Whalen v. Hill

• Citation: 219 So.2d 727
• Decision Date: 04 March 1969
• Docket Number: No. 68--658,68--658
• Parties: George Francis WHALEN, Appellant, v. Vernon F. HILL, Opal M. Hill, Estate of James Gordon Cowden, Deceased, andFincher Motors, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 727

219 So.2d 727

George Francis WHALEN, Appellant, v. Vernon F. HILL, Opal M. Hill, Estate of James Gordon Cowden, Deceased, andFincher Motors, Inc., a Florida corporation, Appellees.

No. 68--658.

District Court of Appeal of Florida, Third District.

March 4, 1969.

Olson & Zednek and Montague Rosenberg, Ft. Lauderdale, for appellant.

Carey, Dwyer, Austin, Cole & Selwood, and Edward A. Perse, Dean, Adams, George & Wood, Miami, for appellees.

Before PEARSON, HENDRY and SWANN, JJ.

PEARSON, Judge.

George Francis Whalen was injured in an automobile collision. He brought suit against James Gordon Cowden, the deceased driver of the automobile which collided with his, and against Fincher Motors, Inc., and Mr. and Mrs. Hill. Whalen alleged that the Hills And Fincher owned the automobile Cowden was driving. The trial judge entered summary final judgment for Mr. and Mrs. Hill and for Fincher. This appeal if from those final judgments.

The Hills owned a 1958 Oldsmobile, title to which was in 'HILL VERNON F OR OPAL M'. They informed Fincher they were interested in the purchase of a newer model. On March 15, 1967, Cowden, a salesman for Fincher, called the Hills and told them he thought he had a car for them. That evening the Hills went to Fincher and agreed to purchase a 1965 Oldsmobile. They paid Fincher $44 and received an allowance of $395 on their 1958 automobile. The balance due was to be financed. The Hills signed a retail buyer's order, a retain title contract, and several blank applications for financing. Finality of the agreement was contingent upon approval of a loan. On March 16, 1967, Cowden called the Hills and informed them that their loan had been approved and that he would bring the 1965 automobile to their home to exchange it for the 1958 automobile. The Hills notified their insurance agent of their purchase and requested a change of coverage. Thereafter Cowden delivered the 1965 automobile to the Hills, and Mr. Hill signed in blank the title to their 1958 automobile. Cowden accepted the title, the registration certificate, and the automobile. At 4:30 A.M. on March 17, 1967, Cowden, while driving the 1958 Oldsmobile, was involved in a collision with an automobile driven by the plaintiff appellant. The collision occurred north of Cowden's home. Cowden was not on the way to or from his place of employment.

From the record it appears without genuine issue that the court was correct in entering summary judgment for the Hills. By signing the title in blank and delivering both title and automobile to Fincher's agent, Cowden, pursuant to the agreement we described above, the Hills transferred both legal and beneficial title to Fincher and so could not be liable to the appellant. See § 319.22(2)(a), Fla.Stat. ¹ Cf. Platt v. Dreka, Fla.1955, 79 So.2d 670; Palmer v. R. S. Evans, Jacksonville, Inc., Fla.1955, 81 So.2d 635; Williams v. Davidson, Fla.App.1965, 179 So.2d 387.

We therefore affirm the summary final judgment for defendant-appellees Vernon F. Hill and Opal M. Hill.

But we reverse the summary judgment for defendant-appellee Fincher Motors, Inc. When the collision occurred the 1958 automobile was Fincher's property. It is admitted that Fincher employees had authority to use trade-in automobiles under some conditions:

'All used car salesmen were instructed that they could use a FINCHER-OWNED used car or could use a trade-in car for transportation to and from the FINCHER used car lot and their homes, on an individual basis, but under no circumstances were any FINCHER-OWNED used cars or any trade-in cars to be used for the private business, entertainment, or other private functions of the used car salesman. MR. COWDEN was given these same instructions, and was fully aware of them prior to the involved transaction and accident.' (From the affidavit of Fincher's sales manager.)

Fincher argues that since the accident occurred at 4:30 A.M. at a point not on any direct route from Cowden's home to...