ALBERT L. KAHN, AS EXECUTOR OF THE ESTATE OF JULIUS L. KAHN, DECEASED,
v.
NELLIE WOLF, BY HER HUSBAND, J. C. WOLF AND J. C. WOLF, IN HIS OWN RIGHT
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The Florida Supreme Court affirmed a jury verdict awarding damages to the appellees for injuries sustained in an automobile collision, holding that the trial court properly applied traffic ordinance rules regarding right-of-way and that causes of action for personal injuries survive the death of the wrongdoer.
The jury verdict was properly supported by sufficient evidence that the driver of appellant's testator's car failed to yield the right-of-way as required by municipal ordinance and should have slowed down to allow the other vehicle to pass, constituting negligence proximately causing the injury. Causes of action for personal injuries survive the death of the wrongdoer, and no distinction should be drawn between survival of actions and survival of causes of action.
“when two vehicles approach or enter ... at the same time or at approximately the same time the operator of the vehicle on the left shall yield right of way to the vehicle on the right.”
The municipal ordinance governing right-of-way that applied to the collision at issue.
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Join FLexlaw to unlock all legal intelligenceTwo automobiles collided at the intersection of 14th Street and Lenox Avenue in Miami Beach. One car was traveling south on Lenox Avenue (in which the…
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Judgment was entered in the Circuit Court in favor of the appedees who sought to recover damages growing out of the collision of two automobiles at the intersection of 14th Street and Lenox Avenue in the City of Miami Beach. As is not unusual in such cases *864there was considerable conflicting testimony as to the circumstances surrounding the mishap, however, there was sufficient proof to justify the jury in believing that the cars collided very near the intersection of the north and west lanes of these two street's.
There was introduced in evidence an ordinance of the municipality providing that an operator of a vehicle approaching an intersection shall yield the right of way to one which has already entered, and that “when two vehicles approach or enter ... at the same time or at approximately the same time the operator of the vehicle on the left shall yield right of way to the vehicle on the right.” It was established that there were no devices or signs for the direction of traffic at the crossing in question consequently the provisions of the ordinance doubtless applied.
The injured person was the occupant of an automobile traveling south on Lenox Avenue and. the driver of the car belonging to the appellant’s testator was proceeding west on 14th Street, so as the cars were nearing the intersection at “approximately the same time” it was incumbent on the latter to allow the former to pass. Considering the width of the street, the brief time which lapsed between the instant the automobiles reached the crossing and the ensuing collision we cannot determine that the car owned by appellant’s testator had already “entered” the intersection, hence was entitled to the right of way. The jury evidently believed that they approached the crossing about the same time and that the latter portion of the ordinance was applicable.
We have the opinion that there was sufficient testirnony upon which the jury could base a conclusion *865that the driver of the car which caused the injury should have slackened his speed in order to allow the one in which the person eventually injured was a passenger to pass ahead of him and that failure to do so constituted negligence which was the proximate cause of the injury. It is our view that we should invoke the time-honored rule that where there is substantial evidence to support a verdict the judgment should not be disturbed by the appellate court and we have discovered nothing in this record that categorizes this case as an exception.
The only point remaining for discussion and decision is the one involving the survival of the “cause of action” as distinguished from the “action” itself. Appellant has strenuously argued that the appellees should not have prevailed because this case was not instituted until after the death of the owner of the automobile. It is conceded that there is authority for the survival, after death, of an action already commenced but it is urged that this rule cannot be extended to cases like the present one where the death of the wrongdoer preceded institution of the suit.
There is respectable authority for this position but we find no reason to cite the cases. This court, in Waller v. First Savings & Trust Co., 103 Fla. 1025, 138 So. 780, has held that causes of action do survive. Upon this case the appellee relies as a refutation of the appellant’s contention. It is true, as appellant insists, that in the Waller case damages were claimed for injury to property as well as the person, but a study of the decision has convinced us that the court intended to hold that a “right of action” for personal injuries survived. See Re Grainger, 121 Neb. 338, 237, N. W. 153, 78 A.L.R. 597 and annotation. This *866conviction is strengthened by a review of our opinion in International Shoe Co. v. Hewitt, 123 Fla. 587, 167 So. 7. We, therefore, must decline to recognize this finely drawn distinction between the survival of actions and the survival of causes of action.
No error has appeared to us in our careful examination of the record and briefs so the judgment is—
Affirmed.
BROWN, C. J., TERRELL and CHAPMAN, JJ., concur.
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Forrest H. AKE and Mittie AKE v. Birnbaum, 156 Fla. 735 (Fla. 1945)…ent 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. (2nd) 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 m…1 / 2
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Alonzo v. Robbins, 103 So. 2d 658 (Fla. 2d DCA 1958)…rd, plaintiff was not guilty of contributory negligence as a matter of law in not stopping his car, having seen the defendant’s car prior to the defendant’s reaching the stop sign on Maryland Avenue. In the case of Kahn v. Wolf, 1942, 151 Fla. 863, 10 So. 2d 553, it was said that where two cars reach the intersection of two streets at approximately the same time, the car entering first had the right-of-way and the driver of the other car was negligent in failing to slow down. It has also been held that a s…
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Haverty Furniture Co. v. McKESSON & Robbins, Inc., 154 Fla. 772 (Fla. 1944)…resulting in a third verdict and judgment for plaintiff, which on appeal was affirmed, subject to a required remittitur. However, the point was, in our opinion, clearly and definitely settled prior to the above decision in the case of Kahn v. Wolf, 151 Fla. 863, 10 So. 553, which also was an action for damages for injuries suffered by plaintiff in an automobile collision. In that case the alleged wrongdoer died before the action was instituted. In the opinion of Mr. Justice THOMAS in that case it was said:…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Waller v. First Sav. & Tr. Co., 103 Fla. 1025 (Fla. 1931)
- Sanley v. The Armton Corp., 123 Fla. 524 (Fla. 1936)
- Int'l Shoe Co. v. Hewitt, 123 Fla. 587 (Fla. 1936)