Foran v. Carangelo

• Court: Supreme Court of Connecticut
• Writing for the Court: Before KING; KING
• Citation: 153 Conn. 356,216 A.2d 638
• Parties: James E. FORAN et al. v. John CARANGELO.
• Decision Date: 25 January 1966

Page 638

216 A.2d 638 153 Conn. 356 James E. FORAN et al.
v.
John CARANGELO. Supreme Court of Connecticut. Jan. 25, 1966.

[153 Conn. 357]

Page 639

Jerome M. Griner, Hartford, for appellants (plaintiffs).

Philip S. Walker, Hartford, with whom were Leonard G. Tracy and, on the brief, Ralph C. Dixon, Hartford, for appellee (defendant).

Before [153 Conn. 356] KING, C. J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.

[153 Conn. 357] KING, Chief Justice.

This was an action in four counts brought against the defendant, an obstetrician, for breach of contract in his manner of providing professional care and treatment to Nora Foran, the wife of the named plaintiff.

In each of the first two counts it was alleged that the husband had requested the defendant to provide the wife, who was then pregnant, with obstetrical [153 Conn. 358] care and treatment, both prenatal and at delivery; that the defendant entered upon that service; and that as a result of the defendant's 'unworkmanlike' treatment, the wife died in the late afternoon of March 9, 1960, the same day on which delivery by Caesarean section had commenced.

In the first count, the sole plaintiff is the husband, and it was further alleged that, ever since the date of his wife's death, he has been, and forever will be, deprived

Page 640

of his wife's love, companionship, services and consortium. In a separate sentence it is alleged that as a result of the breach of contract he has suffered much mental pain and anguish and has been obliged to incur great expense. It is under the allegations of his sentence that the plaintiff is claiming certain antemortem, as well as postmortem, elements of damage.

The plaintiffs in the second count are all of the named plaintiff's minor children, who are suing through their father as next friend, as claimed third party beneficiaries of the contract alleged in the first count. They sought damages for the loss of the care and affection of their mother from the date of her death.

The third count, in which the husband is the sole plaintiff, alleges that on March 1, 1958, he requested the defendant to provide the wife, who was then pregnant, with obstetrical care and treatment, both prenatal and at delivery by Caesarean section, and, in addition, at the time of delivery to perform an hysterectomy, and that the defendant undertook that service. The breach here alleged is the nonperformance of the hysterectomy, which in turn permitted the pregnancy referred to in the first two counts of the complaint which resulted in the death of the named plaintiff's wife. The allegations of [153 Conn. 359] damage are substantially identical with those in the first count.

The plaintiffs in the fourth count, as in the second, are all of the named plaintiff's minor children, suing through their father as next friend and as claimed third party beneficiaries of the hysterectomy contract in the third count, and as damages from the breach thereof the minor plaintiffs claim the loss of the care and affection of their mother from the date of her death. ¹

Identical demurrers were addressed to each of the four counts and were sustained by the court on the first four of the five grounds asserted in them.

I

We first discuss counts two and four, in which the minor children are the plaintiffs, since it is clearly the fact, and the plaintiffs concede, that the only damage claimed in either of these counts arose subsequent to, and necessarily directly flowed from, the death.

Death, at common law, is not a recoverable element of damage. Floyd v. Fruit Industries, Inc., 144 Conn. 659, 668, 136 A.2d 918, 63 A.L.R.2d 1378. This seems to be the general rule. 22 Am.Jur.2d, Death, § 1. The same rule applies to any element of damage directly flowing from death. Lucier v. Hittleman, 125 Conn. 635, 637, 7 A.2d 647; 41 Am.Jur., Physicians and Surgeons, §§ 117, 120. In other words, death and its direct consequences can constitute recoverable elements of damage only if, and to the extent that, they are made so by statute. Broughel v. Southern [153 Conn. 360] New England Telephone Co., 72 Conn. 617, 620, 45 A. 435, 49 L.R.A. 404; Kling v. Torello, 87 Conn. 301, 306, 87 A. 987, 46 L.R.A.,N.S., 930. To the extent that cases such as Porpora v. City of New Haven, 122 Conn. 80, 95, 187 A. 668, and Giambozi v. Peters, 127 Conn. 380, 386, 16 A.2d 833, hold to the contrary, they are overruled, and the case of Burkhardt v. Armour & Co., 115 Conn. 249, 253, 161 A. 385, 90 A.L.R. 1260 (overruled in Porpora v. City of New Haven, supra, 122 Conn. 96, 187 A. 668), is reaffirmed. By our wrongful death statute (General Statutes § 52-555), death is made an element of damage for which recovery may be obtained pursuant to the procedure specified in that statute. But the statutory right of action belongs, in effect, to the...