
    Vincent GASPARRO, as parent, guardian and next friend of Julie Gasparro, a minor, Appellant, v. Marjorie HORNER and Elbon Kicklighter, Appellees.
    No. 70-115.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 1971.
    Rehearings Denied March 19, 1971.
    Michael R. Josephs, of Preddy, Haddad, Kutner & Hardy, Miami, for appellant.
    Frank M. Hamilton and Thomas B. Mimms, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee Kick-lighter.
   PER CURIAM.

Affirmed.

REED and OWEN, JJ., concur.

WALDEN, J., dissents, with opinion.

WALDEN, Judge

(dissenting).

This appeal concerns the application of the four-year Statute of Limitations (F.S. 95.11(4), Laws of 1964) to the tort claim of an infant, Julie Pastoría.

In March 1964 there was an automobile collision, Julie Pastoría, four years of age, was thereby orphaned and, in addition, suffered serious personal injuries. In November 1965 she was adopted. In April 1968 Julie’s adoptive parents filed a negligence suit against the defendants for Julie on account of her damages resulting from the collision.

The trial court decided that the limitation period began to run on the date of the accident and, therefore, ruled that the action was barred by the Statute of Limitations. Of course, the suit would have been timely had the statutory limitation period been measured beginning on the date of adoption.

Other than the mentioned adoption, Julie has not in fact had a parent, guardian, next friend or other legal representative capable of bringing a suit on her behalf. See 17 Fla.Jur., Infants, § 31 et seq.

Remembering that an infant is a ward of the court and that it is the court’s bounden duty to see that an infant’s rights and interests are protected, I would reverse. It is my conviction that the Statute of Limitations is not to be literally applied, without exception, in instances such as this. I feel and believe that the rule should be, since Florida currently is without a rule, that the Limitations Statute was suspended or tolled by reason of Julie’s disability of infancy coupled with her lack of a parent, guardian or next friend. In other words, the statute here began to run commencing on the date of her adoption, and not before.

At common law a child under seven cannot commit a crime. In Florida a child under six years of age is conclusively presumed as a matter of law to be incapable of committing contributory negligence. Swindell v. Hellkamp, Supreme Court of Florida, 242 So.2d 708, November 25, 1970. It seems grotesquely inconsistent to here rule that a four-year old orphan is bound to somehow go out and obtain a parent, a guardian, or a next friend and get them to file her suit within the limitation period under penalty of the forfeiture of her lawful claim for damages and recompense.

The statute is not always so strictly applied. For instance, it is tolled where the plaintiff does, in fact, suffer an injury and does not become aware of it. Also, where a right of action accrues after the death of the person entitled to sue, the statute does not begin to run until there is an administration of the estate and an administrator appointed. I submit that the analogy is clear. A cause of action does not accrue until the injured party has knowledge and there is a person in existence authorized and able to maintain the suit. New York Times Co. v. Conner, 5 Cir. 1961, 291 F. 2d 492.

The only Florida case touching even slightly upon the situation is Slaughter v. Tyler, 1936, 126 Fla. 515, 171 So. 320. It held that the Statute of Limitations did run against the claims of a minor, But, there the minor at all times had parents in existence and legally capable of prosecuting the minor’s action, which circumstance distinguishes that case from the instant problem.

To illustrate the manifest incongruity of the principle applied in the trial court and approved here, suppose that an airplane should crash in the jungle killing the parents and leaving their infant child as a survivor in the hands of savages. The statute would begin to run and if four years should elapse before the suit was filed the infant’s tort claim would be barred under such literal application of the limitation statute. This, despite the disability of infancy and the lack of a responsible person to bring an action for the infant. It reminds of the legal dilemma which might have been faced by the mythical founders of Rome, Romulus and Remus, who as infants were thrown into the Tiber River but rescued, suckled and raised by a she-wolf. Also, to like reflection is the well known fictional story of Burrough’s, Tarzan and the Apes, and Kipling’s Mowgli, the Jungle Boy.

About the supposition or proposition that a next friend could always have come forward in Julie’s behalf, it is true. It is also true that a court could have provided a guardian or a parent for Julie during the critical period. But, the fact is that no next of friend came forward and no guardian was appointed. We can test the soundness of such argument by employing simple logic: If it be contended that “a next friend could have brought suit,” this presupposes the existence of a next friend. This is not established as a matter of fact and hence must be presumed to be a matter of law, or in syllogistic form: (1) all minors have next friends, (2) Julie is a minor, * * *. Julie has a next friend. But the original premise is fallacious. There is no proof that all minors have next of friends nor that this particular minor has a next of friend. In fact the definition of next friend is to the contrary, for by definition a next friend is one who acts voluntarily on behalf of a minor, and since no one acted on her behalf we must conclude that Julie had no next friend. To put this logic in a practical framework, it is manifestly unfair to penalize an innocent child for the inaction of others, especially where there is no showing that those persons exist or were in any way under any duty, requirement, authorization, or direction to act. A next of friend is by definition volitional, where there is no volition, there is no next friend. Q.E.D.

In sum, the Statute of Limitations should be tolled as concerns the tort claim of an infant where and while such infant has neither parent, guardian, next friend, or other legal representative in existence capable of bringing suit for and on behalf of such minor.

I respectfully dissent from the majority decision to simply affirm, without opinion.

I would reverse.

ON REHEARING

REED, Judge.

On consideration of a timely petition for rehearing the same is denied and the conclusion of this court that an affirmance is required is adhered to; however, the per curiam decision to affirm is withdrawn and the following is substituted as the majority opinion.

Appellant was the plaintiff below, appel-lee Elbon Kicklighter was the defendant. On 3 March 1964 defendant Elbon Kick-lighter operating an automobile owned by one Marjorie Horner was involved in an intersectional collision with a vehicle containing lia Pastoría and her daughter, Julie Pastoría (now Julie Gasparro). lia Pas-toría was killed in the accident leaving Julie a minor orphan. She was adopted by the plaintiff, Vincent Gasparro, on 24 November 1965.

On 11 April 1968 Vincent Gasparro, as parent, guardian and next friend of Julie Gasparro, a minor, filed a complaint against the defendant Elbon Kicklighter and Majorie Horner for damages caused by the automobile accident which occurred more than four years prior to the commencement of the action. The complaint alleged that defendant Kicklighter negligently operated Horner’s automobile thereby injuring Julie Gasparro. Defendant Kicklighter filed his answer alleging as an affirmative defense that the four year statute of limitations, Section 95.11(4), F.S. 1967, F.S.A., had run. On 1 December 1969 defendant Kicklighter filed a motion for judgment on the pleadings. The trial court granted the motion and entered a final judgment on 14 January 1970 in favor of defendant Kicklighter from which the plaintiff appeals.

As stated by appellant the point on appeal is:

“Whether the trial court erred in ruling that the subject suit was barred by the statute of limitations.”

Section 95.11, F.S.1963, F.S.A. states: “Actions other than those for the recovery of real property can only be commenced as follows * * * (4) Within four years— any action for relief not specifically provided for in this chapter.” In Manning v. Serrano, Fla. 1957, 97 So.2d 688, the Florida Supreme Court held that the four year statute of limitations is applicable to negligence actions of the type now before the court.

The questions raised by the point on appeal are: (a) when did the cause of action accrue and, (b) did Julie Gasparro’s disability of infancy operate to suspend or toll the running of the statute of limitations.

As to when the cause of action accrued, in Seaboard Air Line Railroad Company v. Ford, Fla.1955, 92 So.2d 160, the Florida Supreme Court stated:

“Generally, in actions for personal injuries resulting from the wrongful act or negligence of another, the cause of action accrues and the statute begins to run from the time when the injury was first inflicted * * (Emphasis added.)

The plaintiff asserts that the cause of action did not accrue until Julie was adopted and, thus, she had four years from that date within which to bring suit. Plaintiff claims that since Julie was adopted in November 1965 her cause of action would not be barred until November 1969 and that the complaint filed in this cause in April 1968 was timely. Plaintiff cites New York Times Co. v. Conner, 5 Cir.1961, 291 F.2d 492 for the proposition that “accrue” means “becoming complete so that the aggrieved party can begin and prosecute such action.” However, suit could have been brought by Julie Gasparro by a “next friend” before she was adopted. FRCP 1.210(b), 30 F.S.A., states:

“ * * * If an infant or incompetent person does not have a duly appointed representative, he may sue by his next friend or by a guardian ad litem. (Emphasis added.)

Plaintiff seems to interpret that rule as requiring that a “next friend” be appointed by the court and suggests that a cause of action will not accrue until such appointment is made because until that time the infant cannot begin his action. But Florida law does not require that a next friend be “appointed” before he can act.

Plaintiff cites two Florida cases, Berger v. Jackson, 1945, 156 Fla. 251, 23 So.2d 265 and Matthews v. Matthews, Fla.App.1965, 177 So.2d 497, which hold that where a right of action accrues after the death of the person entitled to sue, the limitation period will not begin to run until there is an administrator of the estate. Plaintiff finds an analogy between those cases and this one; however, a legal distinction between the two situations is clear. Until an administrator is appointed there is no one authorized to sue; whereas, the infant’s cause of action at its inception is and, thereafter, remains in the infant. As in the present case, an infant, through a next friend, is at all times authorized to sue, even though no next friend comes forth and initiates such a suit on behalf of the infant.

We conclude that the plaintiff’s cause of action accrued when the injury was inflicted upon the plaintiff, i. e., the date of the accident, 3 March 1964, and not when the plaintiff was adopted.

As to whether the plaintiff’s disability of infancy operated to toll or suspend the running of the Statute of Limitations 51 Am.Jur.2d, Limitation of Actions § 138 (1970) states:

“While most courts give recognition to certain implied exceptions arising from necessity, it is now conceded that they will not, as a general rule, read into statutes of limitation an exception which has not been embodied therein, however reasonable such exception may seem and even though the exception would be an equitable one. The modern rule of construction in this respect is that unless some ground can be found in the statute for restraining or enlarging the meaning of its general words, it must receive a general construction, and the courts cannot arbitrarily subtract therefrom or add thereto. Undoubtedly a hardship will result in many cases under this rule, but the court may construe only the clear words of the statute, and if its scope is to be enlarged, the remedy should be legislative rather than judicial * * * »

A study of Chapter 95, F.S. reveals neither express nor implied terms which would by reason of infancy toll the running of the particular period of limitation here involved.

The court-made exception to the statute sought by the appellant and supported by the dissenting opinion cannot be claimed to rest on necessity. The minor here involved was adopted by the plaintiff approximately twenty-one months after the accident; therefore, the infant and the adoptive parent had approximately twenty-seven months thereafter within which to file the action in compliance with the statute. Our facts are thus distinguishable from the airplane-crash-in-the-jungle situation posited by the dissent. Were we to adopt the proposed exception, it would be solely for the purpose of relieving the hardship caused by the application of the statute of limitations to the minor’s claim. Such a hardship, however, is always present where rights are terminated by the statute of limitations. If we are authorized to relieve against it here, we are authorized to repeal the entire legislative enactment whenever we see fit. To state the proposition reveals its invalidity.

There is one Florida case clearly dealing with the disability of infancy as it relates to the statute of limitations in a personal injury action. In Slaughter v. Tyler, 1936, 126 Fla. 515, 171 So. 320, the Florida Supreme Court held that a minor’s malpractice action against a physician and surgeon was barred by the statute of limitations where not instituted within the appropriate period because, as to such an action, the statute of limitations was not tolled by reason of the plaintiff’s minority. Plaintiff claims that the present case is distinguishable in that in Slaughter v. Tyler, supra, the parents were alive, but here the plaintiff was parentless. Such distinction does not seem to us to require a different result because the maintenance of the action is not dependent upon the existence of parents.

Plaintiff has cited Lineberry v. Town of Mebane, 1941, 219 N.C. 257, 13 S.E.2d 429. That case is not applicable because there the court applied a common law rule which in Florida has been superceded by a comprehensive statutory scheme. The plaintiff also cites Suttle v. Marble Produce Co., 1934, 140 Kan. 13, 34 P.2d 116 and Murphy v. Village of Ft. Edward, 1915, 213 N.Y. 397, 107 N.E. 716, but these two cases stand for the proposition that early infancy excused compliance with a requirement that a notice of claim against a municipality be filed within a designated time. These cases of course deal with non-claim statutes which are distinct from the limitation act here involved.

For the foregoing reasons, we conclude that the trial judge did not err in granting a final judgment on the pleadings in favor of the defendant.

