Orme v. Burr

• Decision Date: 03 May 1946
• Citation: 25 So.2d 870,157 Fla. 378
• Parties: ORME v. BURR. BURCH v. SAME.
• Court: Florida Supreme Court

25 So.2d 870

157 Fla. 378

ORME v. BURR.

BURCH v. SAME.

Florida Supreme Court

May 3, 1946

Rehearing Denied May 22, 1946.

Appeals from Circuit Court, Dade County; Ross Williams judge.

Knight, Underwood & Cullen and H. H. Taylor, all of Miami, for appellants.

McKay, Dixon &amp DeJarnette, of Miami, for appellee.

BROWN, Justice.

These two appeals are the outgrowth of litigation involving a most lamentable tragedy, in which four men lost their lives. In Coral Gables Florida, at 2 o'clock a. m., March 4, 1941, a Mercury Coupe, 1941 model, owned and allegedly operated by Andrew A. Crawford, ran into a stout tamarind tree located in the parkway of Alhambra Circle, a two-way drive or street in said city, resulting in the death of the four occupants thereof: Andrew A. Crawford, who was killed instantly, and Friedhof Erickson, James Wood Burch, and Gardner P. Orme, who died within a few hours without regaining consciousness.

These two suits were instituted separately by Violet Elder Orme, a widow of Gardner P. Orme, deceased, and Elsie Nickles Burch, (now Mrs. Harold Day) the widow of James Wood Burch, deceased, and were tried together, upon the same evidence, each of the declarations alleging that the deaths of each of the two husbands were occasioned by the wanton and reckless conduct and the gross negligence of Crawford. The defendant in each case was the administrator c. t. a. of the estate of Crawford. To these declarations the defendant entered pleas of not guilty. The two causes, thus consolidated and tried, resulted in verdicts adverse to the plaintiffs and the entry of final judgment in favor of the defendant.

Without any substantial disagreement the testimony, all of which was introduced by the plaintiffs, showed the following to be the facts and circumstances surrounding the accident:

Crawford, Burch and Orme were residents of Washington, D. C., and were in Miami, Florida, attending the motor-boat regatta held early in 1941. Commander Erickson, a resident of Coral Gables, was also attending the regatta. During the evening of March 3, 1941, the above named four persons, together with others, were in attendance at the Rod and Reel Club in Miami Beach, Florida. Between 12:30 and 12:50 a. m., March 4, 1941, Crawford and Burch, in company with one Scott, left the said Club enroute to a downtown hotel in Miami where Scott left the party. Erickson, Orme, and one McKenzie left the said Rod and Reel Club in McKenzie's car and went to Tommy Hand's Bar in Coral Gables where they were later joined by Crawford and Burch who went there in Crawford's car. At about 2:00 a. m. Crawford stated he would take Erickson to his home (at number 739 Alhambra Circle, Coral Gables) and then would take Orme back to his hotel in Miami; whereupon, Crawford, Erickson, Burch, and Orme left Tommy Hand's Bar.

Landahl, a Coral Gables policeman, at about 2:00 o'clock a. m., was patrolling his beat at or near the corner of Alhambra Circle and Ponce de Leon Boulevard and noticed a car proceeding west on Alhambra Circle. The car crossed the Boulevard (a stop street) without stopping, and as it crossed he further noticed that it commenced to pick up speed and continued to pick up speed as it proceeded west and that it crossed Le Jeune Road (another stop street) without stopping. A short distance beyond that crossing he lost sight of the car. It was a very still night, and Landahl testified that he heard the whirring of the motor and the whining of the tires as the car continued to pick up speed as it went west. Landahl heard the crash, although it was about half a mile away. It sounded like 'the smack of a door.'

Witness Miller, who was asleep in his house, in an upstairs bedroom, at 645 Alhambra Circle, was awakened by the crash, looked out the window, saw the smashed car, and telephoned the police. The telephone call was received by the police at 2:06 a. m., who responded very promptly.

The distance from Ponce de Leon Boulevard to the place of the crash was about four and a half blocks. Alhambra Circle is a two-way drive with a parkway down the center, with a 16 ft. wide pavement on either side, and at a point 125 feet east of the tamarind tree with which the car collided there was a slight curve to the north of about 27 degrees. At a point from 66 to 71 feet east from the tree there was a stationary reflector about 10 inches in circumference, set on a post about four and a half feet high, which reflected red light noticeable at a distance of about 300 feet to the east. The tamarind tree was on the parkway seven feet from the edge of the road, the diameter of the tree being slightly less than 12 inches. The roots extended 12 to 15 feet, of whorley grain structure. To strike the tree, the car had to deviate about 26 feet from a straight line of travel on the paved road.

