Ratley v. Batchelor

• Decision Date: 11 June 1991
• Docket Number: No. 90-2232,90-2232
• Citation: 599 So.2d 1298
• Parties: Mary N. RATLEY, as Personal Representative of the Estate of Lonnie Otis Ratley, Jr., Deceased, Appellant, v. Robert Levon BATCHELOR, Appellee. 599 So.2d 1298, 16 Fla. L. Week. D1568
• Court: Florida District Court of Appeals

Page 1298

599 So.2d 1298

Mary N. RATLEY, as Personal Representative of the Estate of Lonnie Otis Ratley, Jr., Deceased, Appellant, v. Robert Levon BATCHELOR, Appellee.

No. 90-2232.

599 So.2d 1298, 16 Fla. L. Week. D1568

District Court of Appeal of Florida First District.

June 11, 1991.

On Motion for Rehearing May 1, 1992.

Michael R. McCullough, Jacksonville, for appellant.

John M. Fite, Barron, Redding, Hughes, Fite, Bassett & Fensom, P.A., Panama City, for appellee.

ZEHMER, Judge.

Mary N. Ratley, the surviving wife and personal representative of the estate of Lonnie Ratley, Jr., deceased, appeals a final judgment entered in her action for the wrongful death of her husband. Mr. Ratley was killed in a head-on collision between the mini-van he was driving and a manufactured modular home being towed by the defendant, Robert Batchelor, on a two-lane state highway. The judgment, entered on a jury verdict that found Mr. Ratley 50% comparatively negligent, reduced the jury's damage award by that percentage. Mrs. Ratley's three points on appeal assert (1) error in failing to give an instruction on the prima facie effect of Mr. Batchelor's not having a valid wide-load permit to move the modular home on the highway; (2) error in failing to grant a mistrial following Mr. Batchelor's accident reconstruction expert testifying, in violation of a pretrial stipulation limiting the scope of his testimony, that his opinion on the cause of the accident was consistent with the cause stated in the Florida Highway Patrol homicide accident report; and (3) error in denying a new trial on damages because the low verdict was the result of a mistake on the jury's part or was inadequate as a matter of law. We reverse on the first two points and find it unnecessary to reach the third point because the case must be remanded for retrial on all issues.

Lonnie Ratley was killed on June 2, 1988, when the left front corner of the mini-van he was driving collided with the left front corner of the modular home being towed by Mr. Batchelor. The accident occurred on State Road 75, a two-lane, undivided roadway in Jackson County. During the collision, the side of the modular home tore through the mini-van and a two-by-four entered Mr. Ratley's midsection and exited out his back and through the seat. Despite being impaled by this two-by-four, Mr. Ratley remained conscious for some time after the accident, but ultimately died as a result of the massive internal injuries.

Mrs. Ratley, individually and as personal representative of her husband's estate, sued Mr. Batchelor for negligently causing the wrongful death of her husband. Evidence presented at trial showed that the lane widths in the vicinity of the accident were not uniform and varied between 11 to 12 feet, and that the modular home being transported by Mr. Batchelor was 13' 10" (166 inches) wide. Mr. Batchelor admitted that as he proceeded south on State Road 75 prior to the accident, the side of the modular home repeatedly jutted into oncoming traffic. Eyewitnesses testified that the side of the modular home was between 6 and 24 inches over the center line when the vehicles collided. Eyewitnesses also testified, however, that the mini-van had drifted toward the modular home seconds before the impact. These witnesses testified that the drift did not take the mini-van out of its lane of travel and that the impact occurred entirely within Mr. Ratley's lane of travel. Mr. Batchelor's expert witness opined, however, that the point of collision was in Mr. Batchelor's lane. The jury found Mr. Batchelor and Mr. Ratley equally negligent and the trial court entered a final judgment in accordance with that verdict.

As to Mrs. Ratley's first point on appeal, she requested and the trial court gave an instruction to the jury that violation of certain specific traffic regulations constituted evidence of negligence. The court instructed the jury on sections 316.081, 316.185, and 316.1925, but denied her request for the following instruction based on section 316.515:

Florida Statute section 316.515 states that the total outside width of any vehicle or the load thereon may not exceed one hundred and two inches, exclusive of safety devices determined by the department [of transportation] to be necessary for the safe and efficient operation of motor vehicles.

