Weiss v. Jacobson

Decision Date30 January 1953
PartiesWEISS et al. v. JACOBSON.
CourtFlorida Supreme Court

Broad & Cassel, Miami Beach, for appellants.

Knight, Smith & Underwood, Miami, for appellee.

HOBSON, Chief Justice.

The facts which gave birth to, and allegedly furnish a sound predicate for, this litigation are truly novel; indeed, the reading of the original and amended complaints almost wafts one's imagination into the realm of fantasy. Be that as it may, the allegations of the complaints must be accepted as true because the learned Circuit Judge, upon motion, dismissed each of them for failure to state a cause of action.

Appellant Bertha Weiss, allegedly a woman of over 70 years of age, was on or about February 20, 1951, a customer in a dress shop owned and operated by appellee. She was trying on a dress for the purpose of determining whether she would purchase said article of wearing apparel when, so it is alleged, a clerk and duly authorized employee of appellee Jacobson insisted that Mrs. Weiss move over in front of a mirror to better appraise the dress and its becomingness. Upon the refusal or at least reluctance of the customer to carry out this suggestion, the clerk, obviously a zealous saleslady, took Mrs. Weiss by the hand, according to the averments of the complaint, and, in an attempt forcibly to pull her toward the mirror, carelessly and negligently tripped or threw her reticent customer to the floor, causing the latter great physical injury, pain and suffering. The allegation is made that the proximate cause of the injury to appellant Bertha Weiss was the carelessness and negligence of the employee of appellee, while acting in the scope of her employment.

The learned Circuit Judge held that the original complaint as amended did not state a cause of action. He granted a motion to dismiss and entered final judgment. In his order denying a motion to vacate the final judgment of dismissal the trial judge determined that a proposed Second Amended Complaint was 'legally insufficient to state a claim upon which relief could be granted.'

Counsel for appellants take the position that this Court has adopted the generally accepted and prevailing view throughout the United States that under the doctrine of respondeat superior an employer is liable for injuries arising out of the negligent acts of his employee, if such acts were done within the scope of the employee's authority as such. They cite Orr v. Avon Florida Citrus Corporation, 130 Fla. 306, 177 So. 612; International Shoe Co. v. Hewitt, 123 Fla. 587, 167 So. 7, and rely confidently upon our opinion in Stinson v. Prevatt, 84 Fla. 416, 94 So. 656, 657. Counsel quote the following paragraph taken from the latter case:

'As general rule under the principles of the common law an employer is liable in damages for the wrongful act of his employee that causes injury to another person, if the wrongful act is done while the employee is acting within the apparent scope of his authority as such employee to serve the interests of the employer, even though the wrongful act also constitutes a crime not a homicide or was not authorized by, or was forbidden by, the employer, or was not necessary or appropriate to serve the interests of the employer, unless the wrongful act of the employee was done to accomplish his own purposes, and not to serve the interests of the employer.'

Counsel argue that the facts alleged in the original complaint as amended and in the Second Proposed Amended Complaint can not be construed in any way other than that the act of the employee which caused the injury was within the scope of her employment. They say that the employee was only attempting to sell Mrs. Weiss a dress which was what she was employed to do. They insist it is common knowledge that to convince a prospective purchaser--particularly a woman--to buy a piece of...

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  • City of Green Cove Springs v. Donaldson
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 28, 1965
    ...in fact, nor could be supposed, from the nature of his employment, to have authorized or expected the servant to do." Weiss v. Jacobson, Fla.1953, 62 So.2d 904, 906, quoting from Annot., 114 A.L.R. 1033 (1938) and Cooley, Torts 627 (2d The question whether a tort committed by an agent is wi......
  • Nazareth v. Herndon Ambulance Service, Inc.
    • United States
    • Florida District Court of Appeals
    • April 25, 1985
    ...the course of the employment and to further a purpose or interest, however excessive or misguided, of the employer. See Weiss v. Jacobson, 62 So.2d 904 (Fla.1953); De Jesus v. Jefferson Stores, Inc., 383 So.2d 274 (Fla. 3d DCA 1980); Lay v. Roux Laboratories, Inc., 379 So.2d 451, (Fla. 1st ......
  • Jaar v. University of Miami
    • United States
    • Florida District Court of Appeals
    • February 12, 1985
    ...he and the University were obligated to perform. Thus, the University is liable for the negligent acts of its agent, Dr. Ward, see Weiss v. Jacobson, 62 So.2d 904 (Fla.1953); Stinson v. Prevatt, 84 Fla. 416, 94 So. 656 (Fla.1922); Weiss v. Culpepper, 281 So.2d 372 (Fla.3d DCA 1973), cert. d......
  • City of Coral Gables v. Giblin, 59-643
    • United States
    • Florida District Court of Appeals
    • March 13, 1961
    ...case, it must first be determined whether that which the officers did was something their employment contemplated. Cf. Weiss v. Jacobson, Fla.1953, 62 So.2d 904. Under the facts of the instant case this question must be answered in the affirmative as a question of law because unless the cit......
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