Foremost Dairies of the South v. Godwin

• Decision Date: 02 August 1946
• Citation: 158 Fla. 245,26 So.2d 773
• Parties: FOREMOST DAIRIES, INC., OF THE SOUTH v. GODWIN.
• Court: Florida Supreme Court

26 So.2d 773

158 Fla. 245

FOREMOST DAIRIES, INC., OF THE SOUTH v. GODWIN.

Florida Supreme Court

August 2, 1946

Rehearing Denied Sept. 14, 1946.

Appeal from Circuit Court, Duval County; Claude Ogilvie judge.

Ragland Kurz & Layton, of Jacksonville, for appellant.

Will O Murrell, of Jacksonville, for appellee.

THOMAS, Justice.

A judgment in favor of the appellee was entered against the appellant, a corporation, and one D. W. Howell for damages sustained in an automobile collision between a car driven by appellee and one driven by Howell.

The corporation is sole appellant, and in its behalf three questions are presented for our consideration. In developing one of them it is urged that the original plaintiff was shown to have been guilty of contributory negligence as a matter of law, but after much deliberation by the division which heard the argument and later by the whole court, there having been a difference of opinion, we arrive at the view that it is unnecessary to pass upon the negligence, or alleged negligence, of the respective drivers, for we think there was no responsibility on the part of the corporation for the acts of the individual Howell, even assuming that he alone was at fault. This conclusion is based on the facts establishing the relationship between the original defendants at the precise time of the injury. They may be succinctly stated.

Howell was employed by the corporation as a collector. When the collision occurred, a few minutes before nine o'clock in the morning, he was en route from his home to the place of business of his employer via the residence of another employee or official of the company, a 'credit man,' whom he intended taking with him. Howell owned the car, but the corporation kept it in repair and paid for the licenses tires, and fuel.

It seems that recovery against the corporation could have been accomplished on the theory (1) that the car was owned by it and entrusted to the individual or (2) that the mishap occurred when the driver was actually engaged in the business of the corporation. The first of these may be readily eliminated because the ownership and mastership of the automobile remained in Howell despite the contributions made by the corporation for its maintenance. The doctrine that the owner of an automobile is responsible for injury caused by it when it is under the control of one to whom it has been entrusted by the owner arises from the nature of the vehicle, which this court has categorized as a dangerous instrumentality. In deciding the point the court quoted authority to the effect that one who exposes another to such a risk "is held, although his act is not of itself wrongful, to insure his neighbor against any consequent harm not due to some cause beyond human foresight." It was said that although these dangerous agencies originally consisted of fire, flood, water, and poisons, they were later enlarged to include explosives, locomotives, street cars--and then automobiles. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 16 A.L.R. 255. See also Anderson v. Southern Cotton Oil Co., reported in 73 Fla. 432, 74 So. 975, L.R.A.1917E, 715.

It is undisputed that the car was actually Howell's, and we construe the contributions by the company merely as added remuneration to him for the means of transportation he furnished to facilitate the collection of his 'employer's bills and accounts.' These defrayals in no wise affected the status of mastership or ownership in Howell.

Nor do we think the facts establish that negligent operation of the car at the time of the collision was chargeable to the corporation on the theory that the employee was engaged in the employer's business. There is no contradiction of his statements that he was on his way to work when the collision occurred, that he had to have the car there in order...