Yordon v. Savage

Decision Date05 July 1973
Docket NumberNo. 42308,42308
Citation279 So.2d 844
PartiesChristopher YORDON, a minor, by and through his parents and natural guardians, Stephen A. Yordan and Maryanne Yordon, et al., Appellants, v. Dorothy L. SAVAGE and Employers-Commercial Union Companies, Appellees.
CourtFlorida Supreme Court

Kenneth B. Sherouse, Jr. of Sherouse & Virgin, Miami, for appellants.

Edna L. Caruso of Howell, Kirby, Montgomery, D'Aiuto, Dean & Hallowes, West Palm Beach, for appellees.

BOYD, Justice.

This cause is before us on appeal from the Circuit Court, Palm Beach County.The trial court, in its amended order, directly construed the Constitution of the United States, Amend. XIV, and the Constitution of the State of Florida, Art. I, Section 2, 9, and 21, F.S.A., giving this Court jurisdiction of the direct appeal under Section 3 of Art. V of the Florida Constitution.

The facts of this case are as follows: A minor, by and through his natural mother and natural father, and the mother and father individually, instituted this action against the appellee, a licensed pediatrician.The complaint was divided into three counts.Count One alleged that appellee, in the performance of her duties, negligently treated the child causing blindness and rendering him 'incapable of sensation, perception, motor control and reason.'Count Two, brought by the parents individually, sought damages for medical expenses, loss of their child's services and mental pain and anguish.The last count claimed punitive damages.

In her answer, appellee moved, Inter alia, to strike the mother of the child as being an improper party.After considering the constitutional questions, the trial judge entered an amended order striking the mother as a partyplaintiff.Said order read, in part:

'1.That defendant's motion to strike Maryanne Yordon from Plaintiffs' Complaint is granted and she is stricken as a partyplaintiff to this Complaint inasmuch as she is not a proper party to these proceedings.It is further Ordered and Adjudged that Plaintiff, Maryanne Yordon's cause of action is dismissed with prejudice, that she take nothing by her action and the defendant go hence without day as to the Plaintiff, Maryanne Yordon.

'The Court considered various Constitutional questions concerning the right of Maryanne Yordon, the minor's mother, to be a partyPlaintiff and the Court being fully advised in the premises specifically finds that her following Constitutional claims are without any merit:

'a.That she was denied Equal Protection of the Laws under the Florida and Federal Constitutions by being discriminated against by virtue of her sex.

'b.That she was denied Due Process of Law under the Florida and Federal Constitutions be being discriminated against by virtue of her sex.

'c.That she was denied Equal Protection of the Law and Due Process of Law under the Florida and Federal Constitutions inasmuch as she is the mother of the minor child and is the one who has been and will be taking care of said minor child.'

In Wilkie v. Roberts, 1this Court held that the parent, or guardian, of an unemancipated minor child, injured by the tortious act of another, has a cause of action in his own name for medical, hospital, and related expenditures, indirect economic losses such as income lost by the parent in caring for the child, and for the loss of the child's companionship, society, and services, including personal services to the parent and income which the child might earn for the direct and indirect benefit of the parent.We hold today that this cause of action is available to Either the father Or the mother, Or to the two parents together, and hereby reverse the trial court's order, striking Maryanne Yordan as a party, for the following reasons:

Article I, Section 2, of the Constitution of the State of Florida provides: 'All natural persons are equal before the law. . . .'Article I, Section 9, of said Constitution provides: 'No person shall be deprived of life, liberty or property without due process of law. . . .'Article I, Section 21, of the same provides: 'The courts shall be open to every person for redress of any injury. . . .'The Fourteenth Amendment to the Constitution of the United States provides: 'Section 1. . . .No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'Clearly, the import of these foregoing provisions is that if a cause of action is available to one parent for injury to a child, then there can be no discrimination between the parents, based upon sex, since both are equal in the eyes of the law.

In Beard v. Beard, 2the District Court of Appeal, First District, note:

'. . . In this era of women's liberation movements and enlightened thinking, we have almost universally come to appreciate the fallacy of treating the feminine members of our society on anything but a basis of complete equality with the opposite sex.Any contrary view would be completely anachronistic.In this day and time, women are as well educated and trained in the arts, sciences, and professions as are their male counterparts. . . .'

In Markham v. Markham, 3 the First District further expounded upon this concept:

'A married woman is no longer her husband's chattel.She is a citizen--she is an individual--and her rights are as paramount as his.The law properly protects married women in their right to independently acquire, encumber, accumulate and alienate property at will.They now occupy a position as equal partners in the family relationship resulting from marriage and more often than not contribute a full measure to the economic well-being of the family unit.'

In 1973, the theoretical proposition that women should enjoy equal opportunities, right, and responsibilities has been accepted.Further, the disparity between theory and reality has been overcome in an ever-increasing number of areas, including: right to privacy; 4 right to sue for loss of consortium; 5 responsibilities pertaining to the holding, control, disposition or encumbering of real or personal property; 6 and, responsibilities pertaining to the award of alimony.7We note that, in a highly analogous situation, the Legislature has recently repealed the statute which discriminated, based upon sex, in determining the proper parties in action for the death of a minor child.8

In suits of this kind, both lawful parents are necessary parties.If one parent files personally, he or she must either file as trustee for the other parent, or must name the other parent as a partydefendant where service of process can be perfected, and, where required by special circumstances, the trial court may, in its discretion, name a guardian ad litem to protect the interest of the non-participating parent.If one parent receives a judgment as Trustee for the other, all such trust funds shall be paid into the Registry of the Court, and paid to the absent parent, or used for such lawful purposes as the justice of the case may require.

