Folwell v. Bernard By and Through Bernard, 84-1140

• Decision Date: 25 October 1985
• Docket Number: No. 84-1140,84-1140
• Citation: 10 Fla. L. Weekly 2409,477 So.2d 1060
• Parties: 10 Fla. L. Weekly 2409 William H. FOLWELL, as Bishop of the Diocese of Central Florida, and the Diocese of Central Florida, Inc., Appellants, v. James M. BERNARD, Jr., By and Through his parents, natural guardians and next friends, Roberta BERNARD and James Bernard, and Roberta Bernard and James Bernard, individually, Appellees.
• Court: Florida District Court of Appeals

Page 1060

477 So.2d 1060

10 Fla. L. Weekly 2409

William H. FOLWELL, as Bishop of the Diocese of Central Florida, and the Diocese of Central Florida, Inc., Appellants, v. James M. BERNARD, Jr., By and Through his parents, natural guardians and next friends, Roberta BERNARD and James Bernard, and Roberta Bernard and James Bernard, individually, Appellees.

No. 84-1140.

District Court of Appeal of Florida,

Second District.

Oct. 25, 1985.

Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., and James A. Murman of Barr, Murman and Tonelli, P.A., Tampa, for appellants.

Larry Klein of Klein & Beranek, P.A., and Fred Hazouri of Cone, Wagnor, Nugent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellees.

FRANK, Judge.

The instant appeal has its origin in a personal injury action which resulted in a $566,000.00 judgment rendered against the appellants, "William H. Folwell as Bishop of the Diocese of Central Florida, Inc." and "The Diocese of Central Florida, Inc." The subsidiary facts associated with the injury received by James M. Bernard, Jr., a minor, although not essential to our determination, are briefly stated as follows:

In 1976, James M. Bernard, Sr., was elected a vestryman of St. Ann's Episcopal Church located in Wauchula, Florida. St. Ann's is an incorporated body. The members of the vestry voluntarily performed the maintenance responsibilities associated with the church, including cutting the grass. Bernard, Sr. had been scheduled by the vicar, Reverend Smith, to cut the grass during August of 1976. On August 28, 1976, when Bernard, Sr. had completed cutting the churchyard's grass, he began to turn off the lawn mower. He disengaged the clutch but left the throttle wide open. As he bent over to choke the engine to a stop, the self-propelled mower jumped into gear and lurched forward. In attempting to stop the mower's forward motion, Bernard, Sr. caused the front end of the machine to tip upward. His son, Bernard, Jr. was struck by the rotary blade at or near his left knee inflicting severe injuries requiring extensive medical treatment.

Following a tortuous procedural course involving the amendment of the original complaint to add parties and to alter the causes of action, and the ultimate elimination of all other defendants as a result of settlements, this action was tried before a jury upon Count IX of the third amended complaint only against "William H. Folwell, as Bishop of the Central Florida Diocese of the Episcopal Church." That count implicated Bishop Folwell on the theory that he was ultimately responsible for the maintenance and operation of St. Ann's lawn mower which injured Bernard, Jr. Upon the close of the evidence, the case was tendered to the jury upon a special verdict form containing the following questions, each of which was answered in the affirmative:

1. Was James Bernard, Sr., an agent or subagent of the Central Florida Diocese of the Episcopal Church acting within the scope of his agency or subagency?

2. Was St. Ann's Episcopal Church of Wauchula an agent of the Central Diocese of the Episcopal Church acting within the scope of its agency?

3. Was there negligence on the part of James Bernard, Sr. which was a legal cause of damages to the Plaintiffs?

4. Was there negligence on the part of St. Ann's Episcopal Church of Wauchula which was a legal cause of damages to the Plaintiffs?

The jury awarded the appellees $676,000.00 but that amount was subsequently reduced to $566,000.00 by excluding the total amount of the settlements entered into with former defendants. A final judgment was entered upon the verdict against "the Central Florida Diocese of the Episcopal Church." The judgment was subsequently amended, an event which created an issue on appeal we need not resolve in light of the conclusion we reach.

We have exhaustively canvassed and assessed the entire record and, with no less care, we have considered and passed upon the four issues presented by the appellants. The single question most critical among the four urged upon us, requiring our analysis and comment, is whether the trial court erred in denying the appellants' motion for directed verdict which thus permitted the jury affirmatively to answer the interrogatories numbered 1 and 2.

The existence of an agency relationship is a question of fact for the jury, Orlando Executive Park, Inc. v. Robbins, 433 So.2d 491 (Fla.1983); Cleveland Compania, Etc. v. Logothetis, 378 So.2d 1336 (Fla. 2d DCA 1980); McCabe v. Howard, 281 So.2d 362 (Fla. 2d DCA 1973), "unless the evidence is susceptible of only one interpretation." Jaar v. University of Miami, 474 So.2d 239, 242 (Fla. 3d DCA 1985). Although the appellate court may disagree with the result reached by the jury, it is not empowered to substitute its view of the evidence for that of the jury. Williams v. Dolphin Reef, LTD, 455 So.2d 640 (Fla. 2d DCA 1984). We adhere to the foregoing principles.

The appellees rest a substantial portion of their position in...