Ivey v. National Fisheries, Inc., 68-101

Citation215 So.2d 74
Decision Date05 November 1968
Docket NumberNo. 68-101,68-101
PartiesElmore IVEY, Appellant, v. NATIONAL FISHERIES, INC., a Florida corporation, and John Edward Ward, Appellees.
CourtCourt of Appeal of Florida (US)

Prunty, Olsen & Slotnick, Miami, for appellant.

Granat, Rosenblatt & Roemer, Horton & Schwartz, Miami, for appellees.

Before CHARLES CARROLL, C. J., and BARKDULL and HENDRY, JJ.

PER CURIAM.

The plaintiff below has appealed from a final summary order which dismissed the corporate defendant from liability. The cause of action arose from an auto collision involving the car in which the plaintiff was riding, and a truck owned by the defendant.

The night before the collision, a handy man from National Fisheries, John Edward Ward, was instructed to use the truck to make a delivery after the conclusion of his work, go home, and return with the truck the next morning for work at 7:00 o'clock. Ward did, in fact, make the delivery with the truck and went to an acquaintance's house the same evening. The next morning, he awoke at 6:30 and started to return to work at National Fisheries' business premises. However, he stopped at a local bar in the immediate vicinity of his place of employment and had a few beers with friends. He left the bar between 9:00 and 10:00 o'clock in the morning with two other people, who were unidentified. Ward, feeling that he was too intoxicated to drive properly, asked one of the unidentified persons to drive the truck for him. It was while the truck was being driven by this person that the collision with the plaintiff occurred. Summary judgment was granted in National's favor, dismissing it from liability. By this appeal, we are called upon to determine the liability of an employer for the acts of an employee who deviated from his instructions after having received permission to operate an auto for a combined business and personal purpose.

Before examining the facts at bar, we feel that attention is best focused on the rationale which underlies the development of the 'dangerous instrumentality' doctrine in our state.

The dangerous instrumentality doctrine originally developed as a common law means for imposing liability upon the keeper of a dangerous instrument or agency, without any necessity of showing negligent conduct on the part of the defendant. Fletcher v. Rylands, L.R. 1 Ex., 265 (1866), affirmed, L.R. 3 H.L.Cas. 330 (1868). Florida has incorporated a modified version of the dangerous instrumentality concept into the field of agency by a series of cases which hold a master liable for the misuse of a dangerous instrumentality entrusted to a servant; moreover, such liability is imposed without reference to the principle of respondeat superior. Rather, the general rule, as first enunciated by the Supreme Court in Lynch v. Walker, 159 Fla. 188, 31 So.2d 268, is:

'When an owner authorizes and permits his automobile to be used by another, he is liable in damages for injuries to third persons caused by the negligent operation so authorized by the owner.' Id., 31 So.2d at 271.

The cases which have developed the law governing an employer's vicarious liability for his employee's negligent use of the employer's auto are uniform in at least one respect: they recognize that such an employer is obligated to the public for torts committed by his employee through negligent use of the auto. Moreover, the employer is not relieved of this obligation when his employee deviates from specific instructions. Rather, once the consent of the employer has been given which allows an employee control and custody of the auto, even for the employee's personal mission, that employer continues to carry his obligation to the public for acts of negligence resulting therefrom. The leading case in this area is Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 16 A.L.R. 255. That case favorably cited the following holding which had been stated in Barmore v. Vicksburg, S. & P.R. Co., 85 Miss. 426, 38 So. 210, 70 L.R.A. 627:

'The servant is empowered by the master to discharge certain duties, and it is incumbent upon him to exercise the same care and attention which the law requires of the master; and, if that care and attention be about the management and custody of dangerous...

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11 cases
  • Jackson By and Through Whitaker v. Hertz Corp.
    • United States
    • Florida District Court of Appeals
    • December 4, 1990
    ...customer permitted to drive it after he picked him up several days later and several hundred miles away. Accord Ivey v. National Fisheries, Inc., 215 So.2d 74 (Fla. 3d DCA 1968) (employer who permitted truck driver to use vehicle for delivery only between home and work liable for driving by......
  • Rouse v. Greyhound Rent-A-Car, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 13, 1975
    ...112 So.2d 832, 835-836 (Fla.1959); accord, Thomas v. Atlantic Associates, Inc., 226 So.2d 100 (Fla.1969); Ivey v. National Fisheries, Inc., 215 So.2d 74 (Fla.App.1968). The point which Manheim, Lakeland and St. Paul contest is the lower court's conclusion of law that St. Paul was jointly pr......
  • Castillo v. Bickley
    • United States
    • Florida Supreme Court
    • September 28, 1978
    ... ... Harfred Auto Imports, Inc. v. Yaxley, 343 So.2d 79 (Fla. 1st DCA 1977); Patrick v ... McGraw, 152 So.2d 486 (Fla. 1st DCA 1963); Ivey v ... National Fisheries, Inc., 215 So.2d 74 (Fla. 3d ... ...
  • Kobetitsch v. American Mfrs.' Mut. Ins. Co., 80-275
    • United States
    • Florida District Court of Appeals
    • October 14, 1980
    ...Boggs v. Butler, 129 Fla. 324, 176 So. 174, 176 (1937). Chase & Co. v. Benefield, 64 So.2d 922 (Fla.1953), and Ivey v. National Fisheries Inc., 215 So.2d 74 (Fla. 3d DCA 1968) were cited both below and in this court for the proposition that even the most extreme violations by an employee of......
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