Gabriel v. Margah

Citation37 Haw. 571
Decision Date29 August 1947
Docket NumberNO. 2629.,2629.
PartiesANTONE GABRIEL AND ANNIE GABRIEL v. HARRY MARGAH.
CourtSupreme Court of Hawai'i

OPINION TEXT STARTS HERE

EXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT, HON. A. M. CRISTY, JUDGE.

Syllabus by the Court

Laws of 1923, chapter 245, as amended (R. L. H. 1945, section 10486), commonly referred to as the “death statute,” did not abrogate the cause of action for death by a wrongful act, adopted and made a part of the common law of Hawaii in Kake v. C. S. Horton, 2 Haw. 209.

While in an action by parents for damages caused them by the death of their minor child by the wrongful act of another, pecuniary damages are the limit of recovery, they include compensation for losses which are difficult of exact estimation and to which no standard of value may be applied and the damages for which are and necessarily must be left to the sound discretion of the trier of the facts.

A. K. Trask (also on the brief) for plaintiffs.

J. P. Russell ( Anderson, Wrenn & Jenks with him on the briefs) for defendant.

KEMP, C. J., PETERS, J., AND CIRCUIT JUDGE CORBETT IN PLACE OF LE BARON, J., ABSENT.

OPINION OF THE COURT BY PETERS, J.

This is an action by the parents of a legitimate minor female child for damages caused them by her death by the wrongful act of the defendant. Every consideration indicates that the cause of action asserted is that accorded parents by the common law of Hawaii for damages resulting from the death of their minor children by the wrongful act of another. A trial was had, jury waived. The court found for the plaintiffs and awarded damages segregated in amount and based upon the following elements: (a) earning capacity during the remaining minority of the deceased, less cost of maintenance, (b) funeral expenses, and (c) loss of association, comfort and presence of the deceased.

The determinative issue of law presented for review is the legal effect of the enactment by the legislature in the year 1923 of the statute, since amended in 1931 and 19351 and, as amended, in existence at the time of the death of the plaintiffs' minor daughter (October 21, 1944), commonly known as the death statute, giving dependents a right of action for death caused by the wrongful act of another, the full text of which which is quoted in the margin, 2 appellant contending that under the opinion of this court in Globe Indemnity Co. v. Araki, 32 Haw. 153, the only cause of action for wrongful death in this jurisdiction at the present time is that given by the statute quoted, it, as contended, having abrogated any common–law remedy which might have theretofore existed, and that under the case of Young v. Hon. C. & D. Co., 34 Haw. 426, recovery can be had only on a showing of dependency. If the contentions of appellant are sound, the legal result would be that in the absence of evidence of dependency there could be no recovery by a parent for damages as the result of the death of a legitimate minor child by the wrongful act of another. Appellant saves the additional points (a) that even if this court arrives at a contrary conclusion and holds that under the existing law in the absence of dependency there is available to plaintiffs an action on the case to recover consequential damages resulting to them by reason of the death of their minor child by the wrongful act of the defendant in error, they are not entitled to damages for “loss of association, comfort and presence” (the third element of damage considered by the trial court), the same being incapable of pecuniary valuation, and even if so, the proof is inadequate to establish such pecuniary loss, and (b) that there is no evidence of reasonableness of the amount awarded by the trial court as damages for funeral expenses.

Appellant argues that section 10486 is a comprehensive statute covering all rights of action which may arise by the wrongful act of another resulting in death to an individual; that it was obviously intended to cover all possible cases and replace any previously existing rights of action and under the established rules of statutory construction it has superceded the common–law right of action adopted in Kake v. C. S. Horton, 2 Haw. 209, and followed in Ferreira v. Honolulu R. T. & L. Co., 16 Haw. 615.

