error or omission in not, in fact, executing it in the presence of subscribing witnesses, if such witnesses were absolutely necessary to its binding efficacy upon him, when the instrument, upon its face, purported, at its delivery, to have been duly witnessed and acknowledged for record, in the absence of proof showing knowledge to the contrary by the bank, would be to allow him to perpetrate a fraud upon the bank, which has acted upon the representation involved in the delivery by him of an instrument executed by him, having all the appearance of a formally witnessed and acknowledged document. 4 Jac. Fish. Dig. tit. "Equitable Estoppel," 4744; Herm. Estop. c. 12, p. 334; 2 Pom. Eq. Jur. § 804, note 1.

It becomes unnecessary to pass directly upon the rulings of the court below upon the pleadings in the cause.

The decree of the court dismissing the complainants' bill is reversed, with directions to enter a decree in favor of the complainants, as prayed for in their bill, for the sum of $5,000, with interest thereon at the rate of 8 per cent. per annum from the 4th day of March, A. D. 1884, and the costs of the proceeding, but without any allowance for attorney's fees for the foreclosure of the mortgage.

ST. JOHNS & H. R. CO. v. SHALLEY. (Supreme Court of Florida. Feb. 13, 1894.) RAILROAD COMPANIES-FIRES-PLEADINGS-INDEPENDENT CONTRACTOR-REFERENCE-PRACTICE.

1. Where a plea of the general issue is interposed, requiring nothing more than a joinder of issue or similiter to make the issue complete, and a full and final trial is had upon the merits of the controversy embraced in the declaration and plea, without any notice being taken of the absence of such similiter, and without any protest or objection to the trial because of its absence, then its absence is not ground for arrest of judgment or for reversal.

2. Where an independent contractor is employed to accomplish a certain work, and, through his or his servants' negligent performance of it, damage results to a third person, such contractor, and not his employer, is responsible to the injured party, provided such contractor, in the performance of the work, or in the mode and manner of doing it, is not subject to the direction or control of the employer; but where the employer has the right to direct or control the performance of the work, or the mode and manner of its accomplishment, then he is liable. Whether this general rule is applicable or not to the operations attendant upon the construction of railroads under legislative grants not decided.

3. Where common laborers are employed and paid directly by a railroad company for the work of grading its roadbed, such work being taken in sections and paid for by the cubic yard, and such laborers are subject to the direction of the company's chief engineer or of its foreman in the mode and manner of doing the work, their pay depending upon the work being done according to directions, and they being subject to discharge when the work is delayed or imperfectly done, held, that such laborers are not independent contractors, but are the servants of the railroad company em

ploying them, and that such company is liable for the damage resulting to the property of a third person from fire negligently started by such laborers in the performance of the company's work.

4. The object of the statute (section 4, p. 858, McClell. Dig.) in requiring a referee, before whom a cause is tried, to give notice to the respective parties of the filing of his findings and judgment in the clerk's office, was to afford the parties an opportunity, within the 10 days limited for that purpose, of making motions for arrest of judgment or for new trial. Where the record on appeal shows that a motion for new trial was in fact made before a referee within the time limited for such motions, held, that the presentation of such motion is, of itself, evidence that the party making it did have notice of the filing by the referee of his findings and judgment, and that the absence from the record of any written paper evidencing such notice was thereby supplied.

(Syllabus by the Court.)

Appeal from circuit court, Putnam county; J. J. Finley, Judge.

Action by Andrew Shalley against the St. Johns & Halifax Railroad Company to recover damages resulting from fires alleged to have been set by defendant. Plaintiff had judgment, and defendant appeals. Affirmed.

Calhoun, Gillis & De Witt, for appellant. King & King, for appellee.

TAYLOR, J. Andrew Shalley, the appellee, sued the appellant railroad company for the recovery of damages for the destruction of his houses, fences, orange trees, and other property by fire carelessly allowed to escape upon his premises by laborers engaged in the construction of the defendant's railroad. The cause was referred for trial to a referee, who rendered judgment in favor of the plaintiff for the sum of $1,805, besides the costs, taxed at $81.94. From this judgment the appeal is taken.

The errors assigned are as follows: (1) The referee erred in proceeding with the trial of said cause when the same was not at issue, no replication to the defendant's plea having been filed by the plaintiff. (2) That the referee erred in refusing to admit evidence on behalf of the defendant, and in admitting evidence on the part of plaintiff that was inadmissible, and objected to by defendant. (3) The referee erred in refusing the defendant's motion for new trial upon the grounds-First, that the judgment was excessive; second, that the judgment was contrary to the law and the evidence, and was not supported thereby. (4) That the referee erred in failing to file in the record in the clerk's office of Putnam county any paper showing notice to the defendant of the filing of his findings and judgment in said cause.

