Kilburn v. Davenport, 73-188
| Decision Date | 20 November 1973 |
| Docket Number | No. 73-188,73-188 |
| Parties | Richard KILBURN, Appellant, v. William DAVENPORT, Individually and as employee, owner, manager, franchisee and/or agent; Kirby Company of South Florida, Appellee. |
| Court | Florida District Court of Appeals |
Stanley Jay Bartel, Miami, Joe N. Unger, Miami, Beach, for appellant.
Horton & Perse and Arnold Ginsberg, Ralph P. Ezzo, Miami, for appellee.
Before CARROLL, HENDRY and HAVERFIELD, JJ.
Appellant, plaintiff in the trial court, seeks review of a directed verdict in favor of defendant-appellee, which followed a jury verdict for the plaintiff in an action for malicious prosecution.
The evidence, viewed in a light most favorable to the plaintiff upon a directed verdict again him, showed that plaintiff, Mr. Kilburn, was employed by defendant, Mr. Davenport, as a vacuum cleaner salesman. Kilburn was issued on consignment a demonstrator and one or more vacuums for sale and germicide and shampoo to use in demonstrations and for sale. He was also issued some steak knives to give prospective customers as a promotional gift, and some renovators and motor brushes. Kilburn admittedly was given lawful possession of these items. Subsequently, after having been given a managerial position by Davenport in his store, Kilburn allegedly had a dispute with his employer over two accounts and quit his job. Kilburn testified that Davenport became quite angry and warned, 'Nobody leaves me.' Thereafter, Davenport went to the state attorney's office, and a criminal complaint for petit larceny was issued against Kilburn. He was accused of stealing two renovators steak knives, germicide, shampoo, motor brushes and a puppy which Kilburn claimed was given to him by Davenport, allegedly for $25.00, and which Kilburn eventually left in a kennel and Davenport picked up. Kilburn was acquitted of the criminal charge, and he filed the instant action against Davenport for malicious prosecution. He alleged that the charges against him had caused him to spend some eight days in jail and to post bond, damaged his reputation and brought on loss of employment. Davenport interposed as a defense that he was immune from suit because his conversations with the state attorney were privileged and the prosecutor, rather than the defendant, had instigated the criminal action. Following trial, the jury returned a verdict of $15,000.00 in compensatory damages and $15,000.00 in punitive damages in favor of the plaintiff. The trial judge then granted defendant's motion of directed verdict at the close of all the evidence, which had been reserved.
Appellant argues that the trial court erred in granting a directed verdict for defendant in the face of a jury verdict for the plaintiff because (1) the essential elements of the tort of malicious prosecution were sufficiently proved, and (2) the defendant was not immune from suit because of the filing of criminal charges by the prosecuting attorney.
Appellee contends that the directed verdict was correct because the plaintiff failed to prove two essential elements of malicious prosecution: an absence of probable cause and an instigation of the prosecution by the defendant.
At the outset, we note that this cause comes to us upon a directed verdict following a jury verdict reaching an opposite conclusion. In this posture, we must view the evidence most favorably to the non-moving party, the plaintiff. As this court recently has restated, directed verdicts should be granted cautiously, 'and only when the court, after viewing the evidence and testimony in a light most favorable to the non-moving party, concludes that the jury could not reasonably differ as to the existence of a material fact or material inference, and that the movant is entitled to judgment as a matter of law.' Mathis v. Lambert, Fla.App. 1973, 274 So.2d 601.
We have carefully considered, the record, briefs, and arguments of counsel, and have concluded that the trial court properly submitted the issues in this cause to the jury, and appellee has not shown sufficient grounds for disturbing the verdict.
The existence of probable cause is a mixed question of law and fact, and when the facts are in controversy, the issue necessarily must be submitted to the jury. Glass v. Parrish, Fla.1951, 51 So.2d 717; Williams v. Confidential Credit Corporation, Fla.App. 1959, 114 So.2d 718. Likewise, the question of whether or not the defendant instigated the prosecution upon which this action...
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In re Std. Jury Instructions in Civil Cases -- Report No. 09-01
...to [institute] [continue] the prosecution entirely to the judgment of the authorities.]NOTE ON USE FOR 406.6 See Kilburn v. Davenport, 286 So.2d 241 (Fla. 3d DCA 1973); Zippy Mart, Inc. v. Mercer, 244 So.2d 522 (Fla. 1st DCA 1970).406.7 LEGAL a. Legal cause generally: The malicious [institu......
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In re Standard Jury Instructions in Civil Case—-Report Number
...to [institute] [continue] the prosecution entirely to the judgment of the authorities.]NOTE ON USE FOR 406.6 See Kilburn v. Davenport, 286 So.2d 241 (Fla. 3d DCA 1973); Zippy Mart, Inc. v. Mercer, 244 So.2d 522 (Fla. 1st DCA 1970).408.6 ISSUES ON PLAINTIFF'S CLAIM—INTERFERENCE WITH BUSINESS......
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Ligman v. Tardiff, 84-127
...Reams v. Vaughn, 435 So.2d 879, 881 (Fla. 5th DCA 1983); Navarro v. City of Miami, 402 So.2d 438 (Fla. 3d DCA 1981); Kilburn v. Davenport, 286 So.2d 241 (Fla. 3d DCA 1973), cert. denied, 295 So.2d 301 (Fla.1974); Stupp v. Cone Brothers Contracting Co., 135 So.2d 457 (Fla. 2d DCA 1961), cert......
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Thor Bear, Inc. v. Crocker Mizner Park, Inc.
...courts to rule on such motions for new trial in order to eliminate the possibility of a second appeal. See also Kilburn v. Davenport, 286 So.2d 241, 244 (Fla. 3d DCA 1973), cert. denied, 295 So.2d 301 However, where the trial court has ruled upon a motion for judgment in accordance with pri......