Younger v. Giller Contracting Co., Inc.

• Decision Date: 09 June 1940
• Citation: 196 So. 690,143 Fla. 335
• Parties: YOUNGER v. GILLER CONTRACTING CO., Inc.
• Court: Florida Supreme Court

196 So. 690

143 Fla. 335

YOUNGER v. GILLER CONTRACTING CO., Inc.

Florida Supreme Court

June 9, 1940

En Banc.

Error to Circuit Court, Dade County; Worth W. Trammell, Judge.

Action by Howard Younger against the Giller Contracting Company Inc., to recover damages for personal injuries sustained in the course of plaintiff's employment by a general building contractor as the result of negligence of defendant subcontractor's employee.Judgment for defendant, and plaintiff brings error.

Affirmed.

BROWN J., dissenting.

COUNSEL

McKay, Dixon & DeJarnette, of Miami, for plaintiff in error.

A Judson Hill, of Miami, for defendant in error.

OPINION

CHAPMAN Justice.

On February 23, 1939, plaintiff in error here, who was the plaintiff in the lower court, filed in the Circuit Court of Dade County, Florida, his declaration consisting of two counts, and the material portions of the two counts necessary to a decision of this case are, viz:

'Count One.On, to-wit, November 21st, 1938, the plaintiff was employed by Max H. Friedson and/or Friedson Construction Company as a carpenter, in connection with the erection of a certain store building designated as 612-5th Street, City of Miami Beach, Dade County, Florida; that the defendant was engaged in performing the masonry and/or concrete work in and about the aforesaid store building; that the said defendant through its employees, agents and/or servants, had caused concrete blocks to be piled up on a 2×4 piece of lumber placed over the entrance to the rear of the aforesaid building; that the said plaintiff in the course of his employment was required to walk through the aforesaid rear entrance; that when the said plaintiff was about to walk through the aforesaid rear entrance of the aforesaid building an employee, agent and/or servant of the defendant, while in the course of his employment, knocked one of the concrete blocks off the top of the pile and caused the said concrete block to fall on the head of the plaintiff; * * *'

'Count Two.On, to-wit, November 21st, 1938, the plaintiff was employed by Max H. Friedson and/or, Friedson Construction Company as a carpenter, in connection with the erection of a certain store building designated as 612-5th Street, City of Miami Beach, Dade County, Florida; that the defendant was engaged in performing the masonry and/or concrete work in and about the aforesaid store building; that the said defendant, through its employees, agents and/or servants, had caused concrete blocks to be piled up on a 2×4 piece of lumber placed over the entrance to the rear of the aforesaid building; that the plaintiff in the course of his employment was required to walk through the aforesaid rear entrance; that when the said plaintiff was about to walk through, the aforesaid rear entrance of the aforesaid building, an employee, agent and/or servant of the defendant, while in the course of his employment, negligently caused the aforesaid concrete blocks to be piled too high and as a result of the said negligent act, a concrete block fell off the pile and dropped on the plaintiff's head; * * *'.

The defendant filed a demurrer to the declaration, and the following grounds of the demurrer were directed to each Count:

'I.Plaintiff's declaration wholly fails to state a cause of action against this defendant.

'II.Plaintiff's declaration is duplicitous.

'III.Plaintiff's declaration fails to allege any duty or fact out of which the Court can determine, as a matter of law, that there existed any duty on the part of this defendant toward the plaintiff at the time of the alleged accident.

'IV.There is no negligence of the defendant, or of the defendant's agents, servants or employees, alleged which caused the accident complained of.

'V.There is no allegation sufficient to enable the Court to determine, as a matter of law, whether the plaintiff has a cause of action at common law against this defendant.

'VI.It clearly appears from the plaintiff's declaration, and each count thereof, that the accident, out of which arose the injuries complained, of, was one sustained in industrial pursuits by an employee as a result of the alleged negligence of another employee, wherefore plaintiff is attempting to pursue this suit in this Court.

'VII.It clearly appears from the plaintiff's declaration that the plaintiff's only legal right in proceeding is for compensation under the Florida Workmen's Compensation Act.'

The lower court entered an order sustaining the demurrer, and the recitals in the order material to a disposition of this case are, viz:

'* * * It appears to the court that Section 10-A of the Florida Workmen's Compensation Act, being Chapter 17481, Acts of 1935, as amended by Chapter 18413, Acts of 1937, indicates that the Legislature intended that all employees of contractors and subcontractors if injured during the process of the performance of the common work, should be deemed statutory employees under the general contractor, as otherwise the words 'shall be deemed to be employed in one and the same business or establishment' are meaningless.If the general contractor by reason of this statute is the employer of the workmen of the subcontractor this relationship must exist for all purposes, and therefore, the subcontractor could not be considered a 'third person' within the meaning of Section 39-A, because the latter mentioned section provides that if it is determined that some persons 'other than the employer' is liable for the damages sustained by an employee, the damages may be recovered against such 'third person'.

'It is the further opinion of the Court that it was the Legislative intention, as to the court clearly disclosed by the amendment heretofore referred to, to sweep within its provisions all claims for compensation flowing from personal injuries arising out of and in the course of employment by...