Roberts v. Braynon

• Decision Date: 07 November 1956
• Citation: 90 So.2d 623
• Parties: Katie ROBERTS, Appellant, v. Rosemary BRAYNON, Appellee.
• Court: Florida Supreme Court

Page 623

90 So.2d 623

Katie ROBERTS, Appellant, v. Rosemary BRAYNON, Appellee.

Supreme Court of Florida, Special Division A.

Nov. 7, 1956.

Melvin Schaffer and James Pilafian, Miami, for appellant.

Blackwell, Walker & Gray, Miami, for appellee.

HOBSON, Justice.

Plaintiff here appeals from summary final judgment for defendant in an action growing out of an automobile accident in which plaintiff was injured while riding as a passenger of defendant. The complaint charged defendant with simple negligence, the plaintiff relying upon the relationship of the parties at the time and place of the accident to avoid the effect of the Florida guest statute, F.S. § 320.59, F.S.A.

From the plaintiff'd deposition and the minutes of a pretrial conference which was held before the circuit judge, it appears that plaintiff, who had come from New York, was a social guest at defendant's house. On the day of the accident, plaintiff and defendant left defendant's house in defendant's car for the dual purpose of making an airplane reservation for plaintiff's return to New York, at the Eastern Airlines ticket office in downtown Miami, and taking some laundry belonging to defendant to a self-service laundry. Defendant had been placed temporarily in custody of two small children, who accompanied the parties on their trip downtown in the automobile. Had the trip proceeded according to plan, plaintiff would have remained in the automobile and watched the small children while defendant was busy in the laundry. The accident occurred on the way to the airline ticket office, which was to have been the first stop.

On these facts, plaintiff contended that she was not a guest within the meaning of the guest statute, but that the trip constituted a joint enterprise wherein she, by performing and promising to perform functions incident to the care of the children, participated to such extent that the requirement of the guest statute that gross negligence be established was inapplicable.

In Peery v. Mershon, 149 Fla. 351, 5 So.2d 694, plaintiff was employed by defendants as a nurse and governess for their children, and she was injured while a passenger in defendants' automobile and while acting within the scope of her employment under the direct supervision of the defendants. We held that plaintiff in such circumstances was entitled to recover as a servant injured in the course of her employment by the master's negligence, and that the guest statute was inapplicable because she could in no sense be considered a 'guest' within the meaning of the statute. That is not the case here.

In McDougald v. Couey, 150 Fla. 748, 9 So.2d 187, we held that plaintiff was a guest within the meaning of the statute although he had bought gasoline for the defendant and had contended that he was a 'paying passenger'. We there considered the fact that plaintiff and defendant had been lifelong friends. In the instant case, plaintiff was a social guest in defendant's home at the time the accident occurred. Indeed, the record shows that after the accident occurred plaintiff continued to live in defendant's home as her guest for over two months, and did not move out of defendant's home until she had employed an attorney and filed this suit.

In Yokom v. Rodriguez, Fla., 41 So.2d 446, 448, the plaintiff, a woman, had paid all expenses of the trip which resulted in the lawsult, and the trip was undertaken for her sole benefit and at her request, defendant driver being a male acquaintance, Considering all the circumstances of the case, we held that the transportation was furnished to the plaintiff as 'an act of graciousness' and that plaintiff was a guest within the meaning of the statute. In the Yokam case we said that the community of interest which must exist to remove the case from the operation of the guest statute 'must be such that the passenger is entitled to be heard in the control and management of the vehicle--such as practically to amount to joint or common possession thereof.' The undisputed facts shown in the instant case fall short of this requirement. See also Richardson, Automobiles and Other Vehicles, 2 Florida Law and Practice, Sec. 13.2, and authorities cited.

The circuit judge was authorized to infer, from the admissions of the plaintiff, that defendant invited the plaintiff to ride with her as a gesture of hospitality, a projection of the hospitality which plaintiff was already enjoying at the defendant's home. Defendant was at all time in complete charge and control of the vehicle, its itinerary and destination, and the function performed by the plaintiff was a mere matter of convenience which could not be regarded as a consideration for her transportation to the airline ticket office. Upon this aspect of the case it is clear that no error has been shown, and it was therefore necessary for plaintiff to plead and prove gross negligence under the guest statute before recovery for her injuries could have been forthcoming.

A procedural aspect of the case remains to be considered. After the pleadings were closed, a pretrial conference was noticed by the circuit judge, and thereafter a motion for summary judgment was filed by the defendant and set for hearing on the same date as the pretrial conference. At the pretrial conference, plaintiff objected to defendant's motion for summary judgment on the ground that plaintiff had not received...