Mallory v. O'Neil
| Decision Date | 05 January 1954 |
| Citation | 69 So.2d 313 |
| Parties | MALLORY v. O'NEIL. |
| Court | Florida Supreme Court |
Russell C. Gay, Sibley Efronson and Cushman, Gay & Woodard, Miami, for appellants.
Blackwell, Walker & Gray, Miami, for appellee.
This appeal is from a final judgment dismissing appellant's second amended complaint, so the only question with which we are confronted is whether or not the complaint is sufficient to state a cause of action.
It sets up what the pleader elects to call three causes of action. (1) Ratification of the act of a servant by his principal. (2) Negligence of defendant in knowingly keeping a dangerous servant on his premises. (3) Negligence of defendant in not properly supervising the conduct of his servant.
In substance the complaint alleges that the defendant was on September 11, 1951, the owner of a large apartment house (30 or more units) at 533 N. W. 2 nd Avenue, Miami, Florida, that he employed one Henry Hazelhurst as his agent and caretaker, who occupied one of the apartments. The duty of Hazelhurst was to make minor repairs, water the grass, hear complaints and keep the apartment house in rentable condition. It is further alleged that on September 11, 1951, Hazelhurst went to his apartment, secured a gun, returned and shot the plaintiff and crippled her for life, that defendant knew or should have known that Hazelhurst had vicious propensities and was a dangerous character, that he ratified the conduct of Hazelhurst by keeping him in the premises, secured a lawyer to represent him and helped him secure bond; that during his trial it was revealed that he (Hazelhurst) had been previously charged and tried for assault with attempt to commit murder in Georgia, despite all of which defendant had kept him on his premises.
Under this state of facts we are convinced that there is no merit to the first cause of action charging that the defendant ratified the acts of his servant in shooting appellant. It is true that a master may be held liable for injury to a third party caused by negligent or wilful conduct of his agent or servant while acting in the scope of his authority and we have also held that this rule may be applied to a criminal act where it has been alleged and proven that the act complained of was incident to or was done in the scope of the servant's or agent's employment. Stinson v. Prevatt, 84 Fla. 416, 94 So. 656; Reece v. Ebersbach, 152 Fla. 763, 9 So.2d 805. See also Weiss v. Jacobson, Fla., 62 So.2d 904. The appellant has not alleged sufficient facts to show that the shooting was incident to or was done in the scope of Hazelhurst's employment. The rule is general that a criminal act cimmitted outside the scope of the servant's authority cannot be ratified and the allegations here are not sufficient to show ratification, if in fact any exceptions to the rule exist. Even if defendant secured a lawyer to represent his servant and retained the servant in his employment after serving his...
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