Bernhart v. Peebles

PER CURIAM: Mary E. Bernhart and husband, Charles Bernhart, instituted a common law action in the Civil Court of Record of Duval County, Florida, against Robert James Peebles and Crystal M. Peebles, to. recover damages sustained for the negligent operation of an automobile. The declaration alleged permanent injuries sustained by Mary E. Bernhart. The husband, Charles Bernhart, sought a recovery for consortium losses and the further sum of $142.20 as damages to the automobile owned by the husband in which the plaintiffs were riding when the collision occurred. On May 8, 1943, Honorable Burton Barrs, Judge of the Civil Court of Record, entered an order granting a motion to strike from the declaration language viz: “and plaintiff’s automobile which was then and there being operated by plaintiff Charles Bernhart and was the property of said plaintiff, was wrecked and damaged in the sum of $142.20.” Plaintiffs, by petition for a writ of certiorari, sought an order of the Circuit Court of Duval County quashing the order of the civil court of record dated May 8, 1943, striking from the declaration the language quoted supra, thereby denying the plaintiff husband the right of recovery in said suit for the loss and damage sustained to his automobile. The circuit court, on May 27, 1943, entered an order denying the petition for a writ of certiorari and bottomed its holding *432 on the recent case of Patten v. Daoud, 152 Fla. 448, 12 So. (2nd) 299. The original plaintiffs in the civil court of record perfected an appeal from the order of the circuit court to this Court and assigned as error the order of the circuit court dated May 27, 1943, denying the petition for a writ of certiorari. Appellees, by an appropriate motion, seek a dismissal of the appeal on grounds: (a) that the order sought to be reviewed is not a final judgment or order; (b) that it has not been shown by the appellants that the circuit court abused its discretion; (c) that the circuit court followed a binding of this Court; (d) that the appeal is not prosecuted to correct an abuse of discretion exercised by the circuit court, but to get the Supreme Court of Florida to depart from its own recent precedent. The Court being fully advised in the premises, it is our view that the motion to dismiss is well founded in law, and, upon consideration, the motion to dismiss the appeal should be and is hereby granted on ground (a). It is so ordered. BROWN, THOMAS, SEBRING and ADAMS, JJ., concur. BUFORD, C. J., TERRELL and CHAPMAN, JJ., dissent.