Wilkie v. Roberts
| Decision Date | 05 June 1926 |
| Citation | 109 So. 225,91 Fla. 1064 |
| Parties | WILKIE v. ROBERTS. |
| Court | Florida Supreme Court |
Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.
Action by Holstead Roberts against L. N. Wilkie for injuries to plaintiff's minor child. Judgment for plaintiff, and defendant brings error.
Reversed and a new trial awarded.
Syllabus by the Court
Motions to compel election between counts, denying compulsory amendment of declaration and refusing bill of particulars are addressed to sound discretion of trial court, and its ruling will not be disturbed except for abuse. Motions to compel election between certain counts of the declaration denying compulsory amendment of the declaration and refusing a bill of particulars, are addressed to a sound discretion of the trial court, and his ruling thereon will not be disturbed unless it plainly appears that there was an abuse of judicial discretion.
Jurisdiction depends on amount in controversy and not on amount of recovery. In an action for damages under our law, the jurisdiction of the court is determined by the sum in good faith demanded or actually put in controversy and not by the amount of the recovery.
No statute authorizes recovery for injury to minor child for wrongful act, neglect, carelessness, or default of another though statute allows recovery for loss of services and for mental pain in event of death (Rev. Gen. St. 1920,§ 4962). Section 4962, Revised General Statutes of Florida 1920, provides for the recovery of the loss of services and for mental pain in the event of the death of a minor child by the wrongful act, negligence carelessness, or default of another, but we have no statute authorizing recovery for injury to a minor child for the wrongful act, negligence, carelessness, or default of another.
Common law recognized no rights of action for causing death of human being. The common law recognized no right of civil action for causing the death of a human being; such right, as it now exists in the various states of the Union, being purely statutory, and is not based on the father's right to the child's services.
The father's right to the custody, companionship, services, and earnings of his minor child are valuable rights constituting a species of property in the father, a wrongful injury to which by a third person will support an action in favor of the father.
For personal injury, pain, disfigurement, and permanent disability of child father can recover no damages; to recover for personal injuries, child must sue by guardian or next friend. For the personal injury, pain, disfigurement, and permanent disability of a child, inflicted by a tort committed on it, the father can recover no damages; but the child must, if he recovers for such, sue therefor by its guardian or next friend.
Common law afforded parent as such no remedy for injury to his child; at common law parent could recover only pecuniary loss for injury to child, and recovery was limited to loss of present and prospective earnings to end of minority and medical expenses in effecting or attempting to effect cure; father's right to recover for injury to child is independent of that child, and waiver of child of right to sue does not bar father's right. The common law afforded the parent as such no remedy for injury to his child. He could recover only his pecuniary loss as a result of the injury, and such loss was limited to two elements: (1) The loss of the child's services and earnings, present and prospective to the end of the minority; and (2) medical expenses in effecting or attempting to effect a cure. The father's right of action being at all times independent of that of the child; if the child waive his right to sue, such waiver does not bar the father's right.
Marks, Marks & Holt, of Jacksonville, for plaintiff in error.
A. H. & Roswell King, of Jacksonville, for defendant in error.
The declaration here, in substance, alleges that L. N. Wilkie, by his servant or agent, on the 16th day of November, 1922, in the city of Jacksonville, so carelessly and negligently propelled and ran his automobile with such great force and violence against and upon Waller Roberts that the said Waller Roberts, who was the minor son of Holstead Roberts, was then and thereby injured in the head, body, and limbs, his nervous system and spinal column were shaken and impaired, and various permanent injuries were thereby sustained, whereby plaintiff was deprived of the services of the said Waller Roberts till attaining his majority, and was forced to and did expend large sums of money endeavoring to have his said minor son cured of his wounds, sickness, and disorders so negligently caused.
Damages were laid in the sum of $50,000, the usual skirmishing incident to settling the pleadings in such cases preceded the trial, which was conducted on the pleas of the general issue and contributory negligence, resulting in a verdict of $2,500 in favor of the plaintiff.
