Fincher Motor Sales, Inc. v. Lakin, 63-63

• Decision Date: 08 October 1963
• Docket Number: No. 63-63,63-63
• Parties: FINCHER MOTOR SALES, INC., a Florida corporation, Appellant, v. Cecile LAKIN, as Administratrix of the Estate of Silas Howard Lakin, deceased, Appellee.
• Court: Florida District Court of Appeals

Page 672

156 So.2d 672

FINCHER MOTOR SALES, INC., a Florida corporation, Appellant, v. Cecile LAKIN, as Administratrix of the Estate of Silas Howard Lakin, deceased, Appellee.

No. 63-63

District Court of Appeal of Florida, Third District.

Oct. 8, 1963.

Blackwell, Walker & Gray and Carl P. Stephens, Jr., Miami, for appellant.

Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell, Miami, for appellee.

Before BARKDULL, C. J., and CARROLL and TILLMAN PEARSON, JJ.

CARROLL, Judge.

This is an appeal by the plaintiff below from a judgment of dismissal. The action was for indemnity, by an owner of an automobile against the driver ¹ whose negligence caused the damage for which the owner was sued and required to pay, in settlement an aggregate of $134,000. The action by Fincher Motor Sales, Inc. (Fincher hereafter) was brought thereafter against the estate of the then deceased driver, Lakin, for the said amount paid out by Fincher plus certain expenses and attorney fees.

On behalf of Lakin a motion to dismiss was filed which set forth two grounds. The first challenged the sufficiency of the complaint. The second ground contended there was a nonjoinder of indispensable parties. In that ground of the motion it was alleged, on information and belief, that Fincher had leased the automobile in question to Gulf Land & Title Company (Gulf hereafter); that the lease required Fincher to take out liability insurance which covered and protected Lakin; that such insurance had been contracted for by Fincher in five named insurance companies; and that those insurance companies were indispensable parties to Fincher's action against Lakin for indemnity. The motion did not state or contend that the alleged lessee of the car, Gulf Guaranty Land & Title Company, was an indispensable party. ²

The trial court granted the motion to dismiss and entered judgment for the defendant, reciting that the dismissal was 'on the sole ground that the plaintiff failed to join an indispensable party, to-wit: Gulf Guaranty Land & Title Company.' The plaintiff appealed and contends that the trial court was in error in its determination that Gulf was an indispensable party to the indemnity action, and in thus dismissing the cause. We find merit in the appeal and reverse the judgment.

Rule 1.18, F.R.C.P., 30 F.S.A., states: 'Misjoinder of parties shall not be ground for dismissal of an action.' The rule provides that parties may be dropped or added by order of court. Here there was no order requiring the joinder of a party, nor was there a violation of any such direction of the court. Appellee concedes it was error to dismiss the action, because of the rule which provides against dismissal. But appellee argues the trial court was correct in holding a misjoinder, and contends the cause should be remanded, to be followed by an order to join Gulf, with a subsequent dismissal if such order should not be complied with.

We hold, however, that the trial judge committed error in ruling that Gulf, the alleged lessee of the car, was an indispensable party. Giving effect to the allegation in the motion to dismiss that Fincher leased the car to Gulf, and if we assume (though it was not so stated in the motion) that the driver was acting for Gulf so as to impose vicarious liability on Gulf for his negligence, the result would be that the driver and Gulf were jointly and severally liable to Fincher for indemnity. Under those circumstances, Fincher having chosen to sue Lakin separately, could not be compelled to join Gulf. To require that, against the wishes of Fincher, would be equivalent to depriving Fincher of a right to sue Lakin. When two parties are liable to another jointly and severally it is optional with the plaintiff whether he sues either or both. See Pendarvis v. Pfeifer, 132 Fla. 724, 182 So. 307; Anderson v. Crawford, 111 Fla. 381, 149 So. 656; Colle v. Atlantic Coast Line R. Co., 153 Fla. 258, 14 So.2d 422.

In the case of Hutchins v. Frank E. Campbell, Inc., Fla.App.1960, 123 So.2d 273, an owner bailed her automobile to a business company. The latter's driver negligently caused injuries for which the owner was held liable. Thereafter she was permitted to maintain an action for indemnity against the company alone. The situation there was similar to that in the instant case, with the exception that in the Hutchins case the owner sought indemnity from the company to which the car had been bailed, rather than from the company's driver whose negligence caused the injuries.

Fincher's liability was vicarious, as the owner of the car, for loss and injury proximately resulting from its negligent operation by the driver to whom entrusted. ³ Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 16 A.L.R. 255. Lakin's liability was for his negligent operation of the vehicle. Although both were liable to the injured parties, the owner and the driver were not in pari delicto as to each other. Under those circumstances the car owner could sue its driver for indemnity. See Seaboard...