Brookshire v. Florida Bendix Co., 62-391

• Decision Date: 30 April 1963
• Docket Number: No. 62-391,62-391
• Citation: 153 So.2d 55
• Parties: Elois BROOKSHIRE, Appellant, v. FLORIDA BENDIX CO., Inc., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 55

153 So.2d 55

Elois BROOKSHIRE, Appellant, v. FLORIDA BENDIX CO., Inc., a Florida corporation, Appellee.

No. 62-391.

District Court of Appeal of Florida, Third District.

April 30, 1963.

Rehearing Denied May 29, 1963.

Faunce, Fink & Forman, Miami, for appellant.

Welsh, Cornell, Pyszka & Carlton, Miami, for appellee.

Before CARROLL, BARKDULL and HENDRY, JJ.

BARKDULL, Judge.

The appellant, plaintiff in the trial court, seeks review of a final judgment entered upon a directed verdict in favor of the appellee-defendant.

From the record, it appears that at the conclusion of all the evidence, the defendant moved for a directed verdict on which motion the trial judge reserved ruling and sent the case to the jury. The jury returned a verdict in favor of the plaintiff and, thereafter, the trial judge granted the motion for directed verdict. It is from the final judgment rendered upon such directed verdict that the appellant prosecutes this appeal, and has assigned error in the directing of said verdict and setting aside the verdict of the jury.

Upon this appeal the appellant is entitled to all inferences reasonably to be drawn from the evidence. See: Messner v. Webb's City, Fla.1952, 62 So.2d 66; Martin v. Thompson, Fla.App.1960, 124 So.2d 744. The record discloses that the appellant was injured while operating a coin-activated washing machine in and about the premises of an apartment building. It appears that the machine in question was manufactured by a third party, sold to the appellee and installed on the premises of the apartment house under an arrangement whereby the appellee and the operator of the apartment house shared in the revenue earned by the machine [which had been on the premises prior to the accident in question for approximately 2 years]. On the day of the injury to the appellant, it appears that she inserted the necessary coins to commence the operation of a machine which has a three cycle operation, basically described as follows: filling of a drum with water, an agitation motion, and a rinsing phase which is accompanied by a spinning of the agitator and drum contained in the machine within which the clothes are placed. These various phases are controlled by an electrical timing device which is a sealed unit in the machine. After placing her money in the machine, the appellant commenced to insert clothes in it when [while inserting a sheet] it started its spinning or last phase operation, whereupon the appellant's right arm was pulled into the machine and severely injured.

Complaints of previous erratic operation of the machine had been made to the appellee organization and, on at least one occasion, an inspection of the machine was made at which time the machine operated in a normal manner. The evidence is silent as to whether or not upon a reasonable inspection same would have revealed any defect in the operation of the machine in question. Following the injury, the machine continued in operation for a period of approximately one year, at which time [as a result of the claim of the appellant] the machine was dismantled by an expert in an attempt to determine what caused the alleged erratic behavior of the machine on the day in question. During this latter period of time, the evidence fails to reveal any other instance of unusual or erratic performance by the machine.

It is apparent from the evidence that the appellant did not attempt to and could not establish any actual defect in the machine in question, and it was upon this basis that the trial judge granted the directed verdict. It is for this reason that we approve the actions of the trial judge. The appellant urges that she is entitled to recover under any one of three theories, to wit: First, upon simple negligence; second, upon the doctrine of res ipsa loquitur; and, third, upon an implied warranty of fitness.

As to the first, without proof of any actual defect which would have been discovered by reasonable inspection [assuming that one had been made], there is no breach of a duty on the part of the appellee. For the appellant to recover upon the doctrine of simple negligence, she must establish an actual defect in the machine which was, or should have been known to the appellee. See: Lofton v. Jacksonville Electric Co., 61 Fla. 293, 54 So. 959; J. Ray Arnold Lumber Co. v. Carter, 91 Fla. 548, 108 So. 815, 46 A.L.R. 1068; Buria v. Rosedale Engineering Corp., 7 A.D.2d 486, 184 N.Y.S.2d 395; 18 F.L.P., Negligence, § 29. As to the second, the doctrine of res ipsa loquitur, it is not applicable in the instant case because of the opportunity for intervening forces to have contributed to the machine's malfunction through no fault of the appellee. The reasoning of the court of New York in the case of Buria v. Rosedale Engineering Corp., supra, is persuasive on this subject, where the following is stated:

'But, in order to recover plaintiff must prove negligence on the part of the defendants. Admittedly the doctrine of res ipsa loquitur is not available in this case since the machine was not in the sole control of the defendants. On the contrary it was in constant use by the tenants of the building. Notice of the defect therefore would have to be brought home to the owning and operating defendants unless...