As to the first of these assignments, we find that the only plea filed by the defendant was that of the general issue, or "Not guilty;" and no notice appears from the record to have been taken by either of the parties at the trial of the absence of a similiter, but the defendant seems to have voluntarily

gone into the trial without it, and without protest or objection because of its absence. Under these circumstances, the mere absence of a similiter to a plea of the general issue is not ground for arrest of judgment, or for reversal, after a final trial, and judgment upon the merits of the matter embraced in the declaration and plea. Huling v. Bank, 19 Fla. 695; Livingston v. Anderson, 30 Fla. 117, 11 South. 270.

The second error assigned above is entirely too general and indefinite to be considered, as it does not point out or specify what evidence, if any, was offered for the defendant and rejected by the referee, nor any that was admitted for the plaintiff over the defendant's objection. Neither does the appellant, in its brief, point out or specify the errors contended for in this respect. Because of the latter fact, we treat the second assignment as having been abandoned.

The third assignment of error presents the real point in controversy between the parties. Do the facts in proof, under the law applicable thereto, sustain the judgment rendered? The plaintiff's declaration alleges that the defendant railroad company, a corporation organized and existing under the laws of Florida, by its agents and servants acting under the orders, direction, and control of the defendant, on the 30th day of January, 1888, broke and entered the close of the plaintiff situated in Putnam county, and then and there, by the carelessness and negligence of its said agents and servants, trampled upon and set fire to the grass and other combustible matter on and in said close, and burned and destroyed 60 orange trees growing therein, of the value of $900; a dwelling house, of the value of $300; a kitchen, of the value of $150; a stable, of the value of $150; 3 tons of hay, of the value of $60; 1 ton of fertilizer, of the value of $40; 1 stove, of the value of $20; 1 bedstead, of the value of $10; 3 pairs of blankets, of the value of $15; lot of pillows and sheets, 20 in number, of the value of $10; 2 trunks, of the value of $15; lot of clothing, of the value of $40; 1 harrow, of the value of $10; 2 plows, of the value of $15; 600 feet of fencing, of the value of $20,-of the property of plaintiff, situated and being in and upon said close. There is some slight conflict in the evidence as to whether the fire was started by the defendant's laborers engaged in cleaning up its right of way, or by those engaged for the defendant in the work of grading its roadbed; but we are satisfied that the preponderance of the evidence establishes the fact that the origin of the fire was from three stumps in the defendant's right of way adjacent to the premises of the plaintiff, that were set on fire, for the purpose of getting rid of them, by the laborers employed in the work of grading. The proof is that it was a very dry season; that the stumps so set on fire stood very near to, or within 20 feet of, the gate and fence in

closing plaintiff's premises, in and along which there was standing a large quantity of dry and inflammable sedge grass and weeds that extended through and among a grove of bearing orange trees up to the houses; that the wind was quite high at the time; and that after the ignition of the grass and weeds therein, outside of and along the plaintiff's inclosure, from the fire in the stumps, it soon spread to and destroyed the buildings and other property as charged. The defendant railroad company endeavors to shift the responsibility for this careless handling of fire about the plaintiff's premises, by which his property was destroyed, upon the laborers engaged in grading its road, who started the fire, upon the ground that they did not at the time occupy the relation towards defendant of either serv ants or agents, but that they were independent contractors engaged in carrying out a contract by which they undertook to do the grading of certain parts or sections of such road, entirely 'independent of any supervi sion or control in its performance on the part of defendant; and that the relationship between said laborers and the defendant was that of contractor and contractee; and that, therefore, the defendant is not liable for the injury done by such contractors through their careless performance of their contract.

The law seems to be well settled, not only by our own court, but generally by the American courts, that where a contractor is employed to accomplish a certain work, and, through his or his servants' negligent or careless performance of it, damage results to a third person, such contractor, and not his employer, is responsible to the injured party, provided such contractor, in the performance of the work, or in the mode and manner of doing it, is not subject to the direction or control of the employer. Where the employer has the right to direct or control the performance of the work, or the mode and manner of its accomplishment, then, in such case, he is liable. Mumby v. Bowden, 25 Fla. 454, 6 South. 453; Wood, Mast. & Serv. §§ 314, 315, and citations. Whether this general rule is applicable to the operations attendant upon the construction of railways under legislative grants or not we do not now decide; but we do not think, however, that the proofs in this case sustain the contention of the appellant that the laborers whose carelessness produced the injury here were independent contractors, and not subject to its direction or control in the performance of its work. The proof shows that these graders were employed directly by the railroad company, and were paid by the company at the rate of so much per cubic yard of earth removed, and an agreed price for all stumps removed. The graders were common laborers, and the defendant company seems to have been carrying on the general work of constructing its

