Barnes v. Liebig

Decision Date25 February 1941
PartiesBARNES et al. v. LIEBIG et al. (three cases).
CourtFlorida Supreme Court

Rehearing Denied April 10, 1941.

McCune, Hiaasen & Fleming and Fleming Bomar, all of Fort Lauderdale, for plaintiffs in error.

Knight Pace & Paine, George J. Baya, and Knight & Green, all of Miami, for defendants in error.

WHITFIELD, Justice.

It appears from the allegations of the declarations herein that on paved U. S Highway No. 41, which is about eighteen feet wide, running north and south, in the State of George, about two miles south of the Tennessee State Line, there was a wooden bridge over Peavine Creek about eighteen and one-half feet wide and two hundred feet long; that about 9:30 a. m. September 3 1936, a motor bus eight feet wide was going south crossing the bridge, while a Ford car was following about two hundred feet behind the bus.

A Cadillac car being negligently driven in excess of sixty miles an hour going north on the east travel lane of the highway, met the motor bus just south of the south end of the bridge, the bus going south and being run four feet on the east side of the middle line of the highway. The Cadillac car six feet wide going north on the east travel lane was turned to the right to avoid collision with the motor bus and ran off the pavement and onto the hard dirt shoulder of the paved road about fifteen feet south of the bridge and into the flexible steel guard railing which was about four feet from the east side of the paved road south of the bridge, and then turned towards the left, proceeding diagonally across the highway and bridge, and with great force and violence collided with the Ford car which was following at a safe distance behind the motor bus. The Ford car going south was being run on the west travel lane on the bridge. The collision of the Cadillac with the Ford car seriously injured the wife and son, and also the Ford car, of Andrew J. Barnes.

Three actions were brought in the Circuit Court for Dade County against 'both the owners and operators of the motor bus and those responsible for the Cadillac car, on the theory that the proximate cause of the injuries was the combined, concurring and contributing negligence of' those responsible for the operation of 'the motor bus and the Cadillac car.' The actions were brought in Dade County, Florida, where some of the defendants reside. Plaintiff resides in Broward County, Florida.

One action is by Andrew J. Barnes, the husband to recover damages for the loss of the comfort, society, services and consortium of his wife; for the loss of the services of his son who was driving the Ford car at the time; for the medical,. doctor, hospital and other bills expended for his wife and son, and for the damage done to plaintiff's Ford car. A separate action is by Pearl Barnes, the wife, to recover damages for her own injuries. A third action is by the son, Andrew Barnes, to recover for his own personal injuries. Plaintiff has made parties defendant both the owners and operators of the motor bus, and those alleged to be responsible for the operation of the Cadillac car, on the theory that the proximate cause of the action was the combined, concurring and contributing negligence in the operation of the motor bus and the Cadillac car.

The defendants are the same in all of the actions.

Some of the counts of the declaration are predicated upon a statute of the State of Georgia, others upon the common law.

A writ of error was taken in each case to a final judgment for defendants on demurrers sustained to the fifth amended declarations, the plaintiff declining to further amend. By stipulation of counsel the three cases on writs of error in this Court are considered as consolidated for the purpose of hearing and disposition here.

The last four assignments of error are as follows:

'Part 17. Assignment of errors relating to plaintiff's fifth amended declaration as a whole, or certain general features thereof.

'193. The Court erred in ruling that plaintiff's fifth amended declaration failed to show that the proximate cause of the damages and injuries sustained by the plaintiff was the combined, concurrent and contributing negligence of the six defendants.

'194. The Court erred in ruling that the first, third, fifth, seventh, ninth, eleventh, thirteenth, and fifteenth counts of plaintiff's fifth amended declaration failed to state a cause of action because of the absence therefrom of the Georgia statutes governing the alleged tort.

