FRED SANDS, APPELLANT,
v.
IVY LIQUORS, INC., A FLORIDA CORPORATION, APPELLEE
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In this respondeat superior case, a liquor store owner was granted a directed verdict after a manager's gun discharged and injured a customer during a conversation. The appellate court reversed, holding that a jury question existed as to whether the manager was acting within the scope of employment.
The directed verdict was improper. Viewing the evidence in the light most favorable to the plaintiff, a jury could have concluded either that the horseplay was an overzealous application of the manager's duty to be sociable with patrons, or that the gun discharged while the manager was beginning to transact store business.
“Viewing the evidence in a light most favorable to the party moved against, it would appear that there was an issue of fact to have been submitted to the jury.”
Establishes the standard for reviewing a directed verdict motion and the court's conclusion that the evidence created a jury question
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Join FLexlaw to unlock all legal intelligenceThe defendant store manager was given complete responsibility for the combination bar and package store, including duties to socialize with customers …
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The plaintiff sought to recover for injuries received when, in the course of a conversation in the defendant’s liquor store, a gun held by the co-defendant store manager discharged. At trial, the store owner was granted a directed verdict, which the plaintiff now challenges by this appeal. The manager, not a party to this appeal, defaulted and a $3,500 jury verdict was returned for the plaintiff against him.
The store was a combination bar and package store and the manager was given complete responsibility for the premises. His duties ranged from socializing with customers (to stimulate business) to exercising discretion over the extension of credit and collection of bills. In addition, the store furnished him with a gun for use in preventing thefts. ' This gun was kept in a holster underneath the counter of the package store.
The incident from which this action arose occurred one evening shortly after the package store portion of the premises had closed. The plaintiff and another man had come to discuss a bill. Prior to actually discussing the bill, however, the men engaged in some “horseplay.” The manager pulled out the gun and waved it at the men, although he knew them and did not fear them. With the gun still in his hand, the manager reached up to pull a light string so that they could get down to the business at hand. It was at this point, when he pulled the string, that the gun went off.
The correctness of the judge’s ruling in directing the verdict hinges upon whether there was evidence to' indicate that the manager was acting within the real or apparent scope of his employment at the time the gun discharged. Viewing the evidence in a light most favorable to the party moved against,1 it would appear that there was an issue of fact to have been submitted to the jury. A jury might have concluded that the horseplay amounted to a somewhat overzealous application of the manager’s duties to be “sociable and friendly” to the patrons or that the gun went off as the manager was beginning to transact store business with the plaintiff. We therefore reverse and remand with instructions to grant the plaintiff a jury trial.
The general rule is that an employer may be held accountable for the wrongful act of his employee, committed while the employee was acting in his employer’s business, although the act was not authorized by the employer, or although the employer had no knowledge thereof, or had disapproved it, or had even expressly forbidden it. Stinson v. Prevatt, 84 Fla. 416, 94 So. 656 (1922).
In Columbia by the Sea, Inc. v. Petty, Fla.App.1963, 157 So.2d 190, Chief Judge Allen, speaking for the Second District, gives an excellent exposition of the law pertaining to the doctrine of respondeat superior. He notes that “each case involving respondeat superior must be determined on its own unique facts. * * * Accordingly, it is to the evidence and permissive inferences in this case that attention must be directed.”
Plaintiff advances a persuasive argument that under the dangerous instrumentality doctrine the court should have directed a verdict in his favor and that failure to do so was error. It appears from the record, however, that this issue was never properly raised before the trial court, and it may not be raised for the first time on appeal.
We therefore reverse and remand for trial before a jury in accordance with the opinions expressed herein.
It is so ordered.
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Int'l Union OF Operating Eng'rs v. Lassitter, 295 So. 2d 634 (Fla. 4th DCA 1974)…ies. Authority to support a finding of vicarious liability for tortious behavior is seen in Wackenhut Corporation v. Greene, 238 So. 2d 431 (3rd D.C.A.Fla. 1970); Dye v. Reichard, 183 So. 2d 863 (4th D.C.A.Fla. 1966) and Sands v. Ivy Liquors, Inc., 192 So. 2d 775 (4th D.C.A.Fla.1966). In Atlantic Coast Line R.R. Co. v. Burquest, 101 So. 2d 828 (2d D.C.A.Fla.1958) the court said: “ ‘ . . . If the employee, being engaged about the business of the employer, adopts methods which he deems necessary, expedient or…
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Jackson v. Whitmire Constr. Co., Inc., 202 So. 2d 861 (Fla. 2d DCA 1967)…e should have been submitted to the jury. It is a well established fundamental principle of law that a ground for relief not presented at the trial level will not be considered for the first time on appeal. Sands v. Ivy Liquors, Inc., Fla.App.1966, 192 So. 2d 775, 776; Michel v. Bayshore Marina, Inc., Fla.App. 1966, 183 So. 2d 294, 296; Nelson v. Cravero Constructors, Inc., Fla.App.1960, 117 So. 2d 764, 766; Slatcoff v. Dezen, Fla.1954, 76 So. 2d 792, 793; Gautier v. Biscayne Shores Imp. Corp., Fla. 1953, 68…
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Rosalina Otero v. United States Fire Ins. Co., 314 So. 2d 208 (Fla. 3d DCA 1975)…t was based upon a theory of agency; and that Mrs. Otero was vicariously liable because Lima was acting in furtherance of her business interests. Cf., Sixty-Six, Inc. v. Finley, Fla.App.1969, 224 So. 2d 381; Sands v. Ivy Liquors, Inc., Fla.App.1966, 192 So. 2d 775; 3 Am.Jur.2d Agency § 267. Therefore, it is our conclusion that the trial court was eminently correct in finding that the episode involved in this case and the personal injury to the plaintiff primarily arose out of a business pursuit and coverage…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Columbia BY THE SEA, Inc. v. Petty, 157 So. 2d 190 (Fla. 2d DCA 1963)
- Stinson v. Prevatt, 84 Fla. 416 (Fla. 1922)
- Ball v. Inland Mut. Ins. Co., 121 So. 2d 470 (Fla. 3d DCA 1960)