Booth v. Mary Carter Paint Co., No. 67--27

• Court: Court of Appeal of Florida (US)
• Writing for the Court: PER CURIAM; ALLEN
• Citation: 202 So.2d 8
• 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.
• Decision Date: 30 August 1967
• Docket Number: No. 67--27

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.

Page 9

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...