Wiggs v. Courshon
| Citation | 355 F. Supp. 206 |
| Decision Date | 21 February 1973 |
| Docket Number | No. 72-745-Civ.,72-745-Civ. |
| Parties | Joe O. WIGGS et al., Plaintiffs, v. Jack R. COURSHON d/b/a the Twelve Caesars Motel, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
W. George Allen, Ft. Lauderdale, Fla., for plaintiffs.
Wicker, Smith, Pyszka, Blomqvist & Davant, Miama, Fla., for defendant.
Defendant has filed a Motion for a new trial, following a verdict for plaintiffs of $25,000 for gross insult suffered as patrons in defendant's motel. The suit was brought by five plaintiffs, all related by blood or marriage but not members of the same household. Joe Wiggs and Barbara Wiggs are both lawyers, he in private practice and she in the Anti-trust Division of the Federal Trade Commission's Office of General Counsel. Arthur W. Bracey and Miriam Bracey are parents of Barbara Wiggs; Mr. Bracey is a school teacher and Mrs. Bracey operates a florist shop. The fifth plaintiff is the son of Joe and Barbara Wiggs, Kevin, 7 years old at the time of the incident. All of the plaintiffs are black and live in Alexandria, Virginia.
This diversity suit was based upon assault although plaintiffs alleged mental anguish and emotional distress as a result of the actions of defendant's employee. At the trial plaintiffs expressly limited their theory of recovery to assault and the trial progressed on that theory. The facts are by and large undisputed.
Plaintiffs had been on a vacation following Mr. Wiggs' graduation from law school and sitting the bar exam and, after a visit to Mexico City, were stopping in Miami Beach for a few days on their return to Virginia. They checked into the defendant's motel on the day in question and went out sightseeing.
Joe Wiggs and Mrs. Bracey came to the dining room ahead of the other members of the party in order to order dinner for everyone. Defendant's waitress who waited on them was Cleo Smith and Mr. Wiggs, acting as family spokesman for the purpose of ordering, expressed interest in the `special' on the menu. The waitress advised him they were too late for the `special'. He testified that a single white diner who arrived after him was served a `special'.
Knowing of the fondness of the family members for seafood, Joe Wiggs then ordered the fisherman's platter. The fisherman's platter normally included shrimps, scallops and fillet of fish. The evidence is undisputed that the waitress went to check to see if all the ingredients for the fisherman's platter were available and it is also undisputed that the platters contained shrimps and fish fillet but not scallops when served. Mr. Wiggs insisted in his testimony that she had not informed him that scallops were unavailable; she claimed she had informed them extra shrimp portions would be substituted for the missing scallops.
After being served, Mr. Wiggs summoned the waitress to the table with a gesture and inquired as to the missing scallops; the dispute developed and he testified that he told her she had said they could have the seafood platter and if she had said otherwise they would have ordered something else. The waitress then exclaimed: The waitress agrees that she used the epithet but testified that she did so in the following frame work: the dispute developed and Mr. Wiggs said, She retorted by using the epithet. The difference has been resolved by the jury verdict.
Following the outburst Mr. Wiggs testified that the waitress turned and faced a table behind her. All of the plaintiffs testified they did not know what she was going to do, and each one except Mr. Bracey testified that he or she was apprehensive about what the waitress might do. Mr. Wiggs testified that she stood motionless for five to ten seconds and she never made any gesture toward any of the plaintiffs. At this point another waitress and someone from the kitchen rushed up to the waitress and escorted her out of the dining room to the kitchen.
Plaintiffs testified they then left the dining room and went to complain to the manager and that while they were trying to voice their complaint to the person in charge, that the waitress could be heard shouting repeatedly "they are nothing but a bunch of niggers." The waitress denied she ever used the term but insisted she did want to see the person in charge so that she could get in her side of the story. Again, the conflict is resolved in favor of plaintiffs by the verdict. However, the verdicts in favor of plaintiffs Barbara Wiggs, Mr. Bracey and Mrs. Bracey were for no damages, compelling the conclusion that the damages awarded resulted from the insult at the table.1
Plaintiffs checked out of the Motel immediately and went to a nearby lodging place; on the following day, Mr. Wiggs came back to the defendant's motel and demanded an explanation and testified that the person in charge attempted to placate him by saying "You shouldn't feel so bad . . . she . . . is prejudiced against Catholics, Jews and all other kinds of minorities."
After another day plaintiffs cut their vacation short because they were upset over the incident and returned to their homes in Alexandria.
At the close of plaintiffs' case defendant moved for a directed verdict on the bases that there was no evidence of assault, there had been no showing of negligence on the part of defendant in hiring the waitress, and there had been no showing of damages. The court reserved ruling on the motion. At the close of all the evidence defendant renewed his motion for a directed verdict and the court concluded that there had been no evidence whatsoever of assault. Assault requires "an intentional, unlawful offer of corporal injury to another by force, or force unlawfully directed toward the person of another under, such circumstances as to create a fear of imminent peril, coupled with the apparent present ability to effectuate the attempt." McDonald v. Ford, 223 So.2d 553, 555 (Fla.App., 2d Dist. 1969). There was no movement whatsoever by the waitress toward any of the plaintiffs. In fact, she stood motionless, evidently leaning forward at a table where there was nothing which could be used as a weapon. Clearly no evidence was presented by plaintiffs to show an assault by the waitress upon them.2
The court also ruled in favor of defendant on the question of negligence in the employment of the waitress. There was no evidence to show any negligence on the part of defendant in this matter because there had been no previous instances on her part showing a likelihood of any such outburst toward a patron. It is a matter of common experience that many persons harbor certain biases and prejudices but they are able to be civil and proper in their conduct, even among persons who are the object of their prejudices.
In addition, there was no showing of any out-of-pocket damage on the part of plaintiffs. At one point the court intervened to inquire if plaintiffs had paid for their motel room or the meal, or if they had incurred any expenses, such as cab fares, in moving to their next accommodations. No charge was made for the lodging or the meal by defendant and plaintiffs had driven their own car to a nearby motel. There was not even a showing that the new accommodations were located so that it required a greater distance to travel to their home eventually.
There is no evidence of pecuniary loss in connection with any of the emotional distress pleaded by plaintiff. No evidence was introduced of doctor's bills, increase in consumption of aspirin or headache tablets, or any pecuniary expense whatsoever. But there was evidence that they had cut short their proposed vacation by two days because of the incident and that they suffered humiliation and emotional distress.
Consequently, the court ruled in favor of defendant on all three bases of defendant's motion for a directed verdict, but still...
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Holmes v. Elks Club, Inc., 74-720-Civ-J-R.
...claim, were it to proceed here, might well become the predominant claim because of the monetary damages sought (see Wiggs v. Courshon, S.D. Fla.1973, 355 F.Supp. 206, appeal dismissed, CA 5 1973, 485 F.2d 1281). Likewise, the denial of pendent jurisdiction is supported by the fact that fede......
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Wiggs v. Courshon
...is appealable only if the plaintiff agrees to the reduction under protest. In this diversity tort action for insult, the District Court, 355 F.Supp. 206, thought the plaintiffs were too successful in achieving jury verdicts in the total amount of $25,000, part compensatory and part punitive......