OPINION OF THE COURT BY LEWIS, J.
This is an appeal by the administrator of an estate whose complaint under R.L.H. 1955, § 246-6,
The trial court was of the view that when a person is injured and then dies the cause of action survives under R.L.H. 1955, § 246-6, but that it was not the intention of the legislature that this statute apply in the case of instantaneous death; further, that death by drowning is instantaneous or so nearly so as to be in law treated as instantaneous death. The complaint having been dismissed accordingly, this appeal from the judgment of dismissal presents the question whether the administrator of an estate can sue under R.L.H. 1955, § 246-6, in a case of death by drowning. For reasons which will appear, we shall assume for present purposes that death by drowning is "instantaneous." We will examine that matter more closely at a later point in the opinion, when we consider the claim for damages for pain and suffering of plaintiff's intestate.
Prior to the enactment of section 246-6 by S.L. 1955, Act 205, the common law rule actio personalis moritur cum persona applied in this jurisdiction. See Bishop v. Lokana, 6 Haw. 556 (Decision of Judd, C.J.) (1885); City and County v. Sherretz, 42 Haw. 177 (1957). However, there was and had been since 1923 a statute of the Lord Campbell's Act type,
Defendants contend that section 246-6 is not applicable when an injury results in death, and that section 246-2 affords the only remedy in such a case. It is our
This still leaves the question what cause of action there is that can survive in a case like the present one. Plaintiff concedes that under R.L.H. 1955, § 246-6, there survives in favor of the legal representative only such cause of action as decedent himself had at the time of his death. We therefore must determine what claim was vested in the decedent at the moment of his death.
This question came before the House of Lords in Rose v. Ford (1937) A.C. 826. Two years earlier, in Flint v. Lovell (1935) 1 K.B. 354, the Court of Appeal had held that a plaintiff injured in an accident might recover not only for his pain and suffering and for his mental disquietude through the prospect of an early death, but also for the substantial shortening of his life shown by medical testimony to be a reasonable certainty. No loss of earnings was involved. The later case, Rose v. Ford, was brought under the survival statute, the Law Reform (Miscellaneous Provisions) Act, 1934. Flint v. Lovell was approved, and it was held that the principle of that case should have been applied. The opinions rendered by four of the five Lord Justices brought out the following points, among others:
2. A living person could claim damages for loss of expectation of life, and that right, which was vested in him in life, on his death passed to his personal representative. When the principle actio personalis moritur cum persona was abolished by statute there no longer was anything to prevent a recovery. Only that principle had prevented the personal representative from suing previously; the other doctrine that the death of a person did not give a claim for damages, applied in Baker v. Bolton where a husband was claiming damages for the loss of his wife, never did apply to the injured person's own claim, since the personal representative was altogether prevented from suing prior to the survival statute.
3. The survival statute there involved, which was expressly limited to causes of action vested in the decedent upon his death, applied upon the foregoing reasoning.
The rule of Rose v. Ford was applied in a case of simultaneous death in Morgan v. Scoulding (1938) 1 K.B. 786. It was applied in the case of a child two and a half years of age, who died the same day as the accident, in Benham v. Gambling (1941) A.C. 157, the award of damages being less, however, because of the uncertainty of the child's future.
