FLORENCE M. KIRTON, PLAINTIFF IN ERROR,
v.
ATLANTIC COAST LINE RAILROAD COMPANY, A CORPORATION, AND ATLANTIC LAND AND IMPROVEMENT COMPANY, A CORPORATION, DEFENDANTS IN ERROR
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Florence Kirton appealed a demurrer decision in a wrongful death action against a railroad company and land improvement company. The Florida Supreme Court affirmed the lower court's decision, finding the declaration ambiguous and defective under pleading requirements, and alternatively holding that the action was barred by the one-year statute of limitations for wrongful death actions.
The court affirmed the demurrer, holding that the declaration was defectively pleaded and ambiguous, failing to state a cause of action with sufficient certainty. Additionally, even if the declaration stated a cause of action, it was barred by Florida's one-year statute of limitations under Section 1725 of the General Statutes, which applies to actions arising from acts causing wrongful death.
“The rule to be observed, to avoid ambiguity and obscurity, requires the allegations of a declaration to be sufficiently certain for the plaintiff's theory of the case to be supported by any fair and reasonable intendment or construction of the allegations without reference to facts not alleged.”
Establishes the standard for pleading sufficiency and clarity required in declarations
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Join FLexlaw to unlock all legal intelligenceKirton filed a declaration in a wrongful death action against Atlantic Coast Line Railroad Company and Atlantic Land and Improvement Company. The defe…
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Whitfield, C. J.
A petition for rehearing suggests that the court misapprehended the effect of the language used in the declaration, and that in view of the common law and statutory liability of the railroad company and of facts commonly known there is in reality no repugnancy in the allegations of the declaration.
The rule to be observed, to avoid ambiguity and obscurity, requires the allegations of a declaration to be sufficiently certain for the plaintiff’s theory of the case to be supported by any fair and reasonable intendment or construction of the allegations without reference to facts not alleged. See Atlantic Coast Line R. Co. v. Benedict Pineapple Co., 52 Fla. 165, text 176, 42 South. Rep. 529, and authorities there cited. If two different meanings are fairly and reasonably presented, the construction adopted on demurrer will be unfavorable to the pleader. If the application of this rule makes the pleading appear to be repugnant a demurer thereto will lie. After verdict all reasonable intendments will be indulged to support the pleading. The rule as to ambiguous pleading was applied in this case on the demurrer, and the declaration was held to be “not up to the requirements of good pleading.”
But even if "it can be said that the declaration states a cause of action against both defendants, the right of action is barred by the statute of limitations that was interposed by plea and a demurrer thereto overruled. Section 1725 of the General Statutes provides that “an action arising upon account of an act causing the wrongful death, and on account of wrongful death, of child” shall be commenced within one year. The first part of the provision, to-wit: “an action arising upon account of an act causing the wrongful death," relates to and bars this action notwithstanding the appearance of the word “the” before the words “wrongful death,” and the use of the subsequent words of the quoted paragraph as punctuated. The original of the General Statutes as enacted by the legislature is not punctuated by the use of commas. See Taylor v. Inhabitants of Town of Caribou, 102 Me. 401, 67 Atl. Rep. 2, S. C. 10 Am. and Eng. Anno. Cas. 1080 and note.
A rehearing is denied.
Shackleford and Cockrell, JJ., concur;
Taylor, Hocker and Parkhill, JJ., concur in the. opinion.
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Collins v. Murray E. Hall, 117 Fla. 282 (Fla. 1934)…h subsequently ensuing. However, we might observe in passing that it would appear from [*288] the language of paragraph 6 of .Section 4663, Comp. Gen. Laws, construed in the light of what was said in the case of Kirton v. Atlantic Coast Line R. Co., 57 Fla. 87, 49 So. 1024, that the plea of the statute of limitations was also good. Under the statute referred to, “an action arising upon account of an act causing a wrongful death” must he commenced within two years, which, to the writer, indicates that the…
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THE ST. Francis Hosp., Inc. v. Belle Thompson, 159 Fla. 453 (Fla. 1947)…the death subsequently ensuing. However, we might observe in passing that it would appear from the language of paragraph 6 of Section 4663, Comp. Gen. Laws, construed in the light of what was said in the case of Kirton v. Atlantic Coast Line R. Co., 57 Fla. 87, 49 So. 1024, that the plea of the statute of limitations was also good. ...” It will not be deemed necessary to cite the holdings of this court to the effect that the foregoing provisions of statute have been held to create a new cause of action.…1 / 3
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Georgia v. Andrews, 61 Fla. 246 (Fla. 1911)…Am. St. Rep. 147. While an ambiguous pleading when tested should be construed against the pleader, after judgment all reasonable intendments should be indulged to support the pleading and the judgment thereon. Kirton v. Atlantic Coast Line R. Co., 57 Fla. 87, 88, 49 South. Rep. 1024. 1026. The declaration in this case does not appear to hav.e been tested by demurrer or appropriate motion, and the only contention here is that the judgment is void for want of jurisdiction in the court. The declaration a…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Atl. Coast Line R.R. Co. v. Benedict Pineapple Co., 52 Fla. 165 (Fla. 1906)