Opinion
No. 64-419.
November 2, 1965.
Appeal from Circuit Court, Dade County; James W. Kehoe, Judge.
On remand from Fla.App., 178 So.2d 702, which remanded 170 So.2d 82.
Schlissel Scher, Miami Beach, for appellant.
Joseph A. Wanick, City Atty., for appellee.
Before HENDRY, C.J., and BARKDULL and SWANN, JJ.
This cause was originally before this court on an appeal from a final order dismissing the appellee City of Miami Beach as a defendant in a common law action, seeking damages as a result of alleged unlawful tortious acts of certain of its police officers.
From the face of the amended complaint, it was apparent that no notice was given to the City, pursuant to the provisions of § 45 of the Charter of the City of Miami Beach [being § 7 of Ch. 27738 of the Special Acts of 1951].
We affirmed the action of the trial judge upon the authority of Rabinowitz v. Town of Bay Harbor Islands, Fla.App. 1964, 168 So.2d 583. Subsequent to the rendition of our original opinion of affirmance in this matter, the Supreme Court of Florida [upon petition for certiorari] quashed Rabinowitz v. Town of Bay Harbor Islands, supra, and, upon a petition for certiorari being presented in the instant case, quashed our opinion affirming the action of the trial judge and returned the matter to this court for further consideration in light of its opinion in the case of Rabinowitz v. Town of Bay Harbor Islands, Fla. 1965, 178 So.2d 9.
Following a review of the last cited opinion and the record on appeal in this cause, and upon the authority of Rabinowitz v. Town of Bay Harbor Islands, Fla. 1965, 178 So.2d 9, we find that the trial judge committed error in granting the final order of dismissal. He is hereby directed to reinstate the cause against the defendant City, with leave to file an answer addressed to the amended complaint.
Reversed with directions.