Triay v. Seals

• Decision Date: 21 July 1926
• Citation: 109 So. 427,92 Fla. 310
• Parties: TRIAY v. SEALS et al.
• Court: Florida Supreme Court

109 So. 427

92 Fla. 310

TRIAY v. SEALS et al.

Florida Supreme Court

July 21, 1926

Error to Circuit Court, Duval County; George Couper Gibbs, Judge.

Action by Terrell Seals and others suing by their next friend, T. L Gray, against E. J. Triay, receiver of the Jacksonville Traction Company. Judgment for plaintiffs, and defendant brings error.

Affirmed.

Brown C.J., and Whitfield, J., dissenting in part.

Syllabus by the Court

SYLLABUS

Test of sufficiency of declaration is whether it alleges distinctly certainly, and concisely, every fact essential to plaintiff's right of action, so as to enable defendant to prepare defense properly. The test of the sufficiency of a declaration is whether or not it alleges distinctly every fact essential to the plaintiff's right of action, such facts to be characterized by certainty, clearness, and conciseness, that the material issue or issues may be determined quickly and with certainty, and that the defendant may be apprised of the charge or charges against him with that degree of clearness and definiteness as will enable him to prepare his defense properly.

Declaration specifying act causing injury, and alleging generally it was negligently done or omitted, is sufficient. The rule is well-nigh universal that in an action for negligence the plaintiff need not set out in detail the specific acts constituting the negligence complained of, as this would be pleading the evidence. Accordingly, a declaration specifying the act, the commission or omission of which caused the injury, and averring generally that it was negligently and carelessly done or omitted, will suffice.

Plaintiff cannot recover on grounds not stated in declaration. Plaintiff's right of recovery is confined to the cause of action stated in his declaration, and, if he fails on the grounds so stated, he cannot be permitted to prove and recover on any ground not stated or alleged.

As respects right to new trial for insufficiency of evidence to sustain verdict, test is whether as reasonable men jury could have found such verdict. In passing upon an assignment questioning the correctness of the ruling of the trial court in denying a motion for new trial, which is based upon the sufficiency of the evidence to sustain the verdict, the guiding principle for an appellate court is, not what it may think the jury ought to have done, or what such court may think it would have done had it been sitting as a jury in the case, but whether as reasonable men the jury could have found such verdict. If this question can be answered in the affirmative, the action of the trial court upon such motion should not be disturbed.

Minor's claim for damages for father's death is money value of loss of support, protection, education, and moral training based on probable life of father (Rev. Gen. St. 1920, § 4961). A minor child's claim for damages for the death of its father by the wrongful act of another under our law is based on these elements as qualified: (1) The loss of support which the father is in duty bound to give his child during its minority, based on the evidence of his probable future earnings and other acquisitions, such earnings and acquisitions to be estimated upon the basis of the father's earnings in his past, his age, health, business capacity, habits, experience, and energy, and his present and future prospects for business success at the time of his death; and (2) the loss of attention, care, comfort, companionship, protection, education, and moral training of the father which might reasonably have been anticipated in the light of the evidence relating to the character and conduct of the father as such. These elements to be based on the probable life of the father. The sum total of all these elements to be reduced to a money value and its present worth to be given as damages. Within these limits the jury exercises a reasonable discretion as to the amount to be awarded based upon the facts in evidence and the knowledge and experience possessed by them in relation to matters of common knowledge and information.

COUNSEL

John L. Doggett, of Jacksonville, for plaintiff in error.

Stafford Caldwell, of Miami, and McCollum & Howell, of Jacksonville, for defendants in error.

OPINION

TERRELL J.

Terrell Seals, Albert Seals, Wallace Seals, and Gelon Seals, minors, by their next friend, Mrs. T. L. Gray, sued E. J. Triay, as receiver of the Jacksonville Traction Company, a corporation, for the wrongful death of their father, the late W. L. Seals. The material part of the declaration is a general allegation of negligence, and is in one count, alleging damages in the sum of $50,000. There was a demurrer and motion for compulsory amendment to the declaration, but the demurrer was overruled, and the motion for compulsory amendment was denied. The plea of not guilty was entered, and the cause was tried on the issue so made without the plea of contributory negligence, resulting in a verdict and judgment in favor of the plaintiffs for $8,500. Motion for directed verdict in favor of defendant and for new trial were denied, and writ of error was taken to the judgment.

The first assignment of error is directed to the denial of the motion for compulsory amendment.

