable care to prevent fire and the spread of fire on defendant's premises by diligently and promptly searching for and preventing, extinguishing, suppressing and controlling the same, in order that plaintiff's property be not injured thereby; that notwithstanding its duty, on October 9th, 1933, fire occurred on defendant's premises in and near shed number one and defendant did carelessly and negligently fail to prevent fire and the spread of fire on defendant's said premises, in this, towit: defendant, its agents and servants, did carelessly and negligently fail to make diligent and prompt search for said fire and did carelessly and negligently fail to make reasonable effort to prevent, extinguish, suppress and control said fire, and as a proximate result of defendant's negligence, fire spread over defendant's premises, and to the plaintiff's property, thereby burning and destroying the following property of the plaintiff, to-wit: plaintiff's frame dwelling house, filling station and garage were completely destroyed; plaintiff's automobile supplies and equipment, kitchen and household furniture and furnishings, jewelry, clothing, personal effects, glassware, crockery, money, stock of groceries and merchandise, in said building, were all destroyed as a result of said fire, and plaintiff as a result of said fire, lost a large quantity of gasoline, greases and oils, and all of said property and damage was of the value of $2999.00.'

Count 5 was in like language, except that it closed with the following allegation:

'That plaintiff's property, as described aforesaid, in Exhibit 'A,' was in close proximity to the said mill and yard of the defendant, and it was the duty of the defendant to use reasonable care to provide its mill and lumber yard with reasonably proper and necessary fire fighting equipment and appliances, and to keep the same in reasonably proper operating condition, so that fire should not be communicated from defendant's said mill and lumber yard to...