While the principles of natural justice would seem to support an action of this kind, and require the administrator to be held liable to answer out of the decedent's estate for the wrongful acts committed by him in his lifetime, to the injury and damage of another, regardless of whether the estate of the wrong-doer had been thereby increased or not, courts are not generally warranted in grounding their decisions upon their ideas of natural justice, where such ideas are in conflict with established law. It is the prime function of the court to fairly and reasonably interpret the law as it exists, leaving it to the legislature to make such changes or amendments as new conditions or a more enlightened understanding of right and justice may require. Our duty therefore in this case is to determine whether the court below was correct in sustaining the defendant's demurrer to the plaintiff's declaration in this case under the law existing at that time, correctly and reasonably interpreted.
At common law, where a cause of action, sounding in tort, for injury to either the person or property of another, was such that it could be enforced only by an action ex delicto for damages, in which the plea of the general issue must be "not guilty," such cause of action did not, as a general rule, survive the death of the person to or by whom the wrong was done; so that such a cause of action, or a pending action thereon, abated on the death of either party. But by the early English statutes of 4 Edward III c. 7 and 31 Edward III, c. 11, which constitute a part of the common law of this State, this rule was so modified as to *Page 1052 give an action in favor of a personal representative for certain injuries to personal property. And later by statutes 3 and 4 William IV, c. 42, Sec. 3, the common-law rule was further modified by giving an action in favor of the personal representatives for injury to real estate, and against the personal representative for injury to real or personal property, but none of these statutes changed the common law rule as to injury to the person. Furthermore, it might be observed here, the English statute last referred to, 3 and 4 William IV, c. 42, Sec. 3, was adopted some fifty odd years subsequent to the year 1776, and hence did not become a part of the common-law of England adopted in this State by the act of November 6, A.D., 1829, now Sec. 87 Comp. Gen. Laws. This Florida Statute, originally adopted by the territorial legislature of Florida, and later by the State legislature, adopted the common and statute laws of England, of a general and not a local nature, down to the 4th day of July, 1776, insofar as they were not inconsistent with the constitution and laws of the United States and the statutes (and necessarily by implication, also the constitution) of this State.
It is not here necessary for us to discuss the status of the common-law with reference to the survival of actions or causes of actions, ex contractu, for it is plain that the declaration in the case at bar is founded, not upon a contract express or implied, but upon a tort, pure and simple, and is an action exdelicto, to which the plea of general issue would necessarily be a plea of "not guilty".
In support of the above propositions with reference to the common-law, see 1 C. J., 153, 134-185; 1 Rawle C. L. 29-35; Jacksonville Street Railway Company v. Chappell, 22 Fla. 616,1 So. 2d 10; Jones v. Townsend, 23 Fla. 355, 2 So. 2d 612; Close v. Cunningham, 99 Fla. 1099, 128 So. 2d 429; 5 Encyc. Pldg. and Prac. 805, 806; U.S. v. Daniel, 6 How. II, 12 Law Ed. 323; Wynn v. Tallapoosa County Bank, 168 Ala. 469, 53 So. 2d 228; Sullivan v. Associated Bill Posters, *Page 1053 6 Fed. 2d 1000, 42 A. L. R. 503; Fla. Com. Law Pldg. Prac. Crandall, Sec. 10.
In the opinion in the last cited case, the following appears:
"Sir Frederick Pollock, in his Work on Torts, 11th ed. p. 61, discussing the effect produced on liability for a death of either the person wronged or the wrongdoer, declares it to be one of 'the least rational parts' of the law; and he also declares that 'when once the notion of vengeance has been put aside, and that of compensation substituted, the rule 'actio personalis moritur cum persona' seems to be without plausible ground. First, as to the liability, it is impossible to see why a wrongdoer's estate should ever be exempted from making satisfaction for his wrongs. It is better that the residuary legatees should be to some extent cut short than that the person wronged should be deprived of redress.' The same writer, on page 71, after stating the rule that the right of action survives against the executor in cases where the decedent has added to his own estate property or the value or proceeds of property belonging to another, states that the rule is 'limited to specific acquisitions' of their value. It does not include the recovery of damages, as such, for a wrong, though the wrong may have increased the wrongdoer's estate in the sense of being useful to him or saving him expense."
