*1 dismissal, in the and even if error was committed judge, to mandamus the circuit compel judge to cannot used vacate the the writ of orders of dismissal reinstate Apparent error. are The Civil laches not considered. pend- Court of Record been abolished cases and the having in such court the circuit transferred to ing. having court, granted the case in trial was in the which new Court of Record now circuit Civil case pending the. appropriate proceedings. court for Peremptory writ denied. Brown
Ellis, Terrell, J., concur. Buford, J. J.,C. Davis, specially. concurs Davis, C. (concurring). return circuit J. —-The judge alternative writ this case that the shows writ of error from the judgment Civil of Record Court was sued out to the Circuit Court of Hillsborough County, 22nd, 1931, prior 15666, date Chapter which June 1931, Acts of took effect. Under our Atkinson, decision in State ex rel. Rifas v. 1028, 102 Fla. 266, Sou. Chapter Acts 1931, does apply error any writ sued out before Chapter 15666, took effect. supra, Therefore the per emptory writ of should be mandamus denied attempting coerce proceed judge circuit under a statute having application no the particular writ of error dismissed an signed order one circuit only judge. Ry. Co. W. C. McRoberts. East Coast
Division A. Filed
Opinion July 1933. Denied Rehearing August 1933. *2 Anderson, Lamb, P. Robert H-. J. John H. Summerlin and ' ' Error; Plaintiff Walton, J. V. Defendant in Error.. brought Davis, C. an action for J. below, statute, McRoberts,
under the plaintiff W. C. wife, for the recovered alleged wrongful death of his defendant, Coast Rail- judgment against Florida East $22,500.00. Company, in the error way sum of Writ of the case Court. brings to this trial, the At the with the consent of railway company, declaration, the Court, pleas withdrew its *3 enter, case, and asked the court to the the merits of it. against default entered and accordingly Default was proceeded the case before the as an inquest of jury to be allowed for the wrongful death admitted perpetrated the by negligence the defendant. of trial
As the about proceed, was counsel for the railway company objected to the the reading jury, counsel for by plaintiff, of his third count of declaration. The ground objection of the third solely was that related count action, in the recovery of pending exemplary dam- ages. Such damages, counsel for the so defendant urged as ground objection, of could his not recovered for death, wrongful Florida statute. The trial judge objection. overruled the excepted. Defendant that And throughout so was hearing before the jury, railway defendant company from time time re- newed upon objection and insisted that an its action for death, wrongful punitive or exemplary were recoverable. in each But instánce objections were over- ruled, trial, the conclusion of and at the circuit judge effect, to the contrary charged jury while re- denying proposed charges by for quested defendant the purpose of in line with instructing jury defendant’s contentions. error writ of question this presented So by sole us Death whether or Wrongful is not under S., L.) G. Statute 4960-4961 G. 7047-7048 C. (Sections damages are exemplary punitive or recoverable wliere' facts before the recovery the case would warrant jury of death of exemplary such had no damages, or proved. connection it ensued from negligence this for the appropriate point purpose to state at this that error, railway this it' is conceded counsel for the by writ for sufficient factual basis company recovery evidence, in his plaintiff laid exemplary by provided be determined an action it should death, wrongful damages are matter such recoverable as a of law. recovery subject wrong- Florida statute on the death,
ful reads follows: “Whenever any person State shall be act, wrongful negligence, caused carelessness de- or individuals, fauls of individual the wrongful or or any act, or negligence, carelessness of any corporation, default act, carelessness, negligence, or default any any corporation, agent acting his capacity agent act, corporation (or the wrongful negli- gence, carelessness or default of ship,' vessel or boat *4 any act, persons thereon), or employed care- negligence, default, would, or is lessness such if death ensued, have entitled the injured party main- thereby to an tain action in (or proceed rem against the ship, said boat, or in vessel or personam against thereof, the owners having or those control of' her) and to recover in damages thereof, then respect and in case every such or person who, persons corporation (or or ship, vessel boat), or in which liable would damages if death had not 282
