By a former decision rendered on this appeal this court affirmed a judgment of the lower court awarding damages to the personal representative of a deceased person who had received injuries caused by the negligent acts of one of the defendants, resulting in her death. At the time the opinion was rendered a majority of this court was of the opinion that the cause of action upon which the plaintiff was suing was maintainable only under the death by wrongful act statute, and that therefore damages for physical pain and suffering of the decedent prior to her death were not recoverable in the action. See original opinion filed July 20, 1945, 156 (Fla) 760, 25 So. 2d 225. By petition for rehearing the plaintiff below has asked us to reconsider our opinion in the matter, and a rehearing has been granted.
The facts upon which the question now before the court arises are not complicated, and will be stated briefly. On November 16, 1938, Mary Birnbaum was riding as an invited guest in an automobile that was being driven by Mittie Ake, one of the defendants. During the course of travel the automobile was operated in such a manner as to cause it to overturn and Mary Birnbaum was fatally injured. She died ten days after the accident as a result of the injuries inflicted, without in the meantime having instituted suit against the operator of the automobile. Shortly after her death her personal representative brought suit against Mittie Ake and Forrest H. Ake, her husband, to recover damages resulting from the alleged grossly negligent operation of the automobile.
The first declaration in the suit appears to have been framed under the death by wrongful act statute of our state which gives a right of action to certain classes of persons whenever the death of any person is caused by the wrongful act, negligence, carelessness or default of another, notwithstanding the death of the person injured. See Secs. 768.01768.02 Florida Statutes, 1941. We think this a fair assumption *Page 746 because the declaration contains allegations material only to a cause instituted under the death by wrongful act statute and claims items of damages some of which at least are recoverable only under such statute, and it is hardly to be supposed that a skilled pleader will plead facts or make demands in a pleading which are wholly foreign to the basic theory of the case upon which he is proceeding. To make the point plainer, the pleader, after alleging in his original declaration the facts deemed to have constituted the gross negligence of the defendant under the automobile guest statute (Sec. 320.59 Florida Statutes 1941) averred that death resulted proximately thereby; that decedent left surviving no husband, minor child or children, or person or persons dependent on such person killed for support; that plaintiff was the duly appointed and acting executrix of the last will and testament and estate of deceased; and that said estate had lost the increase in the value of which estate as would have accrued had not the gross negligence of the defendant, Mittie Ake, resulted in the death of decedent. The damages claimed in the bill of particulars are for hospital expenses, blood transfusions, nurses and doctors hire, undertaker's charge, cost of cemetery lot, shipping charges for transportation of the body to place of burial, and "loss of services and value in estate of Mary Birnbaum."
Approximately four months after the filing of the original declaration the defendants consented that the plaintiff might file two additional counts to the declaration, which was done. These additional counts apparently departed from the wrongful death theory upon which the original declaration was bottomed and proceeded upon a "survival of the original action" theory; that is to say, that Mary Birnbaum had a cause of action against the defendants prior to her death by virtue of the gross negligence of the latter, and that said cause of action survived her death and was maintainable by her personal representative. See Sec. 45.11 Florida Statutes, 1941.
Something more than four years went by after the filing of these two counts, during which time the suit apparently lay in abeyance — at least no great effort to bring the cause to *Page 747 issue is shown by the record. And then, on April 14, 1944, the plaintiff gained leave of court to file a pleading styled "second reamended declaration." This declaration proceeded exclusively upon the "survival of original action" theory but claimed as the only item of damage "loss of services and value in estate of Mary Birnbaum, $25,000,"' an item, by the way, which, though recoverable by an administrator entitled to sue under the wrongful death statute, is not recoverable by an administrator maintaining a suit under our survival of action statute.
The cause came on for trial on May 17, 1944 on the first count of the second reamended declaration of April 14, 1944 and certain pleas addressed thereto. On the trial date, but before the jury was sworn, the plaintiff asked and procured leave of court to amend the second reamended declaration still further, and to file a new bill of particulars in support of the action.
