Moorey v. Eytchison & Hoppes, Inc., No. 76--404

CourtCourt of Appeal of Florida (US)
Writing for the CourtGRIMES; BOARDMAN, Acting C.J., and SCHEB
Citation338 So.2d 558
Decision Date20 October 1976
Docket NumberNo. 76--404
PartiesThomas E. MOOREY, as Personal Representative of the Estate of Donald E. Buck, Deceased, Appellant, v. EYTCHISON & HOPPES, INC., et al., Appellees.

Page 558

338 So.2d 558
Thomas E. MOOREY, as Personal Representative of the Estate of Donald E. Buck, Deceased, Appellant,
v.
EYTCHISON & HOPPES, INC., et al., Appellees.
No. 76--404.
District Court of Appeal of Florida, Second District.
Oct. 20, 1976.

William T. Haverfield of Pavese, Shields, Garner, Haverfield & Kluttz, Fort Myers, for appellant.

R. Thomas Corbin of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, P.A., Fort Myers, for appellee Mobil Oil Co.

Page 559

GRIMES, Judge.

The sole issue in this case is whether the appellant's wrongful death action against the appellee, Mobil Oil Company, is barred by the statute of limitations.

The alleged wrongful death of Donald Buck occurred on November 1, 1973. The complaint was filed against several defendants on Friday, October 31, 1975. An amended complaint naming Mobil as an additional defendant was filed on Monday, November 3, 1975. The court dismissed the amended complaint with prejudice as against Mobil as being barred by the statute of limitations.

The cause of action for wrongful death accrues upon the date of the decedent's death. Walker v. Beech Aircraft Corporation, 320 So.2d 418 (Fla.3d DCA 1975). The statute of limitation on a wrongful death action is two years. Section 95.11(4)(d), Florida Statutes. Where the last day of a limitation period falls on a Saturday, Sunday or legal holiday the period runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday. Herrero v. Black and Decker Manufacturing Company, 275 So.2d 54 (Fla.3d DCA 1973), Opinion approved and certiorari discharged, 281 So.2d 18 (Fla.1973). Therefore, if the last day of the limitations period was Saturday, November 1, 1975, the amended complaint which first named Mobil as a defendant was timely filed on Monday, November 3, 1975.

In McMillen v. Hamilton, 48 So.2d 162 (Fla.1950), our Supreme Court held that the filing of a suit and the issuance of summons ad respondendum 1 on October 27, 1949, was within the four-year statute of limitations for a tort which accrued on October 27, 1945. The court stated that where an act is to be performed within a specified period of time, the first day of the period is excluded from the computation and the last day of the period is included.

Mobil argues that the holding of McMillen v. Hamilton, supra, was superseded in 1974 by the passage of Section 95.031, Florida Statutes, which stated in part: 2

'95.031 Computation of time.--Except as...

To continue reading

Request your trial
14 practice notes
  • Pedzewick v. Foe, Civil Action No. 96-11341-WGY.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • February 28, 1997
    ...was nevertheless timely because the last day of the four year limitation period fell on a Sunday. See Moorey v. Eytchison & Hoppes, Inc., 338 So.2d 558, 559 (Fla.Dist.Ct. App.1976) ("Where the last day of a limitation period falls on a Saturday, Sunday or legal holiday the period runs until......
  • R.J. Reynolds Tobacco Co. v. Sheffield, Case No. 5D17-2521
    • United States
    • Court of Appeal of Florida (US)
    • February 8, 2019
    ...rule is that a cause of action for wrongful death accrues upon the date of the decedent's death."); Moorey v. Eytchison & Hoppes, Inc. , 338 So.2d 558, 559 (Fla. 2d DCA 1976) ("The cause of action for wrongful death accrues upon the date of the decedent's death."); Fletcher v. Dozier , 314 ......
  • Thorney v. Clough, No. 83-521
    • United States
    • Court of Appeal of Florida (US)
    • October 11, 1983
    ...day. 4 275 So.2d at 55. Accord Stockslager v. Daly Aluminum Products, Inc., 246 So.2d 97 (Fla.1971); Moorey v. Eytchison & Hoppes, Inc., 338 So.2d 558 (Fla. 2d DCA 1976) (where last day of limitations period for wrongful death action fell on a Saturday, amended complaint was timely filed on......
  • James Estate by James v. Martin Memorial Hosp., No. 81-1826
    • United States
    • Court of Appeal of Florida (US)
    • December 1, 1982
    ...316 So.2d 642 (Fla. 4th DCA 1975). See, e.g., Fletcher v. Dozier, 314 So.2d 241 (Fla. 3d DCA 1975); Moorey v. Eytchison & Hoppes, Inc., 338 So.2d 558 (Fla. 2d DCA 1976); St. Francis Hospital, Inc. v. Thompson, 159 Fla. 543, 31 So.2d 710 (1947). In Worrell v. John F. Kennedy Memorial Hospita......
  • Request a trial to view additional results
14 cases
  • Pedzewick v. Foe, Civil Action No. 96-11341-WGY.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • February 28, 1997
    ...was nevertheless timely because the last day of the four year limitation period fell on a Sunday. See Moorey v. Eytchison & Hoppes, Inc., 338 So.2d 558, 559 (Fla.Dist.Ct. App.1976) ("Where the last day of a limitation period falls on a Saturday, Sunday or legal holiday the period runs until......
  • R.J. Reynolds Tobacco Co. v. Sheffield, Case No. 5D17-2521
    • United States
    • Court of Appeal of Florida (US)
    • February 8, 2019
    ...rule is that a cause of action for wrongful death accrues upon the date of the decedent's death."); Moorey v. Eytchison & Hoppes, Inc. , 338 So.2d 558, 559 (Fla. 2d DCA 1976) ("The cause of action for wrongful death accrues upon the date of the decedent's death."); Fletcher v. Dozier , 314 ......
  • Thorney v. Clough, No. 83-521
    • United States
    • Court of Appeal of Florida (US)
    • October 11, 1983
    ...day. 4 275 So.2d at 55. Accord Stockslager v. Daly Aluminum Products, Inc., 246 So.2d 97 (Fla.1971); Moorey v. Eytchison & Hoppes, Inc., 338 So.2d 558 (Fla. 2d DCA 1976) (where last day of limitations period for wrongful death action fell on a Saturday, amended complaint was timely filed on......
  • James Estate by James v. Martin Memorial Hosp., No. 81-1826
    • United States
    • Court of Appeal of Florida (US)
    • December 1, 1982
    ...316 So.2d 642 (Fla. 4th DCA 1975). See, e.g., Fletcher v. Dozier, 314 So.2d 241 (Fla. 3d DCA 1975); Moorey v. Eytchison & Hoppes, Inc., 338 So.2d 558 (Fla. 2d DCA 1976); St. Francis Hospital, Inc. v. Thompson, 159 Fla. 543, 31 So.2d 710 (1947). In Worrell v. John F. Kennedy Memorial Hospita......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT