International Shoe Co. v. Hewitt

• Decision Date: 31 March 1936
• Citation: 167 So. 7,123 Fla. 587
• Parties: INTERNATIONAL SHOE CO. et al. v. HEWITT.
• Court: Florida Supreme Court

167 So. 7

123 Fla. 587

INTERNATIONAL SHOE CO. et al. v. HEWITT.

Florida Supreme Court, Division A.

March 31, 1936

Rehearing Denied April 17, 1936.

Error to Circuit Court, Dade County; Uly O. Thompson, Judge.

Action by T. W. Hewitt, as administrator of the estate of Frieda Hewitt, deceased, against the International Shoe Company Peters Shoe Company, and Mabel Annabelle Bates, as administratrix of the estate of W. I. Bates. Judgment for the plaintiff, and the defendants bring error.

Affirmed with remittitur.

COUNSEL

Snedigar & Baya, of Miami, for plaintiffs in error.

Patterson Blackwell & Knight, of Miami, for defendant in error.

OPINION

PER CURIAM.

This is the fourth appearance of this case here. For its former appearances, see Hewitt v. International Shoe Co., 110 Fla. 37, 148 So. 533; Hewitt v. International Shoe Co., 114 Fla. 743, 154 So. 838; Hewitt v International Shoe Co., 115 Fla. 508, 155 So. 725.

T. W Hewitt, as administrator of the estate of Frieda Hewitt, deceased, instituted an action for the wrongful death of the latter against the International Shoe Company, Peters Shoe Company, and Mabel Annabelle Bates, as administratrix of the estate of W. I. Bates, deceased. The declaration was filed June 6, 1932. Default judgment was, on July 5, 1932, entered against International Shoe Company and Peters Shoe Company for failure to plead, answer, or demur to the declaration. This default was vacated on July 20, 1932, and defendants were allowed until the rule day in August, 1932, in which to plead. On July 27, 1932, the defendants made an unsuccessful attempt to remove the cause from the circuit court of Dade county of the United States District Court. See Hewitt v. International Shoe Co., 114 Fla. 743, 154 So. 838. On August 2, 1932, another default was entered against all of the defendants for failure to plead. On August 17, 1932, the defendants made a motion to vacate the default that had been entered against them on August 2, 1932, and tendered certain proposed pleas. This motion was denied by the court on September 27, 1932. The defendants, on December 3, 1932, filed a motion to vacate the order of September 27, 1932, which order had refused to vacate the default of August 2, 1932. This motion was opposed by plaintiff. On January 3, 1933, the court vacated the order of September 27, 1932; granted the motion of August 17, 1932, asking that the default entered August 2, 1932, be declared null and void; and allowed defendants to file instanter the original pleas tendered with the motion of August 17, 1932. For plaintiff's failure to join issue on the pleas so filed, the court, on January 4, 1933, entered judgment non prosequitur in favor of defendants. From that judgment, plaintiff took writ of error. Defendants' motion, made in the Supreme Court, to dismiss the writ of error, was denied. Hewitt v. International Shoe Co., 110 Fla. 37, 148 So. 533. Upon consideration of this writ of error on its merits, it was held that the default of August 2, 1932, was validly entered, and that it was beyond the jurisdiction of the court to enter an order, 120 days later and in a subsequent term of court, opening up the default for the purpose of letting in pleas; and that it was error to dismiss the proceeding as on a non prosequitur for failure to join issue on pleas that had no proper standing before the court. Hewitt v. International Shoe Co., 114 Fla. 743, 154 So. 838. A motion to recall the mandate of the Supreme Court for the purpose of rehearing was denied. Hewitt v. International Shoe Co., 115 Fla. 508, 155 So. 725.

The gist of the action is that Frieda Hewitt was wrongfully killed while riding in an automobile with W. K. Bates, as a gratuitous guest and invitee of the latter. Both Frieda Hewitt and W. I. Bates ware killed in the same accident. Bates was at the time agent of International Shoe Company and Peters Shoe Company.

After the cause had been remanded the trial court, on June 12, 1934, vacated the order of January 3, 1933, vacating the default and allowing defendants to file pleas; reinstated the default entered against defendants on August 2, 1932; and struck the pleas filed by defendants.

On June 25, 1934, the defendants filed their motion to vacate the default judgment entered on August 2, 1932, on the ground that in and by said default judgment, the defendants International Shoe Company and Peters Shoe Company are charged individually, and the defendant Mabel Annabelle Bates, as administratrix of the estate of W. I. Bates, deceased, is charged de bonis propriis, and that said judgment is null and void, and entry thereof constitutes error of law. The court denied this motion on July 5, 1934.

