Whiteley v. Webb's City
| Decision Date | 21 December 1951 |
| Citation | 55 So.2d 730 |
| Parties | WHITELEY v. WEBB'S CITY, Inc. |
| Court | Florida Supreme Court |
Goldner & Cramer, St. Petersburg, for appellant.
Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
Dorothy D. Keyes died at St. Petersburg, Florida, November 12, 1948, without spouse, children or other dependents. Appellant was appointed executrix of her estate and as such, instituted this suit November 8, 1949 to recover damages for her wrongful death. The amended declaration alleges that appellee, defendant, sold the deceased two bottles of a drug known as 'Westsal' to be used as a salt substitute, that the said drug was so used by deceased from which she died November 12, 1948. The cause of action was based on breach of implied warranty that the goods were fit for consumption. The ad damnum alleged damages in the sum of $30,000. A demurrer to the amended declaration was argued and the court entered an order withholding judgment thereon but certified two questions to this Court under Rule 38, 30 F.S.A.
The first question is as follows: Does the personal representative of a deceased person have an action for the death of such person based upon breach of warranty of fitness on the part of defendant in a transaction between such deceased person and the defendant?
The answer to this question turns on the interpretation of Section 768.01, Florida Statutes of 1949, F.S.A., the pertinent part of which is as follows: '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 * * * of any corporation, * * * 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 * * * and to recover damages in respect thereof, then and in every such case the person or persons who, or the corporation * * *, which would have been liable in damages if death had not ensued, shall be liable to an action for damages * * * 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.'
Relying on Greco v. S. S. Kresge Co., 277 N.Y. 26, 12 N.E.2d 557, 115 A.L.R. 1020, appellant contends that this question should be given an affirmative answer. It is true that there were factual elements in Greco v. S. S. Kresge Co. similar to those in the instant case but a study reveals that the case was submitted to the Court and adjudicated on the question of negligence while the gist of the action in the present case is not negligence, but one grounded on implied warranty. Unless implied warranty can be read into the quoted statute there is no basis for recovery.
It would be idle to suggest a right of action existed under the common law. The quoted statute, like similar statutes in other states, stems from Lord Campbell's Act passed in England in 1846 and was designed to remove what had come to be considered one of the injustices of the common law. By the very terms of Lord Campbell's Act and the quoted act the cause of action depends on the 'wrongful act, negligence, carelessness or default' of the defendant. Most all the jurisdictions in the country and in England hold that the statute was designed to support actions ex delicto and not ex contractu. 16 Am.Jr. 46, Death Par. 60; 25 C.J.S., Death, § 23, p. 1088. State and Federal decisions are to like effect.
Our statute uses the words 'wrongful act, negligence, carelessness or default'. When under consideration at various times by the legislature the title related to 'claims for death caused by negligence' or words of similar import. We do not deem a detour into the field of semantics necessary to fortify this thesis because the plain words used in the title and body of the different acts would seem to remove any doubt that they are limited to remedies where death results from the wrongful or tortious acts of the defendant and have no application to breach of promise or contractual obligations.
Appellant also relies on the decision of this Court in Sencer v. Carl's Markets, Inc., Fla., 45 So.2d 671, 672. Liability in that case was expressly laid on contractual liability between the retailer and purchaser of a food product sold directly to the consumer. In the case at bar we are concerned with a drug product sold on doctor's prescription. It could not be sold until approved by the pure food and drug administration in compliance with Federal Law. None of these conditions are negatived by the declaration, and being so, even if the doctrine of implied warranty was applicable, to apply it in this case would go far beyond the doctrine in Sencer v. Carl's Markets, Inc.
We think question one is within the contemplation of Rule 38 as interpreted in Schwob Co. of Florida, v. Florida Industrial Commission, 152 Fla. 203, 11 So.2d 782 and answer it in the negative. As to the phase of the statute involved it is a case of first impression and disposes of the litigation. Since we answer question one in the negative it becomes unnecessary to answer question two.
The certificate is granted and question one is answered in the negative.
THOMAS, J., not participating.
Dorothy D. Keyes died at St. Petersburg, Florida, November 12, 1948, without spouse, children or other dependents. Appellant was appointed executrix of her estate and as such, instituted this suit November 8, 1949, to recover damages for her wrongful death. The amended declaration alleges that appellee, defendant, sold the deceased two bottles of a drug known as 'Westsal' to be used as a salt substitute, that the said drug was so used by deceased from which she died November 12, 1948. The cause of action was based on breach of implied warranty that the goods were fit for consumption. The ad damnum alleged damages in the sum of $30,000.00. A demurrer to the amended declaration was argued and the court entered an order withholding judgment thereon but certified two questions to this Court under Rule 38.
The first question is as follows: Does the personal representative of a deceased person have an action for the death of such person based upon breach of warranty of fitness on the part of defendant in a transaction between such deceased person and the defendant?
The answer to this question turns on the interpretation of Section 768.01, Florida Statutes of 1949, F.S.A., the pertinent part of which is as follows: '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 * * * of any corporation, * * * 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 * * * and to recover damages in respect thereof, then and in every such case the person or persons who, or the corporation * * *, which would have been liable in damages if death had not ensued, shall be liable to an action for damages * * * 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.'
It is admitted that unless a breach of an implied warranty can be read into the quoted statute, there is no basis for recovery.
The primary question is, therefore, do the words 'wrongful act--or defaulth include a breach of an implied warranty?
In Ballentine's Law Dictionary the word default is defined as being synonomous with 'neglect or omission; the failure to perform a duty'.
The above statute contains words similar to words from Lord Compbell's Act passed in England in 1846, and was designed to accomplish the same purpose. There is no better rule to guide us in construing a statute than to consider the history of the times and the injustice or evil sought to be remedied. However, before Lord Campbell's Act, under the common law a person injured through a breach of duty imposed upon another might during his lifetime recover for such injury, but death put an end to the liability of the person responsible for such breach. The statute was enacted to remedy partially that evil and not to perpetuate it by...
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