Shiels v. Audette
| Citation | 174 A. 323,119 Conn. 75 |
| Court | Supreme Court of Connecticut |
| Decision Date | 27 July 1934 |
| Parties | SHIELS v. AUDETTE. |
Appeal from Superior Court, New Haven County; Earnest C. Simpson Judge.
Action by John H. Shiels against Joseph C. Audette to recover for money expended by reason of an injury to plaintiff's minor son, incurred in falling off defendant's truck, and for loss of his services. A demurrer to the second count of the complaint was sustained, and plaintiff was nonsuited as to first count. A motion to set aside the nonsuit was denied and plaintiff appeals.
No error.
Curtiss K. Thompson, Herbert S. MacDonald, and John H. Weir, all of New Haven, for appellant.
Joseph N. Manfreda, Jacob Belford, and Lawrence C. Caplan, all of New Haven, for appellee.
Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.
The plaintiff brought this action to recover for loss of services and moneys expended in the care of his minor son who was injured by falling off a Ford truck owned and operated by the defendant. The complaint was in two counts: In the first count, it was alleged that the plaintiff's minor son, John E. Shiels, a boy 13 years of age, was invited by an employee of the defendant, and with the latter's knowledge, to ride upon his truck which was driven to a coal yard, and that on the way back the boy fell from the running board and was injured. It was alleged that his injuries were due to the heedlessness of the defendant and his reckless disregard of the rights of John E. Shiels. In the second count, it was alleged that the latter's injuries were due to the negligence of the defendant in the operation of the truck. A demurrer was interposed by the defendant to the second count on the ground that as it appeared from the complaint that the plaintiff's son was riding as a guest, no cause of action existed in favor of his father for injuries to the son due to the defendant's negligence. The demurrer to this count was sustained. Subsequently, the cause was heard to the jury on the first count and, when the plaintiff's evidence had been presented, the court granted a judgment of nonsuit, and afterwards denied a motion to set it aside, from which the plaintiff appealed. The two errors assigned are the action of the court in sustaining the demurrer to the second count, and in refusing to set aside the nonsuit.
The question presented by the demurrer is whether Gen. St. § 1628 applies to the parent of a minor child suing for loss of services and expenses, etc., for injuries sustained by the child while being transported as a guest in a motor vehicle. When a minor child is injured by the negligent act of a third party, two causes of action immediately spring into existence: First, the right of action by the child itself for the personal injuries inflicted upon it; and, second, a right of action to the parent for consequential damages, such as loss of services and expenses caused by the injury to the child. The right of the parent to recover is independent of the right of the child, and the judgment in an action brought by the child would not preclude the parent from recovery in an action brought by him unless some such circumstances existed as in Kenure v. Brainerd & Armstrong Co., SS Conn. 265, 267, 91 A. 185, where a father brought the action as next friend of his daughter and the entire damages were claimed in it. The parent is not regarded in law as either a party or privy to an action brought by a child and hence is not bound by the judgment thereunder. Nevertheless, an essential element of the cause of action vested by law in the parent is that the compensation recoverable by him for expenses flows from a personal injury for which, under the law, the child would be entitled to recover compensation. Proof of that fact is an essential prerequisite to recovery. If the child was not entitled to recover compensation for his injury, there can be no recovery by the parent. " If the injury occurs under such circumstances as do not give the child a right of action for the personal injury, the father cannot recover." Thibeault v. Poole (Mass.) 186 N.E. 632, 635. This principle prevails generally. Callies v. Reliance Laundry Co., 188 Wis. 376, 206 N.W. 198, 200, 42 A.L.R. 712; Tidd v. Skinner, 225 N.Y. 422, 432, 122 N.E. 247, 3 A.L.R. 1145; Vorrath v. Burke, 63 N. J. Law, 188, 42 A. 838; Winner v. Oakland Tp., 158 Pa. 405, 410, 27 A. 1110, 1111; Wueppesahl v. Connecticut Co., 87 Conn. 710, 89 A. 166; 46 C.J. p. 1303.
An act or omission of a person which causes a loss of the services of a minor child to a parent, or necessitates expenditures to cure an injury done to the child, entitles the parent to recover damages when it appears that the act or omission is one which the law holds to be a legal wrong. There may be instances where an act or omission may constitute a legal wrong to a parent although the child would not have a cause of action; perhaps this would be so where the child, by consenting to the act, would be debarred of a remedy, but such consent might not be binding upon a parent. But in such a case as this, where the basis of the claimed wrongful conduct is the failure of the defendant to take certain steps to prevent the child from suffering injury, the parent cannot recover unless that failure constituted a legal wrong to the child. Section 1628 of the General Statutes deprives a guest in a motor vehicle of any right of action against its owner or operator arising out of an accident unless that accident was intentional on the part of the owner or operator or was caused by his reckless disregard of the rights of others. Unless the conduct of the owner or operator falls within the terms of the statute, it does not constitute a legal wrong to the guest and hence, if that guest be a child, cannot be the basis of a recovery by his parent for services lost or expenditures incurred because of injury suffered by the child. Under the allegations of the complaint, John E Shiels, riding for his own pleasure in defendant's automobile without paying compensation and for no purpose or benefit of the defendant at the invitation of the latter's servant, was a guest within the meaning of the statute. The allegation that he was not informed as to the destination of the truck, or that it was to be loaded before its return, does not change the relationship as there is no allegation of fraud, force, or intimidation and the failure to inform was at most alleged to be negligence. It follows that inasmuch...
To continue reading
Request your trial
-
Certification of Questions of Law from U.S. Court of Appeals for Eighth Circuit, Pursuant to Provisions of SDCL 15-24A-1, Matter of
...injuries. Barger, 372 N.W.2d at 165; Doyen, 59 N.W.2d at 553. In Barger, we cited with approval the language used in Shiels v. Audette, 119 Conn. 75, 174 A. 323, 325 (1934): An act or omission of a person which causes a loss of the services of a minor child to a parent, or necessitates expe......
-
Dzenutis v. Dzenutis
...to the parent for consequential damages, such as a loss of services and expenses, caused by the injury to the child." Shiels v. Audette, 119 Conn. 75, 77, 174 A. 323 (1934); see Krause v. Almor Homes, Inc., 147 Conn. 333, 335, 160 A.2d 753 (1960). Although General Statutes § 52-204 authoriz......
-
Munn v. Hotchkiss Sch.
...A.2d 783 (1972) ; Krause, 147 Conn. at 335, 160 A.2d 753 ; Tulin v. Tulin, 124 Conn. 518, 522, 200 A. 819 (1938) ; Shiels v. Audette, 119 Conn. 75, 77, 174 A. 323 (1934). It has further held that recovery of the parent's costs of treating their child's injuries are more appropriately unders......
-
Tisko v. Harrison
...the parent of a minor guest has no cause of action for failure of the owner or operator to use ordinary care. Shiels v. Audette, 119 Conn. 75, 174 A. 323, 94 A.L.R. 1206 (1934). 2. Constitutionality of guest In plaintiff's constitutional attack, he argues that the statute denies equal prote......