State Ex Rel. H. E. Wolfe Construction Co. v. Parks

Chapman, J. On July 13, 1935, plaintiff filed in the Circuit Court of Hillsborough County an amended declaration, in which it was alleged that defendants were the joint and several owners of a motor truck and through their agent on the 18th day of March, 1935, negligently operated a motor truck on the public highways of Hillsborough County, and as a result of the negligent and careless .operation thereof by the agent of the defendants the plaintiff to this suit was struck, bruised and otherwise sustained serious personal injuries. To this declaration the defendant filed several pleas, viz.: first, not guilty, second, denial of the joint and several *51 ownership of the motor truck; and, third, denial of the relationship of master and servant and principal and agent on the part of the driver, and another plea not necessary to set forth. The issues in said cause had been settled and prior to the trial thereof the plaintiff, W. M. Sauls, on February 1, 1936, died. An order was entered by the Circuit Court of Hillsborough County abating the action. After an order of abatement was entered, plaintiff, through counsel, filed a motion suggesting the death of W. M. Sauls, and simultaneously, moved the Court for a revival order thereof in the name of E. N. Blair, as Administrator of W. M. Saul’s estate. The lower court upon due consideration of the motion entered its said order granting the motion to revive and further held that said action survive the death of the then late W. N. Sauls, and further ordered that the action continue in the name of E. N. Blair, Administrator. The plaintiff below in conformity with the order of revival filed a second amended declaration consisting of two counts, the material allegations of which are substantially the same as appeared in the original declaration. To the second amended declaration the defendants filed several pleas, viz.: not guilty, denial of ownership of the motor truck, denial of agency on the part of the driver, and a fifth plea material to the consideration of this suit being in substance: “That W. M. Sauls died subsequent to the filing of said suit and averred that the cause of action on the part of W. M. Sauls, if any he had, died and expired with his said death.” All of the defendants’ pleas were stricken by the court on motion of the defendants, except, the plea of not guilty. The defendants in the pending personal injury suit filed in this Court their petition for a writ of prohibition directed to the Honorable L. L. Parks and Harry N. Sandler, as *52 Judges of "the Circuit Court of Hillsborough County, in: which it was among other things alleged that the" Circuit' Court of Hillsborough County was without jurisdiction to proceed with the trial of said cause in the name of the Administrator of the decedent’s estate because of the death of the said W. M. Sauls and the cause of action expired with his said death and does not survive and can not lawfully be maintained by the Administrator against the relators. . ' The rule to show cause was issued arid served upon the Honorable Judges of the Circuit Court of Hillsborough County and the plaintiff below. The joint and several return of the Circuit Judges as filed in this Court in response to. the rule is a recital of the record of the cause being suggestion of death, abatement order, and the order" of revival and the pendency thereof in ’the court below. No other issues of fact are tendered by said ánswer. The respondent, E. N. Blair, as Administrator of the estate of W. M. Sauls, through counsel, in response to the rule filed a demurrer directed to the petition for a writ of prohibition, and the'grounds of demurrer called into question the legal sufficiency of the petition for writ of prohibition. It seems that this suit can be disposed of by an order on the demurrer. In the consideration of the suit the parties will be referred to as plaintiff and defendant as they appeared in the lower court. The sole question to be settled by this Court is: Did the personal injury suit now. pending in the Circuit Court of Hillsborough County abate upon the death of W. M. Sauls, or does it survive, and, if so, can it be maintained by the Administrator of W. M. Sauls ? An examination of the authorities show that a personal injury suit, similar to the suit at bar, at the com *53 mon law died with the person as established by the following authorities. On November 6, 1829, the Legislature of Florida adopted the common law of England, being Section 87, Compiled General Laws of Florida:. ' “Common Law and Certain Statutes Declared in Force.