Wingard v. McDonald, CC-16
| Decision Date | 24 June 1977 |
| Docket Number | No. CC-16,CC-16 |
| Citation | 348 So.2d 573 |
| Parties | J. D. WINGARD and Aetna Casualty & Surety Co., Appellants, v. Thomas V. McDONALD and Eunice R. McDonald, Appellees. |
| Court | Florida District Court of Appeals |
Robert P. Gaines of Beggs & Lane, Pensacola, for appellants.
Robert J. Mayes of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellees.
This case was previously before this court on appeal from a summary judgment entered in favor of J. D. Wingard, appellant on this present appeal. See McDonald v Wingard, 309 So.2d 192 (Fla. 1 DCA 1975). There we reversed the summary judgment and remanded the cause for further proceedings. An amended complaint was filed joining Mrs. Mattie Davis and Aetna Casualty & Surety Company (Wingard's insurer) as additional parties defendant. The case was then tried and resulted in a jury verdict in favor of appellees, Thomas V. McDonald and Eunice R. McDonald and against all defendants. Appellants Wingard and Aetna appeal the final judgment against them. At the close of the evidence in the trial below, appellants moved for a directed verdict, and the motion was denied. Such was error as the evidence does not support a verdict against appellants. We therefore reverse.
Appellee was injured when he slipped and fell on the painted concrete front porch of Mrs. Davis, she being in sole possession of the premises under a verbal lease from appellant Wingard, the owner. McDonald was a salesman who called upon customers in their homes and Mrs. Davis was one of his customers. On the day of appellee's injury it was raining and when he stepped on the porch he took several steps to the door, knocked, stepped back, and slipped and fell. The porch was an ordinary concrete porch that had been painted and the only foreign material on it was rainwater. McDonald had been to the dwelling on several previous occasions but had never previously been there when it had been raining. The house had previously been purchased by Wingard, was renovated by him and then rented to Mrs. Davis. She had full control and possession of the premises during the lease and Wingard agreed to make any necessary repairs. Before renting to Mrs. Davis, among other renovations, Wingard had employed a painter with 25 years experience who painted the concrete front porch. He was not familiar with the details of how the painter did the work, but told him to use a good type of paint.
The house was rented to Mrs. Davis in September, 1972. The only request for repairs made by her between the time she moved in and April 7, 1973, the date McDonald fell, was with regard to the kitchen sink which was repaired. She also requested a new hot water heater which was provided. She had made no request for any repairs to the porch and had not complained nor called...
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