*1 care testimony they may to offer. The relators ifmay they period desire then be awarded such brief chan- as the proper cellor deem to submit may rebuttal testimony. The cause shall then be for final ready disposition and shall considered. promptly
It is so ordered. Chap- Terrell, Whitfield, Buford, C. J., Brown and man, J., concur. J. Thomas and Adams as author- participating Justices
ized Section Compiled General Laws of Rule 21-A the Rules of this Court. Betty Error, Mc friend, minor,
Corkle, her next joined by Paul Defendant Error. Brown,
Division A Opinion Filed November *2 Error; Twyman,
Lewis for Walker, Blackwell for Defendant in Error. writ of error review judgment we J. On result-
favor of rendered in a suit for plaintiff damages ladder truck of from collision between hook and a a ing which and an automobile in municipality defendant was riding. for our con- questions in error four presents
Plaintiff sideration, as follows:
“First Question: a with municipality the declaration though charges “Even being negligent ‘a habit and habitual custom’ of persistent munici- in’ operation equipment, of fire-fighting at trial relates when the evidence offered pality liable only single place involving alleged negligence time truck to a of a hook and ladder the driver proceeding fire, habit, reported prior in no custom way and refers ?” nuisance
“Second Question:
“In addition compensatory damages alleged negli- in Florida liable to the assessment gence, municipality is a of punitive or exemplary damages?” Question:
“Third minor, “When plaintiff, permanent claims physical *3 mental but at and the offers no medical evidence injury, condition, her present upon hospital and relies the redord of her fifteen and injury upon testimony months theretofore time, her condition upon at and concerning hypothetical probable thereon her con- questions involving based future dition, support sufficient in evidence certainty is there the a verdict for when chief permanent injury, particularly the for expert medical witness the at the trial testified recover. I other ‘Most will stated these likely girl just can occur’?” things
“Fourth Question:
“Can wrecked automobile iden- photographs badly qualified tified and for admission evidence sufficiently attempts when witness who and them produces qualify taken, them, when were present they did not take was not them,’ testifies, idea who took does not T wouldn’t have taken, -time know when were saw them for the first they wreck, more than a after the and admits that the auto- year from a mobile had been moved the scene of the wreck to removed, and that the at least had been junk yard hood are pictures nevertheless that but insists stubbornly car’ ?” condition of the representation ‘true- n The declaration was in' two In the first count counts. ' . inter alia-: alleged, hereinabove “And that the motor vehicle plaintiff says time, mentioned had a for period many for to-wit long above, vehicle months before the date been used as a alleged for purpose of members of the defendant’s transporting fires, long that for department fire to the scene of and had been the habit habitual period persistent time it and motor vehicle custom of those and said driving operating and and drive same at apparatus high fire fighting into and speed, rate and dangerous grossly negligent lights control signal where traffic intersections, street through said operated by were maintained and traffic red for were signal lights said traffic control while going, were said vehicles which in the direction moving inter- shch through apparatus the said times many re- without speed, rate dangerous at and sections a high control of traffic regulations rules and for the gard and said custom therein, avers the plaintiff and High habit of such at such driving through intersections was dangerous speed, lights and against signal red rates known, obviously and well and was so generally patently said city to other streets of dangerous persons said using controlling in accordance with the ordinance proceeding *4 public use of such intersections be a menace the the as to nuisance; to constitute and the avers known, of the said motor vehicle aforesaid was as been or the exercise of could have by diligence reasonable known.” . . . setting second contain this allegation
The count does not habitual custom.” up “persistent habit and The 'of not to both pleas guilty case went to on counts was a verdict general of the declaration. The verdict particular either not that it was based on specify and did of the count declaration. count of supported second amply evidence Therefore, to discuss the con- unnecessary
declaration. . tention question. the first presented by will judgment It settled in that a jurisdiction verdict and the be reversed where it is based on a general S.,G. declaration'contains a count. Section 2814 R. good L., 4501 C. that no after verdict shall judgment G. provides where reversed for count the declaration faulty be the declaration contains one count. See Pass good Ferry Co., Shippers Inspectors Assn. v. Pensacola Lbr. 639; Sou. Maxwell v. City 33 A. R. 682. L.
