ESTHER SCHWENCK, BY HER GUARDIAN AND NEXT FRIEND, LOUISE SCHWENCK,
v.
HARRY JACOBS, IDA JACOBS AND SHIRLEY JACOBS BY HER GUARDIAN, HARRY JACOBS, AND CHARLES G. HANNOCK
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This case involves an appeal of a demurrer ruling in a personal injury action brought by a minor passenger injured in a motor vehicle accident. The Florida Supreme Court upheld dismissal of certain counts but reversed dismissal of others, finding that some counts stated actionable negligence claims against the vehicle owner.
The Court held that only the first, fourth, and fifth counts stated a cause of action as against Ida Jacobs and Shirley Jacobs; the order sustaining the demurrer as to Harry Jacobs was proper as no actionable negligence was alleged against him; and the second and third counts failed to state a cause of action against any of the Jacobses. The demurrer ruling was affirmed in part and reversed in part.
“Only the first, fourth and fifth counts appear to state a cause of action as against the owner-defendant, Ida Jacobs, and Shirley Jacobs, and the order and .judgment as against them appear to have been in error.”
Establishes which counts of the declaration survive the demurrer for the vehicle owner and driver defendants.
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Join FLexlaw to unlock all legal intelligenceEsther Schwenck, a school child, was a passenger in a motor vehicle owned by Ida Jacobs and driven by Shirley Jacobs (Ida's daughter) with knowledge a…
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The plaintiff-appellant brought suit against Harry Jacobs, Ida Jacobs and Shirley Jacobs, by her guardian, Harry Jacobs, and Charles G. Hannock. A demurrer to the plaintiff’s amended declaration was filed on behalf of all the Jacobses, *354which was sustained, and final judgment rendered thereon-, whereupon the appellant brought this appeal, wherein the ruling on the demurrer is assigned as error.
The first count of the second amended declaration states that Shirley Jacobs, the daughter of Ida Jacobs, while driving a motor vehicle owned by Ida Jacobs, with Esther Schwenck, a school child being driven to school, as a passenger, crashed into the rear of the motor vehicle in front of her and, as a proximate result thereof, the said Esther Schwenck was severely bruised, lacerated, etc.
The second count of said amended declaration is similar to the first, but is only as against the defendant, Charles G. Hannock, for alleged negligent stopping of his car.
The third count is somewhat similar to the first, but fails to allege any actionable negligence.
The fourth count is similar to the first and attempts to state a cause of action against the Jacobses and Charles G. Hannock; the allegations against Hannock are not ultimate facts, but only conclusions of the pleader.
The fifth count is similar to the first, as against the Jacobses.
In each of said counts it is alleged that the mother’s automobile was being driven by Shirley Jacobs with her knowledge and consent and with the knowledge and consent of Harry Jacobs, Shirley’s father and guardian.
There is no actionable negligence stated in any of the counts as against Harry Jacobs, so the trial judge’s order as to him was without error.
Only the first, fourth and fifth counts appear to state a cause of action as against the owner-defendant, Ida Jacobs, and Shirley Jacobs, and the order and .judgment as against them appear to have been in error.
The fashion and style by which Shirley is named as a defendant is as follows: “Shirley Jacobs, by her guardian, Harry Jacobs.” This is somewhat anomalous, but more need not be said now.
The second and third counts fail to state any cause of action as against any of the Jacobses.
*355Section 320.59 F.S.A. was passed for the benefit of the operators of automobiles carrying guest passengers, but the proviso "that nothing in this section shall apply to school children or other students being transported to or from schools or places of learning in this state” was placed within the statute for the benefit of those named within the exception. According to the declaration, Esther Schwenck was of the class within the exception.
Affirmed in part and reversed in part and costs ordered taxed against appellant.
TERRELL, CHAPMAN, and ADAMS, JJ., concur.
THOMAS, C. J., and SEBRING, J., dissent.
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Emp'rs' Fire Ins. Co. v. Cont'l Ins. Co., 326 So. 2d 177 (Fla. 1976)…y 11 months elapsed after all nonministerial, judicial labor in the litigation had ended. In the preponderance of trial cases, attorneys, on their own or by request, submit the judgment document. . This result is consistent with Schwenek v. Jacobs, 160 Fla. 352, 33 So. 2d 592 (1948), holding that the time for appeal relates to the legal effect of a judgment as tested by the lower court's loss of jurisdiction over the lawsuit. The eases set forth in footnote 1 are overruled. Our previous decision that an un…
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Summersett v. Linkroum, 44 So. 2d 662 (Fla. 1950)…an injury to her foot, which was run over by the car. The lower court held that the abovestated facts were not sufficient to show that Mary was "being transported to or from school within the exception of the guest statute." In Schwenck v. Jacobs, 160 Fla. 352, 35 So. 2d 123, 124, this court stated that "Section 320.59, F.S.A., was passed for the benefit of the operators of automobiles carrying guest passengers, but the proviso `that nothing in this section shall apply to school children or other students…
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Nordone v. Richardson, 168 So. 2d 550 (Fla. 3d DCA 1964)…argument finds no support in the wording of the statute, which furnishes no basis for so concluding. Nor does the fact that the exception has been given application in certain [*552] instances where young children were involved (Schwenck v. Jacobs, 160 Fla. 352, 35 So. 2d 123; Summersett v. Linkroum, Fla.1950, 44 So. 2d 662) supply reason to assume the exception would not be applied to one who, though not so young a child, is within its terms. The need for strict construction, and the duty not to extend or…