English v. United States, 204 F.2d 808 (5th Cir. 1953)

This is an appeal from a judgment of the United States District Court for the Northern District of Florida denying plaintiff-appellant a recovery under count two of his complaint.

The complaint was filed under provisions of the Federal Tort Claims Act¹  for damages for the death of plaintiff's minor son, Ralph English, due to the alleged negligence of one of defendant's employees, and is in two counts. In the first count, plaintiff sues individually and on behalf of his wife for damages in the sum of $10,000 for loss of services to their son and for the mental pain and suffering occasioned to them by his death, this claim being based on Section 768.03, Florida Statutes 1941, F.S.A., which permits such recovery by a parent. In the second count, plaintiff sues as administrator of his son's estate for the prospective earnings and savings of said decedent reasonably to be expected, in the sum of $10,000, this claim being based on Section 768.01 and 768.02, Florida Statutes 1941, F.S.A.² 

After defendant had answered, the cause came on for trial before the District Judge and a judgment was rendered awarding damages to plaintiff under count one in the sum of $2,500, and denying recovery under count two. This judgment was later amended in respects not material to this appeal. Plaintiff's motion for a new trial on count two was denied and this appeal followed.

In denying plaintiff any recovery on the second count, the District Judge took the position that Section 45.11,³  Florida Statutes 1941, F.S.A., authorized an administrator to recover the damages suffered by the estate of the deceased that the deceased himself might have received had he lived, and since the decedent was killed instantly and, therefore, sustained no pain and suffering, medical, hospital or other expenses there were no damages which the administrator could recover. And further, that Florida law did not authorize the recovery of the claimed prospective earnings and savings of decedent reasonably to be expected, citing his own decision in the case of Beaven v. Seaboard Air Line Railroad, D.C., 100 F. Supp. 336, as so holding.

It is well settled Florida law that, in actions brought under Sections 768.01 and 768.02, F.S.A., by an administrator, in default of any of the prior claimants named thereon, the measure of damages is the present worth of the prospective earnings and savings that from the evidence could reasonably have been expected, but for the death of the decedent; beginning, in the case of a minor, from the date when he would have become of age.⁴ 

There was no finding nor is it suggested that there survived the deceased any of the persons named in the statute as having a prior right to that of the administrator to sue thereunder. Consequently, unless there is something in the provisions of Section 45.11, F.S.A. which militates to the contrary it is clear that the denial of recovery under count two was improper.

Section 45.11, F.S.A., is a survival of action statute. Recovery by a personal representative thereunder is for the damage suffered by the deceased injured person by reason of the injury inflicted upon him, while Sections 768.01 and 768.02 constitute a wrongful death statute, and recovery by the beneficiaries named therein is for damages suffered by them, not the decedent; the injured party being the estate when the administrator is authorized to sue.⁵ 

Where, as here, the decedent met instant death at the time of the accident there can of course, be no recovery for his damages under Section 45.11, F.S.A. However, since there are no claimants having a prior right, the administrator can properly sue under Sections 768.01 and 768.02, F.S.A., for the damages to the estate, measured as we have previously indicated. Accordingly we are of opinion that the court below erred in holding as a matter of law that the administrator was not entitled to maintain this action and in entering a final judgment denying recovery under count two. The judgment is therefore reversed and the cause is remanded for further and not inconsistent proceedings.

Reversed and remanded.