Collins v. Godwin

• Decision Date: 11 March 1913
• Citation: 65 Fla. 283,61 So. 632
• Parties: COLLINS v. GODWIN.
• Court: Florida Supreme Court

61 So. 632

65 Fla. 283

COLLINS v. GODWIN.

Florida Supreme Court

March 11, 1913

Error to Circuit Court, Madison County; Mallory F. Horne, Judge.

Action by Mrs B. H. Godwin against R. L. Collins. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Syllabus by the Court

SYLLABUS

The established doctrine that charges and instructions must be confined to the issues made by the pleadings is applied to the effect that, where prospective damages are not alleged or claimed in a declaration, it is erroneous to charge the jury they may assess such damages in their verdict.

In actions by a parent for personal injuries to a child in order to recover for prospective earning of the child during his minority, there must be an allegation in the declaration of special damages in regard thereto; and upon failure to make such claims the parent can only recover from the time of the injury up to the time of trial.

A charge cannot be said to be harmless which authorizes the jury to consider an element of damages not warranted by the evidence, and which the verdict shows was considered by them.

COUNSEL Davis & Whitnell, of Madison, for plaintiff in error.

R. H Rowe, of Madison, for defendant in error.

OPINION

HOCKER J.

On the 20th day of April, 1912, the defendant in error filed the following declaration in the circuit court of Madison county against the plaintiff in error.

'Mrs B. H. Godwin, a widow, and citizen and resident of Madison county, state of Florida, by her attorney, R. H. Rowe, sues R. L. Collins, a citizen and resident of Brooks county, state of Georgia, and says: That she is a widow, and that G. B Godwin is her son and minor child under the age of 21 years, and is now 18 years of age, and that she is and was entitled to and received, and was partially dependent upon, the service of her son for support.

'That heretofore, to wit, on February 26, 1912, in Madison county, Florida, the defendant, R. L. Collins, with a certain instrument and weapon, namely, an axe, to and in which was placed and attached a handle, did unlawfully strike upon the head one G. B. Godwin aforesaid, thereby inflicting a would upon the head of the said G. B. Godwin, causing him to become sick and unable to work for a long period of time, to wit, one month, during which time his services were worth to the plaintiff $1.50 per day; that she necessarily expended, in and about said sickness, for medical attendance and medicine for the said G. B. Godwin, a large sum, to wit, $250; that the said G. B. Godwin has been partially incapacitated and rendered less efficient for work by reason of pains in the head, partial paralysis, and weakness of one of his arms and other derangement of his constitution caused by said would, whereby the plaintiff has lost the benefit of a portion of his services that he could have performed without such injury, to her damage in the sum of $930. Wherefore plaintiff sues defendant for her damage and injury, above stated, in the sum of $1,000.'

To this declaration there was a plea of not guilty, and also a second plea 'that the said G. B. Godwin first assaulted the defendant, who thereupon necessarily committed the alleged assault in his own defense.' The case was tried on the 17th of October, 1912, and a verdict was rendered in favor of the plaintiff for $250 damages.

The circuit judge instructed the jury, if they found for the plaintiff, in ascertaining compensatory damages the plaintiff was entitled to the 'value of any services of which she may be deprived hereafter during the minority of her son.' This was substantially repeated in another part of the charge, in which the jury were instructed, if they found for the plaintiff, they should assess the damages of the plaintiff at 'such...