Insofar as lost earnings are concerned, the principle of Krakowski is not acceptable to us for reasons stated below. Courts which follow the case do not necessarily do so as to loss of earnings due to shortened life expectancy, this being a separate question as illustrated by Rhone v. Fisher, 224 Md. 223, 232, 167 A.2d 773, 779. At this point it is pertinent to note that some courts have approached the question involved in Krakowski from a different angle. These courts have reasoned from the premise that a defendant may not be permitted to show the imminence of death in mitigation of damages in an action brought by the injured person who still lives. As stated in West v. Boston & Maine R.R., 81 N.H. 522, 129 Atl. 768, 771, 42 A.L.R. 176, 183:
However, in some cases the interpretation of the survival statute has been influenced by the assumption that at common law, under the rule of Baker v. Bolton as well as under the maxim actio personalis moritur cum persona, an injured person had no cause of action for the shortening of his life but only for the damages suffered while he still lived. If in the judgment of the court the survival statute abolished both these rules, the personal representative was held entitled to sue even in the case of instantaneous death. See Broughel v. Southern New England Telephone Co., 72 Conn. 617, 622, 45 Atl. 435, 437, reversing and remanding for ascertainment of damages; 73 Conn. 614,
However, some statutes were so interpreted as to abolish solely the maxim actio personalis moritur cum persona, with the result that there could be no action for instantaneous death. Under that interpretation, in order for the survival statute to apply the injured person must live after the accident. As aptly stated in Goodsell v. Hartford & New Haven R.R., 33 Conn. 51, 55: "By a strange fiction the extremity of the wrong precludes redress." Thus in Kearney v. Boston & Worcester R.R., 63 Mass. (9 Cush.) 108, 110, the court reasoned in a case of instantaneous death: "Here there was no time, during the life of the intestate, at which a cause of action could accrue, because the life closed with the accident, from which a cause of action would have otherwise accrued." See also Hollenbeck v. Berkshire R.R., 63 Mass. (9 Cush.) 478; Bancroft v. Boston & Worcester R.R., 93 Mass. 34 (1865); cf., Murphy v. New York & New Haven R.R., 30 Conn. 184, 189, cited in Broughel v. Southern New England Telephone Co., supra at 624.
Many states have both a statute of the type of Lord Campbell's Act and also a survival statute; our own is one of these. In that situation, some courts will take cognizance of the wrongful cause of the death in the first type of action, but in a suit under the Survival Act will cut off the damages at the date of death just as if the
This however is not our approach. Baker v. Bolton was rejected in this jurisdiction one hundred years ago. Kake v. Horton, supra. Thus, upon the enactment of the survival statute abolishing the rule actio personalis moritur cum persona the only remaining obstacle to suit was removed, and the death of the injured person operated to transfer to the personal representative the claim which the deceased had on account of the injury though death itself was the result. This is confirmed by House Stand. Com. Rep. 581 on H.B. 588 of the Regular Session of 1955, which became Act 205, S.L. 1955 (House Journal 1955, p. 772) in which it was stated as to the survival statute:
Under the survival statute, the death is to be viewed not as an event which creates a cause of action but instead as "one of the harmful results of the wrongful act." Kling v. Torello, 87 Conn. 301, 87 Atl. 987 (1913). As well stated in the cited case:
Hence, under the survival statute the cause of action arises out of the injury. The injury may manifest itself in the loss of life instantly or subsequently, but the loss of life is not what gives rise to the cause of action. In contrast, an action under section 246-2 arises out of the death. This appears upon consideration of the language of R.L.H. 1955, §§ 246-3, 4 and 5.
It has been argued that the rule of Kake v. Horton is limited to the cause of action arising upon the death of an injured person in favor of a person standing in a certain legal relationship to decedent and that the case is without significance here. We cannot accept that line of reasoning.
In Kake v. Horton, Justice Robertson spoke of the rule that "the death of a human being could not be complained of as an injury" as "the old harsh rule" and as an "obstacle," and removed that obstacle "consonant with natural law and reason." 2 Haw. at 211-12). This was prior to S.L. 1892, c. 57, § 5, which as amended, is now R.L.H. 1955, § 1-1. Before that statute the court, under C.C. 1859, § 14, was unfettered by the English common law, and the rule was as follows: "We do not regard the Common Law of England as being in force here eo nomine
Considering the treatment of Baker v. Bolton in Kake v. Horton and by the English courts themselves as well as the legislative history, we must reject any interpretation of section 246-6 which is founded upon the theory that a total injury is any less so because death is the result. The totality of an injury which causes death commands recognition, not to punish the wrongdoer as has been suggested, but on the contrary because the impediment
Approaching the interpretation of the statute from the viewpoint set out above and holding that the survival statute applies even in the case of instantaneous death, we nevertheless must deal with a problem which has received the attention of the courts in every jurisdiction in which statutes of both types exist, and that is the problem of so interpreting the statute as not to permit of a double recovery. We necessarily consider the measure of damages in resolving this problem.