—The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the fourth day of July, 1776, are hereby declared to be of force in this State: Provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United' States and the Acts of the Legislature of this State.” This Court in the case of Quinn v. Phipps, 93 Fla. 805, text p. 824, 133 So. 419, 54 A. L. R. 1173, in discussing the common law, said: “Our 'Anglo-American legal tradition’ which we term the common law is primarily an English institution. It is not a fixed body of well defined rules embodied in the written records of this or the mother country, but is rather a method of juristic thought or manner of treating legal questions worked out from time to time by the wisdom of mankind. It is a doctrine of reason applied to experience. Its rules were promulgated in feudal times, an age of dense ignorance, crude customs and primitive society, when slight value was attached to life, liberty or property, when commerce was almost unknown and property was of little value. In the time of Henry II the King’s courts became organized and from these local rules or customs began to evolve the common law. By the genius of Coke these rules or customs were remolded into vital pulsating principles and were passed on to the English Colonies in this country where they have by reason and interpretation attained their *54 most complete logical development. We are therefore more essentially a common law country than England herself.” An examination of the authorities generally show that personal actions abate on the death of either party. See Corpus Juris, Vol. 1, page 153, par. 248: ■ “At common law every real or personal action abated on the death of either the sole plaintiff or the sole defendant before verdict and judgment, and this is still the law except in so far as the common-law rule has been modified by statute. And the death of a'party had the same effect, with certain exceptions, where there were several plaintiffs or defendants.” See Vol. 1, Ruling Case Law, pages 20 and 21, par. 11: “At common law every suit, whether founded on contract or tort,. abated by the death of a sole plaintiff or sole defendant and could proceed no further. It absolutely perished. The suit was therefore incapable of revival though originally maintainable for or against the representative of the deceased; it being necessary in case the cause of action survived to bring a new suit. But it was a not uncommon practice, at a time when actions at law, and especially actions ex delicto, were wholly abated by the death of one of the parties, for orders to be entered by the court, either upon the stipulation of the parties or as a condition precedent to the granting of some favor by the court to one or other of the parties.” Also: American Jurisprudence, Vol. 1, pages 67 and 68, par. 76. “At common law, personal rights of action die with the person. This principle is expressed in the maxim, ‘Actio personalis moritur cum persona.’ The rule expressed in this maxim applies whether the death from an injury is instantaneous or not. This principle of law has never been *55 a favorite with the courts, and exceptions were engrafted upon it even before the rules were changed by statute.” Also: page 76, par. 95: “Causes of action for injuries to the person, or, as they are sometimes called, personal injuries, frequently are made by statute to survive. Such a statute includes negligent injuries. Under some statutes such a cause of action survives the death either of the person injured or of the tort-feasor; in others, the operation of the statutes is limited to the death of the injured person. * * * ” Also par. 92, par. 133: “At common law a cause of action for injury to the person does not survive regardless of the form in which it is brought and this is true although property is incidentally affected. This rule finds one of its chief applications in negligence actions. At common-law a cause of action for personal injuries resulting from negligence does not survive the death of either party. ' The English statutes passed in the reigns of Edward III and William. IV, which modified the common-law rule respecting the survival of causes of action for injuries to real and personal property, did not change the common-law rules respecting the survival of the causes of action for injuries to the person. * * *” If the plaintiff has a right to maintain this action, it must be done by virtue of some statutory enactment, as a right to recover for personal injuries at common law died with the person. It will be observed that the Legislature of Florida changed the common law as applied to personal injuries by the enactment of Section 4211 of the Compiled General Laws of Florida: “4211. (2571.) Suits for Personal Injuries.—All actions for personal injuries sháll die with the person, to-wit-: Assault and battery, slander, false imprisonment, and malicious prosecution; all other actions shall and may be main *56 tained in the name of the representatives of the deceased. (Nov. 23, 1828, Sec. 30.)” ■ The question to be settled by this Court turns upon'-.the construction of the above statute. The actions, viz.: assault and battery, slander, false imprisonment and malicious prosecution die with the person and all other personal injury •actions, impliedly other than herein enumerated, do not die with the person. There is no indication of an intention to make any actions survive after the decease of one party and not survive after the decease of the other. In the.