Fishback v. Yale

Citation85 So.2d 142
PartiesEdward W. FISHBACK, Appellant, v. B. W. YALE, Appellee.
Decision Date14 December 1955
CourtUnited States State Supreme Court of Florida

Charles E. Davis of Fishback, Williams, Davis & Dominick, Orlando, for appellant.

Wilson Sanders of Sanders, McEwan & Berson, Orlando, for appellee.

McNEILL, Associate Justice.

Appellant, as plaintiff below, filed his complaint against the Appellee, and alleged (1) that about the 10th day of January, 1953, plaintiff was riding in a Cadillac automobile being driven by the defendant in a southerly direction on a dirt road, to-wit, the Long Bluff Road, to a gate across said road where it intersects the north boundary of A. A. Fiezl's land where it adjoins the Tosahatchee Game Preserve; (2) that defendant stopped his automobile approximately ten feet from the gate, and plaintiff got out to open a combination lock which secured the gate; (3) that while plaintiff was unlocking the gate, as aforesaid, the defendant negligently and carelessly drove and operated his car into and against plaintiff, and as a result thereof plaintiff's left leg was crushed and pinned against a fence post and plaintiff was injured as therein alleged;

Defendant's motion to dismiss, to strike and for definite statement was overruled and defendant by his answer admitted paragraph 1 of the complaint, and all of paragraph 2 except the words, 'approximately ten feet from the gate' which he denied; and denied the allegations of paragraphs 3 and 4 of the complaint; charged that at the time and place alleged plaintiff so negligently and carelessly conducted himself that he contributed to the accident and to his injuries, if any; and by paragraph 6 of the answer he alleged, 'that at the time of the alleged incident the plaintiff, Edward W. Fishback and Robert McEwan were on a hunting trip on the Tosohatchee Game Preserve and the defendant, B. W. Yale, had accompanied the said plaintiff and Robert McEwan purely for the ride. The said B. W. Yale not being a member of said Game Preserve and therefore not being able to participate in the hunting trip. The plaintiff, Edward W. Fishback, and Robert McEwan met the defendant, B. W. Yale, at Fort Christmas and rode with the said B. W. Yale to the hunting camp at the Game Preserve. At the time of the alleged incident the said Robert McEwan and B. W. Yale were returning from the hunting camp to Fort Christmas and the said Edward W. Fishback was being transported by the said B. W. Yale as a guest passenger in the automobile of said defendant. That as part of said transportation from the hunting camp to Fort Christmas it was necessary to pass through the gate referred to in the complaint, which gate was locked with a combination lock, the combination of which was known only to said members of said Game Preserve. In order to complete the act of transportation in which the said B. W. Yale was engaging it was necessary to pass through said gate in order to continue on to Fort Christmas. That under the circumstances alleged in the complaint, the defendant B. W. Yale cannot be held liable to the plaintiff, Edward W. Fishback, except for gross negligence.'

On April 13, 1954, plaintiff moved to strike the sixth paragraph of the defendant's said answer and defendant moved for summary judgment upon the depositions of the plaintiff, the defendant and Robert McEwan theretofore filed. By order of May 31, 1954, plaintiff's said motion to strike paragraph 6 of defendant's answer was denied, and on the same day defendant's motion for summary judgment was granted and final summary judgment was rendered in favor of defendant. From this judgment this appeal was taken, and appellant assigns as error that the trial court erred: In granting defendant's motion for summary judgment; and in entering said judgment; in finding defendant liable to plaintiff only for gross negligence; in finding there was no evidence legally sufficient to sustain a charge of gross negligence; in denying plaintiff's motion to strike defendant's sixth answer; in finding for defendant and against plaintiff and in finding plaintiff was a guest passenger in the automobile of the defendant.

It appears from the record that the judgment appealed from was rendered on the depositions of the plaintiff, the defendant and one Robert McEwan and from these depositions it appears that plaintiff and Robert McEwan were members of the Tosahatchee Hunting Club but defendant was not a member thereof; that only members of this club could hunt on the Club's preserve or property; that by arrangement between McEwan and defendant, defendant met plaintiff and McEwan at Fort Christmas where plaintiff and McEwan at defendant's invitation transferred into his Cadillac and defendant drove them to plaintiff's hunting camp at the hunting club where they transferred to plaintiff's jeep which plaintiff drove into the swamp where plaintiff and McEwan might hunt while defendant remained in the jeep until they returned thereto; whereupon, they then drove in plaintiff's jeep back to plaintiff's camp and there plaintiff and McEwan assisted defendant into defendant's car, and with defendant driving they all started back to Fort Christmas where plaintiff had left his car, and in order to leave the hunting club property it was necessary to open a gate located across the road they were traveling locked with a combination lock, the combination whereof was known only to members of the club and on arrival at the gate, defendant was driving his car, witness McEwan was (as stated by plaintiff and McEwan) sitting in the middle and plaintiff on the right side; plaintiff dismounted, unlocked the gate which swung open in the opposite direction from the car; it was dark and the headlights of the car were turned on, the car was stopped three to ten feet from the gate, and plaintiff was standing two or three feet off of the road to the right of the car; while plaintiff was unlocking the gate witness McEwan and defendant were talking and witness McEwan did not realize the car had moved until it struck plaintiff. The road over which the car was being driven was a dirt road and not a public road and was wet in spots; plaintiff and witness McEwan did not pay defendant anything for transporting them to and from the hunting club and at the time of plaintiff's injury he and witness McEwan were being transported by defendant back to plaintiff's car at Fort Christmas and plaintiff testified that the car was headed straight to the gate; that he saw the car coming toward him rapidly and veering to the right; that he made an effort to move as fast as he could but before getting further than raising his left leg it was struck; that he had known the defendant about a year; that he had been places with him before; that no one was allowed to hunt on Tosahatchee except members; that defendant was not going to hunt there; and that the defendant just went along for the ride.

