Opinion
July 28, 1950.
Appeal from the Circuit Court, Duval County, Claude Ogilvie, J.
Will O. Murrell, Jacksonville, for appellant.
Harry H. Martin, Jacksonville, for appellee.
Involved on this appeal is the question of whether or not plaintiff-appellant's fourth amended declaration states a cause of action. The court below held that it did not and accordingly entered a judgment on demurrer for the defendant below and the plaintiff appealed. Pertinent allegations of the fourth amended declaration are as follows:
"That at all times hereinafter mentioned the defendant was the owner of a certain building located on Stockton Street, in the City of Jacksonville, Duval County, Florida, to which said building the defendant had and maintained and attached thereto a metal pipe or pole extending above the roof top of said building a distance of approximately twenty feet, protruding along and on the side of said building to a point approximately two or three feet above the ground, which said pipe or pole so situated was used to support electrical wires transmitting high voltage of electric current into said building for the purpose of operating the machines of the defendant and which pipe or pole was a conductor of electricity and which, if exposed to electrical current and impulses, would conduct and carry the same down along and upon said pipe and building; that the defendant knew or in the exercise of reasonable care and caution could and should have known, as a reasonable inspection would have disclosed the same, that the said pipe so protruding above and along the side of said building was dangerous if exposed to or charged with electrical current as aforesaid; that it was then and there the duty of the defendant to protect said premises against the same by providing a guard from said pole or pipe to prevent the danger of said pole or pipe carrying or conducting electricity down along and upon said pipe or pole and into said building.
"That on or about the 12th of August, 1947, the plaintiff was an employee of the defendant operating a planing machine within said building directly adjacent to said metal pipe or pole, and notwithstanding the defendant's duty as aforesaid, the defendant carelessly and negligently failed and neglected to protect said premises by providing a guard or ground from said pole or pipe and carelessly and negligently suffered, allowed and permitted the same to remain wholly unguarded and ungrounded whereby and by reason whereof the said pipe or pole did suddenly and violently become charged with electricity and electrical impulses and by reason of the negligence and carelessness aforesaid did jump over, across, into and upon the plaintiff as aforesaid, and that thereby the plaintiff was painfully, seriously and permanently injured * * *."
The amended declaration alleged the relation of employer and employee. In the case of German-American Lbr. Co. v. Brock, 55 Fla. 577, 46 So. 740, 743, we in part said: "It is the duty of the master to exercise such ordinary and reasonable care as prudence and the exigencies of the situation require, in providing the servant with safe machinery and suitable instrumentalities for his work, and in notifying the servant of any defects or risks which the servant does not know. If this duty is not performed the master is liable for injuries resulting proximately from such failure of duty. If the servant contributes proximately to the injury it is a matter of defense. Green v. Sansom, 41 Fla. 94, text 103, 25 So. 332; Camp v. Hall, 39 Fla. 535, 22 So. 792; South Florida R. Co. v. Weese, 32 Fla. 212, 13 So. 436." We have reaffirmed on many occasions the above enunciated principle of law.
The master is by law required to furnish his employee reasonably safe machinery, appliances and instrumentalities with which to work. Holstun Son v. Embry, 124 Fla. 554, 169 So. 400. The master is required to inspect, repair and keep in safe condition tools furnished a servant with which to work unless the tool is so simple as to make the servant chargeable with knowledge of its defects, if any, equally with the master. Hamblen, Inc., v. Owens, 127 Fla. 91, 172 So. 694. The master must see that the tools furnished are in proper condition. Tampa Shipbuilding Engineering Co. v. Thomas, 131 Fla. 650, 179 So. 705.
In the case of Jacksonville Electric Co. v. Sloan, 52 Fla. 257, 42 So. 516, 517, this Court sustained three counts of a declaration and affirmed a judgment for the plaintiff below. One of the counts sustained alleged that the defendant failed to provide the deceased a reasonable place in which to work and pertinent allegations thereof are viz.: "* * * and whereas, on the 11th day of August, 1903, the said Henry J. Sloan, being then and there employed by the defendant, the Jacksonville Electric Company, to do certain work on certain pipes on the premises of said defendant, in the said city of Jacksonville, proceeded there to do and perform said work, and it was the duty of the defendant to provide for the said Henry J. Sloan a reasonably safe place in which to work. And the plaintiff further says that the said Henry J. Sloan, being then and there in and at the place where he was required to work, the defendant, failing and neglecting to keep said place of work in a reasonably safe condition, negligently and carelessly caused the electric power in said premises and which was under the control and operation of the defendant, to be suddenly turned on, whereby and by reason of the sudden turning on of said electric power the deceased received an electric shock, from the effects of which electric shock the said Henry J. Sloan died. * * *"
This Court sustained the legal sufficiency of a declaration in the case of Florida Power Light Co. v. Hargrove, 160 Fla. 405, 35 So.2d 1, and pertinent allegations of the declaration are viz.:
"(c) On or about October 27th, 1945, at approximately Two P.M. o'clock, the plaintiff was engaged in repairing a power line suspended on a power pole which said pole and power line were then and there owned, controlled, maintained and operated by the defendant, the said pole and power line being then and there located in Dade County, Florida, near the City of Homestead, a more accurate description of the location of said pole and power line not being known by the plaintiff. In his efforts to effect said repairs the plaintiff had mounted said pole and was engaged in work near and about the power line thereby suspended. At said time and place the said pole and power line attached thereto and suspended thereby were carelessly and negligently constructed and maintained by the defendant.