In Hindmarsh v. Sulpho Saline Bath Co., 108 Neb. 168, 187 N.W. 806 (1922), another of the cases cited by defendants, the problem of double recovery was given primary attention. The court concluded that "the recovery in the revived action [i.e., recovery by the estate] must be limited to such as the deceased might have recovered, had he lived, but not extending beyond the time of his death." (p. 809). In St. Louis & S.F.R.R. v. Goode, 42 Okla. 784, 142 Pac. 1185 (1914), on which defendants also rely, many cases are reviewed and the point emphasized that under the survival statute "the damages to the estate begin with the wrong and cease with the death" while under the Lord Campbell's Act type of statute "damages begin with the death." Obviously, some vestige of Baker v. Bolton remains when, in the survival action, damages are cut off arbitrarily at the date of death just as though death had ensued normally and without regard to the fact that the death was the result of the injury inflicted by the defendant.
Pennsylvania has reached a solution different from that in Ohio and Oklahoma and the other states cited by defendants. It is a solution that, after careful consideration, we find to be the one that best suits our situation. As we have said, the principle that a man has no
The first of these cases, Pennsylvania R.R. v. McCloskey's Administrator, 23 Pa. St. 526 (1854) was decided under the Act of April 15, 1851, sections 18 and 19, which were construed as providing, first, for the continuance of an action commenced by the injured person during his lifetime by his personal representatives after his death, i.e., for revival of the action; second, for recovery in the revived action of "the very damages to which the deceased would have been entitled, had he survived until verdict and judgment"; and, third, that if no action was brought by the injured person during his lifetime an action nevertheless might be brought after his death to recover the same damages, described as "the absolute value of the life lost * * *." This then, as construed, was purely a revival and survival statute. The court said:
Pennsylvania R.R. v. Zebe, 33 Pa. St. 318 (1858) was decided under an amendment made in 1855, which was construed as "a new and independent right given by positive law — not cast upon them by survivorship as for an injury to the decedent." Under the 1855 amendment the
By an act of July 2, 1937 (S.L. Pennsylvania 1937, c. 563), it was made possible, when no action was brought by the injured person during his lifetime, for his personal representative to bring an action in addition to the Lord Campbell's Act type of action permitted to be brought by the family. This then raised the question of what recovery was permissible in the personal representative's action, considered in Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942), Murray v. Philadelphia Transp. Co., 359 Pa. 69, 58 A.2d 323 (1948), and Ferne v. Chadderton, 363 Pa. 191, 69 A.2d 104 (1949). The measure of damages in an administrator's action under the survival statute was determined to be as follows, quoting from the last cited case:
The measure of damages set out in Ferne v. Chadderton, above quoted, prevents duplication of damages by taking into account the pecuniary loss recoverable under section 246-2. The recovery of gross earnings would result in overcompensation under the circumstances. See annotations in 7 A.L.R. 1314, part III; 26 A.L.R. 593, id.; 163 A.L.R. 253, id.; see also 7 A.L.R. 1355; 42 A.L.R. 187.
The family and dependents have a separate cause of action in their own right, as illustrated by Ferreira v. Honolulu Rapid Transit & Land Co., 16 Haw. 615, 628 (1905); Enos v. Motor Coach Co., 34 Haw. 5 (1936); Young v. Honolulu Construction & Draying Co., 34 Haw. 426 (1937); Gabriel v. Margah, supra; Ginoza v. Takai Elec. Co., 40 Haw. 691 (1955); cf., Globe Indemnity Co. v. Araki, 32 Haw. 153 (1931); Kamanu v. E.E. Black, Ltd., 41 Haw. 442 (1956), and Costa v. Flintkote Co., 42 Haw. 518 (1958), concerning the effect of the Workmen's Compensation Act. However, the existence of this right of third persons does not in itself imply that such third persons (the family and dependents) have a right while the injured person lives. Halberg v. Young, 41 Haw. 634 (1957), 59 A.L.R.2d 445, annotated at 454; Meredith v.
