Doby v. Griffin, 4621

• Decision Date: 03 February 1965
• Docket Number: No. 4621,4621
• Citation: 171 So.2d 404
• Parties: Mary Lue DOBY, as Administratrix of the Estate of Pird Doby, deceased, Appellant, v. Annie Bell GRIFFIN, Appellee.
• Court: Florida District Court of Appeals

Page 404

171 So.2d 404

Mary Lue DOBY, as Administratrix of the Estate of Pird Doby, deceased, Appellant, v. Annie Bell GRIFFIN, Appellee.

No. 4621.

District Court of Appeal of Florida, Second District.

Feb. 3, 1965.

Frank Schaub, Bradenton, for appellant.

W. Robert Mann, of Knowles, Knowles & Mann, Bradenton, for appellee.

WHITE, Judge.

The appellant administratrix, who was plaintiff in the trial court, is aggrieved by a summary final judgment entered on motion of the defendant in an action under the survival statute Fla.Stat. § 45 .11, F.S.A. The case is one of two causes of action for damages which arose when plaintiff's decedent, a pedestrain, was struck and fatally injured by an automobile belonging to the defendant. We are not confronted here with the separate action for damages under Fla.Stat. Chapter 768, F.S.A. pertaining to death by wrongful act.

In the case at hand the plaintiff administratrix, asserting that the injury and death of her decedent was the proximate result of negligence chargeable to the defendant, sought damages mainly for the decedent's burial expenses and for his pain and suffering which allegedly intervened the time he was struck and the time of his death. The defendant admitted negligence but denied any and all consequences claimed to have been the proximate result of the negligence alleged.

The defendant moved for summary judgment determining plaintiff's right to nominal damages only. The motion was based on the complaint and answer and exhibits which included certified excerpts from depositions of witnesses taken in the 'companion' wrongful death case. Several of the witnesses so deposed were the persons who, according to answers to interrogatories propounded to the plaintiff administratrix, were either eyewitnesses to the tragedy or otherwise had knowledge of facts upon which the plaintiff predicated her charge of negligence. From all this material the defendant contended that it was clearly evident that the decedent's loss of consciousness and loss of life itself were so immediately coincident with the infliction of his injury that plaintiff obviously could not establish that the decedent suffered pain prior to his demise.

The trial court entered final judgment on defendant's motion finding and adjudging (1) that plaintiff's case could be considered only as a cause of action under the survival statute; (2) that there was no genuine issue of any material fact regarding damages for conscious pain and suffering of the decedent and that the defendant was entitled to judgment as a matter of law as to that claim for damages; (3) that the only damages recoverable in the particular case were damages which plaintiff's decedent could have recovered in an action brought by him had he lived; that his funeral and burial expenses would not be recoverable and that the defendant was entitled to judgment as a matter of law with respect to that claim; (4) that the $25.00 value of decedent's destroyed pocket watch and a $15.00 charge for ambulance service, for which the decedent could have been compensated had he lived, were recoverable items.

We agree with the trial court's first finding that this case is strictly within the survival statute Fla.Stat. § 45.11, F.S.A. Before taking up the second and prime question of whether there energed from the summary proceedings any genuine issue of material fact as to conscious pain and suffering of the decedent, we shall first consider the third and only other question of consequence, namely, whether or not the decedent's funeral and burial expenses are recoverable in this survival action by the administratrix of his estate.

The administratrix urges that since the burial expenses are not recoverable in the wrongful death action, they should be recoverable in the survival action. This specific question does not appear to have been pointedly raised and determined in any official published decision in this state, but we think the answer has been clearly indicated by the Supreme Court of Florida. In distinguishing the two causes of action which may accrue where a person is negligently injured by another and then dies, the Supreme Court said in Epps v. Railway Express Agency, Fla.1949, 40 So.2d 131:

'The effect of the ruling in Ake v. Birnbaum is to recognize that where a person dies as a result of the negligent act of another, two separate, distinct and independent rights have been violated. One is the common law right of the injured person to be secure in his person and property--a right which has been invaded by compelling such person to endure pain and suffering and to submit to loss of earnings and other pecuniary losses. The other is the right which the family of the deceased had to the companionship, services and support of the decedent, coupled with the expectancy of a participation in the estate which the decedent might have accumulated had his life not been brought to an untimely end by the infliction of the injury.

'The first right is one which might have been sued on by the injured person in his lifetime and which survives to the personal representative where the injured person has not pursued his right of action to final judgment prior to his death, irrespective of whether death is due to the injuries inflicted or arises from independent causes.

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'Under the first right the recovery is for the damages suffered by the injured person by reason of the injuries inflicted upon him . Under the second right the recovery is for the damages suffered by the widow or other statutory beneficiary for the damages suffered by her or them as the result of the death of the decedent caused by the negligent act of the wrongdoer.' (emphasis added)

In Radobersky v. Imperial Volunteer Fire Department, 368 Pa. 235, 81 A.2d 865, the trial court misconceived the theory of the survival action there involved by referring to a special provision of the Pennsylvania wrongful death act in instructing the jury on funeral expenses. The appellate court reversed judgment for the plaintiff and made the following observations:

'The inapplicability of this statutory [death statute] provision is apparent. The suit is not 'an action to recover damages for a death'. It was instituted by the husband-plaintiff in his lifetime to recover damages for injuries to himself and, when he died, the suit was carried on by his personal representative to recover what the decedent himself could have recovered had he lived. Obviously, the expenses for his own funeral do not fall into the category of the damages allowable to him personally. The instruction was therefore error.'

In this connection American Law Institute-Restatement of Torts, Sec. 925, Comment i, said in part:

'* * * a judgment under a survival statute has no effect upon the damages given under a death statute, since the damages in the one case are based upon events precding death, while the damages under the other statute are based upon harm caused by the death.' (emphasis added)

Spillman v. Weimaster, 275 Mich. 93, 265 N.W. 787, is another decision which notes the limitations on damages recoverable in a survival action....