Mickel v. New England Coal & Coke Co.

• Decision Date: 23 April 1946
• Citation: 47 A.2d 187,132 Conn. 671
• Parties: MICKEL et al. v. NEW ENGLAND COAL & COKE CO. et al.
• Court: Connecticut Supreme Court

132 Conn. 671

47 A.2d 187

MICKEL et al.

v.NEW ENGLAND COAL & COKE CO. et al.

Supreme Court of Errors of Connecticut.

April 23, 1946.

Appeal from Superior Court, Fairfield County; Daly, Judge.

Action by Edith May Mickel, administratrix of the estate of Chester H. Mickel, deceased, and others, against the New England Coal & Coke Company and others to recover for the death of Chester H. Mickel, deceased, on ground that the deceased's death was caused by the negligence of the defendants. The action was brought to the superior court. From a judgment in favor of the plaintiffs for an amount which was inadequate to satisfy the named plaintiff, the named plaintiff appeals.

Error, judgment set aside, and new trial ordered.

John J. Hunt, of Bridgeport, and Louis George, of Danbury, for appellant (named plaintiff).

Samuel Engelman, of Bridgeport (Pasquale Vioni, of Bridgeport, on the brief), for appellees (defendants).

Arthur B. O'Keefe, of New Haven (William T. Holleran, of New Haven, on the brief), for appellee (plaintiff Reliable Laundry Co.).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

DICKENSON, Judge.

The plaintiff administratrix brought this action against the defendants for damages for causing the death of her decedent. The decedent's employer joined as a plaintiff, claiming reimbursement for workmen's compensation which it has become obligated to pay. The administratrix alone has appealed from a judgment entered upon a verdict in favor of the plaintiffs, claiming that the amount of the verdict was inadequate and assigning error in the charge on damages. The record is barren of any oral objection to the charge immediately after it was delivered, in compliance with the requirement of the Practice Book, § 156. The finding discloses that after the charge was delivered the jury asked the trial court to ‘reread that part’ of its charge ‘pertaining to the basis for the assessment of damages,’ which the court did. The plaintiff has sought to have the finding corrected by adding a statement to the effect that after the original charge was delivered and before that part of it relating to damages was repeated, counsel for the parties conferred with the trial judge in chambers and plaintiff's counsel objected to the charge, stating, in substance, that the amounts to be expended in support of the decedent's family ought not to be deducted from the gross earnings in arriving at net earnings, and requesting the court to correct the charge in that respect upon re-reading it to the jury. The defendants, while claiming objection should have been made after the repetition of the charge, concede in their brief that counsel conferred with the court in chambers and that objection was made by plaintiff's counsel at that time.

We have consistently refused to make an exception in the application of § 156 from the date of its adoption. Cervino v. Coratti, 131 Conn. 518, 522, 41 A.2d 95; Greenwald v. Wire Rope Corporation of America, 131 Conn. 465, 470, 40 A.2d 748; Tully v. Demir, 131 Conn. 330, 334, 39 A.2d 877; Mocarski v. Palmer, 132 Conn. 349, 354, 44 A.2d 64. The rule, however, is not mandatory. It provides that this court ‘shall not be bound’ to consider error unless an objection be made as required in it. In view of the fact that in the recent case of Chase v. Fitzgerald, 132 Conn. 461, 45 A.2d 789, we have had occasion to restate and correct the rule as to damages in death cases and that in the present action the charge, both as originally given by the trial court and as given when later specifically requested by the jury as a further instruction, was not in accordance with the rule we held to be the correct one in the Chase case, we treat the informal objection to the charge as sufficient to raise the question. See Conn.App.Proc., p. 60.

As we stated in Chase v. Fitzgerald, supra, 132 Conn. 467, 45 A.2d 789, the cause of action in such a case as this is one that comes to the representative of the decedent's estate by survival and so is a continuance of that which the decedent could have asserted had he lived. Had he lived and been shorn of all ability to carry on his usual activities, he would have been entitled to compensation for this loss, including destruction of his earning power.

The court charged in accordance with our earlier decisions that the measure of recovery on ‘the basis of the loss of the net earning capacity’ was the decedent's capacity to earn more than was necessary for his support during his life expectancy and that there was no evidence to show that the decedent ‘earned any more money than was necessary to take care of his obligations.’ As we said in Chase v. Fitzgerald, supra, 132 Conn. 469, 45 A.2d 792, ‘To measure damages upon the basis of the destruction of earning capacity is very different from awarding a sum intended to represent the amount which a decedent would have earned and left as a part of his estate.’ The final inquiry as to the earning capacity of a man is not what he is capable of saving but what he is capable of earning. Memphis Consolidated Gas & Electric Co. v. Letson, 6 Cir., 135 F. 969, 975, 68 C.C.A. 453. Had the decedent in this case lived and been entirely incapacitated from work, an element in measuring his damages would have been the loss caused by the destruction of his earning capacity, not the difference between this and his living expenses. While the trial court in its charge followed our previous decisions, we are constrained to find error in view of our decision in the Chase case.

After we handed down our opinion in the instant case, the defendants made a motion for a reargument which we granted. One ground of the motion was that the rule of damages announced in Chase v. Fitzgerald, supra, should not be applied retrospectively to affect the decision in this case. There is abundant authority to support the proposition that where a court overrules a previous decision the effect is not to make a change in the law but to recognize that the court was mistaken in its first declaration of it and to establish that the law always was as stated in the later decision. People ex rel. Rice v. Graves, 242 App.Div. 128, 130, 273 N.Y.S. 582; Jackson v. Harris, 10 Cir., 43 F.2d 513, 516; Center School Township v. State ex rel. Board, 150 Ind. 168, 173, 49 N.E. 961; Crigler v. Shepler, 79 Kan. 834, 842, 101 P. 619, 23 L.R.A.,N.S., 500; Hoven v. McCarthy Bros. Co., 163 Minn. 339, 341, 204 N.W. 29; Donohue v. Russell, 264 Mich. 217, 219, 249 N.W. 830; Nickoll v. Racine Cloak & Suit Co., 194 Wis. 298, 304, 216 N.W. 502; Mason v. A. E. Nelson Cotton Co., 148 N.C. 492, 510, 62 S.E. 625; 18 L.R.A., N.S., 1221, 128 Am.St.Rep. 635; 14 Am.Jur. 345, § 130; 15 C.J., 960, § 358; 21 C.J.S. Courts, § 194, p. 326. To apply this principle violates no constitutional limitation; Tidal Oil Co. v. Flanagan, 263 U.S. 444, 451, 44 S.Ct. 197, 68 L.Ed. 382; and the Supreme Court of the United States has held that the extent to which it will be followed in any state is for the courts of that state to determine.

Great Northern Ry. v. Sunburst Co., 287 U.S. 358, 364, 53 S.Ct. 145, 77 L.Ed. 360, 85 A.L.R. 262, Note.

The decisions and cyclopedic articles we have cited and other cases referred to in them state that there is a generally recognized exception to this rule where contracts have been made or rights have become vested, or perhaps other action has been taken, under the original decision. The basis of these exceptions is the essential injustice of applying the law as declared in the later decision to situations where parties have acted in reliance upon that stated in the earlier case. Gelpcke v. Dubuque, 68 U.S. 175, 206, 1 Wall. 175, 206, 17 L.Ed. 520; People ex rel. Rice v. Graves, supra, 242 App.Div. 132, 273 N.Y.S. 582; Nickoll v. Racine Cloak & Suit Co., supra. Obviously no such situation exists where there has been a change in a rule previously declared for measuring damages in an action based on negligence, as is the one before us. On the other hand, that change goes beyond a mere procedural matter such as that before us in Chykirda v. Yanush, 131 Conn. 565, 568, 41 A.2d 449, in which, in holding that evidence must be offered as a basis for an award of punitive damages, we refused to disturb a judgment where, in accordance with previous decisions, the trial court had charged the jury that they were authorized to award such damages in their verdict even in the absence of such evidence. The present action was pending before us when we decided Chase v. Fitzgerald, supra, and our conclusion is that it is proper for us to apply in it the rule for measuring damages announced in the Chase case.

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