Gasparro v. Horner

• Decision Date: 08 January 1971
• Docket Number: No. 70--115,70--115
• Parties: Vincent GASPARRO, as parent, guardian and next friend of Julie Gasparro, a minor, Appellant, v. Marjorie HORNER and Elbon Kicklighter, Appellees.
• Court: Florida District Court of Appeals

Page 901

245 So.2d 901

Vincent GASPARRO, as parent, guardian and next friend of Julie Gasparro, a minor, Appellant, v. Marjorie HORNER and Elbon Kicklighter, Appellees.

No. 70--115.

District Court of Appeal of Florida, Fourth District.

Jan. 8, 1971.

Rehearings Denied March 19, 1971.

Michael R. Josephs, of Preddy, Haddad, Kutner & Hardy, Miami, for appellant.

Frank M. Hamilton and Thomas B. Mimms, Jr., of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellee Kicklighter.

PER CURIAM.

Affirmed.

REED and OWEN, JJ., concur.

WALDEN, J., dissents, with opinion.

WALDEN, Judge (dissenting).

This appeal concerns the application of the four-year Statute of Limitations (F.S. 95.11(4), Laws of 1964) to the tort claim of an infant, Julie Pastoria.

In March 1964 there was an automobile collision, Julie Pastoria, four years of age, was thereby orphaned and, in addition, suffered serious personal injuries. In November 1965 she was adopted. In April 1968 Julie's adoptive parents filed a negligence suit against the defendants for Julie on account of her damages resulting from the collision.

The trial court decided that the limitation period began to run on the date of the accident and, therefore, ruled that the action was barred by the Statute of Limitations. Of course, the suit would have been timely had the statutory limitation period been measured beginning on the date of adoption.

Other than the mentioned adoption, Julie has not in fact had a parent, guardian, next friend or other legal representative capable of bringing a suit on her behalf. See 17 Fla.Jur., Infants, § 31 et seq.

Remembering that an infant is a ward of the court and that it is the court's bounden duty to see that an infant's rights and interests are protected, I would reverse. It is my conviction that the Statute of Limitations is not to be literally applied, without exception, in instances such as this. I feel and believe that the rule should be, since Florida currently is without a rule, that the Limitations Statute was suspended or tolled by reason of Julie's disability of infancy Coupled with her lack of a parent, guardian or next friend. ¹ In other words, the statute here began to run commencing on the date of her adoption, and not before.

At common law a child under seven cannot commit a crime. In Florida a child under six years of age is conclusively presumed as a matter of law to be incapable of committing contributory negligence. Swindell v. Hellkamp, Supreme Court of Florida, 242 So.2d 708, November 25, 1970. It seems grotesquely inconsistent to here rule that a four-year old orphan is bound to somehow go out and obtain a parent, a guardian, or a next friend and get them to file her suit within the limitation period under penalty of the forfeiture of her lawful claim for damages and recompense.

The statute is not always so strictly applied. For instance, it is tolled where the plaintiff does, in fact, suffer an injury and does not become aware of it. ² Also, where a right of action accrues after the death of the person entitled to sue, the statute does not begin to run until there is an administration of the estate and an administrator appointed. ³ I submit that the analogy is clear. A cause of action does not accrue until the injured party has knowledge and there is a person is existence authorized and able to maintain the suit. New York Times Co. v. Conner, 5 Cir. 1961, 291 F.2d 492.

The only Florida case touching even slightly upon the situation is Slaughter v. Tyler, 1936, 126 Fla. 515, 171 So. 320. It held that the Statute of Limitations did run against the claims of a minor, But, there the minor at all times had parents in existence and legally capable of prosecuting the minor's action, which circumstance distinguishes that case from the instant problem.

To illustrate the manifest incongruity of the principle applied in the trial court and approved here, suppose that an airplane should crash in the jungle killing the parents and leaving their infant child as a survivor in the hands of savages. The statute would begin to run and if four years should elapse before the suit was filed the infant's tort claim would be barred under such literal application of the limitation statute. This, despite the disability of infancy and the lack of a responsible person to bring an action for the infant. It reminds of the legal dilemma which might have been faced by the mythical founders of Rome, Romulus and Remus, who as infants were thrown into the Tiber River but rescued, suckled and raised by a shewolf. Also, to like reflection is the well known fictional story of Burrough's, Tarzan and the Apes, and Kipling's Mowgli, the Jungle Boy.

