Gottschalk v. Smith, s. 75--680
| Decision Date | 02 June 1976 |
| Docket Number | 75--718,Nos. 75--680,s. 75--680 |
| Citation | 334 So.2d 102 |
| Parties | Edward GOTTSCHALK and Allstate Insurance Company, a Foreign Corporation, Appellants, v. George E. SMITH and Grace Smith, Appellees. |
| Court | Florida District Court of Appeals |
Talburt, Kubicki & Bradley and Robert Dickman, Jeanne Heyward, Miami, for appellants.
Horton, Perse & Ginsberg, Welsh & Carroll, Miami, for appellees.
Before BARKDULL, C.J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
The case sub judice arose out of an altercation between the appellee, George E. Smith, and one William H. Miles. On March 13, 1973, Smith drove his automobile into a Standard Oil Company service station operated by the appellant, Edward Gottschalk. As he approached the gasoline pumps, he allegedly struck or brushed against Miles with his automobile. At the time, Miles (a customer at the station) was walking from the pumps toward the mechanical stalls of the station where his automobile was being worked on. Upon being brushed by Smith's car, Miles banged upon the hood of the car and started cursing Smith. This was when the appellant, Gottschalk, first became aware of a problem between his customers. Gottschalk, at the time, was proceeding toward the pump area to service Smith's automobile. Another customer, a Mr. Alexander, interceded and lead Miles away toward his car and attempted to get Miles to control his temper. Miles did, in fact, cool down to a degree and the incident appeared closed. Gottschalk filled Smith's car with gas, made out the charge slip, and gave it to Smith to sign. He told Smith to go ahead and leave the area. As Smith was walking toward his car, Miles yelled some obscenity at him and Smith yelled at Miles to shut up. Upon hearing Smith's remark, Miles came toward him and asked Smith if he wanted to fight. Smith replied that he did and a fight of short duration ensued. Smith being injured in that fight, brought the instant suit against Miles, Gottschalk, Standard Oil Company, Highlands Insurance Company, Allstate Insurance Company, and Market Insurance Company. The suit against Miles was based upon an intentional tort. The suit against Gottschalk sought damages for breach of duty to provide reasonable security and protection of all persons lawfully on the premises. The cause proceeded to trial against Miles, Gottschalk, and Allstate. At the beginning of the trial, Miles admitted liability. At the close of all the evidence, Gottschalk moved for a directed verdict, which was denied....
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