*1 Savings & Error, J. L. vs. Waller, First Plaintiff corporation, adminis- Tampa, Company, Trust deceased, Hodasz, trator of John the estate of Defendant in Error. 780. So.
En Banc.
Opinion filed December 1931. rehearing January
Petition for denied 1932. *3 Error; T’ampa, Plaintiff Brothers, Whitaker Dickenson, Tampa, in Error. Edwin B. for Defendant upon based, as Davis, J. suit The facts declaration, most allegations are disclosed unprecedented in this know, unusual, and, far we so state. alleges April 24, 1930, plain- declaration that on residing dwelling Hillsborough his
tiff and wife were County, plaintiff, owned and that on said date one Hodasz, John ap- whose estate the defendant had been intentionally pointed administrator, injured damaged dwelling placing bomb, high said house or other ex- plosive, residence, underneath or near to said and had wilfully intentionally exploded, caused the same to be *4 injuring damaging plaintiff, with the intention of and the damage plaintiff’s dwelling- explosion the and that such did $3000.00. house to the amount of that, to in- alleges in addition The declaration further plain- juring said’dwelling house, the said Hodasz caused loss, in that the pecuniary damage tiff and to suffer other very injuries upon plaintiff’s the explosion inflicted serious leg necessitating amputation of her left between wife, leg seriously right knee, her injuring and the ankle injuring sight eye, and her one causing- the loss of them, and so that she cannot' use arm and hand so practically an invalid the maiming that she will be her per- life, rendering for impossible balance of her to her thereby depriving plaintiff form wife, of a duties companionship making of her it neces- and services and sary wait that' he have at all times to some one her upon plaintiff expend her. $800.00 That was forced to hospital wife, he bills for of his and that the treatment care required expend will be other for her large sums al- and treatment the future. The declaration further leges wrongful act, that after the commission said Savings and said Hodasz First John died and duly ap- Company, Tampa, corporation, Trust was duly qualified pointed administrator his estate and brought acting now such was as administrator. The action against corporation said Administrator of the estate as $50,- ITodasz, damages John in the sum of claimed 000.00. corporation, defendant aforesaid, as administrator upon
demurred to the grounds declaration plain- tiff’s cause action abated with the death of the defend- intestate, ant’s and did against not survive administra- tor, and could not be revived such administrator.
The court sustained declaration, the demurrer to the ac- companying an opinion the order with able support plaintiff the court’s conclusion. The declining plead further, judgment final in favor de- rendered of the judgment fendant, to which writ of error was sued out o£ assigned error the plaintiff, who order the court declaration, plaintiff’s and the sustaining demurrer -t'o judgment in favor of the defendant. the final rendition of Judge opinion Circuit who sustained It was declaration, to the that the decision on the demurrer 4211, C. upon construction of section turned demurrer G. S. which reads as follows: G. L. 2571 R. INJURIES. (2471.) FOR PERSONAL “4211. SUITS personal injuries die with shall
—All actions im- battery, slander, false person, Assault and to-wit: *5 1030 prosecution; other actions
prisonment, malicious all representa- of the shall and be maintained in the name tives of the deceased.” Railway vs. authority Co.
On the of Jacksonville Street Rep. 10, 22 1 Baker vs. Cran- Chappell, 616, Fla. Sou. Rep. 126, Judge 47 Am. the Circuit dall, it was held of the declaration action, embracing that this one count property a injuries plaintiff’s real claim plaintiff’s wife, not personal injuries could claim for estate against be maintained administrator feasor, prior had to the institu- the deceased tort who died sounding tort, could action, an suit, tion of the because estate of deceased have been instituted (Section 4211 statute feasor at and the tort common supra) changed C. G. L. had not the common law. only In cases has the three construction and effect of our statute prior been before this court' to the institution Railway of this Jacksonville Street suit. Co. vs. Chappell, 616, 10; 22 Fla. 1 Rep. Townsend, Sou. Jones vs. 23 Fla. 255, Rep. Cunningham, Sou. 612 and Close vs. 99 Fla. 1109, Rep. 128 Sou. It 429. has been considered and con- Appeals strued the Circuit Court of for this Circuit Jewett, the case of vs. where a Brill Fed. liberal construction of it was followed. just (Jacksonville
Two of eases cited Street Rail- Townsend, way supra; supra) vs. Chappell, and Jones vs. application of only the statute applied as it involved the right to the survival of the action cases of tort to the injured party, and not the survival of action against a deceased tort feasor’s estate. third, Close Cunningham, Fla. Rep. 429, Sou. involved deceased tort feasor. holding Chappell
T'he in the case, supra, was that our statute, L., 4211 C. change Section G. did not the common law rule as to injuries, actions for and that the case, action in that which was tort to damages recover *6 by passenger resulting personal injuries from received through negligence carrier, of a abated on the common plaintiff. death of the Townsend, again
In v. supra, Jones was held statute, under the and our of action common law plaintiff. for libel died with the 99 Fla. ease, Cunningham,
In the more recent Close May 15, 429, on Rep. decided Sou. was year ago, for the involved little over a there was first personal question an action time the whether or not in by negligent operation a motor injuries caused of action died truck, died, feasor the cause where the tort not be revived could person with the and the defendant against representative deceased defend- of the holding the lower opinion, PER ant. In a CURIAM court in that case to the effect that' the cause action did against defendant, die as plaintiff, well as as the Court,—Justices affirmed a four to two decision this dissenting. appears Terrell Buford This affirmance and assumption that, have on supposition been under necessarily Florida, the common law of rule must same prevail actions with reference to the survival of prevails to the defendants reference survival cause of plaintiffs. action in favor of argued
It is defendant in error that Close v. Cun- ningham, supra, point controlling as to the de- here, cision to be made and that under the rule of stare judgment decisis we should affirm the of the court below authority ease, notwithstanding of that' the obvious justice fact principles that the of natural would seem to support kind, require an action of the admin- istrator out of held liable answer the deceased tort wrongful feasor’s him in estate acts committed lifetime, injury damage another, regard- his to the thereby wrongdoer less whether had the estate been increased or not. argument general proposi- agree with
We that as founding tion courts are not warranted decisions their upon justice, their ideas of when do individual natural prior interpreting so runs counter to decisions established *7 previously applied a facts con- the law as like state of may point and also func- sidered, we concede the that the present in- tion of the in the must be to now court case terpret apply exists, leaving law as and it it to legislature statutory changes or make such amendments enlightened understanding of as new conditions a more or justice may require. necessarily But it does not follow that when this court judgment, of a has before it a case on writ error from crystallize precedent affirmance of which will into unrighteous shock- the future an rule of decision which is every justice ing conception of fairness, that thereby precluded re-examining the law is from court may case, extent applicable to this even to the be re-examining an- of the correctness of conclusions determining previous cases, of purpose for the nounced previously sound, announced or whether or the rule application general principle, if as a whether its sound subject like the before the court' is not to modifi- case one demonstrably unequitable conse- light in the of cation quences which been taken have never before considered or into account. Chappell 22 Florida, supra, of the
The doctrine case seriously very questioned and almost overruled in the Cunningham, (99 v. case of decided recent Close Rep. 429), only and that case was Fla. Sou. de majority bare of of on one Justice this Court cided theory point Chappell case was con of of controlling question survivorship on the sequently against the administrators estate of deceased actions tort feasors. subject TORTS, text writers on the of most eminent pointed page 61, have de- Pollock, out Mr. Ed. against
clared the rule actions deceased survival parts” tort feasors “one the least rational to be opinion expressed the English old and have common venge- when law notion once the ancient common put and the wrong ance done been aside idea has personalis compensation “actio substituted, rule ground plausible persona” moritur cum would be without consequence rejected. .and in would So, laying present, for the the doctrine STARE aside (1) DECISIS, whether to be considered remains of the tort rule of with death death of the cause action Florida, part feasor ever became a of the common modify (2) shall or over- did, if it whether not we proper ground that a Cunningham rule Close n construction (Section 4211 C. our statute on survival *8 than supra) requires G. L. to be declared a different rule was followed in that case. always great diversity
