Strickland v. Atlantic Coast Line R. Co., H--389

• Decision Date: 19 January 1967
• Docket Number: No. H--389,H--389
• Citation: 194 So.2d 69
• Court: Florida District Court of Appeals
• Parties: Rosamond STRICKLAND, As Guardian of the Estate of Phyllis E. Gay and Jack M. Humphreys, minors, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, a corporation, P. L. Bainbridge and Joseph Nareski, Appellees.

Page 69

194 So.2d 69

Rosamond STRICKLAND, As Guardian of the Estate of Phyllis E. Gay and Jack M. Humphreys, minors, Appellant, v.ATLANTIC COAST LINE RAILROAD COMPANY, a corporation, P. L. Bainbridge and Joseph Nareski, Appellees.

No. H--389.

District Court of Appeal of Florida, First District.

Jan. 19, 1967.

M. S. Dunary and Lewis, Paul & Bennett, Jacksonville, for appellant.

Kurz, Toole, Martin, Booth & Taylor, Jacksonville, for appellees.

Charles T. Boyd of Boyd, Jenerette & Leemis, Jacksonville, for Joseph Nareski.

SACK, Judge.

This case presents the question of whether a husband whose negligence or gross negligence caused or contributed to the death of his wife forfeits his right of action under the Wrongful Death Act, F.S. § 768.01, et seq.F.S.A. thereby permitting such an action to be maintained by his stepchildren, the natural children of the deceased wife, against him and a co-tort-feasor.

The appellant, plaintiff below, is guardian of the estates of the two natural children of Clara Nareski, wife of Joseph Nareski.The amended complaint, in the first count, charges that the defendants, Joseph Nareski and Atlantic Coast Line Railroad Company(and its employee, Bainbridge), by their several or concurring negligence caused the death of Clara Nareski in a railroad crossing accident, while Clara Nareski was riding in an automobile owned and operated by her husband.The second count was the same as the first, except that Joseph Nareski is charged with gross negligence.

In addition to other grounds contained in the motions to dismiss the amended complaint there was the further ground that Nareski, who had priority under the Death Statute, had pending in the same Court an action to recover damages against the Coast Line for his wife's alleged wrongful death.The latter point was conceded.The motions to dismiss were sustained, and it appearing to the lower Court that further amendment was futile in view of the pendency of Nareski's suit, the complaint was dismissed, final judgment was rendered against appellant, and this appeal follows.

There is no question that, apart from Nareski's alleged participation in the accident, Mrs. Nareski's children would have no right of recovery since Nareski had first priority under Sec. 768.02, F.S.A.As we pointed out in Holland v. Hall, Fla.App., 145 So.2d 552.

'Section 768.01, popularly known as the Death by Wrongful ActStatute, creates a cause of action for damages resulting from the wrongful death of another.F.S. Section 768.02, F.S.A., specifies those in whom the cause of action shall vest, and provides that in every such action the jury shall give such damages as the party entitled to sue may have sustained by reason of the death of the party killed.This statute, being in derogation of the common law, must be strictly construed.It does not purport to provide a remedy whereby the interest of all parties who suffer damage as a result of the wrongful death of another may be fully and completely protected.If the cause of action exists in any one of the class of persons enumerated in the statute, the rights of all...