Coon v. Atlantic Coast Line R. Co.

• Decision Date: 27 July 1936
• Citation: 171 So. 207,125 Fla. 490
• Parties: COON v. ATLANTIC COAST LINE R. CO.
• Court: Florida Supreme Court

171 So. 207

125 Fla. 490

COON v. ATLANTIC COAST LINE R. CO.

Florida Supreme Court

July 27, 1936

Rehearing Denied Sept. 15, 1936.

Supplemental Opinion Nov. 18, 1936.

En Banc.

Error to Circuit Court, Hillsborough County; Henry N. Sandler Judge.

Action by J. M. Coon against the Atlantic Coast Line Railroad Company. To review a judgment for defendant, plaintiff brings error.

Reversed.

OPINION

Supplemental Opinion.

COUNSEL Altman & Cooper, of Tampa, for plaintiff in error.

T Paine Kelly, of Tampa, for defendant in error.

PER CURIAM.

J. M Coon brought an action at law against the Atlantic Coast Line Railroad Company, under section 7049, C.G.L., for the wrongful death of Tressor Lee Coon, plaintiff's minor son.

The first count of the amended declaration alleged in substance that the defendant as a common carrier was on May 26, 1933 operating a steam surface railroad over a line of track in Plant City, Hillsborough county, Fla., about one-eighth of a mile east of its station crossing Maryland avenue; that about 6:20 a. m. on that day Tressor Lee Coon plaintiff's minor son, lawfully drove a Model T Ford along Maryland avenue and onto defendant's track; and that defendant, its agents, servants, and employees, by their negligent conduct propelled the locomotive against Tressor Lee Coon, resulting in his death.

The second count of the amended declaration alleged in substance that the defendant was negligent in allowing vegetation, weeds, grass, and underbrush to grow up to its tracks on the right of way, obstructing the view of the railroad; that defendant was negligent in allowing vines to obscure the only sign giving warning to those using this particular street of an approach to the crossing; that defendant was negligent in allowing corn to grow on its right of way on both sides of its tracks so that the approaching train was obscured by the corn and a house until Tressor Lee Coon was so close on the train it was impossible to stop and avoid the collision.

The fourth count of the amended declaration alleged that defendant was negligent in failing to give the usual or proper signal or warning.

The fifth count of the amended declaration alleged that defendant operated its train at a dangerous and excessive rate of speed, proximately resulting in the death of Tressor Lee Coon.

The amended third count of the amended declaration alleged that the defendant was negligent in operating its train through the city of Plant City at a rate of speed of 25 to 35 miles per hour, in violation of an ordinance of the city of Plant City requiring trains to pass through the city of Plant City at a rate of speed not greater than ten miles per hour.

To every count of the declaration, the defendant filed the following plea of puis darrien continuance:

'1st. That on the 5th day of March, 1934, the said plaintiff J. M. Coon, suing as Administrator of the Estate of Tressor Lee Coon, deceased, exhibited his action in the Circuit Court for Hillsborough County, Florida, against the Atlantic Coast Line Railroad Company, wherein the said plaintiff in his representative capacity, sued to recover of and from the said defendant, under applicable statutes of the State of Florida, damages for the death of Tressor Lee Coon, which occurred as the result of a collision between a train of the said defendant and an automobile in which the said deceased was riding, which said action was by appropriate proceedings duly removed from the Circuit Court for Hillsborough County, Florida, to the District Court of the United States for the Southern District of Florida, a court of competent jurisdiction. That in the said action instituted by said plaintiff in the capacity of Administrator, the plaintiff alleged acts of negligence on the part of the defendant in the operation of its said train, which acts of negligence so charged in the said suit are the identical acts of negligence which the plaintiff in this action has set forth in his declaration, and upon which he relies for recovery of damages against the defendant under and by the same statutes of the State of Florida upon which the former action was predicated. That in the action by the plaintiff, as Administrator, the same acts of negligence were alleged as having caused the injury and the death of the minor son of the said plaintiff in this action, as are alleged in the declaration filed herein and made the basis of this action. That the injury and death suffered by the said minor son of the plaintiff was the same injury and death as is sued for by the plaintiff in this action. That on the 30th day of January, A. D. 1935, the said cause pending in the District Court of the United States for the Southern District of Florida came on for trial before a jury upon the issue of fact framed by the pleadings and the proof in the said cause, which said issues of fact were identical with the issues of fact framed in this action, and upon trial of said cause in the said District Court of the United States for the Southern District of Florida, a verdict was duly and regularly entered in favor of the defendant and against the plaintiff, in which the jury found the defendant not guilty of the acts of negligence charged in the said cause, and judgment in favor of the defendant and against the plaintiff was on February 5th, 1935, duly and regularly entered, which said judgment so rendered therein against the said plaintiff, as Administrator, is a final adjudication in favor of the defendant herein to the effect that under the facts alleged in the said cause in the District Court of the United States for the Southern District of Florida and in this cause the said defendant is not liable for the injury or injuries received by the minor son of the said plaintiff, or for the death ensuing therefrom, wherefore this defendant says that the said plaintiff is estopped by judgment to further proceed in or prosecute his said action and prays the judgment of the court that said action shall be dismissed. All of which this defendant is ready to verify.'

To this plea puis darrien continuance, plaintiff demurred on the following grounds:

'(1) Said plea is insufficient to constitute either a plea in bar or in abatement of the plaintiff's action. (2) It does not appear that the former judgment pleaded in said plea stands unreversed or unappealed or that the time for appealing from said judgment has expired. (3) It affirmatively appears from the face of said plea that the above entitled action is brought by the said J. M. Coon in his personal capacity and that said action brought in the said Federal Court was brought in the said J. M. Coon's representative capacity. (4) It affirmatively appears that there are distinct injuries from the same tort. (5) No facts sufficient to constitute the defense of res judicata are shown. (6) It affirmatively appears that the damages recovered by the plaintiff in this action are for different injuries or wrongs than the damages sought to be recovered by the plaintiff in said Federal Action. (7) It appears that said plea should have been pleaded in abatement instead of bar of plaintiff's action.'

The court overruled plaintiff's demurrer to the plea of puis darrien continuance; and because plaintiff elected to abide by his demurrer, final judgment upon demurrer was entered in favor of defendant.

From this final judgment plaintiff took writ of error.

The sole question raised by this writ of error is whether or not, in an action brought by an administrator for the wrongful death of his minor intestate, judgment rendered therein in favor of defendant is a bar to an action by the father of the deceased infant for the wrongful death of the latter; the father being also the administrator.

Our statute provides that when there is no widow or husband, as the case may be, or minor child or children, or any dependent of deceased, the administrator or executor, as the case may be, of the deceased, may maintain an action for the wrongful death of decedent. Section 7048, C.G.L.

Under this section and section 7047, C.G.L., J. M. Coon brought an action in the circuit court for Hillsborough county to recover for the wrongful death of his minor intestate. The case was transferred to the Federal District Court, and judgment was there rendered in favor of defendant. In the case of Fla. East Coast Ry. Co. v. Hayes, 67 Fla. 101, 64 So. 504, 7 A.L.R. 1310, we said in limiting the scope of the action and in laying down the rule as to damages which an administrator may recover under section 7048, C.G.L.:

'By the terms of the statute, giving a right of recovery that did not exist at common law, the administrator of the decedent cannot maintain an action, unless the decedent left no husband or wife and no minor child, and no other person dependent on him for support. A husband or wife, a minor child, and a dependent person each occupies his or her particular intimate personal relation of dependence during the life expectancy, and, by the wrongful death, such husband or wife, minor child, or dependent person sustains loss or damage that is not wholly monetary, but such as is peculiar to the relation that existed, and that is concurrent with the life expectancy. See Fla. Cent. & P. R. Co. v Foxworth, 41 Fla. 1, 25 So. 338, 79 Am.St.Rep. 149. But the administrator, as the legal representative of the decedent's estate can sustain no loss or damage by reason of the wrongful death, except the...