Burch v. Gilbert, D-222

• Decision Date: 08 January 1963
• Docket Number: No. D-222,D-222
• Citation: Burch v. Gilbert, 148 So.2d 289 (Fla. App. 1963)
• Parties: Eugene BURCH, Appellant, v. Arthur Hal GILBERT, father of Deborah Carolyn Gilbert, his deceased minor child; and Arthur Hal Gilbert and Carolyn D. Gilbert, his wife and father and mother respectively of Deborah Carolyn Gilbert their deceased minor child; and Arthur Hal Gilbert as Administrator of the Estate of Deborah Carolyn Gilbert, his deceased minor child, Appellees.
• Court: Florida District Court of Appeals

Page 289

148 So.2d 289

Eugene BURCH, Appellant, v. Arthur Hal GILBERT, father of Deborah Carolyn Gilbert, his deceased minor child; and Arthur Hal Gilbert and Carolyn D. Gilbert, his wife and father and mother respectively of Deborah Carolyn Gilbert their deceased minor child; and Arthur Hal Gilbert as Administrator of the Estate of Deborah Carolyn Gilbert, his deceased minor child, Appellees.

No. D-222.

District Court of Appeal of Florida, First District.

Jan. 8, 1963.

Alfred A. Green, Daytona Beach, for

Alfred A. Green, Daytona Beach, for

Wagner & Bertone, Daytona Beach, for appellee.

RAWLS, Judge.

On September 18, 1958, appellant-defendant Burch was driving a shrimp truck south on U. S. No. 1 in the right lane of a four lane highway. It was dusk, the highway was straight and level. Burch saw plaintiff Gilbert's car proceeding in a westerly direction crossing the two south bound traffic lanes. Burch applied the brakes on his truck, but stayed in the right lane, and hit Gilbert's car behind the right rear wheel. The impact spun Gilbert's car around resulting in Gilbert's two children being thrown out of the rear seat of the car and onto the highway. Deborah Carolyn Gilbert, an eight year old girl, died as a result of injuries sustained in the accident. Suit was instituted against appellant Eugene Burch by decedent's surviving parents, viz.: Arthur Hal Gilbert, father of decedent; Arthur Hal Gilbert and his wife Carolyn D. Gilbert, decedent's surviving parents; and Arthur Hal Gilbert as administrator of the estate of decedent. Placed in focus during trial of the cause were the wrongful death statutes, F.S. §§ 768.01, 768.02 and 768.03 F.S.A., together with the survival statute F.S. § 45.11, F.S.A. A jury verdict in favor of the administrator in the sum of $20,000 was returned, and it is from the judgment rendered on this verdict that the defendant-appellant brought this appeal.

Appellant's justiciable point on appeal is founded upon the excessiveness of the award of $20,000 to the administrator for the wrongful death of an eight year old child.

In considering the foregoing point, it is essential that we briefly review the various elements recoverable for the wrongful death of a minor in light of the verdict and judgment rendered in the instant cause.

1. Sections 768.01 and 768.02, in this instance, grant to the administrator of decedent the right to sue for loss of her prospective estate.

2. Section 45.11, grants to the administrator the right to sue for the pain and suffering of decedent during the period of time elapsing from the occurrence of the accident until her death.

3. Section 768.03, grants to the parent the right of recovery for the parents' pain and suffering and the loss of services of the minor to the parents.

The jury did not award any damages to the parents--apparently having reached the conclusion, which is supported by the record, that decedent's father was contributorily negligent which precluded any recovery by the parents under F.S. § 768.03, F.S.A.

Consequently, we must review the verdict in light of the reasonableness of same based upon damages recoverable under Sections 768.02 and 45.11 and decisions of this jurisdiction upon the subject.

The landmark case of Florida East Coast Railway Company v. Hayes ¹ established the rule for the measure of damages under the statute in an action brought by the administrator, when the court stated on page 505:

'Where the infant leaves no husband or wife, and no minor child, and no person dependent on him or her for a support, the administrator of the deceased infant's estate may, under the statute, maintain an action to recover 'such damages' as the estate 'may have sustained by reason of the' wrongful death; and the proper measure of such damages is the present worth of the decedent's life to an estimated prospective estate that he probably would have earned and saved after becoming of age and during his life expectancy to be left at his death. A determination of the proper amount of such damage requires a consideration of the contingency whether the decedent probably would have lived to become of age and to some given time afterwards, as well as an estimate of the value of the estate he probably would have earned and saved after he would have become of age, and would probably have left at the end of his life expectancy, and also an estimate of the present money value of the decedent's life to the estimated prospective estate. In making this determination, no exact rule of reasoning or computation is afforded by law, but the jury have no arbitrary discretion. The finding should be the result of a fair consideration of all the matters that should, under the circumstances of the particular case, properly enter into the estimate and computation. Among other proper elements that may be considered are the age, mental capacity, habits of life, and industry, and thrift, means, business, earnings, health, probable duration of life, skill, and environments, and reasonable expectations of the decedent. If the jury find that the deceased infant probably would have lived to some given period after he would have become of age, and also find an estimated value of an estate he probably would have accumulated and left for distribution among his heirs at the end of his life expectancy, the present money value of the decedent's life to his estimated prospective estate may be ascertained with some degree of accuracy as a practical or mathematical proposition. In cases of this character, it is left for the jury, in the fair exercise of a sound discretion, in the...