Randolph v. Clack

• Decision Date: 10 June 1959
• Docket Number: No. 952,952
• Citation: 113 So.2d 270
• Parties: Norma Lee RANDOLPH, for use and benefit of Clifford L. Randolph, Jr., and Linda Lou Randolph, Minors, by their next best friend, Fannie Catherine McCoy, Appellants, v. R. P. CLACK, individually, and R. P. Clack, Evelyn N. Clack and Claire N. McLeod, as Trustees of Clack Truck and Equipment Company, a dissolved Florida Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 270

113 So.2d 270

Norma Lee RANDOLPH, for use and benefit of Clifford L. Randolph, Jr., and Linda Lou Randolph, Minors, by their next best friend, Fannie Catherine McCoy, Appellants, v.R. P. CLACK, individually, and R. P. Clack, Evelyn N. Clack and Claire N. McLeod, as Trustees of Clack Truck and Equipment Company, a dissolved Florida Corporation, Appellees.

No. 952.

District Court of Appeal of Florida, Second District.

June 10, 1959.

Rehearing Denied July 10, 1959.

Robert A. Kanter, Sarasota, for appellants.

Dart & Bell, Sarasota, for appellees.

THOMAS ELWYN, Associate Judge.

An action was brought in behalf of Clifford L. Randolph Jr., and Linda Lou Randolph, minors, against R. P. Clack individually and himself and others as trustees of a dissolved corporation to recover damages for the death of the father of the children alleged to have been caused by Clack's negligent operation of an automobile owned by the corporation.

According to the averments of the complaint, the minors are the children of Fannie Catherine McCoy and Clifford L. Randolph.The parents were divorced and the custody of the children was awarded the mother.Afterward Randolph married Norma Lee Randolph.Then he was killed and his wife brought an action under Sec. 768.02,Florida Statutes 1955, and F.S.A., for damages.Her claim was settled and the action was dismissed.In the action no specific claim for damages to the children was presented.

The complaint in the present case was dismissed because the judge held the view that the plaintiffs were not authorized by the statute to maintain the action.

The parties-plaintiff were curiously described as the second wife for the use and benefit of the children 'by their next best friend,' the first wife.Out of the ruling, say the appellants, arises the question whether or not minor children of a deceased father may maintain in their own name or the name of the father's widow an action for wrongful death of the father when the widow is not their mother and has previously brought an action in her own behalf without presenting any claim on behalf of the children.

Appellants' argument is very appealing but it fails to convince us that an injustice which may have occurred by application of the statute should be cured by judicial action for were we to hold that they should be allowed to proceed with their action it would amount to our amending rather than applying the provisions of the law.

Long ago the Supreme Court held that at common law no one had a right to recover for the wrongful death of another and that the right created by statute existed only in the ones to whom by statute it was given.Louisville & N. R. Co. v. Jones, 45 Fla. 407, 34 So. 246.It is true that in Haddock for Use and Benefit of Wiggins v. Florida Motor Lines Corporation, 150 Fla. 848, 9 So.2d 98, the Supreme Court invoked the provisions of Sec. 4 of the Declaration of Rights of the Constitution, F.S.A. securing to every person remedy for injury...