The amended second reamended declaration upon which the parties finally got to trial alleged the facts constituting the alleged gross negligence of the defendant and that decedent was injured thereby. It contained the averment that decedent died on November 26, 1938, but was silent as to cause of death. It alleged the fact of the appointment of the plaintiff as the executrix of the last will and testament and estate of the decedent but it failed to exclude the existence of a surviving husband, minor child or children, or person dependent upon decedent for support, without which showing there can be no cause of action in the personal representative of the decedent under the death by wrongful act statute. Duval v. Hunt, 34 Fla. 85,15 So. 876; Benoit v. Miami Beach Electric Co., 85 Fla. 396,96 So. 158. Finally it alleged that decedent prior to her death had a cause of action against the defendants for injuries occasioned by gross negligence, and that the cause of action survived the death of decedent and became enforceable by her personal representative. The bill of particulars in support of this declaration claimed damages for "loss of services and value in estate of Mary Birnbaum," hospital expenses, blood transfusions, nurses and doctors hire, ambulance charges, and physical pain, mental anguish and nervous shock to deceased. *Page 748
During the various stages of the pleadings, therefore, there was presented by the plaintiff's pleadings, first, a claim for recovery under the death by wrongful act statute; secondly, a claim under both the death by wrongful act statute, and the survival of action statute; and finally a claim under the latter statute alone. So far as appears from the record, but one objection was ever made by the defendants to this course of procedure, and that, on April 14, 1944, at the time the second reamended declaration was filed. On that date the defendant tendered pleas addressed to said declaration to the effect that the cause of action stated in such pleading departed from the theory of the original cause of action and hence was barred by the three and four year statutes of limitation. The court refused to allow the pleas to be filed. This was a proper ruling, for even though the second remanded declaration did state a cause of action entirely different in theory from that expressed in the original declaration of August 3, 1939, such declaration did not depart from the theory of the case stated in the additional counts of the original declaration which were filed in the suit on December 6, 1939, with the consent of the defendants. Therefore, it could not be said that more than three years had elapsed between the time of the injury to or death of the decedent and the filing of the declaration on the survival of action theory, or that that period of time had elapsed between the time that the first declaration was filed and another different cause of action was projected into the litigation.
Upon these facts we are asked to determine the following question on rehearing: Where a person sustains physical injuries occasioned by the negligent act of another, and such injured person ultimately dies from the injuries inflicted, without having in the meantime instituted suit against the tort feasor, may the personal representative of the deceased institute and maintain suit against the tort feasor for damages to the decedent, or does the original cause of action die with the injured person or become merged in the action which our wrongful death statute authorizes to be instituted by certain expressly enumerated classes of persons for the recovery of damages for the wrongful death of the person killed? *Page 749
Section 45.11 Florida Statutes, 1941 provides: "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." By a line of decisions commencing in 1931 with Waller v. First Savings Trust Co., 103 Fla. 1025, 138 So. 780, and continuing to the present day, this court has construed the statute, so far as its interpretation has been called in question by the particular facts of the cases presented, to mean that except for causes of action for assault and battery, slander, false imprisonment and malicious prosecution, all actions or causes of action in tort for the recovery of purely compensatory damages survive the person and may be brought or maintained by the injured person against the tort feasor or his personal representative. The court has also decided that where the injured person dies during the pendency of a suit instituted by him against such tort feasor or his personal representative, the personal representative of the decedent may be substituted as party plaintiff to maintain the suit, thus saving the case then pending from becoming abated. See Waller v. First Savings Trust Co., supra; State ex rel. Wolfe Const. Co. v. Parks,129 Fla. 50, 175 So. 786; Kahn v. Wolfe, 151 Fla. 863,10 So. 2d 553. But so far as we can find, the court has never been called on to pass squarely upon the proposition whether the personal representative of an injured person who has died before the institution of his suit against the tort feasor may thereafter institute suit on the cause of action and recover the damages which deceased could have recovered had he lived and maintained the action.
The original opinion in this case was decided with the view that such course could not be pursued and that under such a situation our death by wrongful act statute afforded the only remedy available to any person for redress of the wrong and the damages suffered by anyone as a result of the injury inflicted upon the decedent. As it was said in the opinion, "This could not be a survival action under sections 45.11 and 45.12 Florida Statutes 1941, because there was no action pending at the time of the death of the injured person." *Page 750 This expression of the court was but another way of declaring that under the facts of the case disclosed by the record recovery must be had under the death by wrongful act statute, or not at all. Upon a reconsideration of the matter, however, we doubt the soundness of the conclusion reached in our original opinion, and have determined to re-examine the question to see whether or not we have erred.
When physical injury has been done a person by the tortious acts of another person and the injury ultimately causes death two rights have been violated. One is the common law right of the injured person to be secure in his person and his property — a right which has been invaded by compelling such person to endure pain and suffering and to submit to loss of earnings and other pecuniary losses. The other right violated is the right which the family of the deceased had to the companionship, services or support of the decedent, coupled with the expectancy of a participation in the estate which such person might have accumulated had his life not been brought to an untimely end by the infliction of the injury. Two separate and distinct rights or interests have thus been infringed upon by the act of the tort feasor, resulting in damage to such separate rights and interests. The common law afforded no redress for the infringement of either right in case the injury brought about the death of the injured person; for it was the rule of the common law that the tort died with the person. However, under statutes now enacted in virtually every jurisdiction redress is given for the invasion of both interests. In some of the states full redress for all wrongs suffered by all persons, or classes of persons, as a result of the wrongful invasion of legal rights may be had under the wrongful death statute. In other states, in order to obtain full redress to all injured parties, recourse must be had both to the survival of action statute and the death by wrongful act statute of the particular jurisdiction. What is the situation in Florida?
