Wolfe v. City of Miami

• Decision Date: 01 December 1931
• Citation: 103 Fla. 774,137 So. 892
• Parties: WOLFE v. CITY OF MIAMI.
• Court: Florida Supreme Court

137 So. 892

103 Fla. 774

WOLFE v. CITY OF MIAMI.

Florida Supreme Court, Division B.

December 1, 1931

Error to Circuit Court, Dade County; A. J. Rose, Judge.

On rehearing.

Former opinion modified, and former judgment of reversal adhered to.

For former opinion, see 134 So. 539.

Syllabus by the Court.

SYLLABUS

In trial of an action at law, brought against a municipal corporation for damages alleged to have been sustained by a pedestrian who was run over on the streets of the city by an automobile being operated by a negro convict for the purpose of carrying food to city prisoners, held, that motion for a directed verdict should have been overruled and that the plaintiff's case should have been submitted to the jury to determine the defendant's liability under the theory of plaintiff's declaration that the negro convict driver of the car which injured plaintiff was acting under authority of and for the municipal corporation when he negligently injured plaintiff on the city's streets; the question of the driver's agency for the city under the circumstances being a proper question for submission to the jury to be decided as a question of fact.

Judgment of reversal in Wolfe v. Miami (Fla.) 134 So. 539 adhered to on rehearing, but opinion modified as herein stated.

COUNSEL

A. B. & C. C. Small, Wallace Ruff, and Robert J Boone, all of Miami, for plaintiff in error.

J. W Watson, Jr., Mitchell D. Price, Charles W. Zaring, and Jack R. Kirchik, all of Miami, for defendant in error.

OPINION

PER CURIAM.

The judgment in this case was reversed, and the cause remanded for a new trial (see Wolfe v. Miami, 134 So. 539) after which a rehearing was granted and oral argument had before the entire court.

At the trial a verdict was directed for the city at the conclusion of the plaintiff's evidence, and the effect of our previous reversal of the case for a new trial is to hold that there was sufficient evidence offered by the plaintiff to withstand a motion for a directed verdict. By making such motion, the city necessarily admitted, not only the facts stated in the evidence adduced, but also admitted every conclusion favorable to the plaintiff that a jury might have fairly and reasonably inferred from the evidence. Gunn v. Jacksonville, 67 Fla. 40, 64 So. 435; Gravette v. Turner, 77 Fla. 311, 81 So. 476; Stevens v. Tampa Electric Company, 81 Fla. 512, 88 So. 303; Anderson v. Southern Cotton Oil Company, 73 Fla. 432, 74 So. 975, L. R. A. 1917E, 715.

Max Lenhoff, the convict foreman in charge of the city prisoners, testified that, on the day the plaintiff was injured by the automobile driven by one of these prisoners at the direction of Lenhoff, 'We were cleaning up the city in general.' He was also asked with reference to the automobile which struck the plaintiff, 'Q. Did the City pay for the upkeep, for the gasoline and oil of the car?' to which he answered, 'Yes, sir.' Again he was asked, 'The city have a license tag on it?' to which he answered, 'Yes, sir.' Furthermore, Lenhoff also testified, when asked the question, 'What errand did you send this negro on?' that it was 'to get dinner for the remainder,' referring to the remainder of the convicts then under his charge, which he had already previously testified during the course of the same examination 'were cleaning up the city in general.' In addition to this, on cross-examination by Senator Davis, counsel for the city, Lenhoff was asked the question, 'You say the city furnished that tag?' and answered, 'Yes, sir.' 'You get those tags through the superintendent of the garage, don't you? A. Yes, sir.' At another place in the testimony Lenhoff was again asked, 'Mr. Lenhoff, when you were hired in this department, it was with the understanding that you were to furnish your own car, but the city would furnish the gas and oil and the upkeep of that car, is that true?' and answered, 'Yes, sir.' Dr. A. W. Ziebold, director of public welfare of the city of Miami at the time of the accident, testified in this connection as follows: 'Q. Did the City maintain an automobile for Max Lenhoff as a city employee, or do you know? A. Yes, we did. Prior to November 30th, and we did after November 30th, I presume that we did then.' Ziebold also testified with reference to the right to use the prisoners which Lenhoff testified were engaged with him in the work of 'cleaning up the city in general' that 'I had the authority of the City Manager for actually employing prisoners. * * * That authority was conferred on us by the City Manager.'

Just prior to the direction of the verdict, the presiding judge himself...