The right of recovery of the injured person is for his injury. Whether an injury inflicts total disability because the injured person lies in a coma while "life smoulders beneath the ruins" (Pennsylvania R.R. v. McCloskey's Administrator, supra), or total disability because death itself is the result, is a distinction without any legal difference in this jurisdiction, in which Baker v. Bolton never has been the law. There is no more reason for invoking the "old harsh rule" to cut off the right of recovery of the injured person for his injury than there was for invoking it to prevent third persons from having a right of action for his death. All that is necessary is to recognize, as is done under the Pennsylvania rule, that when the injured person dies instead of being disabled his death eliminates the cost of his maintenance and places the care of his family and dependents on a different basis, with the result that it is only with respect to what we will call the excess earnings that a right to compensation remains, and it is only with respect to this that a right survives in favor of the personal representative. By virtue of this rule the same damages with respect to loss of earnings are recoverable though the victim dies, as would have been recoverable had he lived in a totally incapacitated condition, except as the computation of damages is affected by death from a factual viewpoint. The river of damages which the injured person could have recovered if the injury had been short of death, by reason of his death separates into two streams. The fact of death is not used to "cut down damages" (cf., West v. Boston & Maine R.R., above quoted) but instead to measure damages differently.
Many opinions, such as those rendered in Hindmarsh
The touchstone is the right that was vested in the injured person at the moment of his death. It seems to us that a person mortally wounded cannot have less than the right to the present value of the sum, if any, that with due regard to his own cost of living and the care of his loved ones, would have been at his disposal during his lifetime had he been permitted to live it normally. If that is not a sound proposition then one can with equal justice urge that an injured person, alone in the world, who lies in a coma in a hospital and will never recover from it, has only a right to such sum as will maintain him in the hospital and nothing for lost earnings because, forsooth, he will not in future be able to spend anything; or that in any instance in which a person's earnings are more than he is ever likely to spend in his lifetime there should be no recovery for the excess since it will only go to his heirs anyway.
Under the reasoning of the cases last cited, the proposition we have stated — which for convenience we have called the right to excess earnings — is destroyed by the assumption that the right of the injured person during his lifetime was greater than that, and was a right to the present value of all lost earnings, an assumption however which in the last analysis is not put into practice. Realistically,
This leaves unanswered the question what effect should be given to a recovery by the injured person himself in his lifetime. Our statute does not cover that point (cf., the Pennsylvania cases above cited). Should the recovery of damages by a living person be deemed to bar an action by his family for his death? This question has long existed in this jurisdiction. Cf., Halberg v. Young, supra at 640. Perhaps the legislature will provide an answer before we are called upon to provide one. It is sufficient at this time to point out that even if no bar exists, adoption of a rule that an injured person has no right of recovery for the earnings lost by reason of the shortening of his life would be unreasonable. Adoption of the rule that he has the right of recovery, but with respect to excess earnings only, provides the solution.
