Ake v. Birnbaum , 156 Fla. 735 ( 1945 )

As shown by our previous opinion, it was the then view of the majority of the court that under the pleadings and facts in this case, the recoverable damages were governed by the wrongful death statute, Sections 768.01, 768.02, Florida Statutes 1941, as construed in a number of our previous decisions, which were cited. But it is contended by appellee that the declaration was so amended that the plaintiff administratrix only claimed damages for the pain and suffering endured by plaintiff's testatrix, and the expenses incurred by her before her death, as a result of defendant's gross negligence, and that no damages were claimed for wrongful death, as had been done in prior pleadings. The evidence shows that plaintiff's testatrix suffered great pain during the ten days following the injuries which resulted in her death.

The general rule is, as it was at common law, that causes of action which are not assignable, do not survive, and that in the absence of statute, causes of action for torts causing injuries which are strictly personal, are not capable of being assigned and do not survive.

The cause of action and the remedy sought are entirely different matters. The one precedes and gives right to the other, but they are separate and distinct and are governed by different rules and principles. Many authorities define a cause of action as being the fact or facts which give rise to a right action. An action is deemed to be pending from the time it is commenced and until its final determination.

The general rule, as I understand it, is that a personal injury caused by a single tortious wrongful act of negligence is an entirety and affords grounds for only one action, and cannot be split up in order to bring separate actions for different elements of damages; and that where the injury causes death, the death by wrongful act statute affords theexclusive remedy. Of course under the statute, new Sections 768.01 and 768.02 F.S. 1941, the personal representative cannot recover damages for the pain and suffering endured by the deceased, before death ensued, as a result of the wrongful act. Such pain and suffering was personal to the deceased, though it may have caused his or her family and relatives mental pain to witness it. But there is something synthetic unrealistic and unreasonable to my mind to hold that an executor or administrator can disregard the death by wrongful act statute and sue to recover for the pain which the deceasedpersonally suffered before death ensued and which in no wise affected the value of her estate, especially where no action had been brought by the deceased before such death. Surely such pain and suffering did not in any wise diminish the value of the estate of the deceased, nor could an action brought by her executrix after her death in any way compensate the deceased for the pain and suffering which she and she alone endured. No "storied urn, nor animated bust [can] back to its mansion call the fleeting breath;" nor can an action for damages for her pain and suffering, brought by her executrix, compensate the deceased for what she endured before her death. It was an element of damages personal to her.

But it is claimed that the death by wrongful act statute can be disregarded, and an action brought under section 45.11 F.S. 1941. This statute comes down to us from section 30 of an act adopted in 1828. It was first construed in Jacksonville St. Ry. Co. v. Chappell, 22 Fla. 616. In the able opinion of Mr. Justice Raney in that cause it was held that under the common law, and under the statute, an action in tort to recover damages for personal injuries abated on the death of the plaintiff, and could not be revived by his personal representative. It was next construed in Jones et al. v. Townsend, Admx., 23 Fla. 355, which held that an action for libel died with the person, and that there was nothing in the statute which changed the common law so as to make any right of action survive to the personal representative which did not survive at common law. These cases were cited with approval in the case of Close v. Cunningham, 99 Fla. 1099, 128 So. 429, in which case it was held that a pending action for personal injuries abated upon the death of the tortfeasor and could not be revived against his personal representative. This case was overruled in Waller v. First Savings Trust Co., 103 Fla. 1025,138 So. 780, which held that a cause of action for compensatory damages for personal injuries did not die whenthe tortfeasor died, but survived against his personal representative. It was also held that under the statute (now 45.11 F.S. 1941) all actions for personal injuries, other than those specifically enumerated, survive and could be maintained in the name of the personal representative of the deceased. In the recent case of In re Moore's Estate, 153 Fla. 480, 15 2d 155 ; we held that section 4211 C.G.L. (now 45.11 F.S. 1941) deals with the abatement of actions pending and does not authorize the commencement of suit for personal injuries by the personal representative in the first instance. In that case, the origin of the statute is set forth and attention was called to the fact that the action in that case had been brought by the administratrix for damages for personal injuries to her husband, for the benefit of herself, a widow, and for the use of the children. No action had been brought by the husband, who lived only 22 hours after the injuries were received, and which injuries were alleged to have been caused by the negligence of the defendant. The plaintiff contended that when the husband died, his cause of action survived and vested in his personal representative under the statute above referred to, 45.11, F.S. 1941. This court however was of the opinion that plaintiff's right of recovery for damages occasioned by the wrongful act, which resulted in the death of her husband, depended under the laws of this state, upon the application of sections 7047 and 7048 C.G.L., now 768.01 and 768.02 F.S. 1941, the death by wrongful act statutes, aided as to proof by section 769.01. F.S. 1941, the hazardous occupations act.

Section 45.11, as above stated, comes down to us from an act of the legislature adopted in 1828. Later on, in 1883, the wrongful death statute above referred to was adopted. Doubtless one of the reasons for its adoption was to afford relief in cases not covered by existing law. This later statute, being the latest expression of the legislature, governs the class of actions described therein. Furthermore, as the common law afforded no remedy for death by wrongful act, this statute afforded the exclusive remedy. See Fla. E. C. Ry. Co. v. McRoberts, 111 Fla. 278, 149 So. 631, a well reasoned option by the then Chief Justice DAVIS. It begins with the words: "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, or its agents, etc., which act, if death had not ensued, would have entitled the party injured thereby to maintain an action and to recover damages in respect thereof, then the wrongdoer shall be liable to an action for damages, "notwithstanding the death of the person injured." And Section 768.02 provides that the parties entitled to sue on such cause of action shall, alternatively, in the order named, be: (1) the widow or husband; (2) the minor child or children; (3) any person or persons dependent on the person killed for support; and (4) "where there is neither of the above classes of persons to sue, then the action may be maintained by the executor or administrator, as the case may be, of the person killed." It is further provided that in every such action the jury shall give such damages as by law the party or parties entitled to sue mayhave sustained by reason of the death of the party killed, "provided, that any person or persons to whom a right of action may survive under the provisions of this act shall recover such damages as by law such person or persons are entitled in their own right to recover, irrespective of the damages recoverable by the person or persons whom he or they may succeed."

