Atlantic Food Supply Co. v. Massey

• Decision Date: 04 December 1942
• Citation: 10 So.2d 718,152 Fla. 43
• Parties: ATLANTIC FOOD SUPPLY CO. v. MASSEY et al.
• Court: Florida Supreme Court

10 So.2d 718

152 Fla. 43

ATLANTIC FOOD SUPPLY CO. v. MASSEY et al.

Florida Supreme Court

December 4, 1942

Rehearing Denied Jan. 8, 1943.

Appeal from Circuit Court, Duval County; A. D. McNeill Judge.

Adair, Kent, Ashby & McNatt, C. G. Ashby, and John M McNatt, all of Jacksonville, for appellant.

Rogers Towers & Bailey, C. D. Towers, J. Henry Taylor, and Paul M. Ritter, all of Jacksonville, for appellees.

BUFORD, Justice.

Appeal brings for review judgment in favor of the plaintiff in a suit wherein plaintiff claimed damages for injuries received when defendant's truck was carelessly and negligently driven on a public street so that it turned over and mashed plaintiff's automobile and injured the plaintiff.

There is no question but that the truck was driven in a careless and negligent manner on one of the streets of Jacksonville Florida. Neither is there any contention that the plaintiff was guilty of any contributory negligence, or that she was not injured, as claimed.

In the suit damages were claimed by Caroline A. Massey for injuries to herself and to her automobile.

In the same suit Marcus O. Massey also claimed damages resulting to him by reason of the injuries to his wife.

The first count of the declaration alleges in effect that on April 17th 1941, Caroline A. Massey was the owner and operator of an automobile which was standing in line of traffic stopped by a traffic light on Beaver Street in Jacksonville. It alleges that defendant, through its servant and employee, acting within the scope of his employment, was operating a tractor and trailer in the rear of said plaintiff's automobile and that the tractor and trailer were so carelessly and negligently operated as that the trailer was caused to overturn on plaintiff's automobile, damaging it and injuring plaintiff.

The fourth count is the same as the first except that it alleges that defendant's tractor and trailer were being operated with the knowledge and consent of the defendant.

The third count claims damages sustained by the husband by reason of the wife's injuries.

Other counts were withdrawn.

The pleas submitted covered the general issue and traversed the allegation that defendant's servant and employee was at the time of the accident acting within the scope of his employment, and also traversed the allegation that its trailer and tractor were being operated with the knowledge and consent of the defendant.

The pleas also allege that the driver of defendant's tractor and trailer was operating them for his own purpose and without its knowledge or consent.

The record shows that the tractor and trailer were the property of the defendant.

The record shows that the defendant employed a driver and an assistant to drive the motor vehicle from Orlando, Fla., to Springfield, Mass., with a load of fruit. Joe Vineyard to whom we have referred as the driver, was put in charge of the vehicle, with Frank Spivey as assistant. The trailer was provided with a sleeping compartment, so that one driver might sleep while the other continued driving. The two drivers would take turns of about 4 hours each, one driving and the other sleeping or resting.

The record shows that after they had delivered the fruit in Springfield, Mass., the employees operating the vehicle were directed by the owner to return by way of Charlottesville, Va., and pick up a load of apples, take them to Jacksonville, Fla., and deliver them to Atlantic Commission Company there, and then to proceed to Orlando. The employees in charge of the vehicle got the load of apples and proceeded to Jacksonville, arriving at a filling station about 4 o'clock A. M. The station was closed and they waited around there until about 6 o'clock when Vineyard sent Spivey into the filling station to ascertain how soon they could unload the apples at the place where they were to be delivered and, while Spivey was in the station, it just having opened, Vineyard drove off and, when he was apparently returning to the station where he had left Spivey between two and one-half and three hours after having left him there, and when he was about 4 blocks from the station, the wreck occurred.

When the wreck occurred a woman was riding with Vineyard in the truck. This was strictly against the rules of the owners but, as her presence was not shown to have contributed as a cause of the wreck, that becomes immaterial.

Immediately after the wreck occurred, and before officers had taken him in charge, Vineyard absconded and, so far as the record shows he has not been seen or heard from by any of the interested parties since. The places which knew him have known him no more. The woman stayed around and answered numerous questions, gave the officers a name and address. The officers later looked for her at that address and found that no woman by that name had ever resided there, so far as the people who then lived there knew. She...