We think it is plain therefore, that at common-law as it existed in A.D. 1776, the cause of action stated in the declaration in the case at bar, not only in so far as it is based on personal injuries, but also for the injury to plaintiff's real property, would not have survived the death of the wrongdoer, even if a suit had been brought before his death, in which case the action would have abated; nor, under the common-law, would such cause of action have survived so as to authorize a new suit by the injured party or parties against the personal representative of the deceased tort feasor.
It remains however, for us to consider whether the common-law was so changed and modified by the act of November *Page 1054 23, 1828, Sec. 30, now appearing, in substantially the same language as the original act, as Sec. 4211 of Comp. Gen. Laws, as to authorize the institution and maintenance of such a cause of action for either the personal injuries to the wife or the damage done to the real estate, or for both, against the administrator of the deceased tort feasor, such as is contained in the declaration in this case. This section as it appears in the Compiled General Laws of 1927, after being italicized by me, reads as follows:
4211. (2571) SUITS FOR PERSONAL INJURIES. — All actions for personal injuries shall die with the person, to-wit; 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. (Nov. 23, 1828, Sec. 30).
In the case of Jacksonville Street Railway Company v. Chappell, 22 Fla. 616, 1 So. 2d 10, decided in the year 1886, it was held that this statute did not change the common-law rule as to actions for personal injuries, and that the action in that case, which was in tort to recover damages resulting from personal injuries received by a passenger through the negligence of a common carrier, abated on the death of the plaintiff, and could not be revived by his personal representative.
In Jones v. Townsend, 23 Fla. 355, 2 So. 2d 612, decided in 1887, it was held that under the common-law and the statute above quoted, the right of action for libel dies with the plaintiff, and the action can not be revived in favor of his personal representative. In the opinion of MR. JUSTICE RANEY in that case, it was said:
"Turning to the act of November, 1828, and taking a general view of either the whole of Section 30, or of it and Section 28, we are satisfied that the purpose of the Legislature was simply to provide that all actions for personal injuries should die with the person, and that all other actions should survive. The enumeration (immediately after the plain and broad declaration that hereafter *Page 1055 all actions for personal injuries shall die with the person, of only some of those personal injuries actions for which did so die at common-law, does not show an intention that the general declaration of the act should be qualified by such enumeration; particularly does this seem to be the case when we find, immediately following, the positive declaration that all other actions shall be maintained in the name of the representative of the deceased. Suppose we assume that the framer of the bill at the time of drawing it could recall no other personal injuries, the right of action for which died with the person, is it not still plain that his purpose was to provide that all actions for personal injuries, whatever the injury, should so die? Is this real intent to be defeated by an omission in the enumeration of the injuries? Looking at the entire language of this section 30, we must either hold that the injuries stated were given as examples, or, which we cannot well do, that the Legislature was ignorant of the common-law, and if we make the latter assumption there is still a clear intent that all actions for personal injuries should die. To hold that the enumeration controls the plain and strong declaration of the section is to give the statute an effect contrary to the plain sense of all other expressions of the section, and to expound it neither according to its letter, considered as a whole, nor its evident meaning. In view of the language preceding the 'to-wit'; the intention was clearly one reaching all actions for personal injuries, and if we should even say that the understanding of the Legislature was that the injuries enumerated were all those which at common-law ceased to be actionable on the death of the person was not the intent of the Legislature, still that all actions for personal injuries should die? Is not an intention to enumerate all, though not carried out, to be sustained where the other language of the statute shows clearly that there was such intention. A thing which is within the object, spirit and meaning of a statute, is as much within the statute as if it were within the letter of it. Potter's Dwarris, p. 179. An action based on a libel or other personal injury not enumerated is as much within the meaning, and even the letter of this act, looking at its context, as one based on slander or other enumerated wrong. Judges are to look *Page 1056 at the language of the whole act, and if, upon a view of the whole, they can collect from the more large and extensive expressions the real intent of the Legislature, it is their duty to give effect to the larger expression, though there be in a particular clause of the act an expression not so large or extensive as those used in other parts."
