St.Francis Hospital v. Thompson
Decision Date | 01 August 1947 |
Citation | 159 Fla. 453,31 So.2d 710 |
Parties | ST. FRANCIS HOSPITAL, Inc., v. THOMPSON. |
Court | Florida Supreme Court |
Rehearing Denied Sept. 11, 1947.
Appeal from Circuit Court, Dade County; Ross Williams Judge.
McKay Dixon, DeJarnette & Bradford, of Miami, for appellant.
Cushman & Woodard, of Miami, for appellee.
The appellant submits that the trial judge erred in refusing to direct a verdict for the defendant at the conclusion of the plaintiff's case and at the conclusion of all the testimony. In this we find no reversal error.
This is a case for wrongful death wherein the wrongful act occurred more than two years before the commencement of the action but the action was commenced within two years from the death.
Section 95.11 F.S.A., prescribes that 'an action arising upon account of an act causing a wrongful death' can only be commenced within two years.
The appellant-defendant during trial asked leave to file a plea of the statute of limitations of two years which was denied. After an adverse verdict and judgment it appeals and assigns as error the refusal of the trial court to allow such plea to be filed.
Does the statute of limitations in a death case commence to run from the date of the wrongful act or from the date of death?
Plaintiff-appellee's right of action is predicated on Section 768.01, F.S.A which is as follows:
which in effect holds that one causing a wrongful death 'shall be liable to an action for damages * * * notwithstanding the death of the person injured.'
By Section 768.02, F.S.A., it is provided that:
'Every such action shall be brought by and in the name of thewidow, * * *and where there is neither widow nor husband, nor minor child or children, then * * * by any * * * persons dependent on such personal killed * * * and where there is neither of the above classes of persons to sue, then * * * by the executor or administrator * * * of the person killed. * * * and in every such action to jury shall given such damages as the party or parties entitled to sue may have sustained by reason of the death of the party killed,' which in effect specified to whom the party causing a wrongful death shall be liable 'by reason of such wrongful death' and that such liability shall be for 'such damages as the party or parties entitled to sue may have sustained.'
On this point American Jurisprudence is as follows:
The foregoing authority cites Collins v. Hall 117 Fla. 282 157 So. 646, 648, 99 A.L.R. 1086, as authority contrary to the conclusion we have reached but the decision in that case turned on another point and the language therein on the point here involved was as follows:
* * *.'
It will not be deemed necessary to cite the holdings of this court to the effect that the foregoing provisions of statute have been held to create a new cause of action.
Plaintiff-appellee's cause of action is dependent on death and it is our conclusion that it was the intent of Section 95.11, F.S.A., to limit the commencement of the action from the time of the accrual of plaintiff's cause and plaintiff's cause accrued on death. It speaks of commencement of actions after so many years and by reasonable implication it means so many years after the right of action has accrued. Plaintiff's cause of action did not accrue by reason of the wrongful act alone. It took a wrongful act and death to give plaintiff a cause. The statute of limitations commenced to run upon death.
Affirmed.
I am unable to concur in the opinion prepared by Mr. Justice Barns in this case because it is my conclusion that the plea of the statute of limitations tendered was a good plea and was supported by the evidence which had been introduced prior to the tender of the plea.
In reaching a correct construction of the statutes and determining the law in this regard we must construe in paria materia three sections of our statutes. Sec. 768.01, Florida Statutes 1941 same F.S.A., provides:
'768.01. Right of action for death due to negligence
'Whenever the death of any person in this state shall be caused by the wrongful act, negligence, carelessness or default of any individual or individuals, or by the wrongful act, negligence, carelessness or default of any corporation, or by the wrongful act, negligence, carelessness, or default, of any agent of any corporation, acting in his capacity of agent of such corporation (or by the wrongful act, negligence, carelessness or default of any ship, vessel or boat or persons employed thereon), and the act, negligence, carelessness or default, is such as would, if the death had not ensued, have entitled the party injured thereby to maintain an action (or to proceed in rem against the said ship, vessel or boat, or in personam against the owners thereof, or those having control of her) and to recover damages in respect thereof, then and in every such case the person or persons who, or the corporation (or the ship vessel or boat), which would have been liable in damages if death had not ensued, shall be liable to an action for damages (or if a ship, vessel or boat, to a libel in rem, and her owners or those responsible for her wrongful act, negligence, carelessness or default, to a libel in personam), notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.'
Section 768.02, Fla.Statutes 1941, same F.S.A., provides as follows:
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