Orefice v. Albert
| Decision Date | 01 July 1970 |
| Docket Number | No. 39037,39037 |
| Citation | 237 So.2d 142 |
| Parties | Margaret L. OREFICE, as Administratrix of the Estate of Michael Betz, a minor, deceased, and Bonnie Betz, individually and as parent and next friend of Michael Betz, a minor, deceased, Petitioners, v. John W. ALBERT, Respondent. |
| Court | Florida Supreme Court |
Mallory H. Horton, of Horton & Schwartz, and Wheeler & Evans, Miami, for petitioners.
Dixon, Bradford, Williams, McKay & Kimbrell, and A. H. Toothman, Miami, for respondent.
By petition for certiorari, we have for review a decision of the District Court of Appeal, Third District (Orefice v. Albert, 226 So.2d 15), which allegedly conflicts with prior decisions of this Court and District Courts of Appeal.
These two cases arose when decedent Michael Betz, a minor, was killed in an airplane crash. The pilot of the airplane was Orlo Betz, father of Michael, and co-owner of the airplane with respondent Albert. The negligence of Orlo Betz and the nonexistence of active negligence by Albert are conceded. Petitioner Orefice is the Administratrix of the estate of Michael Betz. Petitioner Bonnie Betz is the mother of decedent Michael Betz, and the lawful wife of decedent Orlo Betz; she sued respondent for wrongful death individually and as parent and next friend of Michael Betz.
The complaints in the trial court contended that respondent Albert, as co-owner of the airplane with Michael Betz, was vicariously liable in tort for the death of Michael Betz. The trial court entered a summary final judgment in respondent's favor in both these cases, concluding as law that an airplane is not a dangerous instrumentality, and also that a co-owner of an airplane who himself is innocent of active negligence is not vicariously liable for the negligent operation of the plane by another co-owner. In the mother's suit, the trial court entered summary final judgment for respondent, concluding that the surviving parent was not entitled to recover because at the time of death the child was in the custody and control of the father with knowledge and consent of the mother.
The judgments of the trial court were appealed to the District Court of Appeal, Third District, which affirmed the judgments in both suits. Orefice v. Albert, 226 So.2d 15 (Fla.App.3d, 1969).
This Court issued writ of certiorari pursuant to F.A.R. 2.1, subd. a(5)(b), 32 F.S.A. and assumed jurisdiction to examine and resolve apparent conflicts with appellate decisions by this Court and other District Courts of Appeal. Shattuck v. Mullen, 115 So.2d 597 (Fla.App.2d, 1959); May v. Palm Beach Chemical Co., 77 So.2d 468 (Fla.1955); Hertz Corp. v. Dixon, 193 So.2d 176 (Fla.App.1st, 1966); and Ward v. Baskin, 94 So.2d 859 (Fla.1957).
Three questions must be answered. These are:
Whether an airplane is a dangerous instrumentality under Florida law?
Whether a parent may sue in her own right against the non-negligent co-owner of a dangerous instrumentality for a tort against her child caused by the negligence of the other parent who is also a co-owner?
Whether suit may be maintained against the non-negligent co-owner on behalf of a child whose death resulted from negligence of his parent who also was co-owner of the dangerous instrumentality?
This Court previously stated by dictum that in Florida an airplane is a dangerous instrumentality. In Williams v. Surf Properties, 88 So.2d 299 (Fla.1956), where it was held that a lawn chair is not a dangerous instrumentality, this Court said:
'Dangerous instrumentalities have been defined as those which by nature are reasonably certain to place life and limb in peril when negligently constructed, such as airplanes, automobiles, guns and the like.' (p. 301)
District Courts of Appeal, Second and Third Districts, in the case Sub judice and in Shattuck v. Mullen, Supra, have held that an airplane is a dangerous instrumentality. This is a correct statement of the law.
The co-owner's liability to a nonowner third person grows out of his obligation to have an airplane, dangerous in its use, properly operated when it is by his consent or authority being operated. He is liable only if the operator was negligent under the circumstances. See 3 Fla.Jur., Automobiles, etc., § 90.
The liability of owners of motor vehicles for their misuse by other persons while driving was initially delineated in the leading cases of Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975 (1917) and Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). In both cases, this Court stated that:
(73 Fla. at 441, 74 So. at 978, 80 Fla. at 448--449, 86 So. at 632)
In the Anderson case, it was noted that the legal concept of dangerous instrumentalities originally included fire, floods, water and poisons, then was expanded to include firearms and explosives, then later was expanded again to include locomotives and other vehicles. Additional grounds of liability were noted, when this Court called attention to the fact that enactment of statutes regarding vehicle registration, condition, minimum ages for operators, and other requirements, evinced a legislative awareness of the inherent dangerousness of motor vehicles while in use. The doctrine of respondeat superior was evolved in these and later cases, grounded on the theory that since a vehicle must be licensed to its owner, the owner must stand responsible for injuries resulting from misuse while the vehicle is operated with the owner's knowledge or express or implied consent.
In Atlantic Food Supply Co. v. Massey, 152 Fla. 43, 10 So.2d 718 (1942), this Court stated:
(10 So.2d 720) (Boggs et al. v. Butler, 129 Fla. 324, 176 So. 174, 176)
Also, see Anderson v. Southern Cotton Oil Co., Supra.
In Weber v. Porco, 100 So.2d 146 (Fla.1958), this Court clarified the nature of the respondeat superior relation in dangerous instrumentality cases, stating:
'When one permits another to operate his automobile under his license, he becomes as a Matter of law the principal and the driver becomes his agent for the purpose.' (p. 149) (Emphasis supplied)
The meaning of implied consent, as evolved in our case law, was examined by this Court in Susco Car Rental System of Florida v. Leonard, 112 So.2d 832 (1959), and defined as follows:
'(T)he logical rule, and, we think, the prevailing rationale of the cases, is that when control of such a vehicle is voluntarily relinquished to another, only a breach of custody amounting to a species of conversion or theft will relieve an owner of responsibility for its use or misuse.' (pp. 835, 836)
Accord, Thomas v. Atlantic Associates, Inc., 22l So.2d 100 (Fla.1969).
In the case Sub judice, the dangerous instrumentality involved was an airplane, and not an automobile. In view of the fact that an airplane, like an automobile, is a dangerous instrumentality when in operation, and in view of the fact that Ch. 330, F.S.A., reflects a specific policy by the State of Florida to license and otherwise see after aircraft safety, we conclude that the rules of law enunciated to govern owners' liability for automobiles when in operation also govern the liability of owners of airplanes while in operation.
The second question to decide is whether a mother may,...
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