However, the application of the Pennsylvania rule has resulted in that State in some excessive verdicts, which have been reduced, or set aside and a new trial ordered. See Hankins v. Mack, 364 Pa. 417, 72 A.2d 268 (1950); Fries v. Ritter, 381 Pa. 470, 112 A.2d 189 (1955); Swartz
In the second place, Pennsylvania like many other states does not include in the wrongful death action the so-called sentimental loss of the beneficiaries. Annot., 74 A.L.R. 11. The absence of express provision for this element of damage is apt to be offset by the indirect introduction of this element into other calculations which, as a result, appear over-generous unless it is realized that the figure includes this element. See Spangler v. Helm's New York-Pittsburgh Motor Express, 396 Pa. 482, 153 A.2d 490; cf., Vincent v. City of Philadelphia, 348 Pa. 290, 35 A.2d 65. We have a broad Wrongful Death Act,
Caution should be exercised, moreover, in instructing the jury as to the deductions to be made in determining what we have called the excess earnings. The purpose of these deductions is to eliminate the expenditures for decedent's own cost of living and the care of his family and dependents. In computing such deductions the jury is to assume a standard of living commensurate with the supposed income of decedent. It is to assume that decedent would have enjoyed his life and would have spent accordingly. The deductions are not to be computed at a bare minimum. Otherwise the award under the survival statute, sec. 246-6, would have in it the element of compensation for loss of enjoyment of life. That is not permissible.
In England, it is true, the award under the Survival Act is based on loss of enjoyment of life, but there no allowance is made for loss of future earnings. Benham v. Gambling, supra; Harris v. Brights Asphalt Contractors, Ld., (1953) 1 Q.B. 617, 634. The measure of damages in the English cases has not been applied in the United States. 61 Harv. L. Rev. 113, 143; Annot., 97 A.L.R. 823, 131 A.L.R. 1351. Our statutes are too different for us to apply the English rule. The legislature, having provided in section 246-2 for sentimental losses and having further provided that there shall be only one action under that section on behalf of all of the persons enumerated therein as entitled to damages, can hardly have intended by section 246-6 to permit a separate award for the loss of the decedent's enjoyment of his own life. Such an award under section 246-6 would be likely to duplicate an award for the sentimental loss under section 246-2, and there would be no deduction from the award under section 246-2 because of the award under section 246-6. See
The legislature has made provision against duplication of damages. By the amendments of sec. 246-2 made by S.L. 1955, Act 205, the common law action for wrongful death was merged with the statutory action under that section. The narrowness of section 246-2, which caused a contrary ruling in Gabriel v. Margah, supra, no longer exists. It is the plain intent of section 246-2 that all of the persons enumerated therein shall join in one action and be governed by the provisions of that section, so far as the right to sue for the wrongful death itself is concerned. As to an action under the Survival Act, sec. 246-6, the legislature has provided that on motion of any interested party the actions under sec. 246-2 and sec. 246-6 may be consolidated for trial; so this is an additional safeguard against duplication of damages.
In the present case, however, the action is solely under the survival statute and not for the entire damages. The action of the parents themselves has been brought in the federal court. The effect of separate trials of the two actions may have to be considered depending upon the outcome of the case. We note that in Pennsylvania the actions generally are consolidated, and while separate verdicts are rendered the tendency is to review the total of the two, as illustrated by Spangler v. Helm's New York-Pittsburgh Motor Express, supra, Tuttle v. Suznevich, 394 Pa. 614, 149 A.2d 888, 892. When the actions are separately tried no such indulgence can be shown.
This brings us to defendants' further contention as to the speculative nature of the damages in this case of a four-year old child. We recognize that the damages are highly speculative in this case. They are based on earning capacity and other facets of a life still new and unformed. However, by the great weight of authority, that is not a reason for denying such damages altogether. Cox v.
The complaint alleges that "a right of action has accrued in favor of the plaintiff, as legal representative of the said deceased, to recover * * * for the earnings which he would have received during his life expectancy after attaining the age of twenty years * * *." The right of recovery, however, is not for the earnings but for the present worth of the excess earnings. An administrator, in a case such as this, will have the burden of establishing that there would have been such excess and the amount thereof; it will not be sufficient to show a gross amount and leave to the defendant the task of showing the amount to be deducted. See Wada v. Associated Oil Co., 27 Haw. 671 (1924). Our judgment reversing the dismissal of the action is not to be taken as an approval of the allegations of damages as well pleaded.
