Eppinger & Russell Co., Inc. v. Trembly

• Citation: 90 Fla. 145,106 So. 879
• Parties: EPPINGER & RUSSELL CO., Inc. v. TREMBLY.
• Decision Date: 13 July 1925
• Court: United States State Supreme Court of Florida

106 So. 879

90 Fla. 145

EPPINGER & RUSSELL CO., Inc. v. TREMBLY.

Florida Supreme Court

July 13, 1925

En Banc.

Error to Circuit Court, Duval County; De Witt T. Gray, Judge.

Action by F. H. Trembly, Jr., by F. H. Trembly, his next friend against the Eppinger & Russell Company, Inc. Judgment for plaintiff, and defendant brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Employer not liable for injury by employee, operating vehicle without consent for employee's purpose alone Where an employee without the knowledge or consent of his employer, operates the employer's motor vehicle upon the public highways for the employee's purposes alone, and in doing so injures another person, the employer is not liable for such injury.

COUNSEL

Wm. A. Hallowes, Jr., and Miles W. Lewis, both of Jacksonville, for plaintiff in error.

John W Dodge, of Jacksonville, for defendant in error.

OPINION

WHITFIELD J.

This writ of error was taken to a judgment awarding damages for personal injuries to the plaintiff below, alleged to have been caused by negligent operation of a motor vehicle of the defendant below. It appears that an employee of the defendant had on Saturday been authorized by the defendant to operate the motor vehicle on the public highways for a specified purpose of the defendant; that on the next day, Sunday, apparently without the knowledge or the express or implied authority of the defendant, the same employee was operating the motor vehicle on the public highway for his own purposes when the injury occurred by the alleged negligence of the employee in operating the motor vehicle. Damages were awarded to the plaintiff, upon the theory that the defendant is liable for the injury shown, if the defendant had, the day before the injury, authorized the operation of its motor vehicle for its purpose on the public highways by its employee, whether the employee was engaged in employer's or the employee's business the next day at the time of the injury.

The court gave the following charge:

'The important question is whether the defendant gave its employee, one Sweat, either express or implied permission to use the auto truck, to take it into his custody or control and operate it on the public highways, and it is immaterial whether the employee was using it in the defendant's business or the course of his employment as a servant of defendant, or in the personal business or personal pleasure of the employee. The kind of use of which the employee was using the auto truck--that is whether for defendant or himself--is not material.'

The court also charged the jury:

'If you find from the evidence that on a Saturday, preceding the day of the alleged injury to the plaintiff, an agent of the defendant, in charge of deendant's motor truck, intrusted that motor truck to one Sweat to tune up same, or otherwise work on same, and did not expressly or impliedly authorize the said Sweat to operate the same on the public...