Wedekind v. McDonald

• Decision Date: 20 September 1948
• Docket Number: Civ. T. No. 1535-1538.
• Citation: 82 F. Supp. 678
• Parties: WEDEKIND v. McDONALD (two cases). KINZEL v. McDONALD (two cases).
• Court: U.S. District Court — Southern District of Florida

82 F. Supp. 678

WEDEKIND v.McDONALD (two cases).

KINZEL v.McDONALD (two cases).

Civ. T. No. 1535-1538.

United States District Court S. D. Florida, Tampa Division.

September 20, 1948.

John L. Early, of Sarasota, Fla., and Shackleford, Farrior, Shannon & Harrison, of Tampa, Fla., for plaintiffs.

Thomas W. Butler, of Sarasota, Fla., and Macfarlane, Ferguson, Allison & Kelly, of Tampa, Fla., for defendant.

BARKER, District Judge.

These cases are before this Court on defendant's motions to dismiss both counts of the declarations filed in the State court on several grounds, and defendant's motion to strike certain portions of both counts.The principal question presented to the Court upon the arguments conducted on the motions concerns the defendant's right to a dismissal of the first count in each of the declarations wherein it is alleged that a motor vehicle owned by the defendant was caused to collide with the automobile in which the plaintiffs were riding as a result of the negligence of the driver of the defendant's vehicle who was operating the same with the defendant's knowledge and consent.

It appears from the record that service was obtained in these actions under Section 47.29,Florida Statutes 1941, F.S.A., making the Secretary of State of Florida the agent of non-resident automobile owners for the purpose of accepting service of process upon such non-resident owners in actions originating under certain conditions.Special appearance and motion to quash the process was duly filed in the State court by the defendant in each of the actions, and the Judge of that Court denied the motions to quash and ordered the defendant to plead.Whereupon removal proceedings were taken by the defendant and the cases were removed to this Court.The transcripts of pleadings in the State court were filed with this Court within the time allowed by law, and, at the same time, the defendant filed the motions now before this Court.

Section 47.29, Florida Statutes, 1941, F. S.A., reads as follows:

"The acceptance by a person, who is a resident of any other state or country, of the privilege extended by law to non-resident owners of driving or operating a motor vehicle, or of having the same driven or operated, or permitting the same to be driven or operated in the State of Florida, as evidenced by the operation by himself, his servant, employee or agent, of a motor vehicle in the State of Florida, or the operation by such a person, by himself, his servant, employee, or agent, of a motor vehicle in the State of Florida, shall be deemed equivalent to an appointment by him of the secretary of state of the State of Florida as his agent upon whom may be served all lawful processes in any action or proceeding against him, growing out of any accident or collision in which such person, his servant, employee or agent, may be involved, while operating a motor vehicle in the State of Florida, and said acceptance or operation shall be signification of his agreement that any such process against him which is so served shall be of the same legal force and validity as if served on him personally."

The statute expressly limits the appointment of the Secretary of State as agent for acceptance of service of process to those cases wherein a non-resident owner has driven his motor vehicle or has permitted it to be driven in the State of Florida"as evidenced by the operation by himself, his servant, employee or agent".This statute is in derogation of the common law and must be strictly construed, and an interpretation which would permit the statute to be applied where the motor vehicle was being operated by anyone other than the owner, his servant, employee, or agent would not only be an extremely broad and liberal interpretation but would contravene the express provisions of the statute.The following authorities support this view and there would appear to be no cases to the contrary: Zurich General Accident & Liability Ins. Co., Ltd., of Zurich, Switzerland v. Brooklyn & Queens Transit Corporation, 137 Misc. 65, 241 N. Y.S. 465;Brassett v. U. S. Fidelity & Guaranty Co., La.App., 153 So. 471;Morrow v. Asher, D.C., 55 F.2d 365.

It is contended by the plaintiffs...