Bucki v. Cone , 25 Fla. 1 ( 1889 )

Maxwell, J.:

This action was brought in Madison* county, and in the original and amended declarations is>styled an action on the case. It was against Louis Bucki and Charles Bucki, partners, doing business under the name, firm and style of L. Bucki & Son, and the declaration ran against them accordingly. The amended declaration avers that “on the 80th day of June, 1884, the-plaintiff (Cone) was lawfully enfranchised and the legal owner of a certain toll bridge spanning the Suwanneeriver at the White Sulphur Springs, Florida, the northern' abutments of said bridge resting upon the bank of said river, m Hamilton county, * and the southern abutments resting upon the southern bank, * in Columbia (county), *' which said bridge on the aforesaid day was in the possession and occupation of O. K. Paxton as tenant thereof to the said plaintiff the reversion thereof then and still belonging to the plaintiff; and that the defendants are-the owners of a certain boom north and above the said toll* bridge, * said boom made and constructed for the purpose of holding and detaining logs, timber &c. in said river;; that in said boom * defendant had collected and amassed a large lot or number of logs.; that upon a considerable swell or rise of the water in said river on or about the 26th day of June, 1884, the defendants by their agents, employees- or servants wrongfully, carelessly and negligently cut loose-said boom and turned out in mass said logs from said boom, and so improperly, carelessly and negligently drove- or managed said logs that by and through said wrongfully,, carelessly and negligently cutting said boom and turning said logs out of said boom in mass, and the improper,, careless and negligent driving and managing said logs by said agents, employees or servants * the said logs ran down* said river with such velocity and in such mass as to wrongfully and unlawfully on the said 80rh day of June,., 1884-, strike plaintiff’s -bridge and carry away and utterly •destroy the said * bridge * to the damage of plaintiff,” &c.

There had been a demurrer to the original declaration, .-and the amended one was also demurred to. The court overruled both. This action of the court is assigned forerror as to each, but we confine our attention to the latter, .as the former was practically out of the case when the latter was filed. It is said for demurrer in the first place, that while the “ declaration is. entitled an actiou on the ease, yet the injury complained of, if the allegations therein made constitute an injury, is a case of trespass vi et arms/’ If this be a good ground of demurrer in any trespass case, it is not in a case like this. The plaintiff sues as owner of the bridge, not being in possession thereof at the time of its destruction, but the possession being in the tenant to whom he had let it. That tenant would be the proper person"to sue for any injury to the possession, but for injury to the reversion an action on the case by the plaintiff is the proper remedy. This is'the rule as to both personal and real property. Chitty on Pl., (16 Am. Ed.) 71-2. And as to venue the question arising from the fact that the bridge stretches from one county to another, while the action was brought in a third, where defendants resided, we incline to the opinion that under our statute such an action. not involving the property itself, but only damages ibr injuries to it, may be brought either in “the county in -which the defendant resides, or (in which) the cause of action accrued.” McClellan’s Dig., 811,section 5. Eor construction-of the statute see Russ vs. Mitchell, 11 Fla., 80. But if there is doubt on this, the objection to the venue •should have been made by plea in abatement, which was oot done, and it was not available either on demurrer or .after trial on pleas to the merits.

The demurrer further holds the declaration faulty in averring that plaintiff is “ lawlully enfranchised and the legal owner ” of the bridge, without setting forth the facts on which the averment is based, and also in failing to set forth the source and extent of the right to keep or maintain the bridge, so as to enable the court to determine whether the franchise has been so guarded and restricted as to protect the right of navigation.

Ye think the.declaration sufficient in the averments made, not being mere conclusions of law, and that the facts mentioned as not being set forth are matters of evidence to be brought out on the trial. And the same is our view as to other facts not averred, which need not be recited here, and the absence of which constitute other grounds of demurrer. It is our opinion the demurrer was properly overruled.

