Patrick v. Faircloth Buick Co.

• Decision Date: 20 April 1966
• Docket Number: No. 5960,5960
• Citation: 185 So.2d 522
• Parties: Henry PATRICK, Appellant, v. FAIRCLOTH BUICK COMPANY, a Florida corporation, Sally Smith, and Virginia Massaro, as Administratrix of the Estate of Joseph Massaro, Deceased, Appellees.
• Court: Florida District Court of Appeals

Page 522

185 So.2d 522

Henry PATRICK, Appellant, v. FAIRCLOTH BUICK COMPANY, a Florida corporation, Sally Smith, and Virginia Massaro, as Administratrix of the Estate of Joseph Massaro, Deceased, Appellees.

No. 5960.

District Court of Appeal of Florida, Second District.

April 20, 1966.

J. A. McClain, Jr., of McClain, Thompson, Turbiville & White, E. B. Rood, Tittsworth & Tittsworth, Tampa, for appellant.

James E. Thompson, of Fowler, White, Gillen, Humkey & Trenam, Tampa, for appellee Virginia Massaro, as administratrix.

ALLEN, Chief Judge.

This is an appeal by the plaintiff-appellant in a personal injury action from an order granting summary judgment in favor of defendant Massaro. Massaro died following the commencement of the suit, and his wife, as Administratrix of his estate, was made a party.

On October 1, 1962, Joseph Massaro was the owner of a Buick automobile. His wife, Virginia Massaro, took this automobile to the defendant, Faircloth Buick Company, for service. After arriving at the Buick garage, Mrs. Massaro requested that someone ride with her to her home in order to bring the Buick automobile back to the Buick garage for service. Sally Smith, an employee of defendant Buick company, was instructed by the company to ride home with Mrs. Massaro and then drive the car back to Faircloth Buick Company.

Upon returning, Sally Smith drove the car into the Faircloth building through a doorway, leaving the public street and sidewalk and going onto the company's private property. The plaintiff was inside the building and was struck by the car.

Appellant contends summary judgment was improper, arguing that appellee was not entitled to judgment as a matter of law. The trial court, in granting defendant-owner's motion for summary judgment, held the owner not liable.

Appellant's case is bottomed on the dangerous instrumentality doctrine. He cites Southern Cotton Oil Co. v. Anderson, 1920, 80 Fla. 441, 86 So. 629, 16 A.L.R. 255, which case holds an owner of an automobile is responsible for the manner in which it is used, if it is used by anyone with his knowledge and consent. Appellant contends that this doctrine exceeds the scope of respondeat superior, and extends liability to an owner for any use except theft or 'a breach of custody amounting to a species of conversion,' citing Leonard v. Susco Car Rental System of Florida, Fla.App.1958, 103 So.2d 243, aff'd Fla.1959, 112 So.2d 832. Thus, the appellant argues that since there was voluntary relinquishment of custody, the owner cannot escape liability.

Fry v. Robinson Printers, Inc., Fla.App.1963, 155 So.2d 645, was an action by a service station employee against the owner of an automobile for injuries sustained as a result of being struck by the automobile while being operated by another service station employee. In our opinion we stated:

'Both the appellant, Fry, and the appellee, Dewinsky, were employees of Kacar Standard Station in Maitland. The automobile of Robinson had been left at the service station for minor repairs and servicing. At the time of the accident, Dewinsky was driving the automobile onto a 'lift' or 'grease rack' and Fry was standing at the end of the 'lift,' guilding Dewinsky in placing the automobile on it. Upon signal from Fry to stop, Dewinsky says he put his foot on the brake but that it slipped off and hit the 'gas pedal.' This cause the automobile to lurch forward, jump the safety barrier on the lift, and strike Fry, pinning him against some oil cans.

'Appellant asserts that under the so-called 'dangerous instrumentality doctrine' Robinson, as owner, is legally responsible for the negligence of Dewinsky in placing the automobile on the lift, but the authorities relied upon do not support the contention. Indeed, we find nothing in the decisions applying the 'dangerous instrumentality doctrine' to justify a holding that where an owner leaves his automobile at a service station for repairs or servicing he is liable Solely by reason of ownership for the negligent operation thereof by one employee resulting in injury to another employee of the service station, both being engaged in performing duties in connection with servicing or repairing the automobile at the time of the injury.

'The appellant has failed to demonstrate error and the judgment is affirmed.'

In Florida Power and Light Co. v. Price, Fla.1964, 170 So.2d 293, the Supreme Court quashed a decision of this court and held that liability flowing from operation of doctrines of dangerous instrumentalities and inherently dangerous work is subject to the exception of independent contractors. The Court, in its opinion, page 298, states:

'It may well be that said doctrines (dangerous instrumentality and inherently dangerous work) apply without exception to third party members of the public, but we do not believe they apply without exception under all circumstances where an independent contractor and his employees are involved, absent any allegation or showing of an act of negligence or omission of duty or proper care on the part of a defendant engaged in a hazardous occupation who has contracted with the independent contractor to perform inherently dangerous work.

'Inasmuch as the...