In Close v. Cunningham, 99 Fla. 1099, 128 So. 2d 429, the plaintiff brought as action for personal injury alleged to have been caused by the negligent operation of a motor truck, and while the case was pending, the defendant died. It was held in that case that under said section 4211 the action died with the person and could not be revived against the personal representative of the deceased defendant. The judgment of the court below was affirmed, in a Per Curiam opinion, on the authority of Jacksonville Street Railway Company v. Chappell and Jones v. Townsend, supra. In a concurring opinion by the writer, attention was called to the fact that the statute above quoted had been embraced in the Rev. Stats. of 1892, which was adopted by the legislature, and also in subsequent compilations of our general laws, in the light of the construction theretofore placed on it by this court in the two early cases above cited, and that such construction should be allowed to stand; that if any change was adopted, it should be left to the legislature, and not the courts, to make it. It is a well settled principle of law that in the adoption of a code of revision of the law, the legislature is presumed to have known the judicial construction which had been placed on a former statute embraced therein; and therefore the re-enactment in the code of substantially the same provisions as those contained in the former statute is a legislative adoption of the known judicial construction. 36 Cyc. 1168, and cases cited. This court has extended this principle somewhat farther by holding that the adoption by our legislature of the statute of another State had the effect of adopting, as forming an integral part of the same, the known and settled *Page 1057 construction placed thereon by the courts of the State from which it has been adopted, in so far as that construction is not inharmonious with the spirit and policy of our own general legislation on the same subject. This too, is a well settled rule. See Duval v. Hunt, 34 Fla. 85, 15 So. 2d 876; Florida Central, etc. Railway Company v. Mooney, 40 Fla. 17,24 So. 2d 148; Atlantic Coast Line Railroad Company v. Beasley, 34 Fla. 311, 45 So. 2d 761. This rule does not necessarily mean that in adopting or re-adopting a statute the legislature necessarily adopts all of the expressions which may have been contained in the opinion of the court construing it, by way of obiterdictum, dealing with matters not necessarily involved in the decision of the case.
It will be found from a careful reading of the two early cases construing what is now section 4211 C. G. L., Jacksonville Street Railway Co. v. Chappell, 22 Fla. 616, 1 So. and Jones v. Townsend, 23 Fla. 355, 2 So. 2d 612, that it has been definitely decided in this State that an action in tort for personal injuries of any sort is abated by the death of either plaintiff or defendant, and cannot be revived against a personal representative of either; that in such cases, not only the action dies with the person, but the cause of action itself dies, as was the case at common-law.
This tort action was not brought against the wrongdoer during his lifetime, but was brought against the administrator of his estate after his death. Defendant in Error for this reason, contends that the action not having been brought before the death of the wrongdoer, the entire cause of action died; that under the statute only pending actions can survive. The exact question here is not whether such an action, pending at the time of the tort feasor's death, survived, or abated subject to the right of the plaintiff to revive it or bring a new suit against the administrator, but whether the cause of action or, as it is sometimes called, *Page 1058 the right of action, set forth in the declaration, survived the death of the tort feasor, so as to enable the injured party to bring an action therefor against the administrator of the deceased tort feasor. This distinction between the right, or cause, of action, and the action itself, is not clearly made in some of the decisions, text books, or statutes, dealing with this subject. The reason no doubt is, that the action and the right of action generally stand or fall together, and are considered together. For, generally speaking, if the right of action fails or abates, the proceeding to enforce it cannot be maintained and will fail also. And likewise, if the only available form of action by which a right may be enforced, abates, the right of action, for all practical purposes, falls with it. A right without a remedy for its enforcement is an empty abstraction and usually of little or no value to its possessor. In commencing the treatment of the subject of abatement by death, the author of the text in Corpus Juris (1 C. J. 153) says:
"The death of a person in whose favor or against whom a cause of action has accrued may operate to abate the right of action itself, so that no action can be afterward commenced by or against his personal representatives, nor an action brought by or against him before his death revived and continued by or against his personal representatives; and even when a cause of action survives, a pending action thereon may abate on the death of a party. It is proposed therefore to treat together in this chapter both the abatement and survival of causes of action by death without regard to whether an action has already been commenced, and the abatement and revival of pending actions. It will be seen that the two subjects are so closely connected that they can not be separately treated without almost endless repetition."
