Love v. Hannah
Decision Date | 23 March 1954 |
Citation | 72 So.2d 39 |
Parties | LOVE et al. v. HANNAH et al. |
Court | Florida Supreme Court |
Broad & Cassel, Miami Beach, and Cushman, Gay & Woodard, Miami, for appellants.
Pepper, Orr & Faircloth, Miami, for appellees.
The primary and controlling question in this appeal is whether an administrator may maintain a suit under the wrongful death statute, Sections 768.01 and 768.02, Florida Statutes 1951, F.S.A., in the absence of an affirmative showing of the non-existence of any other person having a precedent right of action under the statute. The determination of this question--and particularly the disposition of this appeal involves collateral questions which we will discuss hereafter.
The suit was instituted by the administrators of the estate of Estelle Hannah on December 5, 1951, over three months after the death of the decedent. The complaint was cast in two counts, one for damages under the wrongful death statute, supra, and the other for damages under the survivor's statute, Section 45.11, Florida Statutes 1951, F.S.A. So far as the principal question herein concerned the following parts of the complaint are pertinent:
'1. Plaintiffs are the duly appointed and acting administrators of the estate of Estell Hannah, deceased, and reside in Tallahassee, Florida. They bring this suit on behalf of their decedent, Estell Hannah, as personal representatives of deceased for the wrongful death of said deceased. No husband, nor minor child, nor anyone dependent upon deceased, now survives the said deceased.
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(Emphasis added).
The plaintiffs' right of action under the wrongful death statute must be determined by the facts existing at the time of the death of decedent. Florida Power & Light Co. v. Bridgeman, 133 Fla. 195, 182 So. 911. The allegations in the complaint that no husband etc. 'now survives the deceased' (Emphasis added) does not necessarily mean that such persons were not living at the time of death. In Benoit v. Miami Beach Electric Co., 85 Fla. 395, 400, 96 So. 158, 159, this Court held that, 'The existence or nonexistence of any one having the precedent right of action under the statute enters into the very substance of the right of action itself when instituted by any of the named classes of persons after the first; and, when the suit is brought by any of these different classes, except the widow or husband, the declaration, in order to show a cause of action should affirmatively show the nonexistence of any other person having a precedent right of action over the plaintiff under the statute.'
On the question of whether there was a right of action in the administrators under this statute as construed by this Court the following portions of the evidence of one of the plaintiffs at the trial are significant:
'
'Mr. Cushman: I object to that question, and submit to the Court it is not material, and doesn't enter into the question of amount of damages.
'The Court: Sustained.
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There is also a deposition in the record (referred to in and used in support of the motion for summary judgment hereafter discussed) in which Caleb Hannah testified that his mother 'was supporting my baby sister [Alberta]' and that (Emphasis added.) In the same deposition, Estelle Hannah Love testified there was also a brother named William (then in Korea) who was 20 years old at the time of his mother's death.
An examination of the record in this case convinces us that the precise question of whether the administrators had a right of action under the wrongful death statute and the necessity of proving the non-existence of those having a prior right over the plaintiffs to maintain the action, was never considered by counsel for the plaintiffs or defendants or the court until after the trial was concluded, when it was raised on a motion for summary judgment. For instance, the motion to dismiss the complaint, directed to the whole complaint, had only the ground, viz. that it failed to state a claim upon which relief could be granted. Obviously, it was not error to overrule this motion, because the complaint was adequate to recover damages under Section 45.11, Florida Statutes 1951, F.S.A. See Brown v. Pennsylvania Sugar Co., 95 Fla. 116, 116 So. 72; Hawkins v. Shore Acres Properties, 93 Fla. 671, 112 So. 61.
The objection by Mr. Cushman, defendants' attorney, to the question of whether it was necessary to support the 'baby girl,' Alberta (heretofore quoted) was on the ground 'it is not material and doesn't enter into the question of amount of damages' (emphasis added) and Mr. Faircloth's reply that this girl 'required the support from the deceased' clearly was insufficient to call the point to the attention of the trial judge, and leaves the clear impression that counsel for both parties had failed to take into account the requirements of the statute. This is further borne out by the fact that, at the conclusion of all the evidence offered by the plaintiff (defendant offered none) counsel for defendant stated to the Court:
The jury returned a verdict in favor of plaintiffs for $10,000. The verdict was not apportioned as to the items of damage and it is impossible to tell what amount is for damages under Sections 768.01 and 768.02, supra, and what amount is for damages under Section 45.11, supra.
Motion for new trial was made and denied. While the first ground of such motion is that the verdict is 'contrary to the law and evidence,' the motion is principally directed at the amount of the award. Nowhere in the motion is there a particular reference to the fact that the record failed to establish the right of action in the plaintiffs under the count for wrongful death. This motion was filed March 5, 1953. On March 17, 1953, before disposition of motion for new trial or entry of final judgment, defendants filed a motion for summary judgment. This motion, inter alia, alleged that the evidence conclusively establishes the fact that plaintiffs 'have no right of action and are not entitled to maintian...
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