Opinion
No. 60-267.
March 2, 1961.
Appeal from the Circuit Court, Dade County, Marshall C. Wiseheart, J.
Sam H. Nedelman, Dan G. Wheeler, Jr., Miami, for appellant.
Welsh, Cornell, Pyszka Carlton, Miami, for appellees.
James R. Floyd sued Flash Welding Company and Lester Hassell for damages for personal injuries. The facts alleged which are material here were that Floyd was employed as a porter at a convalescent home onto which his employer undertook to build an addition; that the defendant Flash Welding Company was engaged to do certain welding thereon; that the defendant Hassell was the employee of Flash Welding Company; that while the plaintiff, at the direction of his employer, was assisting Hassell in such work, he was injured as a proximate result of the negligence of Hassell. On the defendants' motions to dismiss, the court denied Hassell's motion (see Frantz v. McBee Co., Fla. 1955, 77 So.2d 796), but dismissed Flash Welding Company, and the plaintiff appealed.
We hold, on authority of the case of Cromer v. Thomas, Fla.App. 1960, 124 So.2d 36, decided by this court on November 7, 1960, that it was error to hold that the complaint did not state a cause of action against the defendant Flash Welding Company. In fairness to the learned trial judge, it should be noted that his order was made before the decision in the Cromer case in which we held that when work is undertaken without a general contractor an employee of the owner who is injured in the course of such work by the negligence of an independent contractor or his employee, may bring suit against the independent contractor and is not restricted to workmen's compensation. In the argument before this court counsel for the parties recognized the Cromer decision as controlling in this instance. See also, Jones v. Florida Power Corp., Fla. 1954, 72 So.2d 285. Accordingly, the order dismissing the complaint as to the defendant Flash Welding Company is reversed.
Reversed.
PEARSON, Acting C.J., and SAULS, RICHARD M., Associate Judge, concur.