Nutt v. James City, Inc.
| Decision Date | 10 March 1964 |
| Docket Number | Nos. 63-257,63-481,s. 63-257 |
| Citation | 162 So.2d 700 |
| Parties | Adele NUTT, Appellant, v. JAMES CITY, INC., a corporation, Giffin Industries, Inc., a corporation, Miami Super Cold Co., Inc., a corporation, and Kirby-Tuttle Co., a corporation, Appellees. MIAMI SUPER COLD CO., Inc., a corporation, Appellant, v. Adele NUTT, James City, Inc., a corporation, and Giffin Industries, Inc., a corporation, Appellees. |
| Court | Florida District Court of Appeals |
Nichols, Gaither, Beckham, Colson & Spence and Alan R. Schwartz, Miami, for Adele Nutt.
Raphael K. Yunes, Miami Beach, for Giffin Industries.
Curry & Shamas, Miami, for Miami Super Cold Co.
Dean Adams & Fischer, Miami, for James City, Inc.
Before CARROLL, HORTON and HENDRY, JJ.
We have two appeals which have been consolidated. We shall consider both of them together and deal with both of them in this opinion.
Mrs. Adele Nutt suffered physical injuries when an air conditioning duct fell upon her on February 22, 1960 while she was shopping in the James City Super Market in Miami, Florida.
The air conditioning duct in question was installed in 1954 for James City, Inc., by Giffin Industries as sub-contractor for Miami Super Cold Co., Inc. In 1959, certain alterations were made to the air conditioning equipment by Miami Super Cold.
Mrs. Nutt sued James City, Inc., the owner of the building and air conditioning duct, Miami Super Cold, Inc., the air conditioning general contractor, and Giffin Industries, the sub-contractor that actually installed the duct.
The Circuit Court granted the defendant-sub-contractor's motion to dismiss the plaintiff's complaint as to it. Thereafter, the defendant-contractor filed its answer and cross-claimed against the sub-contractor. This cross-claim was dismissed by the trial court. Miami Super Cold appeals that ruling.
The case proceeded to trial, and at the end of the plaintiff's case as to liability, the trial court directed a verdict in favor of the defendant, James City. Thereafter the jury returned a verdict against Miami Super Cold in favor of plaintiff. This verdict is not before us, but Mrs. Nutt and Miami Super Cold both appeal the judgment based on the directed verdict in favor of James City.
The trial court's orders directing a verdict in favor of James City and dismissing Miami Super Cold's cross-claim are affirmed.
Appellant, Nutt, raises two points on appeal. It is contended, (1) that the trial court erred in refusing to apply the doctrine of res ipsa loquitur in regard to James City, and (2) in directing a verdict where there was specific proof of James City's negligence, in that, it failed to make a proper inspection of its premises.
The evidence adduced during the plaintiff's case showed that the air conditioning duct was installed originally in 1954 and was altered somewhat in 1959. In December, 1959, approximately 2 months prior to the accident, James City had the duct painted, and the painter testified that the duct was steady. The expert testimony adduced that the air conditioning duct fell as a result of screws that were too short, in that they grasped just the plaster and not the wooden beam, as required, in order to make the duct installation permanent.
Assuming arguendo, that the doctrine of res ipsa loquitur is applicable to the instant situation, the trial court correctly held that the evidence adduced rebutted any possible inference of negligence on the part of James City. The record does not indicate whether the painter was an employee of James City, or its independent contractor, but giving appellant every inference in her favor and assuming the painter was an employee of James City, the painter's testimony clearly rebuts any inference of negligence as to James City. The painter's testimony, similarly, overcomes appellant's second contention that there was affirmative evidence of James City's failure to inspect.
Two months prior to the accident the painter tested the air conditioning duct and found it in sound condition....
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Modlin v. Washington Ave. Food Center, Inc.
...449 (1939); Brown v. George Pepperdine Foundation, 23 Cal.2d 256, 143 P.2d 929 (1943). The appellee relies upon Nutt v. James City, Inc., Fla.App.1964, 162 So.2d 700, for a contrary holding by this Court. In that case, we affirmed a directed verdict for the defendant, store owner, against t......
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Miami Super Cold Co. v. Giffin Industries, Inc.
...from an adverse judgment entered on the pleadings. The factual background is revealed in the opinion of this court in Nutt v. James City, Inc., Fla.App.1964, 162 So.2d 700. Mrs. Nutt obtained judgment against Miami Super Cold Co., Inc. for alleged faulty installation of an air conditioning ......
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O'Brien v. Francis, 69-406
...Inc., Fla.1951, 55 So.2d 575; Otis Elevator Company v. Fontainebleau Hotel Corp., Fla.App.1962, 137 So.2d 19; Nutt v. James City, Inc., Fla.App.1964, 162 So.2d 700; Mansell v. Eidge, Fla.App.1965, 179 So.2d 624, said appeals were ...
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Brodsky v. Small
...55 So.2d 575 (Fla.1951); Otis Elevator Company v. Fontainebleau Hotel Corp., 137 So.2d 19 (Fla. 3rd D.C.A. 1962); Nutt v. James City Inc., 162 So.2d 700 (Fla. 3rd D.C.A. 1964); Mansell v. Eidge, 179 So.2d 624 (Fla. 3rd D.C.A. 1965); O'Brien v. Francis, 231 So.2d 13 (Fla. 3rd D.C.A. 1970); N......