Williams v. City of Lake City

• Decision Date: 16 January 1953
• Parties: WILLIAMS v. CITY OF LAKE CITY et al.
• Court: Florida Supreme Court

Page 732

62 So.2d 732

WILLIAMS v. CITY OF LAKE CITY et al.

Supreme Court of Florida, en Banc.

Jan. 16, 1953.

Rehearing Denied Feb. 9, 1953.

J. B. Hodges, Lake City, and Neal D. Evans, Jr., Jacksonville, for appellant.

W. H. Wilson, Jr., and Brannon & Brown, Lake City, for appellee.

DREW, Justice.

The appellant, Susie Williams, hereafter called appellant, sued the City of Lake City, Florida, and R. O. Girvin and A. P. White, partners doing business as Girvin and White, hereafter called appellees, in the Circuit Court of Duval County for injuries alleged to have occurred to appellant in the City of Lake City, in Columbia County, Florida, by virtue of falling into a ditch dug along a street in Lake City for the purpose of installing sewers. The appellees were charged in the complaint with negligence in digging and maintaining the ditch.

Appellee City of Lake City moved to dismiss the complaint because of improper venue and supported such motion with an affidavit of the mayor of said city setting forth that the City of Lake City was located in Columbia County, Florida; that the city had not engaged in business or governmental function in Duval County within four years preceding the making of the affidavit; that he was served with process within said city and the alleged cause of action accrued in Columbia County. The lower court sustained this motion and dismissed the complaint as to said City of Lake City. This action is assigned as error.

After the complaint was dismissed as to the City of Lake City, appellant filed an amended complaint against the appellees R. O. Girvin and A. P. White, partners doing business as Girvin and White. The appellees answered, took the discovery deposition of the appellant and on the basis of such deposition, interrogatories to one Langley Brown, as assistant superintendent of appellee, and an affidavit of one Joe W. Roberts, a night watchman of appellee, moved for the entry of a summary judgment. The appellant failed to file any counter affidavits. The lower court granted such motion and entered final judgment against appellant. That action of the lower court is also assigned as error.

We, therefore, have before us the question of (1) whether the City of Lake City, a municipal corporation, could be sued in this case in other than Columbia County; and (2) whether there was any genuine issue of any material fact which should have been submitted to the jury.

If we should agree with the lower court on the second question, there would be no occasion to decide the first. We, therefore, proceed to the determination of the question of whether the lower court erred in granting the motion for summary judgment.

The right to a jury trial is a very sacred part of our system of jurisprudence and, while we have held that the granting of a summary judgment does not infringe upon such constitutional right, that very holding carries with it the idea that such judgments should be sparingly granted and only in those cases where there remains no genuine issue of any material fact. To put it another way, such motion should be granted only where the moving party is entitled to a judgment as a matter of law. It was never intended by this rule that cases should be tried by affidavit or that affidavits, interrogatories or depositions or similar evidence, could be used as substitutes for a jury trial. To sum it all up, if there are issues of fact and the slightest doubt remains, a summary judgment cannot be granted.

We have carefully examined the affidavit, the interrogatories and the deposition of the appellant in the light of the above principles. We find very material and genuine issues of fact that are disputed and, in this connection, it must not be overlooked that all doubts as to the existence of a genuine issue of a material fact must be resolved against the moving party.

One of the items of negligence charged in the complaint was, as stated in appellant's brief, that the defendants 'negligently permitted said ditch to remain in an open and dangerous condition in the nighttime without providing or maintaining a light, guard or other protection or warning of the presence of said ditch.' On this question, appellant stated unequivocally that there were no lights that night, while the statements of Brown and Roberts, even when considered in the light most favorable to appellees, were to the effect that they had maintained the lights every night. This certainly presented a material issue. We are not impressed by the argument in this case that the question of whether there were lights there was unimportant because the appellant knew the ditch was there. As we construe the complaint, it was not the presence of the ditch itself, but the cave in along its edge that is the gist of the negligence alleged.

Then there was the issue of whether the appellant was guilty of contributory negligence as a matter of law in walking too close to the edge of the ditch, causing the bank to collapse and the appellant to be thrown in said ditch and injured. Appellees insist that appellant was guilty of contributory negligence because she walked too close to the edge of the ditch when there was ample room remaining to walk safely. We find the evidence to preponderate in favor of appellant's position that she was in a safe place--'the hard part'--when the bank gave way. We think the issue of whether appellant was guilty of contributory negligence was a jury question. There was not sufficient evidence in the affidavit, interrogatories and deposition to establish as a matter of law that appellant was guilty of contributory negligence.

For the reasons we have stated, we hold that the lower court erred in granting the motion for summary judgment and in entering final judgment for the appellees.

Having determined that the cause should have been submitted to a jury, we now pass to the question of venue.

Section 2.01, F.S.A., provides that the common and statute laws of England of a general nature down to July 4, 1776--not inconsistent with the constitution and laws of the United States or of this State--are in force.

Under the common law no action could be brought against a municipal corporation outside the county where it was situated, unless an express statute authorized it to be sued elsewhere. Marshall v. Kansas City, 95 Kan. 548, 148 P. 637, L.R.A. 1915F, 1025; City of Jackson v. Wallace, 189 Miss. 252, 196 So. 223; 38 Am.Jur. 420, Par. 716. The appellant contends, however, that Sections 46.01 and 46.02, F.S.A., which read as follows:

'46.01 Where suits may be begun. Suits shall be begun only in the county (or if the suit is in the justice of the peace court in the justice's district) where the defendant resides, or where the cause of action accrued, or where the property in litigation is located.

'If brought in any county or justice district where the defendant does not reside, the plaintiff, or some person in his behalf, shall make and file with the praecipe or bill in chancery, an affidavit that the suit is brought in good faith, and with no intention to annoy the defendant. This section shall not apply to suits against nonresidents.

'46.02 Suits against defendants residing in different counties or districts. Suits against two or more defendants residing in different counties (or justices' districts) may be brought in any county or district in which any defendant resides.'

are inconsistent with the common law on the subject under the facts in this case, and that she is authorized to maintain this action in Duval County. We are not impressed by this argument. The majority of the courts have held that actions against municipal corporations are inherently local and that they must be sued in the county in which they are located. While we recognize that there are authorities to the contrary, we believe this rule is based on logic and reason and is the better rule. We approve the principles set forth in the following excerpts from 38 Am.Jur. pages 419 to 422:

'Sec. 716. Venue--General Rule.--Under what is perhaps the prevailing view and the weight of authority, an action against a municipal corporation is inherently local and in the absence of any statutory provision to the contrary, must be brought in the county in which the municipality is situated. Several reasons have been advanced in support of the prevailing view. It has been remarked that municipalities cannot change their situs or their place of abode. They cannot remove from one place to another, and sojourn for a time at this point or that. They remain stationary; hence, they must be sued where they are found. The courts have also constantly pointed out that it is of the greatest importance to the welfare of municipal bodies and of the citizens whom they serve that their officers should be permitted to remain at home and discharge their public duties, instead of being called hither and thither over different parts of the state to attend to litigation. The magnitude and importance of the functions of municipal government are constantly increasing with the growth of population and of the various and complex agencies employed in municipalities in the public service, and these...