54 Fla. 461 | Fla. | 1907
Lead Opinion
— Wallace G. Bowden,- as administrator of the estate of Reuben Bowden, deceased, brought an action against the Jacksonville Electric Company in the circuit court of Duval county, to recover damages for the alleged wrongful killing of plaintiff’s intestate by the negligent operation of -the defendant’s electric street cars. The declaration -contained five counts alleging different phases of. negligence, each count alleging that the deceased left surviving him neither widow, nor minor child, nor any one dependent on him for a support.
A demurrer to the evidence interposed by the defendant was overruled. The jury returned a verdict for $1,000, for which judgment was entered, and from this judgment the defendant seeks relief here by writ of error.
At the trial the court gave the following charge which was duly excepted to by the defendant electric company and is assigned as error: “If you find for the plaintiff it is your duty in assessing the damages to award plaintiff such sum as you find from the evidence, the deceased, Reuben Bowden, would have accumulated during his natural life, taking into account his age, habits, health, mental and physical capacity and ability, his probable life expectancy, his probable net earnings, after he would have reached the age of twenty one years. The sum total of all these elements to be reduced to a money value and its present worth be given as damages.”
Counsel for the plaintiff in error state in their brief that the question presented on this writ of error is: “What is the measure of damages under the statutes of this state in a suit by an administrator to recover damages for the death of his intestate.” And in arguing that the charge above quoted is erroneous it is asserted in the brief that: “if the charge states correctly the measure of damages in a suit of this character, this judgment should be.affirmed.”
It is contended that the charge is erroneous because under the peculiar provisions of the statute of this state, the recovery by an administrator for the death of his decedent by the wrongful act of another should be limited to the debts of the decedent at the time of his death,
The right of the administrator of the deceased minor to maintain this action has been adjudicated in Bowden v. Jacksonville Electric Co., 51 Fla. 152, 41 South. Rep. 400; and such adjudication is the law of this case on that point. Louisville & Nashville Ry. Co. v. Jones, 50 Fla. 225, 39 South. Rep. 485; Hoodless v. Jernigan, 51 Fla. 211, 41 South. Rep. 194.
The matters to be determined on this writ of error are the nature, beneficiaries and value of the right given by the statute to an administrator to recover damages sustained by such administrator in his representative capacity by reason of the death of his decedent by the wrongful act or default of the defendant corporation.
The common law afforded no right of action to any one for damages resulting from the death of a person by the wrongful act or default of another, and statutes giving such rights should not be extended beyond the meaning of the terms used; yet such statutes are remedial in their nature, and they should, when sufficient for the purpose, be so construed as to afford the remedy clearly designed. See 12 Cyc. 312, and authorities cited; Gootlieb v. North Jersey St. R. Co., 72 N. J. L. (43 Vroom) 480, 63 Atl. Rep. 339; Perham v. Portland Elec. Co., 33 Ore. 451, 53 Pac. Rep. 14, 24 S. C. 72 Am. St. Rep. 730; Lamphear v. Buckingham, 33 Conn. 237; Kearney Electric Co. v. Laughlin, 45 Neb. 390, 63 N. W. Rep. 941; Hayes v. Williams, 17 Colo. 465; Stewart v. B. & O. Ry., 168 U. S. 445, 448, 18 Sup. Ct. Rep. 105; Merkle v. Bennington Tp., 58 Mich. 156, 24 N. W. Rep. 776; Bolinger v. St. Paul & D. R. Co., 36 Minn. 418, 31 N. W. Rep. 856; Haggerty v. Central R. R. Co., 31 N. J. L„ 349; Soule v. New York & New Haven R. R. Co., 24 Conn. 575.
The statute provides that whenever the death of any person in this state shall be caused by the wrongful act, negligence, carelessness or default of another person or a corporation or its agent, and the act, negligence, carelessness or default is such as would, if death had not ensued, have entitled the party injured to maintain an action for damages in respect thereof, then the person or corporation that would have been liable in damages if death had not ensued, shall be liable to an action for damages though the act be a felony. Every such action shall be brought in the name of the widow or husband, and if there be no widow or husband, then in the name of the minor child or children of the deceased, and if there be neither widow or husband nor minor children,’ then in the name of any person or persons dependent on the person killed for a support; and where there are none of these classes “then "the action may be maintained by the executor or administrator, as the case may be, of the person so killed; and in every such action the jury shall give such damages as the party or parties entitled to sue may have sustained by reason of the death of the party killed.” Sections 2342, 2343 Revised Statutes of 1892, sections 3145, 3146 General Statutes of 1906.
