Payne v. Ivey

Citations

• 83 Fla. 436
• 93 So. 143

Syllabus

<p>1. Where a defendant demurs generally to a declaration and the demurrer is overruled before a plea in abatement to the venue is filed, the right of the defendant to plead his .privilege as to the venue is waived, and a demurrer to the plea in abatement to the venue is properly sustained.</p> <p>2. A charge or instruction to the jury should not impose a greater burden upon either the plaintiff or the defendant than the law requires.</p> <p>3. In the absence of statutory or contract obligations imposing a greater duty as to the degree of care, prudence, foresight or attention that should be exercised by one to so use his own property as not to needlessly or unduly injure others, the rule is that ordinary care is required, or such care as ordinarily a person of average prudence would' give to a matter under the circumstances, where his own right and the rights of others are involved.</p> <p>4. In an action to recover damages for the destruction of a growing crop, a charge that authorizes damages to be predicated upon a finding of speculative production and profits is harmful error.</p> <p>On Petition for Rehearing.</p> <p>1. The proper function, of a petition for rehearing is to present to the court in clear, concise terms some material point that the court overlooked or failed to consider, only this and nothing more.</p> <p>2. The following are violations of the rule, that will cause a dismissal of an application for rehearing, viz: (1) To accompany the petition with, or to include therein, a written argument and citation of authorities; (2) Joining issue with the court in such application, as to the correctness of its conclusions upon points involved in its decision that were expressly considered and passed upon, and (3) An application for rehearing that re-argues the cause in advance of a permit from the court for such rehearing.</p>