Butts v. Dade County, 64-661
| Decision Date | 04 May 1965 |
| Docket Number | No. 64-661,64-661 |
| Citation | 174 So.2d 782 |
| Parties | Mattie BUTTS, Appellant, v. COUNTY OF DADE, a political subdivision of the State of Florida, Appellee. |
| Court | Florida District Court of Appeals |
David D. Phillips and Hansford D. Tyler, Jr., Miami, for appellant.
Thomas C. Britton, County Atty., John E. Finney and Wicker, Smith, Blomqvist, Hinckley & Davant, Miami, for appellee.
Before BARKDULL, C. J., and TILLMAN PEARSON and CARROLL, JJ.
The appellant, plaintiff, was a paying passenger on a bus owned and operated by Dade County. The bus was involved in a collision with another vehicle resulting in injuries to the plaintiff. She sued the County seeking damages for her injuries. The court, upon defendant's motion, dismissed the cause with prejudice.
The determinative issue on this appeal is whether or not it was necessary for the plaintiff to comply with the notice requirement of Section 2-2 of the Code of Metropolitan Dade County. 1 It is conceded that written notice of the claim was not given by the plaintiff within sixty days of the injury to the Clerk of the County Commission nor was an attempt made to do so.
The plaintiff contends that since her complaint was for breach of contract it was not necessary that she comply with Section 2-2. There is authority that a suit may be brought against the State for breach of contract and, accordingly, against a political subdivision thereof. See Gay v. Southern Builders, Inc., Fla.1953, 66 So.2d 499. It is also true that a paying passenger on a bus may elect to sue for injuries received from operation of the bus on the theory of implied contract to deliver safely. Doyle v. City of Coral Gables, 159 Fla. 802, 33 So.2d 41 (1948). Plaintiff relies mainly on three cases for the proposition that when a party elects to sue on implied contract rather than in tort it is immaterial that notice of the injury was not given as required by Section 2-2. See: Doyle v. City of Coral Gables, supra; Holbrook v. City of Sarasota, Fla.1952, 58 So.2d 862; Goff et al. v. City of Fort Lauderdale, Fla.1953, 65 So.2d 1. The defendant County's reply is that the three cases cited all deal with the notice requirement provision of municipal corporations and are therefore not authority for the asserted proposition as to the County.
The County also submits Nicholson v. City of St. Petersburg, Fla.App.1964, 163 So.2d 775, as authority that notice should be given even when suit is brought upon a contract theory. We agree with the result and the reasoning in the Nicholson case but believe that if the same reasoning is applied to Section 2-2 in the instant case a result contrary to the County's contention must be reached.
However, it is not necessary that this last issue be decided since the substance of the complaint, although styled as an action for breach of implied contract, was in tort. 2 Accordingly, the notice requirement of Section 2-2 was applicable. It having been shown on the face of the complaint that such notice was not given the complaint was properly...
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Butts v. Dade County
...BARKDULL, JJ. TILLMAN PEARSON, Judge. Upon rehearing granted, we have recalled our original opinion on this appeal, Butts v. County of Dade, Fla.App.1965, 174 So.2d 782, and upon reconsideration substitute therefor the following The appellant, plaintiff, was a paying passenger on a bus owne......