Sixty-Six, Inc. v. Finley, SIXTY-SI

• Citation: 224 So.2d 381
• Decision Date: 24 June 1969
• Docket Number: SIXTY-SI,No. 68--1021,INC,68--1021
• Parties: , a Florida corporation, d/b/a Sir John Hotel, Appellant, v. Earl Alonzo FINLEY and Johnnie Will Ware, Appellees.
• Court: Court of Appeal of Florida (US)

Page 381

224 So.2d 381

SIXTY-SIX, INC., a Florida corporation, d/b/a Sir John Hotel, Appellant, v. Earl Alonzo FINLEY and Johnnie Will Ware, Appellees.

No. 68--1021.

District Court of Appeal of Florida, Third District.

June 24, 1969.

Frates, Fay Floyd & Pearson, and James D. Little, Miami, for appellant.

Colson & Hicks, Podhurst & Orseck, Miami, for appellees.

Before CHARLES CARROLL, C.J., and HENDRY and SWANN, JJ.

HENDRY, Judge.

The appellant was defendant below in a personal injury action brought by appellee Earl Alonzo Finley. In the early morning hours, at the lounge of the Sir John Hotel, Johnnie Will Ware shot Finley with a .38 calibre revolver, after the two men had an altercation, and the shooting resulted in Finley's permanent paralysis. Finley's cause of action in the trial court as against the appellant proceeded on two separate theories: the first of these was that the appellant corporation was vicariously liable for those acts of Johnnie Ware which he performed while in the scope of his employment as agent and servant of the appellant; the second theory was that the appellant was negligent by virtue of its 'harboring and keeping about its place of business the said Johnnie Will Ware, with notice or knowledge of (his alleged) violent and disorderly propensities.'

Trial was held before a jury, and the proceedings therein were lengthy and exhaustive. The defendant below moved for a directed verdict at the close of the plaintiff's case, and at the conclusion of all the evidence. Both motions were denied. The case was submitted to the jury and a verdict was returned in favor of the plaintiff in the amount of $377,003.55. Defendant thereupon moved for a judgment n.o.v., or in the alternative, for a new trial, both of which motions were denied. Since only the corporate defendant, Sixty-Six, Inc., d/b/a Sir John Hotel, has appealed from the final judgment, the co-defendant, Johnnie Will Ware, has been joined as an involuntary appellee pursuant to Florida Appellate Rule 3.11(a), 32 F.S.A.

As its first ground for appeal, the appellant contends that the court erred when it denied the first motions for directed verdict, on the grounds that there was no evidence which showed or inferred that Johnnie Will Ware was acting in the course or scope of his alleged employment, and/or in the furtherance of any interest of his alleged employer when the shooting occurred. Since this appeal is from a jury verdict, and since this particular point on appeal alleges error in the court's refusal to grant the motions for directed verdict, the movant must conclusively demonstrate that the evidence before the court at the time of the motion, when viewed in a light most favorable to the non-movant, precluded a prima facie showing of vicarious liability. Florida East Coast Ry. Co. v. Morgan, Fla.App.1968, 213 So.2d 632; North Shore Hospital v. Luzi, Fla.App.1967, 194 So.2d 63; Jacobs v. Harlem Cab, Inc., Fla.App.1966, 183 So.2d 552.

With regard to this point, the record reflects that Ware's duties included the quelling of disturbances which occurred any place on the Sir John Hotel premises; that he was authorized to be armed, during his working hours, with the .38 calibre revolver; that he was on duty safeguarding the evening's proceeds when the altercation with Finley occurred; plus other incidental details, all of which presented competent and substantial evidence upon which the jury could infer that the shooting occurred...