There at opin- has been times a of among judges ion and both law writers as to what the Questions particular common law rule is in a case. fre- quently how far arise as to common law rules admitted to have once existed have been modified the intendments provisions of peculiar statutes and constitutional which are system. American may in accept ¥e as true this case the statement that ENGLAND, taking under the common law of into con- royalist theory men English sideration were sub- jects vengeance citizens, not that tort actions were for wrongs allowing compensation for redress them, accordingly rule there to the that the against no of action survived effect that cause estate any feasor, prose- more a tort than criminal a,deceased (cid:127)of against criminal. cution survives point, rule, concede this does not mean that such
But to rights of action of the common law as to defend- ants, distinguished from rights of action in favor plaintiffs, part ever a became common law FLOR- may IDA. Such part rule have been of the common law England government under monarchial where the in- dividual as such had no rights constitutional in inherent may him as a citizen. There have been no essential obstacle in system the intendments of our prevent of laws to plaintiffs rule as to becoming part of our common law. Yet appear there does to be an organic intendment in found our customs, system government institutions inapplicable system makes to our of common law the rule tort, defendants, as to wrongdoer. actions die with the provisions system One of our of constitutional by intendment, law which nothing if else, conflicts with recognition of rule that' a action tort dies feasor, with the tort found our Bill Rights, which, thereof, provides: Section “All every courts shall open, state be so that person any injury goods, done Mm in lands, his person reputation remedy, shall have course due of law. ...” L., Section C. G. S., R. G. which declares the com- mon England law of to be in force Florida in ab- contrary sence statutes, expressly excepts such from common adoption any English rule of the old common law which is inconsistent with the constitution and laws of Florida. fully
So if established that the rule of the old *9 English common law was to the effect that a cause of action in tort died with feasor, tort but such rule is found to- contrary be to the effects, purpose intendments, object, of 4 of Section our Bill Rights, then such rule of the English old common law did part not become a of the common law of Florida. expressly
This court has recognized principle specific in instances certain rules which admittedly were English law, not become part common did of the old contrary law, part FLORIDA common because our statutes on customs, or intendments of our institutions n other subjects. law old ENGLISH common example, under the
For large they did at and if allowed roam were not cattle neighbor’s damage by trespassing upon a so inflicted undeniably liable cattle was property, the owner of such trespasses committed law for the at ENGLISH common early large. But in to run at his cattle when allowed GEIGER, V. & RAILWAY COMPANY S. F. W. case of hesitancy in had this court no 21 Fla. decided n declaring common law ENGLISH the rule liability trespasses was not suited for cattle relative to amd people, there Florida and customs of the institutions FLOR common law part not become a did fore IDA. by the court was reached in that case
The conclusion toas policy of our laws solely ground that “the cattle, running encouraged large at' livestock” adapted ill to be law rule ENGLISH common made that such rule it was held here, and therefore followed rule rejected, and a law would ENGLISH common place which was substituted its common law .FLORIDA policy institutions. harmony of our with the more RANEY case, supra, MR. JUSTICE Geiger In the holding rejecting the justified Court’s this Court substituting the FLOR- law and of common rule ENGLISH by saying: rule, IDA !‘ prevailed would which has policy than that different 685). (text . . . .” proven ruinous have has declared 4, 1925, this Court A as December late principles that while the foregoing case harmony Florida, when are in force English law common of the statutory organic that such with our not in conflict application designed for are common .rules *10 1036
new circumstances, they may conditions and as be devel- oped by enlightened intercourse; commercial and business n that such common law scope rules are within the existing provisions principles remedial intent of principles and that such common law are intended by practical utility, subject organic vitalized limita- tions. State ex See rel. Railroad Commrs. v. Jacksonville Co., Rep. Ter. Sou. Fla. 721.
In recent, recog- another ease more this court refused to nize the strict limitations which once surrounded the issu- ance common law writs of certiorari. In that case although court held that certiorari issued Su- preme of this Court State is a common law writ and con- principles, trolled common law that nevertheless the- relating of common law rules to that writ would be re- laxed the interest justice, administration of al- though many precedents ENGLISH common old were- militating any against departure. cited as such See Flor- Commrs., ida Motor Lines v. Railroad Fla. Rep. Sou. 876.
In following the case at bar we have the situation: John. Hodasz, the tort feasor, is dead. How and when he died suit, is immaterial. fact remains that he died before brought against was him in this cause. apparently
Hodasz left what a comfortable estate and appointed the defendant in error as administrator of estate. It' is the urging this administrator who is the de- alleged fense here that because Hodasz died after ishe to- dwelling have dyamiting committed the criminal tort of that, crippling house and a housewife therein, domiciled any right' compensation plaintiff which ex- .action isted Hodasz before his death nevertheless died when Hodasz died. point court, feeling
On this the lower that it was bound by prior Court, decisions demurrer to sustained question. declaration dismissed the suit. So the *11 com- is not we shall that under the here whether or decide mon of action which accrued the cause of Florida against enforced after his in his lifetime can be Hodasz represented damage against a suit his estate death holdings notwithstanding his administrator modify or to, shall previous referred or whether eases we part. such in whole or in overrule eases in this judgment as has been rendered To affirm such a ignore plain provision of our constitutional ease is always open so that that the shall be Eights Bill courts property shall have a person injured person a his “remedy” wrongdoer. “remedy” against Does this his recompense, so, not then and if do we not mean redress or POL- Florida which as a situation under the laws of have out, points TOETS did not exist LOCK in his work on common law? at ENGLISH theory protection to AMEEICAN constitutional theory liberty of Florida law as
life, property clearly effect expressed in our State constitution longer recovery damages are no for torts that actions punitive regarded as to be mere retaliations recompense a to the citizen feasor, but as means tort wronged. English contrary law rule to
The reason for was with the tort that tort action died feasor because a regarded punitive character, a tort action all of changed has been Florida the intendment which only Eights recognizes punitive not Bill of our wrong done, recognizes but' also nature of tortious “remedy” organic language legal preserves in for that always provides open that the courts shall wrong, and anything previous holdings it. Nor is there in our afford alleged survivorship in dealing cases of tort actions just the idea advanced. which refutes Cunningham assumed, but Close v. did The case English law rule determine, common referred prevailed in Florida. In that case the construction of our stwhube of survival was question the sole and it involved indispensably necessary affirmatively is not that we now overrule that case in order to decide premise, different' point just which has been discussed. (cid:127) If the common law of Florida is not held to be different from the England common law of constitu- because tional pointed intendment's we out, any have then *12 person criminally may by so voluntary inclined his own and wilful accomplish acts the financial destruction or physical person by extinction of another means such as are alleged by to have been used in ease, ITodasz and if the wrongdoer posse, lynched should be killed a sheriff’s or indignant an mob, or die a judgment before be could against' him, injured obtained person wholly would be deprived “remedy” of that recompense to seek for the wrong done which says the constitution of this shall State always be him. secured to merely
To permissible state application, the rule’s in the light recognized of our .theory of a constitutional remedy a in any injury done, court for seems to be sufficient to place demonstrate such rule has no in our system of administering justice, part if even it was a English common law.
