Pensacola Electric Co. v. Soderlind , 60 Fla. 164 ( 1910 )

Shackleford, J.,

prepared the following statement.

By writ of error the defendant in the court below seeks to have a judgment for $10,000.00 recovered against it by the plaintiff tided and tested by the law. Hoopes Bros. v. Crane, 56 Fla. 395, text 421, 47 South. Rep. 992, text 1001, and authorities there cited. In limine, we are called upon to determine the sufficiency of the declaration to withstand the different assaults made upon it. Omitting the purely formal parts, the declaration' is as follows:

“The plaintiff Gus A. Soderlind, as Administrator of the estate of Gus A. A. Soderlind, deceased, by his attorneys, sues the defendant, The Pensacola Electric Company, a corporation, for that, to-wit:—

1st: That before the institution of this suit to-wit:— On the 19th day of January, A. D. 1909, in the City of Pensacola, Florida, the defendant was the owner and operator of a certain street car propelled by power of electricity; that defendant, through its servants and agents, then and there had the exclusive control and management of said street car and was operating the same in the said city of Pensacola upon a certain line of street railroad track of the defendant, located upon Government street in said city of Pensacola; that on said date in the light of day in the afternoon thereof, while plaintiff’s intestate Gus A. A. Soderlind an infant under the age of two years was lawfully on said street, the defendant, by and through its servants and agents, then and there carelessly and negligently propelled its said car along and over said street and then and there by means of the said street car so carelessly and negligently operated by said defendant, did wrongfully, carelessly, violently and negligently run upon, against and over the body of plaintiff’s intestate the said Gus A. A. Soderlind, crushing and mutilating it, on account thereof he thereafter died; that neither widow nor husband, nor minor child nor children nor any person or persons depending upon the said Gus A. A. Soderlind, plaintiff’s intestate, for a support survived him; that plaintiff, Gus A. Soderlind, is the duly appointed administrator of the estate of the said Gus A. A. Soderlind deceased, and is the father and legal representative of the said Gus A. A. Soderlind, deceased. And because of such wrongful act of defendant the plaintiff has suffered great damage, and this plaintiff has lost and been deprived of the services of the said Gus A. A. Soderlind, plaintiff’s minor child and intestate, and this plaintiff and plaintiff’s wife Maggie Soderlind, the mother of said child have been subjected to great mental pain and suffering on account thereof. And plaintiff claims $20,000.00.

2nd. That before the institution of this suit, to-wit:— On the 19th day of January, A. D. 1909, in the city of Pensacola, Florida, the defendant was tjie owner and operator of a certain street car propelled by power of electricity; that defendant, through and by its agents and servants, then and there had exclusive control and management of said street car and was operating the same in the said city of Pensacola, upon a certain line of street railroad track of the defendant, located upon Government street in said city of Pensacola; that on said date, in the light of day, in the afternoon thereof, while plaintiff’s intestate, Gus A. A. Soderlind an infant under the age of two years, was lawfully on said street, the defendant by and through its servants and agents, then and there carelessly and negligently propelled its said car along and over said street and then and there, by means of said street car so carelessly and negligently operated by said defendant, did wrongfully, carelessly, violently and negligently run upon, against and over the body of plaintiff’s intestate, the said Gus A. A. Soderlind crushing and mutilating it, on account whereof he thereafter died; that neither widow nor husband, nor minor child or children nor any person or persons depending upon the said Gus A. A. Soderlind, plaintiff’s intestate, for a support, survived him; that plaintiff, Gus A. Soderlind is the duly appointed administrator of the estate of the said Gus A. A. Soderlind, deceased. And because of such wrongful act of defendant, plaintiff as such administrator is entitled to recover of defendant such damage as intestate’s estate suffered by reason thereof. And the plaintiff claims $20,000.00.”

To this declaration the defendant interposed the following demurrer:

“The defendant demurs to the first and second counts of the plaintiff’s declaration filed in the above entitled cause and for grounds of demurrer says:—

That the Statute, Section 3147, General Statutes of the State of Florida, 1906, under which this suit is brought, is in conflict with’ the Constitution of the State of Florida, and the Constitution of the United States, and the Fourteenth Amendment thereof, because its enforcement will,—

a. Deprive the defendant of its property without due process of law;

b. Deny to the defendant the equal protection of the law, because the Statute,

1: Is class legislation without any reasonable basis of classification;—

2: Discriminates unjustly by attempting to make the defendant liable under the circumstances mentioned in the Statute, while imposing no such liability upon individuals under similar circumstances.”

