Powell v. Gessner
| Decision Date | 30 January 1970 |
| Docket Number | No. 2541,2541 |
| Citation | 231 So. 2d 50 |
| Parties | Frank POWELL, Sr., Appellant, v. Milton John GESSNER, Appellee. |
| Court | Florida District Court of Appeals |
Harry Lee Anstead and James F. Simpson of Simpson & Anstead, West Palm Beach, for appellant.
Lake Lytal, Jr., of Howell, Kirby, Montgomery & D'Aiuto, West Palm Beach, for appellee.
A summary final judgment was entered in favor of defendant in this wrongful death action brought under Sections 768.01--768.02, F.S.1967, F.S.A., when it was determined that the deceased, Frank Powell, Jr., was survived by a living minor child whose right to the cause of action was superior to the right of action which plaintiff claimed as one dependent upon the deceased for support. Plaintiff appeals from such final summary judgment.
In what appears to be a case of first impression in this state, we are called upon to decide whether a minor child, the death of whose natural parent results through the negligence of another, is a 'minor child' of the deceased within the meaning and intent of the wrongful death statute, Sections 768.01--768.02, F.S.1967, F.S.A., when prior to the death of the natural parent the minor child was legally adopted by others. The lower court answered this question in the affirmative.
The facts applicable to this point can be stated quite briefly. The deceased, Frank Powell, Jr., was married in May, 1965. In December, 1965 his wife bore a child who was named Michael. Shortly thereafter Powell and his wife were divorced and he returned to his parents' home where he continued to live up until the time of his death in November, 1967. While living with his parents, Frank Powell, Jr. contributed between $30 and $50 per week to his parents, allegedly for their support. In June, 1966, the child Michael was legally adopted by the aunt and uncle of Frank Powell, Jr., and the child's name was changed. Thereafter, the child lived with its adopted parents and was still living with them at the time the court entered the final summary judgment herein.
It is our view and we so hold that under the facts of this case, the legal adoption of the decedent's natural minor child prior to decedent's death had the effect of removing the child from the category of a surviving 'minor child' within the meaning and intent of Section 768.02, F.S.1967. We reach this conclusion by two different lines of reasoning, either one of which we feel would be entirely sufficient by itself to sustain our view.
In the first place, the status of a child in respect to its right to sue for the wrongful death of a parent is determined at the time of the death of the parent. Florida Power & Light Co. v. Bridgeman, 1938, 133 Fla. 195, 182 So. 911. The decedent's child having been legally adopted by others prior to the decedent's death, we need to determine the effect, if any, which the judgment or decree of adoption had upon the child's relationship to its natural parent. We think the answer is clearly stated in Section 63.151, F.S.1967, F.S.A., which provides in its material portions as follows:
With the exception of the right to inherit from the natural parents which is expressly reserved, we view this statute as providing that the effect of a judgment or decree of adoption completely severs every legal and moral tie which theretofore existed between the child and its natural parent or parents. The legislature intended this statute to place the adopted child as far as possible in the same position as the natural child (of the adoptive parents) for all intents and purposes. In re Baker's Estate, Fla.App.1965, 172 So.2d 268. The logical corollary, although admittedly not one which must mandatorily be drawn from such proposition, is that to all intents and purposes (except as expressly provided), the child is removed from its former relationship to the natural parent.
Considered in this light, it seems clear that the reference in Section 768.02, F.S.1967, F.S.A., to 'minor child or children' would logically exclude those who, in full contemplation of law, no longer occupy such status. Just as one ceased to be a minor upon reaching the age of 21 years, Florida Power & Light Co. v. Bridgeman, supra, so it would seem that one would cease to be a child (of the natural parent) upon the entry of a judgment or decree of adoption by another during the lifetime of the natural parent. Of course, by the same token, such adopted child being entitled by statute to all rights and privileges of a child born to the adopting parent or parents in lawful wedlock, would obviously be within the class of 'minor child or children' in the event of the wrongful death of the adoptive parent or parents during the adopted child's minority.
The second line of reasoning we have followed to reach the same result is somewhat related to the above. The wrongful death statute was enacted to provide a remedy where none theretofore existed under the common law. Florida Cent. & P.R. Co. v. Foxworth, 1899, 41 Fla. 1, 25 So. 338. Simply stated, it was designed to provide a remedy for certain persons who sustained a loss due to the death of another. Unfortunately, there are recognized inequities in the statute as it now exists, and it has been stated that the statute does not purport to provide a remedy whereby the interest of All parties who suffer damages as a result of a wrongful death of another may be fully and completely protected. Holland v. Hall, Fla.App.1962, 145 So.2d 552. But it was certainly the legislative intent that the remedy which had been provided would At least vest in someone who had sustained a compensable loss notwithstanding that once the remedy vests in a person or persons having a superior right, those with an inferior right of action may find themselves with no redress for their loss. Cf. Fussell v. Douberly, Fla.App.1968, 206 So.2d 231, and cases therein cited.
It is recognized that in an action by a minor child for the wrongful death of its father, the child is entitled to recover for the loss of support which the father was required to furnish up to the...
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...control the instant case. Of principal significance in this regard are Garner v. Ward, 251 So.2d 252 (Fla.1971) and Powell v. Gessner, 231 So.2d 50 (Fla.App.1970). The facts in Garner were as follows. Decedent had been married twice, and at the time of his death had children by his first ma......
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