Haile v. Mason Hotel & Inv. Co.

• Decision Date: 06 April 1916
• Citation: 71 Fla. 469,71 So. 540
• Parties: HAILE v. MASON HOTEL & INVESTMENT CO. MASON HOTEL & INVESTMENT CO. v. HAILE.
• Court: Florida Supreme Court

71 So. 540

71 Fla. 469

HAILE v. MASON HOTEL & INVESTMENT CO.

MASON HOTEL & INVESTMENT CO. v. HAILE.

Florida Supreme Court

April 6, 1916

Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Action by George R. Haile against the Mason Hotel & Investment Company. Judgment for defendant. Plaintiff brings error, and defendant brings cross-error. Reversed, and new trial granted.

Syllabus by the Court

SYLLABUS

The provision of the statute that 'no writ of error shall be granted to the original plaintiff in any suit unless said plaintiff shall first pay all costs which may have accrued in and about the said suit up to the time when said writ of error shall be prayed' (Gen. St. 1906, s 1698), is for the benefit of the defendant in the trial court, and it may be waived.

Taking a nonsuit immediately after a motion for a directed verdict for the defendant is granted may be regarded as a compliance with the statute, requiring the nonsuit to be taken 'before the jury retire from the box.'

The considerations and legal principles that guide the judicial discretion in directing a verdict and in granting a new trial on the evidence are not the same.

In directing a verdict, the court is governed practically by the same rules that are applicable in demurrers to evidence.

A party, in moving for a directed verdict, admits, not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.

Where on the evidence adduced there is room for a difference of opinion between reasonable men as to the existence of facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail, and not primarily the views of the judge.

The duty devolving upon the court in reference to directing a verdict on the evidence may become, in many cases, one of delicacy, and it should be cautiously exercised.

Where the evidence tends to show that the plaintiff, who was injured by falling into an open elevator shaft in a hotel was not a mere licensee, and the tendency of the evidence is to show actionable negligence on the part of the defendant hotel company, a verdict for the defendant should not be directed.

COUNSEL A. H. King and Roswell King, both of Jacksonville, for plaintiff in error.

Marks Marks & Holt, of Jacksonville, for defendant in error.

OPINION

WHITFIELD, J.

George R. Haile brought an action against the hotel company, in which the declaration alleges, in effect: That the defendant company was the owner and proprietor of a certain hotel called Mason Hotel, in the city of Jacksonville, Fla., that plaintiff at about 11:30 a. m. went to the said Mason Hotel on business with its manager, when he was then and there directed and conducted to the office of the said manager by a clerk and another employé of the defendant. That after concluding his business with the said manager, plaintiff proceeded to leave said office and hotel by a passageway or hallway then and there provided for said purpose. The while he was passing, or attempting to pass, from the said office of the said manager to the lobby of said hotel, as he was directed, authorized, and invited to do, plaintiff fell into an open elevator shaft in said hall or passageway which was and has been left open, unguarded, unlighted, unprotected, by and through the negligence and carelessness of the defendant. That defendant was guilty of negligence and carelessness in the premises, in this, to wit: That it failed to keep said hallway or passageway sufficiently or properly lighted for the protection of plaintiff and others similarly situated in the premises. That by reason of said carelessness and negligence of the defendant the plaintiff fell into the elevator shaft, as aforesaid, and was injured, etc wherefore plaintiff claims specified damages.

Issue was joined on a plea of not guilty and several special pleas. At the trial after the evidence for the plaintiff had been introduced, the defendant moved for an instructed verdict the grounds being:

'First. The evidence adduced is insufficient to entitle the jury to lawfully find for the plaintiff.

'Second. It appears from the undisputed testimony that the defendant violated no duty owed to the plaintiff.

'Third. It affirmatively appears that plaintiff was a mere licensee upon the property of the defendant at the time and place when and where he was injured.

'Fourth. It affirmatively appears that plaintiff was a mere licensee upon defendant's premises because he went there of his own volition and for his own business ends, and without invitation from this defendant, and consequently has no right to complain of the condition of said premises.

'Fifth. Because it does not appear that the alleged clerk and other employé who directed plaintiff to that portion of the hotel where he was injured, if such direction was given, had any authority (actual or apparent) to give the same for and on behalf of this defendant, and, further, because even if such direction was given by parties authorized to bind this defendant, same merely amounted to a permission or license to go upon the premises, and not to an invitation.

'Sixth. Because it affirmatively appears that the plaintiff suffered the alleged injuries by reason of his own negligence, and not otherwise.

'Seventh. Because the testimony proves defendant's pleas without contradiction.'

The motion was granted. The plaintiff excepted to the ruling and moved for a nonsuit, with bill of exceptions, which was granted, the defendant excepting thereto. Thereupon the court rendered a judgment 'that a judgment of nonsuit be entered against the plaintiff, George R. Haile, and that defendant, Mason Hotel & Investment Company, a corporation, go hence without day and recover' its costs, and the plaintiff took writ of error. The defendant also took a writ of error to the judgment granting a nonsuit to the plaintiff.

After the cause was submitted on briefs upon the merits, the defendant below moved to dismiss the plaintiff's writ of error on the ground that the costs below had not been paid as required by the statute.

'Writs of error * * * shall issue on demand as matter of right. * * * But no writ of error shall be granted to the original plaintiff in any suit unless said plaintiff shall first pay all costs which may have occurred in and about the said suit up to the time when said writ of error shall be prayed.' Gen. Stats. 1906, § 1698.

The latter provision is for the benefit of the defendant in the trial court, and it may be waived. In this case it was stated at the bar that the costs assessed when the writ of error was issued were paid. Subsequently other costs due in the cause were taxed. The defendant, having submitted the cause before making the motion to dismiss, has waived his right by not acting promptly. He had notice of the issuance of the writ of error by its record under the statute. The motion to dismiss is denied.

As the plaintiff had a right by bill of exceptions and writ of error to a final judgment for the defendant duly taken, to a review of the order directing a verdict for the defendant, the taking of a nonsuit with bill of exceptions under the statute was unnecessary.

Taking a nonsuit immediately after a motion for a directed verdict for the defendant is granted may be regarded as a compliance with the statute, requiring the nonsuit to be taken 'before the jury retire from the bar.'

Section 1496 of the General Statutes of 1906 as amended by section 1, c. 6220, Acts of 1911, is as follows:

'Upon the trial of all cases at law in the several courts of this state, the judge presiding on such trial shall charge the jury only upon the law of the case; that is upon some point or points of law arising in the trial of said cause. If, however, after all the evidence shall have been submitted on behalf of the plaintiff in any civil case, it be apparent to the judge of the circuit court, county court or court of record that no evidence has been submitted...