Powell v. Henry
| Decision Date | 02 July 1969 |
| Docket Number | No. 68-538,68-538 |
| Citation | 224 So.2d 730 |
| Parties | Rose POWELL and William C. Powell, her husband, Appellants, v. W. A. HENRY, d/b/a W. A. Henry & Sons, Harold G. O'Quinn, and Kenneth Adair, Appellees. |
| Court | Florida District Court of Appeals |
William Whitaker, Orlando, for appellants.
William F. McGowan, Jr., of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellees.
Appellants Rose Powell and William C. Powell, her husband, appeal a final summary judgment entered by the Polk County Circuit Court in favor of appellee Kenneth Adair, one of the defendants therein, in a case wherein appellants, as plaintiffs, sought damages for injuries and property damage incurred as a result of a collision between an automobile and a tractor-trailer.
On May 4, 1966, the Powells filed complaint against W. A. Henry, d/b/a W. A. Henry & Sons and Harold G. O'Quinn, alleging that on January 15, 1966, just before noon, O'Quinn, who was in the employ of Henry, was operating a truck owned by Henry, and drove it so carelessly that it collided with an automobile owned and operated by Powell, and wherein Mrs. Powell was a passenger, about 4.5 miles south of Dade City in Pasco County on State Road 35A, causing personal injuries to both Powells and damage to the automobile. The suit was filed in Polk County where the defendants resided.
Defenses were filed by defendants Henry and O'Quinn, whereupon interrogatories were propounded and answered, depositions were taken, and pre-trial conference held. Defendant Henry admitted ownership also of a trailer attached to the truck, which trailer bore license tag No. 5L585. After learning at the tag registry office that said license tag No. 5L585 had been issued to one Kenneth Adair for a semi-trailer, plaintiffs Powell, by leave of Court, filed amended complaint bringing in Adair as an additional defendant.
More depositions were taken and affidavits filed, from which it conclusively was established that the trailer was owned by Henry and not Adair. In due course, upon motion, summary judgment was entered in favor of defendant Adair. The instant appeal is from that summary judgment.
Only two questions are before this Court, namely, (1) whether the presumption that Adair owned the trailer by virtue of his license tag being thereon was overcome by the uncontradicted showing that the trailer Actually belonged to Henry and not Adair, and (2) whether a trailer is a 'dangerous instrumentality' so as to render defendant Adair liable even if he had owned the trailer involved. We will take these questions up seriatim.
(1) The presumption of ownership of the trailer.
Adair concedes that because the license tag on the trailer involved had been issued to him, a prima facie presumption arose that he was the owner of the trailer. The able trial Judge so held, and we agree, upon authority of Farrelly v. Heuacker, 1935, 118 Fla. 340, 159 So. 24, and Florida Motor Lines v. Millian, 1946, 157 Fla. 21, 24 So.2d 710. But such presumption was rebuttable and 'vanished' when uncontradicted evidence showed that the trailer did not in fact belong to him. The lower Court also so held, and we also agree. Alred v. Jones, Fla.App.1966, 189 So.2d 226; Hudson v. Smith, Fla.App.1962, 135 So.2d 450; Leonetti v. Boone, Fla.1954, 74 So.2d 551; Johnson v. Mills, Fla.1948, 37 So.2d 906.
Adair indisputably, by deposition and otherwise, established that the Miller tandem axle trailer involved in the accident, although it bore a license tag which had been issued to Adair was Actually owned by defendant Henry. Adair did own a Kingham trailer, for which the license tag in question had been issued, but which was in no way involved in the accident. In some unknown manner the tag became affixed to Henry's Miller trailer.
The presumption created by the license tag having been conclusively overcome by sworn evidence, which...
To continue reading
Request your trial
-
Pullman, Inc. v. Johnson
...v. Mid-Florida Hauling, Inc., 350 So.2d 1141 (Fla. 1st DCA 1977); Foster v. Lee, 226 So.2d 282 (Fla. 2d DCA 1969); Powell v. Henry, 224 So.2d 730 (Fla. 2d DCA 1969), cert. dismissed, 231 So.2d 518 (Fla.1970). See also Meister v. Fisher, 462 So.2d 1071 (Fla.1984) (a golf cart is clearly a mo......
-
Edwards v. ABC Transp. Co., 92-1886
...Foster v. Lee, 226 So.2d 282 (Fla. 2d DCA 1969) (trailer is not a dangerous instrumentality as a matter of law); Powell v. Henry, 224 So.2d 730 (Fla. 2d DCA 1969) (trailer is not a motor vehicle and is therefore not a dangerous The Foster court perhaps best explained the rationale underlyin......
-
Foster v. Lee
...the years since that opinion was written, but we are shown no statistics relating to trailers.2 See, also, our recent decision in Powell v. Henry, 224 So.2d 730, Opinion filed July 2, 1969.3 See Magarian v. Southern Fruit Distributors (1941) 146 Fla. 773, 1 So.2d 858, citing Restatement of ......
-
U-Haul Co. v. Liberty Mut. Ins. Co., U-HAUL
...trailer: (6) "Trailer" includes all four-wheel vehicles coupled to, or drawn by a motor vehicle. U-Haul relies upon Powell v. Henry, 224 So.2d 730 (Fla. 2d DCA 1969), and Garcia v. Mid-Florida Hauling, Inc., 350 So.2d 1141 (Fla. 1st DCA 1977), for the proposition that a trailer is not a mot......