During the pendency of the case there was a suggestion of the death of Louis Bucki and an order to amend so as to make the surviving partner, Charles L. Bucki, the defendant, and the judgment was agaiust the latter as surviving partner. This is assigned for error. The objection seems to us to be untenable. In sq far as it may rest upon an idea that a partnership cannot be sued for a tort, that is a mistake. The law is otherwise. 1 Bindley on Partnership. 283; Linton vs. Hurley, 14 Gray, (Mass.) 191. Then the action could be maintained against the partners as a firm, and it both had lived a judgment could have gone against the firm. When one of them died that did not abate the action, and it was altogether proper to carry it on under suitable order against the survivor. It is no answer to this to say that it was not a debt, and that to make it a debt by judgment would be in derogations of the rights of creditors of the firm. In the first place, even if ordinary creditors were allowed a preference, that is not. a reason why the judgment should not be given, for there might not be occasion for any question as to preference; and in the next place if there should be occasion it is not to be anticipated as a valid objection to a rightful judgment. It will be time enough to determine how the judg meut will aflect outside parties when they are in a position to inferiere. The surviving partner has only to defend against liability of the firm, and if unsuccessful in that the judgment should condemn him as such surviving partner to pay the damages found. We think that in this respect the judgment was correct.

The parties having waived a jury, the case was tried on the facts by the court. The findings of the court on “ all the issues of fact,” and the refusal of the court to grant the motion of defendants to set aside the findings and judgment thereon, are assigned for error. The grounds are that the findings are contrary to the evidence and the law, and that the judgment is not warranted by the pleadings. As to the last, we have already expressed our opinion in favor of the judgment. The others bring up the important and main questions we have to determine, namely, whether the Suwannee river at the point where it was spanned by the bridge was a navigable river, and if it was, what were the relative rights of those entitled to its use and the owner of the bridge ; and (if these questions should be so determined as to leave the enquiry necessary) whether appellant’s firm were guilty of negligence from which arose liability in damages ?

Where the tide ebbs and flows in a river the common law regarded it as a navigable stream, in which the public had a right of way, and in this, country all rivers, without regard to the ebb and flow of the tide, are generally regarded as navigable as far up as they may be conveniently used at all seasons of the year with vessels, boats, barges, or other water craft, for purposes of commerce ; and others are regarded as navigable when so declared by statute. Further than this, what constitutes a navigable river free to the public is a question of fact to be determined by the natural conditions in each case. A stream of sufficient capacity and volume of water to float to market the products of the country will answer the conditions of navigability, and is a public highway open to all persons for the business of floatage to which it is adapted, whatever the character of the product, or the kind of floatage suited to their conditions. Though it may not be adapted to the use of vessels, and only fit for floating logs or rafts, yet if required for such use, and there is sufficient business, present or prospective, to render the easement a matter of public concern, it will be regarded as a public stream for that purpose ; and it is not essential to the easement that the stream should be continuously, at all seasons of the year, in a state suited to such floatage. If of capaci ty a sufficient portion of the year to make it useful as a public highway, it would be subject to the easement. Authority for these views will be found in Cooley’s Con. Lim., 728; Browne vs. Chadbourne, 31 Maine 9; Morgan v. King, 35 N. Y., 454; Walker vs. Allen, 72 Ala. 456; Lewis vs. Coffee County, 77 Ala., 190.

We think the evidence in this case imparts the character of navigability to the Suwannee river in the sense of a public highway above and to the point at which the bridge of appellee was erected. The testimony is, that the stream had been used a long time for floating logs, that for eight or nine months of the year its ordinary stage of water admits of such floatage, and that it has been used for the purpose both in driving logs thrown in singly and for floating them in rafts. On the other hand, it has not been used to float any other products of the country, and there are shoals above and below the bridge that prevent any floatage of logs at low water; but the fact that logs can be floated, and the length of time the river is available for that, sufficiently overcome these objections to its character as a navigable stream. The abundant pine forests in the country it traverses, as appears in evidence, and the value of the logs they yield for milling purposes, present an important article of commerce, as much entitling the public to this natural highway for floating them as if various other products were being carried on it. And this fact of commercial importance to the public furnishes the ground upon which the private rights of owners of the bed of a river are made subject to the right of way in the public, where the river is not navigable technically or prima facie, that is, where the condition as to tide, or the continuous adaptability for general navigation, leaves no question on the subject. In all other cases the stream must be shown to be capable of' valuable floatage, and it should also appear that there are products or things of value along its course giving the public an interest in its facilities. Another mark of navigability which the evidence shows as existing in this case is, that in the United Stales survey of the adjacent lauds, instead of including its bed the river was meandered. Altogether we think appellant’s firm should be sustained in the claim of right to float logs down the river.