Surely the legislature, in adopting in 1828 the statute now appearing as section 4211, C. G. L., intended to make some change in the common-law as it then existed; otherwise there would have been no need for the adoption of the statute. And the statute did change the common-law *Page 1059 by providing that all other actions, other than those for personal injuries, should survive. As will appear from a reading of the opinions of this court in Jacksonville Street Railway Co. v. Chappell and Jones v. Townsend, this court construed the first clause of this statute, which reads, "all actions for personal injuries shall die with the person", to be declaratory of the common-law, which was to the effect that all actions, and rights of action, for personal injuries died with the person. So far, the statute was merely declaratory of the common-law concerning actions and rights of action for personal injuries, which was tersely stated by Lord Mansfield when he said that, "the wrong and the wrongdoer die together." So evidently the legislature did not mean merely that all pending actions, suits already brought, should die with the person. And for the same cause it would not be reasonable to hold that the additional clause, reading "all other actions shall and may be maintained in the name of the representatives of the deceased," should be confined to actions pending at the time of the death of the deceased party. I am inclined to the view that in the second clause as well as in the first clause of this statute, the legislature used the word "actions" in a broad, generic sense, intending to comprehend thereby both actions and rightsof action. Thus, in section 4211, C. G. L., where it is said: "Any civil action at law may be maintained in the name of the real party in interest," this manifestly means, not only that the nominal plaintiff may be stricken out and the case proceed in the name of the use plaintiff, but that the real party in interest may commence the suit in the first instance. The legislature did not say that all other actions already begun or pending shall and may be maintained, etc., but it said that "all other actions shall and may be maintained in the name of the representatives of the deceased."
Defendant in Error, in addition to contending that the statute applies only to pending suits, also contends that *Page 1060 such "other actions" may only be maintained by, and not against the personal representative of the deceased. This contention is not tenable. In 1 C. J. 177, it is said: "Where by statute an action survives against the personal representative of a defendant, it must also be considered as surviving in favor of the personal representative of plaintiff, even though there is no express provision to that effect." See also Brill v. Jewett, 262 Fed. 935.
Defendant in Error further contends that while statutes intended to aid the survival of actions, being remedial, are to be liberally construed, statutes in aid of the survival ofcauses of action, being in derogation of the common-law, are to be strictly construed; citing among other cases, Wynn v. Tallapoosa Bank, supra. It is said in 1 C. J. 177, that this holding is not in accordance with the weight of authority. But our controlling purpose is to ascertain, from the language of the statute, construed in the light of the harsh background of the common-law, of this particular subject, what the legislature really intended by the language used in its enactment; and certainly it must have intended to make some change and afford some relief from the then existing rigor of the common-law governing such subject. In the opinion of MR. JUSTICE RANEY, in Jones v. Townsend, he said: "Turning to the act of November, 1828, and taking a general view of either the whole of section 30, or of it and section 28, we are satisfied that the purpose of the legislature was simply to provide that all actions for personal injuries should die with the person, and that all other actions should survive." Construing this language in the light of the other language in the opinion, it is quite plain that JUSTICE RANEY meant not only pending actions, but rights of action as well. Thus in the early part of the opinion he says: "If the right of action did not survive to the personal representative of the intestate, the above order should not have been made, and all subsequent proceedings are erroneous." And again *Page 1061 he says: "What innovation or alteration of the common-law can be presumed from the act either to have been 'absolutely required,' or to have been intended, as to the actions or causes of action mentioned, when the language of the act is a mere declaration of what the common-law is as to such actions or causes of action?"
My conclusion therefore is that under the settled construction long since made by this court, said section 4211 means that all actions and causes of action for personal injuries shall die with the person, as at common-law; but that it must also have meant necessarily that all other causes ofaction, as well as pending actions, excepting those for personal injuries, should survive, because it goes on to say that "all other actions shall and may be maintained in the name of the representative of the deceased." If the right to maintain such "other actions" is to be effective, it follows that the causes of action, on which such "other actions" are based, must necessarily have been intended to survive, otherwise there would have been no use to say that: "all other actions shall and may be maintained in the name of the representative of the deceased." In other words, at common-law and under the statute, the cause of action, for personal injuries, died with the person, and necessarily any action that had been brought thereon died with it; neither the action nor the cause of action survived; but, under the statute, all otheractions and also causes of action would survive the death of either of the parties, hence making it sensible and reasonable to say that: "All other actions shall and may be maintained in the name of the representative of the deceased. This construction is not in conflict with our previous decisions.
