Benoit v. Miami Beach Electric Co.

• Decision Date: 10 April 1923
• Citation: 85 Fla. 396,96 So. 158
• Parties: BENOIT v. MIAMI BEACH ELECTRIC CO.
• Court: Florida Supreme Court

96 So. 158

85 Fla. 396

BENOIT v. MIAMI BEACH ELECTRIC CO.

Florida Supreme Court

April 10, 1923

Error to Circuit Court, Dade County; H. Pierre Branning, Judge.

Action by Delia E. Benoit, as administratrix of the estate of William F. Benoit, against the Miami Beach Electric Company. The court directed a verdict for defendant, and plaintiff brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Declaration must affirmatively show nonexistence of person having precedent right of action. The 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 or husband or 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 dependent 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.

'Dependent' defined. Where the suit is brought, in such cases, by a person who bases his right to recover upon the fact that there 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 the 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.

Administratrix dependent on decedent cannot sue. Under the statute authorizing successive classes of plaintiffs to maintain, in the order named, an action for damages for the wrongful death of a person, an administratrix of the decedent as such cannot maintain the action when it appears that she as such dependent had a prior right under the statute to maintain the action as a plaintiff who was 'dependent on the person killed for a support.' In this case the decedent left no widow nor minor child.

COUNSEL

Hudson & Cason, of Miami, for plaintiff in error.

Willard & Knight and Frank Smathers, all of Miami, for defendant in error.

OPINION

WHITFIELD, J.

In an action to recover damages for the wrongful death of an unmarried adult, brought under sections 4960, 4961, Revised General Statutes 1920, by the mother as administratrix of the estate of the deceased, it appeared from the plaintiff's evidence that the son was unmarried and had regularly and materially contributed to the support of the mother, and that she was at least partially dependent on her son for support though her husband was living. On this showing the court directed a verdict for the defendant, and the plaintiff duly took writ of error.

The statutes are as follows:

'4960. Whenever the death of any person in this state shall be caused by the wrongful act, negligence, carelessness or default of any individual or individuals, or by the wrongful act, negligence, carelessness or default of any corporation, or by the wrongful act, negligence, carelessness, or default, of any agent of any corporation, acting in his capacity of agent of such corporation (or by the wrongful act, negligence, carelessness or default of any ship, vessel or boat or persons employed thereon), and the act, negligence, carelessness or default, is such as would, if the death had not ensued, have entitled the party injured thereby to maintain an action (or to proceed in rem against the said ship, vessel or boat, or in personam against the owners thereof, or those having control of her) and to recover damages in respect thereof, then and in every such case the person or persons who, or the corporation (or the ship, vessel or boat), which would have been liable in damages if death had not ensued, shall be liable to an action for damages (or if a ship, vessel or boat, to a libel in rem, and her owners or those responsible for her wrongful act, negligence, carelessness or default, to a libel in personam), notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.

'4961. Every such action...