Columbia By the Sea, Inc. v. Petty

• Decision Date: 16 October 1963
• Docket Number: No. 3629,3629
• Parties: COLUMBIA BY THE SEA, INC., a Florida Corporation, trading as Rocky Point Beach Restaurant, Appellant, v. Ray S. PETTY, Appellee.
• Court: Florida District Court of Appeals

Page 190

157 So.2d 190

COLUMBIA BY THE SEA, INC., a Florida Corporation, trading as Rocky Point Beach Restaurant, Appellant, v. Ray S. PETTY, Appellee.

No. 3629.

District Court of Appeal of Florida, Second District.

Oct. 16, 1963.

Rehearing Denied Nov. 14, 1963.

John S. Matthews, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.

William M. Register, Jr., of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellee.

ALLEN, Acting Chief Judge.

Appellant, one of two co-defendants below, appeals a final judgment consequent upon a jury verdict for the sum of $2,500 compensatory damages and $1,250 punitive damages for appellee, plaintiff below.

Appellee sued appellant, the corporate owner of the Rocky Point Beach Restaurant and a co-defendant Jose Menendez, an employee of the appellant who was maitre d' of the restaurant, for an alleged assault and battery committed by Menendez while acting within the scope of his employment. The underlying facts are, briefly, as follow.

Appellee entered appellant's restaurant and ordered a $3.25 dinner, specifying roquefort dressing for his salad. After finishing the dinner he was presented the bill, including an extra 35cents charge for the roquefort dressing. When appellee objected to this charge, Menendez was summoned. At this point testimony conflicts, each party's witnesses insisting that the other was abusive. At any rate, appellee left the restaurant, refusing to sign or pay the check and apparently intent on consulting the manager of the adjacent motel (a distinct operation, which by arrangement would include guests' restaurant bills on their motel account). Menendez followed appellee to the motel office and gave the desk clerk the bill, instructing him to put it on appellee's account. According to the testimony, the motel manager was in the restaurant at the time. Appellee and Menendez apparently became increasingly angry. Appellee and the desk clerk testified that Menendez asked appellee to 'step outside.' All witnesses agree appellee made a sweeping motion toward Menendez and called him a 'bastard.' Menendez then struck appellee on the back of the head with an ashtray. Suit ensued.

The theory upon which appellant's liability is predicated is evidenced in several paragraphs of the complaint, of which the following is representative:

'5. The defendant Jose Menendez intentionally struck the plaintiff in the manner described in an effort to force the plaintiff to pay for the restaurant bill, which act of attempted enforcement of said payment was performed by the said Jose Menendez while then and there in the course of his employment and acting on behalf of and for the defendant, Columbia By the Sea, Inc. The defendant Jose Menendez was employed by the defendant Columbia By the Sea, Inc. in a managerial capacity in the operation of the aforesaid Rocky Point Beach Restaurant, and among his duties in such managerial capacity was the obligation to protect the interests of the defendant Columbia By the Sea, Inc., and to secure payment for bills rendered by said restaurant.'

Appellant's response to this allegation and to the evidence adduced to sustain it is evidenced in one of its several assignments of error:

'The Trial Court erred in denying the defendant's Motion for a directed Verdict at the conclusion of the plaintiff's case, and ruling that the evidence was sufficient to present a jury question as to whether or not the employee of the defendant, Columbia by the Sea, Inc., was serving the interests of his employer of the time of the assault upon the plaintiff; and in refusing to rule, as a matter of law, that based on the evidence, the employee and stepped aside from the course and scope of his employment and committed an assault for purely personal reasons, and that his employer was not liable for the assault, as a matter of law.'

Thus, the question on appeal is whether the evidence adduced as to Menendez having acted within the scope of his employment presented a question for the jury or conclusively indicated appellant employer's non-liability. Counsel for both parties have submitted comprehensive briefs in support of their respective positions and have cited numerous cases as sustaining their contentions. Unfortunately, the cases are often distinguishable, involving distinct and distinctive facts or proceeding upon a theory of liability neither pleaded nor relied upon below. Thus, while the authorities cited are valuable as indicative of the general rule and as exemplificative of varying applications of the rule, they serve only this limited use.

A succinct statement of the Applicable principle of law is found in the Annotation, 'Liability of employer other than carrier for a personal assault by employee upon customer, patron, or other invitee,' in 144 F.L.R. 1033 (1938.) This statement, to which the Supreme Court of Florida has subscribed, Weiss v. Jacobson, Fla.1953, 62 So.2d 904, is:

'The majority of the well-reasoned decisions pointing out the farthest boundaries of the doctrine of respondeat superior have proceeded in accordance with the rule stated by Cooley, J., at an early stage in the development of modern views as to the liability of a master for the torts of his servant: 'The liability of the master for intentional acts which constitute legal wrongs can only arise when that which is done is within the real or apparent scope of the master's business. It does not arise where the servant has stopped aside from his employment to commit a tort which the master neither directed in fact, nor could be supposed, from the nature of his employment, to have authorized or expected the servant to do * * *.''

This subject receives expanded attention 34 A.L.R.2d 372 (1954) where, in the 'Summary 34 F.L.R.2d 372 (1954) whereIn the 'Summary and comment,' the authors write:

'The basis of liability most often invoked against a master for assaults by a servant upon a customer, patron, or other invitee is that of respondeat superior--literally, let the master respond. Responsibility under such doctrine is recognized as being secondary, and is not confined to authorized or ratified acts, but extends to acts which are incidental to the employment or within its scope. Upon a hypothesis of agency or representation, the constructive presence of the employer at the scene...