Lynch v. Walker

Decision Date24 June 1947
Citation31 So.2d 268,159 Fla. 188
PartiesLYNCH v. WALKER.
CourtFlorida Supreme Court

Rehearing Denied July 25, 1947.

Appeal from Circuit Court, Duval County; Claude Ogilvie judge.

Marks Marks, Holt, Gray & Yates, Harry T. Gray and Francis P Conroy, all of Jacksonville, for appellant.

Joseph M. Glickstein and Chester Bedell, both of Jacksonville, for appellee.

BARNS, Justice.

Upon trial the jury's verdict awarded plaintiff $3,500 and plaintiff entered a remitter of $1,000 to avoid a new trial and took final judgment against appellant-defendant for $2,500.

The plaintiff's declaration [1] was in one count of less than a page which was as follows:

'Come now the plaintiff in the above styled cause and sues the defendant for that, heretofore on to-wit: December 3, 1945, the defendant was the owner of a certain automobile which was then and there being operated and driven by one Charles Alonzo Hardesty with the knowledge and consent of said defendant in a Easterly direction upon West Ashley Street at the intersection of West Ashley Street and Pearl Street in the City of Jacksonville, Florida and at said time and place the said Charles Alonzo Hardesty so negligently and carelessly drove and operated said automobile that the same was forced and driven into and against the automobile of the plaintiff then and there being driven and operated by plaintiff by reason whereof the plaintiff was injured in and about his head, body, limbs and nervous system and by reason whereof plaintiff suffered great pain and anguish and will continue so to suffer for a long time, to-wit: permanently; and plaintiff was thereby rendered incapable of attending to his business and was obliged to and did incur certain medical expenses and thereby plaintiff's automobile was completely wrecked and demolished.

'Wherefore, plaintiff sues and claims $5,000 damages.' The three pleas (FN1) forming the issues were as follows:

1. That she is not guilty.

2. That at all times mentioned in said declaration the defendant was engaged in the business of renting automobiles for hire, to-wit: U-Drive-It automobiles, and that the said defendant prior to the time of the accident alleged in said declaration, in the usual course of her business, had hired and rented her said automobiles referred to in said declaration to one Charles Alonzo Hardesty, and that at the time and place of said accident referred to in said declaration the said automobile of this defendant was being operated by said hirer and not otherwise, and was being operated as a hired automobile under and by virtue of the license issued to this defendant for her said for hire car to-wit: License No. 2E-29 Florida 1945, which said license had not been revoked and was in full force, and that said automobile as a for hire license permitting the use and operation of said automobile on the public highways of the State of Florida as a for hire automobile.

3. That the negligence of the plaintiff proximately contributed to causing the accident, injury and damages complained of in this, to-wit: that the plaintiff carelessly and negligently drove, operated and propelled the automobile in which he was riding and by reason thereof was caused to and did come into collision with the automobile of this defendant.

The appellant-defendant has appealed and makes the following assignments of error (FN1):

1. The Court erred in entering its order dated September 4, 1946, sustaining the plaintiff's demurrer to defendant's amended second plea.

2. The Court erred in its order entered November 9, 1946, after rehearing, where it sustained plaintiff's demurrer to defendant's amended second plea.

The appellant bases his claim for reversal upon White v. Holmes, 89 Fla. 251, 103 So. 623, which in effect held that a bailor on an automobile for hire was not liable for the torts of the bailee. In this White v. Holmes case the ratio decidendi seems to be reflected in these words, '* * * There was no relation of master and servant or of principal and agent between the bailor and bailee, but a mere bailment for hire by one engaged in the particular business of hiring automobiles without drivers to others for their own purposes. * * * The rules of liability stated in Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975, L.R.A. 1917E, 715, and Southern Cotton Oil Co., v. Anderson, 80 Fla. 441, 86 So. 629, 16 A.L.R. 255, have reference to the facts of those cases showing a relation of employer and employee or principal and agent. * * *' White v. Holmes, 89 Fla. 251, 252, 103 So. 623, 624.

Warner v. Goding was a case where the appellant-defendant appealed a judgment against him and assigned as error that the evidence 'does not show that at the time of the accident resulting in the injury to the defendant in error the driver of the truck was acting within the scope of his employment and about his master's business. * * *' and this Court in reversing the case stated: 'In this state of the evidence the injury to defendant in error could not be said to have been caused by the servant of plaintiffs in error when acting within the scope of his employment, but was caused at a time when the servant was engaged in an act beyond the scope of his employment, and without the knowledge, acquiescence, or consent of the master, either express or implied. The master is not therefore liable, * * *.' Warner et al. v. Goding, 91 Fla. 260, 269, 270, 107 So. 406, 408, citing for authority Eppinger & Russell v. Trembly, 90 Fla. 145, 106 So. 879; White v. Holmes, 89 Fla. 251, 103 So. 623.

The Court in Warner v. Goding in reviewing the decisions of Southern Cotton Oil Co. case recites under the facts of that case it was for the jury to determine whether or not the driver of the car was at the time of the injury acting within the scope of his authority as agent for his employer or whether he had abandoned his master's business and stated: '* * * The majority opinion in Southern Cotton Oil Co. v. Anderson, has been interpreted by some as a departure from or modification of the doctrine of respondent superior by this court, but it was not so intended. * * *' Warner et al. v. Goding, 91 Fla. 260, 267, 107 So. 406, 408.

In Eppinger & Russell Co. v. Trembly 90 Fla. 415, 106 So. 879, 880, we reversed the trial judge for giving the following charge, to-wit: '* * * The important question is whether the defendant gave its employee, one Sweat, either express or implied permission to use the auto truck, to take it into his custody or control and operate it on the public highways, and it is immaterial whether the employee was using it in the defendant's business or the course of his employment as a servant of defendant, or in the personal business or personal pleasure of the employee. The kind of use of which the employee was using the auto truck--that is whether for defendant or himself--is not material.'

All the foregoing decisions seem to be consistent with each other and the general law of torts as of the time decided. However, on the appeals of Southern Cotton Oil Co. case there appear two statements which may have been dictum which are broader in scope than the holding in any of the foregoing decisions, which statements were as follows:

On the first appeal of the Southern Cotton Oil Co. case we stated: '* * * The principles of...

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