EMIL PETITTE, APPELLANT,
v.
JOHN P. WELCH AND FRANK FORGIONE, APPELLEES
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The court held that the complaint failed to state a cause of action against the owner because the automobile was not being operated by the owner's agent or servant.
Plaintiff was injured by a car owned by defendant Welch, which was left with a service station. The car was driven by a third person on the service st…
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The plaintiff appeals a final judgment on an order dismissing his complaint as to one of two defendants. The defendant Welch was the owner of the car which injured the plaintiff and is the appellee here. The complaint alleges, (1) the defendant Welch owned an automobile which he left in the possession of the operator of a service sta*21tion; (2) while the automobile was in the possession of the service station operator, it was driven on the premises of the service station by a third person (whose relationship to the service station operator was not alleged) ; (3) as the result of a negligent operation of the automobile the plaintiff was injured. The defendant, owner, moved to dismiss the complaint for failure to state a cause of action. The motion was granted and this appeal resulted.
The appellant argues the broad proposition that the dangerous instrumentality doctrine ought not be limited to the operation of an automobile on the public highways of this State. Such a holding would be contrary to the express statement of the Supreme Court in many decided cases.1 In particular such a holding under the circumstances of this case would be contrary to that of the District Court of Appeal, Second District in Fry v. Robinson Printers, Inc., Fla.App.1963, 155 So.2d 645.2
Although it might be possible to distinguish the present case from the Fry case in that in the Fry case the car was actually in the process of being serviced and in the present case the allegation is that it was being operated, we do not think the difference justifies a distinction.
The appellant has pointed out that § 51.-12, Fla.Stat., F.S.A., provides that as to “Pleadings of the Plaintiff” the element of liability to the owner for negligence of a driver, it is sufficient to allege the operation of the driver and the name of the owner, without the necessity of alleging the relationship existing between the owner and its. driver.3
We have examined this section and find that it does not enlarge the basis of the owner’s responsibility for the operation of his automobile but limits the pleadings necessary in cases where the law now provides damages for the negligent operation *22of the automobile by a person other than the owner thereof. It will be noted that in the instant complaint the plaintiff does not allege simply the operation of the motor vehicle by a person other than the owner, but sets forth affirmatively that the automobile was in the possession of the service station operator.
The dangerous instrumentality. doctrine as applied to automobiles in Florida has always been grounded exclusively upon respondeat superior. Weber v. Porco, Fla.1958, 100 So.2d 146. The complaint in the present instance affirmatively shows that the automobile was not being operated by an agent or servant of the defendant, owner, but on the contrary that it was being operated by a person under the direction and control of the filling station operator. We hold therefore that the complaint failed to state a cause of action against the owner.
Affirmed.
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Citator
Cited By (15 total)
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Fla. Power & Light Co. v. Price, 170 So. 2d 293 (Fla. 1964)…eof by one employee resulting in injury to another employee of the service station, both being engaged in performing duties in connection with servicing or repairing the automobile at the time of the injury.” (Emphasis court’s) In Petitte v. Welch, 167 So. 2d 20 (Fla.App.3d 1964), it was held: “3. Automobiles ^238(2) “Complaint failed to state cause of action against owner of automobile [*297] which owner had left in possession of service station operator for injury to plaintiff as result of operation of…
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Castillo v. Bickley, 363 So. 2d 792 (Fla. 1978)…limited the broad doctrine announced in Susco. Harfred Auto Imports, Inc. v. Yaxley, 343 So. 2d 79 (Fla. 1st DCA 1977); Patrick v. Faircloth Buick Co., 185 So. 2d 522 (Fla. 2d DCA 1966), cert. discharged, 198 So. 2d 825 (Fla.1967); Petitte v. Welch, 167 So. 2d 20 (Fla. 3d DCA 1964), cert. denied, 172 So. 2d 598 (Fla.1965). In Harfred, Judge McCord carefully analyzed the state of Florida law on this issue and opted to follow the nationwide majority rule of owner liability only in cases where the doctrine of…
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Freddy R. Smith v. Ryder Truck Rentals, Inc., 182 So. 2d 422 (Fla. 1966)…t be equitable, but would create hardship, to extend or impute the doctrine of vicarious liability to a lessor. Compare such exceptions to the doctrine as appear in Fry v. Robinson Printers, Inc., 155 So. 2d 645 (Fla.App. 2d 1963), Petitte v. Welch, 167 So. 2d 20, (Fla.App.1964), and Florida Power and Light Co. v. Price, 170 So. 2d 293 (Fla. 1964). Latent, though unexpressed in the opinions below, is the thought that vicarious liability founded on the doctrines of dangerous instrumentality and respondeat su…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kraemer v. Gen. Motors Acceptance Corp., 572 So. 2d 1363 (Fla. 1990)
- S. Cotton Oil Co. v. Anderson, 80 Fla. 441 (Fla. 1920)
- Crenshaw Bros. Produce Co., Inc. v. Harper, 142 Fla. 27 (Fla. 1940)
- Weber v. Porco, 100 So. 2d 146 (Fla. 1958)
- FRY v. Robinson Printers, Inc., 155 So. 2d 645 (Fla. 2d DCA 1963)