Rohlfing v. Moses Akiona, Ltd.

OPINION OF

CASSIDY, J.,

WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING IN PART AND DISSENTING IN PART.

The amended complaint in this action alleges that on March 19, 1958, plaintiff’s intestate, a 4-year-old child, fell into an open water-filled ditch negligently maintained by the defendants, and “subsequently, on the same day, drowned.” Damages prayed for in stated amounts respectively are: (1) “For pain and suffering by the deceased prior to his death;” and (2) “For the earnings which he would have received during his life expectancy after attaining the age of twenty years.”

The lower court granted the defendants’ motion to dismiss for failure of the complaint to state a claim upon which relief could be granted. The court concluded:

“Sec. 246-6, RLH 1955 was not intended to apply to a case where death is instantaneous or so nearly so as to be in law treated as an instantaneous death. Compare Barton v. Brown, 145 U.S. 335 , at page 348. In that situation only the wrongful death statute applies. (Sec. 246-2, RLH 1955).”

In reversing, the majority of this court holds that where the death of a person is caused by the negligence *399 of another, the personal representative of the decedent may maintain an action with the right to recover damages not only for pain and suffering but also for the present value of what has been termed “excess earnings,” being a portion of the earnings the decedent could have been expected to receive but for his untimely death.

I agree with the court’s determination that where, as is alleged in this case, death is caused by drowning resulting from another’s negligence, the decedent’s estate may recover damages for pain and suffering if, and to the extent, the decedent’s personal representative is able to substantiate as a matter of fact that the decedent was subjected to pain and suffering. However, with all deference, I am unable to agree that the law recognizes a right of recovery in favor of the estate for damages in any manner predicated on estimated earnings of the decedent projected beyond the date of his death.

As is readily apparent from the court’s opinion, the issue on which I differ with the majority has vexed the courts in many jurisdictions. There is considerable difference in the rationale underlying the decisions on the subject. This may be attributed to a good extent to the difference in the particular statutes involved, but the holdings of the courts, regardless of their reasoning, seem, with few exceptions, to point to and reach the same result. It is my opinion from an over-all review of the cases that the weight of authority and better reasoning deny recovery of damages by an estate for projected post-mortem earnings of the decedent, and I think this result is particularly supported and called for where a survival statute comparable to § 246-6 is complemented by a wrongful death statute such as we have in § 246-2.

Section 246-6 does not create any new cause of action. It is a survival statute pure and simple. Its only effect is to remove the previously existing common law bar to *400 suit under the rule actio personalis moritnr cum persona. When § 246-6 is invoked, only such cause of action as the decedent himself had at the time of his death may be sued on by his personal representative. This means only such cause of action as the law recognized at the time of the enactment of the statute. The cause of action must exist independent of § 246-6. The plain wording and obvious purpose of the section do not permit any statement contained in a legislative committee report to cast doubt on this construction. Cf., Farrington v. Stoddard, 1 Cir., 115 F.2d 96, 100 .

I am persuaded that Krakowski v. The Aurora, Elgin & Chicago R.R., 167 Ill. App. 469 , is sound and is representative of the majority view in this country in its holding that a person whose life would be shortened by injury is not entitled to recover damages “for any earnings he might be supposed to make, if living, in that part of his life lost by reason of his injuries.” (pp. 472-473.)

The Krakowski case involved an action brought by the injured party while alive. But the basic principle of the case is soundly applied in a jurisdiction having a wrongful death statute where the action is brought under a survival statute by the personal representative of a decedent who died as a result of injuries inflicted by the tortfeasor. Illustrating this type of case is Hindmarsh v. Sulpho Saline Bath Co., 108 Neb. 168 , 187 N.W. 806 . In a well considered opinion the court rules, at p. 809:

“Where the remedies are held to be concurrent, and we take it they are concurrent in this state, the recovery in the revived action must be limited to such as the deceased might have recovered, had he lived, but not extending beyond the time of his death.”

