23 Fla. 355 | Fla. | 1887
delivered the opinion of the court:
The intestate sued the appellants for libel and recovered a judgment which appellants appealed to the January term, 1885, of this court. Pending this appeal the intestate died and the administratrix was made a party here, and the judgment was reversed at that term. Upon the cause being remanded, notice, entitled in the cause as originally instituted, was given on September 17, 1885, to the intestate’s attorney, who was also attorney for the administratrix, that a motion would be made at the succeeding term of the Circuit Court to abate the action, on the
■ On February 1st, 1886, an order was made reciting a suggestion of the death of Townsend, and the filing of letters of administration, and a docketing of the case in the name of the administratrix, and ordering that the administratrix be made a party to said suit and that the same proceed in the name of said administratrix as entitled of record. A trial was had at the spring term, 1886, resulting in a verdict and judgment for the plaintiff. The defendants have appealed.
If the right of action did not survive to the personal representative of the intestate, the above order should not have been made, and all subsequent procedings are erroneous.
In Jacksonville Street Ry. Co. vs. Chappell, 22 Fla., which was an action in tort to recover damages for personal injuries received by a passenger through the negligence of a common carrier, we held that the right of action died with the plaintiff and should not have been revived in favor of his personal representative, that such was the rule, not only at common law, but also under our statute. If this decision is correct, it is clear that the present action abated on the death of Townsend. Counsel for appellee asks us to review the decision and we have done so cheerfully and with proper care, but are unable to see any error in its conclusion or reasoning.
The first statute we find upon the subject is that approved January 19, 1827, an act regulating judicial proceedings. It provided (section 12) that in all cases where the plaintiff should die after service of process and before final judgment, such-action should not abate, if the same might be originally prosecuted and maintained by the
It is perfectly clear to our minds that there is nothing in the act of 1827, or in that of January 19, 1828, which changes the common law so as to make any right of action survive tó a personal representative, which did not survive at common law. The 43d section of the act of July, 1828, is only declaratory of the common law as to certain causes of action ; it says nothing about auy other causes of action
It is argued by counsel for appellee that the common law being in force here, at the passage of the act of January, 1828, a careful examination of it and the act of November, 1828, leads to the conclusion that.the Legislature, by a more enlightened policy, desired that only such actions a3 are enumerated in the former of these two acts of 1828 should abate by the death of the parties; that the later, or November enactment, was designed to more clearly express such intention. We are unable to see that any such intention is shown by the January act. “ To know what the common law was, before the making of a statute,, whereby it may be seen whether the statute be introductory of a new law, or only affirmative of the common law, is the very lock and key to set open the. windows of a statute. Further, as a rule of exposition, statutes are to be construed in reference to the principles of the common law, for it is not to be presumed that the Legislature intended to make any innovation upon the common law, further than the case absolutely required. The law rather infers that the act did not intend to make any alteration, other than what is specified, and besides what has been plainly pronounced, for if the parliament had that design, it is naturally said, they would have expressed it.” Potter’s Dwarris, p. 185. What innovation or alteration of the-common law can be presumed from the act either to have been “ absolutely required,” or to have been intended, as to-the actions or causes of action mentioned, when the language of the act is a mere declaration of what the common law is as to such actions or causes of action ? If it be a rule, as it is, that an act is to be construed as not intending
Turning to the act of November, 1828, and taking a general view of either the whole of section 30, or of it and section 28, we are satisfied that the purpose of the Legislature was to simply to provide that all actions for personal injuries should die with the person, and that all other actions should survive. The enumeration (immediately after the plain and broad declaration that hereafter all actions for personal injuries shall die with the person) of only some of those personal injuries, actions for which did so die at common law, does not show-an intention that the general declaration of the act should be qualified by such enumeration ; particularly does this seem to be the case when we find, immediately following, the positive declaration that all other actions shall be maintained in the name of the representative of the deceased. ■ Suppose we assume that the framer of the bill at the time of drawing it could recall no other personal injuries, the right of action for which died with the person, is it not still plain that his purpose was to provide that all actions for personal injuries, whatever the injury,should so die? Is this real intent to be defeated by an omission in the enumeration of the injuries ? Looking at the entire language of this section 30, we must either hold that the injuries stated were given as examples, or, which we cannot well do, that the Legislature was ignorant of the common law, and if we make the latter assumption there is still a clear intent that all actions for personal injuries should die. To hold that the enumeration controls the plain and strong declaration of the section is to give the statute an effect contrary to the plain sense of all
Our interpretation is not inconsistent with the language of the act, considered as a whole and with reference to the previous state of the law. It also gives to all the words used a reasonable operation and ignores none. Ibid, 207.
"We have carefully considered the authorities cited by the appellee’s counsel, who has exhibited marked ability and the most commendable industry and zeal in behalf of his client, but find nothing causing us to doubt the cor
The judgment is reversed, and the case will be remanded with directions that judgment be entered dismissing the action.