Southern Cotton Oil Co. v. Anderson

• Decision Date: 30 June 1920
• Citation: 86 So. 629,80 Fla. 441
• Parties: SOUTHERN COTTON OIL CO. v. ANDERSON.
• Court: Florida Supreme Court

86 So. 629

80 Fla. 441

SOUTHERN COTTON OIL CO. v. ANDERSON.

Florida Supreme Court

June 30, 1920

Rehearing Denied Dec. 16, 1920.

Error to Court of Record, Escambia County; E. C. Love, Judge.

Action by L. J. Anderson against the Southern Cotton Oil Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

See also, 73 Fla. 432, 74 So. 975, L. R. A. 1917E, 715.

Ellis and West, JJ., dissenting.

Syllabus by the Court

SYLLABUS

Owner intrusting motor vehicle to another is liable for his negligence. A motor vehicle operated on the public highways is a dangerous instrumentality, and the owner who intrusts it to another to operate is liable for injury caused to others by the negligence of the person to whom it is intrusted.

Responsibility for custody of dangerous applicance cannot be shifted to servant. 'The servant is empowered by the master to discharge certain duties, and it is incumbent upon him to exercise the same care and attention which the law requires of the master; and, if that care and attention be about the management and custody of dangerous appliances, the master cannot shift the responsibility connected with the custody of such instruments to the servant to whom they have been intrusted, and escape liability therefor. This rule arises from the absolute duty which is owing to the public by those who employ in their business dangerous agencies or applicances, engines, or instruments, liable, if negligently managed, to result in great damage to others.'

Responsibility of owner of automobile extends to its use by one with his knowledge or consent. An automobile operated upon the public highways being a dangerous machine, its owner is responsible for the manner in which it is used, and his liability extends to its use by any one with his knowledge or consent.

Owners of motor vehicles liable under doctrine of respondeat superior. The Legislature, under its police power to protect the public from dangerous instrumentalities using the highways, has imposed rigid restraints, regulations, and restrictions upon the use of motor vehicles, thus recognizing the danger from their operation, which makes owners liable in damages under the doctrine of respondeat superior as applied to dangerous agencies.

Automobile dangerous instrumentality, notwithstanding operation by another than owner. Chapter 7275, Acts 1917, treats the automobile when operated on the public highways as a dangerous instrumentality, so as to require special regulation and control under the police power, and it is not divested of its dangerous character in an action for damages caused by the negligence of the operator, who is using the car with the owner's knowledge or consent.

Owner of dangerous agency liable for injuries through servant's negligence. In intrusting a servant with a highly dangerous agency the master puts it in his servant's power to mismanage it, and as long as it is in his custody or control under such au hority the master is liable for any injury committed through the servant's negligence.

Ruling as to sufficiency of evidence is law of case on appeal after second trial. Where the Supreme Court has reversed a judgment on the ground there is substantial evidence tending to prove a certain issue, on appeal after a new trial, the Supreme Court is bound by such ruling as the law of the case, and will not disturb the ruling of the trial judge on the sufficiency of the evidence to support the verdict rendered on the second trial, where the testimony is substantially the same as on the first.

'Dangerous per se' defined. By 'dangerous per se' is meant that a thing, by or through itself, may inflict injury without the immediate application of human aid or instrumentality.

COUNSEL

Watson & Pasco and Blount & Blount & Carter, all of Pensacola, for plaintiff in error.

F. W Marsh, of Pensacola, and Scott M. Loftin, of Jacksonville for defendant in error.

OPINION

BROWNE C.J.

This is an action by Louis J. Anderson against the Southern Cotton Oil Company for personal injuries caused by the negligent operation of an automobile belonging to the Southern Cotton Oil Compamy.

The case is before the court for the second time.

On the first hearing Anderson, the plaintiff below, brought writ of error to test the ruling of the trial judge in directing a verdict for the defendant. This we held was error, and the judgment was reversed on that ground. Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975, L. R. A. 1917E, 715.