Plaintiff further avers that under the survival statute he has "a right of action * * * to recover for the pain and suffering of the plaintiff's intestate prior to his death." According to other allegations of the complaint, plaintiff's intestate "fell into the aforesaid water hole and subsequently, on said same day, drowned." Defendants argue that this is "a simple allegation of death by drowning" and that as a matter of law "such a death is regarded as so instantaneous or contemporaneous as to accord no right of recovery for pain and suffering which survives," citing Barton v. Brown (also cited sub nom The Corsair), 145 U.S. 335, and other cases.
However, a second proposition has been urged, and that is that the damages are too conjectural to be permitted to go to the jury. That was the ruling in Kennedy v. Standard Sugar Refinery, 125 Mass. 90, in which the plaintiff's intestate lived thirty-six hours after the accident, so that the cause of action survived even under the Massachusetts rule, but the verdict was set aside because the judge instructed the jury that damages might be awarded "for mental or other suffering endured by the intestate from the time he fell until he struck the ground," a fall of twenty feet. In that case the evidence showed that the intestate became unconscious upon striking the ground, and it was held that though the suffering endured during the fall might perhaps be recoverable as an abstract proposition, nothing could be recovered on this account because plaintiff "could not furnish and did not furnish any proof as to his mental condition during the fall. Whether he suffered any mental terror or distress is purely a matter of conjecture." See also Mulchahey v.
Alluding to this problem the court in St. Louis, Iron Mountain & So. Ry. v. Dawson, supra, set aside the verdict as not supported by the evidence "for no appreciable interval of conscious suffering was proved, or, if any was proved, it is not shown to have extended beyond a moment." See also Brundrett v. Hargrove, 204 Ark. 258, 161 S.W.2d 762. In Chicago, R.I. & R. Ry. v. Owens, 78 Okla. 50, 186 Pac. 1092, it was held error to submit to the jury the matter of damages for pain and suffering when the amended petition failed to allege conscious pain and suffering as a fact.
Turning to cases of death by drowning and considering the second proposition above stated, we find that a recovery for the pain and suffering is not beyond the bounds of possibility. See Soule v. New York & New Haven R.R., 24 Conn. 575; Clark v. Manchester, 64 N.H. 471, 13 Atl. 867. The case last cited is a strong one for the plaintiff, but we are not prepared to accept it altogether at this time. Our ruling is that the question of damages for pain and suffering should be viewed as one of fact. The jury must determine whether and to what extent conscious pain and suffering were sustained. How much evidence is required and how much may be left to conjecture we prefer not to say at this stage of the case.
However, on the general question of survival of the cause of action, we wholeheartedly agree with the statement in Clark v. Manchester that:
That death never is simultaneous with the injury causing
Reversed and remanded for further proceedings consistent with this opinion.
OPINION OF CASSIDY, J., WITH WHOM THE CHIEF JUSTICE JOINS, CONCURRING IN PART. AND DISSENTING IN PART.
The amended complaint in this action alleges that on March 19, 1958, plaintiff's intestate, a 4-year-old child, fell into an open water-filled ditch negligently maintained by the defendants, and "subsequently, on the same day, drowned." Damages prayed for in stated amounts respectively are: (1) "For pain and suffering by the deceased prior to his death;" and (2) "For the earnings which he would have received during his life expectancy after attaining the age of twenty years."
The lower court granted the defendants' motion to dismiss for failure of the complaint to state a claim upon which relief could be granted. The court concluded:
In reversing, the majority of this court holds that where the death of a person is caused by the negligence
I agree with the court's determination that where, as is alleged in this case, death is caused by drowning resulting from another's negligence, the decedent's estate may recover damages for pain and suffering if, and to the extent, the decedent's personal representative is able to substantiate as a matter of fact that the decedent was subjected to pain and suffering. However, with all deference, I am unable to agree that the law recognizes a right of recovery in favor of the estate for damages in any manner predicated on estimated earnings of the decedent projected beyond the date of his death.
