Halberg v. Young

• Decision Date: 17 April 1957
• Docket Number: NO. 4006.,4006.
• Parties: EMMA MARION HALBERG AND HERBERT P. HALBERG, INDIVIDUALLY AND JOINTLY, AND AS NATURAL GUARDIANS OF MARILYN SUE HALBERG, GERALD LESLIE HALBERG, AND DAVID ELLIOTT HALBERG, MINORS v. SAI K. YOUNG.
• Court: Hawaii Supreme Court

41 Haw. 634

EMMA MARION HALBERG AND HERBERT P. HALBERG, INDIVIDUALLY AND JOINTLY, AND AS NATURAL GUARDIANS OF MARILYN SUE HALBERG, GERALD LESLIE HALBERG, AND DAVID ELLIOTT HALBERG, MINORS

v.SAI K. YOUNG.

NO. 4006.

Supreme Court of the Territory of Hawai‘i.

Argued February 14, 1957.

Decided April 17, 1957.

RESERVED QUESTION TO THE SUPREME COURT, HON. CALVIN C. MCGREGOR, JUDGE.

Syllabus by the Court

As a general rule a tort committed upon one person furnishes no cause of action in favor of another.

Section 10486, Revised Laws of Hawaii 1945, the so–called death statute, gives no cause of action to a child for injuries to a parent not resulting in death.

A minor child has no cause of action for damages arising out of the disability of his mother caused by the negligence of a third person with attendant loss of acts of kindness, care, attention and other incidents of the parent and child relationship.

J. Garner Anthony ( Thomas M. Waddoups and Robertson, Castle & Anthony on opening brief; Frank D. Padgett and Robertson, Castle & Anthony on reply brief) for appellant.

William B. Cobb ( Levinson & Cobb on the brief) for appellees.

Arthur K. Trask (also on the brief as amicus curiae) for appellees.

Gilbert E. Cox ( Smith, Wild, Beebe & Cades with him on the brief for Association of Casualty and Surety Companies), amicus curiae.

RICE, C. J., STAINBACK AND MARUMOTO, JJ.

OPINION OF THE COURT BY STAINBACK, J.

This is an action for damages brought by a husband and wife and their three minor children against defendant for the recovery of damages arising out of injuries sustained by the wife and mother, Emma Halberg, in an automobile accident. Defendant moved to dismiss the complaint as to the minor plaintiffs on the ground it failed to state a cause of action. The presiding judge, having a well founded doubt on the question of the liability to the minor children for injuries to the mother, reserved to this court the question of law:

“Should the motion to dismiss be granted on the ground that a complaint of minor children for damages arising out of the disability of their mother, caused by alleged negligence of the defendant, with attendant loss of acts of kindness, care, attention and other incidents of the parent and child relationship, fails to state a claim upon which relief can be granted?”

It may be stated as a general rule that a tort committed upon one person furnished no cause of action in favor of another although there are a number of exceptions to this rule. For example, where a child is injured by a tort committed upon it, while the parent has no right to sue for the injury itself, it is recognized that the parent may maintain an action in his own right for an impairment of his parental rights caused by the injury, including any pecuniary loss suffered by him because of the injury to his child. Thus, the same act may be a wrong to more than one person. (52 Am. Jur., Torts, § 95, p. 438.)

But at common law no action exists in favor of a child for injuries sustained by his parents. (2 Cooley, Torts, 4th ed., § 174.) The cases so holding are numerous and will be discussed to some extent hereinafter.

Since 1892 the Hawaiian statute (Act 57, Session Laws of 1892, which is now Revised Laws of Hawaii 1945, section 1) provides: “Common law applies except when. The common law of England, as ascertained by English and American decisions, is declared to be the common law of the Territory of Hawaii in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by the laws of the Territory, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage * * *.”

Prior to 1893 the common law or civil law not contrary to Hawaiian law or usage was followed as reason and equity dictated.

Section 14 of the Civil Code of 1859 provided: “* * * 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.”

Section 823 of the same Code provided: “The several courts may cite and adopt the reasonings and principles of the admiralty, maritime, and common law of other countries, and also of the Roman or civil law, so far as the same may be founded in justice, and not in conflict with the laws and customs of this kingdom.”

