Judges： Whitfield
Filed Date： 1/15/1908
Status： Precedential
Modified Date： 10/19/2024
(after stating the facts).—It is suggested that the first ground of the demurrer, that neither the declaration nor a count thereof states a cause of action, is in effect but a mere repetition of the statutoy form of a demurrer and is insufficient.
The general statutes contain the following provisions as to demurrers in pleadings at law: Section 1430 (originally part of section 15 of chapter 1096) : “No pleading shall be deemed insufficient for any defect which could heretofore only be objected by special demurrer.” Section 1441 (originally section 14 of chapter 1096) : “Either party may object by demurrer to the pleading of the opposite party, on the ground that such pleading does not set forth sufficient ground of action, defense or reply.” Section 1444 (originally section 36 of chapter 1096) : “The form of a demurrer shall be as follows, or to the like effect: ‘The defendant (or plaintiff) says that the declaration (or plea) is bad in substance.’ And the substantial matters of law intended to be argued shall be stated; and if any demurrer shall be delivered 'without such statement or with a frivolous statement, it may be set aside by the court.” Under this last section the demurrer to a pleading is the averment that it “is bad in substance.” The statute originally required some •substantial matter of law intended to be argued to be stated in the margin of the demurrer. The present statute does not specify how the substantial matters of law intended to be argued shall be stated, but it is usual to state them as grounds of the demurrer as in this case. A.ny such grounds or specifications of matters of law
Before the enactment of the statute first above quoted, the defects in a pleading that could be objected to by special demurrer were those relating to the form or manner of stating the matters contained in the pleadings and not to the sufficiency in substance of the matters alleged as a ground of action, defense or reply. The effect therefore of section 1430 is to dispense with the use of demurrers, except to test the sufficiency of the matters of substance pleaded, without reference to the form or manner of statement. Sections 1441 and 1444 above quoted refer to demurrers to test the sufficiency of' the matters of substance stated as the ground of action, defense or reply, without reference to the form or manner of statement.
Rule 30 of circuit court common law rules provides that “Upon demurrer to any declaration or other pleading, the party plaintiff or defendant may admit the cause of demurrer by filing an amended declaration or pleading, which shall do away with the cause of demurrer.”
A purpose of the above statutory provisions and rule is to require that a demurrer presented to test the sufficiency of the substance of a pleading shall contain a statement of the substantial matters of law intended to be argued, so that the opposite party may be advised by the pleading itself of the particulars wherein the pleading is said to be insufficient, to the end that the party whose pleading is demurred to may amend or be prepared to sustain his pleading by argument on the demurrer. This course facilitates the hearing and aids the court in the disposition of causes in the interest of justice. Sledge v. Swift, 53 Ala. no, text 114; Moore v.
Defects of mere form and irrelevant or improper matters in a pleading in an action at law- that prejudice or embarrass or delay the fair trial of the action may be reached by proper motion under section 1433 of the general statutes. Florida Cent. & P. R. Co. v. Ashmore, 43 Fla. 272, 32 South. Rep. 832; State ex rel. Attorney General v. Atlantic Coast Line R. Co., 53 Fla. 711, 44 South. Rep. 230.
A demurrer or a ground thereof that in.effect merely states that a declaration or a count therein is bad in substance, or fails to state a cause or right of action, does not comply with the statute requiring the substantial matters of law intended to be argued to be stated, and will not avail as a demurrer, unless it plainly appears from a reading of the declaration or count that it does not contain by its direct statements or by fair inference from its direct statements all of the essentials of a cause of action, or unless it plainly appears from the direct statements of the declaration or count or by fair inference therefrom, that the plaintiff has no cause or right of action, or has lost it, if it ever existed. In short, a demurrer or a ground thereof that in effect merely states that a declaration or a count therein does not allege a 'cause of action, or is bad in substance will not be sustained, unless upon a bare inspection of the declaration or count it is clear that it fails to state the essentials of a cause of action or shows that the plaintiff has no cause of action: e g. if 'damages are claimed for negligence and no negligence or no damage .is alleged by direct statements or by fair inference from the allegations, or if all the essentials of a cause or right of action are alleged and it appears from the declaration or count that the action is barred or destroyed by the act or default of the plaintiff, or otherwise. See State ex rel. Kittel
If it clearly appears that no cause or right of action is stated, the court may and should dismiss the action of its own motion. But if it does not clearly appear that no cause or right of action is alleged, the court is not called upon to sustain a demurrer that in effect merely states that no cause of action is alleged, or that the declaration or count is bad in substance, without stating the substantial matters of law intended to be argued as required by the statute. The defendant’s right to have the sufficiency in law of the pleading passed upon by the court depends upon the proper presentation of the matter to the court. The court may not act of its own motion or upon insufficient application, except in plain cases that require little more than a bare inspection of the pleadings to determine.
