Duval v. Hunt (34 Fla. 85, 1894)

Taylor, J.:

This is an action for death by wrongful act under' the provisions of the statute of February 28th, 1883, (Chapter 3439), and is the first case of the kind presented in our court. Had the declaration been demurred to we have no hesitancy in saying that we would have been compelled to hold that it was entirely insufficient in its allegations as to the negligence charged against the defendant. While it is not necessary in a declaration to set out in minute detail all the facts that tend to establish the negligence complained of, yet it is requisite, in all oases of this kind, to allege facts sufficient to point out the wrongful act of commission or omission that constitutes the negligence relied upon for recovery, in order that the defendant may know what he is called upon to answer, and that the court may be able to say, upon the pleading, whether that which is set up' and relied upon as negligence constitutes negligence in law. The declaration here does not come up to this rule, but alleges negligence in such general terms as to amount to the assertion of a bare conclusion of law, without pointing out any wrongful act of commission or omission on the defendant’s part that constitutes such negligence. "Walsh vs. Western Railway of Florida, decided at the present term. So far as the negligence of the defendant is concerned, the parties, plaintiffs and defendant, seem to have postponed the allegata of the case to be evolved with the probata thereof, out of the evidence submitted at the trial. The case, as made by the proofs, is, briefly, as follows: Ann B. Hunt, the mother, with her three unmarried daughters, Annie V., Catherine H. and Sarah A., and her grand-child, ‘Celia M. Hunt, and her son, William J. Hunt, the deceased, all lived together at Callahan, Florida. William J. Hunt, the son, was thirty-five years of age at the time of his death, was unmarried, and had been for years contributing his wages to the support of his mother, sisters and niece above named. At the time ■of his death he was in the employ of the defendant receiver, in the capacity of section master or foreman of a squad of section hands on the Florida Railway and Navigation Company’s line of road. He had occupied the position of section master for three or four years, and, prior to his promotion to that position, had, for many years, been in the employ of the said road as a common laborer or shoveller. At the time of his death he received wages at the rate of $42.50 per month. On the 21st day, of September, 1888, the defendant receiver, through his employe, C. W. Burroughs, as assistant road master, was engaged with an engine and. some twenty or more flat cars distributing steel rails along the road to renew the old ones. At a station called Crawford, in the afternoon of that day, the deceased, William J. Hunt, came up with his squad of section hands, in obedience to the orders of Burroughs, to go with the train to his section, distant about a mile, there to distribute rails from said train. This construction train waited at'Crawford on a side track for some time until after the passage of a passenger train. Burroughs, the assistant road master, had charge of the construction train and its movements until he left it at Crawford to take the passing passenger train, when he left it in charge of one Hogan, as conductor; but before leaving, because of delays in unloading experienced in removing the stanchions that held the rails on the flat cars, he ordered William J. Hunt to remove the middle stanchions from the cars while they were standing there at Crawford waiting for the passenger train to go by. Hunt, in obedience to this order, while the train was standing at Crawford, in the day time, took part with his own hands in driving out the middle stanchions from the car upon which he afterwards rode,, and upon which he was killed, leaving-only four stanchions in all to secure the rails with which the car was loaded, one of them located near each of the four corners of the car on the sides. There is no proof that the stanchions were removed from any other car in the train but this one from which Hunt himself removed them. After the passenger train went by, the construction train pulled out. Hunt, with several others, voluntarily rode upon the oar from, which he had removed the stanchions. After going about half a mile, while the traiu was running at the rate of from 6 to 8 miles per hour, and after it had become dark, the front end of a rail on the car worked out from behind the stanchion on the right hand front end of the car, and fell to the ground, while the other end of the rail remained upon the car; the motion of the •car poised it in an upright position on the ground, and it fell back upon the car from which it first fell, and struck Hunt, killing him instantly. The uncontradicted evidence of one of the witnesses for the plaintiffs is that, while Hunt was engaged in removing the stanchions, he (the witness) called his attention to the •danger there was in so doing. To which Hunt replied that “it was orders.” The proof fails to show the age •of Ann B. Hunt, the plaintiff mother, but does show that two of the plaintiff sisters are over twenty-one years of age, and that the other plaintiff sister is twenty years old, and that the plaintiff niece, who sues by next friend, is sixteen years of age; that all of them except the mother are strong ancf healthy, and able to do various kinds of remunerative work, and that one of the adult sisters, since Hunt’s death, is earning $8 per month, and another one of them $12 per month. The proof shows further that the father of the plaintiff niece is still living, and is strong and healthy, and engaged in business, and that he is sober and industrious. Ann B. Hunt, the grand-mother of this child, took her to live with her when she was quite young, on the death of her mother.

