Opinion
No. 63-79.
February 19, 1963.
Frates Fay, Miami, for plaintiff.
Albert L. Weintraub and A. Jay Cristol, Miami, for defendant.
Before CARROLL, HORTON and HENDRY, JJ.
The question certified to this court in the above stated cause for answer is as follows: "Is a municipality liable for the alleged acts of its police officers in committing an assault and battery on the plaintiff after the plaintiff has been arrested for the commission of a misdemeanor, without warrant, when the acts committing the misdemeanor were not committed in the presence of the arresting officer?"
It is our view that the above question is not such a question as falls within Rule 4.6, Florida Appellate Rules, 31 F.S.A., in that it does not appear that the question is without controlling precedent in this state. Chapman v. Slaff, Fla.App., 101 So.2d 413; City of Hollywood v. Peck, Fla.App., 57 So.2d 842; Schwob Co. of Florida v. Florida Industrial Commission, 152 Fla. 203, 11 So.2d 782.
The trial court under § 11 of Article 5 of the Constitution of Florida, F.S.A., has the power to adjudicate the question which may be reviewed on appeal if desired.
For the reasons stated the question was not proper for certification.