road within itself, and not, as is often customary, through the instrumentality of an independent contractor for the various branches of its work. Its witness C. R. Knight, who was its engineer, as he says, "in charge" of the extension of the road to Palatka, undertakes in his evidence to represent these graders as being independent contractors; but he testified that their work was staked out for them by the engineer in sections, and the "yardage" computed, and that then a "foreman" let out the sections to those who applied for the grading of them; and that the next duty of the foreman was to accept or reject the work upon its completion, and, in case of doubt as to whether the work was well done, he called on the engineer for the levels necessary to determine the doubt as to whether the grader has "properly and faithfully, and in accordance with his contract, done his work." He testified, further, that the foreman had the right to take the work away from them when, for any cause, they neglected to perform it within a reasonable time, and to relet any uncompleted portion, paying pro rata for the part performed; and that, whenever the foreman's attention was called to any specific violation of the "contract," he had the right to annul the contract, or to compel the grader to do the work as he had contracted to do it; and that the foreman pointed out to the grader the "amount and nature" of the work, directing him as to the width and height of the embankment, and where the earth was to be taken from, etc. In other words, what this witness termed the "stipulations of the contract" with the graders were evidently nothing more than directions from the foreman and engineer to the graders as to the mode and manner of doing their work; and, if it was not done in accordance with those directions, the grader was forced to comply with them, or else be dismissed without pay for the uncom pleted or imperfect work. Under these circumstances, we think that these graders, instead of being independent contractors in the sense that would relieve the employer company from responsibility for their negligence, are sunk to the level of ordinary laboring servants to the company who was their master, and that the company was properly held to be liable for the damage resulting from their negligence in the performance of the work they were put by the company to perform for its use and benefit.

There is no merit in the contention of the appellant that the amount of the referee's finding was excessive. The proof as to the value of the property destroyed not only sustains the amount of the damage found against the appellant, but was sufficient to have prevented a reversal at our hands upon the ground of excessiveness had the finding been even greater than it is.

The fourth assignment of error, to the effect that no paper was filed by the referee

in the clerk's office showing that notice was given to the defendant of the filing of his findings in the cause, cannot avail the appellant under the facts presented by the record. Section 4, p. 858, McClel. Dig., in force at the time of the filing of the judgment herein by the referee, provided that the referee should give notice to the respective parties, their agents or attorneys, of the filing of his findings and judgment in the clerk's of fice, and that unless a motion in arrest, or for new trial, or for reformation or alteration of the judgment, was made in writing within 10 days after the giving of such notice, such judgment stood confirmed as the judgment of the circuit court. The purpose of the statute in requiring the referee to give this notice was to afford the parties an on| portunity, within the 10 days limited for that purpose, to make the motions for arrest of judgment, for a new trial, or for reformation, modification, etc. The complaint of the appellant is not that it did not have this notice, but that there is no proper written evidence that it had it. The fact, as disclosed by the record, that its attorneys, within the time allowed therefor by the statute, did make a motion before the referee to set aside the judgment rendered and filed by him, and for a new trial, shows as conclusively that they did have notice of the filing of such judgment as though the evidence of such notice, and of its service upon them, were before us in the shape of a formal writing to that effect. It will be well to observe that by paragraph 7 of section 1231 of the Revised Statutes the referee is now required, as soon as he arrives at a judgment, to give notice thereof in writing to both parties.

Finding no error in the record, the judgment appealed from is affirmed.

ST. JOHNS & H. R. CO. v. RANSOM. (Supreme Court of Florida. March 1, 1894.) RAILROAD COMPANIES-FIRES-NEGLIGENCE-COMBUSTIBLE MATTER ON RIGHT OF WAY-PLEADINGS-PRACTICE.

1. Where a defendant interposes the plea of the general issue, that requires nothing more than a joinder of issue thereon or the general similiter to make the issue complete, and goes into and through a full and final trial of the merits of the controversy embraced in the declaration and plea, without noticing the absence of such similiter, and without protest or objec tion to the trial because of its absence, he cannot afterwards avail himself of the absence of such similiter as ground either for arrest of judgment or for reversal upon appeal.

