Weaver v. Hale

• Decision Date: 01 July 1921
• Citation: 89 So. 363,82 Fla. 88
• Parties: WEAVER et al. v. HALE et al.
• Court: Florida Supreme Court

89 So. 363

82 Fla. 88

WEAVER et al. v. HALE et al.

Florida Supreme Court

July 1, 1921

Rehearing Cenied July 30, 1921.

Error to Circuit Court, Pinellas County; O. K. Reaves, Judge.

Action by Lottie Hale and husband against M. D. Weaver and another. Judgment for plaintiffs, and defendants bring error.

Affirmed.

Syllabus by the Court

SYLLABUS

Employer and employee liable jointly for negligence. Where under the principle of respondeat superior an employer is liable in damages for the negligence of an employee that proximately injures another, an action for damages may be maintained against both the employer and the employee, whether the employer participated directly in the negligent injury or not.

Entry of default against 'defendant' sustains proceedings against both defendants in default by their own admission. Where each of two defendants is in default, an entry of default by the clerk against the 'defendant' does not render erroneous subsequent proceedings duly taken by the court, where both defendants were by the court expressly held in default upon their own admission.

Questions waived or rendered immaterial will not be discussed by the appellate court. Questions that were in effect waived or rendered immaterial by defaults or by appropriate evidence on a sufficient declaration will not be discussed by the appellate court.

COUNSEL

S. S. Sandford and H. S. Hampton, both of Tampa, for plaintiffs in error.

M. A McMullen, of Clearwater, for defendants in error.

OPINION

WHITFIELD J.

The declaration filed December 3, 1917, alleges that----

'The defendants M. D. Weaver was engaged in dealing and selling wood to the public in the city of St. Petershurg. Pinellas county, Fla., and owned and used a certain automobile truck for the delivery of said wood in said city and Wesley Wells was engaged and employed by the said M. D. Weaver, in driving, running and operating said automobile truck for the delivery of said wood in said city; and while said automobile truck was being driven, run and operated by the said Wesley Wells, for the said M. D. Weaver, upon the public streets of said city, and while said automobile truck was being driven, run and operated by the said Wesley Wells, for the said M. D. Weaver, at the intersection of Fifth street North and Lake Street in said city, and while the plaintiff, Lottie Hale, was then and there rightfully and lawfully walking across said Lake street with all due care, caution, and diligence for her own safety, the said Wesley Wells, who was then and there driving, running, and operating said automobile truck for the said M. D. Weaver, negligently and carelessly, with great force and violence, drove and ran said automobile truck against and upon and over the plaintiff, Lottie Hale,' injuring her, etc.

An appearance was entered for the two defendants on December 3, 1917.

On February 4, 1918, the following praecipe for a default was filed:

'Lottie Hale and her Husband, J. N. Hale, Plaintiffs, v. M. D. Weaver and Wesley Wells, Defendants.

'In this cause the defendants M. D. Weaver and Wesley Wells having failed to plead or demur on or before this the rule day in February, to wit, February 4, 1918 on motion of plaintiffs by their attorney W. Murray Jones the clerk will please enter default in cause stated, against the said defendant for want of plea or demurrer.

'February 4th, 1918.

'W. Murray Jones, Attorney for Plaintiff.'

On the same day an entry of default was made as follows:

'Lottie Hale and Her Husband, J. N. Hale, v. M. D. Weaver and Wesley Wells.

'Assumpsit. Damages $5,000.00.

'And now, on this 4th day of February, A. D. 1918, the same being first Monday and rule day in said month, comes the plaintiff by his attorney W. Murray Jones, and, finding no plea or demurrer by the defendant, herein moves the court for a judgment by default against the said defendant.

'Whereupon, it is ordered that judgment by default be, and the same is hereby, rendered against the said defendant, and in favor of the said plaintiff, for want of such plea or demurrer.

'Clearwater, Florida, this 4th day of February, A. D. 1918.

'J. N. Brown, Clerk,

'By M. E. Bryan, D. C.'

On February 19, 1918, a motion was filed to vacate the default judgment and for leave to defend. The motion was denied on June 8, 1918. The grounds of the motion to vacate do not relate to the form of the default judgment, but to excuses for not pleading and to defenses asserted.

At the trial the following verdict was rendered:

'We, the jury, find for the plaintiff, and assess their damages at $1,600; so say we all.'

Judgment thereon was entered February 18, 1920, as follows:

'It is therefore ordered and adjudged that Lottie Hale and her husband, J. N. Hale, plaintiffs, do have and recover of and from M. D. Weaver and Wesley Wells, defendants, the sum of $1,600 and a further sum of $10 as cost in this behalf expended for which let execution issue.'

Writ of error was taken by the defendants.

Where under the principle of respondeat superior an employer is liable in damages for the negligence of an employee that proximately injures another, an action for damages may be maintained against both the employer and the employee, whether the employer participated in the negligent injury or not. See Schumpert v. Southern Ry., 65 S.C. 332, 43 S.E. 813, 98 Am. St. Rep. 808.

'The servant is liable because of his own misfeasance or wrongful act, in breach of his duty so the use that which ...