Jacksonville Electric Company, Plaintiff in Error, v. Wallace G. Bowden, as Administrator of the Estate of Reuben Bowden, Deceased, Defendant in Error, 54 Fla. 461

Whitfield, J. — Wallace G. Bowden,- as administrator of the estate of Reuben Bowden, deceased, brought an action against the Jacksonville Electric Company in the circuit court of Duval county, to recover damages for the alleged wrongful killing of plaintiff’s intestate by the negligent operation of -the defendant’s electric street cars. The declaration -contained five counts alleging different phases of. negligence, each count alleging that the deceased left surviving him neither widow, nor minor child, nor any one dependent on him for a support.

The defndant pleaded the general issue, and that the death of the plaintiff’s intestate was caused solely by his own negligence. A demurrer to the evidence interposed by the defendant was overruled. The jury returned a verdict for $1,000, for which judgment was entered, and from this judgment the defendant seeks relief here by writ of error.

At the trial the court gave the following charge which was duly excepted to by the defendant electric company and is assigned as error: “If you find for the plaintiff it is your duty in assessing the damages to award plaintiff such sum as you find from the evidence, the deceased, Reuben Bowden, would have accumulated during his natural life, taking into account his age, habits, health, mental and physical capacity and ability, his probable life expectancy, his probable net earnings, after he would have reached the age of twenty one years.

The sum total of all these elements to be reduced to a money value and its present worth be given as damages.” Counsel for the plaintiff in error state in their brief that the question presented on this writ of error is: “What is the measure of damages under the statutes of this state in a suit by an administrator to recover damages for the death of his intestate.” And in arguing that the charge above quoted is erroneous it is asserted in the brief that: “if the charge states correctly the measure of damages in a suit of this character, this judgment should be.affirmed.” It is contended that the charge is erroneous because under the peculiar provisions of the statute of this state, the recovery by an administrator for the death of his decedent by the wrongful act of another should be limited to the debts of the decedent at the time of his death, funeral expenses and costs of taking out letters of administration by the administrator.

The right of the administrator of the deceased minor to maintain this action has been adjudicated in Bowden v. Jacksonville Electric Co., 51 Fla. 152, 41 South. Rep. 400; and such adjudication is the law of this case on that point. Louisville & Nashville Ry. Co. v. Jones, 50 Fla. 225, 39 South. Rep. 485; Hoodless v. Jernigan, 51 Fla. 211, 41 South. Rep. 194.

The matters to be determined on this writ of error are the nature, beneficiaries and value of the right given by the statute to an administrator to recover damages sustained by such administrator in his representative capacity by reason of the death of his decedent by the wrongful act or default of the defendant corporation.

The common law afforded no right of action to any one for damages resulting from the death of a person by the wrongful act or default of another, and statutes giving such rights should not be extended beyond the meaning of the terms used; yet such statutes are remedial in their nature, and they should, when sufficient for the purpose, be so construed as to afford the remedy clearly designed. See 12 Cyc. 312, and authorities cited; Gootlieb v. North Jersey St. R. Co., 72 N. J. L. (43 Vroom) 480, 63 Atl. Rep. 339; Perham v. Portland Elec. Co., 33 Ore. 451, 53 Pac. Rep. 14, 24 S. C. 72 Am. St. Rep. 730; Lamphear v.

Buckingham, 33 Conn. 237; Kearney Electric Co. v. Laughlin, 45 Neb. 390, 63 N. W. Rep. 941; Hayes v. Williams, 17 Colo. 465; Stewart v. B. & O. Ry., 168 U. S. 445, 448, 18 Sup. Ct. Rep. 105; Merkle v. Bennington Tp., 58 Mich. 156, 24 N. W. Rep. 776; Bolinger v. St. Paul & D. R. Co., 36 Minn. 418, 31 N. W. Rep. 856; Haggerty v. Central R. R. Co., 31 N. J. L„ 349; Soule v. New York & New Haven R. R. Co., 24 Conn. 575.

Every law should be construed with reference to its subject-matter and the purpose designed to be. accomplished by it, and with reference to other laws in pari materia, though they contain no reference to each other. Morrison v. McKinnon, 12 Fla. 552; Heirs of Bryan v. Dennis, 4 Fla. 445, text 453; State v. Commissioners of Volusia County, 28 Fla. 793, 10 South. Rep. 14; Ferrari v. Board of Health of Escambia County, 24 Fla. 390, 5 South. Rep. 1; Spencer v. McBride, 14 Fla. 403.

