Walker, Et Vir. v. Smith, Eat Al. , 119 Fla. 430 ( 1935 )

The writ of error here is to review a judgment in favor of defendant on demurrer sustained to second amended declaration.

The first and second counts of the declaration were grounded on injuries accruing to Dorothy Walker as a result of the collision of the automobile, in which she was riding and which was then driven by her husband, C. M. Walker, with an unlighted truck belonging to defendants and then left standing on the public highway in the night time.

The third and fourth counts of the declaration were grounded on damages alleged to have been sustained by C. M. Walker for expense incident to the damage done his automobile in the collision described in these counts the same as is described in the first and second counts. The bill of particulars attached to the declaration shows that the damage to the automobile was $338.00. The third and fourth counts of the declaration each allege this damage to have been in the sum of $355.00. Therefore, the declaration on its face shows that the claim declared upon in the third and fourth counts was not large enough to bring the same within the jurisdiction of the Circuit Court of Dade County. It follows that the demurrer was properly sustained as to the third and fourth counts of the second amended declaration.

The first and second counts of the declaration do not entirely fail to state a cause of action.

One driving on the public highway has the right to assume that others using the highway will conform to the law of the road and will use those means which the law requires them to use for the protection and safety of others.

Section 1021 R. G. S., 1294, C. G. L., provides, in part: "Every motor vehicle operated or driven upon the public highways of this State shal be provided with adequate brakes in good working order, and sufficient to control such vehicle at all times when the same is in use, and an adequate horn or other device for signaling, sufficient under all conditions to give timely warning of the approach of the motor vehicle, and shall during the period from one-half hour after sunset to one-half hour before sunrise display at least two lighted lamps on the front and one on the rear of such vehicle."

Section 2 of Chapter 10186, Acts of 1925, Sec. 1319 C. G. L, provides as follows:

"All motor vehicles shall be provided with lights in front and light in the rear. The front or driving lights shall be of the tilting variety or some other device which will kill the glare of the driving lights."

Section 3 of Chapter 10186, supra, Sec. 1320 C. G. L., provides as folows:

"It shall be unlawful to stop any motor vehicle on the public roads, for either convenience or repair, but in all cases where possible to do so shall turn off the road to the right and the left wheel nearest the center of the paving shall not be more than one foot on the side of the paving. All vehicles shall drive on the right side of the road except when passing a slower vehicle."

The declaration alleges violation of each of the sections and alleges that the negligence of defendant's agents and servants by obstructing the highway in the use of defendant's truck in the performance of the duties for which such agents and servants were employed by the defendants caused the injury without any fault on the part of the plaintiff.

Whether or not the plaintiff's husband was guilty of contributory negligence which will be in law visited on the plaintiff and whether or not the plaintiff was guilty of contributory negligence are matters to be determined on pleadings and proof. See Bugna, et al., v. Taylor, 114 Fla., 723, 154 So. 831.

In the case of Kaufman v. Hegeman Transfer Lighterage Terminal, Inc., et al., 100 Conn. 141, 123 A. 16, the Supreme Court of Connecticut said:

"The appeal from the denial of defendant's motion to set the verdict aside as against the evidence is based upon defendants' single proposition on that 'it is contributory negligence for the operator of an automobile to operate such motor vehicle at such a rate of speed that he cannot stop the motor vehicle in the space included in his vision ahead of him.' The proposition is based upon the assumption of fact that this operator could not stop the motor vehicle in the space of his vision. It makes the distance the plaintiff saw the trucks ahead on this morning 10 to 15 feet. It leaves out of the proposition the distance ahead the plaintiff could have seen had the automobile displayed a light with which to warn approaching travelers. It does not appear but that had such warning been given the plaintiff could have stopped his car within the space included in his vision, even though he were traveling at this speed. He was entitled to assume that the highway was open for public travel and, in the absence of warning that he could safely travel thereon at a reasonable rate of speed. We cannot hold, as matter of law, that traveling upon the right side of a highway, such as this was at this point, in the night season, at 20 to 25 miles an hour is negligent conduct. It depends upon all the circumstances of each case, and, unless they unmistakably point to one conclusion, the decision is essentially one of fact for the trier, since it is merely the determination of what is reasonable under the circumstances. The defendants would force the traveler to assume that the highway was liable to be obstructed, and in view of this to so travel that he should not collide with any obstruction in the highway, however negligently it may have been maintained upon it. It would thus impose upon the traveler the exercise of extraordinary care instead of ordinary care under the circumstances. The court did not err in not charging the jury that the plaintiff was guilty of contributory negligence, and therefore could not recover."

In Florida Motor Lines v. Ward, 102 Fla. 1105, 137 So. 163, we said: "all travelers on the public streets and highways have the right to assume that other travelers will observe the law of the road, obey all regulations relative to the use of highways and in general exercise reasonable care to avoid injury to their fellow travelers."

And again in the same case we said: "The law of the road is now embraced in statutes, ordinances and regulations, is promulgated for the protection of life and property, it is an essential part of the common knowledge of every traveler and he who goes on the highway and negligently or otherwise fails to observe it does so at his peril."

Reverting now to what we said near the beginning concerning the third and fourth counts of the second amended declaration, we observe that Section 2586 R. G. S., 4226 C. G. L., is as follows:

"Action by Man and Wife. — In any action brought by a man and his wife for an injury done to the wife, in respect of which she is necessarily joined as co-plaintiff, the husband may add thereto claims in his own right, and separate action brought in respect of such claims may be consolidated if the court shall think fit. In case of the death of either plaintiff, such suit, so far as it relates to the causes of action, if any, which do not survive, shall abate, but to that extent only."

Now as we construe this section it applies to causes of action for damages resulting from injuries done the wife.

In the present suit counts one and two of the second amended declaration declare for damages in favor of the wife for injuries done to the wife, while counts three and four declare for damages accruing to the plaintiff therein named who happened to be the husband of the plaintiff named in the first and second counts for injury not to the wife but to an automobile and the amount of the damage alleged is too small to come within the jurisdiction of the Circuit Court of Dade County, but comes within the jurisdiction of the Civil Court of Record of Dade County.

The same statute which authorized actions to be joined also authorizes separate action in respect to claims within the purview of the statute to be consolidated. Now, it could not possibly be logically contended that if the wife had filed a suit in the Circuit Court for the damages which she is alleged to have sustained that the husband could have filed an independent suit in that court for damages to the automobile in the sum of $356.00 and maintain the suit in that court either as a separate action nor could we have had it consolidated with the suit of the wife and thereby brought it within the jurisdiction of the court. Nor could he have filed a separate suit in the Civil Court of Record and thereafter had that suit consolidated with a suit instituted by his wife in the Circuit Court.

We do not hold that the husband could not under the statute here discussed have added to the declaration counts covering claims in his own right resulting from injuries done his wife whether the amount of such damages claimed by him for such injuries was greater or less than the amount which he seeks to recover in his own right in this case. In this case the injury to the wife has no bearing whatever upon the damage claimed for injuries done to the automobile and, therefore, the third and fourth counts of the second amended declaration were properly eliminated on demurrer.

The judgment should be reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

It is so ordered.

Reversed.

ELLIS, P. J., and TERRELL, J., concur.

WHITFIELD, C. J., and DAVIS, J., concur in the opinion and judgment.

BROWN, J., dissents in part.