Smith v. Whidden

• Decision Date: 25 April 1956
• Citation: 87 So.2d 42
• Parties: Frank Elliot SMITH, Appellant, v. J. O. WHIDDEN, Appellee.
• Court: Florida Supreme Court

Page 42

87 So.2d 42

Frank Elliot SMITH, Appellant, v. J. O. WHIDDEN, Appellee.

Supreme Court of Florida, Special Division A.

April 25, 1956.

Mellor & Watson, Fort Myers, for appellant.

Stewart & Stewart, Fort Myers, for appellee.

THORNAL, Justice.

Appellant Smith who was defendant below seeks reversal of a judgment for appellee Whidden who was plaintiff below in an action for damages resulting from the collision of two automobiles.

Appellant urges three points for reversal, to-wit: (a) he contends that when a husband sues for the wrongful death of his wife and includes a claim for loss of services, he should be required to prove that he had actually replaced, or will actually replace, his wife's services by hired help as a condition to recovery, (b) the trial judge refused to charge the jury on the matter of the contributory negligence of the plaintiff, and (c) a $13,000 verdict in favor of an 80-year old husband suing for the death of his 59-year old wife, with a 5-year joint life expectancy, was excessive under the facts of this case.

The tragic collision occurred when appellee Whidden accompanied by his wife was driving his automobile at a moderate rate of speed on the proper side of a public highway. Apparently appellant Smith, who was driving his car in the opposite direction, lost control of his automobile when a third car attempted to pass the Whidden vehicle. The Smith car veered off the pavement and then turned sharply toward the Whidden car, skidded 110 feet and plowed into the Whidden automobile with the resultant damage to the vehicle, some physical injury to Whidden and the death of Mrs. Whidden, apparently from the shock of the collision. Whidden thereupon sued Smith seeking recovery for the damages to his automobile, expenses for doctors and funeral bills as well as for the injury to himself and the usual claims for damages resulting from the death of his wife.

After hearing all of the testimony, including the fact that Whidden was 80 years of age, his wife was 59, and that they had a joint life expectancy of 5 years, the jury rendered a verdict of $13,000 in favor of appellee Whidden. A judgment was entered against appellant and this appeal ensued.

On the first proposition urged by the appellant Smith, the record shows that Mrs. Whidden rendered all of the usual and customary domestic services to be rendered by a wife in the financial circumstances of the parties. She took care of the house, fixed the meals, did the laundry, cared for her husband who was not in good health, and did the other chores that a normal wife in her circumstances would expect to do. Since her death, her husband has lived part of the time with his children by a former marriage, and part of the time with...