Writ of error brings for review final judgment on demurrer sustained to declaration.
The judgment is:
"Plaintiff's declaration, as the court sees it, in view of the law in Florida as pronounced by the Supreme Court of Florida on the liability of the owner or occupant of premises for breach of duty to an invitee, fails to disclose any negligence on the part of defendant. The court is of the opinion that plaintiff has fully stated the situation and circumstances under which she sustained injury. The court is of the opinion that the declaration is beyond hope of amendment. *Page 252
"Without argument from counsel for either side, but the court being fully advised in the premises after research in the law, the court has reached the conclusion above stated.
"It Is Thereupon Ordered
"1. That defendant's demurrer to plaintiff's declaration be, and the same is hereby sustained.
"2. That plaintiff take nothing by her suit and that the defendant go hence without day.
"3. That defendant recover from plaintiff all costs of this action in the sum of $__________, to be taxed by the Clerk of this Court, for which let execution issue.
"Done and Ordered at Chambers, Miami, Florida, March 26, A. D. 1941."
The pertinent part of the declaration is set forth in the majority opinion.
While the declaration could be amended so as to more clearly state a cause of action, we construe it as alleging sufficient facts to show that plaintiff has a cause of action. Therefore, sustaining the demurrer of itself (while an order requiring an amendment would have been proper) was not reversible error, but plaintiff should have been allowed to amend. This right was cut off and precluded by that part of the judgment of the court wherein it was said: "The court is of the opinion that plaintiff has duly stated the situation and circumstances under which she sustained injury. The court is of the opinion that the declaration is beyond hope of amendment."
A Texas case which appears to us to be as near identical with this as one case may be with another with which it has no local connection is that of Walgreen Texas Co. v. Shivers, (Tex.Civ.App.)
In that case the declaration on a like cause of action was sustained as against demurrer, while judgment in favor of plaintiff was reversed on the other grounds.
We think the judgment should be reversed and the cause remanded with directions that plaintiff be allowed to file amended declaration and that other proceeding be had in accordance with law and practice.
WHITFIELD, J., concurs.
