Seaboard Air Line Ry. v. Moseley

• Decision Date: 22 November 1910
• Citation: 53 So. 718,60 Fla. 186
• Parties: SEABOARD AIR LINE RY. v. MOSELEY.
• Court: Florida Supreme Court

53 So. 718

60 Fla. 186

SEABOARD AIR LINE RY. v. MOSELEY.

Florida Supreme Court

November 22, 1910

In Banc. Error to Circuit Court, Duval County; R. M. Call Judge.

Action by Eb. Moseley against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

The damages authorized by section 3147 of the General Statutes of 1906 to be recovered are personal to the parents, i. e., loss of service of a minor child and mental pain and suffering of the parent caused by the wrongful death of a minor child, and an action for such damages should be by the parent personally. An administrator of the estate of the deceased minor child has no interest in or right to such recovery.

The subject-matter and purpose of section 3147 of the General Statutes of 1906 indicate that, in using the words 'legal representative,' the legislative intent and meaning had reference to the parties benefited by the rights conferred and not to the administrator or executor of a decedent.

As the statute expressly provides that a father 'may recover not only for the loss of service of such minor child, but in addition thereto such sum for the mental pain and suffering of the parent * * * as the jury may assess,' it was not necessary to specifically allege the elements of damage claimed. The statute gave notice of the damages that could be recovered at the trial.

Mental pain and suffering of the parents directly, naturally, and necessarily result from the wrongful death of their minor child; and, the right of the father to the minor child's services being infringed by the act of the defendant entitled the father to recover at least nominal, if not substantial, damages for loss of such services.

The running of a train at night over a public crossing without a headlight burning on the engine is at least evidence of negligence.

Where there is evidence upon which the jury could legally found a verdict for the plaintiff, the court did not err in overruling the demurrer to the evidence, or in refusing an affirmative charge for the defendant.

In an action against a railroad company for injuries caused by its train, a charge that does not require a presumption against the company to be carried into the consideration of the evidence, but only that the negligence of the defendant is presumed, unless removed by a preponderance of the evidence is no more than the statutory burden that the company shall make it appear that it was not negligent.

Where there is evidence to sustain the verdict, and no material errors of law or procedure appear, the judgment will be affirmed.

COUNSEL Geo. P. Rainey, Fleming & Fleming, and W. J. Oven, for plaintiff in error.

Bryan & Bryan, for defendant in error.

OPINION

WHITFIELD C.J.

A minor child of Eb. Moseley was killed by a train while crossing the track of the railroad company on November 22, 1907. He recovered in his personal right a judgment for $2,500 damages for the death of the child, and the compnay took writ of error. In each of several counts it is alleged that the death of the decedent was caused by described negligence of the defendant, and that the deceased was a minor child of the plaintiff, 'wherefore the plaintiff says that he has sustained damages to the amount of $25,000.' It is insisted that a demurrer to the declaration should have been sustained, because the action is by the father in his personal right, and because no special damages are alleged.

At common law the father is entitled to the services of his minor children, and he can maintain an action for the wrongful acts of others in injuring his child, to recover damages for loss of the child's services. But if the injuries to the child result in its death, there can under the common law be no recovery for loss of services, upon the theory that the private wrong to the father is merged in the crime resulting from the death; the unlawful taking of human life being a felony. Gulf, C. & S. F. Ry. Co. v. Beall, 91 Tex. 310, 42 S.W. 1054, 41 L. R. A. 807, 66 Am. St. Rep. 892, and notes.