The police found that the car had left the payment and rolled on the grass of the parkway for a distance of 45 feet. The grass had been dug up by a spinning or whirling motion of the wheel and tires, from pressure to the left, but there were no tire or skid marks or other indications that the driver had applied the brakes before the crash, either on the pavement or on the grass. The car was completely off the pavement when it hit the tree head on, and the right rear wheel was 14 inches from the edge of the pavement. The tree was knocked to the westward and the large roots were jerked to the earth's surface on the east side, and leaves were on the car. The car was completely demolished. The bumper indicated that it had struck the tree some 6 or 8 inches to the left of center. The ends of the bumper almost met in a hairpin around the tree, and the steering wheel post was pushed straight up to the top of the car. Its left side was crumpled, its frame bent about the center, and its body wrinkled and rumpled. The engine was driven back to where the driver's feet would normally be, and the left door was open 12 or 14 inches. There were four men in the car. One, the driver (Crawford), was dead, hanging from the car with his feet caught in the foot pedals and his head almost touching the ground. Two of the others were in the front seat, one on top of the other with his feet and legs back of the front seat, and the fourth was in the rear on the floor. The arms, ribs, and legs of all were broken. Orme died a few minutes after reaching the hospital. Later Erickson died, and at 7:15 a. m. Burch died. None of them ever regained consciousness. There were no eye witnesses to the accident except these four men who died as the result of it.

There was no evidence that any of the occupants of the car were intoxicated or under the influence of intoxicating liquors.

If the declarations in these two cases had alleged that the persons killed in the accident were passengers of the driver of the car who had paid for their transportation, thus creating the carrier-passenger relationship between the parties, it would only have been necessary to allege and prove simple negligence on the part of the driver as being the proximate cause of the injuries and deaths. Had such been the case, the evidence above reviewed, which was not rebutted, would have been sufficient to sustain verdicts for the plaintiffs under the presumption of negligence arising from the application of that principle of the law of evidence known as the 'resipsa loquitur' rule. This Latin phrase is generally interpreted to mean in English, 'The thing itself speaks,' or 'the transaction speaks for itself.' Whether that rule of law is applicable to these cases, brought under what is known as our Florida guest statute, wherein each of the declarations charge that the deaths of the respective husbands of the plaintiffs was caused by 'the wanton and reckless conduct and the gross negligence' of the driver of the car, we will presently discuss.

Chief Justice Erle's statement in the famous old English case of Scott v. The London & St. Katherine Docks Co., 2 H. & O., 596, has been generally regarded as an accurate definition of the doctrine from which the rule of res ipsa loquitur results. Attention was called to this case in the opinion of Mr. Justice Chapman, now Chief Justice, on rehearing in the case of American Dist. Electric Protective Co. v. Seaboard Air Line R. Co., 129 Fla. 518, 177 So. 294. In the old English case referred to it was said:

'There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.'

This statement of the principle appears to have been applied in Stokes v. Saltonstall, 13 Pet. 181, 10 L.Ed. 115; New Jersey R. & Transp. Co. v. Pollard, 22 Wall. 341, 22 L.Ed. 877; Gleeson v. Virginia Midland R. Co., 140 U.S. 435, 11 S.Ct. 859, 35 L.Ed. 458; San Juan Light & Transit Co. v. Requena, 224 U.S. 89, 32 S.Ct. 399, 56 L.Ed. 680, and other decisions of the U. S. Supreme Court. One of the most often quoted State cases is Judson v. Giant Powder Co., 107 Cal. 549, 40 P. 1020, 29 L.R.A. 718, 48 Am.St.Rep. 146.

The case of Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 418 57 L.Ed. 815, Ann.Cas.1914D, 905, has caused a great deal of comment by courts and law writers, both for and against the position taken by Mr. Justice Pitney in that case. It was therein held that the doctrine of res ipsa loquitur does not have the effect, when applied, of shifting the burden of proof so as to make it necessary for the defendant to overcome the presumption of negligence by a preponderance of evidence that there was an...