Where a person is killed by the wrongful act or
The widow or husband or minor children or dependents as mentioned by the statute do not represent the decedent or the estate of the decedent, as to rights of action of this character; and the right of action giyen to the widow or husband, minor children or dependents is not a survival of the decedent’s right of action to recover for the personal injury, nor is it an asset of the decedent’s estate; but it is a primary individual asset or right of action and of recovery belonging to the party to whom it is given, to recover for individual uses the damages such party may have sustained by reason of the death of the decedent.
The evident purpose of the statute is to make the right of recovery it gives in the name of and for the benefit of the widow or husband, minor children and dependents no part of the assets of the decedent’s estate. Unless otherwise expressly provided, as is done in the statutes of many of the states where the beneficiaries for whom the administrator is authorized to bring the action are specifically named, the administrator as such can recover only for the benefit of the decedent’s estate.
The administrator as the legal representative of the estate sustains no damage by reason of the death of the
While an administrator of the decedent’s estate owes
If the right of action given to the administrator is an asset of his decedent’s estate, it is the right and duty of the administrator to reduce its value to possession, therefore the value of 'the right of action is to be determined.
When the estate of a decedent is the beneficiary of a right of action given to the administrator, the value of the right and the authority of the administrator to reduce such value to possession, do not depend upon the existence or non-existence of liabilities of the estate; nor do the right and duty of the administrator depend upon the sufficiency or the insufficiency of the other assets of the estate to pay the debts of the decedent. The statute does not make the right of action or the duty of the administrator so dependent. If a right of action for damages exists as an asset of the estate of a decedent, the party against whom the right of action exists cannot
If the party injured by the wrongful act or default of another had lived, he would have had a right of action for the injuries he sustained. As death ensued from' the wrongful act, and, as a liability for the damages the estate may have sustained by reason of. the death is imposed by the statute on the wrong-doer, and a right of action therefor is given to the administrator as such, it is 'his right and duty to reduce to possession the value of the right so given and to make disposition of it as the law directs.
When the administrator has a right of action under the statute the recovery should be the pecuniary value at 'the decedent’s death of the prospective earnings and savings from the evidence could reasonably have been expected but for the death of the decedent. Louisville & N. R. Co. v. Trammell, 93 Ala. 350, 9 South. Rep. 870.
The widow or husband, minor children, dependents and administrator in the order of priority has or have each for himself or herself the right of action and recovery upon the same basis or measure of right, to-wit, pecuniary compensation, from' the person or corporation whose wrongful act or default caused the death of the decedent, for “such damages as the party or parties entitled to sue may have sustained by reason of the death
In the nature of things an exact and uniform rule for measuring the value of the life of a deceased person to designated beneficiaries or to his estate is not practicable if possible. The elements which enter into the value of a life to the estate of a deceased person are so various and contingent that they must be left under proper instructions from the court to the determination of the jury based- on proper testimony applicable to the particular case. The jury have no arbitrary discretion, but among other proper elements they may consider evidence as to the age, probable duration of life, habits of industry, means, business, earnings, health and skill of the deceased, and his reasonable future expectations. See 13 Cyc. 366, and authorities cited; Louisville & N. R. Co. v. Orr, 91 Ala., 548, 8 South. Rep. 360; Tutwiler Coal, Coke & Iron Co. v. Enslen, 129
If the evidence shows the decendent’s health, habits or other conditions of life to be such that he had no reasonable future expectations of an estate, the recovery would of course be merely nominal. See North Chicago St. R. C. v. Brodie, 156 Ill. 317, 40 N. E. Rep. 942; Chicago, B. & Q. R. Co. v. Gunderson, 174 Ill. 495, 51 N. E. Rep. 708.
In the cases of Florida Cent. & P. R. Co. v. Sullivan, 120 Fed. Rep. 799, and Callison v. Brake, 129 Fed. Rep. 196, charges similar to those, here assigned as error were held to be not reversible error. To the extent that the instructions given in this case may be incomplete, they are not unfavorable to the plaintiff in error; and since a more correct special instruction upon the subject does not appear to have been asked and refused, the plaintiff in error cannot complain, here.
