81 Fla. 600 | Fla. | 1921
Lead Opinion
The parties will be given the same designation in this opinion that they bore in the trial court.
The principal contentions of defendant are that at common law there was no right of action for damages for the death of a person caused by the wrongful act of another; that the statute upon which plaintiff’s action is predicated gives no right of action upon the facts as alleged and proved in this case, that therefore none existed and this action can not be maintained. •
The statute is set out in the original opinion.
The first contention of defendant, namely, that the common law afforded no right of action to any one for damages resulting from the death of a person caused by the wrongful act, negligence or default of another is settled law here and elsewhere. Jacksonville Electric Co. v. Bowden, 54 Fla. 461, 45 South. Rep. 755; Seaboard Air Line Ry. v. Moseley, 60 Fla. 186, 53 South. Rep. 718; Flanders v. Georgia Southern & F. R. Co., 68 Fla. 479, 67 South. Rep. 68; 17 C. J. 1181.
The question for our determination then' is, are the facts of this case sufficient to bring it within the terms of the statute? Defendant says that the statute being in derogation .of the common law must be strictly construed, and that being so construed' it can not be held to cover a case where the damages alleged to have been sustained result from death caused by the negligence of the servant of an individual. The statute as originally enacted as
In the Florida Power Co. case it was held that the statute gave the remedy only against corporations and private associations of persons, and not against persons in .their individual, capacity. The opinion in that case was filed during the June Term, 1912, and at the following .session of the Legislature the statute which we have quoted was enacted. This statute expressly gives a right of action against “any individual” whose “wrongful act, negligence, carelessness or default” causes the death of any minor child. But it is said that in giving this right of action against individuals it did not by express terms extend it to instances where the death was caused by the “wrongful act, negligence, carelessness or default” of the servant of an individual, whereas it did by express terms give a right of action against “any private association or persons” in cases where the death is caused “by the wrongT ful act, negligence, carelessness or default of any officer, agent or employe of any private association of persons, acting in his capacity a.s such officer, agent or employe” and did by express terms give a right of action against “any corporation” in cases where the death is caused “by the wrongful act, negligence, carelessness or default of any officer or agent, or employe of any corporation in his capacity as such officer, agent or employe.”
We have said that at common law there was no right of action to recover damages for death caused by the wrongful act of another. This rule was changed in England in 1846 by the Statute commonly known as Lord Campbell’s act. It has been changed generally in this country by statute. The statute under consideration was designed to effect a change of this rule in this jurisdiction and it
The intent of a valid statute is the law, and this intent may be ascertained by a consideration of the purpose of the enactment. It is perfectly clear that the statute imposes liability upon an “individual” for death caused by his wrongful act, negligence or default. This statute, like all other statutes and constitutions in this country must be read in the light of the principles of the common law from which our system of jurisprudence comes. 1 Kent’s Com. 336; United States v. Sanges, 144 U. S. 310, 12 Sup. Ct. Rep. 609; Ex Parte Wilson, 144 U. S. 117, 5 Sup. Ct. Rep. 935; Edwards, Admr., v. Gaulding, 38 Miss. 118; Alabama V. Ry. Co. v. Williams (Ala.) 28 South. Rep. 853; Lewis’ Sutherland Stat. Const. (2nd ed.) §453.
Whatever may be the theory for the rule imposing liability upon the master for the wrongs of his servant done within the scope of his employment, the liability is so
In Hadley v. City of Tallahassee, supra, the court said that in enacting this statute the legislature had before them the earlier statute removing a common law disability and giving to illegitimate children inheritable blood from their mother and held, construing the statute in the light of existing law, that an illegitimate was a “child” for whose death, caused by the negligence of another, the mother was given a right of action. To say now that in enacting the statute under consideration the legislature had before them applicable established principles of the common law and drafted and enacted the statute in the light of such principles is to say no more than was said in this case because established principles of the common law, not changed by statutes, are as we have seen as much a part of our system of jurisprudence as express statutory enactments.
When the legislature in express terms imposed civil liability upon an individual for the death of a minor child caused by the negligence of such individual it was wholly unnecessary to add that an individual would' be liable also in a case where the death was caused by the negligence of the servant of such individual. Such liability followed as a natural sequence. It is part of .the law of
To escape this conclusion it is said that in expressly placing liability upon “any private association of persons” and upon “corporations” for the wrongs of their officers, agents and employees and saying nothing about the liability of an “individual” for the wrongs of his servants indicates an intention not to impose such liability or to exempt individuals from the liability imposed by law in such cases. This contention seems to be based upon the principle expressio unius est exclusio alterius. There is cogency in this view, but it is not of sufficient weight to operate as a repeal of the law of respondeat superior or to abrogate the principle of Qui facit per alium, facit per sp in so far as it would be applicable to cases arising under this statute. Bepeals by implication are not favored, and a statute will not be construed as taking away a common law right existing at the time of its enactment unless imperatively required. Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. Rep. 350; Edwards, Admr., v. Gaulding, 38 Miss. 118; Ryals. v. Mechanics’ Mills, 150 Mass. 190, 22 N. E. Rep., 766.
