Nolan v. Moore
| Decision Date | 10 June 1920 |
| Citation | 81 Fla. 600,88 So. 601 |
| Parties | NOLAN v. MOORE. |
| Court | Florida Supreme Court |
On Petition for Rehearing, April 25, 1921.)
Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.
Action by A. J. Moore against Claude Nolan. Judgment for plaintiff and defendant brings error.
Reversed unless remittitur entered.
On Petition for Rehearing.
Syllabus by the Court
Statute should not be construed to include cases not within language. The common law afforded no right of action to any one for damages resulting from the death of a person caused by the wrongful act, negligence, or default of another, and statutes giving such rights should not by arbitrary construction be extended to include classes of cases not within the meaning of the language used.
Statute should not be construed to include cases not within legislative intent. While Acts 1914, c. 6487 (Comp. Laws 1914, §§ 3147, 3147a), is remedial in its nature, and it should be so construed as to afford the remedy clearly designed, yet the statute should not by judicial construction be extended to include rights of action that are not within the lawmaking intent as shown by the language used.
Courts cannot change lawmaking intent as expressed in language used. The Legislature uses such language as it chooses in enacting laws, and the courts have no power to add to or take from the law-making intent as expressed in the language used considered in view of the object sought to be attained.
Statutes imposing new liabilities strictly construed. Statutes imposing new liabilities should be strictly construed.
Individual not liable for employee's negligence. Chapter 6487, Acts of 1913 (Comp. Laws 1914, §§ 3147, 3147a), gives a new right of action, and by the language used therein does not make an individual liable in damages to a parent for the death of a minor child caused by the negligence of the employee of such individual.
Damages not recoverable at common law. At common law, conformable with the maxim, 'Actio personalis moritur cum persona,' there was no right of action for damages resulting from death caused by the wrongful act or negligence of another.
Commmon-law rule changed by statute. Section 3147, General Statutes of Florida 1906, chapter 6487, Acts of 1913 (Comp Laws 1914, §§ 3147, 3147a), changes the common-law rule in this state and gives a right of action for death caused by the wrongful act, negligence, carelessness, or deafault of another.
Acts giving new right of action should not be extended beyond meaning of terms. Statutes giving a right of action where none existed at common law should not be extended beyond the meaning of the terms used, but such statutes are remedial in their nature, and should when sufficient for the purpose be so construed as to afford the remedy clearly designed.
Intent of valid statute is the law. The intent of a valid statute is the law, and this intent may be ascertained by a consideration of the purpose of the enactment.
In force except as modified by competent governmental authority. The common law is in force in this state except when modified by competent governmental authority.
Should be construed in light of common law. Statutes and Constitutions in this country should be read in the light of the common law, from which our system of jurisprudence comes.
Individual liable for servant's wrong. When the Legislature by statutory enactment in express terms imposes civil liability upon an individual for the death of a minor child 'caused by the wrongful act, negligence, carelessness or default' of such individual under the doctrine expressed in the maxim respondeat superior, an individual may also be civilly liable for the death of a minor child caused by the wrongful act or negligence of his servant or employee while acting within the scope of his employment.
Individual liable for servant's wrongs. Where the Legislature by valid enactment imposes civil liability upon an individual for his own wrongs, the law imposes liability upon such individual for the wrongs of his servants acting within the scope of their employment in the same class of cases.
Repeals by implication not favored; statute not construed as taking away common-law right unless imperatively required. Repeals by implication are not favored, and a statute will not be construed as taking away a common-law right existing at the time of its enactment unless imperatively required.
Individual liable for servant's wrong. Section 3147, General Statutes of Florida 1906, chapter 6487, Acts of 1913 (Comp. Laws 1914, §§ 3147, 3147a), gives a right of action against an individual whose 'wrongful act, negligence, carelessness or default' causes 'the death of any minor child.' Held, construing the statute in the light of the common law, that the statute gives also a right of action against an individual whose servant while acting within the scope of his employment by his wrongful act or negligence causes the death of a minor child.
Parent's 'loss of services' of child recoverable. 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.
Where damages recovered are excessive, appellate court may affirm upon remittitur. In an action for damages, where liability is shown, but the amount recovered appears to be excessive, this court may adjudge an affirmance upon plaintiff's entering an appropriate remittitur.
$10,000 for child's death excessive. $5,000 for loss of services of minor child and $5,000 for mental pain and suffering of parents held excessive in action for wrongful death and should be reduced to $6,000.
Marks, Marks & Holt, of Jacksonville, for plaintiff in error.
Nathan P. Bryan and Wm. K. Jackson, both of Jacksonville, for defendant in error.
