Ryter v. Brennan, S-319
| Decision Date | 28 February 1974 |
| Docket Number | No. S-319,S-319 |
| Citation | 291 So.2d 55 |
| Parties | Califton Whitney RYTER, Appellant, v. Bertha Meisler BRENNAN, Appellee. |
| Court | Florida District Court of Appeals |
James R. Caldwell, Jr., and Thom Rumberger, of Pitts, Eubanks, Ross & Rumberger, Orlando, for appellant.
Eric E. Wagner, St. Petersburg, for appellee.
The instant lawsuit resulted from an automobile accident which occurred on July 9, 1968, in Marion County, and as a result thereof plaintiff-appellee Brennan and her husband allegedly suffered injuries. Appellant Ryter was the driver of one vehicle in which appellee and her husband were passengers. Appellee's husband sued appellant, a Mr. Glazener (owner of the other vehicle involved in the accident) and the driver of the Glazener vehicle. Prior to trial, the husband's suit was settled and in consideration of the sum of $40,000.00 a general release was executed by the husband in favor of appellant releasing all claims which the husband, his heirs, executors and administrators did or might have against appellant which arose out of the subject accident. Subsequently, appellee Brennan on January 26, 1971, filed the instant complaint against her host driver, Ryter, by which she claimed damages by the following allegations: 1) She had personally incurred injuries, medical expense, and a permanent handicap; 2) that she had been deprived of her husband's support, his probable future earnings and acquisitions, his services in assisting for the care of the family, and of the comfort and society of her good husband of high moral character and industrious habits. The trial court granted appellant's motion to strike those allegations pertaining to the death of appellee's husband and as to her loss of consortium.
At the outset of trial, appellee's attorney began questioning the jury panel on voir dire as to their feelings concerning appellee's deprivation of the care, comfort and society and loss of consortium of her husband. After strenuous objection by appellant in the absence of the jury, the trial judge concluded that appellee had the right to maintain an action for loss of consortium and amended the pleadings accordingly. On occasions throughout the trial, witnesses and counsel commented upon the nexus of the accident and the husband's death, and the trial judge consistently ruled that this was not a matter to be decided by the jury as it had been determined at a pre-trial hearing. However, the trial judge over appellant's vigorous objection in his instructions to the jury on the question of damages stated, inter alia:
'. . . any loss By reason of the injuries and subsequent death of her husband, Gerald Brennan, and of his services, comfort, society and attention in The past and in the future.' (Emphasis supplied.)
The two salient points on appeal are basically whether appellee could recover: 1) for loss of consortium, and 2) for the wrongful death of her husband.
We first consider the loss of consortium question. On April 7, 1971, in Gates v. Foley 1 the Florida Supreme Court overruled the common law and its prior decisions that a wife did not have a cause of action for loss of consortium. The Court carefully defined the damages recoverable as 'the companionship and fellowship of husband and wife and the right of each to the company, cooperation and aid of the other in every conjugal relation.' This Court in Resmondo v. International Builders 2 construed Gates as holding that even though a consent judgment had been entered in favor of the husband against a defendant that the wife's cause of action for loss of consortium had not been abated. However, we pointed out that the wife's action was dependent upon proof of negligence on the part of defendant, and in that sense was derivative from the husband. The 'derivative language' in Gates does not abate the cause of action vested in the wife where, as...
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