Setzer v. Tyre

• Decision Date: 13 November 1936
• Citation: 171 So. 224,126 Fla. 139
• Parties: SETZER v. TYRE.
• Court: Florida Supreme Court

171 So. 224

126 Fla. 139

SETZER v. TYRE.

Florida Supreme Court

November 13, 1936

Rehearing Denied Dec. 16, 1936.

Error to Circuit Court, Duval County; Miles W. Lewis, Judge.

Action by James G. Tyre against Benjamin Setzer. To review a judgment in favor of the plaintiff, the defendant brings error.

Affirmed.

COUNSEL Baker & Baker and Martin Sack, all of Jacksonville, for plaintiff in error.

Evan Evans, of Jacksonville, for defendant in error.

OPINION

DAVIS Justice.

James G. Tyre, plaintiff, recovered judgment for $1,000 in the lower court against Benjamin Setzer for unlawful assault and battery and false arrest. From that judgment, Benjamin Setzer took writ of error.

Plaintiff went into defendant's self-service store to do some shopping. After selecting his articles, he advanced to the cashier's desk, paid for the articles, and made his exit carrying the groceries in two packages. When plaintiff had proceeded about eight feet beyond the entrance to defendant's store, Musseau, the manager of the store seized plaintiff and claimed that certain articles he had taken from the store had not been paid for. Plaintiff broke loose from his grip and ran farther down the street. Musseau pursued plaintiff and struck him several blows about the head.

There was conflicting testimony as to whether plaintiff laid down his groceries and struck an offensive blow or whether he was merely defending himself and dropped his groceries after being set upon by Musseau, who was several pounds heavier. The fact is established, however, that plaintiff's groceries were scattered all over the street where the altercation took place.

Musseau claimed that plaintiff took a bar of soap and box of matches without paying for them, and that after he pursued plaintiff to the sidewalk, plaintiff paid for the bar of soap but denied taking the matches, which he found in plaintiff's pocket. Plaintiff claimed that he paid for the articles in question before he left the store at the same time he paid for the other articles, and that Musseau took them out of his packages.

There was conflicting testimony as to whether plaintiff, when beaten by Musseau, bled and had to have some sort of medical attention in the nature of first aid. There was also conflicting testimony as to whether plaintiff was under the influence of strong drink on that occasion.

Musseau turned plaintiff over to a policeman together with the soap and matches, and had plaintiff lodged in the city jail, where he remained for a period of about forty minutes. The charge booked against him was suspicion of shoplifting. After the fact was brought to the attention of Mr. Setzer, he ordered plaintiff released, but still retained Musseau as an employee.

The allegations of the declaration upon which the trial was had are sufficient as a pleading of plaintiff's claim for punitive or exemplary damages. See Winn & Lovett Grocery Co. v. Archer (Fla.) 171 So. 214. There is contained therein an allegation that the assault and battery of plaintiff sued...