Garcia v. Borino

81 So. 155, 77 Fla. 211

Opinion

Whitfield, J.

— Borino recovered a judgment for |250.00 as damages for personal injuries sustained by a collision of plaintiffs motocycle with defendant’s automobile negligently driven by his minor son. Garcia took writ of error.

At the trial the court gave the following charge: “The court instructs you that the presumption is that a minor child living with his father and uses his father’s automobile in and about the business of such father is acting on his father’s behalf and upon his father’s direction until the contrary is made to appear by the evidence.”

This is not a correct charge in that it gives as a presumption of law what is merely an inference of fact that may be drawn by the jury from the facts stated. See Denison v. McNorton, 228 Fed. Rep. 401; Lemke v. Ady, (Iowa) 159 N. W. Rep. 1011. But in this case the error is harmless, since the evidence is sufficient to sustain a finding of the father’s responsibility for the acts of the son in running the automobile and a finding of negligence to support the verdict, contributory negligence of the plaintiff not being so clearly established as to manifest error in the verdict.

Uo material errors of procedure appearing, the judgment is affirmed.

All concur.