Lucier v. Hittleman

• Decision Date: 12 July 1939
• Citation: 7 A.2d 647,125 Conn. 635
• Court: Connecticut Supreme Court
• Parties: LUCIER v. HITTLEMAN et al.

7 A.2d 647

125 Conn. 635

LUCIER v. HITTLEMAN et al.

Supreme Court of Errors of Connecticut.

July 12, 1939

Appeal from Superior Court, Hartford County; Edward J. Quinlan Judge.

Action by Arthur Lucier against Samuel Hittleman and others to recover damages for loss of earnings and services arising out of injuries and death of minor son, alleged to have been caused by negligence of the defendants. From a judgment for the defendants after demurrer to complaint was sustained, and plaintiff failed to plead further, the plaintiff appeals.

No error.

M. J Blumenfeld, of Hartford, and Milton M. Koskoff, of Plainville, for appellant.

Albert B. Walker, of Hartford, for appellees.

Argued Before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

MALTBIE, Chief Justice.

In this action the plaintiff claimed to recover as damages wages lost to him by reason of the death of his minor son alleged to have been killed by the negligence and recklessness of the defendants in operating an automobile which ran into him. A demurrer to the complaint based upon the ground that it stated no cause of action was sustained and from the judgment entered upon the plaintiff's failure to plead over he has appealed.

We have recognized it as a rule of the common law generally applicable that no action lies for damages resulting from the death of a human being. Murphy v. New York, & N.H. R Co., 30 Conn. 184, 188; Goodsell v. Hartford & New Haven R. Co., 33 Conn. 51, 55; Broughel v. Souther New England Telephone Co., 72 Conn. 617, 620, 45 A 435,49 L.R.A. 404. With one exception later considered, we have never recognized such a cause of action unless it fell within the provisions of some statute. Porpora v. New Haven, 122 Conn. 80, and cases cited, 187 A. 668. Various reasons have been given to support the common-law rule and it may be admitted that they do not afford a satisfactory basis upon which it may rest. The rule has been severely criticised; see, for example, Pollock, Torts (13th Ed.) p. 62; Burdick, Torts, § 243; and particularly has its application to such a case as the one Before us been vigorously condemned; dissenting opinion of Bramwell, Baron, in Osborn v. Gillett, L.R. 8 Exch. 88, 93. But whatever the reasons upon which it has been said to rest, the rule has become thoroughly embedded in the common law. See Jackson v. Watson & Son, L.R. [1909] 2 K.B. 193; Admiralty Commissioners v. Steamship Amerika, L.R. [1917] App.Cas. 38. It has resulted in the determination by legislative action of the conditions and limitations under which a recovery for a cause of action of an unusual nature is deemed to be in accordance with a sound public policy. We could overturn the existing legal situation in this state only for the most compelling reasons.

The rule has by most courts having occasion to consider the question apart from statutes recognizing a right of action been applied where a parent has sought to recover wages lost by reason of the wrongful death of a minor son or a husband to recover for the loss of consortium resulting from the death of his wife, and to other like situations. Panama R. Co. v. Rock, 266 U.S. 209, 211, 45 S.Ct. 58, 69 L.Ed. 250; The Harrisburg, 119 U.S. 199, 204, 7 S.Ct. 140, 30 L.Ed. 358; Carey v. Berkshire R. Co., 55 Mass. 475,1 Cush. 475,48 Am.Dec. 616; Sherlag v. Kelley, 200 Mass. 232, 86 N.E. 293, 19 L.R.A.N.S., 633 and note, 128 Am.St.Rep. 414; Tullgren v. Amoskeag Mfg. Co., 82 N.H. 268, 275, 133 A. 4, 46 A.L.R. 380; Grosso v. Delaware, L. & W. R. Co., 50 N.J.L. 317, 13 A. 233; 12 Am.Jur., p. 36. In the following cases the rule has been specifically recognized as applicable to an action by a parent to recover damages for the death of a minor child: Sherman v. Johnson, 58 Vt. 40, 2 A. 707; United States Electric Lighting Co. v. Sullivan, 22 App.D.C. 115, 130; Wilson v. Bumstead, 12 Neb. 1, 3, 10 N.W. 411; Mayhew v. Burns, 103 Ind. 328, 333, 2 N.E. 793; Edgar v. Castello, 14 S.C. 20, 37 Am.Rep. 714, and see Osborn v. Gillett, L.R. 8 Exch. 88.

We have not had occasion to determine the precise question now Before us. It was, however, presented to the Superior Court in Kowalsky v. Leonard, 4 Conn.Supp. 219, and a right of action by the parent was denied. The court, Inglis, J., after citing authorities supporting the application of the common law rule to such cases, said: ‘ The only doubt that such is the law of this state arises by reason of the case of Cross v. Guthrey, 2 Root [90], 99 . In that case a husband was suing for loss of consortium resulting from the death of his wife caused by malpractice. The verdict had been for the plaintiff and a motion for arrest of judgment had been made on the ground that the offense charged was a felony and the private injury was merged in the public offense. That contention was one of the reasons upon which the common-rule law forbidding recovery for wrongful death was based. The court in deciding the case and upholding the verdict said simply that the rule contended for ‘ is applicable in England only to capital crimes where from necessity the offender must go unpunished or the injured go unredressed.’

‘ The doubt raised by that case seems to be definitely dispersed, however, by the case of Connecticut Mutual Life Ins. Co. v. New York, & N.H. R. Co., 25 Conn. 265 . In that case the plaintiff was seeking to recover the amount it had been called upon to pay under one of its life insurance policies by reason of the wrongful death on one of its insured caused by the defendant. The right of recovery was denied and one of the grounds given for that denial was that ‘ the common law is that the death of a human being whatever may be its consequences in a pecuniary or in any other aspect is not an actionable injury.’

‘ The reason for the common-law rule against recovery for wrongful death was not only that the private injury was merged into the public offense. It was rather because it was...