The declaration in this case, consisting of two counts, rests upon the theory that the Southern Cotton Oil Company, a corporation, defendant below, through its "agent and servant," negligently operated an automobile, owned by the defendant, upon the streets of Pensacola so that the plaintiff was injured.
The first count alleges that the automobile was "being run and operated by its (the company's) agent and servant in and upon the streets of the City of Pensacola, County of Escambia, State of Florida, with the permission of and by the authority of said defendant in transporting himself from his lunch in said city to his place of employment, to wit, the place of business of said defendant," and that while the automobile was being "so run and operated" by the defendant's agent and servant, "and at a time and place and with the permission and authority of the defendant as aforesaid, and within the *Page 464 scope of his authority as such agent and servant, to-wit, in transporting himself back to the place of business of said defendant," he carelessly and negligently drove and operated the automobile so that the plaintiff was injured.
The second count alleges that the defendant, the owner of the automobile, "was by its agent and servant driving, operating and conducting same on and upon the streets of the City of Pensacola, County and State aforesaid," and that while the plaintiff was riding a motorcycle at the intersection of Garden and Donelson streets in the city and proceeding with due care, the "defendant by its agent and servant so carelessly and negligently drove, managed and operated said automobile" that the plaintiff was injured, etc.
The case was tried upon the general issue of not guilty, which denied the wrongful act alleged to have been committed by the defendant. See Rule 71, Law Actions.
The facts in the case are undisputed and are set forth in the dissenting opinion in the first decision of this case. See Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 South. Rep. 975.
Upon the second trial the evidence was much clearer that Barrow, the company's cashier, in using the automobile was merely required to make daily trips to the City of Pensacola from the offices of the company, which were located some distance out on Palafox Street, attend to the banking and shipping for the company and after getting lunch for himself return to the company's place of business about one o'clock. That the trip for the young lady took him some distance away from the line of his route back to the offices of the company. In fact in making this trip he was required to leave Palafox *Page 465
Street, go out some distance on Garden Street, return to Palafox Street to a point farther away from the offices than where he had eaten his lunch. After arriving at the young lady's house he undertook an errand for her which carried him further away. Upon this latter trip the accident occurred.
The local manager of the company knew that Barrow had frequently before that time used the automobile to take the young lady to her work, but Barrow had never before undertaken in the automobile an extra or special mission for the young lady. The local manager nor any one else for the company had authorized Barrow to make such use of the machine in performing errands for the young lady, or in indulging in his own inclination to be of service in taking her from her house or boarding place to her work.
Now the declaration being framed upon the theory that the wrongful act of the company's cashier, Barrow, casts upon the company liability for the injury, it becomes necessary to a recovery for the plaintiff to show that the wrongful act of Barrow was done in the cause and within the scope of his employment as the company's agent. That issue was the one presented, the only one tried.
The majority opinion upholds the verdict and judgment upon the theory that one who permits another to use an instrument dangerous in its operation is liable in damages for the negligent operation of such instrument, notwithstanding the user was engaged upon an independent errand of his own. But that is not the theory upon which the declaration was framed, nor the cause tried. That was not the case made by the pleadings; nor was it the principle upon which the charges given by the trial court to the jury was framed. *Page 466
The view of the judge who tried this case seems from the instructions given to have been that if the defendant's manager knew of Barrow's practice in using the automobile to take the young lady to her work and asquiesced in such practice, then Barrow's departure from his line of duty on the day of the accident could not be considered as an abandonment of his employment, but that he was still acting in the defendant's interest and within the general scope of his authority.
The judgment should not be affirmed upon the theory that the automobile being a dangerous instrument in operation, the defendant must be held liable for any injury resulting from carelessness on the part of one to whom it may have been entrusted as a kind of tort feasor, because no such case was presented to the court. There should be a recovery only upon the principle of Respondeat Superior because such is unmistakably the doctrine upon which the declaration rests. To hold otherwise is to reverse the doctrine so often announced by this court that the recovery by plaintiff must be upon the case made by the pleadings.
There may be cogent reasons why the Legislature should impose upon the owners of automobiles the additional liability for injuries caused by the machine when carelessly operated by any person to whom the owner may have entrusted it for the former's pleasure and not the owner's interest, but until the Legislature in the exercise of police power for the public safety so declares, the court should not outstrip the lawmaking body in its effort to meet public opinion.
Nor do I think the judgment should be affirmed upon the theory announced by the trial court in the charge to which I have referred, because the evidence in my opinion *Page 467 establishes beyond peradventure of doubt that Barrow was upon an independent errand of his own, or more accurately an independent errand or business of the young lady in whose service he was then acting when the acident occurred.
WEST, J., concurs.
On Petition for Rehearing.