OWEN, J., concurs.

WALDEN, J., dissents, with opinion.

WALDEN, Judge

(dissenting).

In explanation of the seemingly backward sequence of procedural events, the majority affirmed without opinion when this appeal was originally submitted. Thereupon this writer filed a full dissent as herein found.

Upon receipt of a petition for rehearing containing nothing new the majority denied it but now decides to support their original decision with a written opinion. The backwardness comes when this majority opinion undertakes, at least in part, to answer and rebut the positions of the dissent opinion. This role and right to the last word traditionally belongs to the dissenter. Regardless, respectfully and in good humor this dissenter has now noted the contents of the majority opinion and chooses to simply stand by his dissent as initially filed.

I would grant the Petition for Rehearing for the reasons stated in the dissenting opinion.

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JANUARY TERM 1971
VINCENT GASPARRO, etc., Appellant, v. MARJORIE HORNER et al., Appellees. March 19, 1971.
CASE NO. 70-115.

ORDERED that appellant’s petition for rehearing, filed January 18, 1971, is hereby denied in accordance with the opinion filed March 17, 1971; further,

ORDERED that the opinion of this court filed January 8, 1971, is hereby certified to be one which passes upon a question of great public interest. F.A.R. 4.5(c) (6), 32 F.S.A.;

ORDERED that the question certified is as follows:

Does the four year Statute of Limitations (F.S. 95.11(4), Laws of 1964) bar the tort claim of an infant where during a critical portion of the period the infant lacks parents (natural and adoptive), a guardian, other legal representative, and where a next friend does not volunteer or evidence himself and come forward to initiate suit for the infant. 
      
      . “At common law an infant was under disability and without legal capacity to contract or to act in his own name in asserting a right in any legal proceeding. Ho could neither sue nor defend a suit in his own name. So long as he was without guardian limitations of time were tolled during the continuance of the disability. This common-law rule still prevails in this State, except as it may have been modified by statute.” Lineberry v. Town of Mebane, 1941, 219 N.C. 257, 13 S.E.2d 429 at 430.
     
      
      . Where at the time of x-ray treatment plaintiff was aware of nothing indicating any injury, statute of limitations respecting injury which first manifested itself approximately five years later, did not commence to run until plaintiff was first put upon notice that she had sustained an injury, or had reason to believe that her right of action had accrued. City of Miami v. Brooks, Fla. 1954, 70 So.2d 306. Where a beneficiary who filed her amended bill of complaint in an action on a life insurance policy in May 1935, had been ignorant of existence of policy until November 1930, when she commenced corresponding with the insurer, beneficiary’s action on policy was not barred by 5 year period of limitations notwithstanding insured died in March 1926. Franklin Life Ins. Co. v. Tharpe, 1938, 130 Fla. 546, 178 So. 300, reh. den. 131 Fla. 213, 179 So. 406. Inasmuch as plaintiff husband and wife could not have been aware of a cause of action sounding in negligence with respect to defendant physician’s female sterilization procedure until wife became pregnant, suit filed within two years after conception was timely, although it was filed more than four years after the procedure liad been performed by defendant. Vilord v. Jenkins, Fla.App.1969, 226 So. 2d 245. See also Miami Beach First Nat. Bank v. Edgerly, Fla.1960, 121 So.2d 417, 82 A.L.R.2d 927.
     
      
      . Section 734.27, F.S.1969, F.S.A.; Berger v. Jackson, 1945, 156 Fla. 251, 23 So. 2d 265.
     
      
      . “A next friend is one who, without being regularly appointed guardian, represents an infant plaintiff. * * * “It is not usual, unless a statute requires it, that a next friend should be appointed by the court, but the next friend of his own initiative commences the action and is under the supervision of the court.” Russiek v. Hicks, W.D.Mich. 1949, 85 F.Supp. 281, at 283.
     
      
      .See footnote 4.
     
      
      . N.B. Since this is a dissenting opinion and, therefore, without force, it is to be hoped that the legislature will recognize the hardship being accorded to infants under this court’s decision and that they will create a specific and express exception for them in the Statutes of Limitation. See 51 Am.Jur.2d, Limitations of Actions, § 182, which reflects that in practically all states such exceptions are provided.
     