Mullis v. City of Miami
Citation | 60 So.2d 174 |
Parties | MULLIS et vir. v. CITY OF MIAMI. |
Decision Date | 01 August 1952 |
Court | United States State Supreme Court of Florida |
Nichols, Gaither & Green, Miami, for appellants.
Walton, Hubbard, Schroeder, Lantaff & Atkins, J. W. Watson, Jr., S. O. Carson and John H. Wahl, Jr., all of Miami, for appellee.
This is an appeal from a judgment of non-suit entered in proceedings below wherein Mr. and Mrs. Mullis, appellants here, sought to recover their respective damages for injuries suffered by Mrs. Mullis when she stepped into a hole caused by an uncovered monument marker in the middle of a public street in the City of Miami, Florida. At the close of plaintiffs' case, the trial judge indicated that he would grant defendant's motion for a directed verdict, and the plaintiffs thereupon took a voluntary non-suit. Thereafter, motion for new trial was denied, judgment for non-suit entered, and this appeal followed, pursuant to the provisions of Section 59.05, Florida Statutes, F.S.A.
The plaintiffs' declaration was in two counts to allege the respective damages of Mr. and Mrs. Mullis; however, the cause of action alleged in each count was identical, to wit: that the City of Miami did '* * * so negligently remove or permit to be removed, the covering of a certain indenture of the said street described as an iron monument marker, and did so negligently fail to replace the said cover of the said indenture in the said street and did further negligently fail to make reasonable inspections to ascertain the absence of said covering that as a result thereof a hole was present in said street approximately 5 inches wide and 5 inches deep and that the said hole had existed for a long period of time and the defendant knew, or by exercise of reasonable care should have known, of the existence of said condition and when the said defendant had for a long period of time prior thereto, wrongfully, carelessly and negligently suffered and permitted the said street to remain in a dangerous and unsafe condition.'
The plaintiffs adduced evidence to prove that the monument marker had been installed by the city in a city street; that the cover thereof had been absent for some years prior to the accident of Mrs. Mullis; and that the absence of the cover resulted in a hole in the street of the dimensions alleged. It was also shown that Mrs. Mullis had moved to Miami from Jacksonville only two weeks prior to the accident and had been on the street involved only once prior thereto. The plaintiffs did not, however, offer any evidence that the city had removed the cover and failed to replace it. The trial judge was of the opinion that proof of these allegations was necessary to a recovery by plaintiffs under the cause of action alleged by them and that, in the absence of such proof, a verdict should be directed for defendant. We cannot agree with the trial judge in this respect.
It appears to be a well established rule that where acts of negligence are pleaded and established by such proof as will render defendant liable, it is not a material variance that other acts of negligence were alleged but not proved, if such allegations could not have misled defendant. 65 C.J.S., Negligence, § 202, page 952; Holstun & Son v. Embry, 124 Fla. 554, 469 So. 400, citing 45 Corpus Juris, Negligence, page 1127. We do not understand that the defendant is here contending that it was misled; and indeed, the record shows that in the opening statement to the jury by counsel for defendant it was stated that The declaration was not attacked on the ground of duplicity, so that the duplicity, if any, in the declaration must be deemed to have been waived. Blue v. Staten, 84 Fla. 274, 93 So. 686; Florida East Coast Ry. Co. v. Anderson, 110 Fla. 290, 148 So. 553.
On the general question of the defendant's liability, we think there was sufficient testimony to require the submission of this question to the jury. 'While a city is not an insurer of the motorist or the pedestrian who travels its streets and sidewalks, City of St. Petersburg v. Roach, 148 Fla. 316, 4 So.2d 367, it is responsible, of course, for damages resulting from defects which have been in existence so long that they could have been discovered by the exercise of reasonable care, and repaired.' City of Jacksonville v. Foster, Fla., 41 So.2d 548, 549. See also City of Miami Beach v. Quinn, 149 Fla. 326, 5 So.2d 593; City of Tampa v. Easton, 145 Fla. 188, 198 So. 753; Barth v. City of Miami, 146 Fla. 542, 1 So.2d 574; City of Daytona Beach v. Humphreys, Fla., 53...
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