Sunshine Sec. & Detective Agency v. Wells Fargo Armored Services Corp.

• Citation: 11 Fla. L. Weekly 2266,496 So.2d 246
• Decision Date: 28 October 1986
• Docket Number: No. 86-688,86-688
• Court: Court of Appeal of Florida (US)
• Parties: 11 Fla. L. Weekly 2266 SUNSHINE SECURITY & DETECTIVE AGENCY, Appellant, v. WELLS FARGO ARMORED SERVICES CORPORATION, Appellee.

Page 246

496 So.2d 246

11 Fla. L. Weekly 2266

SUNSHINE SECURITY & DETECTIVE AGENCY, Appellant, v. WELLS FARGO ARMORED SERVICES CORPORATION, Appellee.

No. 86-688.

District Court of Appeal of Florida Third District.

Oct. 28, 1986.

Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellant.

Rex B. Guthrie, Miami, Maro & Johnstone and James Johnstone, Coral Gables, for appellee.

Before SCHWARTZ, C.J., and HUBBART and JORGENSON, JJ.

PER CURIAM.

This is an appeal by the defendant Sunshine Security and Detective Agency [Sunshine] from a final default judgment entered against it in the trial court. The defendant Sunshine urges that the trial court erred in entering the default judgment below because, inter alia, the original complaint, on which the default was based, wholly failed to state a cause of action against it. We entirely agree and reverse based on the following briefly stated legal analysis.

First, the law is well-settled that a default judgment may not be entered against a defendant on a complaint which wholly fails to state a cause of action against the said defendant. See North American Accident Insurance Co. v. Moreland, 60 Fla. 153, 53 So. 635 (1910); Fernandez-Aguirre v. Gall, 484 So.2d 1286 (Fla. 3d DCA 1986); Bay Products Corp. v. Winters, 341 So.2d 240 (Fla. 3d DCA 1976); GAC Corp. v. Beach, 308 So.2d 550 (Fla. 2d DCA 1975).

Second, the operative complaint herein alleges that an employee of the defendant Sunshine, while on the job, conspired with certain third parties to rob employees of the plaintiff Wells Fargo who were making a cash pick-up at the bank which the defendant Sunshine was under contract to guard. The complaint then seeks to impute its employee's conspiracy to Sunshine based on an agency theory. In our view, the employee's tortious actions in so conspiring represent a classic case of an employee acting outside the scope of his employment. The subject employee was hired by the defendant Sunshine to guard the bank which he, in fact, conspired to rob. In this endeavor, we think the employee was plainly off on a frolic of his own, was in no way furthering the interests of his employer, and, consequently, was not acting within the scope of his employment as an agent of Sunshine under the doctrine of respondeat superior. See Weiss v. Jacobson, 62 So.2d 904 (Fla.1973); Johnson v. Gulf Life Insurance Co., 429 So.2d 744 (Fla. 3d DCA 1983); Martin v. United Security Services, Inc., 373 So.2d 720 (Fla. 1st DCA 1979); Reina v. Metropolitan Dade County, 285 So.2d 648 (Fla. 3d DCA 1973), cert. discharged, 304 So.2d 101 (Fla.1974). This being so, the original complaint wholly fails to state a cause of action against the defendant Sunshine, and, consequently, the default judgment herein was improperly entered below.

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