Madden v. Gorum

• Citation: 250 So.2d 342
• Decision Date: 08 July 1971
• Docket Number: No. N--577,N--577
• Parties: William Clifford MADDEN and Arthur Jenkins, d/b/a Jenkins Trucking, Incorporated, Appellants, v. Jane B. GORUM and C. W. Gorum, Appellees.
• Court: Court of Appeal of Florida (US)

Page 342

250 So.2d 342

William Clifford MADDEN and Arthur Jenkins, d/b/a Jenkins Trucking, Incorporated, Appellants, v. Jane B. GORUM and C. W. Gorum, Appellees.

No. N--577.

District Court of Appeal of Florida, First District.

July 8, 1971.

Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellants.

Brooks Taylor, Crestview, for appellees.

SPECTOR, Chief Judge.

Appellants, defendants below, seek reversal of a judgment entered pursuant to a jury verdict for appellees, plaintiffs below. The action arose out of an automobile accident experienced by the appellees.

A single point is raised by appellants for reversal, viz: whether there was any evidence from which the jury could conclude that negligence on the part of the defendants, or either of them, caused or contributed to causing the collision. The complaint filed by the plaintiffs alleged, inter alia, that the defendant, Arthur Jenkins, d/b/a Jenkins Trucking, Incorporated, owned a motor vehicle which was negligently operated or maintained by the defendant Madden so that it collided with the plaintiffs' motor vehicle at the alleged time and place.

Appellants' contention on this appeal is that there was no evidence whatever adduced at the trial showing that the vehicle which collided with that of plaintiffs was driven by defendant Madden or owned by defendant Jenkins or his corporation; and, therefore, their motion for directed verdict should have been granted. Our meticulous examination of the transcript of evidence requires us to agree with appellants. No evidence appears in the record that Madden was driving the errant vehicle nor that the same was owned by Jenkins or his corporation. Moreover, there was no evidence as to which vehicle collided with the one in which plaintiffs were riding. As in Manganelli v. Covington, 114 So.2d 320 (Fla.App.1959), 'We have carefully reviewed the testimony in this cause and are unable to find wherein there is evidence upon which the jury could have lawfully found that the defendant Covington (Madden and Jenkins here) was guilty of any acts of negligence or, for that matter, that the automobile which she (Madden here) was operating ever struck the plaintiff.'

The absence of such evidence was fatal in the case at bar. Appellants' motion for directed verdict should have been granted.

Appellees contend that the question raised by appellants was improperly preserved because of their failure to move for directed verdict at the close of the plaintiffs' case. In such circumstances, argue the appellees, appellants cannot attack the sufficiency of the evidence presented during the plaintiffs' case in chief to establish all of the elements of the cause of action. We cannot agree with this contention. The record reflects that after the plaintiffs rested, defendants without adducing any evidence also rested. Immediately thereafter, defendants moved for a directed verdict. We think the motion for directed verdict by defendants was timely made and properly preserved the question for review by this court.

Appellees' reliance upon 6551 Collins Avenue Corp. v. Millen, 97 So.2d 490 (Fla.App.1957), 104 So.2d 337 (Fla.1958), is misplaced. There the court held that appellant's failure to interpose a motion for directed verdict at the conclusion of all of the evidence precluded appellant from exercising his right to test the legal sufficiency of the evidence to support the verdict. In the case at bar, appellants did move for directed...