Davis v. Florida Power Co.

1. Where it is apparent that substantive portions of a statute have been omitted and repealed by the process of revision and re-enactment, courts have no express or implied authority t® supply the omissions that are material and substantive and not merely clerical and inconsequential, for that would in effect he the enactment of substantive law. The statute in such a case should he effectuated as the language actually contained in the latest enactment warrants; and words that were a part of the omitted substantive provisions, but are useless as re-enacted may be disregarded as mere surplusage, and appropriate effect should be given to the connected and complete terms and provisions as they appear in the re-enacted statute, when it can be done without violating the organic law or the legislative intent. 2. In determining the legality and effect of a statutory regulation, the court should ascertain the legislative intent; and if the ascertained intent will-permit, the enactment should be construed and effectuated so as to make it conform to rather than violate applicable provisions and principles of the State and Federal Constitutions, since it must be assumed that the legislature intended the enactment to comport with the fundamental law. 3 The discretion of the legislature when exercised for the public welfare in selecting the subjects of police regulations and in determining the nature and extent of such regulations, is limited only by the requirements of the fundamental law that the regulations shall not invade private rights secured by the constitution, and shall not be merely arbitrary in applying to some persons and not to others similarly conditioned. 4. Where a statute does not violate the Federal or State constitution, the legislative will is supreme, and its policy is not subject to review by the courts, whose province is not to regulate, but to effectuate the policy of the law as expressed in valid statutes. 5. The right to equal protection of the laws is not denied by a State enactment, when its provisions are not forbidden by the constitution, and it is apparent that the same law is applicable to all persons in the State under similar circumstances and conditions. 6. The inhibition that no State shall deprive any person within its jurisdiction of the equal protection of the laws, was designed to prevent any person, or class of persons from being singled out as a special subject for arbitrary and unjust discrimination and hostile legislation. 7. Where there is a reasonable and practical ground of classification for legislative regulations under the police power, the classification should be sustained, eyen though some other classification or the absence of specific classifications would appear to some minds to be more in accord with the general welfare, since the discretion of selecting the subjects of police regulations and the nature and extent of such regulations must be left to the general law-making power where there is no undoubted and irreconcilable conflict between the regulations and the provisions and principles of organic law. 8. There is a reasonable and just basis for a legislative classification that includes all corporations and all private associations of persons, but does not include single individuals, in a regulation affording a remedy to a parent for the wrongful death of a minor child. O. Section 3147 of the General Statutes gives the elements of the damages that may be recovered thereunder, and the mere fact that the amount of the damages is left to the discretion ' of the jury does not make the statute violative of the constitutional guaranty of due process of law, since the finding is regulated by applicaple principles of law, and the verdict rendered is subject to approval by the trial court and to such appellate review as may be provided by law for the correction of material and prejudicial errors, if any occur in the trial of the cause. •10. Where a declaration states a cause of action and a demurrer - thereto is erroneously sustained, a judgment consequent upon the demurrer will be reversed.

