Gaboury v. Flagler Hospital, Inc.

• Decision Date: 18 July 1975
• Docket Number: No. 74--99,74--99
• Parties: Lawrence A. GABOURY and Florence M. Gaboury, Appellants, v. FLAGLER HOSPITAL, INC., a Florida Non-Profit Corporation, and Anthony Joseph Mussallem, M.D., Appellees.
• Court: Florida District Court of Appeals

Page 642

316 So.2d 642

Lawrence A. GABOURY and Florence M. Gaboury, Appellants, v. FLAGLER HOSPITAL, INC., a Florida Non-Profit Corporation, and Anthony Joseph Mussallem, M.D., Appellees.

No. 74--99.

District Court of Appeal of Florida, Fourth District.

July 18, 1975.

Ray A. Munson and Mortimer Fried, Miami, for appellants.

Jeffrey E. Streitfeld of Hoffman Hendry Parker & Smith, Orlando, for appellee, Flagler Hospital, Inc.

Bruce S. Bullock and Robert M. Sharp of Bullock, Sharp & Childs, Jacksonville, for appellee, Anthony Joseph Mussallem, M.D.

NANCE, L. CLAYTON, Associate Judge.

This is an interlocutory appeal by the appellants/plaintiffs from an order of the trial court granting the appellees/defendants' Motion to Dismiss the Complaint for improper venue and convenience of the parties and transferring the cause from Orange County to St. Johns County, Florida.

The plaintiffs filed an action for damages in Orange County, as parents and administrators of the estate of the decedent, under the Florida Wrongful Death Act, Fla.Stat. § 768.16 et seq. (1973). The complaint alleged, inter alia, that the decedent, who was driving from Jacksonville Beach, had sought and received treatment, by the defendant physician, in the defendant corporation's hospital, in St. Augustine (St. Johns County) and released; that she continued on her journey and died the same morning in Orlando (Orange County). Substantially, the gravamen of the complaint is that the defendants were negligent in making an improper diagnosis and in rendering the decedent improper care and treatment. All examinations or treatment rendered to the decedent by the defendants took place in St. Johns County, Florida, where the defendant physician resides and practices, and where the defendant hospital has its sole and only place of business. The trial court transferred the cause from Orange County to St. Johns County for lack of venue in Orange County, Florida, Fla.Stat. § 47.011 (1973), and because of convenience of the parties, Fla.Stat. § 47.122 (1973).

The first point raised by the appellant is that the trial court erred in transferring the cause for improper venue.

Fla.Stat. § 47.011, as amended, 1973, provides:

'Actions shall be brought only in the county where defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents.'

This general venue statute controls all actions brought under the common law or under statute not containing specific provision respecting venue; however, it is not necessarily all inclusive. Stewart v. Carr, 218 So.2d 525 (2nd DCA Fla.1969); Deeb, Incorporated v. Board of Public Instruction of Columbia County, 196 So.2d 22 (2nd DCA Fla.1967); Mendez v. George Hunt, Inc., 191 So.2d 480 (4th DCA Fla.1966). Such a statute may be limited by other statutes providing civil relief under varying circumstances, Stewart v. Carr, supra; Paulet v. Hickey, 206 So.2d 29 (2nd DCA Fla.1968), and certain exceptions exist based upon common law rules and public policy. See, City of St. Peterburg v. Earle, 109 So.2d 388 (2nd DCA Fla.1959), and cases cited therein.

The Florida Wrongful Death Act, Fla.Stat. § 768.16 et seq., contains no venue provision, and the general venue statutory provision contained in Fla.Stat. § 47.011 controls, consistent with the law and rationale of the Florida cases herein cited, and the law generally in other jurisdictions. 22 Am.Jur.2d, Death, § 189 (1965); Annot., 36 ALR2d 1146, 1150, § 4 (1954).

Fla.Stat. § 768.19, reads as follows:

'When the death of a person is caused by the wrongful act, negligence, . . . and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person . . . that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured . . .'

The gravamen of the statute is the wrongful act, Et cetera, of the person liable for damages. So it is in the instant case, where it is recited in the appellant's brief that the gravamen of the complaint is that the defendants were negligent. By description it is a tort, personal and transitory in nature.

It has been well stated that such an action should be tried in the same manner and be governed by the same general principles of practice as it would have been had the injured person not died and was suing to recover damages for the wrongful act. 22 Am.Jur.2d, Death, § 189.

It has been stated that venue statutes are for the protection of the defendant where the action is personal or transitory, and unless waived, the defendant has the privilege of being sued either in the county of his residence or in the county where the cause of action accrued. Richard Bertram & Co. v. Barrett, 155 So.2d 409 (1st DCA Fla.1963).

In determining the proper forum in which to bring suit under the general statute fixing venue where the cause of action 'arose', or 'accrued', the 'injury occurred', Et cetera, the differences are often of importance, but generally within the meaning of statutes of this kind, a cause of action is said to arise at the Place where the act creating the right to bring an action occurred, and when a tort is complete in a particular county, the cause of action is deemed to have accrued there so as to fix venue, notwithstanding that the plaintiff may have suffered damages, and even his greatest damage, in another county. 56 Am.Jur., Venue, § 34 (1947).

Indeed, from the standpoint of limitations of...