Meeks v. Johnston

• Decision Date: 26 February 1923
• Citation: 95 So. 670,85 Fla. 248
• Parties: MEEKS v. JOHNSTON et ux.
• Court: Florida Supreme Court

95 So. 670

85 Fla. 248

MEEKS v. JOHNSTON et ux.

Florida Supreme Court

February 26, 1923

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by L. H. Meeks against W. M. Johnston and wife. Judgment for defendants, and plaintiff brings error.

Reversed for new trial.

Syllabus by the Court

SYLLABUS

In force except when modified by competent governmental authority. The common law is in force in this state, except when modified by competent governmental authority.

Statutes and Constitutions should be read in the right of the common law. Statutes and Constitutions should be read in the light of the common law, from which our system of jurisprudence comes.

Suits maintainable for wrongful death of minors. The statutes authorize suits for the recovery of damages for the death of minors, caused by the wrongful acts and negligence of others.

Parent's 'loss of services' between the death and majority of child recoverable. The 'loss of services' sustained by a parent in the wrongful death of a minor child is the value of such services that such parent would be entitled to between the death and the majority of such minor.

Rule at common law as to liability of married woman for her pure torts stated. At common law a married woman was, as a general rule, liable civilly for her pure torts, not committed under the coercion of her husband and not growing out of or founded on, or directly connected with, or a part of, or the means of effecting, a contract which she had undertaken to make; and she could be sued jointly with her husband in respect to such acts, or separably if she survived him.

Husband civilly liable at common law for wife's wrongful acts committed during coverture. It was the general rule of the common law that a husband was civilly liable for his wife's wrongful acts, committed during coverture.

Rule as to liability and remedy for actual torts of married woman. A married woman in this state is personally liable for the wrongful civil acts, or actual torts, including faults not growing out of or founded upon, or directly connected with or a part of, or the means of effecting, a contract which she has undertaken to make; and she may be sued jointly with her husband in respect to such acts, or separately if she survives him.

Contributory negligence of parent not attributed to infant child. Contributory negligence of a parent is not attributed to an infant child.

COUNSEL

Macfarlane & Macfarlane and Henry H. Cole, all of Tampa, for plaintiff in error.

D. C McMullen, of Tampa, for defendants in error.

OPINION

WHITFIELD, J.

In an action brought by L. H. Meeks against Wm. M. Johnston and Willa May Johnston, his wife, to recover damages for the death of the plaintiff's minor child as it alighted from a street car, resulting from an alleged negligent operation of the automobile by the defendant Willa May Johnston, her husband, Wm. M. Johnston, not being personally present at the time of the fatal injury, the court struck from the declaration allegations that the parents had 'suffered great mental pain and anguish,' and, after the testimony for both sides was adduced, the court directed 'a verdict for the defendant on the law, not on the testimony in the case.' A writ of error was taken to a judgment for the defendant on the directed verdict.

The statute under which the action is brought is as follows:

'Whenever the death of any minor child shall be caused by the wrongful act, negligence, carelessness or default of any individual, or by the wrongful act, negligence, carelessness or default of any private association or persons, or by the wrongful act, negligence, carelessness or default of any officer, agent or employé of any private association of persons, acting in his capacity as such 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 or 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 may maintain an action against such individual, private association of persons, or corporation, and may recover, not only for the loss of services of such minor child, but in addition thereto, such sum for the mental pain and suffering of the parent (or both parents) if they survive, as the jury may assess.

'All actions provided for by section 4962 shall be barred, unless brought within two years from the time the cause of action accrued.' Chapter 6487, Acts of 1913; sections 4962, 4963, Rev. Gen. Stats. 1920.

The common law is in force in this state, except when modified by competent governmental authority.

Statutes and Constitutions in this country should be read in the light of the common law, from which our system of jurisprudence comes.

Section 3147, General Statutes of Florida 1906, as amended by chapter 6487, Acts of 1913, gives a right of action against an individual whose 'wrongful act, negligence, carelessness or default' causes 'the death of any minor child.'

The purpose of the statute is to authorize suits for the recovery of damages for the death of minors caused by the wrongful acts and negligence of others. The 'loss of services' sustained by a parent in the death of a minor child is the services that such parent would be entitled to between the death and the majority of such minor. Nolan v. Moore, 81 Fla. 600, 88 So. 601.

At common law a married woman was, as a general rule, liable civilly for her pure torts, not committed under the coercion of her husband, and not growing out of or founded, on, or directly connected with, or a part of, or the means of effecting, a contract which she had undertaken to make; and she could be sued jointly with her husband in respect to such acts, or separably if she survived him. 13 R. C. L. § 255, p. 1220.

It was the general rule of common law that a husband was civilly liable for his wife's wrongful acts committed during coverture. This liability of the husband was settled from an early date, and, while various reasons therefor have been given, its original foundation is not clear, but it seems that it cannot be said to have been rested on the fact that her husband could take all the wife's...