Rickard v. Rickard
| Decision Date | 18 October 1967 |
| Docket Number | No. 67--139,67--139 |
| Citation | 203 So.2d 7 |
| Parties | Dwight C. RICKARD, an infant by and through his next friend, his father Cecil Ray Rickard, Appellant, v. Cecil Ray RICKARD and Elnora Rickard, husand and wife, Appellees. |
| Court | Florida District Court of Appeals |
Halley B. Lewis, Ft. Myers, for appellant.
James A. Franklin, Jr., of Henderson, Franklin, Starnes & Holt, Ft. Myers, for appellees.
This is an appeal by Dwight C. Rickard, an infant, by and through his next friend and father, Cecil Ray Rickard, plaintiff below, from a final order dismissing with prejudice the amended complaint filed against his parents.
We have the anomaly in this case of a minor child, by and through his next friend and father, suing his parents. There was an original complaint filed, to which the parents filed a motion to dismiss, which was granted. Amended complaint was thereupon filed, which the parents likewise moved to dismiss, resulting in an order of dismissal with prejudice.
The amended complaint alleged that on August 1, 1963, plaintiff infant Dwight was 7 years old and living with his parents in Pompano Beach, Florida; that on said date Dwight was playing with two other small boys and while 'squirting charcoal lighter fluid' one of the playmates struck a match and Dwight's clothing 'became engulfed in flames' from which Dwight suffered severe burns over a considerable portion of his body; that the accident 'resulted from the negligent and careless manner' in which the parents 'provided an unsafe place' for Dwight to play; and that the parents' said 'negligence' was the sole and proximate cause of the injury. Damages of $25,000.00 for the injuries aforesaid and the medical expenses incident thereto was claimed.
Motion to dismiss the amended complaint was filed by the parents, alleging failure to state a cause of action, that the Court lacked jurisdiction over the subject matter and over the defendants, and that there was improper venue. The motion also urged that 'a party cannot sue himsel', that such a suit 'is contrary to the public policy'; that the same parties cannot 'take both sides of the cause thereby eliminating any issue in the case', and that it affirmatively appeared on the face of the pleadings that the events took place 'in some county other than Hendry County.'
Attached to the original complaint is what appears to be a copy of a Homeowners Insurance policy covering physical loss of the dwelling and personalty of the parents and also insuring the parents against personal legal liability because of bodily injury to another. Nowhere does it appear that said 'policy' was attached to the complaint As an exhibit nor is there any mention whatever thereof in the complaint. The Court in granting the motion to dismiss the complaint, ordered that said document be stricken from the Court files.
Upon appeal to this Court it is contended that the trial Judge erred in dismissing the amended complaint and also in striking the document from the original complaint. We disagree and affirm.
It will be observed that the suit is predicated upon the theory that an infant child may sue his...
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Herzfeld v. Herzfeld, 98-362.
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