Herr v. Butler

132 So. 815, 101 Fla. 1125

• Court: Supreme Court of Florida
• Decided: March 12, 1931
• Status: Published

Opinions

Buford, C.J.

This case is before us on writ of error attacking the judgment of the Circuit Court of Pinellas County against the plaintiff in error in favor of the defendants in error for damages resulting from an automobile accident. •

The record discloses that the accident occurred on a street in St. Petersburg, Florida. The automobile belonging to the plaintiff in error was being driven at the time of the accident by one G. L. Herr, 49 years of age, the son of H. L. Herr, who was then on a visit from his home in Buffalo, N. Y., to his father and mother in their home in St. Petersburg, Florida. The automobile was being driven by G. L. Herr, while a guest of his father’s in his father’s home, with the knowledge and consent of his father, H. L. Herr, the owner of the automobile.

There is conflict in the evidence as to material matters, all of which have been resolved by the jury in favor of the plaintiff below, the defendants in error here. There was no plea of contributory negligence and therefore, no question of contributory negligence on the part of the plaintiffs in the court below was raised in that court.

There is substantial evidence disclosed by the record as to all material issues sufficient to constitute a basis for the verdict of the jury.

The main contention made here is that because G. L. Herr was not a member of the household of the owner of the automobile and not employed by the owner of the automobile and was not shown to be on business in behalf of and at the direction of the owner of the automobile, the owner of the automobile is not liable for the damage caused by the negligent operation of the automobile by the driver thereof.

It appears that this case comes well within the rule as stated in the case of Southern Cotton Oil Co. vs. Anderson, 80 Fla. 441, 86 Sou. 629, in which the Court say:

“A motor vehicle operated on the public highways is a dangerous instrumentality, and the owner who intrusts it to another to-operate is liable for injury caused to others by the negligence of the person to whom it is ’' intrusted. ’ ’

“An automobile operated upon the public highways being a dangerous machine, its owner is responsible for the manner in which it is used, and his liability extends to its use by anyone with his knowledge or consent. ’ ’

‘£ The Legislature, under its police power to protect the public from dangerous instrumentalities .using the highways, has imposed rigid restraints, regulations and restrictions upon the use of motor vehicles, thus recognizing the danger from their operation, which makes owners liable in damages under the doctrine of respondent superior as applied to dangerous agencies.”

“Chapter 7275, Acts 1917, treats the automobile when operated on the public highways as a dangerous instrumentality, so as to require special regulation and control under the police power, and it is not divested of its dangerous character in an action for damages caused by the negligence of the operator, who is using the car with the owner’s knowledge or consent.”

The above enunciations are supported by authorities cited by Mr. Chief Justice Browne in the able opinion prepared by him for this court in the cause above cited and, in view of the full and clear discussion of these principles in that opinion, it is not needful that they should be further discussed here.

The judgment should be affirmed and it is so ordered.

Affirmed.

Whitfield, Terrell and Davis, J.J., concur. Ellis and Brown, J.J., dissent.