Collins v. Selighman Latz of Jacksonville

Supreme Court of Florida

Collins v. Selighman Latz of Jacksonville

38 So. 2d 132, 1948 Fla. LEXIS 1038

CourtSupreme Court of Florida

DecidedJune 8, 1948

StatusPublished

Cited by1 cases

This text of 38 So. 2d 132 (Collins v. Selighman Latz of Jacksonville) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Collins v. Selighman Latz of Jacksonville, 38 So. 2d 132, 1948 Fla. LEXIS 1038 (Fla. 1948).

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Action by Nettie R. Collins against Selighman Latz of Jacksonville, Inc., a corporation, to recover for injury to plaintiff's scalp because of the application by defendants of a lacquer to plaintiff's hair. From an order sustaining defendant's demurrer to the amended declaration, the plaintiff appeals.

Reversed. The question presented by this appeal is whether the Circuit Judge erred in sustaining the demurrer to the amended declaration and entering a final judgment against the plaintiff. An inspection of the amended declaration discloses that the plaintiff failed to allege as a matter of fact that the lacquer which it is alleged the defendant used upon the plaintiff's hair would, if allowed to come into contact with the scalp, have a harmful and injurious effect thereon. The amended declaration contains an allegation "that the defendant knew, or by the exercise of reasonable care and diligence ought to have known, that the said lacquer would, if allowed to come into contact with the scalp, have a harmful and injurious effect thereon and would thereby injure and harm the hair by reason of its effect upon the scalp." This allegation is not a positive averment that the said lacquer would have a harmful and injurious effect if allowed to come into contact with the scalp.

From said allegation it might be inferred or deduced that it is a fact the *Page 133 lacquer used by the defendant would, if allowed to come into contact with the scalp, have a harmful and injurious effect thereon and would thereby injure and harm the hair. Neither innuendo nor intendment is a legally sufficient substitute for an allegation of ultimate fact.

The order sustaining the demurrer to the amended declaration should be, and it is hereby affirmed, with directions however, to the Circuit Judge that he shall allow the plaintiff a reasonable length of time within which to amend her declaration as she may be advised.

Affirmed with directions.

THOMAS, C.J., and ADAMS and SEBRING, JJ., concur.

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Action by Nettie R. Collins against Selighman Latz of Jacksonville, Inc., a corporation, to recover for injury to plaintiff's scalp because of the application by defendants of a lacquer to plaintiff's hair. From an order sustaining defendant's demurrer to the amended declaration, the plaintiff appeals.

Reversed. The question presented by this appeal is whether the Circuit Judge erred in sustaining the demurrer to the amended declaration and entering a final judgment against the plaintiff. An inspection of the amended declaration discloses that the plaintiff failed to allege as a matter of fact that the lacquer which it is alleged the defendant used upon the plaintiff's hair would, if allowed to come into contact with the scalp, have a harmful and injurious effect thereon. The amended declaration contains an allegation "that the defendant knew, or by the exercise of reasonable care and diligence ought to have known, that the said lacquer would, if allowed to come into contact with the scalp, have a harmful and injurious effect thereon and would thereby injure and harm the hair by reason of its effect upon the scalp." This allegation is not a positive averment that the said lacquer would have a harmful and injurious effect if allowed to come into contact with the scalp.

From said allegation it might be inferred or deduced that it is a fact the *Page 133 lacquer used by the defendant would, if allowed to come into contact with the scalp, have a harmful and injurious effect thereon and would thereby injure and harm the hair. Neither innuendo nor intendment is a legally sufficient substitute for an allegation of ultimate fact.

The order sustaining the demurrer to the amended declaration should be, and it is hereby affirmed, with directions however, to the Circuit Judge that he shall allow the plaintiff a reasonable length of time within which to amend her declaration as she may be advised.

Affirmed with directions.

THOMAS, C.J., and ADAMS and SEBRING, JJ., concur.

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38 So. 2d 132, 1948 Fla. LEXIS 1038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-selighman-latz-of-jacksonville-fla-1948.

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