Grounds of demurrer to a pleading that are in effect mere repetitions of the statutory form of a demurrer, i. e. that the pleading “is bad in substance,” will not be- considered unless upon an inspection it is clear that the pleading is fatally defective in substance. It does not appear from an inspection of the declaration in this case that it is fatally defective in substance, therefore the first ground of the demurrer, that neither the declaration nor any count thereof states a cause of action, is of no avail.
The main questions presented are whether the negligent burning of a canvas cover used to protect growing pineapple plants and fruit from injury by cold and frost is a proximate cause of injury by cold and frost to the
The defendant railroad company had a right to run its engine and train over its tracks, but. such, right is coupled with the duty to so operate the engine as not to negligently injure the property of others near the track. The duty arises by implication of law out of the relation of the jaarties tó each other and 'the circumstances of the case.
To entitle a party to recoyer damages for his property injured or destroyed through .or by. the negligent act or omission of another, the negligence complained of must be shown to have been a proximate cause of the injury. Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land, Transp. & Manuf’g Co., 27 Fla. 1, 9 South. Rep. 661.
Negligence is a'proximate cause.of an injury when in ordinary natural sequence it causes or contributes to causing the injury without an intervening independent cause.
The negligent act or omission for which a party is liable in damages is one that proximately, i. e. in ordinary natural' sequence, causes or contributes to causing an injury to another, where no independent efficient cause of the injury intervenes, and the injured party is not at fault.
A negligent act or omission may be the proximate cause of injury whether'such injury necessarily or immediately follows the negligence or not, if the negligence
Liability for negligence extends to all its natural, probable and ordinary results. Any injury that under the circumstances is the natural, probable and ordinary result of a negligent act or omission, is in law held to have been contemplated by the negligent party as a probable and proximate result of the negligence, when he is informed, or by ordinary observation would have been informed of the facts and circumstances attending the negligence.
Results that follow in ordinary natural continuous sequence from a negligent act or omission, and are not produced by an- independent efficient cause, are proximate results of the negligence; and for such results the negligent party is liable in damages, even though the particular results that did follow were not foreseen.
Where the injury is caused by the intervention of an independent efficient cause to-which the defendant did not contribute and he is not responsible, or is caused by the act or omission of the plaintiff, the negligence of the defendant is not the proximate cause of the injury. If the plaintiff contributes proximately to causing the injury, he cannot recover, - unless otherwise provided by statute.
The ordinary conditions or forces of nature such as ordinary wind, cold, heat, and the like, that are usual at the time and place and under the circumstances, and that reasonably should have been expected or foreseen as probably to occur, are not, in general, independent, efficient causes, when they affect or operate upon a negligent act or omission in causing a result. Those who are negligent are held in law to know the usual effect of ordinary natural conditions and forces upon a negligent act or omission, and to have contemplated the ap
■ If the natural condition or force that affects the negligent act or omission is unusual or extraordinary, the negligent party will not, in general, be held to have known of or contemplated it, unless the circumstances of the particular negligent act or omission are such that the negligent party should have known of or contemplated the probable appearance and effect of such unusual or extraordinary natural condition or force. If the injury was caused by some extraordinary or unusual natural force or condition that could not have been foreseen or that would have caused the injury if there had been no negligence, the negligence is not the proximate cause of the injury.
■ Where the injury complained of is the result of the negligence of the defendant and of of some other contributing cause not an independent efficient cause, and the result could not have been produced in the absence of either contributing cause, the defendant’s negligence is a proximate cause of the injury, if under thé circumstances attending the defendant’s negligence, the injury was a probable, natural and usual result of the two contributing causes, that the defendant is held to have contemplated, and the plaintiff or those for whom he is responsible did not contribute proximately to the injury. Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land, Transp. & Manuf’g Co., 27 Fla. 1, 9 South. Rep. 661; Moore v. Lanier, 52 Fla. 353, 42 South. Rep. 462.
