Booth v. Mary Carter Paint Co., 67--27

• Decision Date: 30 August 1967
• Docket Number: No. 67--27,67--27
• Citation: 202 So.2d 8
• Court: Florida District Court of Appeals
• Parties: J. D. BOOTH, Appellant, v. MARY CARTER PAINT COMPANY, Delaware corporation, Wallace Tompkins, Crofford D. Hancock, B. C. Willoughby and Harry Lee Sutton, Appellees.

Page 8

202 So.2d 8

J. D. BOOTH, Appellant, v. MARY CARTER PAINT COMPANY, Delaware corporation, Wallace Tompkins, Crofford D. Hancock, B. C. Willoughby and Harry Lee Sutton, Appellees.

No. 67--27.

District Court of Appeal of Florida, Second District.

Aug. 30, 1967.

Mark R. Hawes, of Hawes & Hadden, Tampa, for appellant.

E. R. Mills, Jr., Ocala, for appellees Mary Carter Paint Co., Tompkins and Hancock.

William T. Keen and lucius M. Dyal, Jr., of Shackleford, Farrior, Stallings & Evans, Tampa, for appellees Willoughby and Sutton.

PER CURIAM.

Appellant, J. D. Booth, in his complaint charged the defendants with the negligent operation of their motor vehicles which resulted in the death of his wife. Defendants' answer denied the charge of negligence. Trial was had and the jury returned a verdict in the amount of $15,000 for the plaintiff. The trial court denied appellant's motion for a new trial and he brings this appeal seeking a new trial primarily on the question of damages only.

This action at law was previously before this Court in the case styled Booth v. Mary Carter Paint Company, reported in 182 So.2d 292. The facts reported in the opinion of that case should be reviewed in order to more fully understand the facts established in the trial of the case sub judice.

Paragraph 9 of the complaint alleges:

'9. As the direct and proximate result of the aforesaid concurrent and consecutive careless and negligent acts of each of said defendants, resulting in the death of Elsie Rogers Booth, plaintiff has sustained the following damages:

'(a) The loss of care and support of plaintiff and his and decedent's minor children.

'(b) The loss of his wife's companionship, love, affection and consortium.

'(c) The loss of his wife's services as a housekeeper, mother and caretaker of their minor children.

'(d) Expenses in connection with the necessary burial of his wife.'

The lower court, upon motion of the defendants, struck from the complaint subparagraph 9(a), i.e., 'the loss of care and support of plaintiff and his and decedent's minor children.' During the trial of the case plaintiff attempted to introduce evidence of the wife's earnings, etc., claimed under subparagraph 9(a) above mentioned, which the court refused to permit.

Based on the contents of the complaint at the time of trial, the court did not commit error in denying the proffered evidence since the complaint being tried had no provision for this specific damage. We are not passing upon the question of whether such evidence would be proper if the complaint had claimed the same.

Appellant did not assign as error the granting of the motion to strike, and consequently, this particular judicial act is not reviewable by us on appeal.

The appellant, in his reply brief, states:

'(d) The case of Potts v. Mulligan (S.Ct.1940) 141 Fla. 685, 193 So. 767, 770, an action by the husband for the wrongful death of his wife, which held that funeral expenses the husband incurred had to be specifically pleaded, but that no allegation was necessary as to his damages for loss of society, companionship and consortium.'

We do not construe the Potts case as holding that it is unnecessary to allege damages for loss of society, companionship and consortium because the declaration in that case had a bill of particulars, which alleged these items, attached as an Exhibit and was made a part thereof.

In Potts v. Mulligan, supra, syllabus 4 states:

'Where bill of particulars, which was expressly made part of the declaration in surviving husband's action for death of wife, contained an item for loss of wife's society and companionship, the pleadings were sufficient to authorize award of damages to husband for loss of wife's society and companionship, although declaration contained no express allegations as to such damages.'

On page 769 of the opinion, it is stated:

'It is true that in the body of the declaration in this case there is no express or specific claim of damages for funeral expenses, but they are itemized in the Exhibit which was made a part of the declaration, and this we hold to be sufficient, provided of course said funeral expenses are recoverable by the husband in such an action as this.'

Then on page 770 of the Potts opinion is the following:

'It is averred by plaintiff in error that the declaration contains no allegations as to his damages for loss of society, companionship and consortium of his wife and that by reason thereof he should not be allowed to recover damages therefor. However, there is contained in the bill of particulars an item for 'loss of society, companionship and consortium of wife . . . $24,000.00.' It is to be noted that the purpose of a bill of particulars is to inform the defendant of the nature and character of the cause of action and for what particular items it is brought. (Citations omitted.) The item in the bill of particulars, which bill is expressly made a part of the declaration, sufficiently sets up the damages for such loss. * * *'

An agreement between William T. Keen of the firm of Shackleford, Farrior, Stallings, Glos & Evans, as counsel of record for the defendants, B. C. Willoughby and Harry Lee Sutton, and Mark R. Hawes, of the firm of Hawes and Hadden, counsel of record for the plaintiff, J. D. Booth, provides:

'1. That the maximum liability, exposure or financial contribution of the defendants, B. C....