THE CITY OF CORAL GABLES
v.
L. V. NEILL
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The Florida Supreme Court upheld a wrongful death judgment for $9,000 against a bus operator, but required the plaintiff to remit $645.11 in funeral expenses that were improperly admitted into evidence because they were not pleaded as special damages.
Funeral expenses, if recoverable at all, must be claimed as special damages in the pleadings. The trial court erred in allowing the jury to consider funeral and burial expenses that were not alleged in the declaration and in instructing the jury to add such expenses to other damages.
“Funeral expenses, if recoverable at all, must be claimed in proceedings as special damages.”
Establishes the controlling rule that funeral expenses require special pleading and cannot be recovered on general allegations.
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Join FLexlaw to unlock all legal intelligenceA bus operated by the defendant struck and killed the plaintiff's wife on a public street. The jury awarded the plaintiff $9,000 in damages. The plain…
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—We review on writ of error judgment in favor of plaintiff for damages accruing by wrongful death of plaintiff’s wife.
A bus operated by defendant struck and killed plaintiff’s wife on a public street.
The verdict was as follows: “We, the jury, find for the Plaintiff, and assess his damage in the sum of Nine Thousand and No Hundredths ($9,000.00) dollars.”
The declaration contained no allegations of special damages.
Plaintiff was allowed over timely objection of defendant to prove that he expended the sum of $645.11 in funeral and burial expenses of deceased. Funeral expenses, if recoverable at all, must be claimed in proceedings as special damages. Sutherland on Damages (4th Ed.) Sec. 1278, p. 4951; International Shoe Co. v. Hewett, 123 Fla. 587, 167 So. 7.
The Court charged the jury, “And if you find a verdict for the plaintiff it will also be your duty to determine the reasonable funeral and burial expenses caused plaintiff by the death of his deceased wife and to add such amount to any other damages you may award to the plaintiff.”
This was error in the state of the pleadings.
We have considered all questions presented and find no reversible error disclosed upon consideration of the entire record. The error above referred to may be cured by remittitur. Therefore, if the plaintiff shall within ten days of the-going down of the mandate, enter a' remittitur in *6the court below in the sum of $645.11, judgment shall stand as of the original date thereof for the remainder. Otherwise, the judgment shall stand reversed and the cause be returned to the docket for new trial.
So ordered.
Affirmed on condition of remittitur.
Whitfield, Brown, Buford and Chapman, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lithgow v. Hamilton, 69 So. 2d 776 (Fla. 1954)…is entitled to take into consideration in fixing the amount of the award are the following: (1) The funeral expenses of the wife incurred and paid by the husband, where the amount thereof is claimed as special damages. City of Coral Gables v. Neill, 133 Fla. 4, 182 So. 432; Potts v. Mulligan, 141 Fla. 685, 193 So. 767. (2) The pecuniary value of services which the husband might reasonably expect to have received from the deceased wife if she had not been killed, less maintenance costs, of course; this inc…
Authorities Cited
- Sanley v. The Armton Corp., 123 Fla. 524 (Fla. 1936)
- Int'l Shoe Co. v. Hewitt, 123 Fla. 587 (Fla. 1936)