Hollander v. Davis
| Decision Date | 14 July 1941 |
| Docket Number | No. 9827.,9827. |
| Parties | HOLLANDER v. DAVIS. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Sydney L. Weintraub, of Miami, Fla., for appellant.
T. J. Blackwell, W. H. Walker, Jr., and Herschel E. Smith, all of Miami, Fla., for appellee.
Before FOSTER, SIBLEY, and McCORD, Circuit Judges.
Helen Hollander, a citizen of Florida, brought suit for damages for personal injuries against Emilie P. Davis and her husband Charles B. Davis, citizens of New Jersey. Charles B. Davis died before the case was heard and on suggestion of counsel and motion of the plaintiff the suit was dismissed as to him. Mrs. Davis filed a motion to dismiss the complaint as last amended on the ground that it failed to state a claim against her upon which relief could be granted. After a hearing on the motion to dismiss, the court entered judgment dismissing the cause, and Helen Hollander appealed.
The important facts alleged in the complaint as last amended show that Mrs. Davis lived in New Jersey; that she owned an automobile which she turned over to her husband, Charles B. Davis, for the purpose of having him drive it to Miami, Florida, where she was to meet him and take over the car when she came down later by train; that Mrs. Davis invited Helen Hollander to travel in the car to Florida with Mr. Davis; that the invitation was accepted and Helen Hollander became a guest passenger in the automobile for the trip; that on the trip Mr. Davis while driving the car along a paved public highway in Florida at a speed of seventy miles per hour approaching a curve attempted to pass other cars traveling in the same direction, when another car was approaching from the opposite direction; that in passing these cars he usurped the way of oncoming cars and in doing so either ran into another automobile, which was in its rightful place, or else, in attempting to escape contact with the other car, he lost control of the machine and it left the highway and turned over several times and landed in a ditch, and Helen Hollander was seriously injured.
In Florida one riding in an automobile as the guest of the owner may not recover damages against the owner for injuries received while riding as such guest unless the owner of the car, or the agent of the owner, was guilty of gross negligence or wilful and wanton misconduct in and about the management of the automobile. Florida Automobile Guest Statute, Chapter 18033, Acts 1937.
The only issue in the case is whether the complaint as last amended narrates a state of facts that measure to gross negligence or wilful and wanton misconduct. The test may be more nearly ascertained by defining in some sort ordinary negligence and gross negligence or wilful and wanton misconduct. Ordinary negligence is the failure to exercise that degree of care, precaution, and vigilance which an ordinarily prudent man would exercise, whereby and as a proximate consequence whereof the person or property of another is injured.
In construing the Florida Automobile Guest Statute the Supreme Court of Florida has held that the terms "gross negligence" and "wilful and wanton misconduct", as employed in the statute, "are synonymous", and has also held the contrary, but the cases agree that a "mere showing of ordinary...
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