This instruction was requested on the theory that the modular home being towed exceeded the allowable width and that Mr. Batchelor did not at the time of the accident have a valid wide-load permit pursuant to section 316.550, Florida Statutes (1989), authorizing him to operate or move a load exceeding the width restriction in section 316.515. Prior to trial, Mrs. Ratley's counsel moved in limine to exclude any mention of the fact that Mr. Batchelor had in his possession a special permit authorizing him to transport the oversized load. This motion was grounded on the following facts stipulated to by the parties: the special permit Mr. Batchelor possessed at the time of the accident had been issued to NTC of America, Inc., the corporation that sold the modular home and hired Mr. Batchelor to deliver it to the buyer, and Mr. Batchelor was transporting the wide load as an independent contractor, not as an employee or agent of NTC of America, Inc. The court rejected Mrs. Ratley's argument that the permit was not transferable from NTC of America, Inc., to Mr. Batchelor, and allowed Mr. Batchelor to testify that he had a special permit authorizing him to transport the modular home at the time of the accident. The actual permit was never identified at trial or placed in evidence. Based on its ruling allowing the transfer of the permit, the trial court denied the requested instruction on section 316.515.

It is undisputed that the modular home being transported by Mr. Batchelor, which was 166 inches wide, exceeded the width limitation set out in section 316.515(1), Florida Statutes (1989). Section 316.550, Florida Statutes (1989), provides the following exception to this width limitation where the vehicle operator applies for and receives a special permit authorizing the transport of the oversized load:

The Department of Transportation, with respect to highways under its jurisdiction, or a local authority, with respect to highways under its jurisdiction, may, in its discretion and upon application and good cause shown therefor that the same is not contrary to the public interest, issue a special permit in writing authorizing the applicant to operate or move a vehicle or combination of vehicles of a size or weight of vehicle or load exceeding the maximum specified in this chapter, or otherwise not in conformity with the provisions of this chapter, upon any highway under the jurisdiction of the authority issuing such permit and for the maintenance of which the authority is responsible. The permit shall describe the vehicle or vehicles and load to be operated or moved and the highways for which the permit is requested.

(Emphasis added). Section 316.003(25), Florida Statutes (1989), defines the term "operator" as used in chapter 316 to mean, "Any person who is in actual physical control of a motor vehicle upon the highway, or who is exercising control over or steering a vehicle being towed by a motor vehicle." Section 316.003(29), Florida Statutes (1989), defines the term "person" as, "Any natural person, firm, copartnership, association, or corporation." Reading these provisions in pari materia, we construe section 316.550 as meaning the person who is the operator or one responsible for the actual operation of the vehicle upon the highway must be the applicant to whom the permit is issued.

Mr. Batchelor's operation of the towing vehicle for purposes of moving the modular home on State Road 75 violated section 316.515(1) unless he held a valid special permit that authorized him to transport this load. We conclude that the trial court erred in treating the NTC permit as transferable to Mr. Batchelor and finding that he had such a permit that validly covered his operation of the vehicle at the time and place of the accident. We have no doubt that had Mr. Batchelor been operating the vehicle towing the modular home as an employee or agent of NTC he would have been covered by the permit issued to NTC, because a corporation can only act through its employees and agents. However, there is no provision in chapter 316 that we know of that authorizes the transfer of such a permit from the original applicant who obtained it to an independent contractor or operator not acting for the original applicant as an employee or agent subject to its control. Since the special permit Mr. Batchelor possessed authorized NTC of America, Inc., a corporation for whom he was not employed, to move the modular home, absent an express statutory provision authorizing such transfer, NTC of America, Inc., could not validly transfer this permit to Mr. Batchelor. See Seaboard Air Line Railroad Company v. King, 89 So.2d 246 (Fla.1956).

This interpretation of these statutes is consistent with Department of Transportation rule 14-26.007, Florida Administrative Code, which states that oversize permits are granted with the

specific understanding that the permittee shall be responsible and liable for accident, damage or injury to any person or property resulting from the operation of the equipment, covered by the permit, upon public streets and highways of the state....

Rule 14-26.0041 defines "permittee" as the "person to whom an oversize/overweight permit is issued." In this case, NTC of America, Inc., the "permittee," insulated itself from liability by using an independent contractor, rather than one of its employees or agents subject to its control, to transport the modular home.

Under the applicable case law, the failure of an operator to have a valid wide load permit at the time of the accident is evidence of negligence. Smith v. Lumbermen's Mutual Casualty Co., 360 So.2d 1098 (...