Carr v. Crosby Builders Supply Co., Inc., 72--56

• Decision Date: 29 August 1973
• Docket Number: No. 72--56,72--56
• Citation: 283 So.2d 60
• Court: Florida District Court of Appeals
• Parties: Kenneth CARR, Appellant, v. CROSBY BUILDERS SUPPLY COMPANY, INC., a Florida corporation, et al., Appellees.

Page 60

283 So.2d 60

Kenneth CARR, Appellant, v. CROSBY BUILDERS SUPPLY COMPANY, INC., a Florida corporation, et al., Appellees.

No. 72--56.

District Court of Appeal of Florida, Fourth District.

Aug. 29, 1973.

Rehearings Denied Oct. 9, 1973.

Burdick & Daves, West Palm Beach, and Kenneth J. Horton, Lake Worth, for appellant.

John R. Beranek of Jones Paine & Foster, West Palm Beach, for appellees-Crosby, Thomas and Aetna.

Edna L. Caruso of Howell, Kirby, Montgomery, D'Aiuto, Dean & Hallowes, West Palm Beach, for appellees-Mayer and Nationwide.

CROSS, Judge.

Appellant-plaintiff, kenneth Carr, appeals a judgment entered in favor of appellees, Crosby Builders Supply Co., J. C. Thomas, Ronald Mayer, as Administrator of the Estate of Mark Mayer, and their respective insurance companies in an action for the wrongful death of appellant's son. We reverse.

The plaintiff's son, Neal Carr (Neal), was killed in a two-vehicle collision on U.S. Highway #1 near Fort Pierce, Florida. Neal was riding as a passenger in the right front seat and two other boys, John Eaton and Floyd Roberts, were riding in the rear seat of an automobile being driven by Mark Maryer (Mark). The four boys were returning from Mims, Florida, to West Palm Beach, Florida. They had driven to Mims in two cars, both cars titled in the name of Marvin D. Eaton (Mr. Eaton), the father of John Eaton, to return one of the cars to Mr. Eaton. On the way back from Mims, the boys alternated driving (Neal did not drive as he did not have a driver's license).

While Mark was driving in a light rain at about 65--70 miles per hour in a 65-mile-per-hour zone, a vehicle which he was following suddenly moved from the left or inside lane to the right or outside lane. The vehicle Mark was driving then 'rear-ended' a truck owned by Crosby Builders Supply Co. (Crosby), being operated by J. C. Thomas, which was stopped in the median crossover strip, partially blocking the left or inside lane, waiting for an opportunity to make a U-turn. The boys in the front seat, Mark and Neal, were killed instantly.

Suit for damages was subsequently instituted by the plaintiff. The case was tried before a jury. The jury returned a verdict in favor of all defendants and against the plaintiff. Final judgment was then entered for defendants. Plaintiff moved for and was denied a new trial. This appeal followed.

The first point for our determination is whether the trial court erred in determining as a matter of law that Neal Carr was a guest passenger, which determination required plaintiff to prove that Mark was guilty of gross negligence in order to obtain a judgment against Mark's estate.

Florida's 'guest statute' § 320.59, Florida Statutes ¹ F.S.A., prohibits recovery by one injured in a motor vehicle accident who is a guest or passenger of the owner or operator unless 'such accident shall have been caused by the gross negligence or willful and wanton misconduct of the owner or operator.' The able trial judge correctly applied the dictates of the statute. However, subsequent to the final judgment herein appealed and the filing of the notice of appeal, the 'guest statute' was repealed by Fla.Laws 1972, ch. 72--1 § 1.

We must, in reviewing a judgment on direct appeal, dispose of the case according to the law prevailing at the time of the appellate disposition, irrespective of the law prevailing at the time of rendition of the judgment appealed. Florida East Coast Railway Company v. Rouse, 194 So.2d 260 (Fla.1966). Accordingly, the 'guest statute' thus having been repealed, it is only necessary to allege simple negligence against Ronald Mayer, as administrator of the Estate of Mark Mayer to state a cause of action. Ingerson v. State Farm Mutual Automobile Insurance Company, 272 So.2d 862 (Fla.App.1973); see also General Capital Corporation v. Tel Service Co., 183 So.2d 1 (Fla.App.1966).

Appellant contends that the trial court erred in instructing the jury on the defense of assumption of risk. An instruction to the jury on an affirmative defense is proper when requested where sufficient evidence has been introduced from which the jury could lawfully find that the defense has been proven. See, e.g., Harwell v. Blake, 180 So.2d 173 (Fla.App.1965); Fla.R.Civ.P. 1.470(b); 32 Fla.Jur. Trial § 140, et seq. (1960, Supp.1973). In the case sub judice, we have carefully examined the testimony relied upon by the appellees to support the instruction ² on assumption of the risk, and determined that the evidence is insufficient to support the instruction as it is insufficient to show that the plaintiff knew and appreciated the danger. See Bartholf v. Baker, 71 So.2d 480 (Fla.1954); Jones v. Crews, 204 So.2d 24 (Fla.App.1967). It was, therefore, error for the trial court to instruct the jury on assumption of risk.

...