Warner v. Ware

• Decision Date: 02 August 1938
• Citation: 182 So. 605,136 Fla. 466
• Parties: WARNER v. WARE.
• Court: Florida Supreme Court

182 So. 605

136 Fla. 466

WARNER v. WARE.

Florida Supreme Court

August 2, 1938

Rehearing Denied Sept. 30, 1938.

Error to Circuit Court, Dade County; Ira A. Hutchison, Judge.

Action by Evelyn Ware, a feme sole, against David Warner for personal injuries sustained in automobile accident. To review a judgment in favor of the plaintiff, the defendant brings error.

Judgment affirmed.

COUNSEL

Edward E. Fleming, of Miami, for plaintiff in error.

Casey Walton & Spain, of Miami, for defendant in error.

OPINION

CHAPMAN Justice.

This case is here on writ of error to a final judgment in behalf of plaintiff below entered on the 8th day of March, 1937, by the Circuit Court of Dade County, Florida. Plaintiff's declaration was in five counts, alleging that on the 29th day of March, 1932, she was a passenger in the defendant's car driven by his agent, one Leonard Lonquist, on Federal Highway No. 1, just south of the Dade County-Broward County line; that David Warner was an occupant of the car, and that at said time and place Leonard Lonquist carelessly and negligently drove and operated the vehicle off and beyond the paved highway, thereby causing the automobile to overturn due to the defendant's negligence, whereby the plaintiff was permanently injured; and that plaintiff had been a public entertainer and singer, earned considerable money, but as a result of defendant's negligence she was unable to continue her work and profession.

The other counts of the declaration are similar to the first count, with the exception of various theories with respect to the driver of the car. Each count alleges permanent physical and nervous injuries and claimed damages for pain and suffering and incapacity to enjoy the company and association of friends. Attached to the declaration is a bill of particulars, itemized, claiming total damages in the sum of $50,000.

The case went to trial on the following pleas: (1) Not guilty (2) that the cause of action in this case accrued more than three years previous to the filing of the suit; and that this defendant, pleading thereto, pleads the statute of limitations and says that the cause of action is barred by the statute of limitations,

Likewise a replication was filed by the plaintiff to the 2nd plea, viz.:

'That by anything in the said plea alleged, she, the said plaintiff, ought not to be barred from having and maintaining her said action, because she says that immediately after the accrual of the cause of action stated in the declaration hereinbefore by the plaintiff filed, defendant departed from the State of Florida and has not since returned thereto; that the said defendant was personally absent from the State of Florida for more than three years between the time of the happening of the events complained of in plaintiff's declaration and the filing of this cause of action; and this the plaintiff is ready to verify.'

From a judgment for plaintiff below, writ of error was taken, transcript of record perfected and the suit is here for review on several assignments of error. The parties to this cause in this opinion will be referred to as they appeared in the court below as plaintiff and defendant.

It is contended that the court below erred in sustaining plaintiff's demurrer to defendant's third plea, which was as follows:

'And for a third plea, the defendant says that the cause of action in this case accrued more than three years previous to the filing of the suit; and further says that although this defendant has been out of the State almost continuously since the happening of the said accident described in plaintiff's declaration, the said plaintiff for more than three years prior to the filing of this suit could have served process against this defendant pursuant to and in compliance with Chapter 14765, Acts of the Florida Legislature for the year 1931, and Chapter 17254, Acts of the Florida legislature for the year 1935, by and under which said laws existing in the State of Florida continuously since the year 1931, this defendant appointed the Secretary of State of the State of Florida his agent for the service of process in a case of the kind and nature involved herein, as shown by the proceedings on file herein; Wherefore the defendant says that the said cause of action herein sued upon has been barred by the Statute of Limitations.'

The record shows that the plaintiff's right to sue accrued on March 29, 1932; and that suit was filed on July 16, 1935. It is clear that more than three years intervened prior to the filing of the suit but less than four years. The second plea of the defendant interposed the defense that the suit was not filed within the three year statute of limitation period, and a replication to the effect that some two weeks after the accident defendant left the State and had not returned was by the lower court held good as to the plea that the suit was filed within three years after the cause of action accrued. The third plea, supra, presents here the same issue and a decision of either will dispose of both assignments.