So, it appearing that the rule of the ENGLISH common harmony law is not in with our policies, institutions, cus- theory of toms or rights, constitutional we should have no hesitancy rejecting it in this case on ground, if no other, language as stated of JUDGE RANEY, “that policy a different would be ruinous.” When the reason passed a has for rule the rule longer itself should stand, no harmony changed new and a rule conditions should recognized vero, non se e e hen trovato. Furthermore, v. Baldwin, Abraham 52 Fla. 151 (text 163), Rep. 591, 42 Sou. expressly this Court' overruled two previous had originally its decisions which an followed because, was there rule, law applicable English common exist under English rule did said, the basis for the English did not rule such Florida, and therefore laws of Florida. part a of the common become plea not' .question whether That case involved imputing a for slander justification an action justifi- prove his party pleading it crime, required the preponderance beyond doubt, or a reasonable cation beyond proof English rule, Under the evidence. required, but unquestionably doubt reasonable English rule, admitting that court refused to follow the 1776, July 4th, English common law part of was a rejecting it: ruling support saying in of its but in order objection words, ‘and is to “The other there- herself justify or relieve for the from it becomes defendant necessary to establish defendant such the satisfaction so the truth of the words uttered your the exclusion of by competent evidence to minds beyond a reasonable doubt.’ charge authority of given This was doubtless on the Co., Schultz v. Pacific 73, 121, Insurance Fla. text South, Dickenson, and Williams v. Fla. text *13 Rep. 847, where it was held a fact must be estab- by evidence, lished the same whether it' is be followed by consequence; a civil or a criminal char- and tnat the of proved, position acter the fact to be and not the of party degree required. proof the determines the of to be England This rule said to have been established may plaintiff because the there be tried the crime n imputed upon justification him verdict of without grand fol- jury. the intervention of a No such result here, lows therefore reason the for the rule does not Field, Esq. 133; Harmer, v. exist. See Cookv. Wilmett (34 589) 695; Buzzell, & P. E. C. L. Car. Ellis v. Me. 209. upon The heretofore this court decisions made point property rights, not have beeome the basis of they policy in the nor do constitute a distinct admin- justice, no istration and as harm can result in estab- weight lishing great a rule in with reason and the accord v. authority, in Schultz rule as first announced reluctantly Co., supra, Pacific followed Insurance disapproved.” Dickenson, supra, is now Williams regarded as
Torts, common were under ancient wrongs against allowed or the individual who was delicts wrongdoer by mulching him vengeance against seek damages. proceeding, criminal Because a was akin to a tort action defeated, just tort' as the death the death feasor prosecution wrongful defeated, a criminal further for the long recognized In fact, tort actions were act committed. general. prosecutions became before criminal Scriptures in the referred The ancient Jewish law found many wrongs injuries, to a number of vast exclusively The with as crimes. also most dealt are now by personal retaliation. wrongs, torts, were redressed party guilty with, but the murder was thus dealt Even asylum special territories given rights certain money com- Refuge”. Later a “Cities of known as since purpose have been allowed serve pensation seems to recognized retaliation, was first and thus of this History recovery damages Lee’s of Juris- for torts. prudence, 116-118. communities was of other ancient penal
The wrongs, or, to use the law of but was the crimes law of it, law of “Torts”. word for English technical wrong- proceeded in retaliation injured person damages against recovery him for seeking doer wrong done. by the Roman wrongs recognized the civil head of theAt which we now offenses Other or theft. Law stood furtum treated as “torts” there exclusively crimes were regard recovery damages as a retaliation avenged to be *14 Money recompense. satisfaction,—not words as in or other violent assaults and and for for homicide compensation provided for. robbery were delict, tort, a
The criterion of or under ancient law person injured, state, was that it was the and not' the which wrong. infancy So in jurisprudence, suffered the of our subject injured depended pro- individual tort for against fraud, crime, tection violence not on the law Henry but T’ORT. law of Sir Maine’s “Ancient See Law”, 358. concept vengeance recompense therefore not so English
became interwoven into the common law unexpected English torts that it net' to be regard common law having would the tort as died with just defendant tort feasor as crime now dies with defendant' criminal. concept opposed theory
But this American our jurisprudence recompense injured tort, where to the for a vengeance wrong object and not mere for the is the Our Rights recognize to sue. Bill of seems to theory preserves injured in terms, for it to the one his “remedy”, vengeance per- his wrongs him in done property. Certainly son or this statement in Bill of Rights something means than a empty more platitude mere placed simple there as a anachronism. may say
Well this Court theory that since our of con- stitutional law is recognize that we these redressable wrongs provide in our “remedy” constitution that a for them shall against be secured inviolate wrongdoer recompense as wronged, to the part that that of the common personalis law rule “actio persona” moritur cum personal injuries made the action for in tort die with the part tort feasor never became a the Common Lam at Florida all! In Cunningham, Close v. supra, as we have point said the passed on was whether talcing or not granted under the common law Florida English well a®the common the action a tort feasor died with such
tort feasor, statute, L., supra our Section C. G. changed subject. rule on of the common law this
In pertinent point this connection it is in the out that decision of Cunningham, Close v. MR. JUSTICE TER- RELL, convincing opinion in dissenting a most able and by (NOW which was CHIEF concurred in MR. JUSTICE JUSTICE) BUFORD, acknowledge refused to that even statutory point the decision on the in that case involved was sound. majority opinion presume seemed to as matter by necessarily case
course that was Jack- controlled Ry. supra, Chappell, sonville Co. v. etc. and Townsend Jones, supra, judgment on that' basis hold- affirmed the ing wrongdoer. that the action tort had died But, said MR. JUSTICE TERRELL: brought “I purpose think the statute here common question enlarge law for rule of injuries. For the survival of actions merely purpose sary. re-enacting rule it' was unneces- that * * * only supported is holding This harmony reasoning,
better but is with the trend country.” survival statutes this (MR. BROWN) JUSTICE indicated Another Justice placed con- leaning viewpoint when he his similar ground opinion largely majority on the currence with had been “allowed of the statute that construction thought ought long” be allowed he it still stand so changed Legislature, not to stand until Courts. never plain this Court has before
But seems has consider and never ruled whether been called on to Rights of our Bill of intendment not the constitutional with reference sur- the common rule has modified of deceased rights against the estates of action vival of feasors. tort Court, presented, when question such
Now that ap- not hesitate to justice, should on to administer called *16 courageous ply rule of the same declara- the reason with public in- re-write, the to tion that this court' caused tres- terest, to law with reference a new rule of common English would have cattle, rule passing because ancient the policy. proved a “ruinous” lay precept' a ruinous than to down can more
What be up wealthy blow criminals wlio which the of estates making exempt from restitu- people’s be houses shall held money damages to wrong in form tion for may have justice merely avenging an injured, because civil a brought' of the malefactor before about the death he liv- against him while was judgment be obtained could unjust can ing? What be more ruinous and more than say surviving children deceased malefactor to the a they by any shall inherit their father’s estate undiminished out it for the children of restitution benefit other “put who been on the malefactor’s victim has bombed spot” by a deceased tort feasor? any previously adjudged
We not have overrule do cause action in tort case reach the conclusion system law die under of common does not the Florida essentially nothing incon- There the tort feasor. right of action recognizing survival of sistent recognize refusing to while tort feasor deceased representative of personal a survival favor necessary justice and vio- not injured if to do one, that be rule stare decisis. late the “remedy”. Rights to a
Our Bill of refers this What is “remedy” remedy”? gave the common Is it not injury ? injured wrongful one com- for And is an “remedy” Rights preserved so under our Bill of mon law plaintiff? “open” to the Does not long courts shall “open” mean that the courts are to the the constitution long he, plaintiff lives? plaintiff so says L., language C. G. If the of Section person, injuries shall die with the all actions means no more than what we would decide if that statute exist, did say, merely not' that is to if the statute is declara- tory means no than more what the common law meant, Chappell case, as was indicated supra, then “provisions” we do not set have to aside of the statute in this reach here, case to the conclusion contended legis- and the criticism the effect that we exercising are power Rights lative on the basis of IY of Article Bill is not well taken. point any is not that new is created Rights,
Bill of but that the old ENGLISH common law rule which TERMINATED feasor, death the tort *17 acknowledged pre-existing right which action had against him, part' not accrued did become a of the common Florida, only because of the not INTENDMENTS system Rights, Bill of our but of the whole of Florida recognizes right' law which of action torts as reme- dial, punitive. ample
There is warrant for this Court to continue to an plaintiff, hold such action dies with the as at the ENGLISH common but that action n tortfeasor does not because of the modification die ENGLISH common law which laws has been made State. Thus we can still two cases of this follow the old extending Florida, rule decided without recognized like the at bar. there to cases one necessary so, unhesitatingly But if we should do modify expressly previous our holdings over-rule the they may conflict with the rule here an- cases insofar nounced. acknowledge of stare decisis abso- that the doctrine
"We lutely ordinarily a It is wise rule of action sound. faithfully Court in cases adhered to most should be integrity judicial preserve administration of legal principles. But of stare decisis is not' a the doctrine universal, command. The instances in which inexorable departed has States itself Supreme United Court of the uphold fundamental accomplish justice, from it to true departure will he many. right's, Examples of such are by that long decided following list cases found 653, Ry. (260 U. S. Co. Chesapeake & Ohio court: Lee v. 449); Ter (203 U. S. parte Ex Wisner 659), overruling 553), overrul 529, (257 U. ral v. Burke Construction Co. S. (94 535), S. Doyle Co. U. v. Continental Insurance ing 246); U. S. Security Prewitt, 202 Mutual Ins. v. Life Co. 8, (246 S. Co., U. Graphophone Boston Store v. American (243 U. Co. v. Film 25), Picture Co. Universale and Motion 1); S. Henry (224 U. 518) over-ruling v. Dick Co. 502, S. over-ruling 601), (241 591, S. Nice U. United States v. Loan 488) ; v. Farmers’ S. Pollock Heff, U. Matter Hylton over-ruling v. United 601), (158 & S. Trust Co. U. 367, (153 S.U. 171) ; v. Lewis (3 Dall. Roberts States 291) ; Brenham S. over-ruling (104 U. 379), v. Little Giles 187), over- (144 U. S. Bank v. German American Burlington (3 654), ruling v. Wall. Mitchell Rogers Leisy 270); (135 Burlington (4 Wall. v. Hardin U. S. v. (5 118), over-ruling Hampshire v. New How. Pierce (113 476, 496), 504) States U. S. over- ; Morgan United Legal (7 700); Tender Cases v. White Wall. ruling Texas Hepburn (8 457, 533), over-ruling v. Griswold (21 Wall. 603). Wall. *18 in departed from this Court has also been
The rule history regard to noteworthy in its even with instances ordinarily sacredly pro- rights the most which are property Christopher decisis. v. rule of stare See the tected holding Rep. 273, 55 where the Mungen, 513, 61 Sou. Fla. 893, 151, Rep. 25 41 Sou. ex- Sneed, v. Fla. in Adams although over-ruled case had stood over-ruled, pressly 1899. Western Union property Also see since rule of Rep. 1, 14 37 527, Sou. Wilson, 32 Fla. Telegraph v. Co. Am. 434, A. which over-ruled West- Rep. 125, 22 R.L. St. 637, 1 Am. Hyer, 22 Fla. St. Telegraph Co. v. Union ern 1046 damages
Rep. recov- 222, with reference to the measure cipher correctly deliver for failure transmit and erable messages. 219, Washington Dawson, 264 U.
In State of S. BRAN- Sup. Rep. 646, JUSTICE 302, L. MR. Ct. Ed. regard to the following with DEIS statement made Supreme upon Court of propriety, part' doctrines if departing its earlier United States of from has come to consider those doctrines as erroneous: us not deter “The decisis should doctrine of stare it. over-ruling that follow from that case and those acquiesced They been have not are recent ones. decisions property around They rule of in. have not created a They mat- affect clustered. interests have vested hand, solely transitory On other nature. ters of a chil- seriously
they men, lives women affect the is ordinar- general Stare decisis dren, welfare. universal, unex- ily it is not a rule of Bu-t' -wise action. has which the court instances in command. The orable many.” are disregarded its admonition Sup. Again, Washington, 642, in Garland v. U. S. Rep. 456, Supreme 58 L. Ed. Ct. Court of the itself, upon judgment United States based its that' case opinion previously dissenting which had been filed by MR. JUSTICE PECKHAM in Crain v. States United and said: “Holding view, notwithstanding our reluctance Court, now to over-rule former of this we are decisions constrained to hold that the technical enforcement of rights procedure formal criminal sustained’ longer required prosecution and so far as Crain case is no systems present under offenses views ex- is not in accord herein case necessarily pressed, over-ruled.” it' is Daily, published the United States Vol.
In an article 8, 1931, MR. CHIEF JUSTICE CLAR- VL, No. June Supreme Indiana, MARTIN, Court ENCE M. says: stare decisis has served to maintain
“The rule *19 certainty reasonable in the but also led to it' has University what Dean Smith, School of of the Columbia Law, inbreeding characterizes ‘an which intellectual perpetuate long has tended to lost' ing order, which have since ideas utility.’ ‘Legal concepts pass- their social of a born ‘ ’ losing utility, says, are devices their he and making designed for law function in and law administration simple society breaking are down under complexities life. the courts modern Seldom do historian, utilize the knowledge economist, psychologist philosopher determining or the social policy. profession technique developed has no knowledge result, such is made available. As a legal standards are often inconsistent with actual ex- perience.’ strange Stare decisis has hold the law- yers judges of America. The Law Insti- American engaged great tute is restating work of the com- doing mon law. It is a remarkable work. But is generalization Many past purely. judges, from cases such as Cardozo, Holmes and long fully have been frankly aware that there are legal other factors besides precedents that effect decisions. The science the law cannot ought solely to be limited to the deci- past.” sions majority A of the Court have reached the conclusion that under right the laws of Florida a of action in tort for recovery purely compensatory damages per- injuries sonal caused a tort feasor his lifetime does not die with feasor, the tort but that such action, which accrued against has the tort feasor his lifetime, survives death, after his and that an action at may brought based thereon or maintained injuried party against representative of the estate of the feasor, deceased tort recovery for the of com- pensatory damages out of the tort feasor’s estate for the personal wrong injury done.