Blomvt & Blount & Carter for Plaintiff in Error. J. P. Stokes and li. P. Reese, for Defendant in Error,

The defendant also interposed a demurrer addressed to the first count of the declaration on the ground that such “count is double, in that the plaintiff sues both as father and as administrator.” The defendant also filed a motion to strike from the first count the concluding clause therein, “and this plaintiff has been subjected to great mental pain and suffering on account thereof,” on the ground that no such damages are recoverable under the existing laws of this State, and that such allegation tends to embarrass the issue. The defendant likewise filed a motion requiring the plaintiff to elect between the two counts, upon the ground that in the first he seeks to recover as father and in the second as administrator. The defendant further moved to strike from the declaration the words, “and plaintiff’s wife Maggie Soderlind, the mother of said child,” because no such damages are recoverable, and such allegation tends to embarrass the issue.

Whitfield, O. J.

While the' demurrer to the declaration is addressed to the validity of the section of the General Statutes of 1900 on which the first count is based, if the case can be fully disposed of without adjudicating the constitutional questions raised therein, the courts will generally ignore such questions and dispose of the case on other grounds. Ex Parte Bailey, 39 Fla. 734, 23 South. Rep. 552.

A motion to require the plaintiff to elect between the counts of the declaration on the ground that they state causes of action accruing in different rights, was denied by the court, and this ruling is assigned as error.

The trial was had and judgment recovered on the declaration containing the two counts, and if the counts cannot be joined in one action the judgment should be reversed without reference to the constitutionality of section 3147 on which the first count is based.

Section 1389 of the General Statutes of 1906 provides that “causes of action of whatever kind, by and against the same parties in the same rights, may be joined in the same suit, except that replevin and ejectment shall not be joined together nor with other causes of action.

At common law a cause of action accruing to a plaintiff individually cannot be joined with one accruing to him in a representative capacity, though the two arise out of the same occurrence. See 1 Ency. Pl. & Pr. 190; 23 Cyc. 399; Morton v. Western Union Tel. Co., 130 N. C. 299, 41 S. E. Rep. 484; Carrier v. Bernstein Bros., 104 Towa 572, 73 N. W. Rep. 1076.

Causes of action that exist in favor of a person individually and as an administrator or executor of the estate of another are not “in the same right” within the meaning of the statute. In the former, the recovery is in a personal capacity, and in the latter the recovery is in a representa-' tive capacity—in the right of another.

The cause of action stated in the first count of the declaration arises under section 3147 of the General Statutes of 1906. It is to recover “for the loss of service of such minor child” and “for the mental pain and suffering of the parent” which damages are personal to the parent in his own right as parent, and not a right to be exercised in a representative capacity as administrator of another’s estate. See Seaboard Air Line Ry. v. Moseley, 60 Fla., 186 53 South. Rep. 718. Eo authority is cited to sustain the holding in Callison v. Brake, 129 Fed. Rep. 196, 68 C. C. A. 354, where the court recognized the absence of a decision on the point by this court. The rule in Yermont is based on statutory provisions for special verdicts and separate findings on different counts of a declaration. We have no such statutes.

The second count states a cause of action arising under sections 3145 and 3146, and it is properly brought by the father in his representative capacity of administrator of the estate of his deceased minor child.

The statutes giving these several rights of action do not authorize them to be joined with each other when they are not given “in the same right.”

This action is by the plaintiff “as administrator of the estate of Gus A. A. Soderlind deceased,” the appointment of plaintiff as such administrator is alleged and the deceased is referred to as “plaintiff’s intestate.”

The damages alleged in the first count accrue to and may be recovered by the plaintiff only in his personal capacity as father of the deceased. The damages claimed in the second count may be recovered only in a representative capacity; and as the two counts are for causes of action not in the same right, they cannot be joined, and the motion to require the plaintiff to elect between the counts should have been granted and the declaration reformed accordingly. The constitutional question may be eliminated by the plaintiff in electing between the counts.

The judgment is reversed.

Taylor, Cockrell, Hocker and Parkhill, J. J., concur.