Herr v. Butler

• Decision Date: 12 March 1931
• Citation: 132 So. 815,101 Fla. 1125
• Parties: HERR v. BUTLER et al.
• Court: Florida Supreme Court

132 So. 815

101 Fla. 1125

HERR v. BUTLER et al.

Florida Supreme Court

March 12, 1931

En Banc.

Error to Circuit Court, Pinellas County; O. L. Dayton, Judge.

Action by Annie M. Butler, joined by her husband, against H. L Herr. Judgment for the plaintiffs, and defendant brings error.

Affirmed.

ELLIS and BROWN, JJ., dissenting.

Syllabus by the Court.

SYLLABUS

A motor vehicle operated on the public highways is a dangerous instrumentality, and the owner who intrusts it to another to operate is liable for injury caused to others by the negligence of the person to whom it is intrusted.

An automobile operated upon the public highways being a dangerous machine, its owner is responsible for the manner in which it is used, and his liability extends to its use by any one with his knowledge or consent.

The Legislature, under its police power to protect the public from dangerous instrumentalities using the highways, has imposed rigid restraints, regulations, and restrictions upon the use of motor vehicles, thus recognizing the danger from their operation, which makes owners liable in damages under the doctrine of respondeat superior as applied to dangerous agencies.

Chapter 7275, Acts 1917, treats the automobile when operated on the public highways as a dangerous instrumentality so as to require special regulation and control under the police power, and it is not divested of its dangerous character in an action for damages caused by the negligence of the operator who is using the car with the owner's knowledge or consent.

The statutes of Florida provide for licensing automobiles in the name of the owner, or their operation only by the owner or under his authority in the case of nonresidents, and no one has the right to use an automobile on the highways of the state except pursuant to the license which the owner derives from the state to operate that particular car over the highways. Consequently the operator in lawful possession of a car with the consent of the owner in effect operates the car under the authority of the owner's license to use the highways pursuant to Florida statute law, as well as for the benefit of such owner whose agent the operator is, at least to the extent of properly controlling the car, looking after it, preventing damage to it, and returning it safely to such owner who intrusted it. (Headnote based on concurring opinion by Mr. Justice Davis.)

COUNSEL

Jackson, Dupree & Cone, of Tampa, for plaintiff in error.

Spear Viney, Skelton & Pearce, of St. Petersburg, for defendants in error.

OPINION

BUFORD C.J.

This case is before us on writ of error attacking the judgment of the circuit court of Pinellas county against the plaintiff in error in favor of the defendants in error for damages resulting from an automobile accident.

The record discloses that the accident occurred on a street in St. Petersburg, Fla. The automobile belonging to the plaintiff in error was being driven at the time of the accident by one G. L. Herr, 49 years of age, the son of H. L Herr, who was then on a visit from his home in Buffalo, N. Y., to his father and mother in their home in St. Petersburg, Fla. The automobile was being driven by G. L. Herr, while a guest of his father's in his father's home, with the knowledge and consent of his father, H. L. Herr, the owner of the automobile.

There is conflict in the evidence as to material matters, all of which have been resolved by the jury in favor of the plaintiff below, the defendants in error here. There was no plea of contributory negligence, and therefore no question of contributory negligence on the part of the plaintiffs in the court below was raised in that court.

There is substantial evidence disclosed by the record as to all material issues sufficient to constitute a basis for the verdict of the jury.

The main contention made here is that, because G. L. Herr was not a member of the household of the owner of the automobile and not employed by the owner of the automobile and was not shown to be on business in behalf of and at the direction of the owner of the automobile, the owner of the automobile is not liable for the damage caused by the negligent operation of the automobile by the driver thereof.

It appears that this case comes well within the rule as stated in the case of Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 16 A. L. R. 255, in which the court say:

'A motor vehicle operated on the public highways is a dangerous instrumentality, and the owner who intrusts it to another to operate is liable for injury caused to others by the negligence of the person to whom it is intrusted. * * *

'An automobile operated upon the public highways being a dangerous machine, its owner is responsible for the manner in which it is used, and his liability extends to its use by any one with his knowledge or consent.

'The Legislature, under its police power to protect

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