Opinion
January 7, 1944 Rehearing Denied January 26, 1944
An appeal from the Circuit Court for Dade County, Ross Williams, Judge.
Hoffman Robinson and Ragland, Kurz Layton, for appellant.
Mitchell D. Price, Zaring Florence and Hendricks Hendricks, for appellee.
Appellant appeals from a $12,500.00 judgment by appellee for the loss of the thumb and three fingers on his right hand while employed by appellant to operate a paper cutting machine. The gist of negligence charged was failure to maintain the machine in a reasonably safe condition. Pleas of not guilty and contributory negligence were interposed. The latter went out on demurrer and the case was tried in keeping with such ruling.
It is claimed that the plea was good as a predicate to prove mitigation of damages. The plea was not so framed. It was filed as a plea in bar. Nevertheless it was not available in any regard inasmuch as appellant had rejected the provisions of the Workmen's Compensation Act and by so doing it was precluded from pleading contributory negligence. Sec. 440.06, Fla. Stat. 1941. Appellant relies on our opinion in Tampa Electric Company v. Hardy, 139 Fla. 142, 190 So. 478, however there the hazardous occupation statute (Sec. 769.01, Fla. Stat. 1941) applied whereas here it does not.
We have given careful consideration to the other questions and find them without merit and an opinion thereon would serve no useful purpose.
The judgment is affirmed.
BUFORD, C. J., TERRELL and CHAPMAN, JJ., concur.