2. While it is not negligence per se in a railroad company to allow combustible matter to accumulate or remain upon its roadbed and right of way, yet it may become negligence when taken in connection with other cireumstances that render its presence there a cause of damage to others. Where it is apparent that damage would result to the adjacent property of others in the event of a fire started anywhere

along a railway company's abutting roadbed, then it becomes such company's duty to render the chance escape there of fire from its engines less hazardous by keeping its roadbed and right of way clear of fire-feeding debris. The principle of the rule that "the degree of care required to be used in any given case to avoid the imputation of negligence must be according to the circumstances, or in proportion to the danger, such care as is ordinarily sufficient, under similar circumstances, to avoid danger and to secure safety,"-held to be applicable to the duty of a railroad company in keeping its right of way free of combustible matter.

3. Where the accumulation of combustible matter permitted by a railroad company to remain upon its roadbed and right of way is of such character as to render the small sparks that inevitably escape from its locomotives, despite the most careful use of the best-known and most approved appliances in common use for the arrest of sparks, themselves a source of danger and a constant menace to the adjacent property of others, then it is such company's duty to remove such matter, and keep its roadbed and right of way free thereof, and it is liable for its neglect of such duty when it re sults in damage to others.

4. Where a party against whom a referee has rendered judgment makes a motion to set aside the judgment found, and for a new trial, within the 10 days limited by law for making such motions, the fact that there is no written notice to the parties on file from the referee of his findings and judgment in the clerk's office will not avail such moving party as a ground for reversal upon appeal; the fact that he made the motion for new trial within the limited time being of itself evidence that he had notice of the filing of such judgment, and that the purpose of the statute to afford him an opportunity for making such motion has been accomplished. (Syllabus by the Court.)

Appeal from circuit court, Putnam county; J. J. Finley, Judge.

Action by Frances Ransom against the St. Johns & Halifax Railroad Company to recover damages resulting from fires set by defendant. Plaintiff had judgment, and defendant appeals. Affirmed.

Calhoun, Gillis & De Witt, for appellant. King & King, for appellee.

TAYLOR, J. The appellee (plaintiff be low) sued the appellant in case for damages for the destruction of her property, consisting of fencing, a barn, orange trees, and standing timber, etc., by fire set out by one of appellant's locomotives on its right of way adjacent to plaintiff's premises. The cause was referred to, and tried before, a referee, and resulted in a judgment in favor of the plaintiu for the sum of $2,000, besides the costs, amounting to $233.08, and from this judgment the defendant below appeals. The errors assigned are as follows: (1) Proceeding with the trial of the cause when it was not at issue, no similiter to the defendant's plea of the general issue having been filed. (2) Refusing to admit evidence on behalf of the defendant that was admissible, and in admitting evidence for the plaintiff that was inadmissible, and objected to by defendant. (3) The refusal to set aside the findings and judgment, and to grant the defendant's motion for a new trial applied for

upon the grounds (a) that the judgment was excessive; (b) that it was contrary to law, and contrary to the evidence, and was not supported thereby. (4) In the referee's failing to file, in the record in the clerk's office of Putnam county, any paper showing notice to defendant of the filing of his findings and judgment in the cause.

As to the first of these assignments, we find that the only plea interposed by the defendant was that of the general issue or "not guilty," concluding to the contrary.

All that

was necessary to make the issue complete was a general similiter. None was filed by the plaintiff; but no notice was taken by any one of its absence, and all parties voluntarily went to trial without it, and without protest or objection because of its absence. Under these circumstances, the failure to file it is not such an error as will warrant a reversal of the judgment upon appeal, after a full and complete trial of the merits of the controversy between the parties, as contained in the declaration and plea. Railroad Co. v. Shalley (decided at the present term) 14 South. 890, and other cases therein cited.

In

The second error assigned is entirely too general and indefinite to be considered. it we are not directed to any particular piece of evidence that was offered by the defendant and rejected by the referee, nor to any admitted erroneously on behalf of the plaintiff over the defendant's objection. Neither in the briefs of the appellant are we cited to any particular instance of the admission or rejection of evidence by the referee, to which this assignment would apply. We therefore treat the second assignment as abandoned. Railroad Co. v. Shalley, supra.