It is further that if anything held there con- trary implied previous to be holdings from the of this Court, previous such decisions to they the extent con- *20 here, disap-
flict be with the conclusions reached should proved and modified conclusions here- to accord with the inbefore stated. holding, judgment
So re- follows that must be versed and the directions to over- cause remanded with plaintiff’s rule demurrer to the and have declaration may such proceedings according further to law. Reversed and remanded with directions.
Bufobd, C.J., J.J., concur. Terrell, and “Whitfield and J. All themembers of the Court are of the Whitfield, opinion plaintiff of be under law this State may low administrator maintain an action alleged damages injuries tort feasor to recover to plaintiff’s dwelling by house caused the tortious act of the administrator’s decedent' his lifetime. personal injury person ato woman married caused “A action; tort one gives third to two causes rise personal pain suffering, her other and the consequential society
for the husband’s of her loss expense services and for and incurred attention for medical nursing.” C. J. 966. right At common law a husband of action re- had to damages impairment capacity cover for the of his wife’s him render marital service to caused the tortious act person; but third such of action abated at the organic feasor, death of the 1 C. J. 203. tort The law and statutory enactments of this are inconsistent State with the rule the common that such action does not sur- feasor, inconsistency, the tort vive because such (71) common law rule is not in force. See Section 87 C. G. L. statute, (2571) effect of
The Section O. G. designed modify which injustice L. of the com- mon is to authorize the husband to maintain an action against the administrator a tort feasor who in his life- her injuries impaired personal time tortious to the wife capacity husband. marital services to her render charged The four classes tort is not one of the here ‘‘ injuries shall die the statute under change person”. being purpose the statute *21 the quoted common that actions for law the words mean per- personal injuries the not survive the enumerated shall son injured. died but alleged tort feasor has Here the injured the person husband who loses is alive as is her personal injuries her to her marital services because by feasor. deceased tort the actions for enumer- provides 4211 L. C. G. that
Section per- with the personal injuries “shall die ated classes may main- shall and be son”, other actions and that “all representatives of the personal name tained in the phrase, considered with quoted deceased,” which latter Section, that all other means preceding provision of the personal injuries than those stated for actions may statute, be maintained the name shall survive and action, If an or a representatives the deceased. may maintained and survives, it be of action cause may provided law. parties as appropriate be expressed is, in an State The of this intent laws any every injury person for done organic provision, that injury remedy by due of law. The have course him shall his wife, to his home and to here is to his plaintiff injuries contemplates that for such property; and damages remedy recoverable from the shall have he property, due course feasor’s tort Eights. may 4, Section Declaration justice be done. 1099, 429, 99 128 Fla. So. Cunningham, In v. Close injuries at personal for abated that an action decision wrong-doer, upon was. affirmed of the defendant death Chap- theory prior court in the decisions of this 4211 construed Section Townsend cases had pell Laws, Compiled first enacted (2571) General 1050 personal injuries
abate all actions for at tbe death person injured person committed either the or the who injury, rule stated in which was the common law Ry. 10; 1 1 Chappell, So. C. St. v. Fla. Jacksonville J. 195. (2571) provides that statute, C. G. L. Section injuries per- for with the personal
“all actions shall die imprison- battery, false son, slander, assault towit: prosecution; shall and ment, malicious all other actions may representatives name of the be maintained part means that of this Section the deceased.” The first injuries, actions personal classes of enumerated person shall injured, die not that such actions injuries die if shall with the tort feasor person injured living. Jewett, 935; See Brill v. Fed. Brooklyn Gregin Co., C. R. N. Y. 192. The statute designed modify was doubtless and not to restate the *22 adopts law A common rule. statute of as the common law this State the England, provided common of it “'be not inconsistent with the constitution laws.” Section and Compiled 87 (71) Laws, originally in General enacted 1829. See also Section 6, 16, Article 1838, Constitution of 5, Section XVI, Article 1861; Constitution of 6, Section XVI, Article Constitution of 1865. To an action abate for personal injuries because the death of the tort feasor may fairly regarded as inconsistent the laws of State, this therefore, that rule of the common law is not in in force Ry. this State. & See S. F. W. v. Geiger, 669; Hadley City Fla. of Tallahassee, 67 436, Fla. An interpretation So. 545. statute, that the Section C. G. L. abates only upon the enumerated actions the death injured person, provision accords with a of the “every of 1885 person any Constitution for injury # * done him remedy, shall have law,” course due etc. Rights. Section Chappell Declaration When and Townsend cases were decided the of 1868 Constitution organic quoted above then in did not contain the force though in the Constitutions provision, it was contained 1838, 1861 1865. and Davis, J.J., con-
Buford, C.J., Elms, and Terrell and cur. part. in J., part in and dissent's concurs
Brown, dissenting in part and (Concurring J. Brown, : n —-Whilethe justice would part) principles natural seem require support kind, the admin- an action liable answer out the decedent’s istrator to be held wrongful him in his life- for committed estate acts regardless of another, time, injury damage of to the thereby had been wrong-doer whether estate of the generally warranted not, increased or courts are grounding upon jus- their decisions their ideas of natural tice, where such ideas are in conflict law. with established prime fairly It is the function of court to and rea- sonably interpret exists, it' leaving law as it to the legislature changes make or amendments as new such enlightened understanding conditions or a more justice may duty require. Our therefore in this case is to -determine whether the court below was correct in sus- taining plaintiff’s the defendant’s demurrer to the declar- existing time, ation this case the law at that cor- under rectly reasonably interpreted. sounding
At common cause of action, where a of an- tort, injury person property to either the only by an ac- other, was such that it be enforced could general damages, plea which the tion ex delicto not, guilty,” cause of action issue “not such did must be *23 by person to or general rule, survive the death a action, done; wrong was so that such a cause whom the thereon, of either pending action abated on the death or a by early English of 4 III party. statutes Edward But part 11, III, which constitute c. 7 and 31 Edward c. so as to State, of this rule was modified
common law this 1052
give representative for cer- personal an action in favor injuries 3 property. tain later statutes And IV, 42, 3, and 4 rule was 'William c. Sec. the common-law per- giving further modified in favor of the an action representatives injury estate, sonal to real and personal representative person- injury real property, al changed but none the com- of these statutes Furthermore, injury person. mon law rule as to the might here, last referred English observed statute to, 3 IV, 42, 3, adopted 4 William some c. Sec. fifty years year subsequent 1776, hence odd to the did England adopted part not become of the common-law of 6, D., 1829, now State the act of November A. 87 Comp. originally Statute, Sec. Gen. Laws. This Florida adopted by legislature the territorial of Florida, later by the legislature, adopted State the common and statute England, general laws of of a and not a local nature, down day to the 4th July, 1776, they insofar as in- were not consistent with the constitution and laws of the United (and States necessarily statutes by implication, constitution) also the of this State.
