Kling v. Torello

• Decision Date: 25 July 1913
• Citation: 87 Conn. 301,87 A. 987
• Court: Connecticut Supreme Court
• Parties: KLING v. TORELLO.

87 A. 987

87 Conn. 301

KLING

v. TORELLO.

Supreme Court of Errors of Connecticut.

July 25, 1913.

Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge.

Action by Christian J. Kling against Raffale Torello. Judgment for the defendant, and plaintiff appeals. Reversed, and new trial ordered.

David Kling, the present plaintiff's intestate, brought this action in his lifetime, claiming damages for an alleged malicious and willful assault, resulting in severe injuries and a fractured skull, endangering life. Following his death, which occurred two days later, the present plaintiff, as the administrator upon his estate, entered to prosecute the action, and thereafter filed a substituted complaint. This complaint repeated the same allegation of an assault upon the original plaintiff, causing a fracture of his skull, and added that as a consequence thereof he died. Upon the trial evidence was offered by the plaintiff tending to show the commission of a willful assault as alleged, and the death of the plaintiff's intestate three days later as its proximate result Upon the defendant's motion a verdict was directed in his favor.

Charles J. Martin and William T. Minor, both of New Haven, for appellant.

Philip Pond, of New Haven, for appellee.

PRENTICE, C. J. (after stating the facts as above). The record does not disclose the reasons assigned by the court for its direction of a defendant's verdict. Examination of the transcript of testimony clearly indicates that the reason was not found in the insufficiency of the proof of the alleged assault, and of the intestate's death as a consequence thereof. Presumably the reason was that which defendant's counsel insists was sufficient, to wit, that as the proof was of injuries resulting in death intentionally inflicted, there could be no recovery under the substituted complaint. Possibly it was for the reason that the substituted complaint set up an independent cause of action, founded upon the death of the intestate, which was unrelated to that contained in the original complaint, and which therefore did not accrue until death had occurred, which death, the evidence showed, was subsequent to the commencement of the action.

The first of these reasons to be adequate, involves the maintenance of two propositions, to wit: (1) That under the substituted complaint there could be no recovery except for the death of the intestate: and (2) that there can be no recovery in this state for death intentionally caused.

The maintenance of the first of these propositions is an essential preliminary to the second. Upon the assumption that the alleged assault was made as claimed, and that David Kling survived it for three days before death intervened, he, while living, had a right of action for substantial damages. That right of action, by force of the statute, survived to the plaintiff administrator. P. A. 1903, c. 193, p. 149. Before his death suit to enforce this right of recovery in him, being the present action, was begun. The plaintiff was entitled to enter, as he did, to prosecute it to a judgment, which should be compensatory for all that the intestate, while living, suffered as the consequence of the injuries inflicted. Soule v. R. R. Co., 24 Conn. 575, 577; Goodsell v. R. R. Co., 33 Conn. 51, 55. Unless the amendment of the complaint operated to withdraw this right of action from the consideration of the jury, and to preclude recovery for the consequences of the assault, which antedated the death which ensued, the direction of a verdict for the defendant was manifestly unwarranted.

The original and amended complaints differ from each other in only one particular of possible significance. That arises from the added allegation that death had resulted from the injuries inflicted by the defendant. The former averred that these injuries were so severe that the plaintiff was in danger of death therefrom; the latter that death had resulted. What did this change in allegation signify in the matter of the plaintiff's right of recovery upon the complaint as it finally stood?

Under Lord Campbell's Act, 9 and 10 Victoria, and those statutes in this country which have followed its general lines, a right of action is given where death results from injuries, which is entirely independent of and unrelated to any which the deceased might have had in life. It is not a continuation of or incidental to any right of action existing in favor of anybody prior to the death, and attaches itself to no such right. It is a new thing, which springs into existence upon the death. It is independent of every other right of action, and different in its theory, quality, and object from every other. It does not rest upon the basis of an injury suffered by the deceased's estate; its foundation is the loss sustained by certain persons designated as beneficiaries of the recovery. Amer. R. R. of Porto Rico v. Didricksen, 227 U. S. 145, 149, 33 Sup. Ct. 224, 57 L. Ed. —; Mich. Cent. v. Vreeland, 227 U. S. 59, 70, 33 Sup. Ct. 192, 57 L. Ed. ——; Gulf, Col., etc., R. R. Co. v. McGinnis, 228 U. S. 173, 175, 33 Sup. Ct. 426, 57 L. Ed. ——. "A totally new action is given against the persons who would have been responsible to the deceased if the deceased had lived; an action which * * * is new in its species, new in its quality, new in its principle, in every way new." Seward v. Vera Cruz, 10 App. Cas. 59; Blake v. Midland Ry. Co., 18 Q. B. 93, 109. In Michigan Cent. R. R. Co v. Vreeland, 227 U. S. 59, 68, 33 Sup. Ct 192, 57 L. Ed. ——, the court, speaking of the federal Employer's Liability Act of 1908 (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St Supp. 1911, p. 1322]), similar in its provisions upon the subject now under discussion to those of Lord Campbell's act, said that the right of action which it created was independent of any which the decedent had, proceeded on altogether different principles, and permitted the inclusion in the judgment of no damages which the decedent might have recovered, if he had survived. In the jurisdictions where these statutes exist it would necessarily follow that the substitution of a complaint counting upon the death for one averring sufferings during life only would be the desertion of one cause of action for a radically different one, and the presentation of a right of action which in no way could be made to comprehend, as a basis of recovery, consequences to the deceased during his lifetime.

The situation is very different in this state. The right of recovery for the death which our statute gives is not one which is independent of or unrelated to the right of action which was in the deceased at his death. Our statute is framed upon an entirely different theory, and effectuates quite a different policy. Goodsell v. R. R., 33 Conn. 51, 55. The right of action which the executor or administrator is permitted to pursue is not one which springs from the death. It is one which comes to the representative by survival. The right of recovery for the death is as for one of the consequences of the wrong inflicted upon the decedent. The amount of recovery is determined from the standpoint of the deceased, and not from that of the statutory beneficiaries. Its measure, within the statutory limitation, is the value of life to him whose life has been cut off. Broughel v. S. N. E. Tel. Co., 73 Conn. 614, 620, 48 Atl. 751, 84 Am. St. Rep. 176. When one, as the result of injuries inflicted, suffers...