Appealed from the Circuit Court for Citrus County. Statement. This writ of error was taken to a judgment for the defendant in an action brought against the Florida Power Company, a corporation, by James T. Davis to recover damages accruing to the plaintiff under the statute for the death of plaintiff’s minor son caused by the alleged wrongful act of the defendant corporation. A demurrer to the original declaration was sustained by 'the trial court on the ground that it “wholly fails to state a cause of action under the statute.” The following amended declaration was filed: “James T. Davis, as the father of Baskin H. Davis, a minor child of the age of 17 years, now deceased, by G. W. Scofield and W. K. Zewadski, his atorneys, sues the Florida Power Company, a corporation organized and existing under the Lavs of the State of Florida and doing business in the County of Citrus, State of Florida; for that the said defendant heretofore to-wit: on and before the 10th day of June, A. D. 1911, was the owner of, and did operate, manage and control a certain electric light and power plant with its machinery, wires and appliances, at a place commonly known as Camp’s dam, at a point on the Withlacoochee river in said County of Citrus, State of Florida aforesaid; that the said power plant by means of a system of wires, conveyed an electric current to various points and places for commercial purposes, said system consisting of three immense wires which were suspended in close relation to each other, and only a few feet over and across a certain concrete walk at the said power plant; that on or about the morning of the 10th, day of June, A. D. 1911, the immediate vicinity of the said power plant owned, managed and controlled by the defendant as aforesaid, was thronged with people visiting the said plant and having a picnic; that the deceased Baskin H. Davis, in company with others, were viewing the premises, with the knowledge and consent of the defendant, its agents, servants and employees, and the deceased and others, being ignorant of the dangerous character of the premises, and presuming and having a right to presume that the defendant, its agents, servants and employees, would not permit him to get in harm’s way or#be injured or killed or that the defendant, its agents, servants or employees would do anything likely to cause injury or death, did, in company with other persons, pass under, by stooping, the said wires, suspended over and across the concrete walk as aforesaid, in going out upon the said walk to view the premises as aforesaid, without any notice or warning being given by the defendant, its agents, servants or employees of any danger in passing under the wires or being upon the said walk, and while the deceased, with other persons were standing on the said concrete walk, viewing the premises as aforesaid, the defendant, its agents, servants and employees in charge of the said plant, well knowing at. the time that the said Baskin H. Davis and other persons ha'd passed under the said wires and were then on the said walk, and would be compelled to return and again pass under the said wires, and knew the danger to them in such position, yet the defendant, without notice or warning to the said Baskin H. Davis and the other persons, negligently and carelessly caused the electric power in said premises and which was under the control and operation of the defendant, to be suddenly turned on,-whereby and by reason of the sudden turning on of the said electric power, the deceased received an electric shock from the effects of which electric shock, the said Baskin H. Davis instantly died; and the plaintiff says that by reason of the negligence of the defendant corporation in turning on said electric power his said child was killed. By reason whereof, and by reason of the premises, the plaintiff as the father of the said Baskin EL Davis, his minor child, now deceased, has been greatly damaged in the loss of the services of the said minor child, and has sustained great mental pain and suffering, hence this suit, and plaitiff claims damages Thirty Thousand Dollars. Second Count. And the plaintiff further sues the defendant for that the said defendant heretofore, to-wit: on and before the 10th day of June, A. D. 1911, was the owner of and did operate, manage and control a certain electric light and power plant with its machinery, wires and appliances, at a place commonly known as Camp’s dam, at a point on the Withlacoochee river, in the County of Citrus, and State of Florida, as aforesaid; that the said power plant by means of a system of wires conveyed an electrical current to various points and places for commercial purposes, said system consisting of three immense wires which were suspended in close,prosimaty to each other, and only a few feet above, over and across a certain con crete walk at the said power plant; that on or about the morning of the said 10th day of June, A. D. 1911, the immediate vicinity of the said power plant owned, managed and controlled by the defendant, as aforesaid, was thronged with people visiting the said plant and having a picnic; that the deceased Baskin H. Davis in companv with other persons were viewing the premises with the knowledge and consent of the defendant, its agents, servants and employees, and the deceased with other persons, not knowing the dangerous character of the premises, and being ignorant thereof, and presuming and having a right to presume that the defendant, its agents, servants and employees would not permit him or them to get in harm’s way, or be injured or killed, or that the defendant, its agents, servants