Lithgow v. Hamilton

• Decision Date: 15 January 1954
• Parties: LITHGOW v. HAMILTON et al. (three cases).
• Court: Florida Supreme Court

Page 776

69 So.2d 776

LITHGOW v. HAMILTON et al. (three cases).

Supreme Court of Florida, Special Division A.

Jan. 15, 1954.

Rehearing Denied Feb. 13, 1954.

Blackwell, Walker & Gray, Miami, for appellant.

Nichols, Gaither, Green, Frates & Beckham, Miami, for appellees.

SEBRING, Justice.

On August 31, 1951, at the intersection of North Miami Avenue and 119th Street in Miami, Florida, Mrs. Thomas Lee Hamilton was killed, and her 4-year old son was injured, when an ambulance belonging to David Lithgow Funeral Centers collided with an automobile that Mrs. Hamilton was driving and in which the minor son was riding as a passenger. Thomas Lee Hamilton, the father, brought suit, as next friend of his minor son, to recover damages for personal injuries to the child. He brought a second suit to recover for consequential damages to himself resulting from his minor son's personal injuries. He instituted a third suit to recover damages for the wrongful death of his wife. The cases were consolidated for trial and tried together. At the conclusion of the trial the jury returned three separate verdicts, as follows: A verdict in favor of the plaintiff father, as next friend of the minor son, in the amount of $3,750; a verdict in favor of the plaintiff for consequential damages from injuries to him minor son, in the amount of $1,000; a verdict in favor of the plaintiff for the wrongful death of his wife, in the amount of $100,000. Judgments were rendered upon the verdicts and the defendant appealed.

It appears from the record that on the morning of August 31, 1951, the 54th Street Funeral Center of the defendant received a request by telephone to send an ambulance to N. W. 138th Street to pick up the take to the hospital a small child who had swallowed some foreign substance. An ambulance was immediately dispatched on the mission. After the ambulance left the garage of the Funeral Center it traveled west on 54th Street to N. E. 2d Avenue, north on N. E. 2nd Avenue to where it terminates by curving west into 119th Street, and then proceeded west on 119th Street to its intersection with Miami Avenue, where it ran into the plaintiff's car which was proceeding across the intersection in a southerly direction.

The evidence as to what transpired at and immediately prior to the collision is in conflict. But there is evidence, which the jury had the right to believe, that 119th Street and Miami Avenue were heavily travelled thoroughfares. As Mrs. Hamilton approached the intersection she was driving in the proper lane of Miami Avenue for southbound traffic. She proceeded into the intersection while the light was green at a speed estimated by some of the witnesses as 'very slow' and by others as 15 to 20 miles an hour. The highest estimate of speed given by any of the plaintiff's witnesses was that she was travelling 'from 20 to 30 miles an hour.' As to the speed of the defendant's ambulance, there was testimony that as it approached the intersection, it was being driven at 'a teriffic rate of speed * * * between 60 and 65 miles an hour.' Other testimony placed the estimated speed at between 45 to 60 miles an hour. Many of the witnesses agreed that as the ambulance approached the intersection the siren was not blowing--at least until the moment before impact; that the driver ran the red light; and that he either accelerated apeed, or failed to slow down, as he approached the intersection.

From the evidence before it the jury had the right to conclude that the driver of the ambulance ran through a red light at a busy intersection going at least 45 miles an hour without blowing his siren or giving other reasonable warning of his approach and struck the car occupied by Mrs. Hamilton and her son that was then and there being driven through a green light at a lawful rate of speed. We hold, therefore, that a case warranting recovery was established by the evidence and that the trial court did not commit reversible error in failing to direct a verdict upon motion of the defendant.

Objections are made by the defendant as to the amount of the verdict that was returned in favor of the plaintiff for the wrongful death of his wife. It is contended that the verdict of $100,000 was so grossly excessive as to create a presumption that it was a result of passion, prejudice, sympathy or some other extraneous factor, rather than a fair and impartial rationalization of the evidence in the cause. The statute under which the action was brought requires the jury to award such damages 'as the party * * * entitled to sue may have sustained by reason of the death of the party killed * * *.' Section 768.02, Florida Statutes 1951, F.S.A. Where the suit is by the husband for the wrongful death of the wife it seems well settled that among the elements which the jury is entitled to take into consideration in fixing the amount of the award are the following: (1) The funeral expenses of the wife incurred and paid by the husband, where the amount thereof is claimed as special damages. City of Coral Gables v. Neill, 133 Fla. 4, 182 So. 432; Potts v. Mulligan, 141 Fla. 685, 193 So. 767. (2) The pecuniary value of services which the husband might reasonably expect to have received from the deceased wife if she had not been killed, less maintenance costs, of course; this includes the value of such services as the wife was accustomed to perform in the household and which will have to be replaced by hiring services; services ordinarily performed by the deceased wife in the care and moral training of the minor children in the household; and any special service which the wife was accustomed to perform for the husband in the household, and in his business without compensation, which will have to be replaced by hired services. Vol. 5, Sutherland on Damages, 4th Ed., sec. 1266; 25 C.J.S., Death, § 103(b); Pollard v. Kent, 59 Ga.App. 118, 200 S.E. 542; Blue's Truck Line v. Harwell, 57 Ga.App. 136, 194 S.E. 399; Baker v. Salvation Army, 91 N.H. 1, 12 A.2d 514; Herro v. North Western Malleable Iron Co., 181 Wis. 198, 194 N.W. 383. Compare Seaboard Airline R. Co. v. Martin, Fla., 56 So.2d 509; Waller v. First Savings & Trust Co., 103 Fla. 1025, 138 So. 780; Ripley v. Ewell, Fla., 61 So.2d 420. (3) The husband's loss of the wife's consortium and companionship, by which is meant, the conjugal fellowship of husband and wife and the right of each to the company, cooperation and aid of the other in every conjugal relation. Potts v. Mulligan, supra; Florida Cent. & P. R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338. Consortium means much more than mere sexual relation and consists, also, of that affection, solace, comfort, companionship, conjugal life, fellowship, society and assistance so necessary to a...