-use of the words “shall and may be maintained in the name of rfhe representatives of the deceased,”, it is reasonable to assume that all actions, except the enumerated ones, a.re to survive and be maintained in the name of the representatives of the deceased. ■•'.'This statute was construed in the suit of Jacksonville Street Ry. Co. v. Chappell, 22 Fla. 616, 1 Sou. Rep. 10. It was again considered in Jones v. Townsend, 23 Fla. 355, 2 Sou. Rep. 612, and Close v. Cunningham, 99 Fla. 1109, 128 Sou. Rep. 429; likewise, the Circuit Court of Appeals in the suit of Brill v. Jewett, 262 Fed. 935. In the case of Waller v. First Savings & Trust Co., 103 Fla. 1025, 138 Sou. Rep. 780, being a suit by Waller against an Administrator of-John Hodasz Estate for intentional injuries and damages to his dwelling house by placing a bomb underneath or near the residence and wilfully and intentionally destroying the same; and for pecuniary damages and loss by the ' explosion of- a bomb inflicting thereby serious injuries to plaintiff’s wife, which practically made her an invalid the remaining portion of her life. A demurrer by defendant was filed to the declaration and after due consideration was by the-, lower court sustained. A final'judgment, upon demurrer was entered against plaintiff and writ :of. error was sued out bringing the suit to this *57 Court and the said suit involved the identical question of the construction of Section 4211, supra. An exhaustive and able opinion was rendered by the late Justice Davis, when all previous decisions construing the statute, supra, were fully analyzed and considered. The Supreme Court in reversing the judgment of the lower court in said case used the following language: “A majority of the Court have reached the conclusion that under the laws of Florida a right of action in tort .for the recovery of purely compensatory damages for personal injuries caused by a tort feasor in his lifetime does not die with the tort feasor, but that such right of action which has accrued against the tort feasor in his lifetime, survives after his death, and that an action at law based th'ereon may be brought or maintained by the injured' party against the personal representative of the estate of the deceased tort feasor for the recovery of compensatory damages out of the tort feasor’s estate for the personal wrong and injury done. It is further held that if there is anything to the contrary to be implied from the previous holdings of this Court, such previous decisions to the extent that they conflict with the conclusions reached here, should be disapproved and modified to accord with the conclusions hereinbefore stated.” Mr. Justice Terrell filed a dissenting opinion, and concurred in by Mr. Justice Buford, in the suit of Close v. Cunningham, 99 Fla. 1100, 128 Sou. Rep. 429. The language of the dissenting opinion appears to be in harmony with the 'general trend of survival statutes of the nation. The following language was used: “The sole question brought here for our consideration is whether or not under Section 2573, Rev. Gen. Stats, of 1920 (Section 4211, Comp. Gen. Laws of 1927) an action for personal injuries dies with the person, or may such ah *58 action be revived and maintained in the name of the representatives of the deceased ? “Section 2575, Rev.- Gen. Státs. of 1920 (Section 4211, Comp. Gen. Laws of 1927) is as follows: “ ‘All actions for personal injuries shall die with the person, to-wit: assault and battery, slander, false imprisonment, and malicious prosecutions: all other actions shall and may be maintained in the name of the representatives of the deceased.’ “At common law the right of action to recover for personal injuries caused by the negligent act or omission of another did not survive the death of either party. The disposition of this cause below was based on Jacksonville Street Railway Company v. Chappell, 22 Fla. 616, 1 So. R. 10, wherein this Court deleted the words ‘assault and battery, slander, false imprisonment, and malicious prosecution’ from the foregoing statute and then applied the rule of the common law to it. I think that holding was erroneous. It cannot be gainsaid that the statute is ambiguous yet with all that I think it perfectly apparent that what the Legislature intended was, that any action for personal injuries predicated on assault and battery, slander, false imprisonment, or malicious prosecution should die with the person but that an action for personal injuries predicated on any other ground shall and may be maintained in the name of the representatives of the deceased. The statute in other words applies the common law rule to actions predicated on assault and battery, slander, false imprisonment, and malicious prosecution, but releases that rule as to all other personal injury actions including the one in the instant case. .“I think the purpose of the statute here brought in question was to enlarge the rule of the common law for the survival of actions for personal injuries. For the purpose of merely re-enacting that rule it was necessary. Section 71, *59 Rev. Gen. Stats, of 1920 (Section 87, Comp. Gen. Laws of 1927). This holding is not only supported by the better reasoning but it is in harmony with the trend of survival of statutes in this Country.” See: Michigan C. R. Co. v. Vreeland, 227 U. S. 59, 57 Laws Ed. 417, text p. 420, 33 Sup. Ct. Rep. 192; also par. 89 p. 74 and par. 92 p. 75, Vol. 1, American Jurisprudence. It 'follows that the demurrer should be sustained to the petition, the rule nisi be discharged and the petition denied. Terrell and Buford, J. J., concur. Ellis, C. J., and Brown, J., concur specially.