Eliminating for the moment that part of the declaration which seeks damages for the medical expense occasioned by the injuries to the plaintiff's wife and for loss of her services and companionship, and considering only the allegations as to the wrongful act charged and the *Page 1062 damage thereby caused to plaintiff's dwelling — his real property, the suit in this latter aspect is certainly not a suit for damages for personal injuries, but is one for damages to real estate, and hence, under our statute above discussed, the right or cause of action therefor survived the death of the tort feasor and the plaintiff had the right to bring his action therefor against the tort feasor's administrator. So the declaration contained the statement of a good cause of action in this respect, and the demurrer to the declaration was therefore improperly sustained, inasmuch as a demurrer should not be sustained to a declaration as a whole unless it wholly fails to state a cause of action.
The right of action on the part of the husband to recover for the loss of his wife's services and companionship, as well as for necessary medical and other expenses occasioned by assault and battery or other personal injury committed on her, was recognized at common-law. 13 Rawle C. L. 1416; 30 C. J. 697. And this right is at least impliedly recognized by section 4226 C. G. L. But at common law this right of action in the husband was abated by the death of the wrongdoer, or by the death of the husband. 1 Rawle C. L. 46. There is considerable conflict in the decisions in this country, under the various statutes changing or modifying the common-law rule as to the survival of actions, and causes of action, which it would serve no useful purpose for us to review here. As we have seen, our statute, 4211 C. G. L. provides that all actions for personal injuries shall die with the person. This language is certainly broad enough to cover an action founded on a personal injury without regard to the nature of the damage claimed as arising therefrom. It is true that the loss of the wife's services, for which compensation is sought in this case, did not result from any personal injury to the plaintiff, but it did result from a personal injury to the wife, and this claim for damages is therefore, in effect, an "action for personal *Page 1063 injuries." Manifestly, the injury to the plaintiff's wife, on which his claim for damages for expenses incurred, loss of services, etc., was founded, was an injury to her person and if there had been no personal injury to her there would have been no cause of action accruing to the husband. The language of the statute is not restricted to actions for injuries to the person of the plaintiff. There is nothing in the context to indicate that the words are used in a narrow sense, or that the actions for personal injuries which die with the person are only those brought by the person directly receiving the physical or other personal injuries. Plaintiff in Error contends that the statute should be construed to apply to cases for personal injuries to the plaintiff only, but the words of the statute are, "all actions for personal injuries shall die with the person." Among the Dictionary meaning of the word "for" are "hence; because of; on account of; in consequence of." See Demczuk v. Jenifer,138 Md. 488, 114 A. 475. "At common-law tort actions do not survive, although property rights were incidentally affected." Howard v. Lunaburg, 57 A. L. R. 346; Regan v. Davis, 54 A.L.R. 1073; Ott v. Laufman, 68 Md. 56, 11 A. 580. Per contra, see Hey v. Prime, 197 Mass. 474, 84 N.E. 141, 17 L.R.A. (N.S.) 570. The general question is reviewed in 1 Rawle C. L. 46-47 and some of the leading cases cited, but on account of the varying statutory provisions these decisions are not of much service to us in considering the question under our own statute. In the Chappell case, on page 624, 22 Fla. and page 10 of 1 So., in considering the question and as to whether or not the declaration in that case was in tort or on contract, the court says: "It is true it states as damages, expenses and loss of time, which naturally create a diminution of the intestate's personal estate; this, however, is no statement of a contract, and breach thereof as a cause of action, but only of damage sought to be recovered for in the action." And so it might be said here that while the *Page 1064 declaration in part claims damages to the plaintiff for expenses and loss of his wife's services etc., it is alleged that these damages arose from the personal injuries to plaintiff's wife caused by the tort of the defendant's intestate; and thus the suit remains, in essence, a suit for damages for personal injuries, insofar as this portion of the declaration is concerned, and hence that part of the cause of action died with the wrongdoer. This portion of the declaration was, I think, subject to a motion to strike, or for compulsory amendment. But, as above pointed out, that portion of the declaration claiming damages to plaintiff's real property caused by the alleged wrongful act of the defendant's intestate, is not an action for personal injuries, within the meaning of the statute and such cause of action survived, and constituted a good cause of action against the administrator of the deceased tort feasor, and the declaration not failing to state a cause of action, the demurrer was improperly sustained.