Motions for an instructed verdict in favor of defendant and for new trial were seasonably made and denied, and writ of error was taken to the final judgment.
The first assignment of error challenges the order of the trial court denying defendant's motion to compel election between certain counts of the amended declaration. The second assignment of error challenges the order of the trial court denying defendant's motion for compulsory amendment to the amended declaration, and the third and tenth assignments of error challenged the order of the trial court denying defendant's motion for bill of particulars to the declaration as amended.
We have examined the basis for these assignments carefully, and it is not made to appear that, in overruling these motions, the rights of the defendant were in any wise prejudiced. They all pertain to matters addressed to the sound discretion of the trial court, and his ruling thereon will not be disturbed unless it plainly appears that there was an abuse of judicial discretion. Seaboard Air Line Ry. v. Bentz & Little, 60 Fla. 429, text 435, 54 So. 13; Williams v. Peninsular Grocery Co., 73 Fla. 937, 75 So. 517; Wilson v. Fridenberg, 22 Fla. 114; Mathis v. State, 45 Fla. 46, 34 So. 287; 1 Ency. Pl. & Pr. 524; 3 Ency. Pl. & Pr. 524.
It is also contended by plaintiff in error that the civil court of record of Duval county has jurisdiction of all civil causes where the amount in controversy does not exceed $3,000, that defendant in error was on notice of this fact when he brought this suit, and that he knew the facts in this case would not warrant a larger verdict than $3,000; hence the circuit court of Duval county was without jurisdiction to entertain said cause. The rule is well settled in this state that the jurisdiction of the court in actions of this kind is determined by the sum in good faith demanded or actually put in controversy and not on the amount of the recovery. Florida Cent. & P. R. Co. v. Seymour, 44 Fla. 557, 33 So. 424; Seaboard Air Line R. Co. v. Ray, 52 Fla. 634, 42 So. 714; Louisville & N. R. Co. v. Sutton, 54 Fla. 247, text 250, 44 So. 946; Director General of Railroads v. Wilford, 81 Fla. 430, 88 So. 256; Tampa Electric Co. v. Bazemore, 85 Fla. 164, 96 So. 297.
There were a great many other assignments of error, most of which are predicated on the admission or rejection of testimony, or on the giving or refusing of charges, but the only other...
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Stone v. Wall
...interests, such as those between family members, from interference. See Keeton, supra, § 124, at 915. In Wilkie v. Roberts, 91 Fla. 1064, 1068, 109 So. 225, 227 (1926), this Court held that a wrongful injury to the child gave rise to a common law cause of action by the father for his losses......
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...City Stores Co. v. Langer, 308 So.2d 621, 622 (Fla.App.1975) (by implication denying recovery) (both cases citing Wilkie v. Roberts, 91 Fla. 1064, 1069, 109 So. 225, 227 (1926) (father can recover only his pecuniary losses--services, medical Turning to the second issue, the plaintiffs argue......
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Michaels v. Nemethvargo
...Subia, 514 P.2d 79, 80 (Colo.App.1973) (implication that action would be allowed upon display of adequate evidence); Wilkie v. Roberts, 91 Fla. 1064, 109 So. 225, 227 (1926) (but the law in Florida at present is unclear; in Yordon v. Savage, 279 So.2d 844, 846 (Fla.1973), the Court held tha......
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In re Std. Jury Instructions in Civil Cases -- Report No. 09-01
...a parent's loss of earnings or other economic loss reasonably resulting from the need to care for an injured child. Wilkie v. Roberts, 91 Fla. 1064, 109 So. 225 (Fla.1926). 2. This instruction does not address the issue of a child with extraordinary income-producing abilities prior to the i......
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Motor vehicle accident and other personal injury cases
...a parent’s loss of earnings or other economic loss reasonably resulting from the need to care for an injured child. Wilkie v. Roberts , 91 Fla. 1064, 109 So. 225 (Fla. 1926). 2. This instruction does not address the issue of a child with extraordinary income-producing abilities prior to the......