Peterson v. Kirk, 597

• Decision Date: 11 June 1958
• Docket Number: No. 597,597
• Citation: 103 So.2d 656
• Court: Florida District Court of Appeals
• Parties: John Lee PETERSON, Appellant, v. E. Ray KIRK, Appellee.

Page 656

103 So.2d 656

John Lee PETERSON, Appellant, v. E. Ray KIRK, Appellee.

No. 597.

District Court of Appeal of Florida, Second District.

June 11, 1958.

Carver & Langston, William G. Carver, Lakeland, for appellant.

Martin & Martin, Plant City, Coachman & Campbell, Charles I. Campbell, Tampa, for appellee.

SPOTO, I. C., Associate Judge.

This is an interlocutory appeal (Rule 4.2, Florida Appellate Rules, 31 F.S.A.) from an order overruling a motion to dismiss an action based on negligence, on the ground that the defendant, John Lee Peterson (appellant here), is privileged to be sued in the county of his residence. The motion to dismiss contains three grounds, but the only question argued before this Court is the question of proper venue. The suit is against the defendant, John Lee Peterson and the Greyhound Corporation, alleged to be a foreign corporation authorized to do business in this state, and alleges the residence of the defendant, Peterson, to be in Duval County. Section 46.01, F.S.A., secures to a natural person the right or privilege of being sued either in the county of his residence or in the county where the action accrued. The defendant may not elect in which county the suit shall be prosecuted against him but it must be brought in one or the other of such counties. See Santa Rosa County v. Trobuck, 77 Fla. 86, 80 So. 748. The defendant relies mainly on the following statement of law as laid down by the Supreme Court of Florida in the case of Enfinger v. Baxley, 96 So.2d 538, 540:

'The right of a plaintiff to have an action tried in another county than that in which the defendant has his residence is exceptional, and, if the plaintiff would claim such right, he must bring himself within the terms of the exception.'

He argues that the plaintiff has not brought himself within the terms of the exception as outlined above and has failed to clearly establish his right to have the action tried in Polk County, basing his contention on two grounds: first, that it does not appear on the face of the complaint that the cause of action accrued in Polk County, and second, that the plaintiff did not timely file a proper affidavit in good faith. With this contention we cannot agree.

The allegations of the complaint as to where the cause of action accrued are as follows:

'Phillip Ray Kirk was a passenger in a certain motor vehicle which was proceeding in a northerly direction on Massachusetts Avenue at or near the intersection of said avenue with Lemon Street, in the City of Lakeland, Polk County, Florida. * * * That at said time and place the defendant, John Lee Peterson, acting within the scope of his employment, was driving and operating a certain GMC passenger bus in an easterly direction on Lemon Street; at or near the intersection of said street and Massachusetts Avenue, in the City of Lakeland, Florida. * * * that said defendant did so carelessly and negligently operate and drive said...