Walker, Cornelius T.

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University of Florida Levin College of Law

Florida Law Review Volume 1 Issue 2 Article 9 March 2021 Automobile Owner's Liability for the Negligent Act of the Driver: Pleading and Proof Cornelius T. Walker Follow this and additional works at: https://scholarship.law.ufl.edu/flr  Part of the Law Commons Recommended Citation Cornelius T. Walker, Automobile Owner's Liability for the Negligent Act of the Driver: Pleading and Proof, 1 Fla. L. Rev. 286 (2021). Available at: https://scholarship.law.ufl.edu/flr/vol1/iss2/9 This Note is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. UNIVERSITY OF FLORIDA LAW REVIEWto the guest. The hotel business is a matter of public interest and is sub-ject to legislative regulation which may, within reasonable limitation,extend or restrict the rights and liabilities of persons involved. 2 5 Somelimitation is certainly desirable. The Florida statute, however, is toostrict to provide adequate protection to the guest. The limitation ofone thousand dollars placed on valuables deposited in the hotel safe isreasonable; but, as a practical matter, guests are unlikely to submit acomplete inventory of baggage and wearing apparel in order to get thefull protection of the five hundred dollar limitation. In many instanceseven this would still be most inadequate. When a guest has establishedthat the goods were lost and the management through its negligencecaused that loss, it seems that recovery for the true value of the propertyshould be permitted; but, under the resent statute, failure of the guestto submit an inventory of property limits his recovery to one hundreddollars. Although the common law liability has not been extinguished,it has been rather severely limited. Some mitigation of the harsh dutyimposed by the common law is necessary today; but the 1947 amendmenthas gone so far in limiting the duty of the innkeeper as to leave the guestwith inadequate protection.HENRY A. CARRINGTONAUTOMOBILE OWNER'S LIABILITY FOR THE NEGLIGENT ACTOF THE DRIVER: PLEADING AND PROOFFlorida Laws 1947, c. 24199, §1, Fla. Stat. Ann. §51.12A 1947 Florida statute' relieves the plaintiff of the necessity ofalleging the legal relationship existing between the owner of an auto-mobile and the driver in an action to recover damages from the ownerfor the negligent operation of the vehicle by a third party driver. Previ-ously, a declaration which failed to allege the legal relationship (e.g.,master and servant, principal and agent, bailor for hire and bailee, or"State v. Norval Hotel Co., 103 Ohio St. 361, 133 N. E. 75 (1901).'Florida Laws 1947, c. 24199.1Walker: Automobile Owner's Liability for the Negligent Act of the Driver:Published by UF Law Scholarship Repository, 2021LEGISLATIVE NOTESbailor and gratuitous bailee2 ) which existed between the owner anddriver was insufficient for recovery.3 In addition to establishing thedefendant's ownership, the plaintiff was required to prove that this legalrelationship existed at the time of the negligent operation. 4 The statuteprovides that a presumption of the owner's liability is established by theplaintiff's proof of defendant's ownership of the vehicle and of the identityof the driver. In effect this amounts to a presumption that the auto-mobile was being driven by the third party with the defendant owner'sconsent, inasmuch as in this state the owner of an automobile is liablefor any negligent use of his motor vehicle while being operated with hisexpress or implied consent. 5In determining the ownership of the automobile, another 1947 statute8must be considered. This statute provides, inter alia, that an owner whohas made a bona fide sale shall not be subject to civil liability when hehas made the proper endorsement of his certificate of title to a purchaserand either delivered it to the purchaser or mailed it to the Commissionerof Motor Vehicles. Under a similar statute in another jurisdiction,7it has been held that the vendor is precluded from denying ownershipof the motor vehicle unless the certificate of title has been properly en-dorsed and delivered.8 The same conclusion could be reached underthe Florida statute.The 1947 statute further provides that this presumption of liabilityof the owner of the vehicle for the negligent operation by a third partyis subject to rebuttal by competent evidence. It is important, therefore,to determine what the legislature intended to require as competent evi-dence. According to the Wigmore theory9 all presumptions are alikeand disappear upon the introduction of substantial countervailing evidence.Under this view the owner's mere denial would rebut the presumption and'Lynch v. Walker, 31 So.2d 268 (Fla. 1947) ; Engleman v. Traeger, 102 Fla. 756, 136So. 527 (1931) ; Herr v. Butler, 101 Fla. 1125, 132 So. 815 (1931) ; Southern Cotton OilCo. v. Anderson, 80 Fla. 441, 86 So. 629 (1920) ; Anderson v. Southern Cotton Oil Co.,73 Fla. 432, 74 So. 975 (1917).'McDougald v. Couey, 145 Fla. 689, 200 So. 391 (1941).'D'Allesandro v. Bechtol, 104 F.2d 845 (C. C. A. 5th 1939); Engleman v. Traeger,102 Fla. 756, 136 So. 527 (1931).'Cases cited note 2 supra.'Florida Laws 1947, c. 23658 (Title Certificate Law).7GEN. CODE O3o §§6290-3, 6290-4.'Fredricks v. Birkett L. Wiflliams Co. 68 Ohio App. 217, 40 N. E.2d 162 (1940).'9 Wsoxon, EvmEmxcF §§2490, 2491 (3d ed. 1940).2Florida Law Review, Vol. 1, Iss. 2 [2021], Art. 9https://scholarship.law.ufl.edu/flr/vol1/iss2/9

Automobile Owner\u27s Liability for the Negligent Act of the Driver: Pleading and Proof

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Automobile Owner\u27s Liability for the Negligent Act of the Driver: Pleading and Proof

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