Wolfe v. City of Miami , 103 Fla. 774 ( 1931 )

The judgment in this case was reversed, and the cause remanded for a new trial (See Wolfe vs. Miami,134 Sou. Rep. 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. 46, 64 Sou. Rep. 435; Gravette v. Turner, 77 Fla. 311,81 Sou. Rep. 476; Stevens vs. Tampa Electric Company, 81 Fla. 512,88 Sou. Rep. 303; Anderson vs. Southern Cotton Oil Company,73 Fla. 432, 74 Sou. Rep. 975.

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 summarized the gist of plaintiff's case as follows:

"At or about noon, one of the prisoners was directed by the guard to take an automobile, and to go and get dinner for the men, and return with it in the car. This car was owned by the guard, and the city furnished the gas and oil for its use, and paid for and looked after its up-keep. The prisoner took the car, but while returning on his way back to the boat yard, the accident occurred. The injury to plaintiff is serious. There is no evidence tending to show contributory negligence on her part, and there is evidence which tends to show that the injury may be permanent."

Direction of the verdict was based on the theory that because the prisoners were alleged to be engaged on some particular work in which the city had no interest, that no liability could arise against the city when a negro convict, sent in to another part of the town to get food for the negro prisoners which were admittedly in the city's custody and required to be fed by the city, negligently ran over the plaintiff with an automobile which the city did not own, but which it "maintained" as testified to by its own employees and officials, and upon which it kept up the repairs and paid for the operating expenses, and also upon which at the time of the accident, was a city license tag issued by the state to the City of Miami and which only the city or those who acted for it were authorized to use.

The declaration was demurred to and the demurrer overruled, and properly so, we think. The proof offered substantially tends to support the facts alleged in the declaration. These facts are that the City of Miami maintained and operated an automobile for the transportation of its servants, agents and employees; that on the occasion of the plaintiff's injuries, the convict foreman, acting within the line of his duty and of his principal's business, sent the car in charge of a negro convict, Harris Johnson, to bring food to its force of convict laborers in the foreman's custody.

It was the city's duty to feed those whom it had in custody and the evidence shows that this duty was on the instant occasion being exercised through Max Lenhoff, the convict foreman, and therefore the work upon which the other convicts were engaged at the time was utterly immaterial to the city's liability for negligently running over plaintiff while on a mission for or transporting food to the city prisoners.

The testimony to which we have referred, and the inferences which are permitted to be drawn therefrom by a jury, does not warrant the direction of a verdict in favor of the defendant, City of Miami, on the theory that no casual connection between an agent or servant of the city and the negligence complained of, appears.

We hold, on the contrary, that the motion for a directed verdict should have been overruled, and that the plaintiff's case should have been submitted to the jury under proper instructions to determine 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 City when he negligently injured her on the streets of Miami, the question of the negro 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. Watkins vs. Sims, 81 Fla. 730, 88 Sou. Rep. 764.

The judgment of reversal and the order heretofore entered that the cause be remanded with directions to grant a new trial and have such other proceedings as may be according to law and justice, should stand, and it is so ordered.

Reversal adhered to on rehearing.

WHITFIELD, P.J., AND TERRELL AND DAVIS, J.J., concur.

BUFORD, C.J., AND ELLIS AND BROWN, J.J., concur in the opinion and judgment.