Franklin Life Ins. Co. v. Tharpe

Decision Date23 February 1938
Citation179 So. 406,131 Fla. 213
PartiesFRANKLIN LIFE INS. CO. et al. v. THARPE.
CourtFlorida Supreme Court

On second petition for rehearing.

Petition denied, and original opinion adhered to and reaffirmed.

For original opinion, see 178 So. 300. Appeal from Circuit Court, Dade County; Worth W. Trammell, judge.

COUNSEL

Francis M. Miller, of Miami, for appellant.

Harry Gordon and Rosenhouse & Rosenhouse, all of Miami, and Waller & Papper and B. A. Meginniss, all of Tallahassee, for appellee.

OPINION

PER CURIAM.

On second petition for rehearing, it is contended that the cause of action under the policy did not accrue within the five years period before suit. It has been brought to our attention that 37 Corpus Juris, p. 968, par. 347 cited in the original opinion, is inapplicable to the suit at bar, but that 37 Corpus Juris, p. 969, par. 350, controls and is, viz.:

'Ignorance and Concealment of Causes of Action--a. Ignorance in General. Omitting at this place any consideration of the effect of a mistake, trust relations in general, or laches, and except where there has been secret fraud or fraudulent concealment on the part of the defendant, the rule is generally established that mere ignorance of the facts which constitute the cause of action will not postpone the operation of the statute of limitations, but the statutes will run from the time the cause of action first accrues notwithstanding such ignorance. The reason of the rule seems to be that in such cases ignorance is the result of want of diligence and the party cannot thus take advantage of his own fault. It is otherwise where the cause of action does not arise except upon ascertainment or knowledge of a particular fact, or where a demand is a necessary prerequisite to recovery and plaintiff is in no position to make demand until he has learned the facts. In one case the court declared: 'It cannot be said that a person should assert a right before he has knowledge of or is chargeable with knowledge of, the same; and this doctrine has been applied in miscellaneous cases cited in the subjoined note, and cases mentioned in several places in this title--despite the strong general rule hereinbefore stated--such cases being based perhaps upon the theory that the cause of action does not accrue until knowledge thereof is obtained. And requirement of knowledge is sometimes made by statute. In an action at law for conspiracy in violation of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note, and governed by the law of limitations in Louisiana, it was held that until plaintiff discovered that it had a right of action--that is, until it had knowledge of the conspiracy--prescription did not run against it. At any rate in most instances the burden of showing that the statute of limitations does not apply to a particular case is on the party who denies the bar of the statute.'

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10 cases
  • Senfeld v. Bank of Nova Scotia Trust Co. (Cayman) Ltd.
    • United States
    • Florida District Court of Appeals
    • May 1, 1984
    ...facts which constitute the cause of action will not postpone the operation of the statute of limitations," Franklin Insurance Co. v. Tharpe, 131 Fla. 213, 214, 179 So. 406, 407 (1938), it is equally true that where the plaintiff's ignorance is blameless, the cause of action will not arise u......
  • Nardone v. Reynolds
    • United States
    • Florida Supreme Court
    • May 19, 1976
    ...C.J.S. pertaining to ignorance and concealment of causes of action was quoted with approval by this Court in Franklin Life Ins. Co. v. Tharpe, 131 Fla. 213, 179 So. 406 (1938), and subsequently cited by the District Court of Appeal in Houston, et al. v. Florida Georgia Television Company, 1......
  • Grossman v. Greenberg
    • United States
    • Florida District Court of Appeals
    • June 1, 1993
    ...run where there has been a fraud or a fraudulent concealment. Nardone v. Reynolds, 333 So.2d 25, 34 (Fla.1976); Franklin Life Ins. v. Tharpe, 131 Fla. 213, 179 So. 406 (1938). In this case, there was a secret fraud carried out by Grossman, Bodne, Rubin, and Males. With the help of Males and......
  • Edgerly v. Schuyler
    • United States
    • Florida District Court of Appeals
    • June 26, 1959
    ...Nat. Bank of Seattle, 180 Wash. 614, 41 P.2d 779.12 Compare City of Miami v. Brooks, Fla., 1954, 70 So.2d 306; Franklin Life Ins. Co. v. Tharpe, 131 Fla. 213, 179 So. 406.13 See note , supra.14 See Ball v. Roney, 112 Fla. 186, 150 So. 240; Gulf Life Ins. Co. v. Hillsborough County, 129 Fla.......
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