McDonald v. Ford, 68--352
| Decision Date | 04 June 1969 |
| Docket Number | No. 68--352,68--352 |
| Citation | 223 So.2d 553 |
| Parties | Marie McDONALD, Appellant, v. E. I. FORD, Appellee. |
| Court | Florida District Court of Appeals |
Robert F. Nunez, St. Petersburg, for appellant.
Edward M. Waller, Jr., of Fowler, White, Collins, Gillen, Humkey & Trenam, Tampa, for appellee.
Plaintiff-appellant, Marie McDonald, appeals a final judgment entered pursuant to the trial court's granting of defendant-appellee's motion for directed verdict.
This appeal involves an action for personal injuries received by Marie McDonald which she alleged were caused by the negligent conduct of Mr. Ford, the defendant-appellee herein, while she was a social guest in his home and while he attempted to make love to her.
The incident complained of occurred in the early morning hours of April 26, 1965, in a home owned by the defendant. Prior to this date, plaintiff and defendant had seen each other socially and on occasion even contemplated getting married. They had spent the evening prior to the incident in question together, during which time defendant consumed several alcoholic drinks. In the early morning hours which followed the two of them went to defendant's home where plaintiff agreed to prepare coffee for them. While the coffee was heating, plaintiff went into the livingroom where she knelt before a stereo set sorting through some records which were stacked on the floor. Defendant had gone to another part of the house to remove his overcoat and tie. While plaintiff was still looking through the records, defendant came up behind her, laughingly embraced her, and though she resisted, kissed her hard. As defendant was hurting plaintiff physically by his embrace, plaintiff continued to struggle violently and defendant continued to laugh and pursue his love-making attempts. In the process plaintiff struck her face hard upon an object that she is unable to specifically identify and in so doing injured her jaw. When she was able to break away, she grabbed her purse, left his house and went home.
At the close of plaintiff's case the defendant moved for a directed verdict on the ground that plaintiff's proof conclusively showed a battery had been committed and that this showing precluded submission of the case to the jury on the issue of negligence as charged in the complaint.
The lower court in granting the motion for a directed verdict in favor of the defendant stated:
At trial, Marie McDonald's testimony on the issue of the negligence of Mr. Ford was as follows:
'So I knelt on the floor, and I was picking out one more record to put on, when Mr. Ford came back into the room, and I didn't pay any attention at first, because I was trying to pick out a record, till I heard him laugh, and he grabbed ahold of me and he crushed me so hard--he's so strong and big, and--and I'm not so big, and I tried to push away from him, and the harder I struggled to get away from him, trying to tell him that he was hurting me, the harder he pushed me to him, and he kissed me real hard. He came down on me so hard, and, of course, I was struggling. We were bending and twisting, and something banged me awfully hard on my face, and as soon as I could get free, I grabbed my pocketbook and left.
Q Mrs. McDonald, he was in fact hurting you as he squeezed you?
A Yes, sir.
Q And you say that you tried to pull away when he was squeezing you there?
A Yes, I tried to push away, and the harder I tried to push, the more he tried to get hold of me, the more he tried to kiss me, and we were bending and twisting and turning around, and I was pushing and shoving, and he was so strong, and I just--I don't know what happened, but I was just--he was too strong on me, you know, I just--you just--I was just banged and bumped all over, but my face was just--just hurt terribly.
Q This happened while he was trying to kiss you and you were trying to get away?
A Yes, sir.'
On cross examination, Marie McDonald testified as follows:
'A--Mr. Ford came into the room while I was kneeling down, and I didn't pay much attention, you know, he just walked in, was off to...
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