This brings us to the question of appellee’s rights in respect to the bridge. Did he have a right to build it at all, and if he did, what are the limitations on that right? The statute authorizes the County Commissioners of each county to grant licenses for keeping toll bridges, and where the waters divide two counties a license from either will suffice, but the rate of toll must be fixed by both. McClellan’s Dig., 536-7.

The bridge of appellee was authorized by double license, one from the county of Hamilton, and the other from the county of Columbia, and both counties fixed rates of toll. There is nothing in the statute to indicate the class of streams over which bridges may be kept, and it is to be presumed that it authorized them wherever public convenience and public travel and trade made a demand for their use, as well over navigable streams of the character of this one as over others. The bridge of appellee, therefore, had its existence from legal authority. But it is to be understood that this authority conferred no right to so construct it as to obstruct or materially interfere with the navigable uses of the river. Cooley’s Con., Lim., 231-2. There are two rights to be observed, that of the public in the highway, and that of the bridge owner to his structure across the highway ; and it is obvious that each must exercise the right possessed with due and reasonable regard to the right of the other. As expressed in Veajie vs. Dwinel, 50 Me., 479, the privileges of the bridge owner “ must be so exercised as not to interfere with the .substantial rights of the public in the stream as a highway for the purpose of transporting such property as, in its natural capacity, it is capable of floating. The use of both parties must be a reasonable use, and the rights of both must be exercised in a reasonable manner.” So the question comes: Is appellee’s bridge constructed in a way to give reasonable facility for floating logs between its piers or supports ? There must be a convenient and sufficient passage-way left for the purpose, having regard to the character of the floatage, and on the other hand a driving or rafting of logs in such numbers or quantity as will in floating or by proper management adapt themselves to the passage-way. Sufficient space and guide conveniences for a reasonable body of floatage, makes the rule that defines the rights of the parties. And these are matters of fact to be determined in each ease by the evidence. In this case it was intestimony that thecentre span of tbebridge was between fifty and fifty-five feet, that there were guide booms to direct the logs to this opening, and that it was as wide as customary ; that twenty-five logs floating abreast could pass through it, and that its capacity was sufficient for an ordinary raft of logs. On this evidence we cannot say against the finding of the court below, that the bridge fell short of the allowable requirements of navigation at that point, or, in other words, that it improperly impeded or obstructed that navigation.

The right of the bridge owner being sustained thus far, has he made a case against appellant’s firm for damages on account of the destruction of his bridge ? The evidence is that the firm had in a boom fifteen miles above the bridge between 8,500 and 4,000 logs, and that on a rise of the waters of the river an employee of the firm opened the boom and let loose the logs in a mass, and that they floated down the river to the bridge in a mass, and after pressing against it three or four days carried away all except the abutments. They struck and broke one of the guide logs, having come down the river jammed together as close as they could be, and pressing in mass till they got to the bridge. Several persons were engaged iu trying to relieve the bridge, but only a few logs were got through, and a witness familiar with the business says that in the condition of the logs they “ could not have been put through by any force.” This is the material portion of the evidence as to the manner in which the logs were floated, and it shows entire absence of reasonable care for the safety of the bridge and a total disregard of the obligation to respect the rights of its owner.