As is readily apparent from the court's opinion, the issue on which I differ with the majority has vexed the courts in many jurisdictions. There is considerable difference in the rationale underlying the decisions on the subject. This may be attributed to a good extent to the difference in the particular statutes involved, but the holdings of the courts, regardless of their reasoning, seem, with few exceptions, to point to and reach the same result. It is my opinion from an over-all review of the cases that the weight of authority and better reasoning deny recovery of damages by an estate for projected post-mortem earnings of the decedent, and I think this result is particularly supported and called for where a survival statute comparable to § 246-6 is complemented by a wrongful death statute such as we have in § 246-2.
Section 246-6 does not create any new cause of action. It is a survival statute pure and simple. Its only effect is to remove the previously existing common law bar to
I am persuaded that Krakowski v. The Aurora, Elgin & Chicago R.R., 167 Ill.App. 469, is sound and is representative of the majority view in this country in its holding that a person whose life would be shortened by injury is not entitled to recover damages "for any earnings he might be supposed to make, if living, in that part of his life lost by reason of his injuries." (pp. 472-473.)
The Krakowski case involved an action brought by the injured party while alive. But the basic principle of the case is soundly applied in a jurisdiction having a wrongful death statute where the action is brought under a survival statute by the personal representative of a decedent who died as a result of injuries inflicted by the tortfeasor. Illustrating this type of case is Hindmarsh v. Sulpho Saline Bath Co., 108 Neb. 168, 187 N.W. 806. In a well considered opinion the court rules, at p. 809:
In Gochenour v. St. Louis San Francisco Ry., 205 Okl. 594, 239 P.2d 769, the same conclusion is stated at pp. 770-771, as follows:
Unlike the majority, I find the approach and answer to the problem given in Allen v. Burdette, 139 Ohio St. 208, 39 N.E.2d 153, also persuasive. In holding that the right of recovery passing to the decedent's personal representative under a survival statute did not extend to loss of earnings projected beyond the time of decedent's death, the court states in that case, at p. 154:
See also Ellis v. Brown, Fla., 77 So.2d 845; Richmond Gas Co. v. Baker, 146 Ind. 600, 45 N.E. 1049; St. Louis & S.F.R. Co. v. Goode, 42 Okl. 784, 142 Pac. 1185; O'Leary v. United States Lines Co., D. Mass., 111 F.Supp. 745; Farrington v. Stoddard, supra.
It is argued however that any rule which denies an estate the right to recover damages based on earnings for the decedent's lost years is a harsh one in that it permits the wrongdoer by the excessiveness of his own tort to escape paying full compensation for the injury caused by him. There should be two sides to this proposition. It is not difficult to understand how sentiment could be mustered to favor extending the right of recovery where only a survival action is available or where the wrongful death statute is restricted, even though it should be apparent that, logically analyzed, any such extension would actually be punitive for the wrong committed while, inconsistently, the damages allowed would be admeasured
Section 246-6 was enacted by Act 205, S.L. 1955. The same act amended the wrongful death act (now § 246-2) to make it much more comprehensive than it had been, so much so that, as the majority states, "the common law action for wrongful death was merged with the statutory action under that section." The rights of action under § 246-2 and under § 246-6 are independent and may be concurrently pursued. Under these circumstances, it is my conviction that the rule should be approved and adopted which denies the right in a survival action to recover damages based on an estimate of earnings beyond the date of decedent's death. That we would be but following the authorities generally in doing so is indicated in the annotation appearing in 42 A.L.R. 187, in which the author states, at p. 188:
I do not think that consideration of Kake v. Horton, 2 Haw. 209, and the modern English decisions referred to and relied on in the court's opinion requires or supports a different holding.
