City of Miami v. Brooks

Citation70 So.2d 306
PartiesCITY OF MIAMI v. BROOKS.
Decision Date22 January 1954
CourtUnited States State Supreme Court of Florida

Walton, Hubbard, Schroeder, Lantaff & Atkins and Thomas N. Balikes, Miami, for appellant.

Hunter & Paoli, Hollywood, for appellee.

SPOTO, Associate Justice.

The plaintiff-appellee here brought suit for personal injury against the City of Miami, a municipal corporation, referred to as the defendant, charging in substance that on April 22, 1944, while a paying patient at the Jackson Memorial Hospital, which was being operated by the City of Miami, a municipal corporation, in a proprietary capacity, she received an overdose of x-ray therapy treatment for the removal of plantar warts from her left heel, which caused her subsequent injury and for which she seeks damages. It was alleged that the cause of her injury was the carelessness and negligence of the defendant's employees, or agents, in administering a sufficient amount of x-ray treatment, thereby causing her left heel to be burned, and that it was in the middle of August, 1949, when the plaintiff was advised and first became aware that her heel had been injured by the x-ray therapy treatment received in April, 1944; that previously there had been no indication that the plaintiff's left heel had been burned by the x-ray treatment, but gave every appearance of being healthy and in good condition; that it was about the middle of May, 1949, when a sore began to develop on the plaintiff's heel, which slowly turned into an ulcer, and that the plaintiff, on September 2, 1949, gave notice to the city, through her attorneys, of her claim. This suit was filed in the circuit court on May 11, 1950. That the x-ray treatment was the cause of injury was admitted by the defendant, the defenses being, first, that the plaintiff's claim was barred by the statutes of limitations; second, that she failed to serve upon the City of Miami written notice of her claim within sixty days after receiving the injury alleged, as required by the city charter; and third, that the plaintiff's injury was not due to the carelessness or neglect of any of its employees or agents.

The jury, under the instructions of the Court, found adversely to the defendant on the defense that the physicians and attendants were not acting on behalf of the hospital, and we see no reason to disturb this finding as it finds ample support in the record. At the conclusion of the plaintiff's case and at the close of all the testimony, the defendant moved for a directed verdict on the grounds that the action was barred by the statutes of limitations, F.S. 95.11 and 95.24, F.S.A., and that the plaintiff had failed to comply with the requirement of the city charter providing for notice to be given to the city within sixty days after receiving the injury. This motion was denied by the Court on the authority of Doyle v. City of Coral Gables, 159 Fla. 802, 33 So.2d 41. There the Court held:

'Passenger who was allegedly injured because of negligent operation of city's bus, had right to ground her action for injuries against city on breach of any implied contract to deliver her safely, and therefore requirement of notice to city before bringing action was immaterial.'

To the same effect is Holbrook v. City of Sarasota, Fla., 58 So.2d 862:

'Where patient in city hospital was injured by being permitted to fall from bed, patient could properly bring action for breach of contract, express or implied, to furnish nursing care and attention, and was not required to bring action sounding in tort, and hence provision in city charter that no suit shall be maintained against city arising out of any tortious action or action sounding in tort unless written notice of such damage be given within 30 days after injury, was inapplicable to bar the action for failure to give such notice.'

This action was treated by the trial court as founded on a breach of contract and as the amended declaration is susceptible to the construction, the question of the notice, or lack of notice, became immaterial.

There remains for consideration the question of the statute of limitations, which has given the Court much concern. The...

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118 cases
  • Senfeld v. Bank of Nova Scotia Trust Co. (Cayman) Ltd.
    • United States
    • Florida District Court of Appeals
    • May 1, 1984
    ...until maker receives, or by exercise of reasonable business care would have received, notice that endorsement forged); City of Miami v. Brooks, 70 So.2d 306 (Fla.1954) (medical malpractice action does not arise until notice of consequences or negligent act); see Franklin Insurance Co. v. Th......
  • Harris v. Dist. Bd. Trustees of Polk Community College
    • United States
    • U.S. District Court — Middle District of Florida
    • June 18, 1998
    ...determining when various tort causes of action accrue. Plaintiffs cite the Florida Supreme Court, Special Division B which held in City of Miami v. Brooks that the running of a statute begins upon notice of the allegedly wrongful act. City of Miami v. Brooks, 70 So.2d 306, 308 (1954). The C......
  • Billings v. Sisters of Mercy of Idaho, 9382
    • United States
    • Idaho Supreme Court
    • January 24, 1964
    ...(by statute) Mo.Rev.Stat. § 516.140, cited in Thatcher v. De Tar, 351 Mo. 603, 173 S.W.2d 760 (1943); Florida, City of Miami v. Brooks, Fla., 70 So.2d 306 (1954); and possibly Texas, McFarland v. Connally, Tex.Civ.App., 252 S.W.2d 486 The fraudulent concealment exception has been extensivel......
  • Peterson v. Roloff
    • United States
    • Wisconsin Supreme Court
    • January 30, 1973
    ...v. Good Samaritan Hospital (1971), 14 Ariz.App. 248, 482 P.2d 497; Stafford v. Shultz (1954), 42 Cal.2d 767, 270 P.2d 1; City of Miami v. Brooks (Fla.1954), 70 So.2d 306; Yoshizaki v. Hilo Hospital (1967), 50 Ha. 150, 433 P.2d 220; Tomlinson v. Siehl (Ky.1970), 459 S.W.2d 166; Johnson v. Ca......
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