It is necessary not here for us to discuss the status of the common-law with reference to the survival actions or of actions, causes ex contractu, plain for it is declaration in the case at bar founded, upon a con- express tract or implied, upon pure but a tort, and sim- ple, and delicto, is an action ex plea gen- to which the eral issue would necessarily plea of guilty”. be a “not support
In propositions above with reference to the common-law, 1 J., 153, see C. 134-185; 1 R. C. 29-35; L. Railway Jacksonville Company Street v. Chappell, 22 Fla. 10; 1 616, So. Jones v. Townsend, 23 355, 612; Fla. 2 So. v. Cunningham, Close 99 Fla. 128 429; Encyc. So. Pldg. 805, 806; and Prac. U. v. Daniel, S. II, How. 323; Wynn Law Ed. Tallapoosa County Bank, 168 Ala. 228; 53 So. Sullivan v. Associated Bill Posters, Fed. *24 (2nd) 503; Pldg. A. L. & R. Fla. Com. Law Prac. Crandall, Sec. 10.
In opinion case, following ap- the last cited pears : “Sir Pollock, Torts, on 11th Frederick in his Work p. 61, discussing liability ed. a death of declares it to be produced effect on the wronged wrongdoer, person either the or parts’ one of ‘the least' rational
law; and he also declares that ‘when once the notion of vengeance put aside, compen- has been and that ‘ substituted, personalis sation the rule actio moritur cum persona’ plausible ground. be First', seems to without as liability, impossible why to the doer’s estate isfaction for his it is wrong- see exempted be making should ever from sat- residuary wrongs. It better that the legatees should to some extent cut than short person wronged deprived of should be redress.’ The writer, page 71, stating same after the rule that of action survives the executor in cases property where the decedent has added his own estate or other,, proceeds property belonging value or to an- specific acquisi- rule states is ‘limited to recovery tions’ of their value. It does not include the damages, such, wrong, though wrong may as for a wrongdoer’s or have increased the estate in the sense being expense.” him saving useful to him plain therefore, We think it is that at common-law as it existed in A. D. the cause of action in the stated only bar, declaration in the case at in so far it is injury injuries, plain- based on for the but also tiff’s real property, would not have survived the death wrongdoer, brought' even if a been his suit had before abated; nor, death, in which case the action would have common-law, under the would such cause of action have injured party survived so as to authorize a new suit parties. against personal representative of the de- ceased tort feasor. however,
It remains to consider whether com- us changed of No- mon-law was so and modified the act *25 substantially 30, appearing, 23, 1828, now Sec. vember Comp. 4211 of act, Sec. language original as the the same maintenance institution Laws, as to authorize the Gen. injuries personal for the either such a cause action estate, or real damage to the or the done to the wife feasor, tori of the administrator deceased both, the This case. this in the declaration such as is contained 1927, Laws of Compiled General appears in section as it the by me, as follows: being italicized reads after IN- FOR PERSONAL (2571) 4211. SUITS personal injuries shall die actions JURIES.—All slander, battery, to-wit; person, Assault with the all prosecution; imprisonment, and malicious false name may be maintained the other actions shall and 1828, (Nov. 23, representatives of the deceased. of the 30). Sec. Railway Company v. In the case of Jacksonville Street 1886, year it Chappell, 616, 10, 22 Fla. in the So. decided change common-law was statute did not held personal injuries, and that' the ac- rule as to actions for case, damages in tort to recover tion was passenger resulting personal injuries from received through negligence carrier, common abated plaintiff, of the death and could not be his revived personal representative.
In 355, 612, Jones Townsend, Fla. So. decided in 1887, it was held that under the common-law quoted, right above statute action for libel dies with plaintiff, and the action can revived favor personal representative. opinion his In the of MR. case, JUSTICE RANEY in that it was said: “Turning November, 1828, taking to the act of general view either whole of of it Section purpose and Section Legislature we are that the satisfied simply provide that all actions for personal injuries person, should die with and that all other (immed- actions should survive. The enumeration iately plain after the and broad declaration that here- personal injuries after all actions for with the shall die only person, for which personal injuries some those actions common-law, did so at in- die does not show an general tention that the declaration of act should be qualified by enumeration; particularly such does this seem immediately to be find, following, the case when we positive declaration that all other actions shall be representative maintained in the name of ceased. the de- Suppose wo assume that the framer of the bill at drawing the time of no could recall other in- juries, son, of action per- for which died plain is it not still purpose provide that his was t'o *26 personal that all actions for injuries, whatever the in- jury, should so die? Is this real intent to be defeat- by ed an omission in injuries? the enumeration of the Looking at the language entire of this 30, section we injuries must either examples, or, given hold that the stated as were do, which we cannot well Legisla- that the ignorant ture was common-law, of the and if we make all assumption the latter clear there is still a intent that personal injuries actions for should die. To hold that strong plain the enumeration and controls the declara- give tion of the section to the statute an effect' con- trary plain expressions t'o the sense all of the other section, expound according letter, to and to it neither its whole, meaning. considered a view as nor its evident In ‘to-wit’; language preceding of the the intention was clearly personal injuries, reaching all actions for one say understanding if and we should even that the of the Legislature injuries all was that enumerated were those which at common-law to actionable on the ceased be person Legislature, death of the was not the intent of the injuries ? personal still that all actions for should Is die though all, out, not an intention to not' enumerate carried language to be sustained where the other of the statute clearly thing shows which is was such intention. A there object, spirit meaning within the statute, is as much within the statute if it as were within Dwarris, p. of it. 179. the letter Potter’s An action personal injury or based on a libel other not enumer- meaning, is as much within let- ated even the act, looking context, ter at its as one of this based wrong. Judges enumerated are look slander other view if, upon a act, language at of the whole large they more whole, of and extensive lature, from the can collect Legis- expressions intent the real larger duty give effect to the is their expression, though particular clause there be large those expression or extensive as the act an not so parts.” used other 429, 128 So. Cunningham, In v. Fla. Close alleged injury plaintiff brought action negligent operation a motor have been caused truck, pending, the died. and while the case was defendant section It' was held in that case that under said person could not revived action died with the personal representative defendant. The of the deceased judgment affirmed, Per Curiam the court below was in a Railway authority opinion, on the of Jacksonville Street supra. In Company Chappell v. Townsend, and Jones opinion writer, called concurring attention was quoted fact that the statute above had been em- Stats, in the adopted by braced Rev. legislature, subsequent compilations and also our general light laws, of the construction theretofore placed early on it cited, court the two cases above *27 stand; that such construction should be állowed to that any if change adopted, was it legisla- should be left' to the ture, courts, and not the to make it. It ais well settled principle adoption lawof of a code of revision of legislature presumed is known to have judicial placed on construction which had been a former therein; statute embraced and therefore the re-enactment substantially provisions in the of the same those code as legislative adoption in the is of contained former statute Oyc. judicial 1168, the known construction. and cases .36 principle cited. This court has extended this somewhat' by adoption legislature holding farther that the our adopting, the statute of another had the effect as State forming integral part same, an known and set-
1057 of the placed the courts State tied construction thereon that con- adopted, has been so far as from which it policy of spirit and struction is not inharmonious with the too, subject. This general legislation own our same 15 Hunt, v. 34 Fla. So. 85, Duval is well settled rule. See Railway Company Mooney, v. 876; Central, Florida etc. Railroad Com- 17, 148;