The damages which the executor or administrator of the decedent may recover under the statute were set forth in our original opinion, and the cases therein cited. Under this statute the personal representative of the deceased cannot recover damages for injuries suffered by himself or herself personally by reason of the wrongful death, but only for damages resulting to the estate of the person wrongfully killed. In re: Moore's Estate, 153 Fla. 480, 15 So. 2d 55.

So we adhere to our former conclusion that under the wrongful death statute the executor of the estate of the deceased is not entitled under repeated decisions of this court, to recover damages for the pain and suffering, both mental and physical, of the deceased during the ten days following the fatal accident which caused her death. And there certainly was no right of action for such a recovery at common law. Furthermore, the decedent never had a cause of action for pain and suffering alone. While she still lived, her cause of action was thewrongful or negligent act of the defendant, and her pain and suffering resulting therefrom wereonly elements of damages, recoverable by her personally, but not by her testator after her death. In L. N. R. R. Co. v. Jones, 45 Fla. 407, 34 So. 246, it was said:

"At the common law no one had any right to recover for the negligence or wrongful death of another, and the right of recovery in such cases is due entirely to the statutes given such right and it exists only in such persons as the statutes give it to."

Even in an action by a widow under this section, 768.02, she cannot recover for the pain and the suffering of the deceased. A surviving husband or wife, minor child or children, and a dependent person, may suffer damages that is not wholly monetary, such as is peculiar to the relation that existed, and may recover damages therefor; but an executor or administrator, as the legal representative of the decedent's estate, can sustain no loss or damage by reason of the wrongful death except the pecuniary value of the life to the prospective estate of the decedent, which damage or loss does not include and has no relation to the physical or other suffering of the decedent or his relatives, or to the claims of any one for present or future support or solatium. F.E.C. R.R. Co. v. Hayes, 67 Fla. 101; 7 A.L.R. 1310.

The case of Waller v. First Savings and Trust Co., as administrator, 103 Fla. 1025, 138 So. 780, was not brought under the wrongful death statute. That case involved the construction of Section 4211 C.G.L., now section 45.11 Fla. Stats. 1941. It was held in that case that the cause of action survived the death of the tortfeasor, and the case of Close v. Cunningham, 99 Fla. 1099, 128 So. 429, was overruled, but the cases of Jacksonville Street R.R. Co. v. Chappell, 22 Fla. 616,1 So. 10, and Jones v. Townsend, 23 Fla. 355, 2 So. 612, construing said statute, was referred to, but were not considered by the majority opinion of Mr. Justice DAVIS to be directly in point and were not overruled. And in International Shoe Co. et al. v. Hewitt as administrator, 123 Fla. 587,167 So. 7, it was held that the death of the tortfeasor in the automobile accident in which plaintiff's decedent was killed did not preclude recovery from the tortfeasor's administratrix. This case was brought under the wrongful death statute. The case of Fla. E.C. R.R. Co. v. Hays, supra, was cited with approval.

Counsel for appellee have called our attention to Kahn v. Wolf, 151 Fla. 863, 10 So. 2d 553. In that case the plaintiff sought to recover damages growing out of the collision of two automobiles, the injured party being an occupant of one of the cars and claiming that the injury was caused by the driver of the other car which belonged to the defendant's testator. As we see it, the wrongful death statute was not involved in that case, nor could it have been. The plaintiff who was injured did not die, but the owner of the automobile, whose driver's negligence constituted the cause of action, died before the institution of the suit. It was claimed by the appellant that the plaintiff in the court below should not have. prevailed because the case was not instituted until after the death of the owner of the automobile. This court held otherwise. The rule laid down in the Waller case, supra applied.

Counsel also cite the case of Haverty Furniture Co. v. McKesson Robbins, Inc. 154 Fla. 772, 19 So. 2d 59. In that case, the action was brought and was still pending when the injured party died from causes entirely separate and apart from the accident in which he was injured, or the effects thereof. So the death by wrongful act statute could not possibly have been applicable. We do not think that this cause can be of very much comfort to either side in the case at bar. It involved the statutory assignment to the employer of a right of action for a negligent injury to an employee. No administrator was involved. The suit was brought under the provisions of the workmen's compensation act by virtue of which the assignment of the cause of action became legally effective. However, the court did not hold in that case that under section 45.11 Fla. Stats. 1941, the action for personal injuries to the employee survived. The action was commenced during the life time of the injured party by the employer acting under the authority of Section 440.39 F.S. 1941, which clearly authorized the bringing of the action. We held that the subsequent death of the injured employee, after the suit was brought, did not abate the action; and that the right of action which had been assigned to the employer under the statute, and the action for personal injuries which had already been brought, survived the death of the injured party. For the reasons above pointed out, my conclusion is that our former opinion in so far as it conflicts with the above opinion, be modified and that our former judgment be changed from one of conditional affirmance, to one of reversal.

THOMAS, J., concurs.