Pearson v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 02 June 1966
• Docket Number: No. G--219,G--219
• Parties: Marguerite A. PEARSON, Appellant, v. ST. PAUL FIRE & MARINE INSURANCE CO., a corporation, and Robert Lewis Polk, Appellees.
• Court: Florida District Court of Appeals

Page 343

187 So.2d 343

Marguerite A. PEARSON, Appellant, v. ST. PAUL FIRE & MARINE INSURANCE CO., a corporation, and Robert Lewis Polk, Appellees.

No. G--219.

District Court of Appeal of Florida, First District.

June 2, 1966.

Rehearing Denied June 27, 1966.

Howell, Dawson, Galant, Maddox & Sulik, Jacksonville, for appellant.

Howell, Kirby, Montgomery, Sands & D'Aiuto, and George Stelljes, Jr., of Marks, Gray, Yates, Conroy & Gibbs, Jacksonville, for appellees.

CARROLL, DONALD K., J.

The plaintiff in an automobile negligence action has appealed from a final summary judgment entered by the Circuit Court for Duval County in favor of the corporate defendant.

The ultimate question for our determination in this appeal is whether there was sufficient evidence before the court at the hearing on the corporate defendant's motion for a summary judgment, from which evidence a jury could lawfully find that the individual defendant, at the time he drove the corporate defendant's automobile against the rear of the plaintiff's car, was operating the said automobile of the corporation with its knowledge and consent. In the appropriate opening words of appellant's brief: 'This case involves primarily the doctrine of implied consent to the operation of an automobile by the brother-in-law of an employee to whom the continuous possession and the operation and control of the automobile had been entrusted by the owner.'

The Circuit Court, finding insufficient evidence of the required knowledge and consent, entered the final summary judgment appealed from, pursuant to the provisions of Rule 1.36, Florida Rules of Civil Procedure, 30 F.S.A., which we shall quote and discuss later in this opinion.

Since our determination of the question on appeal must be based upon the inferences that may reasonably be drawn from the evidence before the Circuit Court at the said hearing, and since we think that the question is a close one, we must discuss in some detail that part of such evidence which seems pertinent to the issue of the abovediscussed knowledge and consent on the part of the corporate defendant.

The evidence before the court at the said hearing, construed in the light most favorable to the appellant, established the following facts pertinent to the said issue:

The automobile which collided with the rear of the plaintiff's car was owned by the defendant St. Paul Fire and Marine Insurance Company, a corporation, hereinafter referred to as St. Paul. At the time of the collision Austin D. Brown was employed as St. Paul's Florida manager. In connection with his employment St. Paul furnished Brown the said automobile, which was a 1964 Bel Air tan-colored Chevrolet. Brown regularly used this automobile and kept it in his possession day and night. He used it not only in connection with his employment with St. Paul, but he and Mrs. Brown also were permitted by St. Paul to use the automobile for their personal purposes, and they freely and regularly did so.

The defendant Robert Lewis, Polk, who was Mrs. Brown's brother, and Mrs. Polk, her mother, had come to Jacksonville from their out-of-state homes to visit the Browns.

The Browns had and used regularly two Chevrolet automobiles--the tan-colored 1964 Bel Air Chevrolet owned by St. Paul and a green 1957 Chevrolet, which Brown first described as his wife's car and later said that it was owned by him but that she drove it. This latter car is the one which Mrs. Brown drove to the airport to meet her borther, the defendant Polk, on Friday, December 20, 1963, two days prior to the collision which gave rise to the present action.

St. Paul had a rule, which Brown said was in writing but which was not produced, the effect of which was that only Brown and Mrs. Brown could drive the St. Paul car. Polk claimed that he knew nothing about any such limitation on the use of the said car, and in fact did not know that there was any distinction between the two Chevrolets as to their ownership or otherwise, except as to their colors and their ages. Brown testified, however, that, from conversations he had had with his brother-in-law, Polk knew that the car which Brown drove, the tan Chevrolet, was a company car, and that Polk never asked him for permission to use the said company car.

On Saturday, the day following Polk's arrival at the Browns' home, he rode in both automobiles, and, accompanied by his sister, he drove the green Chevrolet to a grocery store two blocks from the said home. Sometime during the same day Polk said, according to Brown, that he had a Christmas present to mail so that it owuld get to California before Christmas, but did not specify when or under what circumstances he wanted to mail it. On that Saturday night Polk told Mrs. Brown and his mother that he was going to the airport the next morning to mail the package, but he did not ask Mrs. Brown for either car and she did not tell him either to take the tan Chevrolet or not to take it.

On the next morning, Sunday, December 22, 1963, Polk was the first of the four persons in the house to arise, at about 9:30 o'clock. The Browns' bedroom door was open and he went in and saw a ring of keys, eight or nine of them, lying on the dresser. He did not arouse either Brown or Mrs. Brown but moved softly so as not to awaken either of them, and picked up the keys on the dresser.

When Polk reached the Browns' driveway, the two Chevrolets were standing on the driveway, the tan car slightly behind the green car. Polk made no effort to move the tan car a few feet in order to be able to drive out the green car, but instead got in the tan Chevrolet and drove off. There was no name or other letters or insignia on the latter car to indicate that it might not belong to the Browns.

While Polk was on his trip to the airport driving the tan Chevrolet, the car crashed into the rear of an automobile being operated by the plaintiff, who was seriously injured. Later the plaintiff filed the present...