Shaker v. Shaker

• Decision Date: 28 December 1942
• Citation: 129 Conn. 518,29 A.2d 765
• Court: Connecticut Supreme Court
• Parties: SHAKER v. SHAKER et al.

29 A.2d 765

129 Conn. 518

SHAKER

v. SHAKER et al.

Supreme Court of Errors of Connecticut.

Dec. 28, 1942.

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

Action by Emily Shaker, administratrix c.t.a. of the estate of James G. Shaker, deceased, against George Shaker and others to recover for death of plaintiff's intestate alleged to have been caused by negligence of defendant, brought to superior court, where a demurrer to complaint was sustained, and additional party defendant cited in and an amended complaint filed, and issues were tried to the court. Judgment for defendant, and appeal by plaintiff.

No error.

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

William Hanna, of Danbury, for appellant (plaintiff).

J. Kenneth Bradley, of Bridgeport (William H. Protheroe, of Bridgeport, on the brief), for appellees (defendants).

INGLIS, Judge.

The plaintiff brought this action to recover damages for the death of her intestate while he was riding in a small truck which, it was claimed, was being operated negligently. The defendants are his unemancipated minor son, George, who was driving the car, and his daughter Josephine, who owned it. Prior to his death, the decedent resided in Bethel with his family, consisting of his wife, his two children named above and another daughter. He owned and conducted a fruit and vegetable market in Bethel. His children Josephine and George worked for him in that business and were subject to his directions in whatever they did in that connection. They, as well as the rest of the family, were supported by him.

The truck in which the decedent was riding at the time of the accident had been bought by Josephine with her own funds and was registered in her name. She had bought it, however, for the decedent, to be used in his business, and it bore the name "Bethel Fruit and Vegetable Market" painted on the outside. The decedent had paid all of the operating expenses of the truck. The defendant George Shaker had general authority to operate the truck for the purposes of his father's business and it was never necessary to obtain his sister's permission before using it.

At the time the accident occurred, the decedent and George were on their way to Waterbury to purchase produce for sale in the father's market. George was driving the truck under the decedent's directions. While they were proceeding down a hill on the main road from Newtown to Sandy Hook, the truck left the road and came in contact with a tree. From that collision the decedent sustained injuries which caused his death. The trial court held, following a ruling made upon a demurrer to the complaint, that no recovery could be had against George because he was the unemancipated son of the decedent.

It must be borne in mind that the Connecticut wrongful death statute, General Statutes, Cum.Sup.1939, § 1430e, does not create a new and independent cause of action as do Lord Campbell's Act and statutes of some of the states which are patterned after it. For that reason this case is to be distinguished from cases decided under such statutes, such as the second case of Oliveria v. Oliveria, 305 Mass. 297, 300, 25 N.E.2d 766, and Kaczorowski v. Kalkosinski, 321 Pa. 438, 444, 184 A. 663. Under our statute the cause of action sued upon is not a new one created in the personal representative of the decedent or in the next of kin. It is the cause of action which had accrued to the decedent for the wrong done to him and which has survived to his personal representative by reason of the survival statute. Porpora v. New Haven, 122 Conn. 80, 95, 187 A. 668; Uva v. Alonzy, 116 Conn. 91, 96, 163 A. 612; Davis v. Margolis, 108 Conn. 645, 647, 144 A. 665; Mezzi v. Taylor, 99 Conn. 1, 7, 120 A. 871; Kling v. Torello, 87 Conn. 301, 87 A. 987, 46 L.R.A, N.S., 930.

In the present case, therefore, the plaintiff as administratrix has no independent cause of action of her own. She stands exactly in the shoes of her intestate. Accordingly, the question on this phase of the case is reduced to this: Did James G. Shaker at the time of his death have a cause of action which he could have maintained against his unemancipated minor son, George, who was also his employee and agent? If he did, then that cause of action has survived to the plaintiff. If he did not have such a cause of action, then this plaintiff has none.

The question is not whether a principal may sue his agent for the latter's negligence. It is of course well established that such a suit may be maintained and that, in such a suit, the agent's negligence is not imputable to the principal so as to constitute contributory negligence. Donohue v. Jette, 106 Conn. 231, 137 A. 724. The question is rather whether it is consonant with public policy to permit a parent to litigate a case against his unemancipated child to recover for personal injuries caused by the child's negligence.

The weight of authority in other jurisdictions supports the position that a parent may not maintain such an action. Schneider v. Schneider, 160 Md. 18, 21, 152 A. 498, 72 A.L.R. 449; Kidd v. Prince, Tex.Com.App., 215 S.W. 844; Turner v. Carter, 169 Tenn. 553, 89 S.W.2d 751; Duffy v. Duffy, 117 Pa.Super, 500, 178 A. 165; Kloppenburg v. Kloppenburg, 66 S.D. 167, 280 N.W. 206; Oliveria v. Oliveria, supra. The only case to the contrary which has come to our attention is Wells v. Wells, Mo.App., 48 S.W.2d 109, a decision by the Kansas City Court of Appeals. The argument in those cases which deny the right of a parent to maintain an action for negligence against his unemancipated child rests upon reasons of public policy. The injury to public welfare resulting from the family friction involved in such litigation is held to outweigh the loss caused to the individual parent by his being deprived of damages for whatever injuries to his person he may have suffered from the mere neglect of his child.

In this state, we have no case exactly in point. We do have the converse of the question, however, decided in Mesite v. Kirchenstein, 109 Conn. 77, 145 A. 753. In that case we held that it was against public policy to permit an unemancipated minor to maintain an action for negligence against her mother. Concerning that we said (pages 84, 86 of 109 Conn, page 755 of 145 A.): "The state and society are vitally interested in the integrity and unity of the family and in the preservation of the family relation. The obligation of the father, or it may be the mother, to care for, guide, control, and educate their child and the reciprocal obligation of the child to serve and obey the parent are essentials of the family relationships. Authority in the parent to require obedience in the child is indispensable to the maintenance of unity in the family. Anything which undermines this authority, brings discord into the family, weakens its government, and disturbs its peace, is an injury to society and to the state. Few things could bring about this unhappy condition more quickly or widen the breach between parent and child further than the bringing of an action at law for personal injuries by a minor child...