The jury, or, where a jury is waived, the judge trying the facts shall apportion the proceeds of the judgment to one or both parents as may seem just, based upon the social and economic relationships of the parties to the children.

Accordingly, the amended order of the trial court is quashed, and the cause remanded with instructions to include Maryanne Yordon as a partyplaintiff, and proceed thereby to the trial of the issues.

It is so ordered.

CARLTON, C.J., ROBERTS, ERVIN and McCAIN, JJ., and SPECTOR, District Court Judge, concur.

DEKLE, J., dissents with opinion.

DEKLE, Justice (dissenting).

There is no denial...

Get this document and AI-powered insights with a free trial of vLex and Vincent AI

Get Started for Free

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex
40 cases
  • Flippin v. Jarrell
    • United States
    • North Carolina Supreme Court
    • outubro 07, 1980
    ...(1968). A number of decisions have permitted the mother to bring parental claims alone or in conjunction with her husband. E. g., Sims v. Virginia Electric & Power Co., 550 F.2d 929 (4th Cir. 1977); Yordon v. Savage, 279 So.2d 844 (Fla.1973); Thoreson v. Milwaukee & Suburban Transport Co., 56 Wis.2d 231, 201 N.W.2d 745 (1972); Southwestern Gas & Electric Co. v. Denney, 190 Ark. 934, 82 S.W.2d 17 (1935); Long v. City of Weirton, 214 S.E.2d 832...
  • Cruz v. Broward County School Bd.
    • United States
    • Florida Supreme Court
    • novembro 01, 2001
    ...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." This right of action was later extended to the mother. See Yordon v. Savage, 279 So.2d 844, 846 (Fla.1973) ("We hold today that this cause of action is available to either the father or the mother...."). However, the recovery allowed under the Wilkie decision was limited to elements of monetary He could recover only hisZorzos v. Rosen, 467 So.2d 305, 307 (Fla.1985) (Ehrlich, J., dissenting). 3. See Seaboard Air Line Ry. v. Moseley, 60 Fla. 186, 53 So. 718, 718 (1910). 4. See Wilkie v. Roberts, 91 Fla. 1064, 109 So. 225, 227 (1926). 5. See Yordon v. Savage, 279 So.2d 844, 846 (Fla.1973). 6. See Wilkie, 109 So. at 227. 7. See Zorzos v. Rosen, 467 So.2d 305, 307 (Fla.1985) ("We agree with [Clark v.] Suncoast Hospital [338 So.2d 1117 (Fla.2d...
  • Norman v. Massachusetts Bay Transp. Authority
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • outubro 11, 1988
    ...circumstances of the case may be just," thus allowing recovery for the loss of a child's society and companionship. Hayward v. Yost, 72 Idaho 415, 425, 242 P.2d 971 (1952).9 Reben v. Ely, 146 Ariz. 309, 705 P.2d 1360 (1985). Yordon v. Savage, 279 So.2d 844, (Fla.1973). Dymek v. Nyquist, 128 Ill.App.3d 859, 83 Ill.Dec. 52, 469 N.E.2d 659 (1984). Sizemore v. Smock, 155 Mich.App. 745, 400 N.W.2d 706 (1986). Norvell v. Cuyahoga County Hosp., 11 Ohio...
  • U.S. v. Dempsey
    • United States
    • Florida Supreme Court
    • abril 21, 1994
    ...action in favor of the father. 91 Fla. at 1068, 109 So. at 227. Then in 1973, the Yordon Court expressly stated that recovery for the loss of a child's companionship and society was available to the parent of a negligently injured child. 279 So.2d at 846. Yordon dealt with the issue of whether a mother has a right to recover for losses sustained as a result of a negligent injury to her child. In ruling that a mother has the same right of action as the father, the Court clearlycompanionship ... of his minor child" under the common law (109 So. at 227) had in mind that damages for such a loss would only be recoverable in non-physical injury cases like those involving the seduction of a daughter. In Yordon v. Savage, 279 So.2d 844 (Fla.1973), the Court merely paraphrased the Ruling Case Law citation from Wilkie, thereby recognizing that recovery for the loss of companionship is possible in those cases discussed in Ruling Case Law. Moreover, the sole questiondirect medical or other expenses incurred in the child's healing process. I recognize that this court extended a father's cause of action to a mother for injury to a child which had not been previously afforded in Yordon v. Savage, 279 So.2d 844 (Fla.1973), and we made reciprocal loss of consortium between husband and wife in Gates v. Foley, 247 So.2d 40 (Fla.1971). Even so, the creation of a new element of damage is one best left to the legislature. I disagree with the majority...
  • Get Started for Free
1 books & journal articles
  • Compensation for Nonpecuniary Loss: Revising Louisiana Civil Code Article 1998 to Reflect Litvinoff's Damage-Based Approach
    • United States
    • Louisiana Law Review Paul M. Hebert LSU Law Center
    • julho 01, 2015
    ...Center) (on file with Paul M. Hebert Law Library, Paul M. Hebert Law Center). 26. Supplemental Memorandum on Damages for Nonpecuniary Losses, supra note 2, at 1. 27. Id. See, e.g. , Bowes v. Fox-Stanley Photo Prods., Inc., 279 So. 2d 844 (La. Ct. App. 1980). 2015] COMMENT 1279 general compensatory damages are. 28 Although both injuries are compensated in money, the availability of nonpecuniary damages depends on what type of right was actually injured by the obligor’s failure to perform...