Hutchins v. Frank E. Campbell, Inc., 1568

• Citation: 123 So.2d 273
• Decision Date: 31 August 1960
• Docket Number: No. 1568,1568
• Parties: Kay HUTCHINS, Appellant, v. FRANK E. CAMPBELL, INC., Appellee.
• Court: Court of Appeal of Florida (US)

Page 273

123 So.2d 273

Kay HUTCHINS, Appellant, v. FRANK E. CAMPBELL, INC., Appellee.

No. 1568.

District Court of Appeal of Florida, Second District.

Aug. 31, 1960.

Rehearing Denied Oct. 3, 1960.

Jones, Adams, Paine & Foster, West Palm Beach, for appellant.

Miller, Cone, Owen, Wagner & Nugent, West Palm Beach, for appellee.

OVERSTREET, MURRAY W., Associate Judge.

This is a rather odd case. Originally, Ethel H. Hughes and Cyril A. Hughes, her husband, filed suit in the Circuit Court of Palm Beach County, Florida, against Frank E. Campbell, Inc., Kay Hutchins, and Booker T. Johns. The complaint alleged that on January 19, 1957, at the intersection of Dixie Highway and Hunter Street in West Palm Beach, Booker T. Johns, while the agent, servant or employee of Frank E. Campbell, Inc., and then and there acting in that capacity, negligently drove a motor vehicle owned by Kay Hutchins against a motor vehicle then and there owned and operated by Ethel H. Hughes, and caused damages and injuries to Ethel H. Hughs and her car. The defendant Booker T. Johns never could be located, or served with process, or produced to testify by deposition or otherwise. The defendants Kay Hutchins and Frank E. Campbell, Inc. filed answers. The defendant, Kay Hutchins also filed cross-claim against cross-defendant, Frank E. Campbell, Inc. During the progress of the case, the plaintiffs, Ethel H. Hughes and Cyril A. Hughes, were paid off for the apparent sum of $30,000, and the case was dismissed as to them, without prejudice to the rights of cross-claimant and cross-defendant to further litigate their differences. Later, cross-claimant and cross-defendant stipulated that their case might be tried by the Court without a jury, and that cross-claiment would be entitled to recover $15,000 or nothing. In the cross-claim it was alleged that on January 18, 1957, a Chrysler automobile owned by Frank E. Campbell, Inc., became disabled on Ardmore Road in West Palm Beach, some distance from the place of business of cross-defendant; that on January 19, 1957, John W. Hutchins, Vice-President of Frank E. Campbell, Inc., acting on behalf of said corporation, directed Dick Vogel and Booker T. Johns, employees of the corporation, to proceed in the automobile owned by Kay Hutchins to the place where the company Chrysler was standing in a disabled condition, to make temporary repairs to the Chrysler, and on the way back to the company's place of business, to return Kay Hutchins' car to her at her residence at 210 Miramar Way, West Palm Beach; that after repairing the company car, and during the course of the journey from Ardmore Road to the residence of Kay Hutchins, the accident alleged in plaintiff's complaint occurred; that the Kay Hutchins car had been entrusted or bailed by Kay Hutchins to Frank E. Campbell, Inc.; that Booker T. Johns was using and driving the Kay Hutchins car for the use and in the course of business for Frank E. Campbell, Inc. at the time of the accident; that the negligent and careless operation of the Kay Hutchins automobile was the cause of the collision with the Hughes car and created the damages and injuries for which the Hughes brought suit, and that Kay Hutchins should recover her damages from Frank E. Campbell, Inc. Cross-defendant filed answer denying all of the allegations of the cross-claim. John W. Hutchins was the husband of Kay Hutchins. Eventually the cross-claim was tried by the judge without a jury, and on June 18, 1959, the Court entered final judgment in favor of cross-defendant, Frank E. Campbell, Inc., and against cross claimant, Kay Hutchins. From said judgment, the cross-claimant has appealed.

There does not appear to be any question about the negligence of Booker T. Johns in the operation of Kay Hutchins' car being the proximate cause of the accident and the damages and injuries sustained by the original plaintiffs.

In their brief, counsel for appellant have stated the point involved as follows:

'Whether an owner of an automobile who becomes liable to an injured person by reason of the negligence of one driving the owner's automobile with the owner's knowledge and consent is entitled to indemnity from the employer of the said driver where the automobile was bailed to said employer and where the driver-employee was acting within the scope of his employment at the time the negligent act was committed?'

and in their brief, appellee has stated the point involved as follows:

'Does the record contain sufficient competent evidence to support the judgment of court trying the case without a jury?'

It seems to us that before we can determine the question as stated by appellee, we shall have to consider some of the matters involved in the question as stated by appellant. For example, was there a bailment of her car by Kay Hutchins to Frank E. Campbell, Inc.? And, if so, was there still a bailment by Kay Hutchins to Frank E. Campbell, Inc. at the time of the accident? And, if so, was Booker T. Johns acting within the scope of his employment by Frank E. Campbell, Inc. at the time of the accident?

The testimony presented at the trial by cross-claimant shows that on January 18 and 19, 1957, John W. Hutchins was Vice-President and General Manager of Frank E. Campbell, Inc; that one of the perquisites of his job was the daily use of a company car to transport himself from work at 117 Worth Court...