Parker v. City of Jacksonville
| Decision Date | 20 July 1955 |
| Citation | 82 So.2d 131 |
| Parties | Marie O. PARKER, widow of Morval E. Parker, deceased, Appellant, v. CITY OF JACKSONVILLE, Florida, a municipal corporation, Appellee. |
| Court | Florida Supreme Court |
Jepeway & Dauber, Miami, and George A. Pierce, Jacksonville, for appellant.
C. C. Howell, Jr., Luke G. Galant and Howell & Howell, Jacksonville, for appellee.
The sole question on this appeal is whether an action for wrongful death against a municipality must be instituted within the 12-month limitation period prescribed by Section 95.24, Fla.Stat.1953, F.S.A. The question arose in a suit brought by the plaintiff, as the widow of Morval E. Parker, deceased, to recover for the death of her husband allegedly caused by the negligence of the defendant city. The lower court held that her suit was barred by Section 95.24, and this appeal followed.
Section 95.24 is a general law applicable to all cities and villages of this state and provides in part as follows:
'(1) No action shall be brought against any city or village for any negligent or wrongful injury or damage to person or property unless brought within twelve months from the time of the injury or damages.'
It is the contention of the plaintiff here that this provision has no application to actions for wrongful death, as created by Sections 768.01 and 768.02, Fla.Stat.1953, F.S.A., and that such actions remain subject to the two-year limitations period specifically prescribed by Section 95.11(6), Fla.Stat.1953, F.S.A., for 'An action arising upon account of an act causing a wrongful death.' This contention must be sustained for the reasons hereinafter stated.
In Cristiani v. City of Sarasota, Fla.1953, 65 So.2d 878, 879, we interpreted Section 95.24 as meaning a negligent or wrongful "injury to person" or "damage to property". So the question here is whether an action for wrongful death falls within either of those two categories of tortious conduct. While this particular question has not heretofore been presented to this court, we have considered the question of the applicability to wrongful death actions of special charter provisions requiring notice to a municipality of a claim against a city for tortious injury prior to suit against the city on such claim. The underlying principle justifying such charter provisions was said, in Martineau v. City of Daytona Beach, Fla.1950, 47 So.2d 538, to be the same for and equally applicable to the short limitations period prescribed by Section 95.24 for suits against municipalities. It would appear, then, that the decisions of this court construing such special charter provisions should be, at least, persuasive, if not controlling, in our consideration of the question here presented.
In Marsh v. City of Miami, 1935, 119 Fla. 123, 160 So. 893, 894, the charter provision in question provided that 'no suit shall be maintained against the City for damages arising out of any tort, unless written notice of such claim was, within sixty (60) days after the day of receiving the injury alleged, given to the City Attorney * * *.' In holding that this provision did not apply to actions for wrongful death, the court said:
And in Doyle v. City of Coral Gables, 1948, 159 Fla. 802, 33 So.2d 41, we refused to apply a similar charter provision of the City of Coral Gables to an action for personal injuries due to the negligent operation of a city bus, where the complaint was grounded on the city's breach of an implied contract of safe carriage, and not on tort. Accord: Holbrook v. City of Sarasota, Fla.1952, 58 So.2d 862.
We have not overlooked the decisions of this court in Olivier v. City of St. Petersuburg, Fla.1953, 65 So.2d 71, and in High v. City of Jacksonville, 1906, 51 Fla. 207, 40 So. 1032. In the Olivier case, we were concerned with the sufficiency of a notice given in compliance with a charter provision requiring such notice as a condition precedent to suit against the city for 'damages arising out of any personal injury', and with the question of the constitutionality of the charter provision in question. No question was raised as to the applicability of such provision to an action for wrongful death. In the High case, we considered a charter provision which, as interpreted by this court in Marsh v. City of Miami, supra, applied to a suit for damages 'in any kind of an action against the city.' We do not interpret Section 95.24 as applying to all actions for damages, of whatever kind, against the city; it applies to "negligent...
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...East Coast Railway Co. v. McRoberts, 111 Fla. 278, 149 So. 631 (1933); Shiver v. Sessions, supra, 80 So.2d 905; Parker v. City of Jacksonville, 82 So.2d 131 (Fla.1955). In the Florida East Coast Railway case the plaintiff sought to recover in a wrongful death action the punitive damages whi......
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