Our death by wrongful act statute provides that "Whenever the death of any person in this state shall be caused by the wrongful act, negligence, carelessness or default of any individual . . . and the act, negligence, carelessness or default *Page 751 is such as would, if the death had not ensued, have entitled the party injured thereby to maintain an action . . . and to recover damages in respect thereof, . . . the person . . . who would have been liable in damages if death had not ensued, shall be liable to an action for damages . . . notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony. . . . 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 widow nor husband surviving the deceased, then the minor child or children may maintain an action; and where there is neither widow nor husband, nor minor child or children, then the action may be maintained by any person or persons dependent on such person killed for a support; and when there is neither of the above classes of persons to sue, then the action may be maintained by the executor or administrator, as the case may be, of the person killed. . . . and in ever such action the jury shall give such damages as the party or parties entitled to sue may have sustained by reason of thedeath of the party killed; . . ." (Italics supplied). See Secs. 768.01-768.02 Florida Statutes, 1941.
It will be observed that the statute gives a right of action to certain statutory beneficiaries for the recovery of damages suffered by them by reason of the death of the party killed; but it makes no provision for the recovery of the damages suffered by the injured person by reason of the injuryinflicted upon him. Nor was the death by wrongful act statute ever intended to afford such remedy. It was not the purpose of the statute to preserve the right of action which the deceased had and might have maintained had he simply been injured and lived; but to create in the expressly enumerated beneficiaries an entirely new cause of action, in an entirely new right, for the recovery of damages suffered by them, not the decedent, as a consequence of the wrongful invasion of their legal right by the tort feasor. See Florida East Coast Ry. v. McRoberts,111 Fla. 278, 149 So. 631, 94 A.L.R. 376; Duval v. Hunt, 34 Fla. 85,15 So. 876; Florida Cent. P. R. Co. v. Foxworth, 41 Fla. 1,25 So. 338, 79 Am. St. Rep. *Page 752 149; Florida East Coast Ry. Co. v. Hayes, 67 Fla. 101,64 So. 504. This being the effect of the death by wrongful act statute, it is readily apparent that unless our survival of action statute (Sec. 45.11 Fla. Stat. 1941) supplies a remedy for the wrongful invasion of the legal right of the person who has suffered the physical injury the wrong must go unredressed — a result certainly not in keeping with the purpose of this type of legislation.
As construed by our decisions, our survival of action statute (See. 45.11 Fla. Stat. 1941) provides for the survival of the cause of action of an injured person in case of his death, and the statute says that such cause of action "shall and may be maintained in the name of the representatives of the deceased." We find nothing in the statute to disclose an intention on the part of the legislature to limit the application of the statute only to cases pending at the time of the death of the injured person. If we were to ascribe to the legislature an intention to so limit the effect of the statute, then there would exist in this state the anomalous situation of the statutes (1) authorizing the institution of suit by an injured person against the tort feasor or his personal representative; (2) authorizing the continuation of such suit to judgment by the personal representative in case the wronged party died pending his suit; (3) granting to statutory beneficiaries under the wrongful death statute the right to bring suit against the tort feasor upon a new cause of action for the recovery of damagesthey may have sustained by reason of the death of the person killed; (4) yet denying to the personal representative of the injured person who has come to his death as a result of the injury, the right to sue upon the cause of action of the injured person — a cause of action which, under the decisions survives the death of such person — upon the ground that such cause of action had become extinguished simply because of the failure to put it in suit prior to the decease. We can not believe that such illogical consequences were intended.
We hold, therefore, that except as to those torts which section 45.11, supra, provides shall die with the person, full redress for the wrong done the injured person may be obtained *Page 753 by the personal representative, in those cases where the injured person has not pursued his cause of action to final judgment; and this without regard to whether suit is or is not pending on the cause of action at the time of the injured person's decease. Any statement in In Re Moore's Estate,153 Fla. 480, 15 So. 2d 55, that may seem to the contrary are hereby expressly overruled. Moreover, to fully settle the whole issue before us, we think it not inappropriate to observe that under section 45.11 supra, the cause of action of the decedent survives to the personal representative regardless of whether the death of the decedent is due to the injuries inflicted or arises from a cause wholly unconnected with the negligent conduct of the tort feasor.
From the conclusion reached it follows that we must now recede from so much of our former opinion and judgment as holds that the cause of action involved may not be prosecuted under our survival of action statute, and that damages for physical and mental pain and suffering of the deceased occasioned by the negligence of the tort feasor, prior to her death, are not recoverable in the action. In all other respects the former opinion and judgment of this court is adhered to.
The testimony in the record shows that Mary Birnbaum lived for a period of ten days after her fatal injury. The jury has awarded a verdict of $7,500, the sum of $6,451.33 being apparently allowed for the physical and mental pain and suffering of the deceased during her lifetime. A majority of the court are of opinion that such award for pain and suffering is excessive, and that a new trial should be awarded on the question of damages only; in all other respects the judgment appealed from should be affirmed.
It is so ordered.
CHAPMAN, C. J., TERRELL, BUFORD and ADAMS, JJ., concur.
BROWN and THOMAS, JJ., dissent.
ON REHEARING GRANTED