40 24 Line Fla. So. Atlantic Coast rule 311, 45 761. This does pany Beasley, v. 34 Fla. So. re-adopting a adopting necessarily or not mean that legislature necessarily adopts statute the all ex- pressions may opinion have been contained in the by way construing it, dictum, the court of obiter dealing necessarily with matters not involved decision .the the case. reading
It will be found from a careful of the two early construing cases L., what is now section 4211 C. G. Railway Chappell, Street Co. 616, Jacksonville Fla. Townsend, So. and Jones v. Fla. So. definitely been an has decided this State that action in personal injuries any tort for sort is abated plaintiff defendant, death either cannot re- against' personal representative either; vived that in only eases, person, such not the action dies with the but dies, cause of itself case at action was the common- law. brought' against wrong-
This tort action not during lifetime, brought against but was the admin- doer his istrator of his estate after his death. Defendant in Error reason, having contends that the action not been brought wrongdoer, of the the entire before death cause only died; pending statute of action that under the actions question whether such can survive. The exact here action, pending of the death, an at' the time tort feasor’s subject survived, plaintiff or abated *28 against bring administrator, new to revive it or a suit the or, called, cause action as it whether the of is sometimes but' action, declaration, of survived right forth in the set injured feasor, the death of tort so as enable party bring against an action therefor administrator of the tort deceased feasor. This distinction between right, cause, itself, or of action, and the action is not clear- ly books, statutes, decisions, made in text' or some dealing subject. is, this no The reason doubt right generally the action and the of action or fall stand generally together, For, together. are considered right abates, pro- if speaking, action or fails ceeding be will fail also. to enforce cannot maintained and only likewise, by And if the form action which available may right enforced, abates, right action, for all practical purposes, A a rem- falls with it. without edy empty for its enforcement is an and usual- abstraction ly possessor. no In little or value to it's commenc- ing by subject death, the treatment abatement says: Corpus (1 153) author the text' C. J. Juris person against The death of a in whose favor or whom ‘ ‘ may operate cause action abate the has accrued right of itself, action so that no action can be afterward against commenced or representatives, his brought by nor an against action or him before his death revived and personal repre- continued his ; sentatives and even survives, when a cause of action pending may party. action thereon abate on the death of a proposed It is together therefore to chapter treat both the abatement and survival of causes of action death regard already without to whether an action has commenced, been and the abatement and revival of pending subjects actions. It seen that will be the two closely they are separately so connected that can not be repetition.” treated without almost endless Surely legislature, adopting in 1828 the statute appearing now L., as section G. G. intended to make change some in the common-law as it existed; then other- adoption wise there have no would been need change the statute. And statute did the common-law *29 actions, per- providing other that all other than those appear will from a injuries, sonal As should survive. reading in Street opinions of this Jacksonville the court Railway Townsend, this Chappell Jones v. Co. v. reads, statute, court this first clause of construed the per- personal injuries “all the shall die with actions for son”, declaratory to common-law, to which was be of the per- actions, action, the rights effect that all injuries sonal statute person. far, died with the So the merely declaratory concerning ac- of the common-law rights tions and personal injuries, action for which was tersely that, stated Lord when “the Mansfield said he wrong evidently wrongdoer together.” and the die the So legislature merely actions, pending did not mean that all already suits brought', person. die with And should for the same cause it be hold that would not reasonable to clause, the additional reading “all other actions shall may representatives be in maintained the name of the ’’ deceased, pending should be actions at the confined party. time I death deceased inclined am in to the view first that second clause as well as in the statute, legislature clause of “ac- this used word broad, generic sense," compre- intending tions” in a thereby rights Thus, hend both actions and action. L., “Any 6. section C. where it is said: civil action may party at law maintained in name of the be real ’’ manifestly only interest, not nominal means, may plaintiff proceed stricken in the be out and case plaintiff, party in in- name of the use but that real may terest commence the suit in first instance. The say already legislature not all other did actions be- gun pending may etc., shall maintained, be but it may said that “all shall and maintained other-actions be representatives the name of the the deceased.” Error, contending Defendant addition that' only applies pending suits, statute also contends that only by, and may maintained such “other actions” personal representative of the deceased. *30 177, In 1 J. it is said: not C. This contention is tenable. personal against the an “Where statute action survives be defendant, also considered representative it must of representative of personal surviving as in favor of the that though express provision to plaintiff, there is no even Jewett, 262 Brill v. Fed. 935. effect.” See also Error further that while statutes Defendant in contends being actions, remedial, are to the survival of intended aid liberally construed, of of to statutes aid the survival be action, derogation common-law, causes of are being in the of Wynn strictly construed; among cases, citing to other Tallapoosa supra. v. Bank, 177, It is said in C. that J. holding this weight is not accordance with author- the of ity. controlling purpose But our is the ascertain, to from language statute, light of construed the the harsh background common-law, subject, of particular of this legislature really what the language intended used certainly enactment; in its it must have to intended change make some from then afford some relief rigor existing governing subject. of the common-law such opinion In RANEY, MR. JUSTICE of Jones Townsend, “Turning November, he said: of to the act taking general view either the whole of sec- 30, or tion of it we and section are satisfied that purpose legislature provide simply all that injuries personal person, actions for should die Construing that all other should survive.” actions n this language light in the language other in the opinion, quite plain it is RANEY that JUSTICE meant only pending actions, rights not but of action as well. early says: part opinion Thus “If he personal representative of action did not survive to the intestate, made, have the above order been should ’’ subsequent proceedings again and all are erroneous. And says: he or of the common- “What innovation alteration presumed been can be from the act either have ‘absolutely required,’ intended, to have been as to or mentioned, language actions causes action when the is the act a mere declaration of what the common-law is as such or causes of action?” actions
My con- conclusion therefore that under the settled long court, said struction since made section means that all and causes action actions injuries common-law; person, shall with the as at but die necessarily must meant' it also have all other actions, excepting as action, pending causes well those survive, goes on personal injuries, should because say may be that “all actions shall and maintained other *31 representative the the name of the of deceased.” If the right effective, such “other actions” is to be to maintain it follows action, that the of causes on which such “other ’’ based, necessarily actions are must have been intended to survive, otherwise there say would have been no use to may that: “all other actions shall and be maintained in representative the of name the of the In deceased.” other words, at statute, common-law and the under the cause of action, personal injuries, for person, died with the and necessarily any action that brought had been thereon died it; neither the nor of survived; action the cause action but, statute, under the all other actions a/nd also causes of action would of parties, survive death of either making say hence sensible and “All reasonable to that: may other actions shall and in the maintained name representative of the deceased. is This construction previous not in conflict' with our decisions.
