Opinion
No. 63-686.
September 22, 1964. Rehearing Denied October 21, 1964.
Appeal from the Circuit Court for Dade County, James W. Kehoe, J.
Mayerson, Greenberg Weiner, Miami Beach, for appellant.
Wicker, Smith, Blomqvist, Hinckley Davant, Miami, for General Motors Corp.
Dean, Adams Fischer, Miami, for Red Top Cab Baggage Co. and Red Top Sedan Service, Inc.
Before BARKDULL, C.J., and TILLMAN PEARSON and HENDRY, JJ.
Plaintiff in the trial court appeals from an adverse final judgment, rendered upon a directed verdict in a personal injury action. He sought damages for injury sustained while a passenger in a limousine owned by Red Top Cab and Baggage Co., and operated by Red Top Sedan Service, Inc., which had been purchased initially from the appellee, General Motors Corporation. The sole theory of liability pleaded or attempted to be proved by the plaintiff was the liability of the defendants under the doctrine of res ipsa loquitur.
We affirm the action of the trial judge in that the record on appeal failed to reveal any control in the appellee, General Motors Corporation, to warrant the application of res ipsa loquitur [see: American District Electric Protective Co. v. Seaboard Air Line Railway Company, 129 Fla. 518, 177 So. 294; Frash v. Sarres, Fla. 1952, 60 So.2d 924], and that the evidence failed to reveal any failure on the part of the appellees, Red Top Cab and Baggage Co., and Red Top Sedan Service, Inc., in the exercise of due care in the maintenance of their equipment. To the contrary, they demonstrated that the defect causing the accident was a latent one, undiscoverable by inspection. In this connection, see: Schott v. Pancoast Properties, Fla. 1952, 57 So.2d 431; Hine v. Fox, Fla. 1956, 89 So.2d 13; Martin v. Powell, Fla.App. 1958, 101 So.2d 610; Brookshire v. Bendix Co., Fla.App. 1963, 153 So.2d 55, Cert. Denied, Fla. 1964, 163 So.2d 881.
Therefore, for the reasons stated above, the actions of the trial judge, here under review, are hereby affirmed.
Affirmed.
I concur in the affirmance of the directed verdicts in favor of the defendants, General Motors Corporation and Red Top Cab and Baggage Co., but respectfully dissent from the holding which affirms the directed verdict for the defendant, Red Top Sedan Service, Inc.
In my opinion, rejection of the doctrine of res ipsa loquitur as to Red Top Sedan Service, Inc. is in conflict with National Airlines Incorporated v. Fleming, Fla.App. 1962, 141 So.2d 343.