Evans v. Atlantic Cement Co.

• Decision Date: 23 January 1973
• Docket Number: No. 72--217,72--217
• Citation: 272 So.2d 538
• Parties: Angel Jeanette EVANS, a widow of Justus Ray Evans, et al., Appellants, v. ATLANTIC CEMENT COMPANY and Theodore Bruno Visneski, Appellees.
• Court: Florida District Court of Appeals

Page 538

272 So.2d 538

Angel Jeanette EVANS, a widow of Justus Ray Evans, et al., Appellants, v. ATLANTIC CEMENT COMPANY and Theodore Bruno Visneski, Appellees.

No. 72--217.

District Court of Appeal of Florida, Fourth District.

Jan. 23, 1973.

Rehearing Denied Feb. 20, 1973.

Philip J. Mandina, Miami, for appellants.

James M. Norman, of Kirsch, Druck & Mills, Fort Lauderdale, for appellees.

WALDEN, Judge.

This appeal is from a summary judgment which determined that appellants were not proper parties as would be statutorily entitled to maintain a wrongful death action.

Decedent was killed in 1970. It was correctly determined that a legal widow, Dorothy Evans, and a son of a prior marriage, Paul Douglas Evans, were survivors and proper parties plaintiff.

Excluded via the appealed summary proceedings were the appellants, Angel Jeanette Evans and her three minor children.

In her affidavit filed in opposition to the summary judgment Angel Evans established that she lived with the decedent nine and one-half years immediately prior to his death; that the decedent was the father and she was the mother of the three named minors; and that decedent furnished all of their support during the period.

The specific mentioned basis for the trial court decision determining appellants' ineligibility is the following:

'3. That the Plaintiff, Angel Jeanette Evans, alleges that she is the widow of the Deceased, Justus Ray Evans, and that three minor children were born as a result of her relationship with the Deceased, but that said Plaintiff has failed to substantiate her allegations by way of any proof whatsoever that she was lawfully married to the Deceased or that her minor children were children of the Deceased, nor have they been legally adjudicated to be his children and dependent upon him for support. To the contrary, the Deceased was married to another at the time of his alleged relationship with the said Plaintiff and therefore could not have lawfully been married to the said Plaintiff.'

The governing statute is Section 768.02, F.S.1969, ¹ F.S.A.:

'768.02 Parties; damages; proviso.--Every such action shall be brought by and in the name of the widow or husband, as the case may be, and where there is neither widow nor husband surviving the deceased, then the minor child or children may maintain an action; and where there is neither widow nor husband, nor minor child or children, then the action may be maintained by any person or persons dependent on such person killed for a support; and were there is neither of the above classes of persons to sue, then the action may be maintained by the executor or administrator, as the case may be, of the person killed. In case of the death of any person solely entitled, or of all the persons jointly entitled to sue, before action brought or before the recovery of a final judgmemt in action brought by him or them, the right of action or the action as the case may be, shall survive to the person or persons next entitled to sue under this section, and in case of the death of one or more persons jointly entitled to sue before action brought or before the recovery of a final judgment in an action brought by them, the right of action or the action, as the case may be, shall survive to the survivor of such persons so jointly entitled to sue; and in every such action the jury shall give such damages as the party or parties entitled to sue may have sustained by reason of the death of the party killed; provided, that any person or persons to whom a right of action may survive under the provisions of this act shall recover such damages as by law such person or persons are entitled in their own right to recover, irrespective of the damages recoverable by the person or persons whom he or they may succeed.'

Clearly the statute establishes a preferential order of classes with the existence of a preferred class barring those less preferred. Thus, a literal interpretation would bar the eligibility of appellants (and, for that matter, his son, Paul Douglas Evans) because of the existence of a legal surviving widow, Dorothy Evans.

But the opinion of the Supreme Court of Florida in Garner v. Ward, Fla.1971, 251 So.2d 252, provided a new dimension. Being dissatisfied with the unfairness of the statute in certain instances, the statute was judicially amended so as to remove certain priorities and thereby enlarge or add classes to those qualified to sue.

In Garner the decedent was twice married. He was survived by his divorced first wife and minor children of that first marriage. He was also survived by the wife of his second marriage, and she was properly recognized as his 'widow' and statutorily entitled to maintain the action. But what about the divorced first wife and children of that marriage? Under the statute and case law they had no standing as parties. Garner changed that! As we read it, a right of action was created in the children of the first marriage in addition to that of the legal widow of the second marriage, based on the reasoning hereinafter extracted. Importantly, too, we read the case as likewise awarding a right of action to the divorced wife of the first marriage, although no rationale therefor was expressed. We base this on the fact that the first wife attempted intervention individually. The trial court denied...