On a retrial of the cause the plaintiff obtained a verdict and judgment for $7,500 with interest, and the defendant is here on writ of error complaining that the evidence was insufficient to sustain the verdict, and of rulings of the court on the evidence and of certain instructions given on request of the defendant.

The defendant in error contends that, as this court reversed the former judgment on the ground that there was substantial evidence tending to prove the issue, we are bound by that as the law of the case, and should not disturb the ruling of the trial judge on the sufficiency of the evidence to support the verdict rendered on the second trial, where the testimony is substantially the same as on the first. the same as on the first.

The rule contended for in that proposition is supported by strong authority. In Pleasants v. Fant, 22 Wall. 116, 22 L.Ed. 780, it is thus stated:

'In the discharge of this duty it is the province of the court, either before or after the verdict, to decide whether the plaintiff has given evidence sufficient to support or justify a verdict in his favor. Not whether on all the evidence the preponderating weight is in his favor; that is the business of the jury; but, conceding to all the evidence offered the greatest probative force which according to the law of evidence it is fairly entitled to, is it sufficient to justify a verdict? If it does not, then it is the duty of the court after a verdict to set it aside and grant a new trial. Must the court go through the idle ceremony in such a case of submitting to the jury the testimony on which plaintiff relies, when it is clear to the judicial mind that, if the jury should find a verdict in favor of plaintiff, that verdict would be set aside and a new trial had? Such a proposition is absurd, and accordingly we hold the true principle to be that, if the court is satisfied that, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the court should say so to the jury.'

In Wilson v. Jernigan, 57 Fla. 277, 49 So. 44, the distinction is drawn between the duty of the court on a motion to direct a derdict, where there is evidence tending to prove the issue, and the denial of a motion to set aside the verdict on the ground of the insufficiency of the testimony to support it. The court said:

'The first assignment is based upon the overruling of the motion for a new trial, while the seventh is based upon the refusal of the trial court to instruct or direct the jury to return a verdict in favor of the plaintiffs'

--and held that the request for a directed verdict in favor of the plaintiff 'was properly refused,' citing German-American Lumber Co. v. Brock, 55 Fla. 577, 46 So. 740; Starks v. Sawyer, 56 Fla. 596, 47 So. 513; McKinnon v. Johnson, 57 Fla. 120, 48 So. 910.

The case being submitted to the jury a verdict was rendered for defendant, and this court reversed the judgment, because the trial judge refused to set it aside on the grounds that the evidence was insufficient to warrant the jury in finding a verdict for the defendant.

Thus the court approved the ruling of the trial court, refusing to direct a verdict for the defendant, and reversed the judgment, because he denied the motion to set aside the verdict on the ground that----

'The evidence adduced was not sufficient to warrant the jury in returning a verdict for the defendant.'

This court has endeavored in several cases to point out the distinction between what is essential on motion to direct a verdict, and on motion to set aside a verdict because the evidence is insufficient to support it. The distinction is probably as clear as language is capable of showing so shadowy a difference, but it is the frequent cause of contention before this court, and the trial judges are often lost in its mazes.

What this court has said on this subject can be found in Carney v. Stringfellow, 73 Fla. 700, 74 So. 866; Gravette v. Turner, 77 Fla. 311, 81 So. 476.

It is not necessary to consider the assignments of error separately, as this case must be decided on a doctrine that disposes of all of them adversely to the plaintiff in error.

It is conceded by the plaintiff in error that the negligence of the driver of the automobile that caused the injury to the defendant is established, and the only issue is the responsibility of the Southern Cotton Oil Company for this negligence. This responsibility must be measured by the obligation resting on the master or owner of an instrumentality that is peculiarly dangerous in its operation, when he intrusts it to another to operate on the public highways.

The rule is not a new one, and, far from being the enunciation of 'a judicial statute,' as intimated by counsel for plaintiff in error, it is but the application of an old and wellsettled principle to new conditions. The rule is thus stated in Pollock on Torts, 506:

'The law takes notice that certain things are a source of extraordinary risk, and a man who exposes his neighbor to such a risk is held, although his act is not of itself wrongful, to insure his neighbor against any consequent harm not due to some cause beyond human foresight. * * *...