Boyle v. Dolan

120 So. 334, 97 Fla. 253

• Court: Supreme Court of Florida
• Decided: February 21, 1929
• Status: Published

Opinion

Per Curiam.

This writ of error was taken to a judgment for the defendant upon demurrer sustained to a declaration which alleges that the defendant invited the plaintiff to drive with him in his automobile; that plaintiff occepted the invitation; that defendant driving said automobile at a reckless and careless and dangerous rate of speed over plaintiff’s repeated objections and request to drive at a careful and prudent rate of speed, negligently and carelessly lost control of said automobile, and negligently and carelessly collided with another automobile. “Because of defendant’s recklessness, carelessness and negligence in the aforesaid collision,” plaintiff was injured, etc. The above and other pertinent allegations do not wholly fail to state a cause of action, therefore the demurrer to the declaration should have been overruled. See Carlton v. F. E. C. Ry. Co., 95 Fla., 596, 116 So. R. 870; Yon v. Pinellas County Power Co., 93 Fla. 503, 112 So. R. 50, and authorities cited.

Where a declaration does not wholly fail to state a cause of action, a demurrer thereto should not be sustained.

The judgment on demurrer sustained is reversed.

Terrell, C. J., and Whitfield, Ellis, Brown and Buford, J. J., concur.