or employees would do anything that would cause him injury, or kill him, did, in company with other persons pass under the said wires, so suspended above, over and across the concrete walk, as aforesaid, and go out upon the said walk to view the premises, as aforesaid, without any notice or warning being given him by the defendant, its agents, servants or employees, of any danger to him, in passing under the said wires, or being upon the said walk and Avhile the deceased with other persons were standing on the said concrete walk viewing the premises as aforesaid, the defendant, its agents, servants and employees in charge of said powpr plant, well knowing at the time that the .said Raskin H. Davis and other persons had passed under the said wires and were then on the said walk, and in returning would again be compelled to pass under the said wires, and knowing the danger to any one in such a position, and knowing or could with reasonable care and diligence have known that if the electric power was turned on that the said wires would become charged with electricity and would become a source of danger to the lives and persons of those in such close proximity to the said wires, and that it was the duty of the defendant to have kept said electric power from being turned and through said wires until the said Baskin H. Davis and the other persons, had safely passed from under the said wires and from off the said walk, yet without warning or notice, one of the employees of the defendant acting in his capacity as such employee, negligently and carelessly, regardless of his or its duty in this regard, suddenly turned or caused to be turned, the electric power on and through said wires, and by reason of the current of electricity being so powerful, there seemed to be an explosion accompanied with -lightning like fi9sh.es, and he, the said Baskin H. Davis, received an electric shock from the wires so charged with electricity as aforesaid, from which electric shock, the said Baskin H. Davis then and there instantly deid; and the plaintiff says that by reason of the negligence of the defendant corporation in turning on said electric power his said child was killed. By reason whereof, and by reason of the premises, the plaintiff as the father of the said Baskin H. Davis, his minor child now deceased; has been greatly damaged in the loss of the services of- the said minor child, and has sustained great mental pain and suffering, hence this suit, and plaintiff claims damages Thirty Thousand Dollars. Third Count. And the plaintiff further sues the defendant, for that the defendant heretofore, to-wit: on and before the 10th day of June, A. D. 1911, was the owner of, and did operate, manage and control a certain electric light and power plant with its machinery, wires and appliances at a place commonly known as Camp’s dam, on the Withlachoochee river in the said County of Citrus in the Stale of Florida, aforesaid; that the said power plant by means of a system of wires conveyed an electrical current to various points and places, for commercial purposes; said system consisting of three immense wires which were suspended in close proximity to each other, and only a few feet above, over and across a certain concrete walk way or platform which walk way or platform extended along two sides of the power house or plant, and is frequently gone upon by visitors in viewing the premises; that on the morning of the 10th day of June, A. D. 1911, the immediate vicinity of the said powrnr plant, owned, managed and controlled by the defendant as aforesaid, was thronged with people visiting the said power plant and having a picnic; that the deceased Baskin H. Davis, in company with other persons in attendance upon the picnic as aforesaid, while viewing the premises, with the knowledge and consent of the defendant, its agents, servants and employees, passed under the wires suspended, over the said walk way or platform, as aforesaid, and being ignorant of the great danger or character of the premises, and presuming and having a right to presume that the defendants, its agents, servants or employees would not permit him to -get in harm’s Avay or be injured dr killed or that the defendant, its agents, servants or employees Avould do anything likely to produce injury or death, and there being no notice -of any kind posted, or otherwise to indicate danger, or give warning of the danger to any one being upon said Avalk way, he, the said Baskin H. Davis, in company Avith other persons continued their walk and went to the end of said walk Avay or platform, after Avhich an employee of the defendant corporation, acting in his capacity as such employee, requested the deceased and the other persons with him, to return or go back, Avell knowing at the time that the deceased and the others would be compelled to again pass under the said wires as aforesaid, and knowing the danger to said persons, in the position as aforesaid, and knowing or could with reasonable care and diligence have known that if the electric poAver was turned on or the current then on was increased, that the said wires would become charged with electricity and would become dangerous to the lives and persons of those standing upon the said walk-Avay in such close proximity to the wires as aforesaid; and it was the duty of the defendant to have kept said electric power from being turned on and through said wires until' the said Baskin H. Davis and the others had safely passed thereunder and from off of the said walk way or platform; yet notwithstanding its said duty in that behalf, the said employee of the defendant, acting