Woodcock v. Wilcox

• Citation: 122 So. 789,98 Fla. 14
• Parties: WOODCOCK v. WILCOX.
• Decision Date: 13 June 1929
• Court: United States State Supreme Court of Florida

122 So. 789

98 Fla. 14

WOODCOCK v. WILCOX.

Florida Supreme Court, Division A.

June 13, 1929

Error to Circuit Court, Duval County; De Witt T. Gray, Judge.

Action by John Wilcox against O. P. Woodcock. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

Syllabus by the Court

SYLLABUS

Declaration should state succinctly and with certainty every ultimate fact essential to cause of action. Plaintiff's declaration should state succinctly and with certainty every fact prima facie essential to cause of action, and, while not required to anticipate possible defenses or to allege evidentiary matter, should at least set out briefly ultimate facts forming basis of right of action.

Pleading is construed most strongly against pleader, and no essential allegation imported into declaration by inference. Pleading generally will be construed most strongly against pleader and no essential allegation imported into declaration by inference or intendment.

Averment that particular act or omission causing injury was negligently done or omitted is sufficient allegation of negligence. Allegation of particular act or omission causing injury, coupled with averment that it was negligently done or omitted, is sufficient allegation of negligence.

Declaration must aver ultimate facts showing relation imposing duty to avoid negligence. Declaration for damages based on negligence should set forth ultimate facts showing relation of parties out of which duty to avoid negligence arose.

Declaration for injury to employee of contractor by negligence of another contractor held insufficient on demurrer for failure to allege facts showing duty of defendant towards plaintiff. Declaration of contractor's employee for damages by injury caused by negligence of another contractor, which did not allege that employee was working pursuant to his employment or in course of his duties, or that his work was necessary to employer's work, and contained no other allegations showing prima facie that he was rightfully in place where injured, held insufficient on demurrer, as not alleging facts from which defendant's duty to him appeared.

Instruction that contractor must use due care to protect others held too broad, as omitting consideration of defendant's right to exclude persons by appropriate warnings from part of building in which working. In action by employee of one contractor for injury through negligence of another contractor's employees, instruction that defendant was bound to use due care to protect those who by their callings were bound to be within building under construction was erroneous, as too broad, and as omitting consideration of defendant's right to exclude others by appropriate warnings from portion of building in which his work was being carried on.

Contractor's employee needlessly subjecting himself to danger by working in place from which he had been warned is contributorily negligent. Employee of one contractor who ignores warnings and intrudes on part of building where defendant's work is going forward, thereby needlessly subjecting himself to obvious danger, cannot recover for injury so suffered by reason of contributory negligence.

Whether defendant contractor warned employees of other contractors not to work in place of injury and whether danger was obvious held jury questions. In action by contractor's employee for injuries by negligence of another contractor, whether plaintiff was warned not to work in place of injury and whether danger was obvious held questions for jury.

Allegation that plaintiff's employer had contracted independently to install certain fixtures held not demurrable for not specifically alleging that such employer was not subcontractor under defendant. Allegation of declaration in personal injury action that defendant was engaged in construction of certain building and that G., plaintiff's employer, had contracted independently to install certain fixtures held not demurrable, as not showing with whom plaintiff's employer had contracted, whether with owner or defendant; such allegation being reasonably susceptible of construction that such employer was not subcontractor to defendant.

Where declaration omitting essential allegations is demurred to appellate court cannot import such allegations into pleading by intendment to sustain judgment. The rule that after judgment all reasonable intendments will be indulged to support pleading and judgment thereon does not authorize appellate court by conjectural implication to import into declaration allegations of essential elements of cause of action omitted therefrom, where declaration was demurred to on that ground in trial court.

COUNSEL

Giles J. Patterson, of Jacksonville, for plaintiff in error.

Ralph K. Roberts and George C. Bedell, both of Jacksonville, for defendant in error.

OPINION

BROWN J.

The declaration in this case, or so much of it as is necessary for consideration here, reads as follows:

'Plaintiff, John Wilcox, sues O. P. Woodcock for that heretofore, on to wit: the 17th day of February, 1924 defendant O. P. Woodcock was engaged in the erection and construction of a certain building in the City of Jacksonville, County of Duval, and State of Florida, known as the Duval County Tubercular Hospital, alias Duval County Tuberculosis Hospital, and the plaintiff was in the employ of the Gilmore-Empie Company, a corporation who had contracted independently to install the plumbing and heating apparatus in said building, and while engaged in drilling a hole in the floor of said building the plaintiff was struck on the head, with great force and violence, by a timber which the defendant's agent and servant had carelessly and negligently loosened from the ceiling, by reason whereof plaintiff was then and there wounded,' etc.

The defendant, Woodcock, demurred to the declaration upon the following grounds:

(1) The declaration is vague, indefinite, and uncertain in its allegations.

(2) It does not appear that defendant owed plaintiff any duty, except to refrain from willfully and intentionally injuring him.

(3) It does not appear that plaintiff had any legal right to be upon said premises.

(4) It does not appear that defendant violated any legal duty he owed to the plaintiff.

(5) No sufficient facts are alleged to show any liability on the part of the defendant for the alleged injury to the plaintiff.

The demurrer was overruled. Defendant filed pleas of the general issue and of contributory negligence. There was verdict and judgment for plaintiff, and defendant took writ of error.

It will be observed that it appears from the declaration that plaintiff was in the employ of the company who had contracted independently to install the plumbing and heating apparatus in the building which the defendant was constructing, and that at the time he was injured the plaintiff was engaged in drilling a hole in the floor of said building, but there is no allegation that he was doing this in pursuance of his employment, or in the course of his duty under such employment, or that it was necessary to drill such hole in order to attain the objects or do the work which he had thus been employed to do, or any other allegation which would show, prima facie at least, that the plaintiff was rightfully in the place where he was when struck by the timber alleged to have been negligently loosened by the servant of the defendant. It is obvious that such an allegation has a vital bearing upon the question of whether the defendant's servant owed the plaintiff any duty to refrain from negligence in his work of loosening the timber, which, so far as the declaration shows, was a legitimate and proper part of the work going on in the construction of the building.

The general rule is well settled that in his declaration the plaintiff should state succinctly and with certainty every fact which is prima facie essential to his cause of action. He is not required to anticipate possible defenses, or to allege evidentiary matter, but he should at least set out briefly the ultimate facts which form the basis of his right of action. No absolutely essential allegation of this nature can as a general rule be imported into the declaration by mere inference or intendment; the rule being that a pleading will generally be construed most strongly against the pleader. Shipman's Common Law Pleading, 203; Andrews' Stephens' Pleading, 107, 108; Chitty on Pleading (16th Ed.) 236, 303-307; cases cited on page 771, 2 Fla. Digest, including Kirton v. Atlantic Coast Line R. Co., 57 Fla. 79, 49 So. 1024.

As to the particular acts or omissions, constituting a violation of the duty raised by law under the facts and circumstances set forth in the declaration, the very liberal rule long since adopted by this court in personal injury cases is that it will be deemed sufficient to merely allege the particular act or...