That part of the declaration to which the motion for compulsory amendment was directed is as follows:

'That on, to wit, the 11th day of November, A. D. 1922, the defendant, by its servant, agent, and employé, did so negligently and carelessly run and operate one of the street cars then and there being operated by said street railway system on Riverside avenue, a public street of said city, that said street car was run and propelled violently and forcibly upon, into, and against one W. L. Seals, and said W. L. Seals was then and there and thereby thrown and knocked to the pavement, and was then and there and thereby, by such violent contact of said street car, and such throwing to the pavement, so injured, wounded, bruised, and fractured that he afterwards, on, to wit, the 17th day of November, A. D. 1922, did die.'

The motion for compulsory amendment alleges that the declaration so quoted fails to allege wherein or whereby the defendant was negligent; that said declaration is so indefinite and uncertain as to any act or acts of negligence that it fails to inform defendant of what wrongful act plaintiffs rely on for recovery; that said declaration is so indefinite and lacking in any specific act of acts of negligence that defendant cannot prepare a proper defense thereto; and that the alleged wrongful act or acts of defendant are charged in such general terms as to hinder, delay, and embarrass the fair trial of said cause.

In Warner et al. v. Goding, 107 So. 406, decided last term, this court said that the test of the sufficiency of a declaration is whether or not it alleges distinctly every fact essential to the plaintiff's right of action, such facts to be characterized by certainty, clearness, and conciseness; that the material issue or issues may be determined quickly and with certainty; and that the defendant may be apprised of the charge or charges against him with that degree of clearness and definiteness as will enable him to prepare his defense properly. Milligan v. Keyser, 52 Fla. 331, 42 So. 367; Royal Phosphate Co. v. Van Ness, 53 Fla. 135, 43 So. 916; Kirton v. Atlantic Coast Line R. Co., 57 Fla. 79, 49 So. 1024; Sovereign Camp of W. O. W. v. McDonald, 76 Fla. 599, 80 So. 566; Florida East Coast Railway Co. v. Knowles, 68 Fla. 400, 67 So. 122; Seaboard Air Line Ry. v. Rentz & Little, 60 Fla. 429, 54 So. 13.

This rule is further supported in Morris v. Florida Cent. & P. R. Co., 43 Fla. 10, 29 So. 541. Count 2 of the declaration therein quoted at page 13, being very similar to the declaration here, was discussed at page 28 of that opinion, and held by this court to conform to the prescribed form set out in Chitty on Pleading (16th Am. Ed.) 576. See, also, Warfield v. Hepburn, 62 Fla. 409, 57 So. 618.

In 14 Encyclopedia of Pleading and Practice, at page 333, it is said that the rule is well-nigh universal that in an action for negligence the plaintiff need not set out in detail the specific acts constituting the negligence complained of, as this would be pleading the evidence. Accordingly, a declaration specifying the act, the commission or omission of which caused the injury, and averring generally that it was negligently and carelessly done or omitted, will suffice. Leach v. Bush, 57 Ala. 145; Mobile & M. Ry. Co. v. Crenshaw, 65 Ala. 566; Bunnell v. Berlin Iron Bridge Co., 66 Conn. 24, 33 A. 533; Duffy v. Howard, 77 Ind. 182; Hammond & Co. v. Schweitzer, 112 Ind. 246, 13 N.E. 869; Scott v. Hogan, 72 Iowa, 614, 34 N.W. 444; Benjamin v. Holyoke St. Ry. Co., 160 Mass. 3, 35 N.E. 95, 39 Am. St. Rep. 446; Lucas v. Wattles, 49 Mich. 380, 13 N.W. 782; Pope v. Kansas City Cable Ry. Co., 99 Mo. 400, 12 S.W. 891; San Antonio St. Ry. Co. v. Muth, 7 Tex. Civ. App. 443, 27 S.W. 752; Snyder v. Wheeling Electrical Co., 43 W.Va. 661, 28 S.E. 733, 39 L. R. A. 499, 64 Am. St. Rep. 922; Young v. Lyuch, 66 Wis. 514, 29 N.W. 224; East Tenn. Coal Co. v. Daniel, 100 Tenn. 65, 42 S.W. 1062, and many others.

It is also well settled that plaintiff's right of recovery is confined to the cause of action stated in his declaration, and, if he fails on the grounds so stated he cannot be permitted to prove and recover on any ground not stated or alleged. Louisville & N. R. Co. v. Guyton, 47 Fla. 188, 36 So. 84; Hollingsworth v. Norris, 77 Fla. 498, 81 So. 782.

Plaintiff in error has devoted much space in his brief to a discussion of this assignment. We have weighed his analysis carefully but our conclusion is that the declaration conforms to the approved rules of...