Florida East Coast Ry. Co. v. Mcroberts

• Decision Date: 06 July 1933
• Parties: FLORIDA EAST COAST RY. CO. v. McROBERTS.
• Court: Florida Supreme Court

149 So. 631

111 Fla. 278

FLORIDA EAST COAST RY. CO. v. McROBERTS.

Florida Supreme Court, Division A.

July 6, 1933

Rehearing Denied Aug. 10, 1933.

Error to Circuit Court, Putnam County; G. W. Jackson, Judge.

Action by W. C. McRoberts against the Florida East Coast Railway Company. Judgment for plaintiff, and defendant brings error.

Verdict set aside, and new trial awarded on question of damages, with directions.

On Petition for Rehearing.

COUNSEL J. P. Lamb, of Palatka, and John H. Summerlin and Robert H. Anderson, both of Jacksonville, for plaintiff in error.

J. V Walton, of Palatka, for defendant in error.

OPINION

DAVIS Chief Justice.

In an action for wrongful death brought under the Florida statute W. C. McRoberts, plaintiff below, for the alleged wrongful death of his wife, recovered a judgment against the defendant, Florida East Coast Railway Company, in the sum of $22,500. Writ of error brings the case to this court.

At the trial, the railway company, with the consent of the court withdrew its pleas to the plaintiff's declaration, and asked the court to enter, as to the merits of the case, a default against it. Default was accordingly entered, and the case proceeded before the jury as an inquest of damages to be allowed for the wrongful death admitted to have been perpetrated by the negligence of the defendant.

As the trial was about to proceed, counsel for the railway company objected to the reading to the jury, by counsel for plaintiff, of plaintiff's third count of his declaration. The ground of objection was that the third count related solely to the recovery in the pending action of exemplary damages. Such damages, so counsel for the defendant urged as ground of his objection, could not be recovered for wrongful death, under the Florida statute. The trial judge overruled the objection. Defendant excepted.

And so it was that throughout the hearing before the jury defendant railway company from time to time renewed and insisted upon its objection that, in an action for wrongful death exemplary of punitive damages were not recoverable. But in each instance to objections were overruled, and, at the conclusion of the trial, the circuit judge charged the jury to the contrary effect, while denying requested charges proposed by defendant for the purpose of instructing the jury in line with defendant's contentions.

So the sole question presented to us by this writ of error is whether or not under the Florida wrongful death statute (sections 4960, 4961, R. G. S., sections 7047, 7048, C. G. L.) exemplary or punitive damages are recoverable where the facts of the case before the jury would warrant the recovery of such exemplary or punitive damages, had no death ensued from the negligence proved. In this connection it is appropriate to state at this point that for the purposes of this writ of error, it is conceded by counsel for the railway company that a sufficient factual basis for the recovery of exemplary damages was laid by plaintiff in his evidence, provided it should be determined that, in an action for wrongful death, such damages are recoverable as a matter of law.

The Florida statute (section 7047) on the subject of recovery for wrongful death reads as follows:

'Whenever the death of any person in this State shall be caused by the wrongful act, negligence, carelessness or default of any individual or individuals, or by the wrongful act, negligence, carelessness or default of any corporation, or by the wrongful act, negligence, carelessness, or default, of any agent of any corporation, acting in his capacity of agent of such corporation (or by the wrongful act, negligence, carelessness or default of any ship, vessel or boat or persons employed thereon), and the act, negligence, carelessness or default, is such as would, if the death had not ensued, have entitled the party injured thereby to maintain an action (or to proceed) in rem against the said ship, vessel or boat, or in personam against the owners thereof, or those having control of her) and to recover damages in respect thereof, then and in every such case the person or persons who, or the corporation (or the ship, vessel or boat), which would have been liable in damages if death had not ensued, shall be liable to an action for damages (or if a ship, vessel or boat, to a libel in rem, and her owners or those responsible for her wrongful act, negligence, carelessness or default, to a libel in personam), notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony. (Ch. 3429, Acts 1883, § 1; Ch. 6913, May 28, 1915, § 1.)'

