Pidcock-jones Co. v. Watson

• Decision Date: 16 January 1940
• Citation: 193 So. 305,141 Fla. 376
• Parties: PIDCOCK-JONES CO. v. WATSON et al.
• Court: Florida Supreme Court

193 So. 305

141 Fla. 376

PIDCOCK-JONES CO. v. WATSON et al.

Florida Supreme Court, Division A.

January 16, 1940

Error to Circuit Court, St. Johns County; George William Jackson Judge.

Action by Zola Bell Watson and others against the Pidcock-Jones Company, a corporation, for the death of the father of plaintiffs resulting from an automobile collision. To review a judgment for the plaintiff, defendant brings error.

Reversed and remanded.

COUNSEL H. L. Anderson, of Jacksonville, for plaintiff in error.

Mickler & Mickler, of St. Augustine, for defendants in error.

OPINION

BUFORD, Justice.

The writ of error brings for review judgment in favor of what appears by inference to be substituted plaintiffs for damages sustained by the wrongful death of the father of plaintiffs.

The suit was filed by the widow of deceased and before it came on for trial she died and counsel say the three minor children were substituted and the suit revived with them as plaintiffs.

The record here fails to show such proceedings but, as such is admitted by the parties to have been the status, we accept it as such.

It is alleged that the father of plaintiffs was killed in a collision between an automobile in which he was riding and the rear end of a truck driven by defendant's agent and servant. There is no evidence as to the manner in which the automobile was being driven and there is a paucity of evidence of any negligent operation of the truck. The only evidence tending to prove negligence on the part of the dirver of the truck is circumstantial and the evidence of negligence of the driver of, and those occupying the automobile, is as evident from the circumstances as is any negligence of the driver of the truck.

We are not willing to say that plaintiffs cannot recover under the evidence because of the entire lack of proof of negligence on the part of the driver of the truck, but a very weak case, if any at all, is made.

The suit is brought under provisions of Sec. 4961, R.G.S section 7048, C.G.L. In the case of Triay, Receiver, v Seals et al., 92 Fla. 310, 109 So. 427, 430, this Court had under consideration a suit brought under this statutory provision, and in that case it was held:

'A minor child's claim for damages for the death of its father by the wrongful act of another under our law is based on these elements as qualified: (1) The loss of support which the father is in duty bound to give his child during its minority, based on the evidence of his probable future earnings and other acquisitions, such earnings and acquisitions to be estimated upon the basis of father's earnings in the past, his age, health, business capacity, habits, experience, and energy, and his present and future prospects for business success at the time of his death; and (2) the loss of attention, care, comfort, companionship, protection, education, and moral training of the father which might reasonably have been anticipated in the light of the evidence relating to the character and conduct of the father as such. These elements to be based on the probable life of the father. The sum total of all these elements to be reduced to a money value and its present worth to be given as damages. Within these limits the jury exercises a reasonable discretion as to the amount to be awarded, based upon the facts in evidence and the knowledge and experience possessed by them in relation to matters of common knowledge and information.'

The evidence in this case fails to establish the essential requirements pointed out in the Seals case. It is not shown what amount, if any, the father was contributing to the support of either of said children at the time of his death. The proof of his earning capacity is by way of answer to interrogatories, the answers being given by one who is not shown to be a party to the suit, though she answers that she is one of the plaintiffs, and who testified at the trial that she did not know what deceased was earning at the time of his death. This witness, Essie Mae Mock, testified that she was one of the children of the plaintiff. She did not testify as to her age but she did testify that she was a married woman and had three children. Therefore, it appears from the record that she...