Potts v. Mulligan

• Decision Date: 09 February 1940
• Citation: 141 Fla. 685,193 So. 767
• Parties: POTTS et al. v. MULLIGAN.
• Court: Florida Supreme Court

193 So. 767

141 Fla. 685

POTTS et al. v. MULLIGAN.

Florida Supreme Court

February 9, 1940

Rehearing Denied Feb. 27, 1940.

Error to Circuit Court, Dade County; Worth w. Trammell, Judge.

Action by Samuel Mulligan against W. G. Potts, for the death of plaintiff's wife in an automobile accident, wherein after the death of W. G. Potts, an order was made substituting Jessie S. Potts, as executrix of the estate of William G. Potts, deceased, and R. Emmett Hanley, as administrator c.t.a. of the last will and testament of William G. Potts, deceased, as parties defendant. To review an unsatisfactory judgment, defendants bring error.

Affirmed.

COUNSEL

Kurtz & Reed and Murrell & Malone, all of Miami, for plaintiffs in error.

E. F P. Brigham, of Miami, for defendant in error.

OPINION

BROWN Justice.

This writ of error brings up for review a judgment rendered in the Circuit Court of the Eleventh Judicial Circuit in favor of the defendant in error for $9,250 as damages, together with the costs incurred in the court below. The action was originally brought by Samuel Mulligan, defendant in error here, against W. G. Potts, in February 1937, and upon the subsequent death of said W. G. Potts, which fact was properly brought to the attention of the court, an order was made substituting Jessie S. Potts, as executrix of the estate of W. G. Potts, deceased, and R. Emmett Hanley as administrator c. t. a. of the estate of said deceased, as parties defendant, and ordering that the cause proceed against them as the legal representatives of the estate of W. G. Potts which order was entered November 6, 1937.

The action was one brought by a husband for damages occasioned by the wrongful death of his wife, as a result of a collision between the automobile being driven by the plaintiff in the court below, whose wife was sitting beside him in his car, and an automobile driven by the agent and servant of the defendant, while acting within his employment, which collision took place at the intersection of Dade Boulevard and Alton Road in Miami Beach, Florida, on November 12, 1936. Plaintiff's wife died one month and one day thereafter. The declaration alleged that this collision was caused by the negligence of the driver of defendant's automobile, and that as a proximate result thereof plaintiff's wife came to her death, and that plaintiff was obliged to and did lay out and expend large sums of money for ambulance hire, hospital rent, medical treatment and medicines, and other expense items, 'in accordance with the bill of particulars attached hereto as Exhibit A and by reference made a part hereof.' Plaintiff claimed damages in the sum of $25,000. Said Exhibit A, so made a part of the declaration, and entitled 'Bill of Particulars,' gave an itemized statement of various items of expense, including ambulance and hospital bills, doctors' bills, and funeral expenses amounting to $597.42, the total of these items of expense being $999.56. Said Exhibit also embraced this item: 'To loss of society, companionship and consortium of wife, $24,000.42,' making a total of $25,000 as alleged in the declaration.

One of the contentions of the plaintiff in error is that funeral expenses, incurred by the plaintiff husband in connection with the death of his wife, do not constitute a proper element of damages in an action brought to recover damages for the wrongful death of his said wife.

In the case of International Shoe Co. v. Hewitt, 123 Fla. 587, 167 So. 7, 10, this Court held that the administrator in an action under the wrongful death statute (Secs. 7047, 7048, C.G.L.) could not recover damages for funeral expenses. In that case it was said:

"Where an administrator has a right of action under the statute imposing a liability for the wrongful death of a person, he may recover the value at the decedent's death of the prospective earnings and savings that, from the evidence, could reasonably have been expected, but for the death of the decedent.'

'And in Florida East Coast R. Co. v. Hayes, 67 Fla. 101, 64 So. 504, 7 A.L.R. 1310, we held that in an action of this kind, an administrator may recover only the present monetary worth of the decedent's life to an estimated prospective estate to compensate for the estate that the decedent probably would have accumulated to leave at his death. This is a purely statutory action, and under the statute as previously interpreted by this court, the administrator cannot recover for funeral expenses.

