Hadley v. City of Tallahassee

• Court: Florida Supreme Court
• Writing for the Court: TAYLOR, J.
• Citation: Hadley v. City of Tallahassee, 67 Fla. 436, 65 So. 545 (Fla. 1914)
• Decision Date: 11 May 1914
• Parties: HADLEY v. CITY OF TALLAHASSEE.

65 So. 545

67 Fla. 436

HADLEY v. CITY OF TALLAHASSEE.

Florida Supreme Court

May 11, 1914

Error to Circuit Court, Leon County; John W. Malone, Judge.

Action by Emma Hadley against the City of Tallahassee. From a judgment sustaining a demurrer to the declaration, plaintiff brings error. Reversed and remanded.

Syllabus by the Court

SYLLABUS

Under our statutes the mother of an illegitimate minor child, and the mother alone, has the right to sue for and recover damages for the death of such child by the wrongful act negligence, carelessness, or default of another.

COUNSEL W. J. Oven and S. H. Diamond, both of Tallahassee, for plaintiff in error.

Fred T Myers, of Tallahassee, for defendant in error.

OPINION

TAYLOR J.

The plaintiff in error as plaintiff below sued the defendant in error as defendant below in the circuit court of Leon county for damages for the alleged negligent killing by electricity of an illegitimate child of the plaintiff of the age of six years.

The defendant demurred to the declaration on the grounds, among others: That the statute giving the right of recovery for the negligent death of a minor child contemplates only legitimate children, and that no recovery can be had under it by the mother of an illegitimate child negligently killed; and that if a right of action exists under the statute for the wrongful death of a bastard child, it does not accrue to the mother unless the father be dead. This demurrer was sustained by the court below, and final judgment rendered thereon in favor of the defendant, and against the plaintiff, who brings it here for review by writ of error.

Our statute (section 3147, General Statutes of 1906) enacted in 1899 provides as follows:

'Death of minor child by wrongful act.--Whenever the death of any minor child shall be caused by the wrongful act, negligence, carelessness or default 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.'

Long prior to the enactment of the foregoing statute, our Legislature on November 17, 1829, enacted the following provision, brought forward as section 2292 of the General Statutes of 1906:

'Bastards shall be capable of inheriting or transmitting inheritance on the part of their mother in like manner as if they had been lawfully begotten of such mother.'

Prior to the adoption of the last above-quoted statute, under the common law of England, then in force in this territory, a bastard in the eye of the law had neither father nor mother, nor any other kindred, but was regarded as nullius filius. But by the adoption of this statute a mother was assigned to him through whom and to whom he could receive and transmit inheritance of property just as though he had been of legitimate birth. This statute recognizes in the parentage of bastards their mother as such, but leaves the parentage so far as the father is concerned where it was before its adoption. On his father's part he is still nullius filius. In other words, under this statute a bastard has a mother fully recognized by law as such, but no father. Our Legislature had this statute...