The plaintiffs contend that even though at English common law no cause of action existed, yet a “Hawaiian common law” cause of action exists in favor of a minor child for non–fatal injuries to his parents, basing this on Hawaiian judicial precedents and Hawaiian usage. Kake v. Horton, 2 Haw. 209, as supplemented by Ferreira v. Honolulu R. T. & L. Co., 16 Haw. 615, is cited as the origin of this usage.

The case of Kake v. Horton, 2 Haw. 209, decided in 1860, held that where a husband came to his death by the wrongful act of defendant, the widow could maintain an action to recover damages resulting from his death. The court refused to follow the common–law rule that in a civil court the death of a human being could not be complained of as an injury, the wrong complained of being merged in the felony. (16 Am. Jur., Death, § 48, p. 38.) The basis of the decision is the court's right “* * * 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. We think reason and natural justice are clearly in favor of permitting an action to be maintained, upon the grounds relied upon in this case, and upon a resort, for light, to the laws of those countries, to whose authority and opinions we yield the highest veneration, we find that the old harsh rule, which had its origin in feudal times, has been superseded by liberal statutory provisions, more in accordance with justice and with the sentiments and circumstances of an enlightened age. As we are not fettered by the English Common Law rule on the subject, no legislative enactment is required to remove that obstacle to the maintenance of an action like the present in a Hawaiian Court, and we think it ought to be permitted, as being consonant with natural law and reason, as well as with the laws of civilized countries.” (Emphasis added.)

The court also cites a Massachusetts case which intimated that by the civil law and by the laws of France and Scotland, whose jurisprudence is mainly based upon the civil law, actions like the Kake case could be maintained and further stated that if the principles of civil law would permit the institution of such an action as the Kake case, it had no hesitation in preferring the doctrine of the civil law to that of the English law as they conceived the law “to be pre–eminently ‘founded in justice.’ ”

It will also be noted that in addition to calling attention to the doctrine of civil law, the court referred to the liberal statutory provisions (the Lord Campbell's Acts) as more in accordance with justice and with the sentiments of an enlightened age.

The original Lord Campbell Act was enacted in England in 1846. Thereafter, statutes were enacted in the various States beginning with New York in 1847, Vermont in 1849, Ohio in 1851, Pennsylvania in 1851, Maryland in 1852, Illinois in 1853, Michigan in 1857, Mississippi in 1857, Wisconsin in 1857, South Carolina in 1859, and perhaps others prior to the Kake decision.

There can be no doubt that the court was greatly influenced by the statutes all repudiating the common–law doctrine that no action would lie for the death of a human being.

Ferreira v. Honolulu R. T. & L. Co., 16 Haw. 615, following the rule laid down in Kake v. Horton, supra, held that an act may be maintained by a father for the death of his son caused by the negligence of another. There are also several additional cases deciding that widows may maintain actions for the deaths of their husbands, and a father for the death of a child. (Puuku v. Kaleleku, 8 Haw. 80;Kekauoha v. Sch. Robert Lewers Co., 1 Estee 75; 114 Fed. 849.) In all these cases the common–law rule that no civil action will lie for the taking of a human life was repudiated.

At common law a father having a right to the services of his child could recover for injuries to the child that deprived him of such services, and it is a logical step to hold the death of the child caused by such negligence of another should not deprive the father of the right to recover for his loss.

As a matter of fact, the whole doctrine that the death of a human being could not be complained of in a civil court as an injury, the wrong being merged in the public offense, was illogical, unjust, and beginning in 1846 (the date of the first Lord Campbell's Act) was rejected, usually by statute, in practically all of the States. This has not happened (either by statute or judicial decision) in the denial of a right of a child to sue for damages for injuries to his parent which does not result in death.

There is no decision of a Hawaiian court, supreme or nisi prius, that holds a minor child has a cause of action for injury to his parent and the overwhelming weight of authority is against such action.

However, the attention of this court has been called to a decision of the United States District Court for the Territory of Hawaii (Scruggs v. Meredith, 134 F. Supp. 868) and its approval by the Circuit Court of Appeals for the Ninth Circuit ( Meredith v. Scruggs, decided October 31, 1956, being number 15,019) holding that a minor has a cause of action for loss of support, maintenance, education, nurture, care, training and acts of kindness against a third person for negligently causing personal injury, not resulting in death, to the minor's mother.

This is a very well reasoned and in many...