ensued, a (or if shall be an for damages liable to rem, boat, owners those vessel or libel in and her ship, act, carelessness or responsible for wrongful negligence, her default, death notwithstanding the libel in personam), to a shall have death person injured, although of in been caused amount law under circumstances such 1883, 6913, 1; felony. 3429, May (Ch. Sec. Ch. to a Acts 28, 1915, Sec. 1).” common afforded no remedy law
wrongful purely act. Hence are right remedy Foxworth, statutory. P. Fla. Florida Cent. & v.Co. 149; 338, Rep. St. Rep. Sou. Am. Flanders Co., 68 Fla. 67 Sou. Georgia Southern & F. R. 68. those where supply In order the want a in cases remedy acts in the injured death of the negligent party, resulted in Act in an England, year there was enacted Campbell’s Act.” This law Parliament known as “Lord the first time a action for provided right for' death by (cid:127) Act, time, act. Since Lord Campbell’s forms, has been various enacted in substantially every State States, one. except United a remedy Louisiana equivalent import provided is course according to the law civil prevails which that State. law, Actual are damages recoverable at out of wrong- doer as a injured matter party right. Such compensation are damages recoverable as for the actual loss an injured sustained reason party tort wrongdoing. It is not so as punitive damages. feasor’s Punitive over are and above such sum as compensate person will his actual loss. And the law cases, imposition, proper their permits at the discretion injured not because the entitled jury, party right, recover a matter law to
283 punishment wrongdoer, but as the for the purpose to him others deterring committing similar violations law, in the future. Therefore wrongdoing are, said, it has been exemplary allowed by law, not as matter compensation injured party, because but done quality wrong tort feasor, injured from which the suffers. Bowles v. party 555, 5 Lowery, App. Rep. Ala. 59 Sou. 696. established,
So it be said may well both England United as a States, principle of the common law, in all for torts may actions be authorized jury punitive what are to inflict called view damages, having enormity offense which occasioned the injury, has rather than the compensation measure of awarded to Woodworth, plaintiff therefor. v. 13 Day Howard 363, 181; 14 Ed. (U. S.) L. Florida v. & Nav. Co. Ry. Webster, 394, 25 5 714; Fla. Rep. Sou. Ry. Florida Sou. Hirst, 1, 17, v. 11 Rep. 506, Co. 30 Fla. Sou. 32 A. St. Rep. 631; A. 16 R. Florida R L. Cent. & P. Co. v. 40 Mooney, same, 148; Fla. Rep. Sou. 45 Fla. Rep. Sou. 1010; Schumacher, v. East Coast Co. 63 Fla. 137, 57 603; Sou. v. Rep. Lbr. Co. 62 Fla. Dowling King, 151, 57 Sou. 337.*
In cases of injury person, in addition the right physical of action of party receiving re- injury to therefor, cover compensatory, or even causes of action sometimes to persons accrued who stood master, relation party, parent injured Chantly, Rep. 838, Fla. good 145 Sou. *Vamvaks is a permitting punitive damages illustration of rule be re- deterring wrongdoing. as a covered tort actions means of case, recovery $25,000.00 willful seduction theory. was sustained on this wife *6 husband, loss damages for of' recovery by for .latter maxim, moritur “auto society. personalis or of services ” by recoverable application cum persona no loss services for the of description the latter persons.of is, death, during before that place which took society dissolu- a fatal and actual injury time period intervening of English cases of the leading tion. was holding Such in 1846. Campbell’s Lord Act passage that antedated of rule common law English find that Consequently we Butcher, 1 in Yelver- Higgins case v. early originating 89, 1606, ton Lord Ellenbor- by decided in and reaffirmed 493, Bolton, Camp. in case Baker decided v. ough in an action in the effect definitely was one negligence against injuring for so brought severely within comparatively wife that she died short thereafter, only permissible time the action recovery the plaintiff, was the loss of the wife’s society to his account, mind her the time acci- distress dissolution. Where wife’s moment dent instantaneous, at all negligent recovery was no could had,, since the rule personalis moritur” applied "actio circumstances, the deceased and right, no otherwise, to the husband. could accrue surviving Whatever been the may justice wisdom or rule, been common law as it had early in Higgins declared Butcher, v. and later restated supra, without serious chal- correctness, lenge Bolton, in Baker its v. the fact supra-, that the rule of the remains common law was finally as it be-, Bolton, epitomized Baker v. by Ellenborough, Lord came was recognized part State Florida, law and was regarded common so our by Legis- change lature when undertook rule it the enact- Chapter ment Acts which subsequently
