Broughel v. S. New England Tel. Co.

• Decision Date: 13 February 1900
• Citation: 72 Conn. 617,45 A. 435
• Parties: BROUGHEL v. SOUTHERN NEW ENGLAND TEL. CO.
• Court: Connecticut Supreme Court

45 A. 435

72 Conn. 617

BROUGHEL

v. SOUTHERN NEW ENGLAND TEL. CO.

Supreme Court of Errors of Connecticut.

Feb. 13, 1900.

Appeal from superior court, Hartford county; George W. Wheeler, Judge.

Action by Andrew J. Broughel, Jr., administrator of George Davis, deceased, against the Southern New England Telephone Company for the wrongful death of plaintiff'* decedent. From a judgment in favor of plaintiff for nominal damages, he appeals. Reversed.

The complaint, in paragraph 4, alleged that the defendant "negligently, recklessly, willfully, and wrongfully cut wires belonging to the Hartford Electric Light Company, and by so doing caused an electric current to pass through the plaintiff's intestate," Davis, while engaged in the performance, of his duty as lineman for said electric light company, "and by this negligent and willful wrongdoing caused the death of the said plaintiff's intestate." The case was defaulted, and heard in damages. Upon this hearing the defendant gave written notice, under the statute and rules of court, that it would deny, and, if necessary, offer evidence to disprove, paragraph 4 of the complaint, and would offer evidence of contributory negligence. The parts of the finding material upon this appeal are these: "I find that the defendant did not prove that the death of the plaintiff's Intestate was not caused by its negligence, nor did it prove that it was caused through the negligence of the plaintiff's Intestate. Nor can I find that either of these facts was proved in this case. I find that the plaintiff's intestate died through the negligence of the defendant, to which the plaintiff's intestate did not materially contribute. Davis' death was instantaneous, and he suffered no pain or sensation, and never recovered the least consciousness. If, upon the facts, substantial damages should be awarded, I find the damage should be assessed at $5,000, which sum I so assess. I rule that nominal damages should be awarded, and assess the same at $100." The plaintiff claimed that he was entitled to substantial damages. The court overruled this claim, and gave judgment for nominal damages. The two errors assigned in the reasons of appeal relate to the action of the court in ruling (1) that upon the facts, as found, only nominal damages should be awarded; (2) that the plaintiff was not entitled to substantial damages, as claimed. Under section 10, c. 194, of the Public Acts of 1897, a bill of exceptions in favor of the defendant was allowed by the trial court, and appears in the printed record. It relates to certain decisions of the trial court against the defendant upon questions of evidence, and upon certain claims of law made by the defendant during the trial.

Edward D. Robbins, for appellant.

Prank L. Hungerford, James T. Moran, and John W. Ailing, for appellee.

TORRANCE, J. (after stating the facts). The trial court rendered judgment for the plaintiff for nominal damages only. From that judgment the plaintiff alone appealed. Upon that appeal the only grievance of which he complains is that the court gave him nominal, instead of substantial, damages. He is satisfied with the finding of facts as made. His only claim is that the trial court misapprehended the law, in giving him only nominal damages. The defendant did not appeal from the judgment, but it filed a bill of exceptions, which, as allowed by the court, appears in the record. The questions raised in that bill, however, are not necessarily to be considered in connection with those presented by the appeal. They are to be considered "only in case a new trial is advised." Pub. Acts 1897, c. 194, § 16. The questions raised by the appeal will be first considered.

