Duval v. Hunt

• Decision Date: 19 July 1894
• Court: Florida Supreme Court
• Parties: DUVAL v. HUNT et al.

15 So. 876

34 Fla. 85

DUVAL v. HUNT et al.

Florida Supreme Court

July 19, 1894

Error to circuit court, Duval county; James M. Baker, Judge.

Action by Ann B. Hunt and others against H. R. Duval, receiver of the Florida Railway & Navigation Company. Judgment for plaintiffs, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. In actions for damages caused by negligence, while it is not necessary that the declaration should set out the facts that tend to establish the negligence complained of, yet it is requisite in all such cases to allege facts sufficient to point out the wrongful act of commission or omission that constitutes the negligence relied upon for recovery.

2. Our statute granting the right of action for death by wrongful act or negligence confers the right exclusively (1) upon the widow or husband, as the case may be; and, if there be neither of these, then (2) upon the minor child or children and, if there is neither widow nor husband nor minor child then (3) upon such person or persons who are dependent for a support upon the person killed; and, if there is no one belonging to either of the above three classes, then (lastly) upon the executor or administrator of the person killed. The existence of the right of action in any of these classes of persons, in the numerical order named, commencing with the second class, is wholly dependant upon the fact whether there is any person in esse belonging to any of the classes who are given by the statute the precedent right over him to maintain the action. The existence or nonexistence of any one having the precedent right of action under the statute enters into the very substance of the right of action itself when instituted by any of the named classes of persons after the first; and when the suit is brought by any of these different classes, except the widow or husband, the declaration, in order to show a cause of action, should affirmatively show the nonexistence of any other person having a precedent right of action over the plaintiff under the statute.

3. When the suit is brought in such cases by a person who bases his right to recover upon the fact that he is a dependent upon the deceased for support, then he must show, regardless of any ties of relationship, or strict legal right to such support, that he or she was, either from the disability of age or nonage, physical or mental incapacity, coupled with the lack of property means, dependent in fact upon deceased for a support. When adults claim such dependence there must be, because of some of the disabilities above mentioned, an actual inability to support themselves, and an actual dependence upon some one for support, coupled with a reasonable expectation of support, or with some reasonable claim to support, from the deceased.

4. Suits on behalf of minors, in such cases, must be instituted by and in the name of a next friend.

5. Where the deceased for years prior to his death had voluntarily cared for and supported his aged mother, a minor sister, and a minor niece, all of whom were without property means of support, such support in the past gave them a reasonable expectancy of its continuance in the future; and when coupled with the disabling advanced age of the mother and the disabling minority of the others, and their want of property means, conferred upon them the right to recover under the statute as 'dependents for support;' the value of such support for the mother to be estimated to the end of her expectancy of life, and for the minor sister and niece up to their arrival at their majority. The fact that the father of such minor niece was alive, and physically and mentally able to maintain her, would not deprive her of the right to recover as a dependent in such case, where the deceased had in fact maintained and supported her from her earliest infancy, and her father, during that time, had not supported her, and had no property.

6. No recovery can be had for the death of any one caused by the wrongful act, negligence, carelessness, or default of another, unless the wrongful act, negligence, carelessness or default from which the death ensues was such as would have entitled the deceased person to a recovery of damages had death not ensued. If, for any reason, the deceased person would have been defeated or barred from recovery had he been alive and suing for personal injury only, then the same reason or cause for his bar or defeat will bar and defeat a recovery for his death by any one suing on that behalf.

7. Chapter 3744 (act approved June 7, 1887) was adopted here from the Code of the state of Georgia. Besides our adoption of the terms of the statute itself, according to the well-settled rule, we also adopt, as forming an integral part of the same, any known and settled construction placed thereon by the courts of the state from which it has been adopted, in so far as that construction is not inharmonious with the spirit and policy of our own general legislation on the same subject.

8. Under section 2 of said chapter 3744, that is as follows: 'If the person injured is himself an employé of the company, and the damage was caused by another employé, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to the recovery, and no contract which restricts such liability, shall be legal or binding,'--one employé of a railroad company can recover of the employing company for injury sustained through the negligence or carelessness of another employé of the same company, provided he be without fault. To entitle the injured employé to a recovery in such a case, he must himself be entirely free from fault or negligence.

9. Under this provision of the statute an employé of a railroad company cannot recover damages from such company for injuries sustained by him on account of the negligence or carelessness of another employé, unless wholly without fault himself, even though in performing the act that results in the injury he was acting under the orders of a superior.

10. Where an employé of a railroad company uses defective and dangerous tools and appliances, with knowledge of their defectiveness and dangerousness, and is injured thereby, he cannot be said to be without fault, and cannot recover of the company, under this statute, even though his use of them was by the direct command of a superior officer, who was also an employé of the same company.

11. Where the aged mother and the minor sister and minor niece of the deceased are suing, as dependents for support, for recovery of the damage sustained by them through the wrongful death, it is error to instruct the jury 'that there is no fixed rule or standard to measure the damages that should be awarded, but that the amount thereof rests in the judgment and discretion of the jury; and that, in estimating the damages, they shall take into consideration the full time that the deceased would probably have lived.' The meaning of our statute is that the damages to be awarded are such only as will compensate the beneficiaries of the action for the loss resulting to them from the death. In estimating the damage sustained by the mother in such a case the jury should take into consideration the probable duration of the joint lives of herself and the deceased son, and should give her such an amount as she, from the proofs, had the reasonable expectation of receiving from the deceased during the time that she would probably have lived jointly with him; and in estimating the damage in such case accruing to the minor sister and minor niece, who, by reason of their minority, are entitled to sue as dependents, the jury, in absence of proof of any other disability, mental or physical, except that of their minority, should limit their finding to such an amount as would compensate them for the loss of the means of support that, from the proofs, they could reasonably have expected to have received from the deceased up to and until they arrived, respectively, at the age of 21 years. Mortuary tables in approved use are relied upon as evidence of the probable expectancy of life of the various persons involved in such suits.

12. In estimating the damages, where an aged mother, a minor sister, and a minor niece of the deceased are suing, as dependents for support, for his homicide, the jury should be instructed to inquire from the proofs what would be a reasonable support for the mother during the probable remainder of her natural life, and for the minors until they arrive at their majority, according to the circumstances in life of the deceased as they existed at his death, and as they may be reasonably supposed to exist in the future, in view of his character, habits, occupation, and prospects in life, the earnings he received, his health, age, talents, and success in life in the past, as well as the amount of aid in money, property, or services that he was accustomed to furnish them while in life; and when the money value of that support during the period named has been found, to give, as damages, its present worth. The estimate thus to be made must be based on facts in evidence, and must be confined to those damages that are pecuniary in their nature, and that result from the death of the deceased.

COUNSEL

John A. Henderson, for plaintiff in error.

H Bisbee, for defendants in error. The defendants in error, Ann B. Hunt, Annie V. Hunt, Catherine H. Hunt, Sarah E. Hunt, and Sealey M. Hunt, by her next friend, N. S. Upchurch, in May, 1889, in the capacity of dependents for support upon William J. Hunt, sued the plaintiff in error, H. R. Duval, as receiver of the properties of the Florida Railway & Navigation Company, in the circuit court of Duval county, for damages resulting to them, as...