'285 S., L., death became Section 7047 C. G. G. —our act statute.* text AVhile jurists it has many observed writers the common Ellenborough’s that Lord statement of Bolton, law rule Baker just supra, referred to made by giving him attempt support without any *7 reasons, his authority nor the citation pur- him of any' by the existence law rule to of common porting justify any as was then nevertheless him, declared his statement by case, law of applicable that such was that has in accepted then in subsequent since all nearly Eng- cases in land well this is now country. it Consequently dec- acknowledged to be a final and authoritative generally what, laration law rule on of subject common husband, if of be any, recovery damages may had aby of alleged brought case of the death his wife have been by wrongful about act. of And as conclusive another’s what be common rule in this should be declared to law State, feels impelled Court Ellenbor- accept this Lord Bolton, summarization Baker ough’s as a correct supra, Florida, statute any statement of the common law of absent for a sue for of sus- providing right recovery for suffered damages alleged tained to have been suits wrongful a death act. by by
Since, law, at common there was no rule recognized death, for wrongful kind of allowing any solely —that L., S., G. *Section C. G. as follows: reads “The common n whichare England general and statute laws not a local nature, exception mentioned, hereinafter with to the down day July, 1776, hereby fourth declared to are force in Provided, this State: the said statutes law common be not with inconsistent the Constitution and laws of the United States Legislature (Nov. 6, and the Acts of of this State 1).” Sec. damage permanent for the say, recovery allowing is itself, wrongful death by the and loss occasioned necessarily effect because suffered from the distinguished loss negli- aby about injury disability brought of a physical adoption manifest that the think is gent injury, —we not State did staute this death act wrongful to, an exception create adoption merely repeal, nor did' its pro- persona,” by cum rule of "cum moritur personalis de- action which right for survival of viding been simply have maintained he party might ceased reason lived. We think that is so injured, and is main- action for that the statutory sue, for the recovery tainable entitled to party sue in the stead of permitted those who are deceased, for the recovery himself, and, survival hence resulted to the deceased estate, statute but maintainable only his for the compensation resulting loss recovery *8 beneficiaries, when occasioned to such statutory beneficiaries deceased, complained the death of. not to the by an action for provides The fact that the statute that statutory the wrongful death can be maintained by act by wrongful death has been alleged beneficiaries when the only would have entitled caused under circumstances the lived, is an action he injured himself to maintain had party on, of, the statu- a and a limitation new simply regulation right of action created. tory S., L., 4960-4961 7047-7048 Sections R. G. C. G. —the Statutes, Florida Death Act Wrongful purport do by not killed representatives person transfer statutory act, wrongful right another’s which the have for he injured party might maintained his injury lived, statutory represent- those sections to such give but atives, terms, conditions and limitations subject to
287 statute, right wrongful of action for the totally new death, Mid See Blake principles. on different v. that Co., 562; 93, 233; B. 21 B. 16 land 18 Ry. Q. L. Q. Jur. J. 599, Co., 1 D. 45 v. Northern B. Leggott Ry. Q. Great Q. 557, 334, 784; L. B. 24 R. 30 L. Whitford v. T. W. J. Co., 37 465; Panama R. 23 Sunbury, N. Russell v. Ohio Y. 176, 372, St. 41 125 Ind. 523; Jones, Hamilton Rep. Am. v. 77, Co., 25 7 Rep. 192; N. E. Mason Union Utah Ry. v. Pac. 24 Rep. Pac. 796. irrefutable, seen this that the
Having conclusion is grant a right statutes new of action for death by wrongful act, not a continuation merely way old one by of a substituted form of action in favor deceased’s representatives, recovery particular deceased himself might have recovered reason died, wrongful injuries infliction of from which he would seem clear to be on if there principle, no were au on the thority subject, exemplary, or vindic ative cannot be recovered those whom statute suit, vests with nor for authority bring recovery deceased himself entitled might become recover, but for recovery by statutory plaintiffs, of compensation person injured act another. default of See inti what decided, mated if subject, in the cases actually Hunt, 85, Duval v. 34 876; Fla. 15 Rep. Sou. Florida Foxworth, Fla. 1, Cent. & P. R. 41 338; Co. v. 25 Rep. Sou. 278, 45 270; Fla. 34 Rep. Sou. Electric Co. v. Jacksonville Bowden, 54 755; Fla. Rep. Sou. East Coast Ry. Hayes, 67 Co. Rep. 504; Marianna Sou. Fla. & B. 83May, 553; Co. v. Fla. Sou. Southern *9 Davis, 683; Co. v. Fla. 92 Sou. Rep. Utilities Dina A. L. S. Co. 90 Fla. Ry. 106 Sou. 416. See what also is said subject general in Tiffany’s 328; 8 R. L. Wrongful
