Opinion
Opinion Filed June 13, 1934. Petition for Rehearing Denied July 9, 1934.
A writ of error to the Circuit Court for Orange County, Frank A. Smith, Judge.
E. W. R. C. Davis, and Dickinson Dickinson, for Plaintiffs in Error;
George B. Carter, for Defendant in Error.
Upon a full consideration of the record and briefs herein in an action for personal injuries in an automobile casualty, the court is of the opinion that liability of the defendant is shown; but it appears that the award of damages in the sum of $2,000.00 is, under all the circumstances, excessive; it is, therefore, considered, ordered and adjudged that if the plaintiff remits $500.00 of the amount awarded, the judgment will stand affirmed for damages in the sum of $1,500.00. Otherwise the judgment will be reversed for a new trial.
It is so ordered.
DAVIS, C. J., and WHITFIELD, TERRELL and BUFORD, J. J., concur.
ELLIS and BROWN, J. J., dissent.
The declaration seeks to hold both defendants (plaintiffs in error here) liable for an injury caused by the alleged negligence of Jesse Rice, Jr., on the ground that he was at the time driving the car as the agent of both defendants, Jesse Rice, his father, and the Orlando Tire Company, a corporation, of which Jesse Rice, Sr., was the president. The tire company was the owner of the car, but when the accident happened Jesse Rice, Jr., was using the car as the agent of his father, who had sent him on a personal errand for the convenience and benefit of his father. So the allegation that Jesse Rice, Jr., was acting as the agent of the tire company was not sustained and the judgment should therefore be reversed. The declaration was not based on the rule laid down in Herr v. Butler, 101 Fla. 1125, 132 So. 815.
ELLIS, J., concurs in the dissenting opinion by Mr. Justice BROWN.