' ¡Where a negligent act or omission is a proximate cause of an injury, the negligent, party is liable in damages for the usual and natural consequences of the injury
If by a wind that is ordinarily likely to occur, a fire, started by the negligence of a railroad company, is comímincated to and destroys property of another, the company is liable, in damages for the property so destroyed, since it is held to have contemplated all the natural and ordinary consequences of the negligence. Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land, Transp. & Manufg Co., 27 Fla. 1, 9 South. Rep. 661, 17 L. R. A. 33; Florida East Coast Ry. Co. v. Welch, 53 Fla. 145, 44 South. Rep. 250.
Where a railroad company allows water from its tank to run upon the premises of another in the winter season, and the water subsequently freezes and injures property on such premises, the company is liable in damages for the injury, since the negligent escape of the water from the’ tank in ordinary natural sequence caused a result that under the circumstances should have been expected. The negligence of the company in permitting the water to run on the premises was the proximate cause of the injury to the property from the freezing of the water. The Chicago and Northwestern Ry. Co. v. Hoag, 90 Ill. 339.
Where a means such as a fence or a cover or the like has been provided by the owner of property to protect it from an injury that will probably occur, and such mjeans are, without fault of the owner, injured or destroyed-by the negligent act or omission of another, who under the circumstances of the case knew or should have
The declaration alleges that the defendant so carelessly and negligently managed and operated one of its locomotives that fire escaped therefrom and set fife to and burned the canvas or cloth covering to a pinery of growing plants- “situated near to the track of the defendant.”
Owners of property have a right to use it in any manner desired that is not inconsistent with the rights of others. This includes the right of those having land near a railroad track to place a canvas cover over plants growing on the land; and the mere fact that the cover is within the reach of sparks of fire emitted frorh á. locomotive engine passing on the.track near by, does not rer lieve the railroad company from liability for its negligence in permitting the sparks to escape and burn the cover. While those' having property are charged with the duty of caring for it, there is no obligation to constantly guard and protect it from injury by the negligence of others. See Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land, Transp. & Manuf'g Co., 27 Fla. 1, 9 South. Rep. 661.
It is alleged that the canvas cover placed over growing pineapple plants and fruit to protect them from injury by cold and frost was destroyed by the negligence of the defendant, who should have known the use of the cover and the protection it afforded, and that because of the destruction of the cover, a cold and frost that.
/If the negligent burning of the canvas cover to the growing pineapple plants and fruit defeated the sole object for which the cover was used, and such negligent burning of the cover in ordinary natural sequence caused the injury to the growing plants and fruit by cold and frost that under the circumstances should have been expected as likely to occur and injure the plants at the time and place of the negligent burning of the cover, such negligent burning was the proximate cause of the injury to the growing plants and fruit from cold and frost. '
Injury to growing pineapple plants and fruit by ordinary cold and frost that should have been expected as likely to occur, is not such an act of God as will relieve from liability for such injury a railroad company that negligently burned' the cover over the plants and fruit, which cover was used solely to protect the plants and fruit and would have prevented the injury. See Norris v. Savannah, F. & W. Ry. Co., 23 Fla. 182, 1 South. Rep. 475; Texas & P. Ry. v. Coggin & Dunaway, (Tex. Cix. App.), 99 S W. Rep. 1052.
If the injury would not have resulted from the cold and frost, but for the negligent burning of the cover, the defendant is liable, as such negligence made effective and injurious an ordinary natural condition that should have been contemplated and that would otherwise have been harmless.
Under the allegations of the declaration, the negligent burning of the cover was a primary and efficient act that in ordinary natural sequence caused the injury to the growing plants and fruit by cold and frost, such injury not being the result of an intervening independent efficient cause, or an extraordinary or unusual frost and cold that could not have been foreseen, or that would have injured the plants if the cover had not beén burned
The count of the original declaration upon which recovery was held to be “fatally defective in not alleging negligence, either of commission or omission, on the part of the defendant in communicating the fire” to- the canvas cover, and also in not alleging facts “sufficient to bring home to the defendant that the burning might reasonably have been expected to result directly and naturally in damage to the plants and fruit by cold and frost.” Atlantic Coast Line Ry. Co. v. Benedict Pineapple Co., 52 Fla. 165, 42 South. Rep. 529.