in his capacity as such employee, wilfully and negligently turned on the electric power through said wires, before the deceased and others had time to get from under the said wires and off of the walk way or platform, after they had been told to return as aforesaid; and the wires becoming charged with the electric current and by reason of the said current being so powerful, there seemed to be an explosion accompanied with lightning like flashes, and he the said Baskin H. Davis and one other person received an electric shock from the wires so charged with electricity as aforesaid, from which shock the said Baskin H. Davis and one other person were then and there instantly killed; and the plaintiff says that by reason of the negligence of the defendant corporation in turning-on the power or current of electricity his said child was killed. By reason whereof, and by reason of the premises, the plaintiff as the father of the said Baskin H. Davis, his minor child, noAv deceased, has been greatly damaged in the loss of the services of the said minor child and has sustained great mental pain and suffering, hence this suit, and plaintiff claims damages Thirty Thousand Dollars. Fourth Count. And the plaintiff, James T. Davis, the father of Baskin H. Davis, now deceased, by Geo. W. Scofield and W. K. Zewadski, his attorneys, sues Florida PoAver Company, a corporation organized and existing under the laws of .the State of Florida and doing business in Citrus County, State of Florida, for that the said defendant, heretofore, towit; on or about the 10th day of June, A. D. 1911, was the owner of and did operate, manage and control a certain electric light and power plant, with its machinery, wires and appliances, at a place commonly known as ‘Camp’s dam’ at a point on the Withlacoochee river about ten miles west of the town of Dunnellon, Florida, but within the said County of Citrus, State of Florida, aforesaid. That the said power plant, by means of a system of wires, conveyed the electric current to various points and places for commercial purposes; that on or about the morning of the 10th day of June, A. D. 1911, the immediate vicinity of the plant of said defendant, was thronged with people visiting the said plant and having a picnic; that the power house of said plant is so constructed that there is a walk way or platform on two sides of it up near the top that is used by the general public by and with the permission, knowledge and consent of the defendant, for the purpose of viewing the premises, and attending to any business that they might have; over this walk way or platform are stretched three immense wires, extending out but not high enough so that a person can pass under them without stooping, for the purpose of conveying the electric current to the various distributing-points. That on the morning of the 10th day of June, A. D. 1911, when a great crowd had gathered about the said plaut the deceased Baskin H. Davis, who was a young man, 17 years of age, in company with others, was viewing the premises and was on the said walk way or platform with the knowledge and consent of the defendant, its agents, servants and employees, and he being ignorant of ihe character or danger of the premises, and presuming and having a right to presume, that the defendant, through its agents, servants and employees would not permit him to get in harm’s way or be injured or killed, or that the defendant, its agents, servants or employees, would do anything likely to produce harm or death and there being no notices, signs, posters of any kind or nature to indicate the danger of the premises, the deceased Baskin H. Davis walked on said platform or walk way and passed under the said three immense wires in safety and passed on down to the end of said walk way or platform. The defendant, through its employees, the man who was in charge of the machinery in said power house and whose duty it was to control the electric current, but whose name and title is unknown to the plaintiff, knew that the deceased was in a dangerous position and ordered him to get down and go back well knowing that in order to do so, he Avould have to again pass under the said three immense wires, but before the deceased could do so said employee of the defendant as above stated, turned on or caused to be turned on a greater amount of current than Avas already on the said wires, with the full knowledge that the said Baskin H. Davis had to pass under the said Avires in order to comply with the request of the said employee and reach a place of safety, and with the full knowledge of the great danger of the said increased current and that the said increased current so turned on by the said employee of the defendant as aforesaid, wrongfully, negligently and carelessly and with utter disregard to the rights of the said Baskin H. Davis and the plaintiff, and by reason of such wrongful turning on the said increased current, the said Baskin H. Davis when he attempted to pass under the said wires again, going back as directed, and having no knowledge that the current had been so increased, was killed by said powerful increased current with which the said wires had been charged. And that plaintiff avers that the deceased came to his death by the wrongful act, carelessness ánd negligence of the defendant’s employee who had charge of the machinery in said power house plant and controlled the said electric current. The plaintiff, James T. Davis, is the father of the deceased Baskin H. Davis, who was a minor child of 17 years of age. By reason of the said, wrongful acts, carelessness and negligence of the defendant’s employee which caused the death of the deceased the plaintiff has lost the services of the said minor child and suffered great mental pain and anguish to the great damage of the plaintiff in the sum of $30,000.00. (Signed) GEO. W. SCOFIELD, W. K. ZEWADSKI, Plaintiff’s Attorneys.” A demurrer to the declaration was filed as follows: “As to each of said four counts. 