Altimont Swaby, a citizen of Jamaica, was killed when struck by an automobile in Florida a few days after he arrived in this country to work as a farm laborer. This suit was filed under the Florida Wrongful Death Statute
There was a jury verdict for the plaintiffs for $5,000.
The major questions on this appeal are: (1) Did the district court err in allowing plaintiffs to amend their complaint to conform to the proof, after the Statute of Limitations had run, to change the description of the plaintiffs from that of minor children of decedent to that of dependents. (2) Whether the trial court erroneously charged on last clear chance.
Section 768.02 of the Florida Statutes, F.S.A. describes the availability of the cause of action for wrongful death to various classifications of persons in a described order of preference.
The minor plaintiffs, ages two to seven when suit was filed, are the children of decedent and Rosetta Nevins, but without benefit of marriage. The original complaint named them as plaintiffs in their capacities as children of decedent. The appellants assert that as a matter of Florida law an illegitimate child is not a "minor child," and illegitimate children not "children," within the meaning of § 768.02. We resist the temptation of predicting what the Florida Supreme Court would do if faced with the issue,
As to identity of parties plaintiff, Rule 15(c) does not apply to an amendment which substitutes a new party or parties. But amendment in the description of the party plaintiff, and relation back, is allowed after limitations have run if what is involved is mere change in the description of the capacity in which plaintiff sues. As with the theory of change of state cause of action, the federal courts may give weight to but are not bound by state court characterizations that would drain the purpose and vitality out of federal policy. Cf. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); see note 7 infra. Change in description of the capacity of the plaintiff after the limitation period has expired has been allowed in a variety of situations. Montgomery Ward & Co. v. Callahan, 127 F.2d 32 (10th Cir.1942) (substitution of legal guardian for guardian ad litem); Quaker City Cab Co. v. Fixter, 4 F.2d 327 (3d Cir.1925) (substitution of widow for administratrix); Fierstein v. Piper Aircraft Corp., 79 F.Supp. 217 (M.D.Pa.1948) (individual capacity substituted for executrix); Reardon v. Balaklala Consol. Copper Co., 193 F. 189 (N.D.Cal.1912), aff'd, 220 F. 584 (9th Cir.1915) (administrator substituted for individual capacity). Compare Russell v. New Amsterdam Cas. Co., 303 F.2d 674 (8th Cir.1962); Frankel v. Styer, 209 F.Supp. 509 (E.D.Pa.1962); Rejsenhoff v. Colonial Nav. Co., 35 F.Supp. 577 (S.D.N.Y.1940). Cf. Missouri, K. & T. Ry. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355 (1913); Owen v. Paramount Productions, Inc., 41 F.Supp. 557 (S.D.Cal.1941); Echevarria v. Texas Co., 31 F.Supp. 596 (D.Del.1940).
In Young v. Garcia, 172 So.2d 243 (Fla.Ct.App.1965), relied on by appellants for their argument that illegitimate children are not "children" within the statute, the minor plaintiffs sued in the alternative as minor children or as dependents, and the court directed that there be an examination of applicable foreign law (of the decedent's domicile) to determine if there were legitimate children and if there were not "then the court should permit those who occupy the next in right status to proceed with this case."
The appellant does not complain in this court of the form of the charge on last clear chance but claims there was no evidence to support applicability of the charge. We disagree.
The court carefully and painstakingly charged the jury twice on the elements of last clear chance. Taking the elements charged, there was evidence of negligence by the driver, continuing up to the moment of impact. There was evidence that Swaby had been guilty of some act of contributory negligence and by reason thereof was in a position of peril or danger — he was in the roadway, near the center, walking facing oncoming cars — and that the driver knew this, for she observed him while some distance away.
There was testimony that the decedent was walking with an irregular, awkward gait, unsteady and very peculiar, something between a walk and a run, flailing his arms. One witness described it as an odd stagger, or that of a man crippled, and one of the passengers in the car pictured it as "this peculiar, rather nutty behavior." The decedent's manner and conduct in the center of the road were such that a jury might infer he was in such a state of abnormality or not sufficiently in possession of his faculties that his negligence in placing himself in that position
We have considered the other contentions made by appellants and find them to be without merit.
"Every such action shall be brought by and in the name of the widow or husband, as the case may be, and where there is neither widow nor husband surviving the deceased, then the minor child or children may maintain an action; and where there is neither widow nor husband, nor minor child or children, then the action may be maintained by any person or persons dependent on such person killed for a support; and where there is neither of the above classes of persons to sue, then the action may be maintained by the executor or administrator, as the case may be, of the person killed. In case of the death of any person solely entitled, or of all the persons jointly entitled to sue, before action brought or before the recovery of a final judgment in action brought by him or them, the right of action or the action as the case may be, shall survive to the person or persons next entitled to sue under this section, and in case of the death of one or more persons jointly entitled to sue before action brought or before the recovery of a final judgment in an action brought by them, the right of action or the action, as the case may be, shall survive to the survivor of such persons so jointly entitled to sue;"
The Advisory Committee's note on Rule 15 dealt with amendments changing plaintiffs as follows: