Opinion
June 13, 1952.
Appeal from the Circuit Court, Duval County, Charles A. Luckie, J.
Evan T. Evans and Neal D. Evans, Jr., Jacksonville, for appellant.
Marks, Gray, Yates Conroy and Francis P. Conroy, Jacksonville, for appellee.
It appears by the record in this cause that the plaintiff-appellant was a guest passenger of the defendant-appellee in his automobile traveling from Bainbridge, Georgia, to Tallahassee, Florida, on the afternoon of May 31, 1951. The defendant-appellee was driving or operating the automobile along the public highway when, about two and one-half miles north of the City of Tallahassee, the owner and operator of the automobile fell asleep and lost control thereof, thereby causing the same to run off the highway and into a pole. The plaintiff-appellant was painfully, seriously and permanently injured.
The trial court entered a summary judgment for the defendant-appellee and the plaintiff appealed. It is here contended that the defendant-appellee was at the time and place guilty of gross negligence and wilful and wanton misconduct in the operation of the automobile when plaintiff sustained serious and permanent injuries.
In this case the appellant is the divorced wife of the appellee. It is not a case where there had been dissipation or drinking of alcoholic beverages, or where the appellee had gone without sleep for a long period of time and knew, or should have known, that he was in no condition to drive an automobile. Appellant and appellee had spent the night before near Colquitt, Georgia, at the home of appellant's mother. Appellee retired between 8:30 and 9:00 o'clock Saturday night, and slept well. He was in his usual good health and spirits on Sunday and there was no reason why he should be sleepy. On Sunday afternoon appellee and appellant, while riding from Colquitt to Tallahassee, were listening to the returns of a ball game over the radio. The appellant at no time was concerned about the defendant's driving which seemed to her to be perfectly all right. There was nothing in his condition so far as she knew which made him sleepy. All of a sudden and simultaneously she noticed him nodding and the automobile went off the highway. After the accident he told some people that he went to sleep or must have gone to sleep. This testimony was undisputed. It falls far short of showing gross negligence, or wanton or wilful misconduct. It is our view and conclusion that our holdings in Jackson v. Edwards, 144 Fla. 187, 197 So. 833; Boos v. Sauer, 266 Mich. 230, 253 N.W. 278; and Johnson v. State, 148 Fla. 510, 4 So.2d 671, and similar cases, are here controlling.
Affirmed.
SEBRING, C.J., and CHAPMAN, THOMAS and MATHEWS, JJ., concur.