Death Act C. (2nd Ed.) section 120. 7048 G.C. statute (Section Florida language
L., actions 4961 R. effect that in S.)G. to the “party damages such as give” death shall jury “the reason of the may entitled sue have sustained parties are damages implies punitive killed” party An examination us consideration. from excluded States Union substan of the statutes the various Camp original Lord language following tially wherein the all of them nearly bell’s discloses Act been con raised, judicially been statutes point has or ex recovery strued authorizing entitled to sue them. parties damages by emplary in error’s brief plaintiff giving from copied A table statutes, what these decided has classification them, the margin.* set forth respecting original substantially I: *Class Statutes which follow may Campbell’s providing jury Lord that “the Act' such, give may proportioned they think resulting injury to'the death.” such Class II: Statutes fix the maximum . which amount of jury may award. expressly authorizing punitive damages. Class III: Statutes substantially original Class I: Statutes which follow Campbell’s jury may providing Lord Act that “the give may proportioned they think injury resulting to the from such death”: Damages State Punitive Authorised Arizona ............................................................ .............................,.............................. Arkansas Yes California .........................................................No Colorado ........................................................'.... No Delaware ............................................................ No ............................,................................... Georgia ............................................................ No *10 The Court, facts the case before now shown by bill exceptions, were follows:
Prior to 1925 the Company Florida East Coast Railway operated .a single-track Key railroad Jacksonville West, Florida. The main line ran from Augustine St. East Palatka and back on to Bunnell and down coast. In 1925 it double-tracked main line its between Jacksonville and Miami so Palatka doing eliminated con- structing cut-off between St. Bun- Augustine and directly nell, thereby miles. saving twenty some After this time the service out into Palatka handled a local St; Bunnell, train between moving via that Augustine point. Bunnell When train reached there way was no Palatka, to turn around far it backed up so n distance twenty-six miles. 3rd, On May passenger wife was a (No. this train Bunnell to East Palatka. 46) from
Idaho ................
Illinois ............... ....... No ................... ....... No Iowa ................ Kansas ....... No ............... No ....... Maine Maryland ........... ....... No Michigan ............ Doubtful ............ Nebraska ....... No Hampshire New ....... No Jersey ....... New ....... No ........ New York ....... No North Carolina ....... No .... North ....... Dakota No .................... .......' No Ohio Oklahoma ........ ....... No Pennsylvania No ....... ... Rhode Island ....... No .... ....... South No Dakota ........ Tennessee Yes ....... *11 time, 6:10 M. It Bunnell was train schedule at A. left prac- in accordance with its invariable backing northwardly a miles it was struck couple When of tice. proceeded riding McRoberts by a south-bound train. Mrs. was freight in the car her life accident. foremost and lost the plaintiff against railway company, his He negligence. as constituting set facts up foregoing claimed, damages, deprivation way compensatory of and' services companionship, consolation society, wife, as expert lier care attention nurse a trained his alleged her which he he accustomed earnings was large receive and the which he was and entitled to benefits He made enjoy. accustomed to' also claim mental In the abandoned it trial. third anguish but at count negligence was with as charged gross defendant basis punitive damages. a claim for protest, defendant’s jury; over was instructed that from evidence negligence if it found that the the' gross authorized they defendant was were to award damages. No ....................................................................