In Gochenour v. St. Louis San Francisco Ry., 205 Okl. 594 , 239 P.2d 769 , the same conclusion is stated at pp. 770-771, as follows:

*401 “Plaintiff properly assumes that under 12 O.S.A. § 1053, there is created a new cause of action for wrongful death separate and distinct from the cause of action accruing to the injured person during his lifetime for injuries to his person, and that the latter cause of action, by virtue of 12 O.S.A. § 1051, survives the death of the injured person and may also be maintained by his personal representatives. The damages to the injured person’s estate begin with the wrong and cease with his death. The damage to the surviving widow and child begin with and flow from the death of the injured person.” (Emphasis added.)

Unlike the majority, I find the approach and answer to the problem given in Allen v. Burdette, 139 Ohio St. 208 , 39 N.E.2d 153 , also persuasive. In holding that the right of recovery passing to the decedent’s personal representative under a survival statute did not extend to loss of earnings projected beyond the time of decedent’s death, the court states in that case, at p. 154:

“The ground upon which evidence of prospective earnings of the deceased was sought to be introduced was that, if an action based upon a claim of permanent injuries had been instituted by the person injured, evidence would have been admissible to show his probable length of life and thereby furnish a basis of computation of the loss resulting from his inability to work and earn money from the time of his injury to the probable time of his death. However, a complete answer to this proffer of evidence is that, while it tends to show the probable length of life and the estimated time of death, it has no place in this case, for the actual time of death is established and it becomes unnecessary to deal in probabilities. Where death has actually occurred, the theory of prospective damages included in such survival claim has no place whatever. *402 Mortality tables are competent because they are regarded as the best evidence of life expectancy; but they have no applicability and their competency therefore disappears when there is no expectancy of life to calculate. Fact had been substituted for prophecy. Death is not a matter of the future; it had already occurred. What had been uncertain and speculative became definite and certain; what had been unknown became known. The loss sustained by an injured person accrues at the time of his death, and it is the wrongful death which gives rise to a cause of action on behalf of the designated next of kin.

“It must be concluded, therefore, that in the survivor action recovery by the administrator is limited to such damages as the deceased might have recovered had he lived, but for no loss of earnings extending beyond the time of his death.” (Emphasis added.)

See also Ellis v. Brown, Fla., 77 So. 2d 845 ; Richmond Gas Co. v. Baker, 146 Ind. 600 , 45 N.E. 1049 ; St. Louis & S. F. R. Co. v. Goode, 42 Okl. 784 , 142 Pac. 1185 ; O’Leary v. United States Lines Co., D. Mass., 111 F. Supp. 745 ; Farrington v. Stoddard, supra.

It is argued however that any rule which denies an estate the right to recover damages based on earnings for the decedent’s lost years is a harsh one in that it permits the wrongdoer by the excessiveness of his own tort to escape paying full compensation for the injury caused by him. There should be two sides to this proposition. It is not difficult to understand how sentiment could be mustered to favor extending the right of recovery where only a survival action is available or where the wrongful death statute is restricted, even though it should be apparent that, logically analyzed, any such extension would actually be punitive for the wrong committed while, inconsistently, the damages allowed would be admeasured *403 without regard to the degree of culpability. It seems to me, however, that where there is concurrently available a right of recovery in dependents and next of kin under a liberal wrongful death act, then, if the matter is to be determined on a basis of fairness to all parties, it is quite necessary in order to avoid duplication of damages and the unjustified consequences thereby imposed on the tortfeasor that the separate areas of recovery .in each of the two permitted actions be clearly demarcated.