In Kake v. Horton the court ruled that a widow could recover consequential damages resulting from the death of her husband through another's fault. In making this ruling the court refused to follow the common law principle that an action would not lie in favor of one spouse for the wrongful death of the other spouse, established by Baker v. Bolton, 1 Campbell's Reports 494. The court that decided Kake v. Horton was unfettered by the common law. It was not only authorized, but was required by statute (C.C. 1859, § 14, quoted in the margin
In deciding this case we are not as unfettered as the court was in deciding Kake v. Horton. The great freedom of judgment and action permitted the judiciary under the 1859 Code was removed in 1892 by the enactment in place of § 14 of the more restrictive provisions now appearing as R.L.H. 1955, § 1-1, which in pertinent part read:
It should be apparent from the authorities referred to in the forepart of this opinion that it cannot be said the common law of England, as ascertained by American decisions, has recognized the right of recovery under consideration. It is certain that no such right of recovery can be founded on the English decisions.
From the cases referred to in the court's opinion, it is seen that under the present English law an injury wrongfully inflicted on a person which shortens his life gives rise to special damages for the shortening of life.
As paraphrased in the prevailing opinion, it was held in Flint v. Lovell, (1935) 1 K.B. 354, that an individual injured by the wrongful act of another has a right of action not only "for mental disquietude through the prospect of an early death, but also for the substantial shortening of his life shown by medical testimony to be a reasonable certainty." This case was approved in a survival action in Rose v. Ford, (1937) 137 A.C. 826, and was made applicable to a simultaneous death in Morgan v. Scoulding, (1938) 1 K.B. 786. In Benham v. Gambling, (1941) A.C. 157, the rule allowing damages for early death was applied to a child dying on the same day of the accident causing his death. However, as the majority recognizes, none of these cases supports or affords a basis for the proposition that the injured person, during his lifetime, or his estate after his death, has a right of action for loss of earnings cut off by death. In Benham v. Gambling, supra, Viscount Simon (L.C.), speaking for and with the concurrence of the other members of the court, makes it clear that the English rule does not include damages based on estimated earnings for the years cut off by the injured person's death. At p. 167 of the opinion it is stated:
Further, the English decisions, even to the limited extent they permit enhancement of damages by reason of the shortening of the injured person's life, have not met with approval or acceptance in this country. Pointing out the difficulties and dissatisfaction the English courts have experienced in applying their rule, the court in Rhone v. Fisher, Ct. App., 224 Md. 223, 167 A.2d 773, states at pp. 777 and 778:
See also O'Leary v. United States Lines Co., supra; Farrington v. Stoddard, supra.
Since the right to recover damages for loss of earnings attributable to the decedent's lost years cannot be sustained under the common law as ascertained by English and American decisions, the only other basis for sustaining the right of recovery would have to be that such a right has been "fixed by Hawaiian judicial precedent." This means, as I analyze our problem, that Kake v. Horton, supra, relied on by the majority, would in itself practically have to sustain the right of recovery. And in my opinion the case cannot carry the load assigned to it.
In declining to follow the common law rule that the death of a human being could not be complained of, established by Baker v. Bolton, supra, the court in Kake v. Horton held that a widow has a legal right to complain and to be redressed for injuries resulting to her by the tortiously caused death of her husband. The cause of action so recognized rested on the close relationship between the claimant and the decedent. The principle established by the case applies to cases in which such a relationship exists. I view the existence of the close relationship as an essential element of the principle underlying the cause of action sustained in Kake v. Horton.
In Ferreira v. Honolulu R.T. & L. Co., 16 Haw. 615, the court applied the principle established by Kake v. Horton to allow recovery by a father for the injury suffered
That the principle in Kake v. Horton limits recovery to one standing in a particular relationship to decedent is, I think, quite clearly indicated in Gabriel v. Margah, 37 Haw. 571, by the statement of the court at p. 577, as follows:
In accordance with the foregoing, I dissent from the holding of the court that the complaint in this case states a claim for recovery of damages predicated on expected earnings of the deceased child. I concur in the reversal of the order dismissing the complaint on the limited grounds that the complaint is sufficient to allow the plaintiff an opportunity to establish pain and suffering as a matter of fact.
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