15 So. 2d 848 | Fla. | 1944
On motion for leave to file extraordinary petition for rehearing, appellee insists that we were in error when we held in the opinion and judgment filed herein, on October 22, 1943, that the "2nd Plea" filed by defendant on December 7, 1942, reading as follows:
"And for a second plea to the first count of the declaration, defendant says that at the time and place therein alleged the said automobile of the, defendant was being operated by Elmer Schultz, Fire Chief of the Town of Palm Beach, and beyond the corporate limits of said municipality.", was a good plea and that the sustaining of demurrer thereto was erroneous.
The plea was not good. It was too broad because there may be many instances and conditions under which a municipality may be held liable for damage occasioned by the operation of one of its automobiles or trucks outside the corporate limits.
Therefore, the sustaining of demurrer to that plea was without error and our opinion in that regard is hereby modified. As this modification *160 can have no effect requiring a change of our judgment the mandate is recalled for the purpose of entering this order when it shall be reissued as based on the original opinion as herein modified. So ordered.
TERRELL, CHAPMAN and ADAMS, JJ., concur.
