Wolfe v. City of Miami
| Citation | 134 So. 539,103 Fla. 774 |
| Parties | WOLFE v. CITY OF MIAMI. |
| Decision Date | 12 May 1931 |
| Court | United States State Supreme Court of Florida |
Error to Circuit Court, Dade County; A. J. Rose, Judge.
Action by Carolyn Wolfe against the City of Miami. Judgment for defendant, and plaintiff brings error.
Reversed and remanded for new trial.
COUNSEL A. B. & C. C. Small and Wallace Ruff, all of Miami, for plaintiff in error.
J. W Watson, Jr., of Miami, Charles E. Davis, of Tallahassee, and Jack B. Kirchik, of Miami, for defendant in error.
Plaintiff in error was plaintiff in the court below in a suit brought against the city of Miami for injuries inflicted on her in an automobile accident which occurred on November 30, 1926, at the intersection of Flagler street and Miami avenue.
The basis of the suit, as set forth in the declaration and substantiated by the testimony at the trial, is that the accident was occasioned by the negligence and carelessness of a negro convict, who at the time was operating a motor vehicle belonging to one Max Lenhoff, a city convict foreman, but engaged on a mission for the city. The contention is that the city is liable because of the negligence and carelessness of its agent and servant the convict foreman as well as the convict who drove the car under the circumstances.
The evidence at the trial was sufficient to warrant a finding of negligence on the part of the convict operating the car. The only question at issue is whether the driver's negligence is attributable in law to the city under the circumstances of this case. The court below held that it was not, and directed a verdict for the defendant at the conclusion of the plaintiff's evidence. The principal assignment of error is based on this ruling.
The evidence shows that on the day of the alleged injury Max Lenhoff, a convict foreman, was in charge of a squad of negro prisoners and that he had been directed by the city jailer to engage in the work of cleaning up rubbish and débris which had been occasioned by a recent severe hurricane. In doing so, Lenhoff was acting under instruction from one Dr. Ziebold, the director of public welfare of the city of Miami, and Dr. Ziebold was in turn acting for the city manager of Miami, under said city manager's instructions, which he had authority to give.
Prior to the accident, the foreman or guard, Lenhoff, had taken the force of prisoners from the city jail and was using them in cleaning up rubbish and débris, although at the exact time of the accident it appears that this force was engaged in trying to launch a barge which had been damaged by the storm and driven ashore. The city contended at the trial that this barge was the private property of the chief of police of the municipality, and that the employment of the city forces for the purpose of launching this craft was unauthorized and ultra vires. However, the exact work in which the convict force was engaged becomes immaterial to the city's liability, in view of the circumstances under which the injuries on the plaintiff were inflicted.
These circumstances were that, at the dinner hour, on the day in question, the convict foreman sent one of the negro laborers, a prisoner working on the city chain gang, into the city to bring back dinner for the other laborers. For the purpose of bringing back this food, the foreman intrusted to the negro convict a Dodge car, which, although owned as the private property of the foreman, was nevertheless shown to have been used and employed by the foreman in the discharge of such foreman's work for the city, and that this was done with the knowledge and acquiescence of the city, which permitted the foreman to use its city automobile tag on said car and furnished gasoline, oil, and repairs with which to operate said car about the city's business.
The messenger had driven into the city, obtained the food for which he was sent, and was on his way back to the place where the laborers were working, when he negligently and carelessly ran over the plaintiff. Food for the prisoners,...
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