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Docket Number

No. 68-658.

Attorney(S)

Olson Zednek and Montague Rosenberg, Ft. Lauderdale, for appellant. Carey, Dwyer, Austin, Cole Selwood, and Edward A. Perse, Dean, Adams, George Wood, Miami, for appellees.

Judges

PEARSON, Judge.

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Smart Summary

Summary of Opinion: George Francis Whalen v. Vernon F. Hill, Opal M. Hill, Estate of James Gordon Cowden, and Fincher Motors, Inc.

Factual and Procedural Background

George Francis Whalen (plaintiff-appellant) was injured in an automobile collision involving a 1958 Oldsmobile driven by James Gordon Cowden. Whalen sued Cowden, Fincher Motors, Inc., and Mr. and Mrs. Hill, alleging that the Hills and Fincher owned the automobile Cowden was driving. The trial court entered summary final judgments in favor of Mr. and Mrs. Hill and in favor of Fincher Motors, Inc. Whalen appealed from those summary final judgments.

The record facts set out in the opinion show the following chain of events leading to the collision: the Hills owned a 1958 Oldsmobile, title in the names "HILL VERNON F OR OPAL M." They expressed interest in buying a newer car. On March 15, 1967, Cowden, a salesman for Fincher, arranged a sale of a 1965 Oldsmobile to the Hills. The Hills paid $44 and received a $395 allowance on the trade-in 1958 car; the balance was to be financed and finalization was contingent on loan approval. The Hills signed a retail buyer's order, a retail title contract, and blank financing applications. On March 16 Cowden notified them that their loan was approved and brought the 1965 Oldsmobile to their home to exchange it for the 1958. The Hills notified their insurance agent and requested a change of coverage. Cowden delivered the 1965 car to the Hills; Mr. Hill signed the title to the 1958 automobile in blank and Cowden (as Fincher's agent) accepted the title, registration certificate, and the 1958 automobile. At 4:30 A.M. on March 17, 1967, while driving the 1958 Oldsmobile, Cowden collided with Whalen's automobile north of Cowden's home. Cowden was not on his way to or from his place of employment at the time of the collision.

Legal Issues Presented

Whether the Hills remained owners (and thus potentially civilly liable) of the 1958 Oldsmobile after signing the title in blank and delivering the automobile and title to Fincher's agent, or whether they transferred both legal and beneficial title such that they were not liable.
Whether Fincher Motors, Inc. could be held civilly liable for the negligent operation of the 1958 Oldsmobile by its salesman Cowden under the principles summarized as the "dangerous instrumentality doctrine" or related agency/entrustment principles, given evidence about Fincher's policies permitting use of trade-in cars and circumstances of the accident (time and location).

Arguments of the Parties

Appellant (George Francis Whalen)

Alleged that both the Hills and Fincher Motors, Inc. owned the automobile Cowden was driving and thus sought to hold them liable for injuries sustained in the collision.

Appellee Fincher Motors, Inc.

Contended that Cowden was driving the 1958 automobile without permission or authority at the time of the collision because the accident occurred at 4:30 A.M. at a point not on any direct route between Cowden's home and his place of employment; thus, Fincher argued it was relieved of responsibility for harm caused by Cowden's driving.

Appellees Vernon F. Hill and Opal M. Hill

Their position, supported by the transactional facts in the record, was that by signing the title in blank and delivering both title and automobile to Fincher's agent pursuant to the sale agreement, they transferred legal and beneficial title to Fincher and therefore could not be held liable for operation of the vehicle thereafter.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Platt v. Dreka, 79 So.2d 670 (Fla. 1955)	Cited in connection with ownership/transfer principles affecting post-delivery liability.	Used as supporting authority for the conclusion that the Hills, having endorsed and delivered title and possession, were not owners for purposes of civil liability.
Palmer v. R.S. Evans, Jacksonville, Inc., 81 So.2d 635 (Fla. 1955)	Cited in connection with ownership/transfer principles affecting post-delivery liability.	Referenced as supporting the court's conclusion that the Hills transferred legal and beneficial title and thus were not subject to civil liability for later operation.
Williams v. Davidson, 179 So.2d 387 (Fla. App. 1965)	Cited in connection with ownership/transfer principles affecting post-delivery liability.	Relied upon as additional authority supporting the view that proper endorsement and delivery of title removes owner liability under the statute cited.
American Fire Casualty Company v. Blanton, 182 So.2d 36 (Fla. App. 1966)	Summarized law regarding the dangerous instrumentality doctrine and the owner's liability when authorizing use of an automobile.	Quoted for the legal summary that when an owner authorizes another to use an automobile, the owner is liable for negligent operation; used in analysis regarding Fincher's potential liability.
Lynch v. Walker, 31 So.2d 268 (Fla. 1947)	States the basic principle that an owner who authorizes use of his automobile is liable for injuries caused by negligent operation so authorized.	Adopted in the quoted summary as the foundational principle of liability under the dangerous instrumentality doctrine relevant to Fincher's potential responsibility.
Boggs v. Butler, 176 So. 174 (Fla. 1937)	Explains that liability remains even when a driver departs beyond the scope of authority if original entrustment is shown.	Quoted to support the proposition that original entrustment may impose liability on an owner despite a subsequent departure from authorized use.
Ivey v. National Fisheries, Inc., 215 So.2d 74 (Fla. App. 1968)	Applied in conjunction with the dangerous instrumentality principle to determine employer liability under facts involving employee use of a vehicle.	Relied upon along with the quoted authorities to justify reversal of summary judgment for Fincher and to conclude that issues of Fincher's liability could not be resolved against the plaintiff on summary judgment.