'We admit that the decisions in other jurisdictions are by no means unanimous on this question. See 17 C.J. 1339, 1340; and Davis v. New York Central, etc., R. Co., 233 N.Y. 242, 135 N.E. 277; Herning v. Holt Lumber Co., 153 Wis. 101, 140 N.W. 1102. But the reasoning of our own decisions as applied to other elements of recoverable damages sustains our conclusion. Furthermore, the declaration did not claim damages for funeral expenses, which was in the nature of special damages which should be specifically claimed. Sutherland on Damages (4th Ed.) § 1278, p. 4951.'

But here the action is by the husband of the deceased, and the damages which the husband can claim, under Section 7048, Comp.Gen.Laws, cover a far wider range than those which an administrator can recover under said statute.

It is true that in the body of the declaration in this case there is no express or specific claim of damages for funeral expenses, but they are itemized in the Exhibit which was made a part of the declaration, and this we hold to be sufficient, provided of course said funeral expenses are recoverable by the husband in such an action as this.

Plaintiffs in error contend that inasmuch as funeral expenses are by our statute made a prior claim against the estate of the deceased wife to the extent of $350, to that extent at least the plaintiff in the Court below was not entitled to recovery.

The evidence in this case does not show whether the deceased Mrs. Mulligan left any estate, but the evidence does show that the bill for these funeral expenses was made out against, presented to and paid by the plaintiff husband.

Plaintiffs in error cite the case of Saucer v. Willys-Overland, Inc., D.C., 49 F.2d 385, 387, in which it was held that the widow, in an action for the wrongful death of her husband, is not entitled to recover funeral expenses as an element of damages. The opinion in that case was written by District Judge Strum, formerly a member of this Court. But when all that was said by Judge Strum is considered, we think that the case thus cited tends to sustain the contention of the defendant in error rather than that of the plaintiffs in error. In that case the opinion in part reads as follows:

'The pertinent part of the statute (section 7048, Comp.Gen.Laws Fla. 1927), with respect to damages recoverable, is that the person to whom a right of action may survive 'shall recover such damages as by law such person or persons are entitled in their own right to recover.'

'At common law, no right of action for wrongful death survives. Liability to a survivor for the wrongful death of a decedent, as well as the measure of recovery, must be found in the statute above. Florida East Coast Ry. v. Hayes, 66 Fla. 589, 64 So. 274; Id., 67 Fla. 101, 64 So. 504, 7 A.L.R. 1310.

'The statute makes no express mention of funeral expenses as an item of recovery. The statute is in derogation of the common law and the same rules of construction applicable to other such statutes must be applied. The statute does not confer upon a widow a right to succeed to causes of action existing in the deceased or his personal representative. Under the statute, a widow may recover only the damages to which she is entitled 'in her own right,' that is, to compensate her for a loss she has sustained flowing from the nature of her relation with the deceased, amongst which are loss of protection, support, consortium, and her expectancy from decedent's estate. Dina v. Seaboard Air Line Ry. Co., 90 Fla. 558, 106 So. 416. The widow, as such, sustains no loss on account of the funeral expenses of her husband. Liability for such funeral expenses rests upon the husband's estate, and can be recovered, if at all, only by the personal representative in an action on behalf of deceased's estate. 17 CJ. 1338.

'It is very generally held under similar statutes that the widow of one killed by another's negligence cannot ordinarily recover for medical services to the deceased. Regan v. Davis, 290 Pa. 167, 138 A. 751, 54 A.L.R. 1073.

'The same reasoning applies to funeral expenses. The rule, of course, is otherwise in the case of the death of a minor child, or in an action by a surviving husband, to recover the funeral expenses of a deceased wife, for which the husband would be liable. Brady v. Haw, 187 Iowa, 501, 174 N.W. 331, 7 A.L.R. 1306 et seq.; Consolidated Traction Co. v. Horne, 60 N.J.L. 444, 38 A. 759. See, also, the following cases, decided under the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-59): Philadelphia & R. R. Co. v. Marland [3 Cir.], 239 F. 1., affirmed [3 Cir.], 246 F. 91; Delaware, L. & W. R. Co. v. Hughes [2 Cir.], 240 F. 941, modifying (D. C.) 233 F. 118.' (Italics supplied.)

Even though the funeral expenses might have been made the basis of a valid claim against the estate of the deceased wife in this case, if in fact she had such an estate, we think that as between the husband and the funeral director, the husband may become obligated for such funeral expenses and that is what the evidence indicates here, as this expense was incurred immediately after the death of plaintiff's wife, before it would have been possible to have had an administrator or executor appointed, and the bills were made out against the husband and paid by...