City of Daytona Beach v. Baker, A-18
| Decision Date | 10 December 1957 |
| Docket Number | No. A-18,A-18 |
| Parties | CITY OF DAYTONA BEACH, Appellant, v. Shirley Marlene BAKER, formerly Shirley Marlene Buscher, Appellee. Shirley Marlene BAKER, formerly Shirley Marlene Buscher, Cross-Appellant, v. Lewis MEADOWS, O. R. Appenzellar, W. R. Appenzellar and L. H. Meadows, a co- partnership, d/b/a Service Paint and Glass, Cross-Appellees. |
| Court | Florida District Court of Appeals |
Alfred A. Green, Daytona Beach, for appellant.
Hawkins & Orfinger, Daytona Beach, for appellees.
Appellee, Shirley Marlene Baker, formerly Shirley Marlene Buscher, who was the plaintiff below in an action charging neglisued to recover damages alleged to result from loss of his daughter's services during minority and moneys laid out for her medical care. The defendants in each suit were: City of Daytona Beach, the owner of the auditorium, Lewis Meadows, O. R. Appenzellar, W. R. Appenzellar, and L. H. Meadows, partners d/b/a Service Paint and Glass, who installed the glass front of the water tank. Their answers denied negligence as charged, and as an affirmative defense alleged contributory negligence on the part of Miss Buscher. The suits were consolidated and upon trial the jury returned a verdict of $15,000 for Shirley Marlene Buscher, and a verdict of $2,500 for Smith Buscher, both against the defendant City of Daytona Beach, and it appeals from the judgments entered thereon. The jury returned a verdict in each suit in favor of the defendant partners d/b/a Service Paint and Glass, and plaintiffs cross appeal from the judgment entered thereon.
At the conclusion of all the evidence the defendant city in each suit moved the court for a directed verdict on the salient grounds, in substance, that the evidence was insufficient to support a verdict for the plaintiff, which motion was denied. Thereupon plaintiffs severally moved the court for directed verdicts as to the question of liability on the salient grounds, in substance, that the evidence conclusively established liability of defendants as a matter of law, which motion was also denied. The parties have assigned as error the denial of their respective motions. While this opinion and judgment deals specifically with the appeal and cross appeal in the suit of Shirley Marlene Baker, nee Buscher, the discussion and conclusions are applicable to the separately reported suit of her father.
The question of the city's liability depends on two factors: (1) whether the relation between the city and plaintiff was such as to cast on the former a duty to protect the latter against the injury she sustained as a result of the defective stage property; (2) whether independent of any such relationship the injury was the result of negligence on the part of a city employee acting within the scope of his employment. Both factors in this case depend exclusively upon the evidence and since none was presented by the city it is interpreted in the aspect most favorable to the plaintiff-appellee.
The pageant was produced under the exclusive management and control of the Daytona Beach Junior Chamber of Commerce, which leased the auditorium from the city, made a charge for admission and applied the proceeds to its exclusive account. Young ladies seeking the mythical title of 'Miss Florida' were entered in the pageant under the sponsorship of the Junior Chambers of Commerce of various Florida cities. Each was required to furnish and have on hand the stage properties required for such exhibition as she would give in the talent phase of the contest. When the accident occurred the appellee, as 'Miss Orlando,' representing the Orlando Junior Chamber of Commerce, was rehearing her part in the pageant. The Sanford Junior Chamber of Commerce had caused the tank to be constructed at its direction and expense for use by its entry in giving an underwater swimming exhibition.
The only connection of the city with this unfortunate accident was: (a) The city owned the premises where the accident occurred; (b) answering an inquiry of the Sanford Junior Chamber of Commerce, it advised that the stage of the auditorium would support the tank and content, together with a truck upon which it was to be loaded and installed on the stage; (c) persons leasing or using the auditorium were required to observe the city's rules governing its use, none of which directly related to the type or standards of stage properties; (d) at the time the truck, with the steel framework of the tank located in place thereon, 1 was installed on the stage, but prior to installation of the glass front by Service Paint and Glass, a city employee required the representatives of the Sanford Junior Chamber of Commerce to shore up the truck so the weight would be evenly distributed upon filling the tank with water, and also required the gasoline to be taken out of the gas tank of the truck so as to reduce the fire hazard; (e) one of the city employees advised the Sanford representatives about putting a drain on the water tank; (f) a block and tackle provided and used by Service Paint and Glass to install the glass front of the tank was employed by connecting it to the grid floor above the stage in the presence of a person employed by the city as maintenance engineer of the auditorium, which employee also provided the fire hose of the auditorium for use by the representatives of the Sanford Junior Chamber of Commerce in filling the tank; (g) while the tank was being filled, this employee saw some of the mastic (a substance used to chink the glass and steel where it connected in the tank) oozing out from the connecting edges, and noticed that the water was commencing to leak at these points, whereupon he informed one of the Sanford men, engaged in filling the tank, that the tank was getting full and that they had better look at it; (h) after the glass broke the city sent a crew from the city yards who helped clean up the auditorium in preparation for the pageant scheduled to be given that evening. It is upon these facts alone that plaintiff relied for recovery in the circuit court and for affirmance here.
Plaintiff's uncontested proofs conclusively establish that the city leased the auditorium to the Daytona Beach Junior Chamber of Commerce for the time required and the purposes of the pageant. Not only is this the direct testimony of one of plaintiff's witnesses, but it is adequately supported by other facts and inferences reasonably to be drawn...
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