Sinclair Refining Co. v. Butler

• Decision Date: 20 October 1965
• Docket Number: No. 34347,34347
• Parties: SINCLAIR REFINING CO., a corporation, Petitioner, v. Margaret Scott BUTLER, as Administratrix of the estate of Warren E. Butler, Deceased, and J. P. Canington, Respondents.
• Court: Florida Supreme Court

Page 313

190 So.2d 313

SINCLAIR REFINING CO., a corporation, Petitioner, v. Margaret Scott BUTLER, as Administratrix of the estate of Warren E. Butler, Deceased, and J. P. Canington, Respondents.

No. 34347.

Supreme Court of Florida.

Oct. 20, 1965.

On Rehearing Sept. 28, 1966.

Scott, McCarthy, Preston & Steel and Dwight Sullivan, Miami, for petitioner.

Green & Hastings and Irma Robbins Feder, Miami, for Margaret Scott Butler.

Fred C. Davant, of Wicker, Smith, Blomqvist, Hinckley & Davant, Miami, for J. P. Canington.

PER CURIAM.

We have heard oral argument on the petition for certiorari to review a decision of the Court of Appeal, Third District, 172 So.2d 499, because of apparent jurisdiction in this court.

After oral argument and a careful study of the record and briefs, we conclude this The writ is discharged.

court is without jurisdiction in the matter because of lack of a direct conflict as required by the Constitution, Article V. Section 4, F.S.A.

THORNAL, C.J., THOMAS, ROBERTS, and O'DONNELL, JJ., and TROWBRIDGE, Circuit Judge, concur.

ON REHEARING GRANTED

ROBERTS, Justice.

On rehearing granted we have reconsidered the question of direct-conflict jurisdiction posed by the petitioner, Sinclair Refining Co., and have concluded that the record proper in the cause brought here for review from the District Court of Appeal, Third District, discloses a conflict with a decision of the District Court of Appeal, Second District, on the same point of law. The factual background is set forth in the decision of the District Court, reported at 172 So.2d 499.

An examination of the record proper discloses that the trial court charged the jury:

'In awarding damages to the estate you may take into account such of the following items as may appear to have been established to your satisfaction in the evidence: * * * 'Cost of his funeral and burial expense. * * *'

Upon reviewing the charges, the District Court said:

'We find no error in each of these particulars, as follows: As to the first contention (whether an instruction has been erroneously given or refused) this should be determined by considering it in connection with all other instructions, pleadings and evidence (see: Stanley v. State, 93 Fla. 372, 112 So. 73; Staicer v. Hall, Fla.App.1961, 130 So.2d 113; Crosby v. Stubblebinc, Fla.App.1962, 142 So.2d 358), and an appellate court will not reverse the trial court if the aggregate charges given are complete, correct, and not likely to confuse or mislead the jury. See: Leonardi v. Walgreen Co., Fla.App. 1962, 146 So.2d 773; Williams v. Scott, Fla.App.1963, 153 So.2d 18. Having reviewed the instructions given in light of the foregoing, we find no harmful error on the part of the trial court.' (Emphasis supplied.)

The conflict is no less real because of the fact that the Third District appellate court in the case Sub judice did not discuss the point of law involved and simply held, in general terms, that the trial court did not commit 'harmful error' in its ruling on the matter in question. The giving of the charge by the trial court was assigned as error and argued on the appeal and, as noted, was, in effect, affirmed without discussion by the District Court. This court is now committed to the rule that such a disposition of a point of law, appearing in the record proper, may constitute a decisional conflict sufficient to invoke the direct-conflict jurisdiction of this court to review by certiorari the decision on such point made by a District Court of Appeal. See Foley v. Weaver Drugs, Inc., Fla.1965, 177 So.2d 221; Home Development Company of St. Petersburg v. Bursani, Fla.1965, 178 So.2d 113; and Young Spring & Wire Corp. v. Smith, Fla.1965, 176 So.2d 903.

Having concluded that we have directconflict jurisdiction to review the decision of the Third District Court of Appeal, we have also considered the propriety of its decision of the legal question upon which a directly opposite conclusion was reached by the Second District Court of Appeal in Doby v. Griffin, Fla.App.1965, 171 So.2d 404. This question may be stated as follows:

Are funeral expenses recoverable by the personal representative of a decedent's estate in a survival action brought under Section 45.11, Fla.Stat., to recover damages for the injuries to decedent's person and property caused by the negligence or wrongful act of another?

In Doby v. Griffin, supra, the District Court of Appeal, Second District, held 'no', and in this case the District Court of Appeal, Third District, held 'yes'.

