HOWARD EARL BOHANNON, AS ADMINISTRATOR OF THE ESTATE OF HERIOD ELMORE BOHANNON, DECEASED, APPELLANT,
v.
HELEN EILAND MCGOWAN, APPELLEE
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In this wrongful death action under Florida law, the administrator of a deceased plaintiff's estate appealed the trial court's dismissal based on abatement. The court held that wrongful death actions survive the death of the original plaintiff and may be prosecuted by the administrator, reversing the abatement dismissal.
A wrongful death action does not abate upon the death of the original plaintiff and survives to be prosecuted by the administrator. Section 46.021, Florida Statutes, which provides that no cause of action dies with the person and all causes of action survive, applies to wrongful death actions.
“No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted and defended in the name of the person prescribed by law.”
Establishes the statutory basis for the survival of the wrongful death action despite the original plaintiff's death
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Join FLexlaw to unlock all legal intelligenceA child was killed in an accident that also killed the mother. The original plaintiff (father) brought a wrongful death action under Section 768.03, F…
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The child of the original plaintiff in this action, brought under Section 768.03, Florida Statutes, F.S.A., was killed in an accident which took the life of the mother as well. After filing this suit the plaintiff died and his administrator moved for substitution under Section 46.021, Florida Statutes, F.S.A. The trial judge held that the action abated with the death of the surviving parent, and this appeal ensued.
The appellee contends that since the administrator’s motion was denied, there is no appellant, citing cases 1 saying that there must be an appellant and an appellee in order to have an appeal. Properly analyzed, these cases import nothing *61more than that there must be a justiciable controversy, which there certainly is in this case. Justice would be denied were we to treat this hurdle as a barrier to our jurisdiction. Appellee’s logic would render such an order as entered in this case immune from appeal, a result certainly not in keeping with Section 5, Article V of our Constitution, F.S.A., which provides that “appeals * * * may be taken * * as a matter of right * * If the trial court had permitted substitution, the appellee might have made the administrator appellee. Of course, the appellant should have brought the appeal in the name of the administrator, since it was his motion for substitution which was denied in the order appealed from, but this is not fatal. In fact our rules countenance continuance of proceedings in the name of a deceased person where there is no personal representative. Rule 3.11, subd. e(1), F.A.R., 32 F.S.A. Also see Puleston v. Alderman, 1931, 148 Fla. 353, 4 So.2d 704. We alter the style of the case on our own motion to correspond with the reality, and there is now a living appellant.
We cannot conceive a situation in which a trial judge can, under our Constitution, render his final disposition of a case appealable or not according to which party succeeds there. We guarantee every litigant two days in court. The motion to dismiss is denied.
On the question whether the action abates, there is no Florida case directly in point and the other states are split. However, it has been held in the Third District that an action for punitive damages survives. Atlas Properties, Inc. v. Didich, Fla.App.1968, 213 So.2d 278. Abatement of the action would place a possible premium on delay. Survival of the action seems clearly consonant with Section 46.021, Florida Statutes, F.S.A., which says:
“No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted and defended in the name of the person prescribed by law.”
Mr. Justice Cardozo explained why a wrongful death action survives in Van Beeck v. Sabine Towing Co., 300 U.S. 342, 57 S.Ct. 452, 81 L.Ed. 685 (1937). We cannot explain our reversal of this case any more clearly, and it suffices to refer the interested reader to an annotation at 43 A.L.R.2d 1291 and to McDaniel v. Bullard, 34 Ill.2d 487, 216 N.E.2d 140 (1966), in which the Supreme Court of Illinois expressly overrules Wilcox v. Bierd, 330 Ill. 571, 162 N.E. 170 (1928) in favor of the view we here adopt.
Reversed and remanded.
PIERCE, A. C. J., and McNULTY, J., concur.
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Juanita v. Ramos, 714 So. 2d 1146 (Fla. 3d DCA 1998)…otion to dismiss an appeal in a similar case, “We cannot conceive a situation in which a trial judge can, under our Constitution, render his final disposition of a case appealable or not according to which party succeeds there.” Bohannon v. McGowan, 222 So. 2d 60, 61 (Fla. 2d DCA 1969). The objecting class members are entitled to be heard because they will be bound by the judgment. See Marshall v. Holiday Magic, Inc., 550 F. 2d 1173, 1176 (9th Cir.1977); 7B Charles A. Wright et al., Federal Practice and Proc…
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Topol v. Joely Polokoff, 88 So. 3d 341 (Fla. 4th DCA 2012)…to enforcing a non-appealable and non-final order that determined the property rights of the parties. Every individual has the right to an appeal, and an order which strips an individual of that right should not be enforced. See Bohannon v. McGowan, 222 So. 2d 60, 61 (Fla. 2d DCA 1969) (stating that “justice would be denied” if an order was “immune from appeal”); see also Ramos v. Philip Morris Cos., 714 So. 2d 1146, 1148 (Fla. 3d DCA 1998) (stating that the right to appeal is constitutionally protected). Th…
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McGOWAN v. Heriod Elmore Bohannon, 226 So. 2d 819 (Fla. 1969)…Certiorari denied without opinion. 222 So. 2d 60.…
Authorities Cited
- Van Beeck v. Sabine Towing Co., Inc., 300 U.S. 342 (U.S. 1937)
- Forcum v. Symmes, 133 So. 88 (Fla. 1931)
- Sarasota-Fruitville Drainage Dist. v. Certain Lands Within Said Dist. Upon Which Drainage Taxes FOR THE Year 1952 Have NOT Been Paid, 80 So. 2d 335 (Fla. 1955)
- Lelia Padgett Bagley v. State, 122 So. 2d 789 (Fla. 1st DCA 1960)
- Puleston v. Alderman, 4 So. 2d 704 (Fla. 1941)
- Atlas Props., Inc. v. Didich, 213 So. 2d 278 (Fla. 3d DCA 1968)
- Tax Sec. Corp. v. Dayton, 114 Fla. 846 (Fla. 1934)
- Brooks v. Miami Bank & Tr. Co., 115 Fla. 141 (Fla. 1934)