I concur in the conclusion reached in this case that the rule nisi be discharged and the petition for a writ of prohibition be denied upon the ground that it does not appear that the Circuit Judges of Hillsborough County have acted without their jurisdiction, even though it may be successfully contended that the holding of the Circuit Judges in the case of Sauls v. H.E. Wolfe Construction Company, et al., that the cause of action survived and could be maintained in the name of the administrator of Sauls was erroneous. The principle upon which prohibition is granted is that the court whose action is complained of is acting without its jurisdiction, or is proceeding in excess of it.
The determination of whether an action for personal injuries does or does not die with the person or the tort feasor under Section 4211 C.G.L. 1927, is a matter within the jurisdiction of the Circuit Court to determine, and however it may be determined the decision may be made the basis of a writ of error. State v. Railroad Com'rs, 79 Fla. 526, 84 South. Rep. 444; State v. Board of Trustees, 102 Fla. 219, 135 South. Rep. 781; Joughin v. Parks,107 Fla. 833, 143 South. Rep. 145, 147 South. Rep. 273, State v. Whitney, 66 Fla. 24, 63 South. Rep. 299; State v. Freeland,103 Fla. 663, 138 South. Rep. 27.
In the latter case it was held by this Court that where the Court has jurisdiction and in exercising it goes beyond its legitimate powers prohibition will lie to restrain such court to its lawful powers in the premises.
It cannot be maintained successfully that the Circuit Judges in determining that the cause of action survived in this case and could be maintained in the name of the administrator of the injured person went beyond their legitimate *Page 61 power, nor could it be said on the other hand that if the court had decided that the cause of action did not survive and could not be maintained in the name of the administrator of the injured person its action would have been other than an erroneous one, even if this court is determined to depart from the principles laid down in the cases of Jacksonville Street Ry. Co. v. Chappell, 22 Fla. 616, 1 South. Rep. 10; Jones v. Townsend,23 Fla. 355, 2 South. Rep. 612; and Close v. Cunningham, 99 Fla. 1109, 128 South. Rep. 429, wherein the Court construed Section 4211 C.G.L., 1927, which has been the rule in this State ever since its existence.
In the case of Waller v. First Savings Trust Co., 103 Fla. 1025, 138 South. Rep. 780, the question presented was whether the demurrer to the declaration was well taken. The declaration was based upon a tort alleged to have been committed by a man named Hodasz, who, as it was alleged, by the use of a bomb injured the palintiff's house and inflicted injuries upon the plaintiff's wife.
The plaintiff, Waller, brought an action to recover damages for such tort against the First Savings Trust Company, which had been appointed administrator of Hodasz' estate, who died after the commission of the alleged tort. The demurrer was interposed to the declaration by the defendant corporation upon the ground that the cause of action against Hodasz abated at his death and did not survive against the defendant.
It will be observed that Section 4211 of the C.G.L. 1927 provides that 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."
The action was not one for damages for personal injuries *Page 62 to Waller, but one in which he claimed compensation in damages not only for injuries to his wife, but for injuries to his dwelling house. The demurrer addressed to the entire declaration was obviously bad as that so much of the action as depended upon the injury to the plaintiff's dwelling did not die with the tort feasor, as the latter clause of Section 4211, supra, clearly indicates, even if it might be held that the action in so far as it depended upon injury to the plaintiff's wife was enforceable within the common-law rule as defined by the first clause of Section 4211, supra.
So much of the discussion therefore in the majority opinion as attacked the reasoning of this Court in the cases of a Jacksonville Street Ry. Co. v. Chappell, supra; Jones v. Townsend, supra; and in Close v. Cunningham, supra, in which this Court held that so much of Section 4211 as provided that "actions for personal injuries shall die with the person" was a mere restatement of the common-law rule was unnecessary and not essential to a determination of the question before the court.
Mr. Justice BROWN and I concurred in the conclusion reached upon the ground that the demurrer which attacked the entire declaration was bad, holding that an action for damages for injury to the plaintiff's property at least was not an action for personal injuries and the right to maintain it against the administrator was clearly preserved by the latter clause of Section 4211, supra.
Mr. Justice WHITFIELD wrote a concurring opinion in which he seemed to rely upon the case of Brill v. Jewett, 262 Fed. 935, but that was an action arising ex contractu upon a joint obligation where one of the obligors had died and the action was maintained against her administratrix. The case, in my opinion, is not analogous to the one at bar, and if there were any question as to the survival against *Page 63 the administrator it was definitely covered by the latter clause of Section 4211 C.G.L., supra.
The opinion in the case of Jacksonville Street Ry. Co. v. Chappell, supra, was prepared by Mr. Justice RANEY and concurred in by the other members of the Court.
Mr. Justice RANEY was a member of this Court from 1885 and continued so for approximately nine years. During a large portion of the time he was Chief Justice. He was at all times regarded as an able jurist whose carefully prepared opinions constitute a tower of light, kept bright by his excellent mind and constant labor, which has for more than fifty years illuminated the streets and alleys of our judicial ways. I think his reasoning in the Jacksonville Street Ry. Case, supra, has never been answered. Since the rendition of that opinion fifty years ago the Legislature of this State has been in session more than twenty-five times and it has not seen fit to change the rule of the common law as announced in that opinion in the interpretation of Section 4211, supra, which was first enacted in 1828, one hundred and nine years ago.
To change the rule is distinctly and entirely a legislative power and it is no part of the business of this Court to substitute its notion of what is a proper rule of conduct for the legislative will as expressed in its statutes and interpreted by this Court. The Legislature must be charged with notice of the interpretation of the statute by this Court in 1886 and must therefore have been presumed to have been satisfied with it as a rule of conduct in that it has made no effort whatsoever to change the rule.
The dictum contained in the opinion in the First Savings and Trust Company case should not be taken by this Court to overturn a rule of law that has obtained in this State for so long a time and met with the sanction of both legislature and court since then until 1931, when by a divided *Page 64 court the argument in the opinion was seemingly indorsed which sought to overturn that long established rule.
I think, however, that any discussion in this case upon the interpretation of Section 4211, supra, and the opinions of this Court which have heretofore been mentioned is aside from the question, as the Circuit Court of Hillsborough County has clearly not exceeded its jurisdiction in determining the question in favor of those who contend that the cause of action survived and could be maintained in the name of the administrator.