About the supposition or proposition that a next friend could always have come forward in Julie's behlaf, it is true. It is also true that a court could have provided a guardian or a parent for Julie during the critical period. But, the fact is that no next of friend came forward and no guardian was appointed. We can test the soundness of such argument by employing simple logic: If it be contended that 'a next friend could have brought suit,' this presupposes the existence of a next friend. This is not established as a matter of fact and hence must be presumed to be a matter of law, or in syllogistic form: (1) all minors have next friends, (2) Julie is a minor, * * *. Julie has a next friend. But the original premise is fallacious. There is no proof that all minors have next of friends nor that this particular minor has a next of friend. In fact the definition of next friend is to the contrary, for by definition ⁴ a next friend is one who acts voluntarily on behalf of a minor, and since no one acted on her behalf we must conclude that Julie had no next friend. To put this logic in a practical framework, it is manifestly unfair to penalize an innocent child for the inaction of others, especially where there is no showing that those persons exist or were in any way under any duty, requirement authorization, or direction to act. A next of friend is by definition volitional, ⁵ where there is no volition, there is no next friend. Q.E.D.

In sum, the Statute of Limitations should be tolled as concerns the tort claim of an infant where and while such infant has neither parent, guardian, next friend, or other legal representative in existence capable of bringing suit for and on behalf of such minor.

I respectfully dissent from the majority decision to simply affirm, without opinion.

I would reverse. ⁶

ON REHEARING

REED, Judge.

On consideration of a timely petition for rehearing the same is denied and the conclusion of this court that an affirmance is required is adhered to; however, the per curiam decision to affirm is withdrawn and the following is substituted as the majority opinion.

Appellant was the plaintiff below, appellee Elbon Kicklighter was the defendant. On 3 March 1964 defendant Elbon Kicklighter operating an automobile owned by one Marjorie Horner was involved in an intersectional collision with a vehicle containing Ila Pastoria and her daughter, Julie Pastoria (now Julie Gasparro). Ila Pastoria was killed in the accident leaving Julie a minor orphan. She was adopted by the plaintiff, Vincent Gasparro, on 24 November 1965.

On 11 April 1968 Vincent Gasparro, as parent, guardian and next friend of Julie Gasparro, a minor, filed a complaint against the defendant Elbon Kicklighter and Majorie Horner for damages caused by the automobile accident which occurred more than four years prior to the commencement of the action. The complaint alleged that defendant Kicklighter negligently operated Horner's automobile thereby injuring Julie Gasparro. Defendant Kicklighter filed his answer alleging as an affirmative defense that the four year statute of limitations, Section 95.11(4), F.S.1967, F.S.A., had run. On 1 December 1969 defendant Kicklighter filed a motion for judgment on the pleadings. The trial court granted the motion and entered a final judgment on 14 January 1970 in favor of defendant Kicklighter from which the plaintiff appeals.

As stated by appellant the point on appeal is:

'Whether the trial court erred in ruling that the subject suit was barred by the statute of limitations.'

Section 95.11, F.S.1963, F.S.A. states: 'Actions other than those for the recovery of real property can only be commenced as follows * * * (4) Within four years--any action for relief not specifically provided for in this chapter.' In Manning v. Serrano, Fla.1957, 97 So.2d 688, the Florida Supreme Court held that the four year statute of limitations is applicable to negligence actions of the type now before the court.

The questions raised by the point on appeal are: (a) when did the cause of action accrue and, (b) did Julie Gasparro's disability of infancy operate to suspend or toll the running of the statute of limitations.

As to when the cause of action accrued, in Seaboard Air Line Railroad Company v. Ford, Fla.1955, 92 So.2d 160, the Florida Supreme Court stated:

'Generally, in actions for personal injuries resulting from the wrongful act or negligence or another, the cause of action accrues and the statute begins to run From the time when the injury was first inflicted * * *.' (Emphasis added.)

The plaintiff asserts that the cause of action did not accrue until Julie was adopted and, thus, she had four years from that date within which be bring suit. Plaintiff claims that since Julie was adopted in November 1965 her cause of action would not be barred until November 1969 and that the complaint filed in this cause in April 1968 was timely. Plaintiff cites New York Times Co. v. Conner, 5 Cir.1961, 291 F.2d 492 for the proposition that 'accrue' means 'becoming complete so that the aggrieved party can begin and prosecute such action.' However, suit could have been brought by Julie Gasparro by a 'next friend' before she was adopted. FRCP 1.210(b), 30 F.S.A., states:

'* * * If an infant or incompetent...