Witness McEwan testified in substance as above outlined except he stated they stopped around six feet from the gate and plaintiff got out to unlock the combination lock; that defendant turned the Cadillac so that plaintiff could see the combination better; that he turned facing defendant and was talking to him and didn't know the car had even moved until the plaintiff yelled 'back up'; that he didn't know what action defendant took in connection with the accident so far as driving the car was concerned; that he didn't remember any shifting of the gears; that plaintiff was out of the car not more than two minutes working the combination and had his back toward the car; that he and plaintiff had planned to go out to roost some turkeys; that defendant liked to go in the woods; that he invited defendant to go along because defendant was a good friend of the witness and when asked, 'Just a matter of mutual pleasure?' The witness answered, 'That's right.' When asked what kind of road it was, he answered, 'It is a sand road. It's covered with grass most of the time. Not very deep. There's ruts, but not what you would call deep ruts. It's fairly smooth'; and further stated it was a private road and that you had to be a member of the club to know the combination of the lock; that the car was turned off toward the post because the lock was on that side and the defendant turned it towards plaintiff so he could see the combination.

Defendant Yale in his deposition testified in substance that the boys Ed and Bob got in his car at Christmas and drove down to Tosahatchee, went to Ed's camp and transferred to Ed's jeep; that Ed and Bob wanted to go look for a turkey roost; that he sat in the jeep until they returned after dark; that it was very cold; that when plaintiff and witness McEwan returned to the jeep from the woods they went back to plaintiff's camp. The appellant and McEwan put witness in his car and they drove possibly a hundred yards to the gate; that the car did not have time to warm up; that he turned his headlights up to the lock and plaintiff pushed the gate back and in order to turn through the gate he had to back his car; that he was close to and facing plaintiff; that he pulled his car into reverse and as he had to pull through 'drive', probably because the grease in the hydromatic was cold, the car jumped ahead; that he realized it instantly and before plaintiff had yelled defendant had it in reverse and backed up; that it hit plaintiff's leg against the post; that witness McEwan brought plaintiff to the car and held him in his lap while defendant drove to the hospital; that if he had headed straight for the gate he would have just gone ahead but plaintiff had to have the benefit of the lights so he turned the car close to the lock so plaintiff could work the combination; that the car was stopped three to five feet from the gate post; that the light would not have been effective at a longer range; and defendant further testified that witness McEwan was on the lefthand side of the...

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10 cases
  • Williamson v. McKenna
    • United States
    • Supreme Court of Oregon
    • 10 Agosto 1960
    ...with willful and wanton misconduct and the latter type of culpability is required for recovery under the statute. Fishback v. Yale, Fla.1955, 85 So.2d 142, 150; Cormier v. Williams, 1941, 148 Fla. 201, 4 So.2d 525; Johnson v. Huskey, 1960, 186 Kan. 282, 350 P.2d 14; Stout v. Gallemore, 1933......
  • O'Donnell v. Mullaney
    • United States
    • United States State Supreme Court (California)
    • 3 Julio 1967
    ...their statutes do not contain the restrictive language found in ours, and the decisions expressly depend on that factor. (Fishback v. Yale (Fla.) 85 So.2d 142, 147; Kitchens v. Duffield, 149 Ohio St. 500, 504, 79 N.E.2d 906; Becket v. Hutchinson, 49 Wash.2d 888, 889--890, 309 P.2d 235, 64 A......
  • Reid v. Associated Engineering of Osceola, Inc., 72--850
    • United States
    • Court of Appeal of Florida (US)
    • 17 Mayo 1974
    ...approach to the owner's liability for the permittee's negligent operation of the vehicle defies common sense. In the case of Fishback v. Yale, Fla.1955, 85 So.2d 142, our Supreme Court used an illustration almost identical to that above to show why it would be totally illogical for the gues......
  • O'Donnell v. Mullaney
    • United States
    • California Court of Appeals
    • 17 Enero 1967
    ...was being transported was, at the crucial time of the accident, being operated on a private way or on private property. (Fishback v. Yale (Fla.), 85 So.2d 142; Kitchens v. Duffield, 149 Ohio St. 500, 79 N.E.2d 906, 37 Ohio Ops. 200; Recket v. Hutchinson, 49 Wash.2d 888, 308 P.2d 235, 64 A.L......
  • Request a trial to view additional results

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