City of Miami v. Mccorkle

• Decision Date: 22 November 1940
• Citation: 199 So. 575,145 Fla. 109
• Parties: CITY OF MIAMI v. McCORKLE.
• Court: Florida Supreme Court

199 So. 575

145 Fla. 109

CITY OF MIAMI v. McCORKLE.

Florida Supreme Court, Division A.

November 22, 1940

Rehearing Denied En Banc Jan. 14, 1941.

Error to Circuit Court, Dade County; Ross Williams, Judge.

Action by Betty McCorkle, a minor joined by her next friend Paul Brown, against the City of Miami to recover damages for injuries resulting from a collision between a hook and ladder truck of the defendant and an automobile in which the plaintiff was riding. To review a judgment in favor of the plaintiff, the defendant brings error.

Judgment affirmed.

On Petition for Rehearing.

COUNSEL

Lewis Twyman, of Miami, for plaintiff in error.

Blackwell & Walker, of Miami, for defendant in error.

OPINION

BUFORD Justice.

On writ of error we review judgment in favor of the plaintiff rendered in a suit for damages resulting from a collision between a hook and ladder truck of the defendant municipality and an automobile in which plaintiff was riding.

Plaintiff in error presents four questions for our consideration, as follows:

'First Question:

'Even though the declaration charges a municipality with 'a persistent habit and habitual custom' of being negligent in the operation of fire-fighting equipment, is the municipality liable when the evidence offered at the trial relates only to a single time and place involving alleged negligence by the driver of a hook and ladder truck proceeding to a reported fire, and refers in no way to prior habit, custom or nuisance?'

'Second Question:

'In addition to compensatory damages for alleged negligence, is a municipality in Florida liable to the assessment of punitive or exemplary damages?'

'Third Question:

'When the plaintiff, a minor, claims permanent physical and mental injury, but at the trial offers no medical evidence of her present condition, and relies upon the hospital record of her injury fifteen months theretofore and upon testimony concerning her condition at that time, and upon hypothetical questions based thereon mvolving her probable future condition, is there sufficient certainty in the evidence to support a verdict for permanent injury, particularly when the chief expert medical witness for the plaintiff testified at the trial 'Most likely this girl will recover. I just stated these other things can occur'?'

'Fourth Question:

'Can photographs of a badly wrecked automobile be identified and sufficiently qualified for admission in evidence when the witness who produces and attempts to qualify them did not take them, was not present when they were taken, testifies, 'I wouldn't have any idea who took them', does not know when they were taken, saw them for the first time more than a year after the wreck, and admits that the automobile had been moved from the scene of the wreck to a junk yard and that the hood at least had been removed, but stubbornly insists nevertheless that the pictures are 'true representation of the condition of the car'?'

The declaration was in two counts. In the first count it is alleged, inter alia:

'And the plaintiff says that the motor vehicle hereinabove mentioned had for a long period of time, to-wit, for many months before the date alleged above, been used as a vehicle for the purpose of transporting members of the defendant's fire department to the scenes of fires, and that for a long period of time it had been the persistent habit and habitual custom of those operating and driving said motor vehicle and fire-fighting apparatus to drive the same at a high and dangerous and grossly negligent rate of speed, into and through street intersections where traffic control signal lights were maintained and operated by the said City of Miami, while said traffic control signal lights were red for traffic moving in the direction in which said vehicles were going, many times driving the said apparatus through such intersections at a high and dangerous rate of speed, without regard for the rules and regulations for the control of traffic therein, and the plaintiff avers that the said custom and habit of driving through such intersections at such high and dangerous rates of speed, and against red signal lights, was generally and well known, and was so patently and obviously dangerous to other persons using the said streets of said City, and proceeding in accordance with the ordinance controlling the use of such intersections, as to be a menace to the public and to constitute a nuisance; and the plaintiff avers that the driving of the said motor vehicle as aforesaid was known, or by the exercise of reasonable diligence could have been known * * *.'

The second count does not contain this allegation setting up 'persistent habit and habitual custom.'

The case went to trial on pleas of not guitly to both counts of the declaration. The verdict was a general verdict and did not specify that it was based on either particular count of the declaration.

The evidence amply supported the second count of the declaration. Therefore, it is unnecessary to discuss the contention presented by the first question.

It is settled in this jurisdiction that a judgment will not be reversed where it is based on a general verdict and the declaration contains a good count. Section 2814, R.G.S., Section 4501, C.G.L., provides that no judgment after verdict shall be reversed for any faulty count in the declaration where the declaration contains one good count. See Ferry Pass Shippers' & Inspectors' Ass'n v. Pensacola Lbr. Co., 65 Fla. 313, 61 So. 639; Maxwell v. City of Miami, 87 Fla. 107, 100 So. 147, 33 A.L.R. 682.

The second question challenges the propriety of the charge of the court in which the court instructed the jury in...