Rohlfing v. Moses Akiona, Limited

Decision Date28 November 1961
Docket NumberNo. 4136,4136
CourtHawaii Supreme Court
Parties, 45 Haw. 443 F. W. ROHLFING, Administrator of the Estate of George A. Grover, Deceased, v. MOSES AKIONA, LTD., a Hawaii corporation, and City and County of Honolulu, a municipal corporation.

Syllabus by the Court

1. R.L.H.1955, § 246-6, provides for the survival of a cause of action, even though no action was commenced during the lifetime of the injured person.

2. Under the survival statute, R.L.H.1955, § 246-6, there survives in favor of the legal representative of an injured person, who has died as a result of the injury, such cause of action as decedent himself had at the time of his death.

3. The principle that: 'In a civil court, the death of a human being could not be complained of as an injury,' enunciated in Baker v. Bolton, 1 Camp. 493 (1808), was rejected in 1860 by Kake v. C. S. Horton, 2 Haw. 209, and under R.L.H.1955, § 1-1, is not a part of the common law of Hawaii.

4. It is not necessary, in order for the survival statute (R.L.H.1955, § 246-6) to apply, that the injured person live after the accident. A personal representative may sue under the statute even in the case of instantaneous death.

5. When an injured person has died as a result of his injury and an action is brought by his legal representative under the survival statute (R.L.H.1955, § 246-6), recovery may be had for the present worth of decedent's likely earnings during the period of his life expectancy, but diminished by the probable cost of his own maintenance, and the provision he would have made for his family and dependents, during the time he would likely have lived but for the accident. In computing these deductions the jury is to assume a standard of living commensurate with the supposed income of decedent.

6. When an injured person has died as a result of his injury and an action is brought by his legal representative under the survival statute (R.L.H.1955, § 246-6), the award under the survival statute is not to include compensation for loss of enjoyment of life. Compensation for sentimental losses is recoverable in the action under the wrongful death act (R.L.H.1955, § 246-2).

7. Though damages based on the likely earnings of a child four years old at the time of his death are highly speculative, that is not a reason for denying such damages altogether.

8. In a case of death by drowning, the question of damages for pain and suffering is one of fact, and the jury is to determine whether and to what extent conscious pain and suffering were sustained. When the case is before the court on the pleadings it cannot be said as a matter of law that such damages are too conjectural to be permitted to go to jury. How much evidence is required to recover such damages, and how much may be left to conjecture, are matters to be considered at a later stage of the case.

F. W. Rohlfing, Moore, Torkildson & Rice, Honolulu, for appellant.

Morris P. Skinner and Skinner, Bennett & Ornelles, Honolulu, for respondents.

Before TSUKIYAMA, C. J., CASSIDY, WIRTZ and LEWIS, JJ., and HAWKINS, Circuit Judge, assigned by reason of vacancy.

LEWIS, Justice.

This is an appeal by the administrator of an estate whose complaint under R.L.H.1955, § 246-6, 1 was dismissed on motion of defendants under Hawaii Rules of Civil Procedure, Rule 12(b), for failure to state a claim upon which relief can be granted. The complaint alleged that plaintiff's intestate, four years of age, fell into a water hole and was drowned through the carelessness to defendant Moses Akiona, Ltd., a contractor for the other defendant, City and County of Honolulu.

The trial court was of the view that when a person is injured and then dies the cause of action survives under R.L.H.1955, § 246-6, but that it was not the intention of the legislature that this statute apply in the case of instantaneous death; further, that death by drowning is instantaneous or so nearly so as to be in law treated as instantaneous death. The complaint having been dismissed accordingly, this appeal from the judgment of dismissal presents the question whether the administrator of an estate can sue under R.L.H.1955, § 246-6, in a case of death by drowning. For reasons which will appear, we shall assume for present purposes that death by drowning is 'instantaneous.' We will examine that matter more closely at a later point in the opinion, when we consider the claim for damages for pain and suffering of plaintiff's intestate.