The trial court has found that Davis' death was, legally speaking, due solely to the negligence of the defendant. It has also found that his death "was instantaneous with the shock of the electric current" that caused it. The court held that, inasmuch as the death was thus instantaneous, the law was so that the plaintiff was entitled to nominal damages only. In so holding, we think the court erred. One person may by a wrongful act cause the death of another person. In such case the death so caused may immediately follow the wrongful act,—may be, as we say, instantaneous with It,—or it may follow after some interval of time. In either case the wrongdoer has violated the rights of the other person; but in either case, at common law, the death of the injured person practically put an end to the liability of the wrongdoer civiliter for his act if the injured person died instantaneously, or died before suit was brought by or for him, the liability of the wrongdoer was at an end. If the injured person survived the act for a time, and brought suit, and pending suit died before trial, the suit abated, and the liability of the wrongdoer ended. The liability ended because the right to enforce it ended with the life of the injured person. Such right did not survive in favor of any one. The principles of the common law on this subject are embodied in the maxim, "Actio personalis moritur cum persona." Mr. Pollock calls the rule expressed in the maxim a barbarous one, "which has been made at all tolerable for a civilized country only by a series of exceptions." Pol. Torts, p. 54. This rule prevails in this state to-day, except so far as it has been modified or changed by statute or by judicial decisions. Mitchell v. Hotchkiss, 48 Conn. 1. Another rule said to be a rule of the common law was to the effect that "in a civil court the death of a human being cannot be complained of as an injury"; that is, that no one can maintain an action for damages for the mere loss of the life of another. Baker v. Bolton, 1 Camp. 493; Osborn v. Gillett, L. R. 8 Exch. 88. This rule formed part of our law, also, and prevails to-day, except as modified or changed by statute. Connecticut Mut. Life Ins. Co. v. New York & N. H. R. Co., 25 Conn. 205. The operation of these two rules frequently caused great hardship in cases of personal injuries resulting in death, and to remedy this hardship in such cases the rules in question, towards the middle of this century, began to be abrogated or modified by legislation. Lord Campbell's act, passed in England in 1846, may be said to have led the way in this kind of legislation; and it was speedily followed in this country by acts having in view the same general purpose as the English act. Speaking generally, this kind of legislation may be said to have, in effect, abolished one or the other, or both, of these rules, with reference to the class of cases here in question. Some of the acts provide that the decedent's cause of action against the wrongdoer shall survive, either for the benefit of his estate generally, or for the benefit of the beneficiaries described in the statute. Acts of this kind may be called "survival acts." By them, to a certain extent, both rules are abolished or made inapplicable. Other acts give substantially a new cause of action to certain described beneficiaries for loss sustained by them by the mere death of the injured person. Acts of this kind are not survival acts, and they, in effect, only abolish the second of the above rules. The English acts relating to this subject may be said to fall within the last class (1 Enc. Laws Eng. p. 108; Pol. Torts, pp. 59, 60, and cases cited), while our own act falls more nearly within the first class. Legislation upon this subject in this state began in 1848. In that year it was enacted that "actions for injury to the person, whether the same do or do not result in death, * * * shall survive to his executor or administrator, provided the cause of action shall not have arisen more than one year before the death of the deceased." Pub. Acts 1848, c. 5, § 2. The word "actions," as here used, means causes of action or rights of action. Soule v. Railroad Co., 24 Conn. 575. In 1875 the statute was changed in phraseology, and has since read, and now reads, as follows: "All actions for injury to the person, whether the same do or do not instantaneously or otherwise result in death, * * * shall survive to his executor or administrator," etc. Rev. St. 1875, p. 422, § 9; Gen. St. 1888, § 1008. In 1853 another statute was passed, which provided that "if the life of any person being a passenger or crossing upon a public highway in the exercise of reasonable care, shall be lost" by the negligence or carelessness of any railroad company in this state, such company should be liable to pay as damages for such loss a sum not exceeding five thousand nor less than one thousand dollars to the executor or administrator, for the benefit of the persons described in the act. The provisions of these two acts, with some changes which it is not here important to note, are now consolidated in sections 1008 and 1009 of the General Statutes. Among other things, these sections now provide, in substance, as follows: (1) That all causes of action for injury to the person of a decedent, "whether the same do or do not instantaneously or otherwise result in death," shall survive to his executor or administrator, "provided the cause of action shall not have arisen more than one year before the death" of the decedent; (2) that the recovery shall be for "just damages not exceeding five thousand dollars"; (3) that the damages recovered, whether in actions begun by the person Injured in his lifetime, or by his personal representative after the death of the person injured, shall be for the benefit of the persons named in the act; (4) that the action shall be brought within a prescribed time. This legislation, in effect, sets aside, in this class of cases, the rule expressed in the maxim, "Actio personalis moritur cum persona." Murphy v. Railroad Co., 30 Conn. 184, 188; Budd v. Railroad Co., 69 Conn. 272, 284, 37 Atl. 683, and it provides that the decedent's cause of action against the wrongdoer shall survive and be available to the executor or...