It has been suggested that section 4 of the Declaration of Rights changed or modified the effect of the statute as heretofore construed by this court. My idea is that section 4 of the Declaration of Rights was not intended, of its own vigor, to create any new rights or remedies which were not in existence at the time of its adoption, but was designed to protect the citizen in the use of the courts to enforce such rights and remedies as were recognized by the law at the time of the adoption of the constitutional provision and also such rights and remedies as might thereafter be created by law. It was not intended by this provision of the constitution that the courts should improvise remedies to enforce rights not recognized by law. The language of the constitutional provision is that, "All courts in this State shall be open, so that every person, for any injury done him in his lands, goods, person or reputation, shall have remedy, by due course of law, and right and justice shall be administered without sale, denial or delay." Italics *Page 1065 supplied.) By using the words "due course of law," the constitution means, in my judgment, that the remedy must be one founded upon law, that is, the law existing at the time the remedy is sought to be enforced. As was said in the case of Tibbetts v. Olson, 108 So. 2d 679, "The courts are required to administer rights 'by due course of law'," and that "The State has powers of selection and regulation within organic limitations; and legislative determinations, either as to subjects, or as to regulations, made in the due and orderly exercise of the law making power, are to be regarded asprima facie within the wide latitude of authority and discretion accorded to the law making body, when the enactment is not patently violative of controlling organic law." See headnotes 15 and 16 of the case cited.
While the common-law embraced some imperfections and some harsh features, it was so highly prized by our forefathers that they adopted it by legislative act, insofar as the same was not inconsistent with our own constitution and laws, and our courts showed their high appraisal of the value of the common-law by early adopting the rule that statutes in derogation of the common-law should be strictly construed.
Section 4211 C. G. L., as we have seen, was taken from a statute which was adopted in 1828. It was readopted by the legislature in the revisions of 1892, 1906 and 1920. This statute, in the first clause thereof, expressly says that "all actions for personal injuries shall die with the person," and this particular clause was held by this court in the early cases construing this statute to be "declaratory of the common-law." So if section 4 of the bill of rights is inconsistent with and nullifies the common-law on this subject, it also annuls the express provision of the statute of 1828, so many times readopted by the legislature after this judicial construction had been placed upon it. I cannot believe that such was the intention of this section of *Page 1066 the constitution; nor has it ever before been suggested, so far as I know. Surely, it was within the province of the legislature to enact that all actions for personal injuries shall die with the person, but that all other actions shall survive. That, in effect, was what was done by section 4211 C. G. L.
While I have been very much interested in the able presentation of the contrary view on this subject, I am not convinced that that view is sound, and I am afraid that its adoption would prove a dangerous precedent, a launching forth upon an uncharted sea. Can it be said that it is within the province of the judicial power to say to a litigant, that, on the facts of your case, the legislature has expressly denied you a remedy, but the courts will nevertheless give you one? If the courts can set aside that provision of 4211 C. G. L. which says that all actions for personal injuries shall die with the person, can it not also set aside the statute of limitations where a claim, honest and just in its inception, has been barred by lapse of time? I do not think that section 4 of the Declaration of Rights confers any legislative power upon the courts.
Furthermore, if the majority view, that section 4211 C. G. L. should be limited to meaning that only actions for "assault and battery, slander, false imprisonment and malicious prosecution," die with the person would this avail to change the conclusions reached by the writer in this case? In so far as the injuries inflicted upon plaintiff's wife were concerned, were they not inflicted by an assault and battery?
While I am reluctantly forced to conclude that in so far as the declaration claimed damages based upon the personal injuries inflicted upon plaintiff's wife, it was not authorized by the law. I concur with the majority that the court below erred in sustaining the demurrer to the declaration as a whole, for the reasons above pointed out, *Page 1067 and that the judgment of the trial court should be reversed and the cause remanded.
ELLIS, J., concurs.