Miracle v. Kriens

• Decision Date: 16 January 1948
• Citation: 160 Fla. 48,33 So.2d 644
• Parties: MIRACLE et al. v. KRIENS.
• Court: Florida Supreme Court

33 So.2d 644

160 Fla. 48

MIRACLE et al. v. KRIENS.

Florida Supreme Court

January 16, 1948

Rehearing Denied Feb. 16, 1948.

Appeal from Circuit Court, Duval County; Bayard B. Shields judge.

Evan T Evans and P. Guy Crews, both of Jacksonville, for appellants.

Jone E Teate, of Jacksonville, for appellee.

SEBRING, Justice.

C. A. Miracle and C. A. Miracle, Jr., as copartners, were the owners of a combination cocktail lounge and barroom known as Mac's Bar & Liquor Store, operated for the entertainment and pleasure of white patrons only. They had in their employ one Dorsey, who is admitted by the pleadings to have been acting within the scope of his employment in regard to the matters hereinafter narrated. The barroom was separated from the cocktail lounge by a partition wall running through the center of the building from front to back, and partition openings at front and rear led from one side of the establishment to the other. Along the partition wall on the cocktail lounge side, booths were built for the use of patrons. A front door opened from the cocktail lounge into the public street. On the barroom side, doors opened into the front street and into the alley or areaway at the rear of the building.

On Saturday evening while the appellee, Herbert M. Kriens, and a female companion whom he afterwards married and whom we shall refer to as Mrs Kriens, were seated in a booth in a cocktail lounge drinking beer, the employee, Dorsey, was shot by a former Negro employee then on the premises. The bullet fired by the Negro passed through the body of Dorsey and struck Kriens, inflicting serious injuries. Thereupon Kriens sued the two Miracles and the jury gave him a verdict for damages. A motion for new trial was denied and judgment was entered. The defendants below have taken an appeal from the judgment and questioned the sufficiency of the evidence to sustain recovery.

The plaintiff below attempts to defend his judgment for damages entered against the defendants upon the theory that the proximate cause of his injury was an unlawful and felonious assault committed by the employee, Dorsey, upon a peaceable Negro then lawfully upon the premises of the defendants, thereby provoking the Negro, in the necessary and justifiable defense of his person, into shooting the employee with a pistol he was carrying concealed upon his person, with the result that the bullet passing through the body of the employee struck the plaintiff and inflicted injuries.

Whatever may be the legal soundness of the plaintiff's theory--a matter which in our opinion need not be decided upon this appeal--the evidence does not support it. The plaintiff's version of what transpired while he and his companion were seated in the booth is most completely narrated by Mrs. Kriens, the only eyewitness to the event produced by the plaintiff, who testified on behalf of her husband as follows: 'Well, I was facing the street in the booth * * * I was looking out in the street when I saw Dorsey and this fellow come through the left door just behind the booth into this annex part, and they were arguing, and they took a few steps toward the door, and the colored man was backing up and Dorsey was walking toward him, and just when I saw them arguing, then, they made about three or four steps and then I saw Dorsey start to strike the colored man on the head with something; I do not know, it looked to me like a club. He struck him the first lick, and then I saw the gun and then I saw it fire and that is about all there was to it, and the colored man rushed out the door * * * I would say [that Dorsey hit the Negro] three or four times * * * I said to my husband 'Oh, he shot that man', and at that instant I looked at my husband and he had a blank look on his face, and had turned back around then and ducked down under the table, and of course, then, I realized that he had been hit too * * *'

The plaintiff Kriens could add nothing of particular moment to the testimony given by his wife. His material statements on the issue were: 'Well, there was a commotion, which was in back of me, and I turned around in my seat. I saw Dorsey, the bartender, in the act of striking this other person, and that is about the last I know, because about that time I got the bullet in my head * * * The fight actually started--the argument started in the barroom and the actual fight happened in the annex.' The plaintiff testified, further, on cross-examination, that he did not know what caused the argument between Dorsey and the Negro, what had occurred between them previous to the argument, or who was the initial aggressor in the ensuing encounter.

Upon this testimony the trial judge denied a motion for instructed verdict which contained the ground that the evidence failed to show the liability of the defendants for the injury sustained; and the defendants thereupon offered evidence in support of their version of the transaction.

This evidence was given by the employee Dorsey, who testified that the Negro...