Postal Telegraph & Cable Co. v. Doyle

Citation167 So. 358,123 Fla. 695
CourtUnited States State Supreme Court of Florida
Decision Date11 April 1936

Rehearing Denied April 28, 1936.

Error to Circuit Court, Volusia County; Elwyn Thomas, Judge.

Action Bart Doyle against the Postal Telegraph & Cable Company. To review a judgment for plaintiff, defendant brings error.


DAVIS J., dissenting.


P. W. Harvey and B. F. Brass, both of Daytona Beach and McKay, Dixon & De Jarnette, of Miami, for plaintiff in error.

Joseph Ginsberg, of Daytona Beach, and Scarlett & Futch, of De Land for defendant in error.


TERRELL, Justice.

This is an action for personal injuries. The third amended declaration on pleas to which the case went to trial was in three counts. The first count, in substance, alleged that defendant, plaintiff in error, was engaged in the business of transmitting telephone and telegraph messages for hire; that it owned a motorcycle for the use of its employees in the transaction of its business; that on the afternoon of February 3, 1931, one of its employees, Tharon Westberry, so negligently managed and operated said motorcycle in the regular course of the company's business that it ran upon and over Bart Doyle, defendant in error, while he was walking along Ocean Shore boulevard, a public highway of Daytona Beach; that he, Doyle, was knocked down and permanently injured and rendered incapable of pursuing his occupation as a sign painter.

The second count is different from the first, in that it alleges that the motorcycle owned by defendant was a dangerous instrument; that Tharon Westberry who was operating it when Doyle was run over was a minor; that defendant voluntarily permitted and authorized said minor to operate said motorcycle knowing it to be a dangerous instrument, and while being so operated Doyle was knocked down and permanently injured and rendered incapable of following his occupation of sign painter.

A third count alleged the use of a motorcycle to deliver messages by servants of defendant, but was silent as to ownership. It was held bad on demurrer. The case was tried on the following pleas to counts 1 and 2: The general issue; denial of ownership of the motorcycle; denial that employees of defendant were using the motorcycle in the discharge of defendant's business; contributory negligence; that the accident in which Doyle was injured was unavoidable; and that Doyle's injuries were not permanent. Motion for directed verdict at the conclusion of plaintiff's testimony and at the conclusion of all the testimony was denied. The first trial resulted in a verdict and judgment of $5,000 for plaintiff, but was set aside and a new trial granted. A second trial resulted in a verdict and judgment of $7,000, a new trial was denied, and the present writ of error was prosecuted to that final judgment.

The first assignment of error is predicated on failure of the allegata and the probata to correspond.

The first and second counts of the declaration both allege: 'That defendant owned a certain motorcycle for the use of its employees in its said business.' Pleas of the defendant put the question of ownership of the motorcycle squarely in issue. The plaintiff failed completely to prove ownership, except by remote inference, while the evidence submitted by the defendant showed conclusively that the motorcycle was owned by one Phillips who purchased it more than a year before Doyle was injured and sold it more than a year after, that it was never owned by defendant, nor did defendant ever acquire any interest in it.

The evidence also shows that Phillips was the local manager of defendant at Daytona Beach at the time of the accident, that he rented the motorcycle to Tharon Westberry, but there is no allegation that it was rented to him with the knowledge or consent of defendant or as a servant of defendant, and the evidence fails to satisfactorily connect the defendant with the ownership or rental of the motorcycle. The proof was consequently at variance with the allegations of the declaration for which the motion for an instructed verdict should have been granted. Ingram-Dekle Lumber Co. v. Geiger, 71...

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24 cases
  • Scott & Jobalia Const. Co., Inc. v. Halifax Paving, Inc. for Use and Benefit of U.S. Fidelity and Guar. Co.
    • United States
    • Florida District Court of Appeals
    • 2 Febrero 1989
    ...rev. denied, 447 So.2d 885 (Fla.1984); Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979).4 See Postal Telegraph & Cable Co. v. Doyle, 123 Fla. 695, 167 So. 358 (1936); Kurfess v. Frohlick Crane Service, Inc., 543 P.2d 1304 (Colo.App.1975); 2 Fla.Jur.2d, Agency & Employment § 2......
  • Saudi Arabian Airlines Corp. v. Dunn
    • United States
    • Florida District Court of Appeals
    • 14 Septiembre 1983
    ...was sufficient evidence to submit the question of an existence of an employment relationship to the jury. Postal Telegraph and Cable Company v. Doyle, 123 Fla. 695, 167 So. 358 (1936), modified, 128 Fla. 707, 175 So. 515 (1937); Gordils v. DeVilliers, 402 So.2d 1313 (Fla. 4th DCA 1981); Llo......
  • Hartquist v. Tamiami Trail Tours, Inc.
    • United States
    • Florida Supreme Court
    • 18 Julio 1939
    ... ... Construction Syndicate, L. R. (L.Q.B ... Div., 1893) 629; Postal Telegraph & Cable Co. v ... Doyle, 123 Fla. 695, 167 So. 358 ... ...
  • Sherrill v. Corbett Cranes Services, Inc.
    • United States
    • Florida District Court of Appeals
    • 5 Mayo 1995
    ...would not lie, the Florida Supreme Court said: Florida has long recognized the "borrowed servant" rule. See Postal Telegraph & Cable Co. v. Doyle, 123 Fla. 695, 167 So. 358 (1936). Under this rule, one who borrows and exercises control over the servant or worker of another in effect assumes......
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