# City of Miami v. McCorkle Ex Rel. Brown

> Supreme Court of Florida · November 22, 1940 · 145 Fla. 109

URL: https://www.frixlaw.com/law-library/cases/9865449

## Case

- **Full name:** The City of Miami, Plaintiff in Error, v. Betty McCorkle, a Minor, Joined by Her Next Friend, Paul Brown, Defendant in Error
- **Court:** Supreme Court of Florida
- **Decided:** November 22, 1940
- **Citations:** 145 Fla. 109; 199 So. 575; 1940 Fla. LEXIS 909
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Terrell, Whitfield, Chapman, Thomas, Brown, Compiled, Laws, Rules, Buford, Adams
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9865449

## Opinion text

On Petition for Rehearing
On petition for rehearing it is contended that we inferentially held the second count of the declaration insufficient because it did n'ot allege the existence of “persistent habit and habitual custom.” Such was not and is not our conclusion. We do not construe our opinions in either the Kaufman case, 84 Fla. 634 , 94 Sou. 697 , or the Maxwell case, 81 Fla. 107 , 100 Sou. 147 , to hold the allegation of the existence of “persistent habit and habitual custom” necessary to the sufficiency of a declaration in such a case as is here presented.
If the allegations of the declaration in such cases are sufficient to show actionable carelessness and negligence on' the part of the City’s agents and servants in the driving of fire apparatus on the public streets in disregard of the public lawfully using the street and that such actionable careless,ness and negligence resulted directly in injury to one so using the street, it is not necessary to allege or prove “persistent habit or habitual custom.” See City of Tampa v. Easton, opinion filed November 26, 1940.
In such cases “persistent habit or habitual custom” may be alleged and proved as a circumstance to show the probability of the unlawful commission of the careless and negligent act complained of.
Petition for rehearing denied.
*116 So ordered.
Whitfield, Terrell, Buford, Chapman and Thomas, J. J., concur.
Chief Justice Brown and Justice Adams not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9865449. Public record. Not legal advice.