Opinion
April 6, 1950.
Pleus, Edwards Rush and Edward J. Gurney, Jr., Orlando, for plaintiff.
Maguire, Voorhis Wells, Orlando, for defendant.
Certified to this Court for a decision under Supreme Court Rule No. 38 by the Circuit Court of Osceola County, Florida, are the following questions:
"First: Where an airplane is being operated by its pilot with the knowledge and consent of the owner and a passenger of the pilot is injured through the negligence of the pilot in the operation of the airplane, is the owner liable?
"Second: Does the `Dangerous Instrumentality Doctrine' apply to an airplane being operated by a pilot with the knowledge and consent of the owner, so as to make the owner thereof liable to a third person who is injured as a result of the negligence of the pilot, within the rules of liability announced by the Supreme Court of Florida in the case of Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, [16 A.L.R. 255], and subsequent cases, and in the case of Lynch v. Walker, 159 Fla. 188, 31 So.2d 268?
"Third: If there is liability on the part of the owner of an airplane for the conduct of the pilot operating such airplane with the knowledge and consent of the owner, is the liability of the owner to a guest or passenger of the pilot restricted by the provisions of Section 320.59, Florida Statutes, to liability only for gross negligence or willful and wanton misconduct?"
The case of Schwob Co. v. Florida Industrial Commission, 152 Fla. 203, 11 So.2d 782, involved the construction and functions of Rule 38 and we held that the jurisdiction conferred on the Circuit Court under Section 11 of Article 5 of the Constitution of Florida, F.S.A., could not be transferred to the Supreme Court of Florida under Rule 38. Section 11, supra, confers original jurisdiction on the Circuit Court to adjudicate the questions posed here and the conclusion reached in the Circuit Court may be reviewed by the Supreme Court on appeal. See Richards v. Byrnes, 153 Fla. 704, 15 So.2d 610; Cantwell v. St. Petersburg Port Authority and City of St. Petersburg, 155 Fla. 651, 21 So.2d 139.
It follows that the certificate must be denied as not being within the contemplation of the Rule.
ADAMS, C.J., and SEBRING and HOBSON, JJ., concur.
I concur in the majority opinion prepared by Mr. Justice CHAPMAN. As I understand the effect of Supreme Court Rule 38, only questions or propositions of law that can be answered without regard to other issues are subject to certification under the rule. It is my view that the questions certified in the instant case cannot be answered without regard to other issues. Furthermore, they do not involve questions of adjective law. They are not with respect to issues of which this court and the circuit court have coordinate jurisdiction. They are not questions which, if answered, will dispose of the whole case at the outset. See Schwob Co. v. Florida Industrial Commission, 152 Fla. 203, 11 So.2d 782.
For the reasons stated, I am of the view that the questions certified to this court do not come within the purview of the rule.
ADAMS, C.J., and CHAPMAN and HOBSON, JJ., concur.