The statute provides that whenever the death of any person in this state shall be caused by the wrongful act, negligence, carelessness or default of another person or a corporation or its agent, and the act, negligence, carelessness or default is such as would, if death had not ensued, have entitled the party injured to maintain an action for damages in respect thereof, then the person or corporation that would have been liable in damages if death had not ensued, shall be liable to an action for damages though the act be a felony.

Every such action shall be brought in the name of the widow or husband, and if there be no widow or husband, then in the name of the minor child or children of the deceased, and if there be neither widow or husband nor minor children,’ then in the name of any person or persons dependent on the person killed for a support; and where there are none of these classes “then "the action may be maintained by the executor or administrator, as the case may be, of the person so killed; and in every such action the jury shall give such damages as the party or parties entitled to sue may have sustained by reason of the death of the party killed.” Sections 2342, 2343 Revised Statutes of 1892, sections 3145, 3146 General Statutes of 1906.

Where a person is killed by the wrongful act or default of an agent-'of a corporation while acting as such agent, and the person killed could have maintained an action against the corporation for damages resulting from such wrongful act or default if death had not ensued, the statute imposes upon the corporation a liability for the death. If the person so killed leaves no widow or husband, or minor children or dependent, the administrator of such person may, under the statute, maintain an action for such damages as the administrator as such may have sustained by reason of the death of the decedent.

The widow or husband or minor children or dependents as mentioned by the statute do not represent the decedent or the estate of the decedent, as to rights of action of this character; and the right of action giyen to the widow or husband, minor children or dependents is not a survival of the decedent’s right of action to recover for the personal injury, nor is it an asset of the decedent’s estate; but it is a primary individual asset or right of action and of recovery belonging to the party to whom it is given, to recover for individual uses the damages such party may have sustained by reason of the death of the decedent.

The evident purpose of the statute is to make the right of recovery it gives in the name of and for the benefit of the widow or husband, minor children and dependents no part of the assets of the decedent’s estate. Unless otherwise expressly provided, as is done in the statutes of many of the states where the beneficiaries for whom the administrator is authorized to bring the action are specifically named, the administrator as such can recover only for the benefit of the decedent’s estate.

The administrator as the legal representative of the estate sustains no damage by reason of the death of the decedent, except as the estate he represents sustains such damages. The provision of the statute that, if there be no widow or husband, minor child or dependent, the administrator may maintain an action and recover such damages as -the party bringing the action may have sustained by the death of the party killed should be given some effect consistent with its legal meaning.

It should be construed and applied with reference to the purpose designed to be accomplished and with reference to the rights and duties of. an administrator of a decedent’s estate under the law. The objects of the statute is compensation for the death of a person by the wrongful act or default of another. The rights and duties of an administrator under the law are to reduce to his possession all of the personal property assets of his decedent’s estate including the value of all rights of action he may have as the representative of 'the decedent or the estate.

The statute fixes the liability of the party whose wrongful act or negligence caused the death, but it does not specifically designate the beneficiaries of the right of action given to the administrator, as is done in the statutes of many of the states. The right of action is given to the administrator as the legal representative of the decedent’s estate for the benefit of the estate. If a special beneficiary of the right of action were named in the statute the administrator would recover and apply as directed therein.

No such beneficiary is designated and as the right was clearly not given to the administrator personally, it becomes his right and duty to reduce the value of the right of action to possession as an asset of the decedent’s estate. The disposition of such assets by the administrator is regulated by law; and the person or corporation against whom the right of recovery exists is not concerned in such disposition.

While an administrator of the decedent’s estate owes a duty to the creditors of the estate, he is not the representative of the creditors any more than he is the representative of all other claimants against the estate. It may become the duty of an administrator to resist the asserted demands of those claiming to be creditors.

The fact that the statute does not give the general heirs at law a right of action, and does not make them beneficiaries of the right of action given to others, does not exclude the general heirs at law from any right they may have in the decedent’s estate, but it only indicates a purpose not to make their rights in the recovery authorized by the statute independent of the decedent’s estate, but to make such rights as they may have under the estate, subject to any superior rights others may have in the decedent’s estate.

The general heirs at law of a decedent properly receive their rights in the personal property assets of the decedent’s estate through the administrator of the estate. If the right of action given to the administrator is an asset of his decedent’s estate, it is the right and duty of the administrator to reduce its value to possession, therefore the value of 'the right of action is to be determined.

