Florida East Coast Ry. Co. v. Hayes

Decision Date15 January 1913
Citation60 So. 792,65 Fla. 1
PartiesFLORIDA EAST COAST RY. CO. v. HAYES.
CourtFlorida Supreme Court

Rehearing Denied Feb. 11, 1913.

Error to Circuit Court, Duval County; R. M. Call, Judge.

Action by H. W. Hayes against the Florida East Coast Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

Where on writ of error, two of the five members of the court are of the opinion that the judgment should be affirmed, while two members are of opinion that the judgment is excessive in amount, and the other member is of opinion that the statute upon which the judgment in large part rests is unconstitutional, the judgment will be reversed.

COUNSEL Alex. St. Clair-Abrams, of Jacksonville, for plaintiff in error.

A. H King, of Jacksonville, for defendant in error.

OPINION

WHITFIELD J.

Hayes recovered a judgment for $25,000 damages for the death of his 13 year old son, caused by one of the defendant railroad company's trains, and the defendant took writ of error.

The right of a father, under section 3147 of the General Statutes of 1906, to recover damages for his loss of service and his mental pain and suffering because of the death of his minor child, caused by the wrongful act, negligence, carelessness, or default of a defendant corporation, has been sustained in the case of Davis v. Florida Power Co., 60 So. 759, decided at the last term. This case presents the question whether the father can, under the statute, also recover damages for the mental pain and suffering of the mother, caused by the wrongful or negligence death of their minor child. The question of excessiveness in the amount of the judgment is also presented. The declaration states a cause of action, and an affirmative charge for the defendant was properly refused.

Section 3147 of the General Statutes is as follows: 'Whenever the death of any minor child shall be caused by the wrongful act, negligence, carelessness or dafault of any private association of persons, or by the wrongful act, negligence, carelessness or default of any officer, agent or employé, or by the wrongful act, negligence, carelessness or default of any corporation, or by the wrongful act, negligence, carelessness or default of any officer, agent or employé of any corporation acting in his capacity as such officer, agent or employé, the father of such minor child, or if the father be not living, the mother, as the legal representative of such deceased minor child, may maintain an action against such individual, private association of persons or corporation, and may recover not only for the loss of service of such minor child, but in addition thereto such sum for the mental pain and suffering of the parent or parents as the jury may assess.'

If the words 'or parents,' contained in section 3147 of the General Statutes of 1906, are in effect designed to allow the father to recover damages for the mental pain and suffering of the mother caused by the wrongful death of their minor child, such words are repugnant to other provisions of the same section giving the mother a right of action only if the father be not living, and authorizing the father, if living, to maintain the action 'as the legal representative of such deceased minor child.' The right of action given to the father has no real or legal relation to the mental pain and suffering of the mother. A recovery by the father for the mother's mental pain and suffering is contrary to the general principle of law that one person cannot recover for injury to another, unless a representative relation exists between them. The father sustains no loss or injury recognized by law for the mother's mental pain and suffering, that may be redressed in damages, even where their status as husband and wife has not been impaired by death or by the law; and under the statute or other law the father does not represent the mother in maintaining the action. The provision for a recovery by the father, in his personal capacity, or as the legal representative of the deceased minor child, of damages for the mother's mental pain and suffering, appears to be an arbitrary exercise of governmental power, that may amount to a denial to the defendant of due process and equal protection of the laws, in violation of organic provisions.

Even if, under section 3147, the father may constitutionally recover damages in this action for the mental pain and suffering of the mother, caused by the wrongful death of their minor child, the verdict and judgment in this case are upon the evidence clearly excessive.

In this case there is no evidence of a malicious or intentional injury to the decedent, or of negligence of 'so gross and flagrant a character as to evince reckless disregard of human life, or of the safety of those exposed to its dangerous effects, or that entire want of care would raise the presumption of a serious indifference to consequences, or show wantonness and recklessness, or reckless indifference to the rights of others, equivalent to an intentional violation of them, which is necessary to justify a jury in inflicting punitive damages.' Florida Cent. & P. R. Co. v. Mooney, 40 Fla. 17, 24 So. 148; Florida Southern Ry. Co. v. Hirst, 30 Fla. 1, 11 So. 506, 16 L. R. A. 631, 32 Am. St. Rep. 17; Florida Ry. & Nav. Co. v. Webster, 25 Fla. 394, 5 So. 714; Dowling Lumber Co. v. King, 62 Fla. 151, 57 So. 337; Florida East Coast R. R. Co. v. Schumacher, 63 Fla. 137, 57 So. 603.

There is, perhaps, as much evidence that the defendant exercised all ordinary and reasonable care and diligence as required by the statute, and that the decedent was accustomed to traveling on a train and actually jumped off the moving train onto the station platform before the train stopped, which caused his death, as there is evidence that the deceased was thrown from the steps of the car by a sudden jar of the train. If the decedent and the defendant were both at fault, the damages should be diminished as required by the statute.

Of course, no amount of money that could be recovered would compensate a parent for the wrongful death of a child; but after the death the legal problem under the statute is the proper compensatory liability to impose for the wrongful or negligent act that caused the death of the minor child.

The death of a child deprives the parent of its society and of the hope for its future life, which, while the child lives, afford comfort and inspiration to the parent; and deprivation of such society, comfort, and inspiration is a substantial injury, that naturally causes mental pain and suffering, for which damages in a proper amount may be recovered under the statute.

As was held in the case of Florida East Coast Ry. Co. v. Geiger, 60 So. 753, decided at the last term, the motion of the defendant below 'to set aside the verdict rendered in this cause' was in effect a motion for a new trial, and it was so treated by the trial court. Counsel for the plaintiff below was not present when the motion was submitted to the trial court; but two affidavits state that the right to be present was waived by counsel, and the denial of the defendant's motion in the absence of plaintiff's counsel could not injure the plaintiff.

Mr. Chief Justice SHACKLEFORD concurs in a reversal of the judgment, upon the ground that section 3147 of the General Statutes, under which the greater portion of the damages was found, is unconstitutional, for the reasons stated in his dissenting opinion in the cases of Pensacola Electric Co. v. Soderlind, 60 Fla. 164, 53 So. 722, Ann. Cas. 1912B, 1251, and Davis v. Florida Power Co., 60 So. 759, decided at the last term.

The judgment is reversed.

TAYLOR, J., concurs.

DISSENTING

COCKRELL J. (dissenting).

Mr. Justice HOCKER and the writer are unable to agree to the reversal of this judgment.

The declaration alleges, and there is sustaining evidence to support its allegations, that the...

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