The common law afforded no remedy for death by wrongful act. Hence the right and the remedy are purely statutory. Florida Cent. & P. R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338, 79 Am. St. Rep. 149; Flanders v. Georgia Southern & F. R. Co., 68 Fla. 479, 67 So. 68. In order to supply the want of a remedy in those cases where negligent acts resulted in the death of the injured party, there was enacted in England, in the year 1846, an act of Parliament known as Lord Campbell's Act. This law for the first time provided a right of action for death by wrongful act. Since that time, Lord Campbell's Act, in various forms, has been substantially enacted in every state in the United States except one. In Louisiana a remedy of equivalent import is provided according to the course of the civil law which prevails in that state.

Actual damages are recoverable at law out of a wrongdoer by the injured party as a matter of right. Such damages are recoverable as compensation for the actual loss sustained by such an injured party by reason of the tort-feasor's wrongdoing. It is not so as to punitive damages. Punitive damages are damages over and above such sum as will compensate a person for his actual loss. And the law permits their imposition, in proper cases, at the discretion of the jury, not because the party injured is entitled under the law to recover punitive damages as a matter of right, but as punishment to the wrongdoer, for the purpose of deterring him and others committing similar violations of the law from such wrongdoing in the future. Therefore exemplary damages are, as it has been said, allowed by the law, not as a matter of compensation to the injured party, but because of the quality of the wrong done by the tort-feasor, from which the injured party suffers. Bowles v. Lowery, 5 Ala. App. 555, 59 So. 696.

So it may be said to have been well established, both in England and the United States, as a principle of the common law, that in all actions for torts the jury may be authorized to inflict what are called punitive or exemplary damages, having in view the enormity of the offense which has occasioned the injury, rather than the measure of compensation to be awarded to the plaintiff therefor. Day v. Woodworth, 13 How. 363, 14 L.Ed. 181; Florida Ry. & Nav. Co. v. Webster, 25 Fla. 394, 5 So. 714; Florida So. Ry. Co. v. Hirst, 30 Fla. 1, 11 So. 506, 16 L. R. A. 631, 32 Am. St. Rep. 17; Florida Cent. & P. R. Co. v. Mooney, 40 Fla. 17, 24 So. 148; Id., 45 Fla. 286, 33 So. 1010, 110 Am. St. Rep. 73; Florida East Coast R. Co. v. Schumacher, 63 Fla. 137, 57 So. 603; Dowling Lbr. Co. v. King, 62 Fla. 151, 57 So. 337. ^[1]

In cases of injury to the person, in addition to the right of action of the party receiving the physical injury to recover compensatory, or even punitive damages therefor, causes of action sometimes accrued to persons who stood to the injured party in the relation of master, parent, or husband, for the recovery by the latter of damages for loss of services or society. The maxim, 'actio personalis moritur cum persona,' had no application to damages recoverable by persons of the latter description for the loss of services or society which took place before death; that is, during the period of time intervening a fatal injury and actual dissolution. Such was the holding of the leading English cases that antedated the passage of Lord Campbell's Act in 1846.

Consequently we find that the English common-law rule originating in the early case of Higgins v. Butcher, 1 Yelverton, 89, decided in 1606, and reaffirmed by Lord Ellenborough in the case of Baker v. Bolton, 1 Camp. 493, decided in 1808, was definitely to the effect that, in an action for negligence brought against one for so severely injuring plaintiff's wife that she died within a comparatively short time thereafter, the only recovery permissible in the action was the loss of the wife's society to the plaintiff, and his distress of mind on her account, from the time of the accident to the moment of the wife's dissolution. Where the negligent death was instantaneous, no recovery at all could be had, since the rule 'actio personalis moritur' applied to the deceased, and no right, under the circumstances, for damages otherwise, could accrue to the surviving husband.

Whatever may have been the wisdom or justice of the common-law rule, as it had been early declared in Higgins v. Butcher, supra, and later restated without serious challenge of its correctness, in Baker v. Bolton, supra, the fact remains that the rule of the common law as it was finally epitomized in Baker v. Bolton, by Lord Ellenborough, became and was recognized in this state as a part of the common law of Florida, and was so regarded by our Legislature when it undertook to change that rule by the enactment of chapter 3429, Acts of 1883, which subsequently became section 7047, C. G. L., section 4960, R. G. S., our death by wrongful act statute. ^[2]

While it has been observed by many jurists and text-writers that Lord Ellenborough's statement of the common-law rule just referred to in Baker v....