Ciarrocchi v. James Kane Co.
| Decision Date | 27 November 1953 |
| Docket Number | No. 5-51.,5-51. |
| Parties | CIARROCCHI v. JAMES KANE CO. et al. |
| Court | U.S. District Court — District of Columbia |
Harry E. Taylor, Jr., Washington, D. C., for plaintiff.
Robert E. Anderson, John Daily, Washington, D. C., for defendants.
Plaintiff's action, brought in her individual capacity, is to recover for loss of consortium with her husband who was killed while acting in the cause and scope of his employment with defendant James Kane Company, a subcontractor. Defendant Standard Construction Company was the general contractor on the job site where plaintiff's husband was killed. As a consequence of her husband's death, plaintiff is receiving payments as provided in the Longshoremen's and Harbor Workers' Compensation Act,1 made applicable to the District of Columbia as a workmen's compensation act.2
Defendant has moved to dismiss on two grounds: (1) There is no action at common law for injuries resulting from death. (2) The remedy provided in the Longshoremen's and Harbor Workers' Compensation Act is exclusive as against the employer.
To sustain her right to commence this type of action, plaintiff relies upon the law enunciated in Hitaffer v. Argonne Co., 1950, 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, and reasonable inferences therefrom. The Hitaffer case stands for two propositions: (1) A wife has a cause of action for loss of consortium due to a negligent injury to her husband and (2) The exclusive liability provision of the Longshoremen's and Harbor Workers' Compensation Act is between the employer and the injured employee or anyone suing in the employee's right and does not proscribe a third person's cause of action for the breach of some independent duty owed that person by the employer. But the Hitaffer case is inapplicable to the facts here.
The present case would be the Hitaffer case precisely, except that here the husband died as a result of the accident. Defendants maintain that any action for injuries resulting from death must be brought under the Wrongful Death Act.3 This Act limits the right to such action to the personal representative of the decedent, and with respect to the damages recoverable, provides that they "be assessed with reference to the injury resulting from such act, neglect, or default causing such death, to the spouse and next of kin of such deceased person * * *." It has been said that in the District of Columbia the amount recoverable is limited to pecuniary losses,4 which include the value of the lost earnings and of the personal service and attention which would have been of material value to the members of the family, and not the loss of society and companionship. Because damages in an action by wrongful death are limited to pecuniary loss, plaintiff claims to be fortified in her position that the Hitaffer case established an action for loss of consortium which is separate from any action the personal representative may maintain under the Act. In the Court's opinion, this contention cannot be sustained.
At common law, a wife has no right of action for loss of consortium or other injury on account of the death of her husband by wrongful act.5 The Hitaffer case only gave her a right of action for loss of consortium in case of injury. That no civil action can be maintained at common law for wrongful death is noted by a statement in the leading case of Michigan Central Railroad Co. v. Vreeland, 1913, 227 U.S. 59, 67, 33 S.Ct. 192, 195, 57 L.Ed. 417, that, "Nothing is better settled than that, at common law, the right of action for an injury to the person is extinguished by the death of the party injured." The doctrine has been considered as derivative of: the common-law maxim, "a personal right of action dies with the person"; a human life cannot be evaluated in terms of money; and, where a wrongful death is merged with a felony, the civil wrong is merged with the crime. However open the doctrine may be to criticism,6 its existence and rigidity may not now be questioned.7
Any remedy had to be by statute. Briefly, the right of action to recover damages for wrongful death was first given in 1846 by Lord Campbell's Act.8 The Act provided for bringing of a death action, by and in the name of the executor or administrator, where the person injured could have recovered himself if he had survived. And, as regards the amount recoverable, it provided, "* * in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties, respectively, for whom and for whose benefit such action shall be brought". Lord Campbell's Act has since been adopted in every state, with more or less change with respect to the persons to be benefited, the parties in whose name the action shall be brought, and the measure of damages to be recovered. The District of Columbia's death by wrongful act statute, patterned after Lord Campbell's Act, was enacted in 1885.
Plaintiff admits that there was no survival at common law of a personal injury action for the benefit of the injured party's estate, but contends that the remedy of this inequity was not meant to bar actions where an independent duty was owed to a person other than the deceased. It is clear, however, that the common-law prohibition is complete and is not limited to an action by one in behalf of the deceased for those damages which he could have recovered had he lived.
The caution of a court presided over by Lord Campbell in Blake v. Midland R. Co., 1852 10 Q.B. 93, 118 Eng. Reprint 35, is an indication that Lord Campbell's Act introduced a new and sole ground of recovery for injuries resulting from death. The Court said: "There may be a calculation of the pecuniary loss sustained by the different members of the family from the death of one of them: but, if the jury were to proceed to estimate the respective degrees of mental anguish of a widow and twelve children from the death of the father of the family, a serious danger might rise of damages being given to the ruin of the defendants".9 There are now a number of courts which allow recovery for non-pecuniary damages, including recovery for loss of the husband's society.10 Yet it is certain that recovery, if it is to be had at all, must be under statute.
The Hitaffer case 87 U.S.App.D.C. 57, 183 F.2d 819 rejected what it considered "the specious and fallacious reasoning" of cases...
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Carson v. Sim
...actions, against their employers or co-workers if the injuries are covered by the Act.” Id. at 660–61 (citing Ciarrocchi v. James Kane Co., 116 F.Supp. 848, 851 (D.D.C.1953)). In other words, “if an injury is within the Act's coverage, an employee (or representative) may only pursue a claim......
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Burns v. Van Laan
...and advice of Mr. Wisemiller, her husband.' Of the Vreeland case the district court for the District of Columbia said (Ciarrocchi v. James Kane Co., 116 F.Supp. 848, 850): 'At common law, a wife has no right of action for loss of consortium or other injury on account of the death of her hus......
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Harrington v. Moss
...as wrongful death actions, against their employers or co-workers if the injuries are covered by the Act. See Ciarrocchi v. James Kane Co., 116 F.Supp. 848, 851 (D.D. C.1953). In summary, if the injury is within the Act's coverage, an employee (or representative) may only pursue a claim befo......
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Joy v. Bell Helicopter Textron, Inc.
...action available to a surviving spouse or next of kin when an individual died as a result of a wrongful act. See Ciarrocchi v. James Kane Co., 116 F.Supp. 848, 850 (D.D.C.1953). The underlying theory was that "a personal right of action dies with the person." Id. Because there was no common......