State Ex Rel. H. E. Wolfe Const. Co. v. Parks

• Citation: 175 So. 786,129 Fla. 50
• Court: United States State Supreme Court of Florida
• Decision Date: 31 July 1937
• Parties: STATE ex rel. H. E. WOLFE CONST. CO. et al. v. PARKS et al.

175 So. 786

129 Fla. 50

STATE ex rel. H. E. WOLFE CONST. CO. et al. v. PARKS et al.

Florida Supreme Court

July 31, 1937

Original proceeding by the State of Florida, on the relation of H. E Wolfe Construction Company and another for a writ of prohibition directed to the Honorable L. L. Parks and Harry N. Sandler, as Judges of the Circuit Court of Hillsborough County, Florida, to prevent the maintenance of an action in the name of E. N. Blair, as administrator of the estate of W M. Sauls, deceased, against the relators, wherein the administrator in response to the rule filed a demurrer to the petition for the writ of prohibition.

Demurrer sustained, rule nisi discharged, and petition denied.

COUNSEL McKay, Macfarlane, Jackson & Ramsey and Chester H. Ferguson, all of Tampa, for relators.

J. Tom Watson, of Tampa, for respondents.

OPINION

CHAPMAN Justice.

On July 13, 1935, plaintiff filed in the circuit court of Hillsborough county an amended declaration, in which it was alleged that defendants were the joint and several owners of a motortruck and through their agent on the 18th day of March, 1935, negligently operated a motortruck on the public highways of Hillsborough county, and as a result of the negligent and careless operation thereof by the agent of the defendants the plaintiff to this suit was struck, bruised and otherwise sustained serious personal injuries.

To this declaration the defendant filed several pleas, viz.: First not guilty; second, denial of the joint and several ownership of the motortruck; and, third, denial of the relationship of master and servant and principal and agent on the part of the driver; and another plea not necessary to set forth. The issues in said cause had been settled, and prior to the trial thereof the plaintiff W. M. Sauls, on February 1, 1936, died. An order was entered by the circuit court of Hillsborough county abating the action. After an order of abatement was entered, plaintiff, through counsel, filed a motion suggesting the death of W. M. Sauls, and simultaneously moved the court for a revival order thereof in the name of E. N. Blair, as administrator of W. M. Sauls' estate. The lower court upon due consideration of the motion entered its said order granting the motion to revive and further held that said action survive the death of the then late W. N. Sauls, and further ordered that the action continue in the name of E. N. Blair, administrator.

The plaintiff below in conformity with the order of revival filed a second amended declaration consisting of two counts, the material allegations of which are substantially the same as appeared in the original declaration. To the second amended declaration the defendants filed several pleas, viz.: Not guilty; denial of ownership of the motortruck; denial of agency on the part of the driver; and a fifth plea material to the consideration of this suit being in substance: 'That W. M. Sauls died subsequent to the filing of said suit and averred that the cause of action on the part of W. M. Sauls, if any he had, died and expired with his said death.' All of the defendants' pleas were stricken by the court on motion of the defendants, except the plea of not guilty.

The defendants in the pending personal injury suit filed in this court their petition for a writ of prohibition directed to the Honorable L. L. Parks and Harry N. Sandler, as judges of the circuit court of Hillsborough county, in which it was among other things alleged that the circuit court of Hillsborough county was without jurisdiction to proceed with the trial of said cause in the name of the administrator of the decedent's estate because of the death of the said W. M. Sauls and the cause of action expired with his said death and does not survive and cannot lawfully be maintained by the Administrator against the relators.

The rule to show cause was issued and served upon the honorable judges of the circuit court of Hillsborough county and the plaintiff below.

The joint and several return of the circuit judges as filed in this court in response to the rule is a recital of the record of the cause being suggestion of death, abatement order, and the order of revival and the pendency thereof in the court below. No other issues of fact are tendered by said answer.

