Casas v. Moya

• Decision Date: 21 December 1966
• Docket Number: No. 357,357
• Citation: 193 So.2d 60
• Parties: Evelio CASAS, Appellant, v. Miguel F. MOYA, Appellee.
• Court: Florida District Court of Appeals

Page 60

193 So.2d 60

Evelio CASAS, Appellant, v. Miguel F. MOYA, Appellee.

No. 357.

District Court of Appeal of Florida, Fourth District.

Dec. 21, 1966.

Mallory H. Horton, of Horton & Schwartz and Albert P. Rosillo, Miami, for appellant.

John H. Wahl, Jr., Frank W. Weathers, and Joseph P. Metzger of Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, for appellee.

NANCE, L. CLAYTON, Associate Judge.

This is an appeal from a directed verdict entered in favor of the defendant at the conclusion of the plaintiff's case.

The facts generally are these. The plaintiff was injured in an automobile accident at which time plaintiff was a passenger in an automobile owned and operated by the defendant. Both parties reside in West Palm Beach, Florida, and commute to Belle Glade to work. The plaintiff was obligated to contribute $1.00 per day, or.$7.00 per week, in order to ride in the defendant's automobile. There was another passenger in the automobile, Mr. Rodriguez, who would have been, but for the accident, paying for his transportation in a fashion and amount similar to the plaintiff. The accident occurred in the morning on the return trip to West Palm Beach. The defendant had become nauseated by gasoline fumes from his car. The defendant, testifying as an adverse witness, related that he had been feeling the fumes on another occasion. The defendant further testified that, when he felt himself become nauseated, he slowed down to about 35 m.p.h. and attempted to stick his head out of the window, however, forgot that the window was closed and struck his face against the glass, breaking his eye glasses, causing him to lose control of his car and go over the center line into the oncoming lane of traffic where his car collided with an automobile driven by one Frederick Brown, who is not involved on this appeal.

Plaintiff filed his amended complaint against the defendant to recover damages for personal injuries sustained. Defendant answered denying negligence and asserting the affirmative defenses of contributory negligence and joint venture whereby plaintiff's negligence was imputed to the defendant.

The trial court entered an order denying appellee's motion for summary judgment and appellant's cross motion for summary judgment. At conclusion of the plaintiff's case, before a jury, the court directed a verdict in favor of the defendant on the grounds that plaintiff had not established gross negligence within the purview of the Guest Statute, F.S.A. § 320.59, and that the evidence failed to establish payment for transportation sufficient to remove the case from the Guest Statute.

A motion for a directed verdict admits for the purposes of the motion, not only the facts shown by the evidence but also every reasonable inference and intendment deducible from the evidence favorable to the party moved against, 32...