Shiels v. Audette , 119 Conn. 75 ( 1934 )

The conclusion reached by the majority opinion upon the action of the court in sustaining the demurrer to the second count is one in which I find myself unable to concur. The rule at common law is clear; one who by negligence injured a minor without fault of the latter, was subject to two separate and distinct causes of action — one by the minor for his personal injuries and one by the parent for the loss of the minor's services and for the expense to which the parent had been put. He was not answerable to either for the loss suffered by the other. They were independent rights and the recovery by one was not a bar to a recovery by the other, save under special circumstances, as in Kenure v.Brainerd Armstrong Co., 88 Conn. 265, 267,91 A. 185. This was the situation when the legislature had the guest statute under consideration. By that Act, the minor's right of action for personal injuries from negligence, was taken away if he was a guest, unless he could prove that the defendant was guilty of something more than negligence, viz.: of a heedless and reckless disregard of the minor's rights. The language of that Act confines its operation exclusively to "the person transported," and thereafter a minor guest had no vested right which could be invaded by a simple act of negligence; but the same negligent act still had the result of depriving the parent of his rights with which the common law had invested him, since the guest statute made no reference to anyone except the person transported. The negligent act remained a legal wrong to the parent, as at common law.

In a Massachusetts case, where the rights of a minor were lost by his failure to comply with a statutory requirement of notice, an action by the parent for the deprivation of the latter's common-law rights was sustained by reasoning which I feel to be sound and properly applicable to the present case. The court said that the parent's right of action was not in any just sense consequential upon that of the son's, but was an independent right based upon the parent's own loss of services, and the expenses caused by the injury. It was pointed out that the statute, by recognized canons of construction, showed that "it was not intended to take away the right of anyone but himself. . . . In our statute there is no direct enactment taking away the parent's right of action, and we find nothing which takes it away by necessary implication. The legislature simply have not covered the case. . . . We have no right to conjecture what the legislature would have enacted if they had foreseen the occurrence of a case like this; much less can we read into the statute a provision which the legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose. . . . It may be added also that another rule of statutory construction is that an existing common-law remedy is not to be taken away by a statute unless by direct enactment or necessary implication." King v. Viscoloid Co.,219 Mass. 420, 423-425, 106 N.E. 988. Our own case of Wueppesahl v. Connecticut Co., 87 Conn. 710, 89 A. 166, and other cases cited, where contributory negligence is involved, are not, I think, in point. Manifestly a parent could not collect from a third party for expenses caused by injuring his son where the negligence of the latter was a contributing cause of those injuries; we make no apportionment of negligence in this State. No contributory negligence is involved in the present inquiry, and the negligence of the defendant stands as the sole cause of the parent's loss. He had a right of recovery at common law, and that right was not disturbed by the guest statute. I think the demurrer should have been overruled.