The respondent E. N. Blair, as administrator of the estate of W. M. Sauls, through counsel, in response to the rule filed a demurrer directed to the petition for a writ of prohibition, and the grounds of demurrer called into question the legal sufficiency of the petition for writ of prohibition. It seems that this suit can be disposed of by an order on the demurrer. In the consideration of the suit the parties will be referred to as plaintiff and defendant as they appeared in the lower court. The sole question to be settled by this court is: Did the personal injury suit now pending in the circuit court of Hillsborough county abate upon the death of W. M. Sauls, or does it survive, and, if so, can it be maintained by the administrator of W. M. Sauls? An examination of the authorities show that a personal injury suit, similar to the suit at bar, at the common law died with the person as established by the following authorities:

On November 6, 1829, the Legislature of Florida adopted the common law of England, being section 87, Compiled General Laws of Florida:

'Common Law and Certain Statutes Declared in Force.--The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the fourth day of July, 1776, are hereby declared to be of force in this State: Provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this State.'

This court in the case of Quinn v. Phipps, 93 Fla. 805, text 824, 113 So. 419, 425, 54 A.L.R. 1173, in discussing the common law, said:

'Our 'Anglo-American legal tradition,' which we term the common law, is primarily an English institution. It is not a fixed body of well defined rules embodied in the written records of this or the mother country, but is rather a method of juristic thought or manner of treating legal questions worked out from time to time by the wisdom of mankind. It is a doctrine of reason applied to experience. Its rules were promulgated in feudal times, an age of dense ignorance, crdue customs, and primitive society, when slight value was attached to life, liberty, or property, when commerce was almost unknown and property was of little value. In the time of Henry II the King's courts became organized, and from these local rules or customs began to evolve the common law. By the genius of Coke these rules or customs were remolded into vital pulsating principles, and were passed on to the English Colonies in this country, where they have by reason and interpretation attained their most complete logical development. We are therefore more essentially a common-law country than England herself.'

An examination of the authorities generally show that personal actions abate on the death of either party. See Corpus Juris, vol. 1, p. 153, § 248:

'At common law every real or personal action abated on the death of either the sole plaintiff or the sole defendant before verdict and judgment, and this is still the law except in so far as the common-law rule has been modified by statute. And the death of a party had the same effect, with certain exceptions, where there were several plaintiffs or defendants.'

See 1 Ruling Case Law, pp. 20 and 21, § 11:

'At common law every suit, whether founded on contract or tort, abated by the death of a sole plaintiff or sole defendant and could proceed no further. It absolutely perished. The suit was therefore incapable of revival though originally maintainable for or against the representative of the deceased; it being necessary in case the cause of action survived to bring a new suit. But it was a not uncommon practice, at a time when actions at law, and especially actions ex delicto, were wholly abated by the death of one of the parties, for orders to be entered by the court, either upon the stipulation of the parties or as a condition precedent to the granting of some favor by the court to one or other of the parties.'

Also American Jurisprudence, Vol. 1, pages 67 and 68, § 76:

'At common law, personal rights of action die with the person. This principle is expressed in the maxim, 'Actio personalis moritur cum persona.' The rule expressed in this maxim applies whether the death from an injury is instantaneous or not. This principle of law has never been a favorite with the courts, and exceptions were engrafted upon it even before the rules were changed by statute.'

Also, page 76, § 95:

'Causes of action for injuries to the person, or, as they are sometimes called, personal injuries, frequently are made by statute to survive. Such a statute includes neglignet injuries. Under some statutes such a cause of action survives the death either of the person injured or of the tortfeasor; in others, the operation of the statutes is limited to the death of the injured person. * * *'

Also, page 92, § 133:

'At common law a cause of action for injury to the person does not survive regardless of the form in which it is brought and this is true although property is incidentally affected. This rule finds one of its chief applications in negligence actions. At common-law a cause of action for personal injuries resulting from negligence does not survive the death of either party. The English statutes passed in the reigns of Edward III and William IV, which modified the common-law rule respecting the survival of causes of action for injuries to real and personal...