Webb's City, Inc. v. Hancur

• Decision Date: 15 August 1962
• Docket Number: No. 2877,2877
• Citation: 144 So.2d 319
• Parties: WEBB'S CITY, INC., a Florida corporation, Appellant, v. James HANCUR, Appellee.
• Court: Florida District Court of Appeals

Page 319

144 So.2d 319

WEBB'S CITY, INC., a Florida corporation, Appellant, v. James HANCUR, Appellee.

No. 2877.

District Court of Appeal of Florida, Second District.

Aug. 15, 1962.

Rehearing Denied Sept. 20, 1962.

David G. Hanlon, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.

George B. Foss, Jr., of Fowler, White, Gillen, Humkey & Trenam, St. Petersburg, for appellee.

ELMORE, FRANK H., Associate Judge.

James Hancur, appellee, plaintiff below, secured a judgment based upon a jury verdict for $3500 compensatory damages and $3500 punitive damages against Webb's City, Inc., a Florida corporation, appellant, and defendant below.

Hancur, a retired man sixty years of age, was sitting at the counter of the coffee shop in the store of Webb's City, Inc. in St. Petersburg, having been served a cup of coffee by a waitress. A man named Spangler, whose identity was unknown to Hancur, came in and sat on the stool next to Hancur. He became noisy and boisterous, produced a bottle of whiskey and offered some to the waitress while talking loudly. The waitress served Spangler a cup of coffee but he continued to act in a boisterous fashion. Hancur said nothing to him except 'You had better drink some of that black coffee; it will do you a lot of good.' Shortly thereafter a 'husky type man' (so described by Hancur) came in and pulled Spangler off the chair without letting him drink his coffee, told him to pay for his coffee and get out and escorted him outside. The 'husky man' then returned and asked Hancur to hurry up and drink his coffee which was still hot. Hancur replied that he had to sip his coffee slowly whereupon the stranger (for he had not identified himself to Hancur) pulled Hancur off the chair, took him over to the cashier and ordered him to pay for his coffee. Hancur had not consumed all of the coffee in his cup so he told the man that he would not pay for anything that he had not consumed. Then the 'husky man' pushed Hancur from the cashier's station toward to storage place where Hancur asked the stranger if he could return to the cashier's station and ask two women who had been sitting across from him to be witnesses as to what had occurred, but the man refused. Hancur then started to go back to the counter to get his cap but the stranger would not let him go, so another man, afterwards identified as a floor-walker of the defendant corporation, got it for him. Only then, at Hancur's request, did the man identify himself as Howard A. Roush, a store detective employed by Webb's City, Inc., the defendant. Roush then searched Hancur by patting him from head to foot although he had not accused Hancur of theft.

While in the storage area Roush asked an elderly employee of defendant to call the police. That employee was reluctant to do so, but when Roush repeated the order did place a phone call. In about three or four minutes two St. Petersburg police officers appeared. Roush told them he wanted Hancur arrested. They asked him 'What for?'. Roush was slow in replying but finally said that he was charging Hancur with disorderly conduct. The officers then told Hancur to go along with them and Roush to come with them to sign an affidavit. Roush objected and went only after discussion with the police officers. Being outside the establishment on the sidewalk, Roush again searched Hancur.

Hancur was taken to jail, fingerprinted and photographed and imprisoned on the basis of a warrant of arrest issued on the affidavit of Roush. The originator of the disturbance, Spangler, was not arrested. Plaintiff spent the night in jail, was unable to sleep or eat, and appeared before the Municipal Judge in the morning. Roush was present and testified on behalf of the defendant. He did not produce the waitress, cashier, floor-walker, nor the two women who had been sitting at the counter watching what had gone on. After hearing the testimony of Hancur the Municipal Judge dismissed the case and free him, saying in effect to Roush that he had arrested the wrong man.

At the trial in the court below, Hancur testified that this was the first time in his life that he had been arrested and that he did not drink for health reasons. The testimony of Hancur that he had not been disorderly was corroborated and while there was contrary testimony given by employees of the defendant, the jury apparently believed the plaintiff.

By his complaint Hancur charged the defendant, Webb's City Inc., with assault and battery, false arrest and imprisonment, and malicious prosecution, alleging that all of those acts were done wilfully, maliciously, with a wanton disregard for the rights of plaintiff, and without probable cause, and asked for compensatory and punitive damages.

The sole point for determination is whether or not the trial court committed error in charging the jury on punitive damages; or stated alternatively, was there sufficient evidence to warrant a finding in favor of the plaintiff for punitive damages? The contested instruction was this:

'If you should find from a preponderance of the evidence in this case that the assault and battery and false arrest and imprisonment complained of were attended with malice, wantonness, oppression or gross outrage, then, in addition to such compensatory damages as you may find from the evidence the Plaintiff is entitled to, you may also assess exemplary or punitive damages against the defendant, such damages to be dependent upon the circumstances of this case, upon the demonstrative degree of maliciousness, wantonness, oppression or gross outrage, and the financial ability of the Defendant to pay punitive damages.'

Punitive or exemplary damages, while considered anachronistic by some authorities and abandoned or outlawed in several jurisdictions of the United States, are allowed in the State of Florida. The early case of Smith v. Bagwell, 19 Fla. 117, 45 Am.Rep. 12, 14 (1882) stated the rule:

'Compensatory damages are such as arise from actual and indirect pecuniary loss, mental suffering, value of time, actual expenses, and to these may be added bodily pain and suffering. Exemplary, vindictive or punitory damages are such as blend together the interests of society and of the aggrieved individual, and are not only a recompense to the sufferer but a punishment to the offender and an example to the community.'

Almost 70 years later in the case of Ross v. Gore, 48 So.2d 412 (1950) the Supreme Court of Florida held that:

'Punitive damages are allowed not as compensation to a plaintiff but as a deterrent to others inclined to commit a similar offense and their allowance depends on malice, moral turpitude, wantonness or outrageousness of tort.'

Smith v. Bagwell is not mentioned. Ross v. Gore does not overrule, expressly or sub silentio, the authority of the earlier case. The holdings, on first impression seemingly at variance, are reconcilable. In theory, punitive damages are allowed for the purposes stated in Ross. Practically, the award enriches the plaintiff, as stated in Smith. Thus, it...