'195. The Court erred in ruling that the transfer and conveyance of the assets of Southeastern Greyhound Lines, Inc., a Delaware corporation, to Southeastern Greyhound Lines, a Kentucky corporation, under the circumstances described in each count of the said amended declaration, failed to impose liability on Southeastern Greyhound Lines, a Kentucky corporation, for the torts of Southeastern Greyhound Lines, Inc., a Delaware corporation.

'196. The Court erred in ruling that the alter ego theory of liability as to the corporate defendants, as alleged in the fifth, sixth, thirteenth and fourteenth counts of plaintiff's fifth amended declaration, was insufficient in an action at law.'

In substance it is contended here that the counts in each of the fifth amended declarations sufficiently state a cause of action for damages upon the theory that the proximate cause of the injuries was the combined, concurring and contributing negligence in the operation of the motor bus and in the operation of the Cadillac car.

The declaration contains the following:

'6. That said highway, at said place, runs in a northerly and southerly direction and traverses Peavine Creek, over which a wooden bridge is constructed which forms a part of said highway; that said bridge was approximately two hundred feet in length; that on each side of the said highway, at the south end of the said bridge, there existed at said time a flexible steel guard or railing almost parallel with said pavement and situated about four feet from the pavement, and converging toward the south abutment of said bridge; that said bridge, at said time, was approximately eighteen and one-half feet wide; that said highway, at said time and place, was paved, which pavement was approximately eighteen feet wide; that on each side of said pavement there was a hard dirt shoulder about two feet wide; that said motor bus was approximately eight feet wide; that said Cadillac automobile was about six feet wide.

'7. At said time and place the said motor bus was being driven in a southerly direction in a negligent manner over said bridge and the south approach thereto and on the east side of the center or middle line of said highway and into and upon a portion (about four feet) of the east travel lane of said highway as it approached the said Cadillac automobile for meeting and passing. At said time and place the said Cadillac automobile was being driven in a northerly direction on said highway in a negligent manner as it approached the said motor bus and the said Ford automobile for meeting and passing near the south end of said bridge and at a high and dangerous rate of speed of over sixty miles per hour and in utter disregard of the condition of said locus in quo and in utter disregard of the aforesaid circumstances of the approaching motor vehicles from the opposite direction. At said time and place the driver of said motor bus, as it approached said Cadillac automobile for meeting and passing, did not give to the driver of said Cadillac automobile an opportunity to pass it on the paved portion of said highway. At said time and place the driver of said motor bus, as it approached the said Cadillac automobile for meeting and passing, did not turn to the right of the center or middle of said highway so as to pass the Cadillac automobile without interference. At said time and place the driver of the Cadillac automobile did not reduce or slow down its speed as it approached the said bridge and said motor bus and the Ford automobile for meeting and passing. While meeting and passing the said motor bus, thus negligently driven upon a portion of the east travel lane, as aforesaid, the driver of the Cadillac automobile, while thus negligently driving as aforesaid, proceeded negligently to the right, off the paved portion of the east travel lane of said highway, onto the shoulder thereof, and into the east railing at a point about fifteen feet from the south end of said bridge and diagonally across the east travel lane of said bridge and highway and into the west travel lane of said bridge, where, (at a point about 30 feet north of the south end of said bridge) with great force and violence, it struck the Ford automobile, whereby the Ford automobile was wrecked and demolished and its occupants were greatly injured and maimed. The direct and proximate cause of the said collision between the Cadillac automobile and the Ford automobile, as aforesaid, was the combined, concurring and contributory negligence of the driver of the Cadillac automobile, as aforesaid.'

The declaration alleges that the 'motor bus was being driven in a southerly direction in a negligent manner over said bridge and the south approach thereto and on the east side of the center of middle line of said highway, and subsequently states other features of the operation of the bus that may be comprehended in 'being driven in a negligent manner,' if it was essential to allege such other features of the operation of the bus. The alleged manner of operating the motor bus is sufficiently alleged to have been negligently done. Likewise as to the allegations of negligence in the operation of the Cadillac car.

The declaration alleges: '* * * that on each side of the said highway, at the south...

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