Thomas v. Atlantic Associates, Inc., 37942

• Decision Date: 30 July 1969
• Docket Number: No. 37942,37942
• Citation: 226 So.2d 100
• Parties: Almond H. THOMAS and Irene Thomas, his wife, Petitioners, v. ATLANTIC ASSOCIATES, INC., a Florida corporation and Henry Roberts, Respondents.
• Court: Florida Supreme Court

Page 100

226 So.2d 100

Almond H. THOMAS and Irene Thomas, his wife, Petitioners, v. ATLANTIC ASSOCIATES, INC., a Florida corporation and Henry Roberts, Respondents.

No. 37942.

Supreme Court of Florida.

July 30, 1969.

Rehearing Denied Sept. 15, 1969.

Robert J. Paterno, of Taylor, Brion, Buker, Hames, Greene & Whitworth, Miami, for petitioners.

Fowler, White, Collins, Gillen, Humkey & Trenam and Fred R. Ober, Miami, for respondents.

ROBERTS, Justice.

This cause is before the court on certiorari granted on direct conflict grounds to review the decision of the District Court of Appeal, Third District, in Thomas v. Atlantic Associates, Inc., Fla.App.1968, 212 So.2d 920.

The facts, which are not disputed, are stated succinctly in the decision here reviewed, as follows:--

'Atlantic Associates, Inc. owned an automobile and allowed Henry Roberts the unrestricted use of it for an indefinite period. Just prior to the time this automobile was placed in the hands of Roberts, his thirteen year old daughter by a previous marriage came from Orlando to live with her father and stepmother. During the four to six week period Roberts was using the automobile, the keys were left on the dresser when the car was not being used. Roberts went to Chicago and left the automobile with his wife. Several days later while the daughter was home alone, she took the keys from their usual place on the dresser and drove the automobile to a nearby grocery store. While en route she collided with the automobile of the plaintiffs causing injury to them. At no time prior to the accident was Roberts aware that his daughter ever drove or could drive an automobile.'

A summary judgment for defendants entered by the trial court was affirmed by the appellate court in the decision here reviewed, the court being of the opinion that the undisputed facts showed that 'the automobile was being used by the daughter without the express or implied consent of Roberts or Atlantic, and that there was no negligence shown in the leaving of the keys to the automobile on the dresser.' 212 So.2d at page 921.

In support of their petition, the petitioners contend that the decision is in direct conflict with the rules respecting the 'dangerous instrumentality' doctrine enunciated in Susco Car Rental System of Florida v. Leonard, Fla.1959, 112 So.2d 832, and with Holl v. Talcott, Fla.1966, 191 So.2d 40, and similar cases, as to the propriety of entering summary judgment. Because of an apparent conflict, we issued the writ.

Almost fifty years ago we extended to the operation of automobiles the dangerous instrumentality doctrine already applied in the law of master and servant and principal and agent to such dangerous agencies as fire, flood, water, poisons, loaded firearms, locomotives and street cars. In Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 16 A.L.R. 255 (1920), we said:--

'In intrusting the servant with this highly dangerous agency, the master put it in the servant's power to mismanage it, and as long as it was in his custody or control the master was liable for any injury which might be committed through his negligence. This is the doctrine of the common law as applied to a new instrumentality imminently dangerous to the persons using the public highways.'

It was also said in a specially concurring opinion in Herr v. Butler, 101 Fla. 1125, 132 So. 815 (1931), that

'* * * the operator in lawful possession of the car with the consent of the owner in effect operates the car under the authority of the owner's license to use the highways pursuant to Florida statute law, as well as for the benefit of such owner whose agent the operator is, at least to the extent of properly controlling the car, looking after it, preventing damage to it and returning it safely back to such owner who intrusted it.'

In Susco, supra, 112 So.2d 832, decided in 1959, we said that

'* * * the logical rule, and, we think, the prevailing rationale of the cases, is that when control of such a vehicle is voluntarily relinquished to another, only a breach of custdoy amounting to a species of conversion or theft will relieve an owner of responsibility for its use or misuse.'

We pointed out in that case, also, that

'In the final analysis, while the rule governing liability of an owner of a dangerous agency who permits it to be used by another is based on consent, the essential authority or consent is simply consent to the use or operation of such an instrumentality beyond his own immediate control. Only to that limited extent is the issue pertinent when members of the public are injured by its operation, and only in a situation where the vehicle is not in operation pursuant to his authority, or where he has in fact been deprived of the incidents of ownership, can such an owner escape responsibility.' 112 So.2d at page 837.

A recent decision by the District Court of Appeal, First District, American Fire & Casualty Company v. Blanton, Fla.App.1966, 182 So.2d 36, affirmed a...