Florida East Coast Railway Co. v. Hayes , 65 Fla. 1 ( 1913 )

Whitfield, J.

Hayes recovered a judgment for $25,-000.00 damages for the death of his 13 year old son, caused by one of the defendant railroad company’s trains, and the defendant took writ of error.

The right of a father under Section 3147 of the General Statutes of 1906, to recover damages for his loss of service and his mental pain and suffering because of the death of his minor child caused by the wrongful act, negligence, carelessness or default of a defendant corporation has been sustained in the case of Davis v. Florida Power Co., decided at the last term. This case presents the question whether the father can under the statute also recover damages for the mental pain and suffering of the mother caused by the wrongful or negligent death of their minor child. The question of escessiveness in the amount of the judgment is also presented. The declaration states .a cause of action and an affirmative charge for the defendant was properly refused.

Section 3147 of the General Statutes is as follows: “Whenever the-death of any minor child shall be caused by the wrongful'act, negligence, carelessness or default of any private association of persons, or by the wrongful act, negligence, carelessness or default of any officer, agent or employee, or by the wrongful act, negligence, carelessness or default of any corporation, or by the wrongful act, negligence, carelessness or default, of any officer, agent or employee of any corporation acting in his capacity as such officer, agent or employee, the father of such minor child, or if the father be not living, the mother, as the legal representative of such deceased minor child, may maintain an action aginst such individual, private association of persons or corporation, and may recover not only for the loss of service of such minor child, but in addition thereto such sum for the mental pain and suffering of the parent or parents as the jury may assess.”

If the words “or parents” contained in Section 3147 of the General Statutes of 1906, are in effect designed to allow the father to recover damages for the mental pain and suffering of the mother caused by the wrongful death of their minor child, such words are repugnant to other provisions of the same Section giving the mother a right of action only if the father be not living, and authorizing the father if living to maintain the action “as the legal representative of such deceased minor child.” The right of action given to the father has no real or legal relation to the mental pain and suffering of the mother. A recovery by the father for the mother’s mental pain and suffering, is contrary to the general principle of law that one person cannot recover for injury to another unless a representative relation exists between them. The father sustains no loss or injury recognized by law for the mother’s mental pain and suffering that may be redressed in damages, even where their status as husband and wife has not been impaired by death or by the law; and under the statute or other law the father does not represent the mother in maintaining the action. The provision for a recovery by the father in his personal capacity or as the legal representative of the deceased minor child, of damages for the mother’s mental pain and suffering appears to be an arbitrary exercise of governmental power that may amount to a denial to the defendant of due process and equal protection of the laws in violation of organic provisions.

Even if under Section 3147 the father may constitutionally recover damages in this action for the mental pain and suffering of the mother caused by the wrongful death of their minor child, the verdict and judgment in this case are upon the evidence clearly excessive.

In this case there is no evidence of a malicious or intentional injury to the decedent or of negligence of “so gross and flagrant a character as to evince reckless disregard of human life, or of the safety of those exposed to its dangerous effects, or that entire want of care which would raise the presumption of a serious indifference to •consequences, or show wantonness and recklessness, •or reckless indifference to the rights of others, equivalent 'to an intentional violation of them, which is necessary to justify a jury in inflicting punative damages.” Florida Cent. & P. R. Co. v. Mooney, 40 Fla. 17, 24 South. Rep. 148; Florida Southern Ry. Co. v. Hirst, 30 Fla. 1, 11 South. Rep. 506; Florida Ry. & Nav. Co. v. Webster, 25 Fla. 394, 5 South. Rep. 714; Dowling Lumber Co. v. King, 62 Fla. 151, 57 South. Rep. 337; Florida East Coast R. R. Co. v. Schumacher, 63 Fla. 137, 57 South. Rep. 603.

There is perhaps as much evidence that the defendant exercised all ordinary and reasonable care and diligence as required by the statute, and that the decedent was accustomed to traveling on a train and actually jumped off the moving- train onto the station platform before the train stopped which caused his death, .as there is evidence that the deceased was thrown from the steps of the car by a sudden jar of the train. If the . decedent and the defendant were both at fault the damages should be diminished as required by the statute.

Of course no amount of money that could be recovered would compensate a parent for the wrongful death of a child; but after the death the legal problem under the statute is the proper compensatory liability to impose for the wrongful or negligent act that caused the death of the minor child.

The death of a child deprives the parent of its society and of the hope for its future life, which while the child lives afford comfort and inspiration to the parent; and deprivation of such society, comfort and inspiration is a substantial injury that naturally causes mental pain and suffering for which damages in a proper amount may be recovered, under the statute.

As was held in the case of Florida East Coast By. Co. v. Geiger, decided at the last term, the motion of the defendant below “to set aside the verdict rendered in this canse” was in effect a motion for' a new trial, and it Avas so treated by the trial court. CoAinsel for the plaintiff below was not present when the motion Avas submitted to the trial court, but two affidavits state that the right to be present Avas Avaived by counsel, and the denial of the defendant’s motion in the absence of plaintiff’s counsel could not injure the plaintiff.

Mr. Chief Justice Shackleford, concurs in a reversal of the judgment upon the ground that Section 3117 of the General Statutes under Avhich the greater portion of the damages was found, is unconstitutional for the reasons stated in his dissenting opinion in the cases of Pensacola Electric Go. v. Soderling, 60 Fla. 161, 53 South. Rep. 722, and Davis v. Florida Power Co., decided at the last term.

The judgment is reversed.

Taylor, J., concurs.