Section 45.11, Fla.Stat., F.S.A., is known as the 'survival statute' and provides for so-called 'survival actions' as follows:

'No action for personal injuries and no other action shall die with the person, and all actions shall survive and may be instituted, maintained, prosecuted and defended in the name of the personal representative of the deceased, or in the name of such other person as may be provided by law.'

In the instant case the survival action was brought by the widow of the decedent, as administratrix of his estate, to recover damages for the physical injuries and pain and suffering of the decedent and medical expense. Although no special claim was made in the complaint for the funeral expense, the plaintiff was allowed to adduce evidence of such expense (over the objection of the petitioner, one of the defendants) and the court charged the jury (also over the objection of the petitioner) that the 'cost of his funeral and burial expense' could be considered by the jury in awarding damages to the plaintiff. As noted, this ruling was in effect affirmed without comment by the appellate court in the case presently before us. In Doby v. Griffin, supra, 171 So.2d 404, a survival action also brought by the administratrix of decedent's estate, it was held flatly and unequivocally by the Second District Court of Appeal that funeral expenses were not recoverable.

The decisions of this court respecting the items of damage recoverable in a survival action have established the rule that the death of the decedent is the 'cut off' point beyond which the personal-representative-plaintiff may not go in proving and recovering, on behalf of the decedent's estate, the damages sustained by the decedent in his person and property on account of the tortious act of the defendant. See Ake v. Birnbaum, 156 Fla. 735, 25 So.2d 213; Epps v. Railway Express Agency, Fla. 1949, 40 So.2d 131; Ellis v. Brown, Fla. 1955, 77 So.2d 845; cf. Sullivan v. Sessions, Fla. 1955, 80 So.2d 706. As stated in Ake v. Birnbaum, supra, the damages recoverable in a survival action are only those 'which deceased could have recovered had he lived and maintained the action.'

Common logic dictates that a tortfeasor should be held answerable to someone for the funeral expense of the person fatally injured by his tortious act, just as the tortfeasor must answer for the medical expense necessitated by the injurious consequences of his tortious act; and it has been held in this state that, where the surviving husband brings suit under the Wrongful Death Act. Sec. 768.01 Et seq., Fla.Stat., F.S.A., to recover from the tortfeasor the damages sustained by him on account of the wrongful death of his wife, the funeral expenses of the wife incurred and paid by the husband may be recovered by him where the amount thereof is claimed as special damages. See Potts v. Mulligan, 141 Fla. 685, 193 So. 767; Lithgow v. Hamilton, Fla. 1954, 69 So.2d 776; Legare v. United States, D.C.Fla.1961, 195 F.Supp. 557. But where the surviving spouse is the wife, instead of the husband, her right to recover for the funeral expenses of the husband in a Wrongful Death action has been denied. Compare dictum at page 769 in Potts v. Mulligan, supra, 193 So. 767, commenting on Saucer v. Willys-Overland, Inc., 5 Cir., 49 F.2d 385 (in which the right of the widow to recover, in a Wrongful Death action, the expense of her husband's funeral was expressly denied.). And where the 'named beneficiary' entitled to sue under the Wrongful Death Act was the administrator of the decedent's estate, it has been held by this court that funeral expenses of the decedent were not recoverable (although it also appeared that no special claim for such damages was made in the complaint). See International Shoe Co. v. Hewitt, 1936, 123 Fla. 587, 167 So. 7.

We note that the Wrongful Death Act, Sec. 768.01 et seq., Fla.Stat., F.S.A., creates in the named beneficiaries (the order of succession being the surviving spouse, then the minor child or children if no spouse survives, then other dependents, and finally the executor or administrator of the estate of the decedent if no one of the other classes survives) a cause of action against the tortfeasor to recover 'such damages as the party or parties entitled to sue may have sustained by reason of the death of the party killed; * * *' Sec. 768.02, ibid; and that it was indicated in Potts v. Mulligan, supra, that the obligation of the husband to pay for the funeral expenses of his deceased wife, and of a father to pay for the same for his deceased minor children, justified the designation of such expenditures as damages 'sustained by reason of the death of the party killed', for which recovery should be allowed in a Wrongful Death action when specially claimed.

We recognize that in some jurisdictions the administrator cannot recover for damages occurring after death; see 22 Am.Jur.2d, Damages, Sec. 127, p. 183. But in other jurisdictions it has been held that the administrator can recover for such burial expenses; see 25A C.J.S. Death § 108, p. 946, which discusses both sides of the question; however, an exception has been recognized where a statute places a mandatory obligation on the administrator to pay reasonable funeral expenses, thereby reducing the estate under his administration to the extent of that amount. Section 733.20, Fla.Stat., F.S.A., makes it the duty of the administrator to pay...