Waller v. First Sav. & Trust Co.

Decision Date23 December 1931
Citation138 So. 780,103 Fla. 1025
CourtFlorida Supreme Court

En Banc.

Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Action by J. L. Waller against the First Savings & Trust Company, of Tampa, as administrator of the estate of John Hodasz deceased. To review a final judgment for the defendant, the plaintiff brings error.

Reversed and cause remanded, with directions.

BROWN J., dissenting in part.

Syllabus by Davis, J.


1. Section 87, Comp. Gen. Laws, section 71, Rev. Gen. St., which declares the common law of England to be in force in Florida in the absence of contrary statutes, expressly excepts from such common-law adoption, any rule of the English common law which is inconsistent with the Constitution and laws of Florida.

2. This court has expressly recognized in prior decided cases, the principle that in specific instances certain rules which were admittedly a part of the old English common law, did not become a part of the common law of Florida, because contrary to our customs, institutions, or intendments of our Constitution or statutes.

3. The American theory of constitutional protection to life, liberty, and property, and the theory of Florida law as expressed in our state Constitution, is clearly to the effect that actions for recovery of damages for torts are no longer to be regarded as mere punitive retaliations against the tort-feasor, but are a means of recompense to the citizen wronged.

4. The theory of the English common law is that a tort action is to be regarded as punitive in character, while under the intendment of the Declaration of Rights contained in the Florida Constitution, there is recognized and preserved in organic language a legal remedy for tortious wrongs, with a provision that the courts shall always be open to afford that remedy to the person wronged, the effect of which is to change the nature of tort actions as recognized in our legal system, from that of an action almost wholly punitive, to one largely remedial, in character.

5. Because a tort action under the English common law was punitive in character and akin to a criminal proceeding, the death of the tortfeasor defeated, just as the death of a criminal defeated, further prosecution of a legal proceeding for the wrong committed by the deceased perpetrator of it.

6. A majority of the court hold that, under the laws of Florida, a right of action for the recovery of purely compensatory damages for personal injuries caused by a tort-feasor in his lifetime does not die with the tort-feasor, but that such right of action, which has accrued against the tort-feasor in his lifetime, survives after his death, and that an action at law based thereon may be brought or maintained by the injured party against the personal representative of the estate of the deceased tort-feasor, for the recovery of compensatory damages out of the tort-feasor's estate, for the personal wrong and injury done; the English common-law rule to the contrary being inconsistent with the intendments of the Florida Constitution and statutes, and therefore not applicable in this state.

7. If there is anything contrary to the holding stated in the preceding headnote, to be implied from the previous holdings of this court, such previous decisions, to the extent that they conflict with the conclusions reached in this case, must be regarded as disapproved and as modified to accord with the conclusions hereinbefore stated.

8. In an action at law against the administrator of a deceased tort-feasor for the recovery of damages for a tort committed in the tort-feasor's lifetime by blowing up plaintiff's dwelling house with a bomb, and inflicting thereby personal injuries on plaintiff's wife to the extent of causing the amputation of her left leg, a serious injury to her right leg, and the loss of sight in one eye, as well as so injuring her right arm and hand and otherwise maiming her so that she will be an invalid for life, held, that under the common law of Florida, as modified by the necessary intendments of the constitution and statutes of the state, the cause of action survived the decease of the tort-feasor and may be maintained against his personal representative for the recovery of compensatory damages for the wrong done by the tort-feasor in his lifetime, although the action was not brought until after his death.

Syllabus by Whitfield, J.

1. A personal injury to a married woman caused by the tort of a third person gives rise to two causes of action; one for her personal pain and suffering, and the other for the husband's consequential loss of her society and services, and for expense incurred for medical attention and nursing.

2. At common law, a husband had a right of action to recover damages for the impairment of his wife's capacity to render marital service to him caused by the tortious act of a third person; but such right of action abated at the death of the tort-feasor.

3. The organic law and statutory enactments of this state are inconsistent with the rule of the common law that such action does not survive the tort-feasor, and, because of such inconsistency, the common-law rule is not in force.

4. The effect of the statute, section 4211(2571), Comp. Gen. Laws, which is designed to modify the injustice of the common law, is to authorize the husband to maintain an action against the administrator of a tort-feasor who in his lifetime by tortious personal injuries to the wife impaired her capacity to render marital services to her husband.

5. Section 4211, Comp. Gen. Laws, provides that actions for enumerated classes of personal injuries 'shall die with the person,' and that 'all other actions shall and may be maintained in the name of the representatives of the deceased'; which latter quoted phrase, considered with the preceding provision of the section means that all other actions for personal injuries than those stated in the statute shall survive and may be maintained in the name of the representatives of the deceased.

6. If an action or a cause of action survives, it may be maintained by and against appropriate parties as may be provided by law.

7. The intent of the laws of this state is, as expressed in an organic provision, that every person for any injury done him shall have remedy by due course of law.

8. The injury to the plaintiff here is to his wife, to his home, and to his property; and the law contemplates that for such injuries he shall have remedy in damages recoverable from the tort-feasor's property, by due course of law, that right and justice may be done.

9. The provision of section 4211(2571), Comp. Gen. Laws, that 'all actions for personal injuries shall die with the person, to wit: Assault and battery, slander, false imprisonment, and malicious prosecution; all other actions shall and may be maintained in the name of the representatives of the deceased,' means that actions for the enumerated classes of personal injuries shall die with the person injured, not that such actions for personal injuries shall die with the tort-feasor if the person injured be living.

10. A statute adopts as the common law of this state the common law of England, provided it 'be not inconsistent with the Constitution and laws.' Section 87(71), Compiled General Laws, originally enacted in 1829. To abate an action for personal injuries because of the death of the tort-feasor may fairly be regarded as inconsistent with the laws of this state; therefore that rule of the common law is not in force in this state.

11. An interpretation that section 4211, Comp. Gen. Laws, abates the enumerated actions only upon the death of the injured person, accords with a provision of the Constitution of 1885 that 'every person for any injury done him * * * shall have remedy, by due course of law,' etc. Section 4, Declaration of Rights.


Whitaker Brothers, of Tampa, for plaintiff in error.

Edwin R. Dickenson, of Tampa, for defendant in error.



The facts upon which this suit is based, as disclosed by the allegations of the declaration, are most unusual, and, so far as we know, unprecedented in this state.

The declaration alleges that on April 24, 1930, the plaintiff and his wife were residing in a dwelling in Hillsborough county, owned by the plaintiff, and that on said date one John Hodasz, for whose estate the defendant had been appointed administrator, intentionally injured and damages said dwelling house by placing a bomb, or other high explosive, underneath or near to said residence, and had willfully and intentionally caused the same to be exploded, with the intention of injuring and damaging the plaintiff, and that such explosion did damage the plaintiff's dwelling house to the amount of $3,000.

The declaration further alleges that, in addition to injuring said dwelling house, the said Hodasz caused plaintiff to suffer other pecuniary damage and loss, in that the explosion inflicted very serious injuries upon the plaintiff's wife, necessitating the amputation of her left leg between the ankle and the knee, seriously injuring her right leg and causing the loss of sight in one eye, and injuring her right arm and hand so that she cannot use them, and so maiming her that she will be practically an invalid the balance of her life, rendering it impossible for her to perform the duties of a wife, and thereby depriving plaintiff of her companionship and services, and making it necessary that he have some on with her at all times to wait upon her. That plaintiff was forced to expend $800 for hospital bills for the treatment of his wife, and that he will be required to expend other large sums for her care and treatment in the future. The...

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