Under sections 3145 and 3146 of the General Statutes of 1906 a parent as such could not recover damages directly for the wrongful death of a minor child unless the parent was dependent on the decedent for a support. Under those sections, if no consort or minor child or dependent person survived the decedent, his administrator as such could recover for injuries to his estate because of his wrongful death, and the father or mother as such could be benefited by the recovery only indirectly as heirs or devisees of the decedent. It was to remedy this condition of the law, and to give some relief to parents as such for the wrongful death of their children, that section 3147 was enacted, as follows: 'Whenever the death of any minor child shall be caused by the wrongful act, negligence, carelessness or default of any private association of persons, or by the wrongful act, negligence, carelessness or default of any officer, agent or employé, or by the wrongful act, negligence, carelessness or default of any corporation, or by the wrongful act, negligence, carelessness or default of any officer, agent or employé of any corporation acting in his capacity as such officer, agent or employé, the father of such minor child, or if the father be not living, the mother, as the legal representative of such deceased minor child, may maintain an action against such individual, private association of persons or corporation, and may recover not only for the loss of service of such minor child, but in addition thereto such sum for the mental pain and suffering of the parent or parents as the jury may assess.'

The recovery authorized by this section is for injuries that are personal to the parents, viz., loss of service of the child and mental pain and suffering of the parent. An administrator or executor of the decedent can have no interest in or right to such a recovery. In providing that the father, or, if he be not living, the mother, 'as the legal representative of such deceased minor child, may maintain an action' for damages, the section does not require the action to be brought as executor or as administrator of the decedent, but contemplates an action in the parent's personal capacity to redress a personal wrong. The words 'as the legal representative' mean nothing more than the one having a right to recover under the statute. The purpose of section 3147 is to afford to parents as such, and in their individual right, relief not allowed at common law or by the previous statutes.

The subject-matter and purpose of the statutes indicate that in using the words 'legal representative' the legislative intent and meaning had reference to the parties benefited by the rights conferred, and not to the administrator or executor of a decedent. See Griswold v. Sawyer, 125 N.Y. 411, 26 N.E. 464.

As the statute expressly provides that a father 'may recover not only for the loss of service of such minor child, but in addition thereto such sum for the mental pain and suffering of the parent * * * as the jury may assess,' it was not necessary to specifically allege the elements of damage claimed The statute gave notice of the damages that could be recovered at the trial. See 5 Ency. Pl. & Pr. 758. Any damages that directly, naturally, and necessarily result from the act complained of need not be specially alleged See Jacksonville Electric Co. v. Batchis, 54 Fla. 192, 44 So. 933. Mental pain and suffering of the parents directly, naturally, and necessarily result from the wrongful death of their minor child, and, the right of the father to the minor child's services being infringed by the act of the defendant, entitled the father to recover at least nominal, if not substantial, damages for loss of such services.

In the case of Smith v. East & West R. R., 84 Ga. 183, 10 S.E. 602, relied on by plaintiff in error, the fatal defect in the declaration was a failure to allege facts showing a right of action in the plaintiff, and not a failure to allege the elements of damages. Where the elements of damages recoverable in a statutory right of action are specifically defined in giving the right and are applicable to every case within the right given, it is not necessary to specially allege such damages, since they follow as a part of the right of action, and the statute gives notice of the matters for which damages may be awarded. The amount of the damages is for the jury to determine, subject to the provisions of law designed to prevent abuse of discretion.

In this case facts showing the plaintiff's right of action appear; and as the elements of recovery are defined in the statute and are applicable to every case within the right, recovery may be had under a general allegation or claim of damages. See the nature of the allegations in Florida Cent. & P. R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338, 79 Am. St. Rep. 149; Railroad v. Glover, 92 Ga. 132, 18 S.E. 406. The specific grounds of the demurrer to the declaration were not well taken.

The following demurrer to the evidence was interposed and overruled:

'Now comes the defendant, and demurs to the evidence of the plaintiff herein, and admits that the evidence shows that the plaintiff at the time of the injuries complained of was the father of Alice Moseley, who would have been 17 years old on the 20th day of February, 1908; that said Alice Moseley was killed between 6 and 8 o'clock at night by a locomotive attached to a train of cars, the property of the Seaborad Air Line Railway, running full speed eastwardly and on a straight track at a public road crossing or highway about one mile east of Marietta, in Duval county, Florida; that said crossing is about seven miles west

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