Goldman v. Hollywood Beach Hotel Company

• Decision Date: 09 May 1957
• Docket Number: No. 16349.,16349.
• Citation: 244 F.2d 413
• Parties: Charles H. GOLDMAN, Appellant, v. HOLLYWOOD BEACH HOTEL COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

244 F.2d 413 (1957)

Charles H. GOLDMAN, Appellant, v.HOLLYWOOD BEACH HOTEL COMPANY, Appellee.

No. 16349.

United States Court of Appeals Fifth Circuit.

May 9, 1957.

S. O. Carson, John H. Wahl, Jr., Miami, Fla., Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, Fla., of counsel, for appellant.

Willis H. Flick, T. J. Blackwell, Blackwell, Walker & Gray, Miami, Fla., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.

JONES, Circuit Judge.

The appellant, Charles H. Goldman, a resident of Illinois, and his wife, made reservations for December 25, 1952, at the Hollywood Beach Hotel, operated at Hollywood, Florida, by the appellee, Hollywood Beach Hotel Company, an Ohio corporation.On arriving at this hotel the Goldmans were informed that a room was not available there but they were provided with a room at the Town House, also operated by the appellee.The Goldmans were given the use of the dining room and other facilities of the Hollywood Beach Hotel.This hotel operated an automobile for the free transportation of the Goldmans and others similarly situated between the hotel where they had their sleeping quarters, and the Hollywood Beach Hotel where the dining and recreational facilities were available.On the evening of December27th Mr. and Mrs. Goldman, and another or others, were transported from the Town House to the Hollywood Beach Hotel, arriving there at about 7:30 P.M.There were several cars waiting to drive up to the entrance to the hotel.The car in which the Goldmans were riding stopped across the driveway from the hotel entrance.The driver was quoted as saying "Everyone out."The driver left the car to deliver a jacket to the driver of another car.In the back of the car with the Goldmans was another passenger who opened the door, stepped from the car and went his way.Goldman followed, slipped and fell.He was taken into the office of the hotel doctor.While there Mrs. Goldman wiped some grease or oil from the side of his trousers and the edge of his coat.She did not notice, nor did he, whether there was any oil or grease on his shoes.He sustained an arm injury and for it he brought a suit in the United States District Court for the Southern District of Florida with diversity of citizenship stated as the basis for Federal jurisdiction.Goldman testified that he slipped but did not see what caused his fall.He could not recall whether or not he looked at the pavement before stepping out of the automobile.Mrs. Goldman testified that she saw a wet spot or a puddle at the place where Goldman fell.Both of them testified that his legs were partly under the car after the fall.

By the original complaint Goldman alleged that the defendant hotel company was negligent in that it knew or in the exercise of reasonable care should have known of the existence of the substance on which he slipped and that it failed "to keep its premises in a reasonably safe condition for the welfare of plaintiff as an invitee thereon."The hotel company denied negligence and asserted contributory negligence of Goldman as a defense.On issues so framed the cause went to trial under a stipulation that the question of liability would be first determined.During the trial the plaintiff took the position that the hotel company owed the plaintiff the highest degree of care.He advanced the theory that by operating the limousine the hotel company was rendering, horizontally the same type of service as hotels perform in the moving of guests vertically by means of elevators, and that the degree of required care should be no less in the horizontal than in the vertical transportation.When Mr. and Mrs. Goldman had testified the plaintiff's attorney announced that he had no more evidence to submit on the question of liability.The hotel company moved for a directed verdict.The motion was granted and judgment was entered for the defendant.Thereafter Goldman filed a motion for a new trial and a motion for leave to amend his complaint by alleging his horizontal elevator and highest degree of care theory.Both motions were denied but Goldman was permitted to amend his complaint by alleging as the hotel company's negligence its failure "to exercise the highest degree of care in providing a safe place for plaintiff to alight".From the judgment adverse to him Goldman has appealed.

We are to determine whether there was a showing made of negligence sufficient to carry the case to the jury.In so doing the question to be resolved is whether the hotel company, under the circumstances, exercised the care required of it by law.

"Negligence", so the Supreme Court of Florida has said, "is the failure to observe for the protection of another's interest such care, precaution and vigilance as the circumstances justly demand whereby injury is done to such a person, or, in another form, negligence is the failure to do what a reasonable and prudent person would ordinarily have done, or the doing of what such a person would have done under the situation whereby injury is done to another".Russ v. State, 140 Fla. 217, 191 So. 296, 298;De Wald v. Quarnstrom, Fla., 60 So.2d 919.The appellant urges that there should be no difference between the degree of care required in horizontal transportation by automobile and vertical transportation provided by an elevator.In support of this contention the appellant cites Mitchell v. Marker, 6 Cir., 62 F. 139, andSouthern Railway Co. v. Taylor, 57 App.D.C. 21, 16 F.2d 517, 523.These cases compare the degree of care required in the operation of elevators with the duty imposed upon a common carrier of passengers.In the latter case it is said that, "This comparison is induced by reason of the similarity of the duty each owes to those under his care, not to the similarity of service or the instrumentality employed in rendering the service."We are not here concerned with the duty or degree of care required of one who is a common carrier.The transportation service rendered by the appellee was that; of a private carrier.Although, under the circumstances, the appellee was acting as a private carrier for hire, the general rule does not impose upon it a higher duty than that of ordinary care.13 C.J.S.Carriers§ 678 d, p. 1262.It is not necessary that we decide what degree of...