Section 246-6 was enacted by Act 205, S.L. 1955. The same act amended the wrongful death act (now § 246-2) to make it much more comprehensive than it had been, so much so that, as the majority states, “the common law action for wrongful death was merged with the statutory action under that section.” The rights of action under § 246-2 and under § 246-6 are independent and may be concurrently pursued. Under these circumstances, it is my conviction that the rule should be approved and adopted which denies the right in a survival action to recover damages based on an estimate of earnings beyond the date of decedent’s death. That we would be but following the authorities generally in doing so is indicated in the annotation appearing in 42 A.L.E. 187, in which the author states, at p. 188:

“* * * Where, however, the remedy by revival of the pending action is not exclusive, but there also exists a right of action in behalf of certain designated persons to recover compensation for their pecuniary loss, a large element of which is loss of support, it is generally held that the injured person’s earning capacity from the time of his death for the period of his life expectancy is to be the basis for assessing compensation for loss of support; hence, in the revived action, compensation for impaired or destroyed earning capacity is limited to the period of time intervening *404 between the injury and the death. This seems to be necessary if double damages are to be avoided.”

I do not think that consideration of Kake v. Horton, 2 Haw. 209 , and the modern English decisions referred to and relied on in the court’s opinion requires or supports a different holding.

In Kake v. Horton the court ruled that a widow could recover consequential damages resulting from the death of her husband through another’s fault. In making this ruling the court refused to follow the common law principle that an action would not lie in favor of one spouse for the wrongful death of the other spouse, established by Baker v. Bolton, 1 Campbell’s Reports 494. The court that decided Kake v. Horton was unfettered by the common law. It was not only authorized, but was required by statute (C.C. 1859, § 14, quoted in the margin 1 ) to decide civil cases in the absence of express law according to equity and the court’s understanding of natural law and to apply necessary remedies to evils that are not specifically contemplated by law.

In deciding this case we are not as unfettered as the court was in deciding Kake v. Horton . The great freedom of judgment and action permitted the judiciary under the 1859 Code was removed in 1892 by the enactment in place of § 14 of the more restrictive provisions now appearing as R.L.H. 1955, § 1-1, which in pertinent part read:

“The common law of England, as ascertained by English and American decisions, is declared to be the common law of the [State] of Hawaii in all cases, *405 except as * * * fixed by Hawaiian judicial precedent.”

It should be apparent from the authorities referred to in the forepart of this opinion that it cannot be said the common law of England, as ascertained by American decisions, has recognized the right of recovery under consideration. It is certain that no such right of recovery can be founded on the English decisions.

Prom the cases referred to in the court’s opinion, it is seen that under the present English law an injury Avrongfully inflicted on a person Avhich shortens his life gives rise to special damages for the shortening of life.

As paraphrased in the prevailing opinion, it was held in Flint v. Lovell, (1935) 1 K.B. 354, that an individual injured by the wrongful act of another has a right of action not only “for mental disquietude through the prospect of an early death, but also for the substantial shortening of his life shoAvn by medical testimony to be a reasonable certainty.” This case was approved in a survival action in Rose v. Ford, (1937) 137 A.C. 826, and Avas made applicable to a simultaneous death in Morgan v. Scoulding, (1938) 1 K.B. 786. In Benham v. Gambling, (1941) A.C. 157, the rule allowing damages for early death was applied to a child dying on the same day of the accident causing his death. However, as the majority recognizes, none of these cases supports or affords a basis for the proposition that the injured person, during his lifetime, or his estate after his death, has a right of action for loss of earnings cut off by death. In Benham v. Gambling, supra, Viscount Simon (L.C.), speaking for and with the concurrence of the other members of the court, makes it clear that the English rule does not include damages based on estimated earnings for the years cut off by the injured person’s death. At p. 167 of the opinion it is stated:

“* * * As Lord Wright said in Rose v. Ford (I) *406 special cases suggest themselves where the termination of a life of constant pain and suffering cannot be regarded as inflicting injury, or at any rate as inflicting the same injury as in more normal cases. I would further lay it down that, in assessing damages for this purpose, the question is not whether the deceased had the capacity or ability to appreciate that his further life on earth would bring him happiness; the test is not subjective and the right sum to award depends on an objective estimate of what kind of future on earth the victim might have enjoyed, whether he’ had justly estimated that future or not. Of course, no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages ame in respect of loss of life, not of loss of future pecuniary prospects.” (Emphasis added.)

