6551 Collins Ave. Corp. v. Millen, No. 57-38

CourtCourt of Appeal of Florida (US)
Writing for the CourtHORTON; CARROLL, CHAS., C. J., and PEARSON
Citation97 So.2d 490
Docket NumberNo. 57-38
Decision Date08 October 1957
Parties6551 COLLINS AVENUE CORP., a Florida corporation, doing business as Monte Carlo Hotel, Appellant, v. Beverlee MILLEN, a single woman, Appellee.

Page 490

97 So.2d 490
6551 COLLINS AVENUE CORP., a Florida corporation, doing business as Monte Carlo Hotel, Appellant,
v.
Beverlee MILLEN, a single woman, Appellee.
No. 57-38.
District Court of Appeal of Florida, Third District.
Oct. 8, 1957.
Rehearing Denied Nov. 6, 1957.

Page 491

Edwin H. Underwood, Jr., and George B. Pomeroy, Miami, for appellant.

Nichols, Gaither, Green, Frates & Beckham, Miami, for appellee.

HORTON, Judge.

The appellee brought suit in the lower court agianst the appellant for personal injuries sustained while a guest in a hotel operated by the appellant. The cause was tried and resulted in a jury verdict and judgment for the appellee. The appellant has assigned as error the following: (1) Failure of the lower court to direct a verdict for the appellant during the course of the trial; (2) Failure of the lower court to direct a verdict after trial and verdict; (3) The record shows the appellee voluntarily assumed the risk of the undertaking that resulted in her injuries; and (4) The record shows that the appellant was not guilty of any act of negligence proximately causing the appellee's injuries.

This cause is now before the court on the motion of the appellee to dismiss the appeal. The grounds of the appellee's motion are two-fold: (1) The appellant failed to renew its motion for directed verdict at the conclusion of all the evidence, and (2) The appellant failed to file a motion for a new trial, both of which are premised solely on the fact that the appellant's assignments of error challenged the sufficiency of the evidence to support the jury's verdict. A review of the assignments of error compels the conclusion that only the sufficiency of the evidence produced in the lower court to sustain the verdict has been challenged on appeal. The motion is granted and the appeal is dismissed.

The record discloses that the appellant moved for directed verdict at the conclusion of the appellee's case. The lower court reserved ruling on the motion and the appellant thereupon put on its case. The appellant did not renew its motion for directed verdict at the close of all the evidence and the case was submitted to the jury. Subsequent to the jury's verdict, but prior to the entry of judgment, the appellant renewed its motion for directed verdict which was denied, but made no motion for a new trial, or other post trial motions.

In examining the appellee's first ground in her motion to dismiss, we feel it necessary to consider the rule pertinent to that issue. Rule 2.7, Florida Rules of Civil Procedure, Fla.Stat., 31 F.S.A., provides as follows:

'(a) Effect. A party who moves for a directed verdict at the close of the evidence offered by the adverse party may offer evidence in the event the motion is denied without having reserved the right to do so and to the same extent as if the motion had not been made. The denial of a motion for a directed verdict shall not operate to discharge the jury.

'A motion for a directed verdict shall state the specific grounds therefor.

'(b) Reservation of Decision on Motion. Whenever a motion for a directed verdict made at the close of all of the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to

Page 492

the jury at such time subject to a later determination of the legal questions raised by the motion. Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with the motion for a directed verdict.

'(c) Joined with Motion for New Trial. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment...

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12 practice notes
  • Ogilvie v. Mangels, No. 41045
    • United States
    • United States State Supreme Court of Kansas
    • December 6, 1958
    ...McDonough v. United States, 8 Cir., 248 F.2d 725; O'Malley v. Cover, 8 Cir., 221 F.2d 156; 6551 Collins Avenue Corp. v. Millen, Fla., 97 So.2d 490; McCoy v. Scarborough, 73 Ga.App. 519, 37 S.E.2d 221; Spikings v. Ellis, 290 Ill.App. 585, 8 N.E.2d 962; Love v. Harris, 127 Ind.App. 505, 143 N......
  • 6551 Collins Ave. Corp. v. Millen
    • United States
    • United States State Supreme Court of Florida
    • July 11, 1958
    ...court, from a jury verdict and judgment in favor of the plaintiff, respondent here. See 6551 Collins Avenue Corp. v. Millen, Fla.App.1957, 97 So.2d 490, for the District Court's opinion supporting its order of As shown therein and by the record before this court on certiorari, on the appeal......
  • Lee County Oil Co. v. Marshall, No. 70
    • United States
    • Court of Appeal of Florida (US)
    • November 19, 1957
    ...and Procedure, Vol. II, Sec. 1081. For a complete discussion of this question see 6551 Collins Avenue Corp. v. Beverlee Millen, Fla., 97 So.2d 490. 4 Ippolito v. Brenner, Fla.1954, 72 So.2d 802, 803. 5 See: Ippolito v. Brenner, supra; Becker v. Blum, 142 Fla. 60, 194 So. 275; Merchants Tran......
  • Thomas v. Lumbermens Mut. Cas. Co., No. 81-2727
    • United States
    • Florida District Court of Appeals
    • November 30, 1982
    ...1.480(b); Laird v. Potter, 367 So.2d 642 (Fla. 3d DCA), cert. denied, 378 So.2d 347 (Fla.1979); 6651 Collins Avenue Corp. v. Millen, 97 So.2d 490 (Fla. 3d DCA 1957), affirmed, 104 So.2d 337...
  • Request a trial to view additional results
12 cases
  • Ogilvie v. Mangels, No. 41045
    • United States
    • United States State Supreme Court of Kansas
    • December 6, 1958
    ...McDonough v. United States, 8 Cir., 248 F.2d 725; O'Malley v. Cover, 8 Cir., 221 F.2d 156; 6551 Collins Avenue Corp. v. Millen, Fla., 97 So.2d 490; McCoy v. Scarborough, 73 Ga.App. 519, 37 S.E.2d 221; Spikings v. Ellis, 290 Ill.App. 585, 8 N.E.2d 962; Love v. Harris, 127 Ind.App. 505, 143 N......
  • 6551 Collins Ave. Corp. v. Millen
    • United States
    • United States State Supreme Court of Florida
    • July 11, 1958
    ...court, from a jury verdict and judgment in favor of the plaintiff, respondent here. See 6551 Collins Avenue Corp. v. Millen, Fla.App.1957, 97 So.2d 490, for the District Court's opinion supporting its order of As shown therein and by the record before this court on certiorari, on the appeal......
  • Lee County Oil Co. v. Marshall, No. 70
    • United States
    • Court of Appeal of Florida (US)
    • November 19, 1957
    ...and Procedure, Vol. II, Sec. 1081. For a complete discussion of this question see 6551 Collins Avenue Corp. v. Beverlee Millen, Fla., 97 So.2d 490. 4 Ippolito v. Brenner, Fla.1954, 72 So.2d 802, 803. 5 See: Ippolito v. Brenner, supra; Becker v. Blum, 142 Fla. 60, 194 So. 275; Merchants Tran......
  • Thomas v. Lumbermens Mut. Cas. Co., No. 81-2727
    • United States
    • Florida District Court of Appeals
    • November 30, 1982
    ...1.480(b); Laird v. Potter, 367 So.2d 642 (Fla. 3d DCA), cert. denied, 378 So.2d 347 (Fla.1979); 6651 Collins Avenue Corp. v. Millen, 97 So.2d 490 (Fla. 3d DCA 1957), affirmed, 104 So.2d 337...
  • Request a trial to view additional results

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