Tillman Chevrolet Co. v. Moore, G-29

Decision Date25 May 1965
Docket NumberNo. G-29,G-29
Citation175 So.2d 794
PartiesTILLMAN CHEVROLET COMPANY, Appellant, v. Ottis James MOORE and Bonita P. Moore, Appellees.
CourtFlorida District Court of Appeals

James E. Hertz, of Firsher & Hepner, Pensacola, for appellant.

Narrow & Moore, Crestview, for appellees.

STURGIS, Chief Judge.

The appellees, Mr. and Mrs. Moore, recovered a money judgment against Tillman Chevrolet Company, a corporation, William F. Smith, and Ralph Eugene Wills, defendants below, ina negligence action involving an automobile accident, and Tillman Chevrolet Company seeks reversal.

The complaint charged that defendant Smith or Wills, while operating an automobile under the permission and authority of defendant Tillman Chevrolet Company, or having possession thereof through negligence of said defendant, drove the same in such a careless, reckless and negligent manner as to cause it to collide with an automobile in which plaintiffs were riding, and that as a proximate result thereof plaintiffs suffered sundry bodily injuries; that Mr. Moore also suffered loss of wages, necessarily incurred expenses for medical treatment, hospitalization, nursing, meals, and medicines for his injuries and also for those of his wife, the co-plaintiff, and was deprived of the services and consortium of his said wife.

Appellant's answer denied that its subject automobile was driven by either defendant Smith or Wills with its permission, denied that it negligently failed to exercise due care in allowing either or both of said defendants to have possession of said automobile, denied all acts of negligence charged by the complaint, and affirmatively alleged that plaintiffs were guilty of contributory negligence in the premises.

The proofs reveal that defendant Wills, having stolen a Pontiac automobile in New Orleans, Louisiana, placed an Alabama tag thereon and drove it to Panama City, Florida, where he had contact with agents of Tillman Chevrolet Company about trading the Pontiac for an Impala Chevrolet. Wills asked permission to drive the Chevrolet around the block and in accordance with normal procedure appellant's agent allowed him to do so. After being gone five to ten minutes he returned to appellant's place of business, resumed discussion with its agents about trading, said he would like to discuss the matter with his wife, asked permission to take the Chevrolet to the Dixie-Sherman Hotel, about twelve blocks distant, and show it to his wife, and appellant by its agent gave him permission to do so. After he left on this occasion appellant's agents inspected the Pontiac more closely, became suspicious and called the Highway Patrol who advised they had been looking for Wills. Appellant immediately called the Sheriff's office which sent out a pick-up order for Wills who had left Panama City in the Chevrolet and was driving between Niceville and Crestview, Florida. Defendant Smith was hitchhiking along the road and Wills stopped and picked him up. Wills told Smith he was sick and asked Smith to drive. Smith agreed and shortly thereafter collided with the automobile of the plaintiffs.

Wills, who is presently serving a term in the Federal Correctional Institution for theft of the Pontiac, testified on the trial that he had been drinking heavily during the entire escapade. Appellant's agent testified that Wills showed no signs of drinking when he came to appellant's place of business. Defendant Smith testified he could not detect any alcohol on Wills when Wills picked him up. Mr. Tillman, owner of Tillman Chevrolet Company, testified that in the usual course of business it was normal for a prospective customer to take a car off the lot and try it out, and that the customer was normally not asked to prove ownership of his own car in the initial stages of the...

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7 cases
  • Jackson By and Through Whitaker v. Hertz Corp.
    • United States
    • Court of Appeal of Florida (US)
    • December 4, 1990
    ...transportation of stolen vehicle). Under these circumstances, Hertz cannot be liable. Appellants' reliance on Tillman Chevrolet Co. v. Moore, 175 So.2d 794 (Fla. 1st DCA 1965), is misplaced. In Tillman, the court found that the owner of an automobile dealership was negligent in permitting a......
  • National Car Rental System, Inc. v. Bostic
    • United States
    • Court of Appeal of Florida (US)
    • October 26, 1982
    ...assert at trial the defense of lack of consent to drive the car. We find this point to be without merit. See Tillman Chevrolet Company v. Moore, 175 So.2d 794 (Fla. 1st DCA 1965); Susco Car Rental System of Florida v. Leonard, 112 So.2d 832 (Fla.1959). The appellants in their third point ch......
  • West v. Collins
    • United States
    • United States State Supreme Court of Kansas
    • October 30, 1992
    ...but was in fact a thief. See Jackson by and through Whitaker v. Hertz, 590 So.2d 929 (Fla.Dist.App.1991); Tillman Chevrolet Company v. Moore, 175 So.2d 794 (Fla.Dist.App.1965). The Hertz court summarized the doctrine as "The dangerous instrumentality doctrine is a unique contribution of the......
  • Mozer v. Semenza
    • United States
    • Court of Appeal of Florida (US)
    • July 27, 1965
    ...of consent was refuted by the theft of the automobile which broke the chain of proximate causation. See also Tillman Chevrolet Company v. Moore, Fla.App.1965, 175 So.2d 794. It is notorious that proximate cause is in most cases what the courts will it to be and that it is at best a theory u......
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