Henderson v. Tarver

• Decision Date: 05 October 1960
• Docket Number: No. 1737,1737
• Citation: 123 So.2d 369
• Parties: Jessee HENDERSON, Appellant, v. Willie TARVER et al., Appellees.
• Court: Florida District Court of Appeals

Page 369

123 So.2d 369

Jessee HENDERSON, Appellant, v. Willie TARVER et al., Appellees.

No. 1737.

District Court of Appeal of Florida, Second District.

Oct. 5, 1960.

John A. Hanley of Bacon & Hanley, St. Petersburg, for appellant.

Fred G. Minnis of Minnis & Williams, St. Petersburg, for appellees.

SHANNON, Judge.

This is an appeal by one of the defendants below from a jury verdict and judgment entered for the plaintiff in the amount of $10,000.

The plaintiff, Tarver, and his companion, Mehalia Jelks, hailed a taxi one evening in January, 1959. The taxi that picked them up was owned by the appellant, Jesse Henderson, and was driven by an employee, one Harold Parker. Tarver gave the driver the destination, but instead of proceeding directly the driver went first to the cab company office. At the office the plaintiff saw a policeman and a crowd of people and he asked the driver what was happening. Parker told him that a 1959 Cadillac was being raffled and the plaintiff asked Parker to wait while he purchased a ticket. Thereupon, Tarver got out of the taxi, leaving his woman companion in the back seat. While Tarver was absent, the appellant, Henderson, who was the owner of the cab, got into the taxi and told Parker to take him to a nearby address. The cab drove off with Mehalia Jelks still in the back seat. A short time later the cab returned. Tarver was waiting outside the taxi office, and, according to the record, he was angry about Parker driving away with Mehalia. After an exchange of strong words, Tarver got back into the cab and told Parker to proceed to the original destination. Parker refused to drive them anywhere, and an argument ensued. Eventually, both Tarver and Mehalia got out of the cab. Mehalia started to walk away, but Tarver continued to argue. Parker then reached into the cab, produced a gun, and shot Tarver in the chest. According to the testimony in the record, Tarver was never closer to Parker than arm's length, and, in addition, Tarver was unarmed.

The bullet caused a serious lung injury and Tarver's recovery involved several operations and a long hospital stay. There was also a permanent lung disability.

Tarver sued Parker, Henderson and the cab company for assault and battery. The case was tried before a jury and resulted in a verdict for Tarver in the amount of $10,000, for which judgment was entered. Henderson, the owner of the taxi, has taken this appeal on the theory that the contract of carriage had terminated before the tort and that therefore he cannot be held liable. The appellant's main points concern the refusal of the trial court to direct a verdict for him individually, and the sufficiency of the evidence to support the jury's verdict.

The rules concerning directed verdict have been well established in this state. In Budgen v. Brady, Fla.App.1958, 103 So.2d 672, 674, the First District stated the rule as follows:

'* * * The rule governing directed verdicts is that if no evidence is introduced upon which the jury may lawfully find a verdict for one party, the jury may be directed to find for the opposite party * * *. Furthermore, a party who moves for a directed verdict admits not only the facts proved by the evidence adduced, but also admits every conclusion favorable to the adverse party that the jury might fairly and reasonably infer from the evidence. And, when there is room for a difference of opinion between reasonable men as to the existence of evidentiary facts from which an ultimate fact is sought to be established, or when there is room for such difference as to the inferences which might reasonably be drawn...