In this action brought under section 3147 of the General Statutes of 1906, amended by chapter 6487, Acts of 1913 (Comp. Laws 1914, §§ 3147, 3147a), the declaration alleges the wrongful death of the plaintiff's 12 year old minor son caused by being struck by an automobile driven by defendant's employee, the negligence alleged in several counts being that the car was being propelled and driven 'at a high, reckless, unsafe, and unlawful rate of speed' on the highway; that defendant's employee driving the car 'failed to exercise proper diligence in watching out for pedestrians on said public highway'; and that the driver 'failed to sound a horn or give other warning of the approach' of the automobile. The damages claimed are $5,000 for loss of services of the minor child, and $5,000 for the mental pain and suffering of the decedent's parents.
A demurrer to the declaration was overruled, and trial was had on pleas of not guilty and of contributory negligence of the decedent. Upon the rendering of a verdict and judgment for $10,000 damages, a remittitur of $2,500 was noted by plaintiff's attorney. On writ of error the defendant below contends that the statute is not applicable to this class of cases, and that numerous errors of procedure occurred at the trial.
A determination of the meaning, intent, and effect of section 3147, General Statutes 1906, chapter 6487, Acts of 1913, § 1 (Comp. Laws 1914, § 3147), is the primary consideration. The statute 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 of persons, or by the wrongful act, negligence, carelessness or default of any officer, agent or employee of any private association of persons, acting in his capacity as such officer, agent or employee, 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 employee of any corporation acting in his capacity as such officer, agent or employee, 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.'
Note the differences between this statute and Lord Campbell's Act, 17 C.J. 1184; Tiffany, Wrongful Death, § 21; 8 R. C. L. 724; 17 C.J. 1230.
The common law afforded no right of action to any one for damages resulting from the death of a person caused by the wrongful act, negligence, or default of another. 7 Labbatt on Master and Servant, § 2635; 8 R. C. L. 719 et seq.; 17 C.J. 1181; Flanders v. Georgia Southern & F. R. Co., 68 Fla. 479, 67 So. 68. Statutes giving such rights should not by arbitrary construction be extended to include classes of cases not within the meaning of the language used.
While the statute is remedial in its nature and it should be so construed as to afford the remedy clearly designed, yet the statute should not by judicial construction be extended to include rights of action that are not within the lawmaking intent as shown by the language used. The Legislature uses such language as it chooses in enacting laws, and the courts have no power to add to or take from the lawmaking intent as expressed in the language used, considered in view of the object sought to...
To continue reading
Request your trial
-
Roseberry v. Norsworthy
......465;. Middleton v. Lincoln County, 84 So. 907; State,. etc., v. Grenada, etc., 85 So. 137; Sperry, etc., v. Harbison, 86 So. 455; Nolan v. Moore, 88 So. 601; Anderson v. City of Birmingham, 88 So. 900;. Yarbrough, etc., v. Phillips, etc., 96 So. 414;. State, etc., v. ......
-
Blankfeld v. Richmond Health Care, Inc.
...... in nature but holding that the language of the Dead Man proviso should be strictly construed and limited to its narrowest application); Nolan v. Moore, 81 Fla. 594, 88 So. 601, 604-05 (1921) (holding that where a statute is remedial in character it should not be so construed as to defeat ......
-
State v. Egan
......First Savings & Trust Co., 103 Fla. 1025, 138 So. 780 (1931); State v. Jacksonville Terminal Co., 90 Fla. 721, 106 So. 576 (1925); Nolan v. Moore, 81 Fla. 594, 88 So. 601 (1921). 2 118 Fla. 201, 159 So. 504 (1935). 3 159 So. at 507. 4 156 So.2d 705 (Fla.App.2nd 1963). See also ......
-
South Florida Farms Co. v. Stevenson
...... . . The. contract consists in two letters as follows:. . . . 'Copy. . . . . . 'Moore. Haven, Florida, July 10, 1919. . . . . . 'Mr. D. W. Stevenson, Moore Haven--Dear Mr. Stevenson: It is my. understanding of our ...668,. 84 So. 688; Empire Drug Co. v. Smith, 78 Fla. 594,. 83 So. 458; Standard Growers' Exchange v. Martin, 80 Fla. 864, 87 So. 54; Nolan v. Moore, . 81 Fla. 600, 88 So. 601; Florida East Coast R. Co. v. Schumacher, 63 Fla. 137, 57 So. 603; Florida East. Coast R. Co. v. Hayes, 67 ......
-
Negligence cases
...rev’d on other grounds , 153 So.2d 3 (Fla. 1963); Chamberlain v. Florida Power Corporation , 198 So. 486 (Fla. 1940); Nolan v. Moore , 88 So. 601 (Fla. 1921). 3. Liberally Construed: As the district court accurately observed, our analysis is guided by the Legislature’s general intent that t......