The second challenges propriety charge question of the court in which court instructed the in effect jury that it include in the verdict such sum as might might punitive exemplary damages. warranted evidence as or While we have never to deter upon heretofore been called inmine terms whether or not a in case of this municipality sort is liable the ra punitive exemplary .damages, opinions tionale our in the case of Kaufman v. City Tallahassee; Miami of Talla City Maxwell v. Kaufman, appear citations of which will herein hassee after, leads to the conclusion when the officers or us disregard fights employees municipality automotive- public carelessly operate so negligently streets public driven fire on the fighting apparatus streets, that upon the endanger persons lawfully traveling degree liability the same will be held to municipality the same an'd wrong an individual committing as would injury. however, in the case,
In there is no indication the instant *5 114 sum was or exemplary assessed punitive
verdict for com- The of was damages. $5,000.00 meager verdict damages in this case. pensatory The of the evi- question sufficiency third challenges support dence to verdict and the of the dec- allegations laration. We the evidence and found have considered ample. to be fourth intro- question challenges propriety in
duction evidence of some We think that photographs. under the made the referred to in the showing photographs fourth question were admissible under rule stated State, 256, 611, 11 where it held: Ortiz v. 30 Sou. was “A photograph proved or other a corréct picture representation is objects testimony as to which physical adduced, admissible in evidence for the use of witnesses their explaining testimony, thereby jury enabling the case more but whether or not perfectly; understand which has been for such photograph auxiliary pur- offered pose proved been to be a representation, ques- has true is a tion to be decided and his de- primarily by judge, cision of it will not be reversed when not shown erred; he has not where it is clear that certainly the ad- excluded, mission of a which he has would have photograph assistance, than served to the jury.” Plaintiff in error contends that held could not be City liable in for a damages act of single negligence causing because, contended, as it is act damage occurred in con nection with the performance function. governmental That a’ in a may recover case of this sort is too well settled admit Kaufman See question. v. City Tallahassee, 634, 697, 741; A. L. 94 Sou. R. Maxwell 87 Fla. City Kaufman, 682; A. L. R. of Tallahassee v. 87 Fla. 150. Sou. *6 reversible fail find record we entire inspection On Therefore, is affirmed. judgment error.
So ordered. Chapman Thomas, Whitfield, and J., C. Terrell, J., concur. J. Section as authorized not participating by Brown Justice 1927, 21-A of and Rule
4687, Laws of Compiled General this Court. the Rules of Rehearing Petition
On infer- that we it is contended petition On for rehearing insufficient count of the declaration held the second entially habit of “persistent existence n'ot allege because did con- is not our was not and and habitual custom.” Such in either opinions not construe our clusion. We do 697, 634, Maxwell or the case, Kaufman 94 Sou. 147, case, allegation hold the custom” nec- habitual habit and “persistent the existence of in such a case as to the declaration essary sufficiency here presented. are in such cases If of the declaration allegations on' carelessness and negligence sufficient actionable to show and servants in the agents part City’s public public disregard streets apparatus fire on the careless,- that such actionable the street and lawfully using to one so injury resulted directly ness and negligence “per- street, prove necessary allege using Tampa v. habitual custom.” See City habit or sistent Easton, 1940. opinion filed November may custom” or habitual “persistent In cases habit such the prob- to show a circumstance proved and be alleged careless neg- commission of the unlawful ability of. complained act ligent denied. for rehearing
Petition
So ordered. Chapman Whitfield, Terrell, Thomas, J., concur. J. Chief Brown Adams not participating Justice Justice
as authorized
Compiled
Section
General Laws of
1927, and Rule 21-A of the
of this
Rules
Court.
*7
Peavy-Wilson
Error,
Baker,
Plaintiff in
v.
Lumber
Julia
Company, Corporation,
Louisiana
Defendant
Error.
Ellis F. Davis and Wells, Voorhis Maguire, De- fendant in Error. writ of error we review order granting J. On
a new trial. is appearance
This second on the case here. See Baker Peavy-Wilson Lumber Company, 192 So. the',case 193. After went back to circuit court an addi-