Opinion
Nos. 35233, 35149.
January 9, 1967. Rehearing Denied February 14, 1967.
Appeal from the Circuit Court for Dade County, Grady L. Crawford, J.
Reginald L. Williams, of Dixon, DeJarnette, Bradford, Williams, McKay Kimbrell, Miami, Ausley, Ausley, McMullen, O'Bryan, Michaels McGehee and Charles S. Ausley, Tallahassee, for petitioners-respondent.
Nichols, Gaither, Beckham, Colson Spence, Alan R. Schwartz and Horton Schwartz, Miami, for respondent-petitioner.
These cases, consolidated here for review, are before us on petitions for writ of certiorari to the District Court of Appeal, Third District. Bernard Braz, plaintiff below, brought separate but consolidated actions against Atlantic Coast Line Railroad Company and Seaboard Air Line Railroad Company to recover for the wrongful deaths of his wife and daughter who were killed in an automobile-train collision.
The deceased wife worked in the plaintiff's business, a family owned corporation, without compensation. The trial court, on jury award, entered judgment compensating the husband for the loss of such services. The District Court required remittitur holding the husband, individually, could not recover for the replacement value of services rendered gratis to the family corporation by the deceased wife.
Atlantic Coast Line Railroad v. Braz, 182 So.2d 491 (Fla.App.3rd 1966).
The District Court declined to follow Lithgow v. Hamilton, wherein it was held that among the elements of damage which the jury was entitled to consider was "any special service which the wife was accustomed to perform * * * in his business without compensation, which will have to be replaced by hired services" because, as distinguished from the record showing in Lithgow, the husband's business was a corporation.
69 So.2d 776 (Fla. 1954).
Insofar as the distinction is applicable to the cause sub judice, we perceive no substantial difference between a business conducted by an individual as a proprietorship and one conducted as a family corporation and hold that, if the corporation involved in this cause was a wholly owned family business operated by the husband, the jury was entitled to consider the value of future services lost to that business.
Aside from the above, there was in this cause, between trial judgment and appeal, a change in law which affected the result. Conflict jurisdiction having been shown, the decision of the District Court of Appeal herein is quashed without prejudice on authority of Florida East Coast Railway Company v. Rouse. The cause is remanded with directions to remand for a new trial.
Fla., 194 So.2d 260, Opinion filed January 9, 1967, case number 34,815.
It is so ordered.
THOMAS, ROBERTS and O'CONNELL, JJ., concur.
DREW, J., concurs specially with Opinion.
THORNAL, C.J., and ERVIN, J., concur specially and agree with DREW, J.
I concur in all of the foregoing opinion and judgment except the concluding paragraph thereof in which it is stated "the decision of the District Court of Appeal herein is quashed without prejudice on authority of Florida East Coast Railway Company v. Rouse" (Fla., 194 So.2d 260, opinion filed January 9, 1967, case no. 34,815). For my views concerning the propriety of reviewing initially on appeal the constitutionality of the comparative negligence statute, see my dissent in Florida East Coast Railway Company v. Rouse this day filed.
THORNAL, C.J., and ERVIN, J., concur.