Court's Reasoning and Analysis

The court analyzed the summary judgments in two parts: the Hills and Fincher Motors.

Analysis regarding Mr. and Mrs. Hill: The court found that there was no genuine issue of material fact that the Hills had effectively transferred both legal and beneficial title to the 1958 Oldsmobile. The Hills had signed the certificate of title in blank and delivered the title, registration, and the automobile to Cowden (Fincher's agent) pursuant to the sale agreement, which included a contingent financing approval. Under § 319.22(2)(a), Fla. Stat., an owner who has made a bona fide sale and delivered possession with proper endorsement of the certificate of title "shall not ... be deemed the owner ... so as to be subject to civil liability for the operation of such vehicle thereafter by another" when the endorsement and delivery requirements are met. The court cited prior Florida decisions (Platt v. Dreka; Palmer v. R.S. Evans; Williams v. Davidson) as supporting authority. On that basis the court affirmed the summary final judgment in favor of Vernon F. Hill and Opal M. Hill.

Analysis regarding Fincher Motors, Inc.: The court noted that at the time of the collision the 1958 automobile was Fincher's property (i.e., Fincher had possession and title). The record included an affidavit by Fincher's sales manager stating that employees were instructed they could use a Fincher-owned used car or a trade-in car to travel to and from the Fincher used car lot and their homes, but the cars were not to be used for private business, entertainment, or other private functions. The affidavit stated that Cowden had been given these instructions and was aware of them.

Fincher argued the particular facts of the collision (4:30 A.M. and at a location not on any direct route to or from Cowden's place of employment) established that Cowden had wrongfully used the car for personal purposes and thus was driving without permission, which would relieve Fincher of liability. The court examined controlling law on owner liability for authorized use: it quoted American Fire Casualty Company v. Blanton summarizing Lynch v. Walker and Boggs v. Butler, explaining that when an owner authorizes another to use an automobile the owner is liable for negligent operation so authorized, and that where original entrustment is shown liability will not necessarily be altered by a subsequent departure beyond the scope of authority.

Applying those principles (and citing the court's own prior decision in Ivey v. National Fisheries, Inc.), the court concluded that summary judgment for Fincher Motors was inappropriate on the available record. Because issues of authorization/entrustment and the scope of any authorized use were material and contested in light of the dangerous instrumentality doctrine and the affidavit evidence, the court held the trial court erred in granting summary final judgment for Fincher. The court therefore reversed the summary judgment as to Fincher and remanded for further proceedings on the remaining issues.

Holding and Implications

Holding: Affirmed in part, reversed in part, and remanded.

Direct consequences for the parties:

The summary final judgment in favor of Vernon F. Hill and Opal M. Hill is affirmed because the record shows they had endorsed and delivered title and possession of the 1958 automobile to Fincher (thus transferring legal and beneficial title and removing owner liability under § 319.22(2)(a)).
The summary final judgment in favor of Fincher Motors, Inc. is reversed; the question of Fincher's liability under principles of entrustment and the dangerous instrumentality doctrine cannot be resolved on the present record and must be addressed in the trial court on remand.
The cause is remanded to the circuit court for further proceedings to resolve the other issues raised by Whalen's complaint and Fincher's answer.

The opinion applies and relies upon existing statutory and case law; it does not announce that it is creating a new broad precedent beyond its application of established principles to the facts before the court.

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GEORGE FRANCIS WHALEN, APPELLANT, v. VERNON F. HILL, OPAL M. HILL, ESTATE OF JAMES GORDON COWDEN, DECEASED, AND FINCHER MOTORS, INC., A FLORIDA CORPORATION, APPELLEES.

PEARSON, Judge.

George Francis Whalen was injured in an automobile collision. He brought suit against James Gordon Cowden, the deceased driver of the automobile which collided with his, and against Fincher Motors, Inc., and Mr. and Mrs. Hill. Whalen alleged that the Hills and Fincher owned the automobile Cowden was driving. The trial judge entered summary final judgment for Mr. and Mrs. Hill and for Fincher. This appeal is from those final judgments.

