R. A. GARCIA, PLAINTIFF IN ERROR,
v.
ANTONIO BORINO, DEFENDANT IN ERROR
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The Florida Supreme Court affirmed a personal injury judgment, finding that while a jury instruction regarding a father's liability for his son's use of a car was technically flawed, it was harmless error given sufficient evidence of negligence.
The court held that the jury instruction was technically incorrect as it presented an inference of fact as a presumption of law. However, this error was harmless because the evidence was sufficient to support the jury's finding of the father's responsibility and negligence.
“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.”
The jury instruction given by the trial court that was challenged on appeal.
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Join FLexlaw to unlock all legal intelligenceAntonio Borino sued R. A. Garcia for personal injuries sustained when Borino's motorcycle collided with Garcia's automobile, driven by Garcia's minor …
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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.
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Tampa Elec. Co. v. Jandreau, 93 Fla. 520 (Fla. 1927)…Hooker v. Johnson, 10 Fla. 198; Mays v. Seymour, 17 Fla. 725; Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land, Transp. & Manuf’g Co., 27 Fla. 1, 157, 9 South. Rep. 661; Prank v. Williams, 36 Fla. [*523] 136, 18 South. Rep. 351; Garcia v. Borino, 77 Fla. 211, 81 South. Rep. 155; First Nat. Bank v. Roberts, — Fla. —, 109 South. Rep. 635. The evidence indicates that at the time of his fatal injury, the conductor was engaged in performing his duties as conductor which required him to be on the running boa…
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C. W. Zaring & Co. v. Dennis, 155 Fla. 150 (Fla. 1944)…305, 135 So. 806; Florida Motor Lines v. Ward, 102 Fla. 1105, 137 So. 163; Walker v. Smith, 119 Fla. 430, 161 So. 551; Jacksonvillle v. Vaughan, 92 Fla. 339, 110 So. 529; Stearns, etc., Lbr. Co. v. Cawthon, 62 Fla. 370, 56 So. 555; Garcia v. Borine, 77 Fla. 211, 81 So. 155; City of Miami v. Thigpen, 11 So. (2nd) 300. Hence, the judgment appealed from should be affirmed, and, accordingly, it is so ordered. BUFORD, C. J., CHAPMAN and THOMAS, JJ., concur.…