Summary
In Benboe et al. v. Booth, Fla. 1952, 61 So.2d 654, the court held that it was improper to receive in evidence the will of the deceased employer who had made the deceased a residuary legatee but the court did not denounce this evidence upon the theory that evidence of investment income is inadmissible.
Summary of this case from Smith v. LassingOpinion
November 14, 1952. Rehearing Denied December 15, 1952.
Appeal from the Court of Record, Escambia County, Ernest E. Mason, J.
Coe Coe, Pensacola, for appellants.
Philip D. Beall, Pensacola, for appellee.
Belle Wilson, a widow 61 years of age, was killed in an automobile accident, January 25, 1951. Elsie Booth her administratrix brought this action to recover damages for her wrongful death. She recovered a verdict for $6,000 on which the trial court entered final judgment conditioned on a remittitur of $1,200. This appeal is from that judgment.
The only point we are required to adjudicate is whether or not the trial court committed error in permitting the will of Mrs. Nancy Jane Williams to be introduced in evidence in a suit on the part of Mrs. Wilson's executrix to recover damages for her wrongful death.
Mrs. Nancy Jane Williams was an 85 year old lady who had employed Belle Wilson, the deceased, to nurse and look after her. Mrs. Wilson had been a widow since 1936. She was of the thrifty energetic class and made her living by cooking, keeping boarders, baby sitting, practical nursing, sewing, quilting, selling eggs and milk, caring for children, selling Christmas or greeting cards, and by doing anything else that she could find to do. Mrs. Williams had an estate valued at about $12,000 and made an agreement with Mrs. Wilson to take care of her on condition that at her death Mrs. Wilson would be rewarded by sharing in her property. Pursuant to this agreement Mrs. Wilson took care of Mrs. Williams until she was killed; cooked for her and served her meals, bathed and dressed her and looked after her personal wants, read to her and did everything to make her comfortable. There is evidence to the effect that deceased used her own funds putting in screens and otherwise improving the house of Mrs. Williams. She had it wired, bought an electric refrigerator and other appliances to make it more comfortable and livable.
Mrs. Williams was blind and feeble and executed her will February 6, 1950, in which she made Mrs. Wilson her residuary legatee "as a token of my gratitude for her having taken care of me during my lifetime." Mrs. Wilson was killed almost a year after the will was executed, but she had been living in the house with Mrs. Williams and looking after her since 1942, about nine years before she was killed. It is true, that the will was introduced in evidence over the objection of appellants and the court refused to instruct the jury that the possibility of recovering a legacy could not be considered in computing Mrs. Wilson's probable estate.
Actions of this kind are brought pursuant to Section 768.02, F.S.A. In Marianna B.R. Co. v. May, 83 Fla. 524, 91 So. 553, 554, this court held that among the proper elements to be considered by the jury in a case of this kind are "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." At the time of her death Mrs. Wilson had a life expectancy of 13.47 years and Mrs. Williams had a life expectancy of 3.08 years. Mrs. Wilson was in good health and had been nursing Mrs. Williams for more than nine years.
The statute places no limitation on the sources from which damages may be imposed. Marianna B.R. Co. v. May, heretofore cited, pointed out some of the elements that may be considered. It cannot be said that the amount awarded went beyond these elements. While deceased was a woman of modest earning capacity it is shown that she was industrious, her health was good, that Mrs. Williams was satisfied with her services and was grateful for her kindness. The jury was not extravagant in the award made. $6,000 for more than nine years approved nursing services, for the faithfulness exemplified during this period, the amounts contributed by deceased from her own earnings to Mrs. Williams' comfort in the way of betterments to the home, food and other essentials would certainly not shock the judicial conscience. The trial court saw fit to subtract $1,200 from this amount.
There could no doubt arise factual complexes in which it would be error to permit the jury to consider one's expectancy under the will of another in a suit of the executrix for wrongful death, but there is a dearth of showing here that the jury gave undue consideration to that element. Mrs. Williams acknowledged the services, expressed gratitude for them and for the care given her by Mrs. Wilson. Mrs. Wilson was not of the ravens that expected to be fed, she was a worthy exponent of the old fashioned doctrine of thrift, except for which, she could have gone on relief and recovered an amount equal to the judgment. If an error was committed it was in favor of Mrs. Williams' estate.
If there ever was a case in which a jury tried to do the best it could for both parties, it is this one. There certainly was never a case in which two elderly ladies acted squarer with each other. Mrs. Williams made her will after Mrs. Wilson had been waiting on her nine years. There is no showing that the jury were unduly influenced by consideration of Mrs. Wilson's expectancy. Her "habits of industry" and "reasonable future expectations" warranted the amount awarded.
Mr. Chief Justice SEBRING, Mr. Justice THOMAS, Mr. Justice HOBSON, and Mr. Justice DREW are of the view that the trial court committed error in permitting the jury to consider Mrs. Wilson's expectancy under the will of Mrs. Williams. Hence, they say the cause should be reversed and remanded for a new trial.
The writer of this opinion, Mr. Justice MATHEWS, and Mr. Justice ROBERTS are of the view that if the jury gave consideration to Mrs. Wilson's expectancy it was harmless error because the amount awarded was a very modest sum for services and other amounts shown to have been contributed by the deceased to Mrs. William's estate. The jury took all these elements into account and awarded what they considered to be a reasonable amount for services rendered. We think the judgment should be affirmed, for nothing can be accomplished by reversal except the luxury of a new trial.
It follows that the judgment is reversed and a new trial is awarded.
It is so ordered.
SEBRING, C.J., THOMAS, HOBSON, ROBERTS, MATHEWS and DREW, JJ., concur.