Doyle v. City of Coral Gables

Citation159 Fla. 802,33 So.2d 41
PartiesDOYLE v. CITY OF CORAL GABLES.
Decision Date09 December 1947
CourtUnited States State Supreme Court of Florida

Rehearing Denied Jan. 12, 1948.

Appeal from Circuit Court, Dade County; George E. Holt Judge.

Murrell Fleming & Flowers and M. F. Zarowny, all of Miami, for appellant.

Blackwell Walker & Gray and Edward L. Semple, all of Miami, for appellee.

TERRELL, Justice.

Appellant sued appellee in the Circuit Court to recover damages for personal injuries. The declaration was in four counts based on negligent breach of an implied contract. A demurrer to the declaration was sustained, final judgment was entered for the defendant and plaintiff prosecuted this appeal.

The trial court reached the conclusion that the action sounded in tort rather than on contract, and sustained the demurrer to the declaration on authority of Banfiled v Addington, 104 Fla. 661, 140 So. 893, 896 wherein this Court among other things held: 'Where a transaction complained of has its origin in a contract for service which places the parties in such a relation to each other that in attempting to perform the promised service a tort is committed, then the breach of the contract is not the gravamen of the suit brought to recover damages for the tort. And in such case the contract is considered mere inducement, creating the state of things which furnishes the occasion of the tort, but not the basis of recovery for it, and in all such cases the remedy is an action ex delicto on the case.'

In Banfield v. Addington we were confronted with the old common law rule of nonliability of a married woman for her torts. In that case a married woman operating a beauty parlor was being sued for a tort committed by one of her servants on a client who had applied for a permanent wave. In manipulating the permanent wave the machine was permitted to become too hot, the client's scalp was badly scorched and her coiffure was debeautified. In sustaining the demurrer to the declaration the trial court in effect held that the operator of the beauty parlor was not liable in damages to the client, the reason being that she was a married woman.

On appeal this Court reversed that judgment and held the operator of the beauty parlor liable on the theory that the law allowed her to engage in business separate and apart from her husband, that she could employ servants to operate the business and was responsible for their delicts. No other question was before the court. The action was admitted to be one in tort and there was no contention to the contrary, so what was said on that point was purely obiter and unnecessary to decision of the main question in the case. The opinion however recognized that instances might arise in which one could pursue his remedy in tort or in contract. It is not necessary to enlarge on these distinctions here. It is enough to say that for this and other reasons we do not think Banfield v. Addington rules this case. It created an anachronism in the law that we hope what has been said will correct.

In the case at bar defendant was a common carrier of passengers for hire. Plaintiff paid her fare and was accepted as a passenger for transportation by defendant but alleges that she was injured before she reached her destination because of defendant's negligence in operating the bus on which she was riding. She elected to sue for breach of the contract to deliver her safely. The real question for determination is whetehr she may exercise her election to...

To continue reading

Request your trial
16 cases
  • Sergermeister v. Recreation Corp. of America, Inc.
    • United States
    • Florida District Court of Appeals
    • 13 Junio 1975
    ...implied warranty.' This would appear to be the law. Colhoun v. Greyhound Lines, Inc., 265 So.2d 18 (Fla.1972); Doyle v. City of Coral Gables, 159 Fla. 802, 33 So.2d 41 (1947). Plaintiffs go on to urge that the amusement device here is analogous to a common carrier and, hence, the doctrine o......
  • City of Miami v. Keton
    • United States
    • Florida Supreme Court
    • 4 Noviembre 1959
    ...action to tort and have held directly that if did not apply to actions on contract, whether expressed or implied. Doyle v. Coral Gables, 1947, 159 Fla. 802, 33 So.2d 41. There was accordingly no merit to the motion to dismiss the complaint for lack of notice of the Point seven proffered by ......
  • Miller v. Allstate Ins. Co.
    • United States
    • Florida District Court of Appeals
    • 18 Diciembre 1990
    ...waived and the injured party may sue on the contract. Gay v. Southern Builders, Inc., 66 So.2d 499 (Fla.1953); Doyle v. City of Coral Gables, 159 Fla. 802, 33 So.2d 41 (1948). In Bondu, the defendant physician and hospital owed a duty to the plaintiff, imposed by statute and administrative ......
  • Manning v. Serrano
    • United States
    • Florida Supreme Court
    • 9 Octubre 1957
    ...v. Clark, 1933, 107 Fla. 598, 145 So. 848; Milteer v. Seaboard Air Line Ry. Co., 1913, 66 Fla. 17, 62 So. 831; Doyle v. City of Coral Gables, 1947, 159 Fla. 802, 33 So.2d 41; Holbrook v. City of Sarasota, Fla.1952, 58 So.2d 862; City of Miami v. Brooks, Fla.1954, 70 So.2d 306. The general r......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT