Putnam v. Savage

Decision Date02 March 1923
PartiesPUTNAM v. SAVAGE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Report from Superior Court, Suffolk County.

Action by John P. Putnam, administrator of Annie E. Putnam, against H. W. Savage, executor of Joseph B. Smith, for conscious suffering and death of plaintiff's intestate. Reported from the superior court after verdicts for plaintiff. Judgment ordered on the verdicts.

The action was originally brought against Joseph B. Smith, and after his death his executor appeared and filed amended answer, alleging that the cause of action for death was not one which survived, and that plaintiff was not entitled to maintain the cause of action, so far as it dealt with damages for death. At the conclusion of the evidence defendant moved for a directed verdict on the count for death, and requested a ruling or instruction that no action could be maintained thereon; but the court submitted both counts, without any instruction as to that question, under agreement that, in the event of a verdict for plaintiff, the case was to be reported on the question of plaintiff's right to recover on the count for death. A verdict was returned for plaintiff for $1,000 on the count for conscious suffering, and $3,000 on the count for death.

Frost & Breath, of Boston, for plaintiff.

Sawyer, Hardy, Stone & Morrison and W. D. Gray, all of Boston, for defendant.

RUGG, C. J.

This was an action brought by an administrator to recover damages for the conscious suffering and death of his intestate caused by the negligence of one Joseph P. Smith. There are two counts in the declaration. The first is for conscious suffering concerning which now there is no controversy. The second is for death and is founded on St. 1907, c. 375, now G. L. c. 229, § 5, whereby:

‘If a person * * * by his * * * negligence * * * causes the death of a person who is in the exercise of due care and not in his * * * employment or service, he * * * shall be liable in damages in the sum of not less than five hundred nor more than ten thousand dollars to be assessed with reference to the degree of his * * * culpability * * * to be recovered in an action of tort, commenced within two years after the injury which caused the death, by the executor or administrator of the deceased, one-half thereof to the use of the widow and one-half to the use of the children of the deceased; or if there are no children, the whole to the use of the widow; or if there is no widow, the whole to the use of the next of kin.’

The original defendant died after action brought. His executor, appearing to defend, pleaded that the count for death of the plaintiff's intestate did not survive the death of his testator.

No civil action for death of a human being exists at common law. It is wholly the creature of statute. Duggan v. Bay State Street Railway Co., 230 Mass. 370, 376, 119 N. E. 757, L. R. A. 1918E, 680.

The statute upon which this count is based had its origin in St. 1898, c. 565. It differed in no respect here material from the present statute. The remedy provided for this particular class of death cases has always been civil in form. The action is founded on the negligence of the defendant; it is brought for the benefit of the widow, children and next of kin of the deceased, and the damages are to be assessed with reference to the degree of culpability of the negligent person. This statute conforms in the main to the policy of this commonwealth in affording remedy for the death of a human being caused by negligence. That policy, as shown by all our statutes of this general nature, is in some aspects punitive and in some aspects compensatory and remedial. Sullivan v. Hustis, 237 Mass. 441, 130 N. E. 247, 15 A. L. R. 1360; and cases there reviewed; Brooks v. Fitchburg & Leominster Street Railway, 200 Mass. 8, 86 N. E. 289;Prondecka v. Turners Falls Power & Electric Co., 238 Mass. 239, 130 N. E. 386.

The statute upon which this count is founded contains no express reference to survival of the action in case of the death of the defendant.

At common law a right of action for tort does not survive the death either of the person injured or of the wrongdoer. Wilbur v. Gilmore, 21 Pick. 250;Michigan Central Railroad v. Vreeland, 227 U. S. 59, 67, 33 Sup. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176.

Resort therefore must be had to the general provisions of the statutes as to survival of actions to ascertain whether this action survives the death of the wrongdoer. If no survival is wrought by statute the action must abate.

It is enacted by G. L. c. 228, § 1, continuing the words of earlier statutes, that:

‘Actions of * * * tort for assault, battery, imprisonment or other damage to the person’ together with others not here relevant, ‘shall survive.’

This statute is general in terms and manifestly is designed to include all classes of cases within its scope. It comprehends all such cases, whether then existing or thereafter created, unless excepted from its terms. It was in existence long before this particular death statute was enacted. If the action thereby created comes within its range, it survives; otherwise it must abate. Wheel-wright v. Tax Commissioner, 235 Mass. 584, 585, 127 N. E. 523;Merrill v. Paige, 229 Mass. 511, 118 N. E. 862;Brooks v. Fitchburg & Leominster Street Railway Co., 200 Mass. 8, 17, 86 N. E. 289;White v. United States, 191 U. S. 545-554, 24 Sup. Ct. 171, 48 L. Ed. 295.

[5] The precise point to be decided is whether the action for death under the statute survives by virtue of the words ‘other damage to the person’ in the section just quoted. With reference to the meaning of those words it was said by Chief Justice Holmes, in Dixon v. Amerman, 181 Mass. 430, 63 N. E. 1057, that they--

‘seem to have been adopted in the General Statutes (Gen. Sts. c. 127, § 1) as an equivalent for St. 1842, c. 89, § 1, which enacted that ‘the action of trespass on the case, for damage to the person, shall hereafter survive.’ This was by way of addition to Rev. Sts. c. 93, § 7, which embraced only ‘assault, battery, or imprisonment,’ and obviously it meant only to make the survival of certain types of wrongs independent of the form of the action. In the language of Chief Justice Shaw, ‘This manifestly extends only to damage of a physical character, as by negligence of carriers, towns, or the like.’ Smith v. Sherman, 4 Cush. 408, 413.'

In exemplification of the meaning of ‘damage of a physical character’ thus declared to be the scope of the statute it has been held that actions for breach of promise to marry, Smith v. Sherman, 4 Cush. 408; for malicious prosecution, Nettleton v. Dinehart, 5 Cush. 543; for libel, Commings v. Bird, 115 Mass. 346; for criminal conversation with one's husband, Dixon v. Amerman, ubi supra; for consequential damages to a husband arising from personal injury to his wife, Hey v. Prime, 197 Mass. 474, 84 N. E. 141,17 L. R. A. (N. S.) 570; for damages to a father flowing from personal injury to his minor child, Keating v. Boston Elevated Railway, 209 Mass. 278, 95 N. E. 840-do not survive under the statute.

In other connections personal injury has been given a wider signification. Mulvey v. Boston, 197 Mass. 178, 83 N. E. 402,14 Ann. Cas. 349; Hurle's Case, 217 Mass. 223, 224, 104 N. E. 336, L. R. A. 1916A, 279, Ann. Cas. 1915C, 919; