Ellis v. Brown

Decision Date09 February 1955
Citation77 So.2d 845
PartiesSam C. ELLIS and Robert Lee Ellis, as Co-Administrators of the Estate of Fannie Lee Ellis, deceased, Appellants, v. Edward Earl BROWN, Appellee.
CourtFlorida Supreme Court

Rogers, Towers, Bailey & Jones, Taylor Jones, C. D. Towners, Jr., and Earle C. Moss, Jacksonville, for appellants.

John M. McNatt and Marion R. Shepard, Jacksonville, for appellee.

ROBERTS, Justice.

Fannie Lee Ellis was struck by an automobile driven by the defendant, appellee here, Edward Earl Brown, and died a few hours later on the same day. Thereafter, two suits were instituted by her husband, appellant here. One action was filed by him, as husband, under the Wrongful Death Act, §§ 768.01, 768.02, Florida Statutes, F.S.A., to recover the damages alleged to have been personally sustained by him as a result of her death; the other was filed by him, as co-administrator of the estate of Fannie Lee Ellis, under the Survival Statute, Section 45.11, to recover damages for his decedent's loss of earnings for her probable life expectancy or the loss of her probable prospective estate. It is the latter suit which is here on appeal, the lower court having dismissed the complaint for failure to state a cause of action.

It appears that in the appellant's suit, as husband, filed under the Wrongful Death Act, supra (which is not before the court at this time) he had alleged as damage the loss of his wife's future earnings, which item of damages had been disallowed by the trial judge in that case, for the reason that the husband would not have been entitled to the wife's earnings during the life of his wife. The appellant earnestly contends here that, inasmuch as this element of damages could have been recovered by the wife in a suit maintained by her during her life, and cannot be recovered by the husband in a suit under the Wrongful Death Act, it may be recovered by the wife's administrators under the rule of Ake v. Birnbaum, 156 Fla. 735, 25 So.2d 213, 222, that 'except as to those torts which section 45.11, supra, provides shall die with the person, full redress for the wrong done the injured person may be obtained by the personal representative * * *.' The appellant also relies on the decision of this court in Dobbs v. Griffith, Fla., 70 So.2d 317, in which this court apparently approved an instruction to the jury that in assessing demages of the widow, as administratrix, recoverable under the Survival Statute, they might take account of the probable prospective estate of the husband. This decision should, however, be read in the light of the fact that the parties went to trial, without objection by the defendant, on the theory that loss of prospective estate was a proper element of damages in an action under the Survival Statute, a count under this statute having been combined with one, as widow, under the Wrongful Death Act, and that the only complaint in this court was as to the duplication of damages possible to be awarded under the trial court's instructions.

The appellee also relies on Ake v. Brinbaum, supra, citing as authority for his contention our language in that opinion to the effect that "loss of services and value in estate" of a deceased person, 'though recoverable by an administrator entitled to sue under the wrongful death statute, is not recoverable by an administrator maintaining a suit under our survival of action statute.' The appellee further points out that, in Hooper Construction Co., Inc., v. Drake, Fla., 73 So.2d 279, 281, we said again that 'the Administrator claimed damages for the loss of the prospective earnings and savings of the deceased after he reached his maturity, although such damages are recoverable only in a suit by an Administrator under the Wrongful Death Act * * *.'

On account of the uncertainty generated by the opinions in the above cited cases, we have again considered the question of the measure of the damages for personal injuries recoverable by the decedent's personal representative under the Survival Statute. Clearly, there can be no recovery by the personal representative under the Survival Statute for 'loss of value in estate', meaning the prospective earnings and savings which the decedent would have accumulated and left to his (or her, as the case may be) heirs or legatees upon his death, since the damages would not have been so measured in a suit by him to recover for his personal injuries prosecuted during his lifetime. The comparable item of damages which the injured person would recover in such case is the pecuniary loss which he himself will suffer during his probable life expectancy because of the impairment of his earning capacity, if he is a wage earner, or the inability to attend to his business, or other similar pecuniary loss. He also recovers for the pain and suffering caused by the wrongful act, and for his medical and other actual expenses necessitated by the injury. Ake v. Birnbaum, supra.