Counsel for defendant contends that plaintiff's cause of action was barred by the three year statute of limitation by virtue of a contract, obligation or liability not founded upon an instrument in writing. An examination of the facts here clearly shows that it did not arise out of a contract, obligation or liability contemplated by or within the meaning of paragraph 5 of Section 4663, C.G.L. The case at bar is purely a tort action. Courts of other jurisdictions have from time to time considered statutes similar to sub paragraph 5 of Section 4663, C.G.L., and are in harmony in holding that this provision does not apply to tort actions like the case at bar. The case here does not arise out of any written agreement, neither is it founded on a written instrument or otherwise based on any contract, obligation or liability which would require an action to be filed within three years. See McGaffin v. City of Cohoes, 74 N.Y. 387, 30 Am.Rep. 307; Suter v. Wenatchee Water Power Co., 35 Wash. 1, 76 P. 298, 102 Am.St.Rep. 881; McClaine v. Rankin, 197 U.S. 154, 156, 25 S.Ct. 410, 49 L.Ed. 702, 3 Ann.Cas. 500; Robinson v. Lewis County, 141 Wash. 642, 252 P. 143, 256 P. 503; Northern Grain & Warehouse Co. v. Holst, 95 Wash. 312, 163 P. 775.

It is unnecessary to consider further the different subsections of section 4663, C.G.L., because they do not apply to tort actions like the case at bar. It is clear that the plaintiff's cause of action here falls within subsection 4 of section 4663, C.G.L., viz.: 'Within Four Years.--Any action for relief not specifically provided for in this Chapter,' It is the only section applicable to the facts here. See Milteer v. Seaboard Air Line R. Co., 66 Fla. 17, 62 So. 831; Branch v. Cole, 18 Fla. 368.

It is admitted that the defendant was served with process under Chapter 14765, Laws of Florida, Acts of 1931, and Chapter 17254, Laws of Florida, Acts of 1935, and that the same was perfected after three years and prior to the expiration of four years after March 15, 1932. This cause of action accrued on March 29, 1932, and the plaintiff had four years thereafter under subsection 4 of Section 4663, C.G.L., in which to file suit. Service was perfected and the court acquired jurisdiction of the defendant. See State ex rel. Cochran v. Lewis, 118 Fla. 536, 159 So. 792, 99 A.L.R. 123; State ex rel. Penick & Ford, Ltd., v. Civil Court of Record, Duval County, 126 Fla. 550, 171 So. 516.

When the plaintiff, through counsel, announced that no further evidence would be offered, the defendant moved the court to instruct the jury to find a verdict for the defendant on the following grounds: (a) Ownership of car in which plaintiff was riding had not been established; (b) the evidence failed to establish that Leonard Lonquist was an employee of the defendant at the time of the accident; (c) actionable negligence had not been established; (d) the evidence as to actionable negligence was insufficient in law.

The lower court overruled and denied the said motion of the defendant for a directed verdict and this ruling is assigned as error. A verdict for the defendant should never be directed by the court unless it is clear that there is no evidence whatever adduced that would in law support a verdict for the plaintiff. If the evidence is conflicting or will admit of different reasonable inferences, and if there is evidence tending to prove the issue, it should be submitted to the jury as a question of fact to be determined by them, and not taken from the jury and passed upon by the court as a question of law. See Cameron, etc., Co. v. Law-Engle Co., 98 Fla. 920, 124 So. 814; McKinnon v. Johnson, 57 Fla. 120, 48 So. 910; Starks v. Sawyer, 56 Fla. 596, 47 So. 513; Florida Cent., etc., R. Co. v. Williams, 37 Fla. 406, 20 So. 558; Southern Exp. Co. v. Williamson, 66 Fla. 286, 63 So. 433, L.R.A.1916C, 1208; Bass v. Ramos, 58 Fla. 161, 50 So. 945, 138 Am.St.Rep. 105; Wood Lumber Co. v. Gipson, 63 Fla. 316, 58 So. 364; Paul v. Commercial Bank, 69 Fla. 62, 68 So. 68; Johnson v. Louisville & N. R. Co., 59 Fla. 305, 52 So. 195; Williams v. Sherry, 94 Fla. 998, 114 So. 849; German-American Lumber Co. v. Brock, 55 Fla. 577, 46 So. 740; Atlantic Coast Line R. Co. v. Pelot, 62 Fla. 121, 56 So. 496. See, also, King v. Cooney-Eckstein Co., 66 Fla. 246, 63 So. 659, Ann.Cas.1916C, 163; Gunn v. Jacksonville, 67 Fla. 40, 64 So. 435; Davis v. Ivey, 93 Fla. 387, 112 So. 264; Florida East Coast Ry. Co. v. Hayes, 66 Fla. 589, 64 So. 274; Jacksonville v. Glover, 69 Fla. 701, 69 So. 20; Gravette v. Turner, 77 Fla. 311, 81 So. 476; Gulf Refining Co. v. Ankeny, 102 Fla. 151, 135 So. 521.

It is next contended that the lower court erred in charging the...