In Jack. St. Ry. Co. vs. Chappell, 21 Fla., 175, it is pronounced that “ negligence is the failure to observe for the protection of another’s interests such care, precaution and vigilance as the circumstances justly demand, and the want of which causes him injury.” The facts of this case fit this definition most pertinently. In Railroad Co. vs. Jones, 95 U. S., 439, negligence is defined to be “ the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in the omission or commission. The duty is dictated and measured by the exigencies of the occasion,” citing Wharton on Neg., sec. 1. Tested by this the essence of the fault in this ease was in the commission of an act, namely, opening the boom to let the logs out in mass, which put the bridge in jeopardy. A fuller definition of negligence, and one very suitable to this case, is this: “Negligence, constituting a cause of civil action, is such an omission by a responsible person, to use that degree of care, diligence and skill which it was his legal duty to use for the protection of another person from injury, as in a natural and continuous sequence causes unintended damage to the latter.” 1 Sher. & Redfield on Law of Neg., see. 3. Surely it can. not be said that to precipitate 3,500 or 4,000 logs down the rising river to run their course, as the evidence shows, without guidance or attempted control, was the use of that de. gree of care, diligence and skill which it was the legal duty to use under the circumstances, and it was as if done upon the assumption that whatever might be in the way had no right there. It was certainly not using the navigable wa~ ters with due precaution against periling property as much under protection of the law as was the right of floatage. We do not see how there can be any question as to whether it was negligence thus to expose the bridge to almost certain destruction, negligence in cutting the boom and setting afloat the large mass of logs without means to manage them, and negligence resulting in damage for which the owner of the bridge is entitled to full compensation.

But it is contended that this is not a case of negligence, but one of intentional wrong — that the employee of applicant’s firm cut the boom purposely, and that for a tort thus committed, the firm is not responsible. Without stopping to consider the doctrine on which this contention rests, it is in our opinion not applicable here. The business of the employee was to get logs down the river to the mill of the firm. That w7as his object in cutting the boom. There is not shown any intention to injure or destroy the bridge, but only a purpose to accomplish his work as speedily as the condition of the river permitted. He took the risk of injuring the bridge by doing an act, not against the bridge itself, but. in the course of his business, which in its natural sequence was calculated to result in the injury. That was not an intentional tort, but one which in its consequences became a tort, on the ground that under the cir cumstances the act was without due care and caution, and therein an act of negligence.

It is suggested that if there was negligence in the employee in letting the logs loose in mass, it does not follow that this caused the destruction of the bridge, since three or four days elapsed after the logs struck the bridge before it was carried away, and it “ only yielded at last to the constantly increasing pressure and velocity of the steadily swelling waters.” To our minds this but emphasizes the fact of negligence. The logs should not have been turned loose as they were, in such a condition of the river, and the breaking of the bridge was as much a natural sequence of the accumulating pressure during these days as if caused by the first direct impetus of the mass of logs. Besides, the resistance of the bridge for such a length of time removes auy idea that it was faultily constructed as regards its strength.

We see nothing in this to set aside the charge of negligence.

And the negligence was that of an employee or servant of the appellant’s firm, for which the firm was responsible. See 1 Sher. & Red. on Neg., sec. 141, where it is said that “ it is an old and thoroughly established doctrine that where the relation of master and servant exists, the master is responsible to third persons for the damage caused by the wrongful acts or omissions of his servants in the course of their employment as such.” It was in evidence that the servant was employed by another employee of the firm who had supervision of the logging business, but that makes no difference as to the liability of the firm. In the book quoted above, sec. 157, the law is thus stated : “ The master is, of course, liable, for the negligence of one whom his servant employs, by his authority, to aid such servant in the master’s business. Such authority need not be express, but may be implied from the nature of the business, or the course of trade. Thus such authority would almost necessarily be implied in favor of a servant entrusted * * * with any task which could not be performed within a reas- • onable time by one man and necessarily also in behalf of a servant employed in a busines requiring the assistance of others.

Other immaterial questions in the case cannot affect our conclusion that a new trial was properly denied, and that the judgment should be affirmed, which is done.