While common law, differently from statute law, does not rest for its authority upon any express or positive declaration of the will of the legislature, the question of whether a law establishing private rights and included in the common law has been impliedly repealed by a later statutory enactment is determined by the same principles of construction applicable to the implied repeal of statutes. Revised Laws of Hawaii 1945, section 25, provides that the repeal of the law is implied “when the new law contains provisions contrary to, or irreconcilable with, those of the former law.” One statute, however, is not contrary to or irreconcilable with another statute unless they relate to the same subject and are enacted for the same purpose. 3

The action for death by wrongful act accorded to parties to the relations of husband and wife, and parent and child, by the common law of Hawaii is not the same but a different cause of action from that accorded dependents under the provisions of section 10486, supra, and the purpose of the former is different from that of the latter.

At the outset it may be well to remove the confusion engendered by the misapplication of the term “common–law remedy” employed by appellant in connection with his contention that the provisions of section 10486 abrogated the theretofore existing common–law remedy for death by a wrongful act. We assume that by the term “common–law” he refers to the common law of Hawaii and by the use of the adjective form qualifying the word “remedy” he has reference to a remedy adopted as a part of the common law of Hawaii. But a remedy should not be confused with a cause of action to which the remedy is applicable. It is the cause of action that gives rise to the remedial right and the remedy is but the means of the enforcement of the cause of action. As said by Professor Pomeroy: “* * * it is very plain, that, using the words according to their natural import and according to their technical legal import, the ‘cause of action’ is what gives rise to the remedial right * * *.”4 In the case of Kake v. C. S. Horton, 2 Haw. 209, this court did not adopt a remedy. It adopted a cause of action.5 The remedy of trespass on the case was employed by the plaintiff in the Kake case as the remedy appropriate to her cause of action. The remedy of trespass on the case is appropriate to the enforcement of the cause of action by dependents created by the provisions of section 10486. No more so did section 10486 create a statutory remedy. So the precise question with which this court is confronted is whether by the provisions of section 10486 the cause of action adopted as a part of the common law of Hawaii in the case of Kake v. C. S. Horton and applied in Ferreira v. Honolulu R. T. & L. Co. to an action by a father for damages resulting from the death of a minor child by the wrongful act of another has been impliedly abrogated by the provisions of the Revised Laws of Hawaii 1945, section 10486. An analysis of contemporary statutory definitions of the relation of husband and wife and parent and child in existence at the time of the decision of this court in the Kake case and as since amended leads to the inevitable conclusion they did not.

In 1860, and at the time of the rendition of the decision of this court in the Kake case, the legal incidents of the relation of husband and wife were fixed by statute. Civil Code 1859, section 1286, among other things, imposed the duty upon the husband to maintain, provide for and support his wife during marriage, in the same style and manner in which he supported and maintained himself. From the marital relation and from this statutory duty flowed reciprocal duties on the part of the wife to the husband. Similarly, the legal relation of parent and child. By Civil Code 1859, section 1288, the children of a valid marriage were denominated legitimate and the husband of the marriage was made liable for their suitable and proper support in all respects until they severally attained the age of majority. He was also entitled to control and manage his children in all respects during their minority and require reasonable service at their hands. From the legal relation of parent and child and the provisions of Civil Code 1859, section 1288, additional reciprocal duties accrued to parents from their minor children.

In the Kake case, consonant with the legal incidents of the relation of husband and wife and the provisions of section 1286, supra, the pecuniary loss suffered by a wife for the death of her husband by a wrongful act was measured by loss of support and her deprivation of the society, fellowship and comfort of her husband. Anguish of mind, which the plaintiff might have suffered, usually referred to as “solatium,” was excluded as an element of damage. In the Ferreira case, which was an action by a father for the death of his minor child by a wrongful act, this court recognized the application to the facts of the cause of action adopted in the Kake case, and consonant with the legal incidents of the relation of parent and child, and the provisions of Civil Laws 1897, section 1874 (formerly Civil Code, section 1288), the damages sustained by the father for the death of his minor child by a wrongful act were measured by the pecuniary loss suffered by him by the deprivation of the child's services including not only what the child might earn during the remainder of his minority but also the value of his services in the family, including acts of kindness and attention, and the cost and expense incurred by the parent on account of the injury, less the usual and reasonable expense of caring for the child. Solatium similarly was excluded as an...

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