Groover v. Hammond

Citations

• 73 Fla. 1155
• 75 So. 857

Syllabus

<p>1. Where one of the assignments of error is based upon the overruling of the demurrer to the declaration, the better practice is for the plaintiff in error to discuss such assignment first in his brief for the reason that, where there is no sufficient declaration in a case, and a demurrer should have been sustained thereto, the other questions in the record are not open for the consideration of the appellate court.</p> <p>2. While an assignment of error based upon the overruling of the demurrer interposed to the declaration is not required £o designate or specify the particular grounds of the demurrer relied on, the plaintiff in error will be confined to the grounds stated in the demurrer and argued in the appellate court, the grounds thereof not argued being treated as abandoned, the only exception thereto being where there is an omission in the declaration of allegations of substantive facts which are essential to a right of action, so that the declaration wholly fails to state a cause of action.</p> <p>3. Section 1448 of General Statutes of 1906 does not require that each count of a declaration should set forth the amount of damages claimed by the plaintiff, though there is no objection to so doing. It is sufficient compliance with the statute if the declaration concludes with a statement as to the amount of damages claimed by the plaintiff.</p> <p>4. In construing a declaration', if there are two intendments, it shall be taken most strongly against the plaintiff, but the intendments must be reasonable, not strained or forced.</p> <p>5. Conceding that, where the declaration, in an action at law seeking to recover damages alleged to have been occasioned by the negligence of the defendant, where such damages are not apportionable under the statute, shows upon its face that the plaintiff was guilty of contributory negligence, advantage thereof may be taken by demurrer, if the declaration fails to so show, it is not demurrable upon that ground.</p> <p>6. Where con