45 So.2d 188 (Fla. 1950), Kirksey v. Jernigan

Citation:45 So.2d 188
Case Date:March 24, 1950
Court:Supreme Court of Florida

Page 188

45 So.2d 188 (Fla. 1950)




Supreme Court of Florida, En Banc.

March 24, 1950

Dean Boggs, Jacksonville, for appellant.

Katz & Katz and Bedell & Bedell, Jacksonville for appellee.

ROBERTS, Justice.

This is an appeal from a final judgment on demurrer entered in the court below in favor of defendant-appellee in a tort action for damages. The lower court sustained

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defendant's demurrer to plaintiff's Second Amended Declaration on the ground that neither compensatory damages for mental pain and anguish nor punitive damages were recoverable, and that therefore plaintiff's claim was below the amount required to give the court jurisdiction of the cause. The plaintiff declining to amend further, final judgment on demurrer was entered in favor of defendant-appellee.

The facts upon which plaintiff based her cause of action are set forth in her declaration essentially as follows:

On October 20, 1948, the plaintiff's five-year-old child was accidentally shot and killed at her home while she was temporarily absent. She was immediately notified and arrived at the scene soon after the accident occurred. Prior to her arrival, the defendant, an undertaker, had taken the body of the child to his undertaking establishment 'without the authority of plaintiff, or of anyone authorized to act in her behalf', it is alleged. Upon learning this, the plaintiff went to the establishment of defendant, advised him that she was the mother of the child, and made demand for the body, directing that it be turned over immediately to the undertaker of her choice. It is alleged that she made this demand within two hours after the accident. Defendant refused to surrender the body at that time, or upon repeated requests for the body made thereafter by plaintiff, or others acting on her behalf, and held the body for two or three days. The defendant also embalmed the body, it is alleged, 'wrongfully and without authority from plaintiff, or anyone authorized to act in her behalf, and thereby mutilated said body in deliberate and wanton disregard of the known rights of plaintiff and arbitrarily set his charge or fee in the sum of $50.00.' It was also alleged that he refused to deliver the body to plaintiff or anyone else until plaintiff had paid the $50.00 fee, and 'wrongfully held said body as security for said charge or fee or $50.00.'

The declaration was in three...

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