As there was evidence to warrant a finding for the plaintiff the demurrer to the evidence was properly overruled. The principles above announced dispose of all the assignments of error that have been argued here.
The judgment is affirmed.
Shackleford, C. J., and Cockrell and Parkhill, JJ-, concur.
Dissenting Opinion
(Dissenting.) — I cannot agree with the majority of the court in this case upon the question of the measure of damages therein.
The trial judge gave to the jury the following instruction on behalf of the plaintiff: “The administrator
“If you find for the plaintiff, it is your duty in assessing the damages to' award plaintiff such sum as you find from the evidence the deceased, Reuben Bow-den, would have accumulated during his natural life, taking into account his age, habits, health, mental and physical capacity and ability, his probable life expectancy, his probable net earnings after he would have reached the age of twenty-one years. The sum total of all these elements to be reduced to a money value and its present worth be given as damages.”
Each of these charges is assigned as error. The court in my judgment erred in giving each and every of these instructions. The suit was instituted under the following provision of our statute authorizing suits for the wrongful or negligent death of a perón: “Every such action shall be brought by and in the name of the widow or husband, as the case may be, and where there is neither widow nor husband surviving the deceased, then the minor child or children may maintain an action; and where there is neither widow nor husband, nor minor child or children, then the action may be maintained by any person or persons dependent on such person killed for a support; and where there is neither of the above classes of persons to sue, then the action may be maintained by the executor or administrator, as the case may be, of the person so killed; and in every
The clearly expressed design of this statute is to provide pecuniary compensation to those, and to those only, Who have lost or been deprived of something by the wrongful death, and this compensation is confined expressly by the statute to those who by it are expressly granted the right to sue. Duval v. Hunt, 34 Fla. 85, 15 South. Rep. 876. The statute gives no right to the heirs at law generally to sue or to recover anything, but utterly ignores them, and confines the right to compensation and to recovery, first and exclusively to the surviving husband or wife as the case may be, or, if there be neither husband or wife, then, (second) exclusively to minor child or children, and if there be neither husband, wife or minor child, then, (third) exclusively to those who may be dependent upon the deceased for a support, and, if there be none of the above named persons, then (lastly) an administrator as the personal representative of the deceased is permitted to sue and recover.
What damage, in the language of the statute, has an administrator sustained by reason of the death of the party killed? An administrator is the personal representative of the deceased appointed by the proper court to collect and preserve the assets of the estate, to pay its debts and make distribution of any overplus to those entitled thereto as heirs at law, his first duty being to the creditors of the estate. 18 Cyc. 55 et seq. As to this unliquidated and unestablished claim for damages for the negligent or wrongful death of the intestate there
The statutes of some of the other states require the suit in this class of cases to be instituted by an administrator in every instance for the use and benefit of certain named surviving beneficiaries, and in those states if there are none of such surviving beneficiaries in esse, then the recovery by the plaintiff administrator is nominal only. See the Michigan and other cases supra. But under our Florida statute the right of an administrator to sue in any such case is expressly dependent upon the non-existence of any expressly designated surviving beneficiary of the action, and where an administrator sues here under our statute, he sues, not for the use of any surviving beneficiary, but strictly in his capacity as personal representative of the estate of the deceased, and as such his first and chief duty is to the creditors of such estate, if any; and when he has fulfilled his duty to creditors in such cases, then the damage “that he, in his rep
Concurrence in Part
(concurring in the dissent of Justice Taylor). — In concurring in the opinion of Justice Taylor I feel constrained to add some views of my own with respect to the construction of our statute creating a cause of action for the death of a person by the wrongful act of another (sections 3i45 and 3146 General Statutes of 1906). It is admitted that such a cause of action did not exist at common law and is entirely the creation of the statute. The cause of action thus created is not a survival of a right of action which the decedent possessed, but as has been said of Lord Campbell's Act is a new one “new in its species, new in its quality, new in its principle, in every way new, and which can only be brought if there is any person answering the description” of those authorized by the act to sue. Perham v. Portland General Electric Company, 33 Oregon 451, 53 Pac. Rep. 14, 24, 40 L. R. A. 799, and cases cited.