The refusal to grant the defendant's motion for a new trial upon the ground that the judgment was contrary to law and contrary to the evidence involves consideration of the evidence in the cause. The declaration alleges, in substance, that prior to the 23d day of March, 1888, the plaintiff granted to the defendant railway company a strip of land for its roadway, 30 feet in width and 1,300 feet in length, upon which the defendant constructed its road. That, when the defendant cleared and prepared the ground so granted for its railroad track, it cut off and dug up the weeds, grass, shrubs, and other vegetable matter growing thereon, and carelessly and negligently allowed the same to remain upon said right of way, piled and heaped up in large quantities upon and near the said track, and upon and over the whole of said granted right of way adjoining the plaintiff's land, and allowed the same to remain there for a long time, until it became dry and combustible; and that while it was in this condition it was set on fire by sparks from a locomotive of the defendant, while passing over its said track, on the 23d day of March, 1888. That said fire communicated to vegetation growing upon the adjacent land of the plaintiff, and

-That the said destruction and loss of property to her was caused by the carelessness, negligence, and improper conduct of the defendant in allowing the aforesaid dry and combustible matter to remain upon said right of way, and liable to be set on fire by sparks from its locomotives. The allegation that the defendant deposited the brush, grass, shrubs, and other vegetable matter cleared from the roadbed, in large quantities, all along its right of way adjacent to the premises of the plaintiff, and allowed it to remain there until it became dry and combustible, is not only amply sustained by the proofs, but no effort was made by the defendant to contradict it in any way. The proof further shows, without conflict, that at the time of the fire it was a very dry season, and that a high wind was blowing from the northeast towards the plaintiff's lands from the railroad, that ran in an easterly and westerly direction along the northern boundary of the plaintiff's lands. Two witnesses for the plaintiff, who were at work on her land at the time of the fire, in plain view of the railroad and the defendant's passing train, and of two small shanties located near the railroad, on the northeast corner of the plaintiff's land, swear that they saw the defendant's train, drawn by a locomotive, go by towards Palatka between 10 and 11 o'clock in the morning; that there was no fire anywhere about the plaintiff's land, nor in the neighborhood of the two shanties, prior to the passage of the train, but that in a very short time after the passage of the train-within a minute or two after-they saw the fire start up in a pile of brush on the right of way on the side next to plaintiff's land; that they immediately went to it to try to put it out, but could not do so, although a good many others came to their help, be cause of the high wind blowing, and the dryness of the season, and the large accumulation of dry, combustible material piled up along the defendant's roadway; that it burn ed over plaintiff's land, destroying the property as alleged, and set the dwelling house of the plaintiff on fire, but they succeeded in putting it out and saving it. These two witnesses, and still another witness for the plaintiff, swear positively that the fire started on or near the defendant's right of way very shortly after the train passed, and that the point of its beginning was some distance west of where the two shanties stood, and that there was no fire at all, anywhere in

sight, until after the train went by; that if there had been any fire, prior to the passage of the train, anywhere to the south or southwest of the two shanties, they were in plain view of the location, and would have seen it, but that there was none until that which broke out, west of the shanties on the defendant's right of way, immediately after the defendant's train went by. The two witnesses whose testimony is first alluded to also swear that no one was about the shanties, or along the defendant's railroad, or anywhere about the plaintiff's lands, who could have started the fire prior or subsequent to the passing of the train; that, if there had been, they were in position to have seen, and would have seen, them. On the other hand, two witnesses for the defendant, who were in its employ on the train alleged to have started the fire, swear that they were on the train, and that before the train reached the plaintiff's land they saw a fire in the woods on the plaintiff's land, some distance from the railroad, to the southwest of the two shanties, in the northeast corner of plaintiff's land; that it was burning fiercely before a northeast wind when their train first came in sight, and rapidly spreading to the southand southwest over plaintiff's premises. This conflict in the evidence as to the origin of the fire has been settled by the referee in favor of the truth of the matter being on the side of the plaintiff's witnesses, and we are bound by that finding as to the facts; and from those facts we think the referee was justified in concluding that the fire had its origin in the passing train. The defendant undertakes to avoid the responsibility for the damage done, upon the ground that its engine was in perfect order, fitted with the best device for arresting sparks in common use, and with perfect ashpans, etc., and that it was carefully handled by a skilled and competent engineer, and to this effect its proof is ample and uncontradicted; but these same witnesses testify that, despite the use of the best known and most perfect devices for preventing the escape of sparks, some sparks will escape, notwithstanding the utmost care.

The gist of the charge of carelessness and negligence against the defendant in the plaintiff's declaration is that it deposited the brush and debris taken from its roadbed all along on its right of way adjoining the plaintiff's land, and carelessly allowed it to remain there until it became dry and combus tible; and the proof, as found by the referee, shows that the fire started in this brush and debris. The uncontradicted proof shows, further, that this deposit of combustible matter became so threateningly dangerous that the plaintiff and her hired laborers habitually watched each passing train over defendant's road for fear of its starting a fire; and two of the plaintiff's witnesses were engaged in grubbing out a fire break on plaintiff's land, parallel with defendant's road, at the time this fire started; and that the plaintiff,