Florida East Coast Ry. Co. v. Jackson

• Decision Date: 06 May 1913
• Citation: 65 Fla. 393,62 So. 210
• Parties: FLORIDA EAST COAST RY. CO. v. JACKSON et al.
• Court: Florida Supreme Court

62 So. 210

65 Fla. 393

FLORIDA EAST COAST RY. CO. v. JACKSON et al.

Florida Supreme Court

May 6, 1913

Rehearing Denied May 20, 1913.

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

Action by Gertrude Baker Jackson and another against the Florida East Coast Railway Company. Judgment for plaintiffs, and defendant brings error. Reversed.

Additional Syllabus by Editorial Staff

Syllabus by the Court

SYLLABUS

In suits for damages for the death of another by wrongful act or negligence, it is well settled that the action is maintainable only by the person who is by the terms of the statute authorized to maintain it.

Our Florida statute does not give the stepfather the right to maintain an action for the death of his minor stepson, even as the husband of such stepson's own mother; and joining such stepfather as a plaintiff in such a case with the deceased minor's own mother is a fatal misjoinder of parties plaintiff, as under the statute, where, as in this case, the deceased minor's own father is also deceased only his mother is given the right to maintain the action.

Where in an action for wrongful death, the issue was whether deceased was a passenger or a trespasser, it was error to exclude evidence that he had frequently stolen rides on defendant's trains.

In an action for the wrongful death of a minor, a verdict of $30,000 for mental pain and suffering alone was excessive where the minor's mother, the only person entitled to maintain the action, was an invalid, and could live but a few years.

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

D. C. Campbell, of Jacksonville, for defendants in error.

OPINION

TAYLOR J.

The defendants in error, hereinafter referred to as the plaintiffs, brought suit in the circuit court of Duval county against the plaintiff in error, hereinafter referred to as the defendant, for the alleged wrongful death of Joseph Lee Baker, an alleged minor son of the plaintiff Gertrude Baker Jackson by a former husband, who was dead at the time of the death of said son; she having married her coplaintiff William O. Jackson prior to the death of said son by her former marriage. The trial of the cause resulted in a verdict and judgment in favor of the plaintiffs in the sum of $30,000 for damages for mental pain and suffering alone of the plaintiff mother; there being no proof of any other loss accruing to her in consequence of the death. This judgment the defendant below brings here for review by writ of error.

The issues were made up upon, and the cause was tried on, the allegations of an amended beclaration. To each of the counts of this amended declaration the defendant interposed a demurrer, upon the ground, among others, of a misjoinder of parties plaintiff; but all of these demurrers were overruled by the court below, and such ruling is assigned as error. This ruling was error. There is no question better settled in this class of cases than that the action is maintainable only by the person who is by the terms of the statute authorized to maintain it. Tiffany's Death by Wrongful Act (2d Ed.) § 116, and citations; Louisville & N. R. Co. v. Jones, 45 Fla. 407, 34 So. 246.

In the case of Thornburg v. American Strawboard Company, 141 Ind. 443, 40 N.E. 1062, 50 Ma. St. Rep. 334, it was held that statutes giving to parents the right to sue for the wrongful death of a minor child are in derogation of the common law, and must be strictly construed, and that a stepfather could not, under the statute, maintain an action for the wrongful death of his minor stepchild.

In the case of Bell v. Allen, 53 Ala. 125, it was held that a misjoinder of plaintiffs, whether disclosed on the record or by the evidence offered on the trial, is fatal to a recovery. All the plaintiffs in an action at law must be entitled to recover; otherwise none of them can recover in it. This rule is applicable to a misjoinder of husband and wife. Walker v. Fenner, 28 Ala. 367.

In the case of City of Chicago v. Speer, 66 Ill. 154, it was held that, where suit was brought by husband and wife to recover damages for a personal injury to the latter, the case presented the ordinary one of a joinder of too many plaintiffs, which, even in an action ex delicto, is a ground of nonsuit on the trial, and for the joinder of the husband in the action the judgment in favor of the plaintiffs was reversed.

Our statute under which this action was brought gives the right of action (1) to the father of the deceased minor child; or (2) if the father be not living, the mother, as the legal representative of such deceased...