O'reilly v. Sattler

• Decision Date: 16 February 1940
• Citation: 193 So. 817,141 Fla. 770
• Parties: O'REILLY v. SATTLER.
• Court: Florida Supreme Court

193 So. 817

141 Fla. 770

O'REILLY v. SATTLER.

Florida Supreme Court, Division A.

February 16, 1940

Rehearing Denied March 5, 1940.

Error to Circuit Court, Pinellas County; John U. Bird, Judge.

Action by Ed. O'Reilly against P.J. Sattler to recover damages for personal injuries. Judgment of nonsuit, and plaintiff brings error.

Affirmed.

COUNSEL Askew & Kiernen and Erle B. Askew, all of St Petersburg, for plaintiff in error.

McKay Macfarlane, Jackson & Ferguson, of Tampa, for defendant in error.

OPINION

TERRELL Chief Justice.

Three young men, Ed. O'Reilly, P.J. Sattler, and Joe Carr were driving from Tampa to St. Petersburg in the automobile of Sattler which was at the time driven by Carr with Sattler's knowledge and consent. They had been attending the homecoming events at the University of Tampa, and as they approached St. Petersburg about four in the morning, they ran into a truck proceeding along the road in the same direction. The truck and the car were demolished as a result of the collision, one man and two hounds riding in the truck were killed, and everyone else in the automobile and truck including O'Reilly was injured.

O'Reilly brought this action against Sattler as owner of the automobile to recover damages for personal injuries. When the cause came on for trial and the plaintiff concluded his testimony, the defendant moved for an instructed verdict. This motion was granted whereupon defendant announced that he would take a non suit with bill of exceptions. An order of non suit was entered, the plaintiff moved for a new trial which was denied and the plaintiff took writ of error.

The essential question to be decided may be stated as follows: In view of Chapter 18033, Acts of 1937, was Sattler liable to O'Reilly for personal injuries resulting from the collision so described?

Section 1 of Chapter 18033 is the pertinent part and is as follows:

'Section 1. That no person, transported by the owner or operator of a motor vehicle as his guest or passenger, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct was the proximate cause of the injury, death or loss for which the action is brought, provided that the question or issue of negligence, gross negligence, and wilful or wanton misconduct, and the question of proximate cause, and the issue or question of assumed risk, shall in all such cases be solely for the jury. Provided that nothing in this Act shall apply to school children or other students being transported to or from schools or places of learning in this State.'

It is admitted that at the time of the accident, O'Reilly was a guest passenger in Sattler's car without compensation. In this case, he is under the statute confronted with the necessity of showing that the accident was caused by the 'gross negligence or wilful and wanton...