All the members of the Court are of the opinion that under the law of this State the plaintiff below may maintain an action against the administrator of the alleged tort feasor to recover damages for injuries to plaintiff's dwelling house caused by the tortious act of the administrator's decedent in his lifetime.
"A personal injury to a married woman caused by the tort of a third person gives rise to two causes of action; one for her personal pain and suffering, and the other for the husband's consequential loss of her society and services and for expense incurred for medical attention and nursing." 30 C. J. 961, 966.
At common law a husband had a right of action to recover damages for the impairment of his wife's capacity to render marital service to him caused by the tortious act of a third person; but such right of action abated at the death of the tort feasor, 1 C. J. 203. The organic law and statutory enactments of this State are inconsistent with the rule of the common law that such action does not survive the tort feasor, and because of such inconsistency, the common law rule is not in force. See Section 87 (71) C. G. L.
The effect of the statute, Section 4211 (2571) C. G. L. which is designed to modify the injustice of the common law, is to authorize the husband to maintain an action against the administrator of a tort feasor who in his lifetime *Page 1049 by tortious personal injuries to the wife impaired her capacity to render marital services to her husband.
The tort charged here is not one of the four classes of personal injuries which under the statute "shall die with the person". The purpose of the statute being to change the common law the quoted words mean that actions for the enumerated personal injuries shall not survive the person injured. Here the alleged tort feasor has died but the injured person is alive as is her husband who loses her marital services because of personal injuries to her by the deceased tort feasor.
Section 4211 C. G. L. provides that actions for enumerated classes of personal injuries "shall die with the person", and that "all other actions shall and may be maintained in the name of the personal representatives of the deceased," which latter quoted phrase, considered with the preceding provision of the Section, means that all other actions for personal injuries than those stated in the statute, shall survive and may be maintained in the name of the representatives of the deceased. If an action, or a cause of action survives, it may be maintained by and against appropriate parties as may be provided by law. The intent of the laws of this State is, as expressed in an organic provision, that every person for any injury done him shall have remedy by due course of law. The injury to the plaintiff here is to his wife, to his home and to his property; and the law contemplates that for such injuries he shall have remedy in damages recoverable from the tort feasor's property, by due course of law, that right and justice may be done. Section 4, Declaration of Rights.
In Close v. Cunningham, 99 Fla. 1099, 128 So. 2d 429, a decision that an action for personal injuries abated at the death of the defendant wrong-doer, was affirmed upon the theory that prior decisions of this court in the Chappell and Townsend cases had construed Section 4211 (2571) Compiled General Laws, first enacted in 1828, to *Page 1050 abate all actions for personal injuries at the death of either the person injured or the person who committed the injury, which was the common law rule stated in Jacksonville St. Ry. v. Chappell, 22 Fla. 616, 1 So. 2d 10; 1 C. J. 195.
The statute, Section 4211 (2571) C. G. L. provides that "all actions for personal injuries shall die with the person, towit: assault and battery, slander, false imprisonment, and malicious prosecution; all other actions shall and may be maintained in the name of the representatives of the deceased." The first part of this Section means that actions for the enumerated classes of personal injuries, shall die with the person injured, not that such actions for personal injuries shall die with the tort feasor if the person injured be living. See Brill v. Jewett, 262 Fed. 935; Gregin v. Brooklyn C. R. Co., 75 N.Y. 192. The statute was doubtless designed to modify and not to restate the common law rule. A statute adopts as the common law of this State the common law of England, provided it "be not inconsistent with the constitution and laws." Section 87 (71) Compiled General Laws, originally enacted in 1829. See also Section 6, Article 16, Constitution of 1838, Section 5, Article XVI, Constitution of 1861; Section 6, Article XVI, Constitution of 1865. To abate an action for personal injuries because of the death of the tort feasor may fairly be regarded as inconsistent with the laws of this State, therefore, that rule of the common law is not in force in this State. See S. F. W. Ry. v. Geiger, 21 Fla. 669; Hadley v. City of Tallahassee,67 Fla. 436, 65 So. 2d 545. An interpretation that the statute, Section 4211, C. G. L. abates the enumerated actions only upon the death of the injured person, accords with a provision of the Constitution of 1885 that "every person for any injury done him * * shall have remedy, by due course of law," etc. Section 4, Declaration of Rights. When the Chappell and Townsend cases were decided the Constitution of 1868 *Page 1051 then in force did not contain the above quoted organic provision, though it was contained in the Constitutions of 1838, 1861 and 1865.
BUFORD, C.J., AND ELLIS, TERRELL AND DAVIS, J.J., concur.
BROWN, J., concurs in part and dissents in part.