Malone v. Costa

• Decision Date: 17 July 1942
• Citation: 9 So.2d 275,151 Fla. 144
• Court: Florida Supreme Court
• Parties: MALONE v. COSTA et al.

9 So.2d 275

151 Fla. 144

MALONE v. COSTA et al.

Florida Supreme Court

July 17, 1942

Appeal from Circuit Court, Escambia County; L. L Fabisinski, judge.

Coe &amp McLane, of Pensacola, for appellant.

Yonge Beggs, & Carter, of Pensacola, for appellees.

CHAPMAN, Justice.

On September 13 1940, Mrs. Manuela Costa, while riding as a passenger in a taxicab in the City of Pensacola, Florida, sustained personal injuries caused by the negligent operation of the taxicab. Mrs. Manuela Costa and husband, Jose Costa, brought suit against the taxicab company and the declaration was in two counts Mrs. Manuela Costa in the first count claimed damages for her personal injuries, while in the second count her husband claimed damages for the loss of consortium, etc. The lower court entered a judgment for Mrs. Manuela Costa in the sum of $500 and a judgment for Jose Costa for the loss of consortium, etc., in the sum of $1,000.

The City of Pensacola by ordinance required taxicab operations, prior to the granting of a license to transact business in said City to either procure liability insurance or to subscribe to a plan of insurance created by the terms and provisions of the ordinance whereby funds were paid by taxicab companies to a trustee to be used for the payment of the claims of the Costas and others similarly situated.

Section 2 of Ordinance No. 41 of the City of Pensacola provides that persons operating cabs for hire must file in the office of the Clerk of the City an insurance policy to protect passengers riding for hire. The pertinent provisions of the Ordinance prescribing the conditions of the policy of insurance are viz:

'* * * and conditioned to indemnify passengers and the public for damages or injuries to persons or property or for the death of any person or persons resulting from or caused by the carelessness, negligence or default of the owner, or driver, of such motor vehicle, their servants, agents or employees, or resulting from the defective construction or equipment of such vehicles, which said policy of insurance shall be in the following principal sums:

(b) Personal injury, one person in any single accident 1,000.00, maximum,

(c) Personal injury, more than one person in any single accident, subject to the limitation of $1,000.00 for an injury to a single person. 2,000.00 maximum,

and which said policy shall cover each and every motor vehicle operated by said person, firm, or corporation, as aforesaid * * *'.

Provisions of Section 3-D of Ordinance No. 41 material to a decision of the questions presented are viz:

'That said trust fund shall be used for the payment of claims for personal injury or death or property damage incurred against any subscriber to said co-insurance plan; provided, however that no claim shall be paid out of said fund until after the same has been reduced to judgment in some competent court, or upon a compromise agreement entered into by the claimant and the attorney for said trustee or trustees, and that no claim shall be paid in excess of the following limits:

(a) Property damage $1,000.00 maximum,

(b) Personal injury, one person in any single accident. $1,000.00 maximum,

(c) Personal injury, more than one person in any single accident, subject to the limitation of $1,000.00 for an injury to a single person. $2,000.00 maximum,

'Provided further that no claim shall be paid which did not arise within the corporate limits of the City of Pensacola, * * *.'

The subsequent amendments to Ordinance No. 41 as made by said City do not materially alter or affect the questions presented on this record for adjudication. The trustee offered to pay $1,000 out of the co-insurance fund as full settlement of the two judgments. Writs of garnishment were sued out on the aforesaid judgments and served on the trustee, William Malone, and in response thereto the aforesaid trustee filed an answer and tendered the sum of $1,000, which said amount was paid into the registry of the court to be applied pro rata as full payment of the two judgments in the total sum of $1,500.

On a motion of the plaintiffs below to require the trustee-garnishee to amend his answer and for disbursement of the 1,000 paid into the registry of the court, the lower court ruled that the $1,000 tendered should be credited pro rata on the two judgments and declined to enter an order that the $1,000 was payment in full of the two judgments totaling $1,500. Final judgments were entered and the trustee-garnishee...