Florida Dairies Co. v. Rogers , 119 Fla. 451 ( 1935 )

This writ of error is to a judgment secured in the Circuit Court of Dade County in favor of Mrs. C. R. Rogers, defendant in error, against Florida Dairies Company, plaintiff in error, for the wrongful death of a minor son.

These are the pertinent facts: Florida Dairies Company was engaged in the business of selling and distributing dairy products in the City of Miami. April 15, 1932, Emory Rogers, a minor, sixteen years of age, was riding on one of the milk trucks of plaintiff in error when it collided with an automobile at North West Second Avenue and 62 Street, as a result of which accident Emory Rogers sustained injuries from which he died April 27, 1932. A common law action was seasonably brought resulting in verdict and judgment for $10,000, to which the instant writ of error was prosecuted.

No question was raised on the pleadings so we do not discuss or state them. The first question we are confronted with is whether or not in a tort action by a mother for the wrongful death of her minor son a charge is fatally defective if it charges the jury upon the elements of damage on which their verdict may be predicated, but fails to instruct them to reduce the verdict to its present value.

This question was based on the following charge:

"The Court further charges you that if you find that the plaintiff is entitled to damages, you may, in determining the amount of damages for her mental pain and suffering caused by the death of her minor child, consider the loss of the plaintiff of the child's society and of the hope for its future life and for the comfort and inspiration to the plaintiff that she would receive while the child lived, in fixing and determining the amount of damages."

The rule is settled in this state that if a litigant recovers damages for future or anticipated injuries such damages should be reduced to their present value and the present value only should be included in the verdict. Florida East Coast R. Co., v. Lassiter, 58 Fla. 234, 50 So. 2d 428; Seaboard Air Line v. Watson, 94 Fla. 571, 113 So. 2d 716; Florida East Coast R. Co. v. Young, Fla. 541, 140 So. 2d 467.

This rule is predicated on the theory that if one recovers money in the present for some future tort or injustice done him he has the use of the money in the meantime and having such use the amount of the allowance should be reduced to what it is now worth. For this reason such a charge becomes very important and failure to include it makes a charge like that here objected to fatally defective.

The second assignment is predicated on the theory that plaintiff should not be allowed to recover because the defendant had promulgated rules and regulations prohibiting its truck drivers from taking on helpers and that in taking Emory Rogers on his truck as a helper the driver exceeded his authority.

This is a perfectly sound objection and if supported by the record would be a complete answer to the judgment. It is admitted that the defendant some two years before this accident in question promulgated and published rules prohibiting its truck drivers from taking on helpers. It is also true that said rules were posted in all the trucks in plain view but if we may judge from the record the rule was more honored in the breach than in the keeping.

It is shown that the defendant had twenty or more of these trucks, that while it had a regulation prohibiting the drivers from taking on helpers from the time the regulation was adopted it was a practice for the drivers to employ helpers and carry them on the trucks. It is also shown that this was common practice with the drivers, that the boys frequently got on the trucks at the plant in the presence of the employers, that the employers in charge of the plant were bound to have known of this practice, that Emory Rogers had been a helper on the truck from which he fell and was injured for six days, and that he had previously for months worked on one of the other trucks of the defendant. From the whole record it appears that there was little or no effort to comply with the regulation after it was promulgated.

It is elementary that a principal is not bound by the acts of his agent when the agent exceeds his authority but this rule does not apply where the principal conducts his affairs in such a way as to lead third parties to reasonably conclude that his agent is acting within his authority. Florida Southern R. Co. v. Hirst, 30 Fla. 1, 11 So. 2d 506; Hayes v. Pine State Creamery,195 N.C. 113, 141 S.E. 340; Lebatt on Master and Servant, Vol. 3, page 3008, Section 1138.

To avoid liability for his servants' negligence it is not enough to make a rule of conduct and proceed to forget it, He must see that it is obeyed. Selden-Break Const. Co., et al., v. Linnett, 38 Okla. 704, 134 P. 956; McNee v. Coburn Trolley Track Co., 170 Mass. 283, 49 N.E. 437. For these reasons we do not think that the fact of having promulgated a rule to prevent drivers on its truck from employing helpers can avail the defendant any comfort in this case.

In view of this disposition it becomes unnecessary for us to discuss the other assignments of error. Suffice it to say that under the facts presented we think the judgment was excessive. It is difficult to arrive at a proper measure of damages in such cases as this. It would be idle to contend that the loss of a child or parent could be compensated for in money, any award in such a case is highly speculative, but the courts, in view of governing statutes, have approved reasonable damages, the fact of what is reasonable to be governed by the facts in each case. In view of the facts here and the trend of decisions in like cases the verdict was exorbitant.

The judgment is accordingly reversed.

Reversed.

WHITFIELD, C. J., and ELLIS, J., concur.

BROWN, J., concurs in the conclusion.

BUFORD, and DAVIS, J. J., dissent.