Morgan v. Collier County Motors, Inc.

• Decision Date: 16 December 1966
• Docket Number: No. 6938,6938
• Parties: Virginia B. MORGAN, individually, and Virginia B. Morgan, as Administratrix of the Estate of Edward Lee Morgan, Deceased, Appellant, v. COLLIER COUNTY MOTORS, INC., Appellee.
• Court: Florida District Court of Appeals

Page 35

193 So.2d 35

Virginia B. MORGAN, individually, and Virginia B. Morgan, as Administratrix of the Estate of Edward Lee Morgan, Deceased, Appellant, v. COLLIER COUNTY MOTORS, INC., Appellee.

No. 6938.

District Court of Appeal of Florida, Second District.

Dec. 16, 1966.

B. Clarke Nichols, of Carroll, Vega, Brown & Nichols, Naples, for appellant.

Julian D. Clarkson, of Henderson, Franklin, Starnes & Holt, Ft. Myers, for appellee.

LILES, Judge.

Appellant, plaintiff below, brings this appeal from a final judgment entered by the trial court in favor of appellee Collier County Motors, Inc., defendant below.

Plaintiff brought an action, against defendant Collier County Motors and one Kermit Graham seeking damages for the alleged wrongful death of her son as a result of the negligent operation of an automobile by Graham. Graham is not a party to this appeal. Plaintiff's theory of recovery was that defendant was vicariously liable as the owner of the automobile driven by Graham and as Graham's employer, it being alleged that Graham was operating within the scope of his employment at the time of the accident.

The case was tried twice before a jury. At the conclusion of plaintiff's case in the first trial, the trial court directed a verdict for defendant on the issue of ownership. The trial, however, resulted in a mistrial. The trial court in denying defendant's motion for a directed verdict on the employer-employee issue ordered that its ruling as to ownership would carry over to the next trial.

The issue of whether Graham was operating within the scope of his employment at the time of the accident was tried at the second trial. The jury returned a verdict against defendant. Pursuant to defendant's motion, the trial judge entered a judgment notwithstanding the verdict and ordered that should the judgment be reversed on appeal, a new trial would be granted on the issue of damages unless plaintiff agreed to a remittitur.

On appeal, this Court is asked to determine whether it was error for the trial court to direct a verdict in defendant's favor on the issue of ownership and whether it was error to enter a judgment notwithstanding the verdict in defendant's favor as to the issue of Graham's status as defendant's employee at the time of the accident. We will deal first with the issue of ownership.

The evidence reflects that Graham was employed by defendant as an automobile salesman. He purchased the automobile in question from defendant as a demonstrator. The title certificate to the automobile was issued in Graham's name, and he carried collision insurance on the car. The purchase was financed through a commercial financing institution on very favorable terms, and if Graham sold six new cars in any one month, defendant would make the current payment for that month. The automobile would be sold from defendant's sales lot after six months, but Graham would neither receive any profit nor bear any loss resulting from the transaction. Graham would get no commission from the sale of any demonstrator, whether his or another salesman's. Defendant held a power of attorney, executed by Graham when the automobile was purchased, enabling defendant to sell the automobile. Graham bought the license tag for the car and furnished his own gasoline and oil. His use of the demonstrator was unrestricted within a radius of 150 miles. Permission from defendant and the financing institution was required to take the automobile beyond that distance.

We agree with plaintiff that naked legal title does not determine ownership in considering tort liability but that this ownership is determined by the party having the beneficial interest with control and authority of the automobile's use. Wilson v. Burke, 53 So.2d 319 (Fla.1951); Palmer v. R. S. Evans, Jacksonville, Inc., 81 So.2d 635 (Fla.1955); Cox Motor Co. v. Faber, 113 So.2d 771 (D.C.A.Fla.1959). We do not agree, however, that the evidence presented shows beneficial ownership in defendant company.

Nichols v. McGraw, 152 So.2d 486 (D.C.A.Fla.1963), involves a factual situation similar to the instant case. There McGraw, an automobile salesman employed by Gerlach Motor Company, was required to purchase a new automobile in order to demonstrate the cars sold by his employer. The company sold the demonstrator to McGraw at cost and helped arrange a financing plan not normally available to the general public. The company also furnished one of its dealer's tags to McGraw for his unrestricted use. The Court, in affirming summary judgment for Gerlach, stated in part that:

'As to the ownership of the automobile driven by McGraw and involved in the accident, it is not controverted that prior to the date of the accident an application for title duly executed by Gerlach as seller and McGraw as purchaser was filed with the Tax Collector of Santa Rosa County nine days prior to the accident. This record poses no question as to subterfuge--McGraw bought the car, operated same in the business of Gerlach and for his own personal use. * * *' 152 So.2d at 490.

Here, Graham purchased the automobile, title thereto was issued in his name, and he used the automobile both in defendant's business and for his own personal use. The only restriction upon his use was the requirement that he obtain permission from defendant and the financing institution to take the automobile beyond a 150-mile radius (a common provision of commercial financing transactions). Defendant did not otherwise limit or restrict Graham's use of the vehicle. In view of the principles discussed above, it would appear that Graham enjoyed the beneficial as well as the legal ownership of the automobile in question.

A defendant's motion for a directed verdict should be...