Johnson v. Florida Brewing Co.

• Court: Florida Supreme Court
• Writing for the Court: STRUM, J.
• Citation: Johnson v. Florida Brewing Co., 90 Fla. 148, 105 So. 319 (Fla. 1925)
• Decision Date: 15 July 1925
• Parties: JOHNSON v. FLORIDA BREWING CO.

105 So. 319

90 Fla. 148

JOHNSON v. FLORIDA BREWING CO.

Florida Supreme Court

July 15, 1925

En Banc.

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Trespass on the case by Joe B. Johnson against the Florida Brewing Company. Judgment for defendant, and plaintiff brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Bailee may maintain action for damages to goods or chattels intrusted to his charge. A bailee has such a special property in the goods or chattels intrusted to his charge that he may maintain an action for damage thereto.

Plea of not guilty held not to deny ownership of chattel as alleged in declaration in action in trespass on case for wrongful injury to chattel. In an action in tesepass on the case wherein a recovery is sought for a wrongful injury to a chattel, the plea of 'not guilty' does not deny ownership of the chattel as alleged in the declaration.

COUNSEL

Hilton S. Hampton and John W. Bull, both of Tampa for plaintiff in error.

Jackson & Dupree, of Tampa, for defendant in error.

OPINION

STRUM J.

This is an action of trespass on the case instituted by plaintiff in error against defendant in error, wherein the former seeks to recover damages for the alleged negligence of the latter in causing a heavy truck, driven by an agent of defendant in error, to collide with a certain Buick automobile then being operated by an agent of plaintiff in error, by means whereof it is alleged that the Buick automobile was crushed and destroyed.

The declaration alleges that plaintiff in error, plaintiff below 'was the owner' of the Buick automobile referred to at the time of the alleged injury thereto. The defendant filed two pleas, one of 'not guilty,' and the other alleging contributory negligence on the part of the plaintiff. Issue was joined on such pleas.

On the day the case was set for trial, but before the trial had commenced, plaintiff moved to amend his declaration by inserting after the word 'owner' the words 'as bailee'; counsel for plaintiff stating to the court that he had just discovered in going over the cause with the plaintiff, preparatory for trial, that the ownership of plaintiff was that of a bailee. The motion was denied.

A jury was waived by agreement of the parties, and the cause was thereupon heard by the court. Plaintiff's evidence disclosed that two or three weeks prior to the collision complained of, plaintiff, who was a local dealer in Buick automobiles, had sold the automobile in question to one E. K. Nelson; that the latter had delivered the car to plaintiff on the day of the collision to have the same adjusted and some additional equipment installed; that, while plaintiff's agent had the car out adjusting it, the collision with defendant's truck occurred; that plaintiff had complete possession of the car, and was responsible to the owner for it. At that point in the testimony the court remarked: 'That testimony proves positively that he (the plaintiff) was bailee for Mr. Nelson.'

At the conclusion of plaintiff's evidence defendant moved the court to find a verdict for the defendant upon the ground 'that there was a material variance between the testimony of the plaintiff and the declaration; the declaration alleging Joe B. Johnson as the owner of the car, and the testimony disclosing that he was but a bailee of the car, and he therefore could not maintain said action in its present form.' The motion was granted. A motion for a new trial was denied, and final judgment entered for defendant. To that judgment this writ of error is taken.

A bailee has such special property in the goods or chattels intrusted to his charge that he may maintain an action for damage thereto. Any one having a special interest in the goods or chattels may maintain the action. Thus a factor, a broker, a warehouseman, a carrier, or any person employed to perform a service in respect to the goods or chattels of another with which he is intrusted for that purpose, may maintain an action for the recovery of them, or for any damage done them while he has charge thereof. Atlantic Coast Line R. Co. v. Partridge, 58 Fla. 153, 50 So. 634; Florida East Coast R. Co. v. Peters, 72 Fla. 311, 73 So. 151, Ann. Cas. 1918D, 121.

It has been held in such an action that the usual mode of pleading is for the declaration to allege ownership by the plaintiff and that any proof of ownership which will support the action of trespass will be sufficient under such an allegation to entitle the plaintiff to recover; that, the mere right of...