Eliminating part for the moment the declara- damages expense tion which for seeks the medical occa- injuries plaintiff’s sioned to wife and for loss only companionship, considering her and services allegations wrongful charged as to act and the
damage thereby plaintiff’s dwelling—his real caused to certainly is property, aspect suit in not a this latter damages personal injuries, but one for suit' dam- ages estate, hence, under our statute above real discussed, right or action survived cause therefor right plaintiff the death feasor and the tort had bring his action the tort ad- therefor feasor’s So ministrator. the declaration contained the statement of good respect, cause of and the demurrer action in this improperly sustained, in- the declaration was therefore as asmuch not be to a declara- demurrer should sustained wholly as a tion whole unless it fails to state cause action. part the husband to re right of on the action companionship, of his wife’s services for the loss
cover expenses necessary and other occa medical as well as for personal injury com battery or other by assault and sioned L. 13 R. C. recognized common-law. her, was at mitted impliedly right is at least And this 1416; C. J. 697. But 4226 G. L. at common recognized C. section by the was abated husband action this of the husband. the death wrongdoer, death decisions conflict in the L. 46. is considerable R. C. There changing or statutes- mod country, the various under actions, survival of the common-law ifying rule pur serve action, causes it would no useful *32 statute, pose seen, for here. As we have our us to review personal injuries for provides 4211 G. G. L. that all actions certainly person. language the This is broad shall die with personal injury enough to cover an action founded on damage as regard the nature of the claimed aris without ing services, It therefrom. is true that the loss of the wife’s compensation sought is in case, for which this did not re injury any personal plaintiff, sult from t'o the but did personal injury wife, from a result the claim damages therefore, effect, personal in “action for for is an
1063 injuries.” plaintiff’s wife, Manifestly, injury to the incurred, damages expenses on which his claim for for injury an services, etc., founded, loss of to her was was person personal injury if to her there been no had accruing to there would have been no cause of action language is not restricted to husband. of the statute injuries plaintiff. person actions to the There nothing is in the context indicate that the words are sense, used in narrow or in actions juries only person which brought with the are die those directly person receiving physical per or other injuries. sonal Plaintiff in Error contends that the statute apply personal injuries should be construed to to eases for ‘‘ plaintiff only, are, but statute the words all personal injuries actions for person.” shall die Dictionary Among meaning of the word “for” are “hence; of; of; consequence because on account in of.” Jenifer, See v. 114 488, Demczuk 138 Md. Atl. “At 475. although survive, property common-law tort actions do rights incidentally Lunaburg, were affected.” Howard v. Regan 346; Davis, 1073; 57 A. 54 L. R. v. A. L. R. Ott v. Laufman, 56, 68 11 contra, Hey 580. Md. Atl. Per see Prime, 474, (N.. S.) E. 17 L. Mass. N. R. A. general question 570. The reviewed R. L. is 46-47 C. leading cited, on some cases but account of the statutory provisions varying these decisions are not of considering question much to us service under our page Chappell case, In the own statute. on Fla. So-., considering question page 10 of 1 and as to whether not the that case declaration tort or says: is contract, the court “It true it states damages, naturally expenses time, and loss create diminu personal estate; this, however, tion the intestate’s contract, no statement of a and breach thereof as a cause sought action, only damage but' to be recovered for in so it might the action.” And said here that while *33 plaintiff for damages part claims to the declaration in alleged etc., expenses of it' is and his wife’s services loss injuries damages from the that these arose by in plaintiff’s defendant’s the tort of the wife caused a suit for remains, essence, testate; and suit thus the of portion personal injuries, as this damages for insofar part of concerned, hence the declaration is and portion of wrongdoer. This cause of action died with strike, think, subject to a motion was, I the declaration out, pointed compulsory But, as above or for amendment. claiming damages plain portion of declaration wrongful by alleged act of property tiff’s real caused personal in not an action intestate, is the defendant’s such cause meaning statute and juries, of the within the of action good cause survived, of action and constituted feasor, the administrator of the tort deceased failing action, declaration not to state cause improperly demurrer sustained. suggested has been that section of the Declaration
It changed the effect Rights or modified of the statute as by My construed this court. idea is that section heretofore Rights intended, its own- the Declaration was not any rights new vigor, to create or remedies were adoption, time of its but was not in existence at the de- signed protect citizen in the use of courts to en- by rights recognized force such remedies as were adoption provi- at the the constitutional time might rights and also such remedies as thereafter sion and provision It was not intended be created law. improvise constitution that the courts should reme- recognized by rights language law. The dies to enforce provision that, “All courts in this the constitutional every any open, person, injury so that State shall lands, goods, person reputation, shall done him his justice remedy, due course have ’’ sale, delay. denial or without Italics shall be administered
1065 supplied.) By using law,” of the words “due course my remedy means, judgment, constitution in that the must upon is, existing be one founded that the law at the remedy sought time in to be enforced. As was said Olson, 108 ease Tibbetts v. So. “The courts are required ‘by and rights law’,’’ to administer due course of regulation powers that “The and State has of selection organic limitations; determinations, within legislative and subjects, regulations, either as to or as to made the due orderly power, and making exercise of the law are to be regarded prima as within wide latitude author- facie ity and discretion making accorded to the law body, when patently controlling the enactment is not or- violative of ’’ ganic law. 15 16 of See headnotes the case cited. imperfections While common-law embraced some features, highly prized by some harsh it was so our fore- they adopted by legislative fathers act, insofar the same was not inconsistent with our own constitution laws, high appraisal our their courts showed by early the value of adopting the common-law the rule derogation that statutes should be common-law .strictly construed. 4211 L., seen,
Section O. G-. as we have was taken from adopted readopted by in 1828. It a statute was legislature of 1892, in the and 1920. revisions thereof, expressly says statute, the first clause This personal injuries per “all actions for shall die with the particular clause was held son,” and this this court “declaratory early construing eases this statute to be rights So if section of the bill of the common-law.” and nullifies the common-law on this is inconsistent with express provision subject, it also annuls the of the statute many legislature readopted so times after placed upon judicial it. I construction had been can this such was the intention not believe that section constitution; suggested, has it been nor ever before Surely, province so far I within as know. it was personal injuries legislature enact that all actions shall person, shall die but that all other actions That, effect, survive. was what was done section *35 C. G. L. very
While I have much the able been interested contrary subject, I not presentation of the view on this am I sound, view is afraid its convinced that that and am that adoption prove dangerous launching precedent, a would upon forth an it it is uncharted sea. Can be said that province power say judicial of the within that, your case, legislature has litigant, facts you expressly remedy, denied will never- but courts you give pro- If theless one? the courts can aside that set says L. all vision of C. G. that actions personal injuries person, shall die can it also claim, set where a honest aside the statute limitations by lapse just inception, has ? and in its been barred of time Rights I do not think that section of the Declaration legislative any power upon confers the courts. Furthermore, majority view, if 4211 C. that section meaning only G. L. be should limited actions for battery, slander, imprisonment false “assault and person prosecution,” die with the would this malicious change avail to the conclusions reached writer injuries upon plaintiff’s, In this case? so far as the inflicted they concerned, not inflicted an wife were were assault battery? reluctantly While I that in am forced conclude so far damages upon per- claimed declaration based injuries upon plaintiff’s wife, sonal inflicted was not I majority authorized the law. concur with sustaining the court below erred to- demurrer whole, pointed declaration as a out,. for the reasons above judgment court and that should reversed the trial and the cause remanded.
Ellis, J., concurs. Jennings Petitioners, B. Paul C. wife, vs. Marion Judge 27th Circuit Circuit Judicial Albritton, Respondent. County, Sarasota
En Banc. January
Opinion filed 1932. *36 Jennings, Sarasota, pro per;
Marion B. appearance Respondent.
No complaint Curiam. In thiscase in chan a bill Per County cery, Circuit Court Sarasota on filed August 25, process 1931. At that time the the statute prescribed designated C. G. was the form Section 4893 L., process No 3109 R. that section was G. S. under ever defendants,'—a pro on the issued or served decree confesso having purported service been set aside based Court. 1931, 1, 1931, Chapter
On Acts com- October Chancery monly “1931 and cited as Act” became known chancery 8th, process in effective. On October Chancery prescribed “1931 Act” was issued form complaint been August which had filed on on the bill of chancery act effective. 25th, 1931, the new became before