When the estate of a decedent is the beneficiary of a right of action given to the administrator, the value of the right and the authority of the administrator to reduce such value to possession, do not depend upon the existence or non-existence of liabilities of the estate; nor do the right and duty of the administrator depend upon the sufficiency or the insufficiency of the other assets of the estate to pay the debts of the decedent. The statute does not make the right of action or the duty of the administrator so dependent.

If a right of action for damages exists as an asset of the estate of a decedent, the party against whom the right of action exists cannot legally resist payment of the damages, or any part theieof, on the ground that the estate has no liabilities to be paid, or has without such right of action or some portion of it sufficient assets to pay the liabilities.

A creditor may have rights of priority over others claiming under an estate, but the creditor’s rights are no more enforcible or binding than are the rights of any others to have all the lawful assets of the decedent’s estate duly reduced to possession and applied to their claims as far as such assets will go. If the party injured by the wrongful act or default of another had lived, he would have had a right of action for the injuries he sustained.

As death ensued from' the wrongful act, and, as a liability for the damages the estate may have sustained by reason of. the death is imposed by the statute on the wrong-doer, and a right of action therefor is given to the administrator as such, it is 'his right and duty to reduce to possession the value of the right so given and to make disposition of it as the law directs.

When the administrator has a right of action under the statute the recovery should be the pecuniary value at 'the decedent’s death of the prospective earnings and savings from the evidence could reasonably have been expected but for the death of the decedent. Louisville & N. R. Co. v. Trammell, 93 Ala. 350, 9 South. Rep. 870.

The widow or husband, minor children, dependents and administrator in the order of priority has or have each for himself or herself the right of action and recovery upon the same basis or measure of right, to-wit, pecuniary compensation, from' the person or corporation whose wrongful act or default caused the death of the decedent, for “such damages as the party or parties entitled to sue may have sustained by reason of the death of the party killed.” The nature and extent and the consequent pecuniary amount or value of the damages that each of such parties may have sustained by reason of the death may be different, but the basis or measure of the right given by the statute is the same in every case.

The widow or husband, children and dependents take for their own individual benefit. The administrator takes as the representative of the estate of the decedent. The widow or husband, minor children and dependents take a personal benefit without reference to the rights of others; the administrator takes as the representative of and in the right of the estate of the decedent charged by law with the duty to reduce the value of the right to possession and to apply it as the law directs.

The law raises no implication or intendment that the right of action and recovery given to the administrator as such by this statute shall be enforced or used to an extent or in a manner different from other personal property assets of the -decedent’s estate. In the nature of things an exact and uniform rule for measuring the value of the life of a deceased person to designated beneficiaries or to his estate is not practicable if possible.

The elements which enter into the value of a life to the estate of a deceased person are so various and contingent that they must be left under proper instructions from the court to the determination of the jury based- on proper testimony applicable to the particular case. The jury have no arbitrary discretion, but among other proper elements they may consider evidence as to the age, probable duration of life, habits of industry, means, business, earnings, health and skill of the deceased, and his reasonable future expectations. See 13 Cyc. 366, and authorities cited; Louisville & N. R. Co. v.

Orr, 91 Ala., 548, 8 South. Rep. 360; Tutwiler Coal, Coke & Iron Co. v. Enslen, 129 Ala. 336, 30 South. Rep. 600; Lowe v. Chicago, St. Paul, M. & O. Ry. Co., 89 Iowa, 420, 56 N. W. Rep. 519; Howard v. Delaware & H. Canal Co., 40 Fed. Rep. 195; Florida Cent. & P. R. Co. v. Foxworth, 41 Fla. 1 25 South. Rep. 338; 7 Current Law 1086. If the evidence shows the decendent’s health, habits or other conditions of life to be such that he had no reasonable future expectations of an estate, the recovery would of course be merely nominal. See North Chicago St. R. C. v. Brodie, 156 Ill. 317, 40 N. E.

Rep. 942; Chicago, B. & Q. R. Co. v. Gunderson, 174 Ill. 495, 51 N. E. Rep. 708. In the cases of Florida Cent. & P. R. Co. v. Sullivan, 120 Fed. Rep. 799, and Callison v. Brake, 129 Fed. Rep. 196, charges similar to those, here assigned as error were held to be not reversible error. To the extent that the instructions given in this case may be incomplete, they are not unfavorable to the plaintiff in error; and since a more correct special instruction upon the subject does not appear to have been asked and refused, the plaintiff in error cannot complain, here.

As there was evidence to warrant a finding for the plaintiff the demurrer to the evidence was properly overruled. The principles above announced dispose of all the assignments of error that have been argued here. The judgment is affirmed. Shackleford, C. J., and Cockrell and Parkhill, JJ-, concur.