The Hills owned a 1958 Oldsmobile, title to which was in "HILL VERNON F OR OPAL M". They informed Fincher they were interested in the purchase of a newer model. On March 15, 1967, Cowden, a salesman for Fincher, called the Hills and told them he thought he had a car for them. That evening the Hills went to Fincher and agreed to purchase a 1965 Oldsmobile. They paid Fincher $44 and received an allowance of $395 on their 1958 automobile. The balance due was to be financed. The Hills signed a retail buyer's order, a retain title contract, and several blank applications for financing. Finality of the agreement was contingent upon approval of a loan. On March 16, 1967, Cowden called the Hills and informed them that their loan had been approved and that he would bring the 1965 automobile to their home to exchange it for the 1958 automobile. The Hills notified their insurance agent of their purchase and requested a change of coverage. Thereafter Cowden delivered the 1965 automobile to the Hills, and Mr. Hill signed in blank the title to their 1958 automobile. Cowden accepted the title, the registration certificate, and the automobile. At 4:30 A.M. on March 17, 1967, Cowden, while driving the 1958 Oldsmobile, was involved in a collision with an automobile driven by the plaintiff appellant. The collision occurred north of Cowden's home. Cowden was not on the way to or from his place of employment.

From the record it appears without genuine issue that the court was correct in entering summary judgment for the Hills. By signing the title in blank and delivering both title and automobile to Fincher's agent, Cowden, pursuant to the agreement we described above, the Hills transferred both legal and beneficial title to Fincher and so could not be liable to the appellant. See § 319.22(2) (a), Fla. Stat. Cf. Platt v. Dreka, Fla. 1955, 79 So.2d 670; Palmer v. R.S. Evans, Jacksonville, Inc., Fla. 1955, 81 So.2d 635; Williams v. Davidson, Fla. App. 1965, 179 So.2d 387.

* * * * * *
"(2) An owner who has made a bona fide sale or transfer of a motor vehicle and has delivered possession thereof to a purchaser shall not by reason of any of the provisions of this law, be deemed the owner of such vehicle so as to be subject to civil liability for the operation of such vehicle thereafter by another when such owner has fulfilled either of the following requirements:
(a) When such owner has made proper endorsement and delivery of the certificate of title as provided by this law."

We therefore affirm the summary final judgment for defendant-appellees Vernon F. Hill and Opal M. Hill.

But we reverse the summary judgment for defendant-appellee Fincher Motors, Inc. When the collision occurred the 1958 automobile was Fincher's property. It is admitted that Fincher employees had authority to use trade-in automobiles under some conditions:

"All used car salesmen were instructed that they could use a FINCHER-OWNED used car or could use a trade-in car for transportation to and from the FINCHER used car lot and their homes, on an individual basis, but under no circumstances were any FINCHER-OWNED used cars or any trade-in cars to be used for the private business, entertainment, or other private functions of the used car salesman. MR. COWDEN was given these same instructions, and was fully aware of them prior to the involved transaction and accident." (From the affidavit of Fincher's sales manager.)

Fincher argues that since the accident occurred at 4:30 A.M. at a point not on any direct route from Cowden's home to his place of employment, Cowden had wrongfully assumed control of the car for his own personal use and was driving the car without permission, thereby relieving Fincher from responsibility for any harm Cowden caused by his driving.

In American Fire Casualty Company v. Blanton, Fla.App. 1966, 182 So.2d 36, the District Court of Appeal for the First District made the following summary of law:

* * * * * *

"Lynch v. Walker, 159 Fla. 188, 31 So.2d 268, 271 (1947), states the basic principle of liability under the `dangerous instrumentality doctrine' as applied to automobiles thus: `When an owner authorizes and permits his automobile to be used by another he is liable in damages for injuries to third parties caused by the negligent operation so authorized by the owner.' Where `original entrustment' is shown to exist, liability thus imposed on the owner will not be altered because of a departure beyond the scope of authority. See Boggs v. Butler, 129 Fla. 324, 176 So. 174, 176 (1937), where it is said:

`Under the law of this state, if the owner once gives his express or implied consent to another to operate his automobile, he is liable for the negligent operation of it no matter where the driver goes, stops, or starts.'

That rule is now so well established as to require no further elaboration."

Because of the rules stated in the foregoing quotation and because of our decision in Ivey v. National Fisheries, Inc., Fla.App. 1968, 215 So.2d 74, we hold that the court below erred in entering summary final judgment for defendant-appellee Fincher Motors, Inc., and reverse that judgment.

In this decision we have resolved the question of ownership of the 1958 automobile and the question whether Fincher could be held liable for any harm caused by James Gordon Cowden while he was operating that automobile. We remand the cause to the circuit court for further proceedings to resolve the other issues raised by the complaint of George Francis Whalen and the answer of Fincher Motors, Inc.

Affirmed in part, reversed in part, and remanded.

WHALEN v. HILL