Engleman v. Traeger
| Decision Date | 06 August 1931 |
| Citation | 102 Fla. 756,136 So. 527 |
| Court | Florida Supreme Court |
| Parties | ENGLEMAN v. TRAEGER et al. |
Error to Circuit Court, Dade County; Paul D. Barns, Judge.
Action by M. O. Engleman against Joe Traeger and another, partners doing business under the trade-name of the Great Southern Motor Club. To review an order granting defendants' motion for a new trial, after a verdict for the plaintiff the plaintiff brings error.
Affirmed.
Syllabus by the Court.
The only way in which an automobile can be lawfully operated on the highways of the state of Florida is under a state license and bearing a state license tag which can only be issued to the owner of the car.
The owner of an automobile cannot make it possible for another to operate an automobile on the highways lawfully under his (the owner's) license, and then escape the responsibility for what the operator negligently does in operating the car while the car is thus being operated under the owner's license and with the owner's permission, or with his knowledge or consent.
The mere fact of ownership of a vehicle will not establish a liability of the owner for injuries resultant from the misuse or negligent operation by one to whom the owner has loaned it, and something more than ownership is ordinarily required to establish agency or the relation of master and servant between the owner and the borrower.
For a person to be responsible for the operation of an automobile he must be the owner of the car which is operated by some one under his authority and permission, or he must have control of the operation of the car.
The plaintiff cannot allege the relationship of principal and agent, and recover on proof of the relationship of master and servant. Neither can the plaintiff allege the relationship of master and servant, and recover on proof of the existence of the relationship of principal and agent, which was attempted to have been accomplished in this case.
Shipp, Evans & Kline, of Miami, for plaintiff in error.
Herbert S. Sepler, of Miami, for defendants in error.
The plaintiff in error, whom we will refer to as the plaintiff, brought an action against the defendants in error, whom we will refer to as the defendants, for damages for the death of his son Whitney Engleman, a young man about twenty years old. The first count alleges that the defendants were engaged in operating trucks along and upon the public highways in the county of Dade and state of Florida; that Arthur Williams on December 25th 1928, was 'driving an automobile for and on behalf of the said defendants as their servant, agent and employee, and in the course of his employment and in the service of the defendants'; and that he negligently and carelessly drove said automobile upon and against Whitney Engleman and injured him so seriously that he died from the effect of his wounds.
The second count alleges that the defendant operated 'for the use and convenience of their agents, servants and employees a certain automobile, and permitted and authorized the use and operation of said automobile by their said agents, servants and employees for the purpose of transporting themselves from defendants' place of business to their homes and the homes of their parents or relatives in and near Miami, Florida, and to return therefrom to their employment at defendants' place of business; that on said date said automobile was being run and operated by their agent, servant and employee in and upon the streets of the City of Miami, County of Dade, State of Florida, with the permission of and by the authority of said defendants, for transporting himself from the home of his parents or relatives in or near the City of Miami to his place of employment, to-wit, the place of business of said defendants in the City of Miami.
'That said defendants' automobile being so run and operated by their agent, servant and employee, and at a time and place and with the permission and authority of the defendants as aforesaid, and within the scope of his authority as such agent, servant and employee, to-wit, in transporting himself back to the place of business of said defendants, so carelessly and negligently run, drove and operated said automobile, and without any negligence on the part of plaintiff's son, Whitney Engelman, * * * that the same came in contract with and did strike against the said Whitney Engelman, the infant son of the plaintiff, with great force and violence thereby bruising, wounding and injuring the said Whitney Engelman by reason whereof the said Whitney Engelman on December 25, 1928, died killed by the wrongful act, negligence and carelessness and default of said agent, servant and employee of the defendants acting in his capacity as such agent, servant and employee.'
The case was tried on pleas of not guilty, contributory negligence, a plea denying that Williams at the time of the accident was the agent of defendants, and a plea that alleged that the automobile at the time of the accident was being operated without the consent, knowledge, or acquiescence, express or implied, of the defendants, and the trial resulted in a verdict for the plaintiff. The defendants made a motion for a new trial and the same was granted by the court, to which ruling the plaintiff excepted, and the case is here for review upon writ of error.
It seems that the owners of the motor vehicle had been the employers of one Arthur Williams, who was driving it at the time of the accident. Williams worked until noon of Christmas day, and desiring to get off for the balance of the day, he was paid the wages that were due him by his employers and they loaned him the machine to be used for his pleasure--not in their business--and he was to return, it, according to the testimony of the defendants, at 6 o'clock that afternoon. The accident occurred about 7 o'clock in the evening. The evidence sustains the theory that the fatal injury was due to the negligent operation of the said motorcar by Arthur Williams, and fails to show contributory negligence on the part of Whitney Engleman. It is the contention of the defendants that the driver of the automobile was not at the time of the accident using the machine as the agent or servant of the defendants, but, at most, Williams was merely a bailee. Upon the theory that a bailor of an automobile, even though such automobile is a dangerous instrumentality, is not liable for a tort committed by a bailee in the use of such instrumentality, the lower court granted a new trial.
But the alleged bailment is not such as was involved in White v. Holmes, 89 Fla. 251, 103 So. 623, where this court held that where one keeps an automobile for hire, and in the usual course of business hires the automobile without driver to another, who in operating the car injures a third person, the owner of the car is not liable for damages to the injured party for the negligent operation. Such bailments as were referred to and specially dealt with in that case are expressly permitted by the automobile license laws of the state. The controlling statute contemplates that special licenses may be issued under which cars can be hired to another under such circumstances as to divest the owner of all control and consequent responsibility for negligent operation, in the case of these particular bailments.
As has been several times pointed out, the only way in which an automobile can be lawfully operated on the highways of the state of Florida is under a state license and bearing a state license tag which can only be issued to the owner of the car. See section 1280, Comp. Gen. Laws 1927 et seq., section 1006, Rev. Gen. St. 1920 et seq.
The owner of an automobile, as we expressly held in Herr v. Butler, 132 So. 815, and cases following it, cannot make it possible for another to operate an automobile on the highways lawfully under his (the owner's) license, and then escape the responsibility for what the operator negligently does in operating the car, while the car is thus being operated under the owner's license and with the owner's permission, or with his knowledge or consent.
Such holding is but an application of the well-known doctrine of respondeat superior; the effect of our statutes requiring the licensing of automobiles for operation on the highways being to prohibit all operation except under state license and state identifying tags, and to make owners of automobiles who knowingly intrust their cars to others responsible for what such others do under authority of the license which is granted only to the owner and limited to the owner and those who act for him.
It may be conceded that the law is to the effect that the mere fact of ownership of a vehicle will not establish a liability of the owner for injuries resultant from the misuse or negligent operation by one to whom the owner has loaned it, and that something more than ownership is ordinarily required to establish agency or the relation of master and servant between the owner and the borrower. New York Plate Glass Ins. Co. v. Martines, 55 Utah, 292, 184 P. 819. It has never been disputed by any holding of this court that for a person to be responsible for the operation of an automobile he must be the owner of the car which is operated by some one under his authority and permission, or he must have control of the operation of the car. Tyree v. Tudor, 183 N.C. 340, 111 S.E. 714. Nor has it been held in Florida that the mere fact that the instrumentality in question is an automobile has per se set up a new rule with regard to how the relationship of principal and agent or master and servant, and the rule of liability controlling these relationships is to be applied. We think it may still be safely affirmed that...
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