Petitte v. Welch
| Decision Date | 01 September 1964 |
| Docket Number | No. 63-907,63-907 |
| Parties | Emil PETITTE, Appellant, v. John P. WELCH and Frank Forgione, Appellees. |
| Court | Florida District Court of Appeals |
Tobin, Rubin & Salmon, Miami, for appellant.
Wicker, Smith, Blomqvist, Hinckley & Davant, Miami, for appellees.
Before BARKDULL, C. J., and TILLMAN PEARSON and HENDRY, JJ.
The plaintiff appeals a final judgment on an order dismissing his complaint as to one of two defendants. The defendant Welch was the owner of the car which injured the plaintiff and is the appellee here. The complaint alleges, (1) the defendant Welch owned an automobile which he left in the possession of the operator of a service station (2) while the automobile was in the possession of the service station operator, it was driven on the premises of the service station by a third person (whose relationship to the service station operator was not alleged); (3) as the result of a negligent operation of the automobile the plaintiff was injured. The defendant, owner, moved to dismiss the complaint for failure to state a cause of action. The motion was granted and this appeal resulted.
The appellant argues the broad proposition that the dangerous instrumentality doctrine ought not be limited to the operation of an automobile on the public highways of this State. Such a holding would be contrary to the express statement of the Supreme Court in many decided cases. 1 In particular such a holding under the circumstances of this case would be contrary to that of the District Court of Appeal, Second District in Fry v. Robinson Printers, Inc., Fla.App.1963, 155 So.2d 645. 2
Although it might be possible to distinguish the present case from the Fry case in that in the Fry case the car was actually in the process of being serviced and in the present case the allegation is that it was being operated, we do not think the difference justifies a distinction.
The appellant has pointed out that § 51.12, Fla.Stat., F.S.A., provides that as to 'Pleadings of the Plaintiff' the element of liability to the owner for negligence of a driver, it is sufficient to allege the operation of the driver and the name of the owner, without the necessity of alleging the relationship existing between the owner and its driver. 3
We have examined this section and find that it does not enlarge the basis of the owner's responsibility for the operation of his automobile but limits the pleadings necessary in cases where the law now provides damages for the negligent operation of the automobile by a person other than the owner thereof. It will be noted that in the instant complaint the plaintiff does not allege simply the operation of the motor vehicle by a person other than the owner, but sets forth affirmatively that the automobile was in the possession of the service station operator.
The dangerous instrumentality doctrine as applied to automobiles in Florida has always been grounded exclusively upon respondeat superior. Weber v. Proco, Fla.1958, 100 So.2d 146. The complaint in the present...
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Katz v. Harrington, s. 68--966
...the negligence of the employee of a service station or garage after the owner has delivered his car for repair work. See Petitte v. Welch, Fla.App.1964, 167 So.2d 20; Patrick v. Faircloth Buick Co., Fla.App.1966, 185 So.2d 522. But we cannot consider this argument at the present stage of th......
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Padilla v. Gulf Power Co.
...to the negligent use of the chattel by a co-employee. Fry v. Robinson Printers, Inc., 155 So.2d 645 (Fla.2d DCA 1963); Petitte v. Welch, 167 So.2d 20 (Fla.3d DCA 1964); Iglesia v. Floran, 394 So.2d 994 (Fla.1981); Zenchak v. Ryder Truck Rentals, 150 So.2d 727, 728 (Fla.3d DCA 1963), cert. d......
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Castillo v. Bickley
...1977); Patrick v. Faircloth Buick Co., 185 So.2d 522 (Fla. 2d DCA 1966), Cert. discharged, 198 So.2d 825 (Fla.1967); Petitte v. Welch, 167 So.2d 20 (Fla. 3d DCA 1964), Cert. denied, 172 So.2d 598 In Harfred, Judge McCord carefully analyzed the state of Florida law on this issue and opted to......
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Smith v. Ryder Truck Rentals Inc., 34627
...Compare such exceptions to the doctrine as appear in Fry v. Robinson Printers, Inc., 155 So.2d 645 (Fla.App.2d 1963), Petitte v. Welch, 167 So.2d 20, (Fla.App.1964), and Florida Power and Light Co. v. Price, 170 So.2d 293 Latent, though unexpressed in the opinions below, is the thought that......