Citation Numbers: 25 So. 2d 213, 156 Fla. 735
Judges: SEBRING, J.:
Filed Date: 7/20/1945
Status: Precedential
Modified Date: 1/12/2023
As shown by our previous opinion, it was the then view of the majority of the court that under the pleadings and facts *Page 754 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 *Page 755 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,
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,
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,
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 *Page 758
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,
"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,
The case of Waller v. First Savings and Trust Co., as administrator,
Counsel for appellee have called our attention to Kahn v. Wolf,
Counsel also cite the case of Haverty Furniture Co. v. McKesson Robbins, Inc.
THOMAS, J., concurs.
Florida East Coast Ry. Co. v. McRoberts , 111 Fla. 278 ( 1933 )
Kahn v. Wolf , 151 Fla. 863 ( 1942 )
Close v. Cunningham , 99 Fla. 1099 ( 1930 )
In Re: Moore Estate , 153 Fla. 480 ( 1943 )
Haverty Furniture Co. v. McKesson Robbins , 154 Fla. 772 ( 1944 )
Sinclair Refining Co. v. Butler , 190 So. 2d 313 ( 1966 )
Toombs v. Alamo Rent-A-Car, Inc. , 833 So. 2d 109 ( 2002 )
Parker v. City of Jacksonville , 82 So. 2d 131 ( 1955 )
Perkins v. Variety Children's Hosp. , 413 So. 2d 760 ( 1982 )
Hampton v. A. Duda & Sons, Inc. , 511 So. 2d 1104 ( 1987 )