Re-Mark Chemical Co. v. Ross

• Decision Date: 04 March 1958
• Docket Number: RE-MARK,No. 57-98,57-98
• Citation: 101 So.2d 163
• Parties: CHEMICAL CO., Inc., a Florida corporation, Appellant, v. Fad ROSS, Appellee.
• Court: Florida District Court of Appeals

Page 163

101 So.2d 163

RE-MARK CHEMICAL CO., Inc., a Florida corporation, Appellant, v. Fad ROSS, Appellee.

No. 57-98.

District Court of Appeal of Florida, Third District.

March 4, 1958.

Rehearing Denied April 3, 1958.

French & Skolnick, Miami, for appellant.

Mayerson, Greenberg & Cohen, Miami Beach, for appellee.

CARROLL, CHAS., Chief Judge.

This is an appeal by one of two defendants against whom a judgment was rendered in the Circuit Court of Dade County. The action was brought to recover damages for personal injuries, which the plaintiff sustained in a collision between a bus on which he was a passenger and an automobile driven by one of the defendants.

At the trial the defendant Harriet Ginsberg, who was driving the automobile, conceded liability. The evidence indicated she was driving 25 to 30 miles per hour on a wet curving road when she approached the intersection where she was confronted with a red light; that she was unable to stop, and skidded or slid her car into the intersection, against the red light, where she collided with the bus which had entered the intersection with a favorable green light.

The case went to the jury on the question of damages as to the defendant Harriet Ginsberg, and on liability, as well as on damages, as to the defendant Re-Mark Chemical Co., Inc.

The plaintiff was awarded a verdict for $19,990 against both defendants, and the court entered judgment thereon.

The defendant Re-Mark filed a motion for new trial listing forty-seven grounds. The motion for new trial was denied, and Re-Mark appealed, assigning fifty-four errors. The main points raised on the appeal are whether the facts warranted a finding of liability against Re-Mark as having the automobile under its control and permitting its use by its employee Ginsberg, and the contention that the verdict was improperly influenced and excessive.

Ginsberg was employed by Re-Mark in a secretarial capacity. The evening before the accident she had been instructed by the president of Re-Mark to take the automobile in question and drive it home (in order to post the company mail at a downtown post office on the way), and to bring the automobile back in the morning. It was on her return trip the next morning that the accident occurred.

The material evidence relating to the status of the automobile was not in dispute. It had been used as a company car by another employee, who prior to the time of the accident had turned it in to Re-Mark for other use or disposition. The upkeep and operating expenses of the car had been paid by Re-Mark. At the time the car was turned over to Ginsberg for the trip home the evening before the accident it was in the possession of Re-Mark and subject to Re-Mark's dominion and control, and the use made of it on that occasion was for Re-Mark's business.

One who has possession, and the dominion and control of an automobile, even though not the record owner thereof, will be liable for injury caused by the negligence of another person using the automobile with the knowledge and consent of the person having such dominion and control over the vehicle. Wilson v. Burke, Fla.1951, 53 So.2d 319; Mercury Cab Owners' Association v. Jones, Fla.1955, 79 So.2d 782. See also Frankel v. Fleming, Fla.1954, 69 So.2d 887...