Prior to the enactment of section 246-6 by S.L.1955, Act 205, the common law rule actio personalis moritur cum persona applied in this jurisdiction. See Bishop v. Lokana, 6 Haw. 556 (Decision of Judd, C. J.) (1885); City and County v. Sherretz, 42 Haw. 177 (1957). However, there was and had been since 1923 a statute of the Lord Campbell's Act type, 2 now R.L.H.1955, § 246-2, 3 which prior to 1955 provided only for suit by dependents. Moreover, there had been since the decision in Kake v. Horton in 1860, 2 Haw. 209, a nonstatutory right of recovery on the part of persons, standing in certain legal relationship to the decedent. (See Hall v. Kennedy, 27 Haw. 626 (1923)), for the damages sustained by themselves; this rule of Kake v. Horton had not been superseded by the last mentioned statute, as held in Gabriel v. Margan, 37 Haw. 571 (1947). Act 205, S.L.1955, which enacted the provision for survival of actions, now section 246-6, also made extensive amendments of the 1923 statute so as to broaden its coverage in the light of Gabriel v. Margah, supra. (House Journal 1955, Stand.Com.Rep. 581, p. 772). The present action embraces no claim under the amended 1923 statute, section 246-2.

Defendants contend that section 246-6 is not applicable when an injury results in death, and that section 246-2 affords the only remedy in such a case. It is our view, however, that section 246-6 is not limited to the case in which death ensues from some cause other than the wrongful act complained of. 1 Am.Jur., Abatement and Revival, § 135. The words 'by reason of the death of the injured person' are plain. Moreover, the statute is not limited to the revival of an action commenced during the lifetime of the injured person. While the words 'shall not abate' in the first sentence are not the best form of expression, nevertheless when these words are read with the words 'A cause of action' also used in that sentence, and with the words 'shall survive' in the second sentence, it is clear that the survival of the cause of action itself is provided for by this section.

This still leaves the question what cause of action there is that can survive in a case like the present one. Plaintiff concedes that under R.L.H.1955, § 246-6, there survives in favor of the legal representative only such cause of action as decedent himself had at the time of his death. We therefore must determine what claim was vested in the decedent at the moment of his death.

This question came before the House of Lords in Rose v. Ford (1937) A.C. 826. Two years earlier, in Flint v. Lovell (1935) 1 K.B. 354, the Court of Appeal had held that a plaintiff injured in an accident might recover not only for his pain and suffering and for his mental disquietude through the prospect of an early death, but also for the substantial shortening of his life shown by medical testimony to be a reasonable certainty. No loss of earnings was involved. The later case, Rose v. Ford, was brought under the survival statute, the Law Reform (Miscellaneous Provisions) Act, 1934. Flint v. Lovell was approved, and it was held that the principle of that case should have been applied. The opinions rendered by four of the five Lord Justices brought out the following points, among others:

1. The principle of Baker v. Bolton, enunciated in 1 Camp. 493, 170 Engl.Rep. 1033 (1808), accepted by the House of Lords in the case of The Amerika, (1917) A.C. 38, was illogical. In Baker v. Bolton it had been affirmed that: 'In a civil court, the death of a human being could not be complained of as an injury * * *.' This principle had been applied only to a claim for damages to a third person because of some other person's death from a tortious injury, and in Rose v. Ford it was held that it was not to be extended to the case of an injured person damnified by having cut short the period during which he had a normal expectation of enjoying life.

2. A living person could claim damages for loss of expectation of life, and that right, which was vested in him in life, on his death passed to his personal representative. When the principle actio personalis moritur cum persona was abolished by statute there no longer was anything to prevent a recovery. Only that principle had prevented the personal representative from suing previously; the other doctrine that the death of a person did not give a claim for damages, applied in Baker v. Bolton where a husband was claiming damages for the loss of his wife, never did apply to the injured person's own claim, since the personal representative was altogether prevented from suing prior to the survival statute.

3. The survival statute there involved, which was expressly limited to causes of action vested in the decedent upon his death, applied upon the foregoing reasoning.

The rule of Rose v. Ford was applied in a case of simultaneous death in Morgan v. Scoulding (1938) 1 K.B. 786. It was applied in the case of a child two and a half years of age, who died the same day as the accident, in Benham v. Gambling (1941) A.C. 157, the award of damages being less, however, because of the uncertainty of the child's future.

In the United States Baker v. Bolton attained a preeminence that the case never attained in England, being extended in many states to the case of the injured person himself. Thus in Krakowski v. The Aurora, Elgin and Chicago R. R., 167 Ill.App. 469 (1912), judgment for plaintiff was reversed because he...

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