Wolfe v. City of Miami

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM.
Citation103 Fla. 774,137 So. 892
Decision Date01 December 1931
PartiesWOLFE v. CITY OF MIAMI.

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

[103 Fla. 775] 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...

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21 practice notes
  • Hoggard v. City Of Richmond.*
    • United States
    • Virginia Supreme Court of Virginia
    • January 9, 1939
    ...100 So. 150; City of West Palm Beach v. Grimmett, 102 Fla. 680, 136 So. 320, 137 So. 385; and Wolfe v. Miami, 103 Fla. 774, 134 So. 539, 137 So. 892. The same inconsistency seems to exist in Georgia. Compare City of Macon v. Roy, 34 Ga.App. 603, 130 S.E. 700, with City of Warrenton v. Smith......
  • Hoggard v. Richmond, Record No. 2004.
    • United States
    • Virginia Supreme Court of Virginia
    • January 9, 1939
    ...119, 100 So. 150; City of West Palm Beach Grimmett, 102 Fla. 680, 136 So. 320, 137 So. 385; and Wolfe Miami, 103 Fla. 774, 134 So. 539, 137 So. 892. The same inconsistency seems to exist in Georgia. Compare City of Macon Roy, 34 Ga.App. 603, 130 S.E. 700, with City of Warrenton Smith, 149 G......
  • Davis v. Provo City Corporation, No. 7905
    • United States
    • Supreme Court of Utah
    • December 31, 1953
    ...of activity engaged in by the city. City of West Palm Beach v. Grimmett, 102 Fla. 680, 136 So. 320, 137 So. 385; Wolfe v. City of Miami, 103 Fla. 774, 134 So. 539, 137 So. 892; City of Tallahassee v. Kaufman, 87 Fla. 119, 100 So. South Carolina has held that in the absence of statute, a mun......
  • Crenshaw Bros. Produce Co., Inc. v. Harper
    • United States
    • United States State Supreme Court of Florida
    • February 23, 1940
    ...his negligence.' Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. at page 636, 16 A.L.R. 255. And in Wolfe v. City of Miami, 103 Fla. 774, 134 So. 539, 540, 137 So. 892, this Court quoting from Herr v. Butler, 101 Fla. 1125, 132 So. 815, said: 'An automobile operated upon the public......
  • Request a trial to view additional results
21 cases
  • Hoggard v. City Of Richmond.*
    • United States
    • Virginia Supreme Court of Virginia
    • January 9, 1939
    ...100 So. 150; City of West Palm Beach v. Grimmett, 102 Fla. 680, 136 So. 320, 137 So. 385; and Wolfe v. Miami, 103 Fla. 774, 134 So. 539, 137 So. 892. The same inconsistency seems to exist in Georgia. Compare City of Macon v. Roy, 34 Ga.App. 603, 130 S.E. 700, with City of Warrenton v. Smith......
  • Hoggard v. Richmond, Record No. 2004.
    • United States
    • Virginia Supreme Court of Virginia
    • January 9, 1939
    ...119, 100 So. 150; City of West Palm Beach Grimmett, 102 Fla. 680, 136 So. 320, 137 So. 385; and Wolfe Miami, 103 Fla. 774, 134 So. 539, 137 So. 892. The same inconsistency seems to exist in Georgia. Compare City of Macon Roy, 34 Ga.App. 603, 130 S.E. 700, with City of Warrenton Smith, 149 G......
  • Davis v. Provo City Corporation, No. 7905
    • United States
    • Supreme Court of Utah
    • December 31, 1953
    ...of activity engaged in by the city. City of West Palm Beach v. Grimmett, 102 Fla. 680, 136 So. 320, 137 So. 385; Wolfe v. City of Miami, 103 Fla. 774, 134 So. 539, 137 So. 892; City of Tallahassee v. Kaufman, 87 Fla. 119, 100 So. South Carolina has held that in the absence of statute, a mun......
  • Crenshaw Bros. Produce Co., Inc. v. Harper
    • United States
    • United States State Supreme Court of Florida
    • February 23, 1940
    ...his negligence.' Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. at page 636, 16 A.L.R. 255. And in Wolfe v. City of Miami, 103 Fla. 774, 134 So. 539, 540, 137 So. 892, this Court quoting from Herr v. Butler, 101 Fla. 1125, 132 So. 815, said: 'An automobile operated upon the public......
  • Request a trial to view additional results

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