Where negligence is the basis of recovery, the declaration should contain allegations of the negligent act or omission of the defendant, and also allegations of facts to show injury to the plaintiff, and that such injury was a proximate result of the negligence alleged.
The declaration now in the first count alleges that the defendant’ “so carelessly and negligently managed and operated one of its locomotives while drawing a train of cars * * * that fire escaped from said locomotive and set fire to the canvas or cloth with which the pinery belonging to the plaintiff and situated near to the track of the defendant * * * was covered, and burned a large part, to-wit: about one acre of the said cover. This is a sufficient allegation of a negligent act of the defendant in communicating fire to the canvas cover, and of injury resulting proximately therefrom to the plaintiff when taken with the claim for damages, to authorize a recovery of general damages or such as naturally arid necessarily result from the burning of the canvas cover to the extent of its value.
As special damages resulting from the negligent act alleged the first count further states “that in the said pinery, a large number of pineapple plants and fruit were growing and were likely to be damaged by frost
As the defendant is liable for such injurious results as were likely to and did naturally and proximately follow its negligence, it was not necessary to allege as contended “that at the time of tire occurrence of the fire the weather was such that cold or frost could be anticipated by the defendant” or “that in the month of January cold or frost of such character as to damage pine
' If the defendant was negligent in burning the cover, it cannot be relieved from liability for the proximate results of such negligence on the ground that an ordinary natural condition, i. e. frost and cold intervened, when such ordinary cold and frost should have been expected as probably to occur at the time and place of the negligence. The declaration in effect alleges that the cold which injured the plants should under the circumstances have been contemplated by the defendant as likely to occur, that the injury was the natural result of the cold, and that such injury would not have resulted but for the negligence of the defendant that caused the fire to -destroy the covering to the plants. The demurrer admits, this. It is in effect alleged that by ordinary natural sequence the negligence of the defendant in starting the fire burned the covering thereby exposing the growing plants and fruit to an injurious cold and frost that under the circumstances stated should have been expected as likely to occur, and the plants and fruit were injured by such cold and frost without the fault of the plaintiff
The cold that injured the plants was. not an independent efficient cause occurring between the negligence of the defendant and the injury by cold and frost, as such injury was the .natural and ordinary result of cold and frost that it is alleged should have been.expected as likely to occur as an ordinary or usual natural condition that would not have been harmful to the plants if the covering had not been destroyed by the fire negligently started by the defendant.
The allegation that the damage to the plants from frost and cold occurred after and as a result of the negligent burning of the cover sufficiently connects by ordinary natural sequence the negligence of the defendant afid the injury by cold to the plants and fruit. If the plaintiff was negligent in not using reasonable diligence to protect the plants after the fire occurred and before •the frost or cold caused the damage, such negligence of the plaintiff is a matter of defense in mitigation of damages under the statute. Negligence or fault of the plaintiff does not appear from the declaration, ■ but on the ■ contrary, it is alleged and admitted by the demurrer that the damage occurred “before the plaintiff by the exercise of any reasonable diligence by it could replace the part of the cover which had been destroyed through the negligence of the defendant.”
In view of the peculiar risks and duties of a railroad company in the use of the dangerous machinery running rapidly and carrying fire along the lines of its road, the statutes of this state provide that “a railroad company shall be liable for any damage done to persons, stock or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damage done by ally person in the employ and service of
The demurrer admits all the allegations of the declaration that are well pleaded. The negligence of the defendant in' causing the burning of the canvas cover and the injury to' the growing plants and fruit by cold as a natural, probable and proximate result of the burning of the cover that should under the circumstances have been known to and contemplated by the defendant, may have been stated in more positive and affirmative terms, but the allegations are sufficiently direct and certain to state a cause of action requiring a response from the defendant.
The second count of the declaration is subject to the above conclusions.
The judgment is reversed and the cause is remanded.
Shackleford, C. J., and Cockrell, J., concur;
Taylor, Hocker, and Parkhill, JJ., concur in the opinion.