Further, the English decisions, even to the limited extent they permit enhancement of damages by reason of the shortening of the injured person’s life, have not met with approval or acceptance in this country. Pointing out the difficulties and dissatisfaction the English courts have experienced in applying their rule, the court in Rhone v. Fisher, Ct. App., 224 Md. 223 , 167 A.2d 773 , states at pp. 777 and 778:

“The experience of the English courts with the rule and the virtual emasculation thereof which has evolved from that experience, as well as the rather ephemeral considerations which must be taken into account under it, and also the possible duplication or overlapping of compensation under this and other heads of damages (a possibility which Roche, L. J. thought had become in large part an actuality in Flint v. Lovell, supra) do not commend the English rule to us as one for adoption in this State.

*407 “We find no compelling ground for adopting this new rule of damages which is at variance with what seems to have been long accepted here. Though we think it true that this is the first case in which this court has been directly asked to adopt lost years of life expectancy as a separate element of damages in a negligence case, that very fact.suggests that the law has long been considered to be otherwise.”

See also O’Leary v. United. States Lines Co., supra; Farrington v. Stoddard, supra.

■ Since the right to recover damages for loss of earnings attributable to the decedent’s lost years cannot. be sustained under the common law as ascertained by English and American decisions, the only other basis for sustaining the right of recovery would have to be that such a right has been “fixed by Hawaiian judicial precedent.” This means, as I analyze our problem, that Kake v. Horton, supra, relied on by the majority, would in itself practically have to sustain the right of recovery. And in my opinion the case cannot carry the load assigned to it.

In declining to follow the common law rule that the death of a human being could not be complained of, established by Baker v. Bolton, supra, the court in Kake v. Horton held that a widow has a legal right to complain and to be redressed for injuries resulting to her by the tortiously caused death of her husband. The cause of action so recognized rested on the close relationship between the claimant and the decedent. The principle established by the case applies to cases in which such a relationship exists. I view the existence of the close relationship as an essential element of the principle underlying the cause of action sustained in Kake v. Horton .

In Ferreira v. Honolulu R. T. & L. Co., 16 Haw. 615 , the court applied the principle established by Kake v. Horton to allow recovery by a father for the injury suf-' *408 fered by him by reason of the death of a son. In that case the concept of a relationship with the decedent being basic to recovery is reflected in the statement of the court, at p. 628, as follows:

“There was no error in refusing to direct a verdict requested for the defendant on the ground that an action cannot be maintained in this Territory by a father for the death of a minor child. Kake v. Horton, 2 Haw. 209 ; Puuku v. Kaleleku, 8 Haw. 80 ; Kekauoha v. Sch. Robert Lewers Co., 1 Estee 75; 114 Fed. 849 . It is true that in the cases cited the actions were by widows for the deaths of their husbands, but the reasoning upon which the decisions were based is equally applicable to actions by parents for the deaths of their children.”

That the principle in Kake v. Horton limits recovery to one standing in a particular relationship to decedent is, I think, quite clearly indicated in Gabriel v. Margah, 37 Haw. 571 , by the statement of the court at p. 577, as follows:

“* * * Hence it may be said that the cause of the action adopted in the Kake case and applied in that case to the relation of husband and wife, and in the Ferreira case to the relation of parent and minor child, is based upon the statutory legal incidents of the relation pre-existing between the plaintiff and the deceased and the reciprocal legal rights and duties of the parties attached to such relation.”

In accordance with the foregoing, I dissent from the holding of the court that the complaint in this case states a claim for recovery of damages predicated on expected earnings of the deceased child. I concur in the reversal of thé order dismissing the complaint on the limited grounds that the complaint is sufficient to allow the plaintiff an opportunity to establish pain and suffering as a matter of fact.

§ 14. The Judges have equitable as well as legal jurisdiction, and in all civil matters, where there is no express law, they are bound to proceed and decide according to equity, applying necessary remedies to evils that are not specifically contemplated by law, and conserving the cause of morals and good conscience. To decide equitably, an appeal is to be made to natural law and reason, or to received usage, and resort may also be had to the laws and usages of other countries.