City of Jacksonville v. Hinson

• Decision Date: 07 September 1967
• Docket Number: No. I--228,I--228
• Citation: 202 So.2d 806
• Parties: CITY OF JACKSONVILLE, Florida, a municipal corporation, Appellant, v. Edward F. HINSON, d/b/a Hinson Body Shop, Appellee.
• Court: Florida District Court of Appeals

Page 806

202 So.2d 806

CITY OF JACKSONVILLE, Florida, a municipal corporation, Appellant, v. Edward F. HINSON, d/b/a Hinson Body Shop, Appellee.

No. I--228.

District Court of Appeal of Florida, First District.

Sept. 7, 1967.

Rehearing Denied Oct. 19, 1967.

William M. Madison, Claude L. Mullis and William Lee Allen, Jacksonville, for appellant.

Glickstein, Crenshaw, Glickstein & Hulsey, Jacksonville, for appellee.

RAWLS, Judge.

By this appeal, appellant City seeks reversal of a judgment entered pursuant to a jury verdict in favor of appellee Hinson.

The city contends that the trial court erred: (1) in refusing to dismiss the cause for failure of plaintiff Hinson to prosecute, (2) by denying its motion for a directed verdict because Hinson failed to give it a notice of claim as required by the City Charter and (3) because there was no evidence to support damages.

This suit litigated Hinson's contention that the city negligently failed to provide adequate drainage for surface waters when it raised the level of Laura and Carolina Streets, and such act resulted in Hinson's garage building being flooded with water causing him to expend considerable monies to protect his property.

The city's first contention is that the trial court should have granted its motions to dismiss because of plaintiff's failure to prosecute the cause. A chronology of material events is:

Answer to second amended complaint filed April 25, 1963

Interrogatories filed July 22, 1963

Answers to Interrogatories filed August 8, 1963

Additional Interrogatories filed August 3, 1964

Objections to Interrogatories filed August 11, 1964

Notice of hearing filed August 11, 1964

Answers to Additional Interrogatories filed August 17, 1964

Order sustaining objections to some of the

Additional Interrogatories filed August 17, 1964

Motion to dismiss for want of prosecution filed August 18, 1964

Motion to produce filed August 21, 1964

Answer to request for admissions filed September 1, 1964

Order denying motion to produce filed September 4, 1964

Amended motion to produce filed September 17, 1964

Order denying motion to dismiss for want of

prosecution and granting motion to produce filed September 22, 1964

Notice of taking deposition filed August 26, 1965

Motion to dismiss for want of prosecution filed September 14, 1965

Notice of trial filed September 15, 1965

Order denying motion to dismiss for want of

prosecution filed September 30, 1965

The City states that from July 19, 1963 [date of interrogatories--filing date of July 22] until August 17, 1964, plaintiff took no action except to propound additional interrogatories and then argues that such action is insufficient to show that the cause was being prosecuted. We cannot agree. The filing by plaintiff of additional interrogatories within the one year period constituted action within the meaning of the statute and rule, ¹ and the filing of objections to the additional interrogatories amounts to defending an active cause of action. As to the second motion to dismiss the filing of notice of taking deposition and notice of trial constituted active prosecution of the cause. In Pollack v. Pollock ² this court held that the statute governing abatement for failure to prosecute, Section 45.19, Florida Statutes, F.S.A., is not self-executing, but requires the moving party to seek dismissal Before any affirmative action is taken subsequent to the period required for abatement. Whereas here the cause was revived by resumption of active prosecution, the trial judge correctly denied both motion to dismiss. Our decision on this point is consistent with that of the Supreme Court in Adams Engineering Co. v. Construction Products Corp. ³ which held that a request that the case be placed upon the trial docket is sufficient action in the cause to warrant denying the motion to dismiss.

The next point urged by the City is that it was not estopped from asserting the defense of plaintiff's failure to comply with the notice of claim provision of the Jacksonville Charter. In considering this point on motion for new trial, the trial judge made the following finding, which we adopt:

'This Court has read and reread each of the cases cited by the respective parties in their briefs, including Brooks v. City of Miami, Fla. (App.), 161 So.2d 675; Rabinowitz v. Town of Bay Harbor Islands, Fla., 168 So.2d 583, and Rabinowitz v. Town of Bay Harbor Islands, Fla., 178 So.2d 9.

'In the latter case, the Supreme Court of Florida, speaking through Justice Thornal, stated:

'* * * a municipality, through the acts of its officers and agents, may waive or be estopped to assert statutory notice of requirements, such as the one before us.

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'The sum of the holdings in recent years had been that when responsible agents or officials of a city have actual knowledge of the occurrence which causes injury and they pursue an investigation which reveals substantially the same information that the required notice would provide, and they thereafter follow a course of action which would reasonably lead a claimant to conclude that a formal notice would be unnecessary, then the filing of such a notice may be said to be waived. If the claimant, as a result of such municipal conduct, in good faith fails to act, or acts thereon to his disadvantage, then an estoppel against the requirement of the notice may be...