1. No right of action is stated in the declaration under section 3147 General Statutes, because the declaration nowhere alleges that the plaintiff is the father of the said Baskin H. Davis. 2. The declaration does not set forth facts sufficient to constitute a valid cause of action in behalf of said plaintiff. 3. No negligence sufficient to fix liability upon the, defendant is set forth of the declaration. 4. The facts pleaded affirmatively show that the deceased came to his death through his own negligence. 5. The facts pleaded affirmatively show that the deceased lost his life because of. his own negligence contributing as the case of his death. 6. The facts pleaded show that the danger was plain and patent, the cables and wires in plain view across said way was so low or near thereto that a person could not pass them in an erect position; also that deceased knew or by the exercise of ordinary care ought- to have known that the machinery at said plant ■ was in motion and operation; also that deceased was of sufficient age and capacity to know and appreciate the danger from said cables or wires and that he knowingly and voluntarily, without invitation from the defndant, and without business necessity, placed himself in the position where he was killed. 7. The declaration shows no facts sufficient to excuse the lack of care on the part of the deceased in going beneath said wires or cables. 8. The facts pleaded show no duty on the part of the defendant to post notices or give warning to trespassers, licensees or visitors, coming without invitation upon defendant’s premises. 9. The declaration does not allege facts showing that the place, designated in the declaration as a concrete walk or platform, is on or near any public highway or that it is used by the public with the consent of the defendant, or that the said deceased was on or in said place in any other capacity than as a trespasser or licensee and hence no duty devolved upon the defendant except to refrain from knowingly, intentionally or wilfully injuring said deceased; and no facts are alleged which show that defendant so wilfully, intentionally or knowingly inflicted injury on deceased. 10. No facts are sufficiently pleaded which show that the said electric current was turned on or that the said current was increased by any agent or employee of the defendant having the authority to handle and manipulate the said current or acting in his-capacity as the agent of the defendant for that purpose. 11. No facts are pleaded which show that any such employee or servant of the defendant turned on said electric current or increased with knowledge that said deceased was at the time in such position as to be imperilled on account of said electric current. 12. The statute, section 3147, General Statutes, under which this suit is brought or attempted so to be, is in violation of the constitution of the State of Florida and of the constitution of the United States and the Fourteenh Amendment thereof. 13. The enforcement of said statute in behalf of plaintiff in this cause will deny to the defendant the equal protection of the law. 14. The enforcement of said statute in behalf of plaintiff in this cause will deprive the defendant of its property without due process of law. 15. The said statute is class legislation and without any reasonable basis of classification. 16. Said statute illegally discriminates by attempting to make the defendant corporation liable while it imposes no similiar liability upon individuals under the like circumstances. 17. The said statute is invalid because it allows assessment of damages for mental pain and suffering of both parents^ without limitation or legal restriction as to amount to be assessed by a jury. (Signed) R. L. ANDERSON, R. A. BURFORD, Defendant’s Attorneys.” A motion for compulsory amendment of the several counts of the declaration was also made, but as a consideration of such motion is not material to the disposition of the cause on its real merits, it will be omitted. The court sustained the 12th, 13th, 14th, 15th, and 16th, grounds of the demurrer to the declaration and a final judgment for defendant was entered on the demurrer. On writ of error the plaintiff assigns the following errors: - “1st. The Circuit Court erred in sustaining the 12th, ground of demurrer to plaintiff’s amended declaration. 2nd. The Circuit Court erred in sustaining the 13th, ground of defendant’s demurrer to plaintiff’s amended declaration. 3rd. The Circuit Court erred in sustaining the 14th, ground of defendant’s demurrer to plaintiff’s amended declaration. 4th. The Circuit Court erred in sustaining the 15th, ground of defendant’s demurrer to plaintiff’s amended declaration. 5th. The Circuit Court erred in sustaining the 16th, ground of defendant’s demurrer to plaintiff’s amended declaration. 6th. The Circuit Court erred in sustaining the said several grounds of demurrer of the defendant to the amended declaration in its order of date February 17, 1912. 7th. The Circuit Court erred in sustaining the several grounds of the above mentioned demurrer of the defendant to the amended declaration, and in rendering final judgment on said demurrer in favor of the defendant ancl against the plaintiff and in dismissing the said suit.