McDougald v. Couey , 145 Fla. 689 ( 1941 )

The declaration quoted in the opinion alleges that the automobile "was owned by the said defendant and was being driven on the public highway," and that "the said operator of said automobile, that was owned by defendant, so negligently," etc. But it is not alleged that "the said operator" was the agent or servant of the owner of the automobile; or that the operator had the authority or consent or permission or acquiescence of the owner, express or implied, for the use of the automobile by the operator so as to invoke the doctrine ofrespondeat superior. Non constat the operator was using the automobile without the knowledge, permission, acquiescence or authority of the owner so as to make the owner liable in an action for damages for the alleged negligence of "the said operator" who is not alleged or proven to be the owner of the automobile.

It clearly appears that the owner of the automobile was not the operator of it when the injury occurred. Unlike railroads which are owned by corporations and operated by corporate agents or servants, automobiles may be operated by the individual owner or by the agent, servant or other person; and the owner, whether corporate or individual, is in general liable for the negligence of the operator only when the automobile is being operated with the knowledge and consent or authority, express or implied, of the owner or his or its duly authorized servant, agent or representative. The relationship of the owner to the operator should be alleged in order to state liability of the owner when he is not the operator; otherwise liability of the owner may not appear by the declaration. See Engleman v. Traeger, 102 Fla. 756,136 So. 527; Coombs v. Rice, 64 Fla. 202, 59 So. 958; Potts v. Mulligan, 141 Fla. 685, 193 So. 767; Warfield v. Hepburn62 Fla. 409, 57 So. 618; Dowling v. Nicholson, 101 Fla. 672,135 So. 288; 42 C. J. 1192, Sec. 979; Bashfield's Cyclopedia of Automobile Law and Practice, Vol. IX, Sec. 5982.

If the relationship of the owner and operator is alleged and it is not denied by special pleas, it will be admitted by the defendant. Sec. 4332-4333 (5) C. G. L. If the relationship is duly alleged and is denied by special plea, it must be proved as required by law. Thomas v. Western Union Co., 129 Fla. 155,176 So. 122; McLeod Construction Co. v. Cooper, 101. Fla. 441,134 So. 224. If such relationship is not duly alleged the declaration is defective in allegations. If the sufficiency of the declaration is not duly challenged because such relationship was not alleged and the relationship is without objection proved or admitted as evidence, the defendant may not, in general, challenge the sufficiency of the declaration on that ground after final judgment for plaintiff, unless such insufficiency was duly challenged during the proceedings. But the declaration may be amended if seasonably moved for and duly allowed as may be provided by law. In this case the sufficiency of the declaration was challenged.

Rehearing denied.

BROWN, C. J., WHITFIELD, TERRELL and CHAPMAN, J. J., concur.