Morse Auto Rentals v. Papandrea, 65-212

Citation180 So.2d 351
Decision Date09 November 1965
Docket NumberNo. 65-212,65-212
PartiesMORSE AUTO RENTALS, a corporation, Appellant, v. Anthony PAPANDREA, Dunes Motel, Inc., a corporation, and Vincent Palmisano, Appellees.
CourtCourt of Appeal of Florida (US)

Weinstein & Silverman, Fred Patrox, Miami, for appellant.

Nichols, Gaither, Beckham, Colson & Spence and Robert Orseck, Miami, for appellee Papandrea.

Paul P. Meltzer and Murray Goldman, Miami, for appellees Dunes Motel, and Vincent Palmisano.

Before HENDRY, C. J., and TILLMAN PEARSON and CARROLL, JJ.

CARROLL, Judge.

This is an appeal by one of the defendants below from an adverse judgment in an automobile accident case. The plaintiff Anthony Papandrea sued Vincent Palmisano, Dunes Motel, Inc. and Morse Auto Rentals.

The automobile involved in the accident was leased by Morse to Dunes. Plaintiff was a passenger therein, in the capacity of a business invitee of Dunes. The driver, Palmisano, was employed by Dunes. Proceeding south on a highway known as U. S. 1 in Dade County, the driver was confronted with a vehicle which crossed in front of him. Just prior thereto the driver had been inattentive, having turned to converse with plaintiff. The driver avoided a collision by sudden braking and deceleration which threw the plaintiff against the windshield. Negligence of the driver was conceded. A partial summary judgment on liability was granted in favor of the plaintiff against the three defendants.

Morse and Dunes each had cross claimed against the other for indemnity. Summary judgment was granted in favor of Dunes against Morse for indemnity, to the limit of the liability insurance which Morse had contracted to provide for the benefit of Dunes. Morse's claim for indemnity was denied. Jury trial on damages resulted in a verdict for the plaintiff for $8,500 against all three defendants. Morse appealed and superseded the judgment.

The appellant Morse asserts, (1) it was error to grant summary judgment in favor of the plaintiff on liability, contending there was a triable issue as to contributory negligence of the plaintiff, and (2) that the trial court committed error in holding the automobile lease agreement entitled Dunes to indemnification from Morse. Those contentions of the appellant have been considered and are found to be without merit.

In contending there was a triable issue as to contributory negligence, appellant argues that the speed at which the automobile was being operated and the action of the driver in turning his head to converse with the plaintiff were such as to have prompted the plaintiff to protest, and that whether or not the plaintiff was contributorily negligent in that respect presented a triable issue.

The rule contended for by appellant was stated and explained in Bessett v. Hackett, Fla.1953, 66 So.2d 694, 698-699, where the Supreme Court, speaking through Justice Sebring, said:

'An exception to the general rule that a guest riding in an automobile is entitled to trust the vigilance and skill of the driver arises where the passenger knows, or by the exercise of ordinary and reasonable care should know, from the circumstances of the occasion, that the driver is not exercising that degree of care in the operation of the vehicle compatible with the safety of his passenger. 'In such case it becomes the duty of the guest to make some reasonable attempt through suggestion, warning, protest or other means suitable to the occasion, to control the conduct of the driver. However, before the duty to warn, protest, or take other such action suitable to the circumstances of the case, arises, it is necessary that the occupant should know or have reason to know that it is reasonably essential to his own safety to attempt to warn or to control the conduct of the driver and there must be sufficient time and opportunity for the guest to give warning or make protest...

To continue reading

Request your trial
8 cases
  • Allstate Ins. Co. of Canada v. Value Rent-A-Car of Florida, Inc., RENT-A-CAR
    • United States
    • Court of Appeal of Florida (US)
    • January 3, 1985
    ...the lease agreement stated that the lessor "shall provide liability insurance" but the lessor failed to do so, Morse Auto Rentals v. Papandrea, 180 So.2d 351 (Fla. 3d DCA 1965), cert. denied 188 So.2d 316 (Fla.1966). Recent cases have therefore stated that the exception applies whenever the......
  • Trujillo v. Chavez
    • United States
    • Supreme Court of New Mexico
    • August 29, 1966
    ...that we are not placing upon the passenger the duty to protect upon every instance of a driver's inattentiveness. Morse Auto Rentals v. Papandrea, Fla.App., 180 So.2d 351. We quote from McCormack v. Haan, 30 Ill.App.2d 311, 174 N.E.2d 206, what we think is the rule applicable '* * * The dri......
  • Corbett v. Seaboard Coastline R. Co., 78-98
    • United States
    • Court of Appeal of Florida (US)
    • September 18, 1979
    ...make protest before the happening of the accident . . ." See also Bessett v. Hackett, 66 So.2d 694 (Fla.1953); Morse Auto Rentals v. Papandrea, 180 So.2d 351 (Fla.3d DCA 1965). We hold that the evidence in the cases now before us was insufficient to bring into play the exception to the gene......
  • Truck Discount Corp. v. Serrano, FF-486
    • United States
    • Court of Appeal of Florida (US)
    • August 9, 1978
    ...Lewis, 161 So.2d 235 (Fla. 3d DCA 1964); Bordettsky v. Hertz Corporation, 171 So.2d 174 (Fla. 2d DCA 1965); Morse Auto Rentals, Inc. v. Papandrea, 180 So.2d 351 (Fla. 3d DCA 1965). In the instant case the lease agreement between Truck Discount and Davis specifically provided that Davis woul......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT