Supreme Court civil 8360/2010
In thanatological cd damage must be taken into account when quantifying the amount due as compensation for moral damage, including mental distress suffered by the victim of physical injury to such is followed shortly after the death, which has been polished during the agony, awaiting the end in conscious, yes to avoid the lack of protection given by the case law that denies the legitimacy of compensation for the loss of biological life. (Supreme Court Civil Sec. III, 08/04/2010, No. 8360)
Here is the full text of the Judgement.
Supreme Civil Sec. III 04/08/2010 No 8360
The Conduct of the process (omitted) died in (omitted) the farmer TG, due to an electric shock that struck him while he was working on a walnut tree. The leaves of the tree, located below the power line, had increased, reaching to touch the power lines.
The death was not immediate, but came after about half an hour while the victim was astride a branch, unable to move due to dell'elettrolocuzione, though asking help, no one was allowed to intervene.
In criminal trials following the accident were not responsible the owner of the land, PG, and the clerk of ENEL, in charge of what goes on the power line, SA.
The criminal sentence of condemnation issued by the Magistrate of Nocera Inferiore and become final, following the dismissal of the appeal and the appeal to the Supreme Court, he charged to those responsible for the payment of a provisional L. 80 million, in financial damage, biological and moral.
RMP, TMF and TA, respectively widow and daughters of John Todisco, brought to the District Court of Nocera Inferiore claim for damages against the P., S. and ENEL SpA. ENEL and S. were made to withstand the questions, while P. remained in default.
With No Judgement 1098/2002. The Civil Court granted the applications Nocera Inferiore plaintiffs and ordered the defendants, in solidarity with each other, to pay a total of Euro 60,456.45, as compensation for pecuniary damage (already deducted from that sum the amount of rent made by 'INAIL) Euro 100,000.00 in total compensation of non-pecuniary damage (of which 50% for the wife and 25% each for the two daughters), and € 90,000.00 in damages biological as well as currency appreciation, to the interests and costs.
appealed from the main Campania SpA Enel Distribuzione and incidental to PV and PL, as heirs of PG, have formed the injured, who have challenged the locus standi of Enel Distribuzione SpA, having been cited in the first instance ' Enel SpA, we still should be dismissed.
It is also the S., which will endorse the pleas of Enel.
Heirs P. asked, by the cross-appeal, to be performed by each application to have renounced the legacy of his father. With
ruling September 16, 2004 - March 15, 2005 No. 184 the Court of Appeal of Salerno, in partial reform of the decision under appeal, has reduced the sum paid in compensation for damage to property and denied damages biological haereditario jure, to the fact that death was almost immediate.
a writ served April 28, 2006 the R. - T. propose seven grounds of appeal, illustrated by memory.
Resists Enel Distribuzione with defense. Reasons for Decision
1. - With the first and second plea, the applicants allege violation of Articles. 99, 100 and 101 of the CPC, not to have the Court of Appeal recognized the inadmissibility of the appeal for lack of standing and for lack of locus standi of the appellant, Enel Distribuzione Spa Campania, having been the first instance in the case brought against the spa Enel and the ruling of the Court ruled against that company. 2 .- The reasons are unfounded.
It is true that the summons was served in the first instance to Enel SpA, headquartered in (omitted).
On that site, however, the defendant was created as Enel SpA - Distribution Campania, Centre of Naples (omitted), the latter area that was not included as a society separate and independent of Enel SpA, but as a simple compartment thereof.
against the entity so established in respect of which the current applicants did not raise any objection, was given the sentence of First Instance The appeal has yet been proposed by Enel SpA - Distribution Campania, Centre of Naples (omitted), which also appears as a mere field organizational entity and not as an independent company and is distinct from Enel SpA.
E 'to exclude, then, that the notice of appeal was brought by an entity other than the companies that participated in the first instance. It was only whether the Enel was ritually in court by the said compartment, and in particular whether the attorneys had been given (for both sets of proceedings, not only for the appeal), subject to the holder of power of attorney.
On these issues, the applicants have not alleged and proven here to have raised any objection, in value judgments, particularly on appeal, where in the latter have only (and wrongly) argued that the appeal had been lodged by companies different from what had been convicted at first instance, and then, as stated above, the administrative center of the bell was still an independent company.
In any case, notes The defendant in its defense that the authorization of the Director of Distribution Campania is to be considered valid under art. Enel 14 of the Statute, approved by Presidential Decree 21 December 1965, n. 1720, which gives to the directors of the compartment, within the territorial area and for the affairs of their jurisdiction, the representation of the case of active and passive entity, including as regards the filing of appeals. (See also, on the theme, Cass. Civ. Sec. 1 ^, 19 November 1993 No 11441, Cass. Civ. 20 December 2007 No 26977).
Only in this court of Cassation has established a spa Enel Distribuzione, as distinct from and independent company Enel SpA, established pursuant to Legislative Decree no. March 16, 1999, No 79, Art. 13, paragraph 2, so that the defense was actually filed by someone other than the one that took part in the judgments.
The attorneys at the bottom to the defense, however, the company specifies that Article. 13 cit., Ordered his succession in particular all the assets and legal relationships already belonging to ENEL, activity distribution and sale of electricity in the Campania region (similar to what has been prepared for other areas of distribution.)
The defendant company is therefore entitled to contradict the purposes of Article. 111 Code, uc.
3 .- Equally unfounded is the third ground of appeal, the appellant alleges infringement of Article. 75 Code, for the fact that the person named as representative on appeal Enel Distribuzione, ing. PV is different from that stated at the first instance, ing. IG, although the Enel invoked in the appeal to the authorization of the defender with the appearance of formal first degree.
Indeed, the representation of the case entity with the power to give the attorneys are inherent to the position of Director compartment, and it is sufficient that this position is covered when the authorization is given.
If the first instance the powers Defence has been given for the appeal proceedings by the party at that time was entitled to grant, any, imminent termination from office is irrelevant.
4. - By its fourth plea, the applicants complain of a breach of Article. 2909 cc, Art. 324 Civil Code, Art. Cpp 538 and 539, as the contested decision - denying them the right to compensation for damage to biological hereditary title - has rejected a ruling already covered by judges, and in particular the decision of the magistrate's criminal Nocera Inferiore, which he attributed to the parties civilians by way of a provisional sum, explicitly mentioning the right to compensation of damaged biological and rejecting the irrisarcibilità exception of that loss, with specific reasons.
recalls the jurisprudence of this Court that, if the criminal court did not limit himself to rule on the potential harm of the fact charged but is satisfied and ruled on the existence of damage in concrete terms, the decision has the effect of res judicata (Cass . Civ. Sec. 3 ^, 9 July 2009 No 16113).
4.1 .- The reason is not well founded.
The sentence pronounced res judicata is binding on the civil court in respect of the establishment of the facts, not what the reviews and legal descriptions pertaining to the civil effects of pronunciation, what are those pertaining to the identification of the harmful consequences that could give rise to situations of compensable damage.
The Court of Cassation n. 16113/2009, cited by the applicants in support of their argument, in fact refers to a case in which they were involved in criminal investigations carried out in practice the existence of damage and the existence of a causal link between the wrongful act and damage incurred.
In this case, the criminal sentence is invoked as judged in that carried out the reasons why it considered compensable in favor of the heirs also the damage suffered by the victim for the loss of life, that is merely a part of argument, that therefore not binding on the court calendar.
5 .- The sixth and seventh plea, the applicants complain of failure to state reasons and violation of Articles. 2043, 2056, 2059, 1223 and 1226 cc, in so far as the Court of Appeal denied the right to achieve jure haereditario biological damages suffered by the deceased as a result of the accident. The applicants complain
the interpretation of the Court of Appeal, that - if the death occurs immediately or shortly afterwards damaging event - the lesion is not hitting the right to health, but the right to life, which last can not be attributed to any repair, if it is lacking, with the death of the person who should suffer the loss, and seek a revised in accordance with the jurisprudence of this Court.
6 .- The reasons are well founded, under the following terms.
Firstly, it is noted that the desired revision of the jurisprudence of this Court on this issue there has been, in later than the date on which the decision under appeal was issued, through a more precise legal systems and concepts of the concept of non-pecuniary damage and the consequences of compensation on this basis (see Cass. Civ. ON November 11, 2008 No. 26972 and No. 26973).
The Supreme Court on the one hand has brought back the damages payable under the classification established by the legislature bipolar sums it all up in two categories of damage capital and non-pecuniary damage, indicating that the distinctions drawn by the doctrine and practice between biological damage, damage to death, existential damage, etc, are merely descriptive, the other side pointed out that, when making the quantification and the clearance voice of the only "non-pecuniary damage, the court must take into account all the aspects mentioned above. If
therefore must be avoided duplication of damages, through the award of separate and different amounts depending on the different voices (moral suffering, damage to health, cosmetic damage, etc.), the non-pecuniary damage must still be fully compensated in cases in which the law admits the repair in the sense that the judge in settling the amount due the injured person should take account of different aspects in which the damage poses in this case. As for the cd
thanatological damage, must be considered when quantifying the amount due as compensation for moral damage, "even the mental suffering endured by victims of personal injury which is followed shortly after the death, which has been polished during the agony of waiting in conscious end ";........ ".... so as to avoid the lack of protection given by the case law that denies the legitimacy .... damages for the loss of biological of life "(Cass. on No. 26972/2008, cit., 4.9; Cass. Civ. SU No. 26973/2006, 2.14).
The court must customize the liquidation of that sum due as compensation for moral damage, taking into account the cd thanatological, where the affected so specific and reasoned request and the circumstances of the case justify their relevance.
In this case the Court of Appeal, in contrast with the above principles, has totally denied the complainants for compensation, by inheritance, for moral damage suffered by the victim, because of the severe suffering that preceded death.
The sum paid in compensation for moral damage is quantified in fact only with respect to the remuneration payable to the survivors for their moral damages suffered jure, due to the loss of the parental relationship.
7 .- The fifth ground of appeal, the appellants complain that the cross appeal of the heirs P. should be declared inadmissible for lack of capacity to be sued by the same, as they had renounced the legacy, it is inadmissible for lack of interest, since the Court of Appeal ordered precisely in this sense, the explanatory memorandum (see page. 6, third row of the above).
8 .- In upholding the sixth and seventh grounds of appeal the decision under appeal must be quashed, only the chapter on the non-payment of the amounts claimed as compensation for the damage suffered by the deceased (erroneously referred to as biological damage) and as no need for further findings of fact, the cause may be decided on its merits.
The claim for moral damages suffered by the victim in the time preceding the death, today's proposal by the applicants in hereditary title, must be upheld on the basis of the arguments and the different classification of the above (see Cass. Civ. Sec. 3 ^, 28 November 2008 No 28423, Cass. Civ. Sec. 3 ^, 30 September 2009 No. 20949; Cass. Civ. Sec. 3 ^, 19 January 2010 No 702), and the sums already paid by the Court of Appeal in financial damage suffered by the applicants and non-property right jure, must be added a sum in compensation for moral damage, their due "haereditario jure", a sum which is considered to quantify the same amount of Euro 90,000.00, already dismissed by the Court as biological damage.
remain firm for the other heads of the judgment, including those relating to the right of the damaged currency appreciation and statutory interest on the sums paid; appreciation and interest on the amount that it is also settled here, with the date of the sentence of First Instance.
intimates should be ordered to pay the costs of the appeal, as well as to pay the costs of these proceedings, as well as paid by the device. PQM
The Court of Supreme welcomes the sixth and seventh grounds of appeal and reject the other grounds.
case contested the ruling in relation to the grounds and met and decided on the merits, condemned the SA and Enel SpA, in solidarity with each other, to pay the applicants, in addition to the amounts determined by the decision under appeal by way of compensation for property damage and non-property, the total sum of € 90,000.00 in compensation for non-pecuniary damage suffered by the deceased, in addition to adjustment for inflation and statutory interest on the amount reviewed annually, with the date of the sentence at first instance.
Condemns SA and Enel SpA, in solidarity with each other, to pay the costs of the proceedings appeal, overall liquidity in Euro 7,500.00, of which € 500.00 for disbursements, Euro 2.000,00 for rights attorney and Euro 5,000.00 for attorney's fees, and payment of the costs of appeal, paid by total of € 6,200.00, of which Euro 200.00 and Euro 6,000.00 for disbursements for fees. In both cases, plus the reimbursement of overhead costs and accessories, security and tax law.
Decided in Rome, February 22, 2010.
Filed April 8, 2010 in Stationery
0 comments:
Post a Comment