The real question here, then, is whether the death of the injured person affects the calculation of damages for the impairment of his earning capacity recoverable by his personal representative. In other words, does the survival of the cause of action carry with it the right to recover the full amount of the damages for impairment of earning capacity which the injured person could have recovered during his lifetime, or does there survive to the personal representative only the right to recover for such damages as were actually sustained by the deceased between the time of his injury and his death?

Our responsibility here is, of course, to discover the intent of the lawmaking body when it enacted the statute. The statute itself provides no clue. It was enacted in 1828 by the Legislative Council of the Territory of Florida as part of a long and comprehensive bill entitled 'An Act Regulating Judicial Proceedings,' and provided only that 'All actions for personal injuries shall die with the person, to-wit: Assault and battery, slander, false imprisonment, and malicious prosecution; all other actions shall and may be maintained in the name of the representatives of the deceased.' It remained on our statute books in its original form until 1951-some 123 years-for well over half of which period it was interpreted by this court as being merely declaratory of the common law that actions for personal injuries do not survive the death of the injured person. Jacksonville Street Railway Co. v. Chappell, 1886, Adm'x, 22 Fla. 616, 1 So. 10; Jones, Varnum & Co. v. Townsend, 1887, 23 Fla. 355, 2 So. 612. It was not until 1937 that this court, in State ex rel. H. E. Wolfe Construction Co. v. Parks, 129 Fla. 50, 176 So. 786, squarely overruled these early cases and held that the statute could be applied to save a suit instituted by an injured person during his lifetime, where he died during the pendency of the suit. By this time, of course, our Legislature had enacted the Wrongful Death Act, Cha. 3439, Laws of 1883, now appearing as Sections 768.01, 768.02, supra, creating in the named beneficiaries a new cause of action, 'in an entirely new right, for the recovery of damages suffered by them, not the decedent, as a consequence of the wrongful invasion of their legal right by the tort-feasor.' Ake v. Birnbaum, supra. It should also be noted that in 1828, when our Survival Statute was passed, the English, Wrongful Death Act (Lord Campbell's Act 9 & 10 Vict. c. 93 A.D.1846), which inspired and served as the pattern for our Wrongful Death Act and those of most of the other states, had not yet been enacted.

From what has been said, the difficulty of our problem is immediately apparent, and it would seem that any interpretation by this court at this late date of the intention of a legislature convened some 126 years ago would be pure surmise. The 1951 Act, Ch. 26541, which amended the Survival Statute to harmonize with our holding in State ex rel. H. E. Wolfe Construction Co. v. Parks, supra, is of no help, as the amendatory Act again failed to specify the measure of damages recoverable by the personal representative in a suit under the Statute, as amended. The following rule of interpretation, stated by this court in 1887 in Jones, Varnum & Co. v. Townsend, 23 Fla. 355, 2 So. 612, 613, while considering the very statute with...

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    ...to measure damages differently. Many opinions, such as those rendered in Hindmarsh v. Sulpho Saline Bath Co., supra, and Ellis v. Brown, 77 So.2d 845 (Fla.), start out by reasoning that an injured person in his lifetime could have recovered the present value of his lost earnings for his nor......
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    ...death damages. See, e.g., Gandy v. United States, 437 F.Supp.2d 1085, 1088–1089 (D.Ariz.2006) (applying Arizona law); Ellis v. Brown, 77 So.2d 845, 846–849 (Fla.1955), rev'd on other grounds, Garner v. Ward, 251 So.2d 252 (Fla.1971); Greene v. Texeira, 54 Haw. 231, 234–236, 505 P.2d 1169 (1......
  • Downs v. United States
    • United States
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    ...are proper elements of damages in a § 768.02 action brought by anyone other than the decedent's administrator. Moreover, Ellis v. Brown, 77 So.2d 845 (Fla.1955), expressly recognizes that the present value of a decedent's prospective earnings and estate are recoverable only in the administr......
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    • U.S. Court of Appeals — Sixth Circuit
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    ...death statute allowed an administrator to recover the full value of the loss to the prospective estate of the deceased. Ellis v. Brown, 77 So.2d 845 (Fla.1955). Because of the priority of claims established by former Fla.Stat. § 768.02, Mrs. Downs, as widow, was limited to recovering the pr......
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