"(d) As a direct and proximate result of the defendant's said carelessness and negligence in constructing and maintaining said pole and power line, the plaintiff was severely burned and shocked by electricity which was then and there being conveyed by means of said power line suspended by said pole."
The case of Gunn v. City of Jacksonville, 67 Fla. 40, 64 So. 435, 436, was a suit by Gunn against the City of Jacksonville in which it was alleged that Gunn was employed by the city to work in and about its electric light plant; that while Gunn was performing his duties in the electric light plant at night the defendant city carelessly and negligently left the ends of its wires without insulation, and the wires being charged with electricity, the plaintiff Gunn was injured. The trial court directed the jury to render a verdict for the defendant city and on appeal here the judgment was reversed and in so doing this Court, in part, said: "Electricity is an invisible force, highly dangerous in its use, and those who employ others to work where electricity or other dangerous agencies are used, should exercise such care for the safety of the employes as is commensurate with the dangers involved and the competency of the employes. See Jacksonville Electric Co. v. Sloan, 52 Fla. 257, 42 So. 516; Goulding Fertilizer Co. v. Watts, 63 Fla. 155, 58 So. 362; Flowers v. Louisville N.R. Co., 55 Fla. 603, 46 So. 718; Escambia County Electric Light Power Co. v. Sutherland, 61 Fla. 167, 55 So. 83." The rule, supra, was reaffirmed by this Court in City of Jacksonville v. Glover, 69 Fla. 701, 69 So. 20.
Our holdings supra on the point in issue are in line with the current weight of authority. 56 C.J.S., Master and Servant, § 223, page 944, states the rule thusly: Where a master employs electricity in his business, he must exercise every reasonable precaution known to those possessed of the knowledge required for the safe treatment of electricity to protect his servants from injury, and must see to it that his poles and other places for work are in reasonably safe condition. See authorities cited in headnote 20. See also Labatt's Master Servant, Vol. 3, 2d Ed., par. 977, note (n).
The fourth amended declaration in substance alleged that the defendant-appellee was the owner of a certain building and maintained and attached thereto was a metal pipe or pole extending twenty feet above the top of the roof, which pipe or pole was used to support electrical wires transmitting a high voltage of electricity into said building for the purpose of operating therein the defendant's machinery. The metal pipe or pole was a conductor of electricity, and if exposed to electrical current would conduct the same down along and upon the metal pipe or pole and building. It was the legal duty of the defendant to protect the building therefrom by providing a guard or ground from the pole and a reasonable inspection of the building would have disclosed the danger. The defendant carelessly and negligently failed and neglected to protect said premises by the guard or ground and the plaintiff was thereby injured.
In the case of Kasanof v. Embry-Riddle Co., 157 Fla. 677, 26 So.2d 889, 891, the legal sufficiency of a declaration was before the Court and in sustaining the declaration the following language was used: "It is established law that a declaration need not set out specific facts constituting negligence but allegations of sufficient acts or omission causing injury, coupled with averments that they were negligently done or omitted, will be sufficient. See American Dist. Electric Protective Co. v. Seaboard Air Line R. Co., 129 Fla. 518, 177 So. 294. A declaration based on a charge of simple negligence is sufficient if it alleges that such act or omission was negligently done or omitted to be done. Jackson v. Edwards, 144 Fla. 187, 197 So. 833; Dunn Bus Service, Inc., v. Wise, 140 Fla. 341, 191 So. 509; Potts v. Mulligan, 141 Fla. 685, 193 So. 767."
It is our view and conclusion that the fourth amended declaration states a cause of action and accordingly the judgment entered below is reversed with directions to enter an order fixing the time for the defendant-appellee to plead or answer the same.
ADAMS, C.J., and TERRELL, J., concur.
ROBERTS, J., concurs specially.
THOMAS, SEBRING and HOBSON, JJ., dissent.
The declaration under attack here is vague, indefinite, and uncertain, but not to the point of fatality. The allegations are, however, sufficient to admit and support proof of a breach of duty, if such can be established. I therefore concur in the judgment of reversal.