Jackson v. Florida Weathermakers

• Decision Date: 05 October 1951
• Citation: 55 So.2d 575
• Parties: JACKSON et al. v. FLORIDA WEATHERMAKERS, Inc., et al.
• Court: Florida Supreme Court

Page 575

55 So.2d 575

JACKSON et al. v. FLORIDA WEATHERMAKERS, Inc., et al.

Supreme Court of Florida, Division B.

Oct. 5, 1951.

On Rehearing Dec. 14, 1951.

Rehearing Denied Jan. 3, 1952.

Marks, Gray, Yates & Conroy, Francis P. Conroy and Harry T. Gray, all of Jacksonville, for appellants.

Fleming, Jones, Scott & Botts, Charles R. Scott and William L. Durden, all of Jacksonville, for Florida Weathermakers, Inc.

John M. McNatt, Jacksonville, and Claude K. Slater, Jacksonville, for H. L. Hall, et vir, appellees.

Will O. Murrell and Will O. Murrell, Jr., Jacksonville, for Nellie B. Creasy, appellees and cross-appellants.

ROBERTS, Justice.

J. E. Jackson and T. F. Cowart, trading and doing business as Jacksonville Meat Company (hereinafter referred to as 'Jax Meat'), owned and operated a grocery store in Jacksonville, Florida, at the time of the occurrence of the matters and things with which we are here concerned. Jax Meat entered into a written contract with Florida Weathermakers, Inc., for the installation of an air conditioning system in the grocery store; and Florida Weathermakers sub-contracted the electrical wiring part of the job to H. L. Hall, trading and doing business as Hall Electrical Company (hereinafter referred to as 'Hall.') After the work of installing the air conditioning system had been commenced by Florida Weathermakers and at a time when Hall's employees were engaged in running the wiring system through the attic of the store, a celotex tile fell from the ceiling of the store and struck and injured Mrs. Nellie B. Creasy, who was shopping for groceries in the store. Mrs. Creasy and her husband thereupon filed suit against Jax Meat, Florida Weathermakers, and Hall to recover damages for her injuries.

The three defendants--who defended the suit separately--filed their respective answers, denying the allegations of the complaint; and Jax Meat also filed cross-claims against Florida Weathermakers and Hall, alleging therein that the sole proximate cause of Mrs. Creasy's injuries was the negligence of Hall's or Florida Weathermaker's employees, or both, and that by virtue of the contract between Jax Meat and Florida Weathermakers (which contained a Public Liability Insurance clause) one or both of such co-defendants would be liable over to Jax Meat for all damages, if any, sustained by Jax Meat in the suit. The cross-claims were dismissed upon the motions of the two co-defendants, and the cause went to trial on the issues made by the complaint and the several answers of the defendants, that is, whether each defendant was negligent as charged.

Trial was had before a jury, whose verdict found in favor of the plaintiffs and against Jax Meat and, further, that the defendants, Florida Weathermakers and Hall were not guilty. Damages were assessed by the jury against Jax Meat in Mrs. Creasy's favor in the amount of $22,000, and for her husband in the amount of $2,500. Judgment was thereupon entered in accordance with such verdict, after the motions for new trial filed by Jax Meat and by the plaintiffs had been denied. Both Jax Meat and the plaintiffs have appealed, but it must be assumed that the plaintiffs have abandoned their cross-appeal, since they have not here briefed or argued their assignments of error and have, in fact, presented a brief in favor of the correctness of the judgment.

We have, then, a situation wherein one defendant, Jax Meat, is the appellant, and the two co-defendants and the plaintiffs are the appellees. A brief in support of the correctness of the judgment has been filed by each of the three appellees.

Jax Meat first contends that the verdict in favor of Florida Weathermakers and Hall and against Jax Meat is inconsistent and should not be allowed to stand, on the theory that Jax Meat is only 'derivatively' liable for the injury; and that since the 'principal actor,' to wit, Hall, has been exonerated, Jax Meat cannot be held liable. There is no merit to this contention.

The plaintiff charged that Jax Meat knew or in the exercise of reasonable care should have known that Hall's employees were engaged in work between the ceiling joists and roof rafters 'thereby creating a dangerous condition and hazard to the plaintiff and others below in said area, * * *'; that it was the duty of Jax Meat 'to furnish a safe place for the plaintiff, Nellie B. Creasy, to walk and shop in and about said store and to warn the said plaintiff of the danger of the concealed workmen overhead;' that Jax Meat 'failed to comply with their duty in that behalf and carelessly and negligently kept said store open to the public where plaintiff was invited to enter and shop where said concealed workmen were working overhead,' and that plaintiff 'was thereby furnished an unsafe place to walk nd shop therein.' Thus, the plaintiff charges Jax Meat with a separate and independent tort from that of its co-defendants, who were sought to be held liable for a concurring act of negligence, to wit, that the agent or employee of one or both of them 'so negligently and carelessly managed and conducted himself as to cause one of said 'celotex' blocks with great force and violence to fall down into against and upon the plaintiff, Nellie B. Creasy.'

Jax Meat's liability, then, is not based on the substantive law of agency or respondeat superior, but on the substantive law of torts. See Devine v. Kroger Grocery & Baking Co., 349 Mo. 621, 162 S.W.2d 813. If, in fact, the proof is sufficient to show that Jax Meat failed in its duty to provide plaintiff with a safe place in which to shop, and that this was a substantial factor in causing her injury, then Jax Meat may be held responsible for the entire injury to plaintiff. 52 Am.Jur., Torts, page 451; Restatement of Torts, Vol. 4, Section 879. As stated in Crenshaw Bros. Produce Co. v. Harper, 142 Fla. 27, 194 So. 353, 359: 'A co-defendant in a tort action cannot complain of a verdict rendered in the other defendant's favor, because there can be no contribution among tort-feasors. If an injury be caused by the concurring negligence of two or more parties, each of them is liable to the injured party to the same extent as though it had been caused by his negligence alone. If a judgment for damages in a tort action be rendered against one and in favor of the other defendant or defendants, the only party to the case who has a right to complain of the verdict and judgment rendered in favor of the other party or parties is the plaintiff in the court below.' See also H. E. Wolfe Const. Co. v. Ellison, 127 Fla. 808, 174 So. 594, 605. The plaintiffs are not here complaining of the verdict and judgment in favor of Florida Weathermakers and Hall and, in fact--as heretofore noted--have briefed this question against the contention of Jax Meat.

Jax Meat next contends that, in order to sustain the verdict and judgment by which it alone is held liable for Mrs. Creasy's injuries, the evidence must show that its negligence was the sole proximate cause of the injury, that is, that the celotex tile would have fallen even though the workmen above the ceiling had exercised the greatest of care; that this was known or should have been known by Jax Meat, and that Jax Meat should therefore have warned the plaintiff or excluded her from the area of the store above which the men were working. We cannot...