
    T. J. NELSON, Appellant, v. D. TRAER, T. A. Buchanan, as Sheriff for Dade County, Florida, and Dade County, Florida, a political subdivision, Appellees.
    No. 65-745.
    District Court of Appeal of Florida. Third District.
    April 19, 1966.
    On Rehearing June 28, 1966.
    Julius H. Erstling, So. Miami, R. M. MacArthur, Miami, for appellant.
    West, Feder & Goldman, Miami, for ap-pellees.
    Before HENDRY, C. J., and CARROLL and BARKDULL, JJ.
   PER CURIAM.

This is an appeal by the plaintiff from an order dismissing his complaint for damages for wrongful death of his wife. The question for determination is whether the complaint set forth facts upon which relief could be granted.

Plaintiff alleged that he and his wife, agricultural workers employed as tomato pickers in a farm area of south Dade County, after working on the day in question had been paid off and left without means to return to the labor camp where they resided ; that after having sought transportation unsuccessfully, and while proceeding on foot on U. S. Highway No. 1, south of Miami, at 4:45 o’clock A.M. the defendant Traer, a deputy sheriff, placed the plaintiff under arrest for soliciting- a ride on the highway and took him to jail.

The complaint alleged plaintiff requested the defendant deputy sheriff who arrested him not to leave his wife there without protection; that the officer refused; that within a short time thereafter his wife (thus left alone on the highway) was struck by an automobile and killed; and that her death was the proximate result of “a willful and wanton and negligent act of the defendant D. Traer.” Those allegations of the complaint were as follows:

“At said time and place the Plaintiff, T. J. Nelson, remonstrated with the said Defendant, D. Traer, asking him not to take him to jail or in the alternative, to take his wife along to jail so that she would not be left alone in the night, but not withstanding pleas, the said deputy took the Plaintiff to jail thereby willfully, maliciously and negligently depriving Plaintiff’s wife of the company, society and protection of her husband in a place and under such circumstances that the event of harm befalling Plaintiff’s wife was foreseeable.
“That about 5 :30 o’clock A.M., on December 11, 1964, less than one hour after Plaintiff was arrested as aforesaid, Plaintiff's wife, attempting to cross U. S. #1 in the vicinity where Plaintiff was arrested, was struck by a passing motorist, and killed.
“That the death of Plaintiff’s wife was proximately caused by the willful and wanton and negligent act of the Defendant, D. Traer, acting in the scope and course of his employment as Deputy Sheriff, in that he did breach his duty to Plaintiff’s decedent by depriving her of the protection of her husband and failing to provide for her safety in circumstances that required a course, of conduct contrary to that undertaken by Deputy Sheriff Traer.”

The appellant contends the trial court committed error in holding the complaint failed to state a cause of action. Facts sufficient to support the charge of negligence were stated and it was alleged that such negligence was the proximate cause of the injury and death of the plaintiff’s wife. The determinative question is whether the trial court was justified in ruling out proximate cause as a matter of law.

Proximate cause, like negligence and contributory negligence, ordinarily is a jury question. Therefore, the complaint in this case was entitled to withstand the motion to dismiss unless as a matter of law there could be no proximate causal'connection between the alleged negligent action of the defendant deputy sheriff and the resultant death of the plaintiff's wife on the highway.

In our opinion the action of the deputy sheriff in leaving the woman unprotected on the highway at that hour against the protest and request of her husband for her protection, amounted to wrongful action and the resultant injury to plaintiff’s wife was not unforeseeable. The husband realized the danger. The deputy was made aware of his concern. There was no emergency to require the deputy to refuse to make provision for the wife’s protection. What later occurred was that from which he sought unsuccessfully to have the defendant deputy afford her protection. We are of the opinion that the able trial judge was in error in holding as a matter of law that there was an absence of any causal connection between the alleged negligence of the defendant deputy sheriff and the resultant injury to the plaintiff’s wife. The motion of defendants to dismiss should have been denied.

Reversed.

HENDRY, C. J., dissents.

ON REHEARING GRANTED .

CARROLL, Judge.

This court granted a petition of the ap-pellees for rehearing, and heard further argument on the questions of whether the facts were sufficient to show a duty owed by the defendant deputy sheriff to the deceased and violation thereof and whether the complaint was properly dismissed as to the county because of failure to allege a required notice of claim.

In this court’s opinion filed April 19, 1966, it was stated that facts sufficient to support the charge of negligence were alleged. Upon rehearing we now recede therefrom and hold that the allegations of the complaint failed to show that any duty owed the deceased was violated by the defendant deputy sheriff. Assuming, but not so deciding (since this case does not require a ruling on that point), that such a duty may exist under certain circumstances, such as where a party arrested had in his charge a small child, or a person who was patently in need of care or guidance because of a degree of physical or mental infirmity, the complaint in this case contains no such allegations with respect to the wife of the arrested plaintiff. The fact that the parties involved were on a heavily traveled highway in the nighttime and the husband expressed concern as to the safety of his wife may have presented a situation in which it would be reasonable and expedient for the arresting officer to take the wife along or make other provisions respecting her, but we have been shown no decision or rule of law which imposes a legal duty on the officer to take steps to assure safety of an adult companion of an arrested party. No facts were alleged to show wherein the woman was less able to fend for herself than any normal adult would be. The act of the deputy sheriff in leaving her alone, even, if unkind or bad judgment under the circumstances, would not give rise to a civil, action in tort unless the arresting officer was under a legal duty to do otherwise. 32 Fla.Jur., Torts, § 3; 38 Am.Jur., Negligence, § 14.

“A tort denotes an injury inflicted ■ otherwise than by a mere breach of contract. It must be a wrong which the law redresses, not a mere infraction of good morals. 28 Am. & Eng. Enc. of Law, pp. 253, 254.” Shaw v. Fletcher, 137 Fla. 519, 188 So. 135,136.

In 52 Am.Jur., Torts, § 10, it is said: “There is no necessary identity, or even relation, between a legal right or duty and a moral right or duty; those duties which are dictated merely by good morals, or by humane considerations, are not within the domain of the law.” In the same work, § 13, it is said :

“ * * * negligence may consist not only in the doing of something which one is under an obligation not to do, but also in the failure to do something which he is under an obligation to do. However, the mere refusal of a person to do what he is not legally bound to do is not actionable. Those duties which are dictated merely by good morals or by humane considerations are not within the domain of the law. In this respect, it has been held that the duty to protect against wrong is, generally speaking and excepting certain intimate relations in the nature of a trust, a moral obligation only, not recognized or enforced by law.”

On this disposition of the appeal it becomes unnecessary to discuss the additional ground urged on behalf of the defendant county, that the complaint was insufficient as to that defendant for failure to allege the giving of notice of claim as and within the time required.

It was recited in the trial court’s order dismissing the cause that counsel for the plaintiff announced he did not wish to amend. For that reason we express no view as to allowing plaintiff to amend the complaint.

Accordingly, our opinion and judgment of reversal filed April 19, 1966, is vacated, and the judgment of the trial court dismissing the complaint is hereby affirmed.

It is so ordered.

BARKDULL, Judge

(dissenting).

I respectfully dissent from the majority opinion on rehearing granted, and would adhere to the original opinion filed in this cause under date of April 19, 1966, 
      
      . The trial judge could take judicial notice that U.S. #1 between Miami and Homestead, by its construction and fast traffic, -was a dangerous highway, which had earned the sobriquet of “death alley.”
     