JOHN R. BROWN, Chief Judge:
The main issue presented in this case is whether a father who sues under Florida Stat. 768.03, F.S.A. to recover damages for the death of his minor daughter is completely barred from recovery by the contributory negligence of the child's mother in which he did not, and could not participate, since the father was out of the country at the time of the accident and had never even seen his child.
Although there are other and peripheral problems on which we can
Before framing the certificate
CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TO THE SUPREME COURT OF FLORIDA, PURSUANT TO § 25.031, FLORIDA STATUTES 1959, AND RULE 4.61, FLORIDA APPELLATE RULES.
To the Supreme Court of Florida and the Honorable Justices thereof:
It appears to the United States Court of Appeals for the Fifth Circuit that the above-styled case in this Court involves a question or proposition of the law of the State of Florida which is determinative of the cause, and there appear to be no clear, controlling precedents in the decisions of the Supreme Court of Florida. This Court hereby certifies the following question of law to the Supreme Court of Florida for instructions concerning said question of law, based on the facts recited herein, pursuant to § 25.031, Florida Statutes 1959, F.S.A., and Rule 4.61, Florida Appellate Rules, as follows:
(1) Style of the Case
The style of the case in which this certificate is made is Eusebio M. Martinez, father of Jacqueline M. Martinez, a minor, deceased, appellant and cross-appellee versus Jose Rodriquez, and Antonio Rodriquez, d/b/a Ingram Court
Apartments, appellees and cross-appellants, case No. 24319, United States Court of Appeals for the Fifth Circuit, such case being an appeal from the United States District Court for the Southern District of Florida.
(2) Statement of Facts
On the morning of April 20, 1965, Jacqueline M. Martinez, the 22 month old daughter of appellant, drowned in the swimming pool of the apartment house where the child lived with her mother, Olga Martinez, who had come to the United States from Cuba in September 1962. At that time she was pregnant with Jacqueline. At the time of the drowning, Eusebio M. Martinez, the father, was still in Cuba and had never seen his child other than in photographs. He arrived in the United States subsequent to the child's death.
As the child's father he sued the owners and operators of the apartment house for the wrongful death of his daughter under Florida Statute 768.03, F.S.A.
On the morning in question, Mrs. Martinez dressed Jacqueline in a swimming suit to swim as she had done before. Then Mrs. Martinez and Jacqueline
Defendants denied any negligence on their part and set up as a defense the contributory negligence of the mother in failing to maintain proper supervision of the deceased child. Plaintiff argues that even if the mother were contributorily negligent, it would not bar his recovery for he was out of the country at the time of the accident, and had in fact never seen his daughter since the mother had come to the United States in 1962 from Cuba while pregnant with Jacqueline.
The case was tried before a jury, and the jury by special verdict, F.R.Civ.P. 49(a),
Defendants do not contend, nor is there any such jury finding, that the father was negligent in any way. As stated above we sustain the findings of negligence on the part of the mother and defendants. The only problem remaining is whether the father is barred by the mother's negligence. If so, the case ends. If not, it must be remanded for a determination of plaintiff's damages.
(3) Question of Law to be Answered
Whether a father who sues under the Florida Statute 768.03, F.S.A. to recover damages for the death of his minor daughter is completely barred from recovery by the contributory negligence of the child's mother when the father neither knew nor should have known of the mother's negligent conduct in supervising the child.
The entire record in this case, together with copies of the briefs of the parties in this Court, are transmitted herewith.
This Court has seen fresh evidence of its importance both in judicial administration and, more important, in correct determination of Florida law. This is summarized in W. S. Ranch Co. v. Kaiser Steel Corp., 10 Cir., 1968, 388 F.2d 257, 265, n. 15 (dissenting opinion) [No. 9295, Feb. 1, 1968]:
It has been often used. To those discussed above see: Clay v. Sun Ins. Office, Ltd., 1960, 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170, on certification upon remand, Fla., 1961, 133 So.2d 735, on receipt of answers to certification, 5 Cir., 1963, 319 F.2d 505, rev'd, 1964, 377 U.S. 179, 84 S.Ct. 1197, 12 L.Ed.2d 229; Green v. American Tobacco Co., 5 Cir., 1962, 304 F.2d 70, on rehearing, 304 F.2d 85, on certification, Fla., 1963, 154 So.2d 169, on receipt of answers to certification, 5 Cir., 1963, 325 F.2d 673, cert. denied, 1964, 377 U.S. 943, 84 S.Ct. 1349, 12 L.Ed.2d 306, on appeal after retrial, 391 F.2d 97 [Jan. 24, 1968] [now pending rehearing en banc]. Whatever else might be said of Green, the failure of the procedure to give early decisive answers as in Shifflet and Hopkins may be due to the phrasing of the question certified (this possibility was avoided in Hopkins by n. 2, 358 F.2d at 349 and as we do here n. 6 infra).
"(2) The right of action as set forth in subsection (1) shall extend to and include actions ex contractu and ex delicto."