Barth v. City of Miami

• Decision Date: 08 April 1941
• Citation: 1 So.2d 574,146 Fla. 542
• Parties: BARTH v. CITY OF MIAMI.
• Court: Florida Supreme Court

1 So.2d 574

146 Fla. 542

BARTH v. CITY OF MIAMI.

Florida Supreme Court

April 8, 1941

Rehearing Denied April 29, 1941.

En Banc.

Bart A. Riley and Edward A. McArthur, both of Miami, for plaintiff in error.

Knight &amp Green, of Miami, for defendant in error.

CHAPMAN, Justice.

On November 18 1938, plaintiff in error filed in the Circuit Court of Dade County, Florida, his third amended declaration alleging the negligent operation of a fire truck by defendant and consisting of two counts. A demurrer thereto was filed and one of the grounds was to the effect that each and every count failed to state or allege actionable negligence against the City of Miami in the operation of its fire truck on the streets thereof. The lower court sustained the demurrer and entered final judgment against the plaintiff below and in favor of the City of Miami.

Writ of error was taken to the final judgment in behalf of the defendant below and, after hearing oral arguments on the part of counsel for the respective parties at the bar of this court and after studying the briefs and examining the authorities cited, this court on July 12, 1940, entered an order affirming the final judgment appealed from. 143 Fla. 692, 197 So. 498. On July 31, 1940, an order was entered overruling and denying a petition for rehearing.

Pursuant thereto on August 2, 1940, a mandate of this court issued in said cause and was filed and recorded as required by law in the office of the Clerk of the Circuit Court of Dade County, Florida. This court sua sponte recalled said mandate and the same was returned and received by the clerk of this court on December 16, 1940, and on January 15, 1941, a rehearing was granted and time limits named for the filing of briefs, and the same having been filed, the cause is now before the court on rehearing.

One of the contentions made here is that this court has lost jurisdiction and was without authority on January 15, 1941, to make and enter an order granting a rehearing. Attached to the brief is a letter written by the clerk of this court to counsel for defendant in error to the effect that this court did not issue or make an order in the case at bar between July 31, 1940, and January 15, 1941. The letter of the clerk referred to is dated February 20, 1941, but the clerk through inadvertence failed or omitted to advise counsel that the court sua sponte during the month of December, 1940, ordered a return of the mandate and the same reached the clerk's office on December 16, 1940. It will be observed that the order of this court sua sponte directing a return of the mandate was made in December, 1940, and the mandate was returned and filed December 16, 1940, and the cause was for all intents and purposes duly docketed in this court as a case over which it then had jurisdiction, and that jurisdiction over the case at bar was pending and remained undisposed of on January 14, 1941, when the term ended. On January 15, 1941, the court in the consideration of its docket, reached the case at bar and made an order granting a rehearing. We conclude that this court has not lost jurisdiction but has now the authority to again consider its former judgment and the merits of the controversy on rehearing. See Chapman v. St. Stephens Protestant Episcopal Church, 105 Fla. 683, 136 So. 238, 138 So. 630, 139 So. 188, 145 So. 757, 84 A.L.R. 566.

The negligence alleged in the first count of the third amended declaration is to the effect that the defendant city, while operating a fire engine truck on the streets thereof, negligently and recklessly made a sudden left turn into another street and ran into and injured the plaintiff; that the fire truck was carelessly and negligently operated in the following particulars, to-wit: that the said fire engine truck had been proceeding down Southwest Third Avenue close to the parkway located in the center of said avenue, that the aforesaid left turn was made abruptly without the operators of said truck diminishing speed or giving any hand or other signals indicating an intention to turn, contrary to the provisions of Article 6, Section 10, sub-paragraph (a) of Ordinance No. 1858 of the City of Miami known as the Traffic Code; and said turn was made so abruptly and at such a sharp angle that the said fire truck was driven across a portion of the parkway dividing Southwest Third Avenue; and further that said turn was made at such a sharp angle as to place the said truck on the left-hand side of Southwest Twenty-fifth Road, rather than on the right side where it belonged under the provisions of Article 6, Section 11, subparagraph (b) and Article 6, Section 12, sub-paragraph (a) of Ordinance No. 1858 of the City of Miami, known as the Traffic Code, and under the laws of the State of Florida and customs governing the operation of motor vehicles, and plaintiff alleged that the aforesaid collision was the direct and proximate result of defendant's negligence as aforesaid.

The first count of the third amended declaration further alleged 'that for a long period it has been the persistent habit and habitual custom of those operating the said truck and other fire equipment of the City of Miami on the way to and from fires, upon the public streets of the City of Miami, to drive and operate the same in a reckless and negligent manner in disregard of traffic regulations and the safety of other persons lawfully using said streets; and plaintiff alleges that the said custom and habit of driving and operating the said trucks in the reckless and negligent manner aforesaid was generally and well known to the inhabitants of the City of Miami, and was so patently and obviously dangerous to other persons using the streets of said city as to be a menace to the public and to constitute a nuisance; and plaintiff further alleges that the operation of the particular fire engine truck of the City of Miami hereinabove described at the time, place and in the manner set forth constituted a nuisance; and plaintiff alleges that the manner of driving and operating said fire engine truck and said fire equipment, as aforesaid, was known, or by the exercise of reasonable diligence, could have been known, to the administrative and the legislative officers of the city government of defendant, and that such driving and operation as aforesaid was and is contrary to the laws of reason, and was and is contrary to the rights of people lawfully using said streets as pedestrians or riders in vehicles and dangerous to their life and safety * * *.'

The second count of the third amended declaration alleged the negligent operation by the defendant of a fire engine truck on the streets of Miami in language, viz.: 'That heretofore, on to-wit: the 13th day of February, 1938, at approximately 10:30 A. M., plaintiff was riding upon and operating a motorcycle in a northerly direction on Southwest Third Avenue in the City of Miami, Dade County, Florida; that at a point in or near the intersection of the said Southwest Third Avenue with Southwest Twenty-fifth Road in said city, county and state, he was struck by a fire engine truck of the City of Miami from Station No. 4, which operated on Southwest Third Avenue, and negligently and recklessly made a sudden left turn into Southwest Twenty-fifth Road; and that fire engine truck was then and there being operated in a negligent and reckless manner by an employee of the said defendant, City of Miami, acting within the scope of his employment; that as a proximate result of the aforesaid reckless and negligent conduct, plaintiff's motorcycle and sidecar was completely wrecked, and plaintiff sustained injuries to * * *.'

When the case at bar was before the court on former hearing it was the opinion and conclusion of the court that the same was ruled by Kaufman v. City of Tallahassee, 84 Fla. 634, 94 So. 697, 30 A.L.R. 471; Maxwell v. City of Miami, 87 Fla. 107, 100 So. 147, 33 A.L.R. 682; City of West Palm Beach v. Grimmett, 102 Fla. 680, 136 So. 320, 137 So. 385; Swindal v. City of Jacksonville, 119 Fla. 338, 161 So. 383.

In the case of City of Tampa v. Easton, Fla., 198 So. 753, 754, it was disclosed by...