There are a large number of assignments of error. Most of them are predicated upon the proposition that the facts of the case do not bring it within the provisions of the statute. Others go to various rulings of the trial court during the progress of the trial and relate only to questions of procedure which do not require discussion. One other question only requires consideration. The declaration claims damages upon two grounds, namely, loss of services of the deceased minor child by the plaintiff, his father, and mental pain and suffering of plaintiff A. J. Moore and Minnie Moore, parents of the deceased minor child, because of his death caused by defendant.
At common law if injuries to a minor child resulted in his death there could be no recovery for loss of services. Seaboard Air Line Ry. v. Moseley, supra. But this rule is changed in many jurisdictions by statute. 17 C. J. 1329. The statute under which this action is brought (Sec. 3147 Gen. Stats. 1906) expressly authorizes recovery “for the loss of services of .such minor.” The purpose of the statute is to authorize suits for the recovery of damages
It has been suggested that the period for which damages for “loss of services” may be recovered under this statute is the time intervening between the act or negligence causing the injury and the death of the minor which follows. But the right of action accrues upon the death, not upon the injury, of the minor child. The damages allowed for “loss of .services” is such as result from the death of such minor child. The death frequently follows immediately after the injury producing it. In most cases the time intervening is in the nature of things of short duration. In such cases the damages would be nominal, or at most inconsequential in amount. The remedy afforded would be in form not in substance. It would mean that at the end of tedious and expensive litigation a right might be vindicated but with no promise in any case of substantial results. A construction leading to such results .should not be sanctioned.
The child' for whose death plaintiff seeks recovery in this case was slightly over twelve years of age. Evidence
It is so ordered.
Browne, C. J., and Ellis, J., concur.
Taylor and Whitfield, J. J., dissent.
Dissenting Opinion
dissenting.
The compass of a liability that is imposed by statute should be determined by a fair consideration of the language used, the subject-matter and the purpose designed. The just implications of a statute are a part of the lawmaking intent; but the implications must arise from the express terms used and must be consistent with the fair meaning and purpose of the entire context. Implications that the language as used exclude or do not ordinarily include, should not be indulged, particularly where the terms as used are particular and specific.
Courts have no legislative power. Their province is to ascertain and to enforce the valid intent of duly enacted statutes. When the terms of a statute as used therein
The statute in this case imposes a liability unknown to the common law and the language used is particular and specific. It mentions the different classes upon whom liability is imposed and specifically imposes liability for the delicts of agents and employees of some of the classes, and significantly omits to specifically impose liability for the delicts of agents and employees of. -another class against whom liability for personal delicts is expressly imposed. If liability for acts and defaults of agents and employees had not been specifically imposed as to some classes and omitted as to another class, there might be ground for an implied liability against all of the classes for the acts and defaults of their respective agents and employees predicated upon the common law principle of respondeat superior; but in expressly including liability for the acts and defaults of agents and employees, as t'o two of the classes and omitting it as to the other, the ordinary understanding and meaning of the language as used will not justify an implication to cover those omitted, when there is nothing in the context to warrant such an implication.- The fact that the body of the ori
The statute is penal in its nature and'should not by construction, interpretation- or interpolation, be extended beyond the limits definitely fixed by its particular and explicit terms. 17 C. J. 1230; 8 R. C. L. 772.
The common law is by statute made a part of the law of this State, and changes therein require legislative action duly indicating a purpose to alter the existing laws to the extent shown by the language as used.
The aserted liability is forbidden by the principles of the common law and it is not imposed by any express provision of the statute. An implied statutory liability can arise only when it has undoubted support in express provisions thát clearly show the lawmaking intent to -include and not to exclude the implied liability. The courts have no power to extend by implication a liability beyond the legislative intent as shown by the language of the statute.
In this case the statute is designed to, impose a liability that is forbidden by the common law. The language used is specific and definite, and it is so formulated as to exclude ir¡v¡M&a>tiom of liability that are forbidden by the common law. The manifest purpose of the statute is to change the common law only to the extent that is definitely stated in the specific terms used. To impose a liability that is forbidden by common law and that-is excluded by the formulated language of the -statute,
Taylor, J., concurs herein.