Before taking up the main points of the case we will dispose of a preliminary question upon which error is assigned. Before pleading the defendant moved to •qnasli the writ of summons and to dismiss the cause upon the ground that the suit was by a next friend, ■and no bond or security had been given by the next friend to secure the faithful appropriation of the amount that might be recovered. This motion the court overruled, and, we think, with propriety. The record shows that the Judge required such bond to be given, and we find that the next friend did execute and file the requisite bond; but even if such was not the case, the omission by the next friend to give the statutory bond for the faithful application of the proceeds of the suit, if it could ever avail a defendant as a legitimate ground for quashing the writ, or for dismissal of a suit, under any circumstances, could not in this case have justified the dismissal of the suit, as to all of the plaintiffs, but only as to the one of them represented by next friend.

Our statute (Chapter 3439, approved February 28th, 1883), granting the right of action for damages resulting from death by wrongful act, though similar, in its 'main features, to the original English statute (9th and 10th Victoria, C. 93), passed in 1846, popularly known as “Lord Campbell’s Act,” and to the statutes on the same subject adopted by the various American States, differs essentially from all of them in respect to the persons to whom the right of action is given, and, much more pointedly, confines the recovery to the damages that the party or parties entitled to sue have sustained by reason of the death. The provisions of our statute, necessary to be noticed, are as follows: ‘•Section 1. 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 by the wrongful act, negligence, carelessness or default of any corporation, or by the wrongful act, negligence, carelessness or default of any agent of any corporation when acting in his capacity of agent of such corporation, and the act, negligence, carelessness- or default is such as would, if death had not ensued, have entitled the party injured thereby to maintain an action for damages in respect thereof, then and in every such case the person or persons who, or corporation which,' would have been liable in damages if death had not ensued, shall be liable to an action for damages, nonwithstanding the death shall have been caused under such circumstances as make it in law amount to a felony.” “Section 2. Every such action shall be brought by and in the name of the widow or-husband, as the case may be, and where there is neither a widow or husband surviving the deceased, then the-minor child or children may maintain an action; and where there is neither a widow or husband, or minor child or children, then the action may be maintained by any person or persons dependent on such person killed for a support; and where there is neither of the-above class of persons to sue; then the action may be maintained by the executor or administrator, as the-case may be, of the person so killed; and in every such action the jury shall give such damages as the party or parties entitled to sue may have sustained by reason of the death of the party killed; provided that any action instituted under this act, by or in behalf of a person or persons under twenty-oné years of age, shall be brought by and in the name of a next friend.” The original English, or Lord Campbell’s Act, and the majority of the State statutes, give the right of action in the first instance to the executor or administrator of the deceased for the use of the person beneficially interested; but'our'Florida statute gives the right of action in such cases (1st) to the widow or husband, as the case may be; and, if there be neither of these, then (2nd.) to the minor child or children; and, where there is neither a husband, or widow, or minor child, then (3rd) to any person or persons who are dependent for a support upon the person killed; and,[if there is no one belonging to either of the above three classes, then (lastly) to the executor or administrator of the person killed. From the terms of our statute itself, and by the judicial construction placed upon similar statutes, the existence of th aright of actionin any of these named classes of persons, commencing with the second class above, is wholly dependent upon the fact whether there is any person in esse belonging to any of the classes who are given by the statute the precedent right over him to maintain the action. For example, if there is in existence a legal widow of the deceased, then she alone has the right of action, and no right of action vests in either minor children, dependents or personal representatives; and if there is neither husband or widow, but a minor child, such minor child would alone have the right to recover, and dependents, as such, and personal representatives would not have any right to recover. The existence or non-existence of any one having the precedent right of action under the statute, enters into the very substance of the right of action itself when instituted by any of the named classes of persons after the first; and when the suit is brought by any of these classes, except the widow or husband, the declaration, in order to show a cause of action, should affirmatively show the non-existence of any other person having aprecedent right of action over the plaintiff under the statute. Barker vs. Hannibal & St. Jo. Ry. Co,, 91 Mo., 86; Gibbs vs. City of Hannibal, 82 Mo., 143; Tiffany’s Death by Wrongful Act, sec. 116, and citations.

As the ages of the plaintiffs in actions of this kind, and other circumstances connected with tjieir individuality, enter so closely into and become such a material factor' in regulating the