Utah Vermont ............................................................ No Virginia ............................................................ Yes Washington No .................................................... Virginia West ................................................ Yes Wisconsin ........................................................ No Wyoming --------------------------------Probablyyes—Dicta Class II: Statutes which fix the amount maximum jury may award: Damages State Punitive Limit Authorized ....................Probably yes Connecticut $10,000 5,000 Colorado ............... ........................No Illinois ............... .....................:......No 10,000 10,000 Indiana ............... ............................No That the jury negligence found the evidence that railway company causing plaintiff’s wife the death of gross, that they punitive damages was awarded himto as authorized the trial rulings instructions and court, verdict evident from return of awarding damages-the $22,500.00. his sum re- That amount out, because, covery pointed unauthorized we have been punitive damages should have from the jury’s excluded consideration. likewise their allowance And should not returned, permitted to stand the verdict specific face of point. a motion for a new trial raising L., S., Section 4640 2921 R. C. G. follows: G. reads *12 “Hereafter a appellate court judgment an reversing . lower it for review of error brought a court before by writ reversal, may, the if error for re- order of the which by require versal a new trial sought is is such as to below, a new trial on the court direct that shall be had a upon part shown record or of such all the issues is when a reversal had with only, and direction issues (women only) —Yes (cid:127)Iowa 15.000 Kansas ............................Ño 10.000 Maine................................No 5.000 Massachusetts ................Yes 10.000 7,500 ....... Minnesota No Missouri ........................Yes 10,000 Oregon ............................No 10,000 South Dakota ................No 10,000 Virginia ........................-Yes 10,000 Virginia West ................Yes 10,000 Wisconsin ........................No 10,000 expressly HI: authorizing Class .Statutes damages: Alabama, (Sec. 6302), (women Colorado only), Iowa Kentucky, Massachusetts, Missouri, Mississippi, ' Montana, Nevada, Mexico, New Carolina, South Texas. issues, all a part be had only on a'new.trial conclusively be other shall be settled issues deemed to error (Ch. favor of defendant in June 1).” Sec. has Court statute, Supreme
Under the foregoing error as when new correct an ordering trial to authority a shall new trial to which reversal direct sought, is that record, be on all upon issues shown issues, the case part only right justice as the demand. may case, was plaintiff’s right recover this the trial.
expressly below at admitted defendant indeed, And, the bar admission at the same made We argument. oral Court course during is therefore an appropriate consider that while this case awarded, wherein a trial should that such new trial new be be onlyi should be awarded amount plaintiff, allowed all should deemed other issues from, settled favor appealed judgment conclusively defendant in error. accordingly verdict aside and a jury set damages, new trial question awarded direc- with from the on a subsequent tions to exclude trial of jury issue, instructions all evidence jury *13 plaintiff right effect has to recover or any exemplary an punitive as element of In all recovery. his respects plaintiff’s against other the defendant judgment all the adjudicated thereby except 'and issues amount and the cause damages, affirmed remanded for further to be had law. proceedings according to damages, trial as to cause
New awarded and remanded for directions. proceedings, further with J., Ellis, Terrell, Whitfield, Buford, Brown J. concur. Rehearing.
On Petition principle well Curiam. At common law Per settled that an personal injuries action for dies with the injured party. common law Assuming that necessarily personal inflicted willfully wantonly injury with the right carried to recover compensatory damages the further or incidental recover right punitive well, punitive were per- thus assuming mitted wrongdoer, because against recovered the law’s society, rule protect desire to same principal right common law which caused the of action to the injured party die with also caused die the action with right the incidental The punitive damages. common law right punitive damages to recover an having accrued incident to the recover right injured party to case, inflicted tortious injury the death injured right both of action inci- party caused and the died, dents die time. at same And once having our holding language is that statute a new creating death, action for statutory negatives affirmatively the idea that are punitive damages considered an be. incident damages allowed for the new statutory to the cause of action. default admitted cause of but not the
damages,
claimed
damage count of the dec
Estates,
laration. St. Lucie
Inc. v. Palm Beach Plumbing
Co.,
Sup.
101 Fla.
841;
Gilbert,
Sou.
Russ v.
Seat,
54;
Watson v.
Davis, Whitfield, Terrell, Brown and Bu- J., concur. ford, J.