Farrelly v. Heuacker

• Citation: 159 So. 24,118 Fla. 340
• Parties: FARRELLY et al. v. HEUACKER.
• Decision Date: 29 January 1935
• Court: United States State Supreme Court of Florida

159 So. 24

118 Fla. 340

FARRELLY et al. v. HEUACKER.

Florida Supreme Court, Division B.

January 29, 1935

Error to Circuit Court, Dade County; Worth W. Trammell, Judge.

Action by Fred William Heuacker against H. Farrelly and another. Judgment for plaintiff, and defendants bring error.

Reversed.

See also, 111 Fla. 407, 149 So. 572.

COUNSEL

McKay, Dixon & De Jarnette, of Miami, for plaintiffs in error.

Hendricks & Hendricks, of Miami, for defendant in error.

OPINION

TERRELL Justice.

This writ of error is to a joint judgment against the plaintiffs in error in favor of defendant in error. It was secured in the circuit court of Dade county in a tort action.

Plaintiff in error Comber was a priest in charge of the Catholic Church, Little Flower, in Coral Gables, Fla. Plaintiff in error Farrelly was also a priest, and was an assistant to Comber. August 5, 1930, Farrelly, while driving a Buick sedan in the city of Miami, ran upon and struck the defendant in error, Fred William Heuacker, throwing him backwards about ten feet, injuring his ankle, back, and head, which incapacitated him for about six months. Comber was in Europe at the time of the accident, and Farrelly was in charge of the parish. A common-law action against Comber and Farrelly jointly resulted in a verdict and judgment for $1,600 in favor of Heuacker, to which the instant writ of error was taken.

The first assignment of error is grounded on the refusal of the trial court to admit evidence to rebut the ownership of the car which Farrelly was driving at the time of the accident the declaration alleging that it was registered and licensed in the name of Comber.

Comber filed pleas to each count of the amended declaration denying ownership of the automobile. At the trial he proffered evidence to prove that the title to the car was in the Bishop of St. Augustine; that when he left for Europe he had no word as to the appointment of his successor; that he had no voice in the appointment of his successor; and that he had no right to authorize any one to use said automobile. He also offered evidence to prove that he was not authorized to take the car from the parish, and that it came into possession of his relief, M. Farrelly, by authority of the Bishop of St Augustine and not by his authority.

The trial court apparently took the position that, while the title certificate creates a rebuttable presumption of ownership in the automobile, only such evidence is admissible to rebut this presumption as tends to show that subsequent to the issuance of the title certificate the car was transferred to a third party, and further that any evidence is inadmissible which tends to show that, though the title stood in the name of the defendant, he was not the real owner nor was he so at the time of the issuance of the title certificate.

The rejection of the proffered evidence on the part of the trial court was error. It was entirely competent for the defendant to prove that the car belonged to the Bishop of St. Augustine, and, if the evidence proffered was true, it was a complete answer to the charge against the defendant. It is settled law in this country that the title certificate and the person to whom the license is shown to be issued constituted presumptive ownership in the car, but such presumption may be met and overcome by evidence. Ford v. Hankins, 209 Ala. 202, 96 So. 349; Berry on Automobiles 1037, § 1158.

It is next contended that the trial court erred in charging the jury that, if they find for the plaintiff, then the plaintiff would be entitled to recover interest at 8 per cent. per annum from the date of the...