Upon the sole issue of the damages recoverable by the plaintiff, if any, the jury, on July 9, 1934, returned a verdict in favor of plaintiff and assessed his damages at $4,500.

Subsequently, Mabel Annabelle Bates, as administratrix of the estate of W. I. Bates, deceased, made a motion for a venire facias de novo on the grounds that the verdict was so defective that a judgment could not be rendered upon it, and that it appeared from the record that the jury should have found for the defendant.

At the same time, the International Shoe Company and the Peters Shoe Company filed their separate and several motions for a venire facias de novo on the identical grounds set forth above.

In like manner, the defendants, on the same date, filed separate motions for a new trial.

On August 3, 1934, the court separately and severally denied and overruled the motions for new trial and for venire facias de novo.

The final judgment entered in the cause on July 16, 1934, contained the following:

'It is therefore considered, ordered and adjudged, that the plaintiff, T. W. Hewitt, as Administrator of the estate of Frieda Hewitt, deceased, do have and recover of and from the defendants International Shoe Company, a corporation, Peters Shoe Company, a corporation, and Mabel Annabelle Bates, as Administratrix of the estate of W. I. Bates, the sum of Four Thousand Five Hundred Dollars ($4,500.00), together with the cost of this action, in the sum of $63.35, for which let execution issue.'

From the final judgment, defendants took writ of error. Each defendant presented to the judge, as a guide for making up the bill of exceptions, their several assignments of errors; but all of the defendants jointly filed the complete assignment of errors.

The International Shoe Company and Peters Shoe Company were sued jointly in this action with Mabel Annabelle Bates, as administratrix of the estate of W. I. Bates, deceased. Judgment was rendered against all three defendants jointly.

The question as to whether an administratrix in her representative capacity could be joined as a party defendant with corporations in their individual capacities in the same action or in the same judgment was not properly presented in any of the former appearances of this case here. This question is properly presented in this case, and it is argued at length in the briefs of counsel. In the case of Hewitt v. International Shoe Co., 114 Fla. 743, 154 So. 838, we decided that the trial court could not, after the expiration of 120 days and in a subsequent term of court, vacate a default judgment that had been properly entered.

In contract actions, a valid judgment cannot be rendered against the personal representative of a deceased person and a co-obligor in the same judgment, as the one is charged de bonis testatoris and the other is charged de bonis propriis, forms of judgment that the rules of law governing the law courts are not flexible enough to permit to be included in the same judgment. City of Orlando v. Gooding, 34 Fla. 244, 15 So. 770; Lee v. Puleston, 102 Fla. 1079, 137 So. 709.

In tort actions it has been held that where one of the defendants dies pending suit, his personal representative cannot be brought by scire facias on the record, as the same judgment cannot be rendered and the same execution asserted against the surviving defendants and the personal representative of a deceased one. 24 C.J. 808, citing Mechanics' & Tradesmen's Insurance Co. v. Spang, 5 Pa. 113.

'Upon the death of one joint tortfeasor, if the action survives, the survivors and the representatives of the deceased may each be sued separately, or the survivors, if more than one, may be sued jointly. But the representative of the deceased and a survivor cannot be sued jointly because one is to be charged de bonis testatoris and the other de bonis propriis.' 15 Encyclopedia of Pleading & Practice 562, citing Johnson v. Cunningham, 56 Ill.App. 593; Union Bank v. Mott, 27 N.Y. 633; Lodge v. Burton, 3 N.J.Law, 530.

The proper method of raising objection to the improper joinder of parties defendant is by plea in abatement when it does not appear on the face of the declaration, and by demurrer when it does appear on the face of the declaration. Crandall-Florida Common Law Practice 9; see sections 4208-4210, C.G.L. However, in the instant case, the fault of misjoinder of the parties defendant was not objected to in the trial court until after the default judgment had been reinstated by direction of this court. As already indicated, in the case of Hewitt v. International Shoe Co. et al., 114 Fla. 743, 154 So. 838, we ordered that the default judgment against defendants, which had been vacated by the trial court, be reinstated. That decision became the law of the case; and it impliedly disposed of the matter of misjoinder of defendants by ordering the default judgment reinstated. The general rule is that objections to misjoinder and nonjoinder of parties must be seasonably and regularly made to be available by complaining parties. See Compbell v. Knight, 92 Fla. 246, ...