Lum v. Fullaway

• Decision Date: 30 April 1958
• Docket Number: No. 3075.,3075.
• Citation: 42 Haw. 500
• Parties: ALICE K. LUM, NANCY K. CHING, ALBERT K. Y. KONG, ELLEN K. CHANG AND ABBIE K. CHANG v. WILLIAM FULLAWAY.
• Court: Hawaii Supreme Court

42 Haw. 500

ALICE K. LUM, NANCY K. CHING, ALBERT K. Y. KONG, ELLEN K. CHANG AND ABBIE K. CHANG

v.WILLIAM FULLAWAY.

No. 3075.

Supreme Court of the Territory of Hawai‘i.

Argued February 27, 1958.

Decided April 30, 1958.

APPEAL FROM CIRCUIT COURT FIRST CIRCUIT, HON. HARRY R. HEWITT, JUDGE.

Syllabus by the Court

Lack of precedent is not a bar to judicial relief. In a proper case, a court will afford relief by applying the ratio decidendi of decisions involving questions which are logically similar. In this case ratio decidendi of cases involving husband–wife and parentminor child relationships is applied to adult child–parent relationship where the adult child is subject to a duty to support indigent parent.

Under R.L.H. 1955, § 330–22, adult children are under a duty to support their indigent parent to the extent of their financial ability.

Adult children subject to the duty to support, and to provide decent burial for, their indigent parent have the right to recover from a tortfeasor the expenses incurred in the support and burial of their parent incidental to the tort committed upon the parent.

Term “support” as used in R.L.H. 1955, § 330–22, includes the furnishing of necessary medical treatment but does not include the providing of burial.

Duty of burying the body of a deceased person rests upon the persons who have the right of sepulture. The right of sepulture of a widowed parent belongs to adult children.

Suicide of a person injured in an accident does not sever the causal connection between the act that caused the injuries and subsequent death if suicide is accomplished by a person bereft of reason and motivated by uncontrollable impulse induced by mental anguish and physical pain from the injuries. Whether the person was, in fact, bereft of reason and motivated by uncontrollable impulse because of the mental anguish and physical pain from the injuries, at the time of the suicide, is a matter of proof.Walter E. Bliss (also on the briefs) for appellant.

Earl S. Robinson ( Fong, Miho, Choy & Chuck on the brief) for appellees.

RICE, C. J., STAINBACK AND MARUMOTO, JJ.

OPINION OF THE COURT BY MARUMOTO, J.

This is an interlocutory appeal by defendant from a decision of the circuit court denying his motion to dismiss the plaintiffs' amended complaint.

In their amended complaint, plaintiffs alleged the following facts: that they are adult children of Lee Kong Shee, a widow; that their mother was seriously injured in an accident whichresulted from defendant's negligence in driving his automobile; that she suffered such mental anguish and physicial pain from the injuries that she became delirious, bereft of reason, and subject to uncontrollable impulse, and took her own life; that she was incapable of paying the hospital, medical and nursing expenses incurred in the treatment of her injuries; that such expenses amounted to $9,898.55; that she left no asset from which the expenses of her funeral might be paid; that funeral expenses amounted to $1,592.10; that they made partial payments of such expenses under threats of litigation; and that they are subject to litigation if they do not pay the balance of such expenses.

Defendant's motion to dismiss questioned the sufficiency of the complaint to state a claim upon which relief can be granted.

Plaintiffs also alleged that R.L.H. 1945, § 12290, imposed upon them a legal obligation to pay such hospital, medical, nursing and funeral expenses. That allegation, however, is a conclusion of law. On a motion to dismiss, well–pleaded allegations of fact are taken as admitted, but not so with conclusions of law. (Moore's Federal Practice, 2d Ed., § 12.08)

The provisions of R.L.H. 1945, § 12290, are compiled in R.L.H. 1055, § 330–22. The statute makes the adult children of any person who is incapable of self–support “liable, to the extent of their financial ability, for the support of such person.” Such statutory liability is enforced by a court order entered in a proceeding initiated by the information of the attorney general or any county attorney, or the sworn complaint of any person in charge of any public or private hospital or institution for the care of indigent persons. The statute does not expressly provide that the liability for support includes payment of medical and funeral expenses.

Plaintiffs claim that they are entitled to recover the expenses of medical treatment and funeral expenses in their own right, independently of any right that their mother might have had, and that their right is not derived from their mother's right of recovery.

Defendant's position is that the plaintiffs have no independent right of recovery and that they have no derivative right because at the time of their mother's death there was no local statute providing for the survival of tort claims.

The amended complaint does not set forth the date of death of plaintiffs' mother. However, it is clear that plaintiffs' mother died before the effective date of R.L.H. 1955, § 246–6, which provides for the survival of causes of action based on tort. The statute became effective on May 27, 1955. (S.L.H. 1955, Act 205) The amended complaint was filed on July 8, 1954.

Defendant's position is based on lack of judicial precedent to support plaintiffs' claims. He argues that it is the function of the legislature to fill any void in law, that the recognition of plaintiffs' claim in the instant proceeding will be judicial legislation, and that this court should not indulge in judicial legislation.

Plaintiffs' right to relief is not necessarily foreclosed by lack of precedent. True, there is a constant admonition against judicial legislation. But the genius of the common law, upon which our jurisprudence is based, is its capacity for orderly growth. (Dole v. Gear, 14 Haw. 554; Territory v. Alford, 39 Haw. 460; Welsh v. Campbell, 41 Haw. 106;Halberg v. Young, 41 Haw. 634) The vehicle by which such growth is accomplished is what may be described as judge–made law. This is evident in the utterances of such learned oracles of law as Sir Frederick Pollock, Judge Benjamin Cardozo and Judge Learned Hand. (Pollock, “Judicial Caution and Valour,” Jurisprudence in Action, p. 367; Cardozo, The Nature of Judicial Process, p. 28; Hand, “Cardozo's Nature of Judicial Process,” Jurisprudence in Action, p. 235)

Sir Frederick Pollock states:

“Ever since there have been in England regular courts of justice administering the law of the land, their duty has been understood not to be fulfilled merely by finding some decision for every case, but to extend to declaring rules of law, and developing them to meet new occasions, so far as may be done without disobeying the expressed will of the Legislature or contravening doctrine already settled or confirmed by former judgments.”

The same theme is set forth by Judge Hand as follows:

“The position of an English speaking judge, especially, presents an apparent contradiction that has always exercised those who are speculatively inclined. The pretension of such a judge is, or at least it has been, that he declares pre–existing law, of which he is only the mouthpiece; his judgment is the conclusion of a syllogism in which the major is to be found among fixed and ascertainable rules. Conceivably a machine of intricate enough complexity might deliver such a judgment automatically were it only to be fed with the proper findings of fact. Yet the whole structure of the common law is an obvious denial of this theory; it stands as a monument slowly raised, like a coral reef, from the minute accretions of past individuals, of whom each built upon the relics which his predecessors left, and in his turn left a foundation upon which his successors might work.”

Perhaps, the recent trend is to rely more on legislatures, and less on courts, for the growth of law. Nevertheless, judicial law–making continues inexorably. This is recognized by Judge Cardozo, who states: “We leave more to legislatures today, and less perhaps to judges. Yet even now there is change from decade to decade. The glacier still moves.”

Judicial law–making does not mean that judges may roam at will on a frolic of their own. Judge Cardozo again aptly sets forth the responsibility of a judge, when confronted with a novel question, as follows:

“In this perpetual flux, the problem which confronts the judge is in reality a twofold one; he must first extract from the precedents the underlying principle, the ratio decidendi; he must then determine the path or direction along which the principle is to move and develop, if it is not to wither and die.”

In considering the respective contentions of the parties, the question as to plaintiffs' right to recover the expenses of medical treatment may be considered separately from the question as to their right to recover funeral expenses. The two questions present distinct and different problems.

We shall first take up the question of hospital, medical and nursing expenses.

We are of the opinion that the duty imposed by our statute upon adult children to support their indigent parent includes the furnishing of necessary medical treatment. Courts have construed a variety of statutes imposing a duty of support as requiring the payment of medical expenses. (Owens v. State, 6 Okl. Cr. 110, 116 P. 345;State v. Clark, 234 N.C. 192, 66 S.E. [2d] 669; Boller v. Crider, 31 N.Y.S. [2d] 987) Furthermore, the inclusion of necessary medical treatment is implicit in the provision which authorizes any person in charge of a hospital to initiate the proceedings for the enforcement of the statutory liability.

Logically, the duty imposed upon adult children for the support of their indigent parent is no different from the duty imposed upon parents for the support of their minor children. The incidents of the duty of support, whether such duty is owed by adult children to their indigent parent or by parents to their minor children, should be the same.

An incident of parental duty to support minor...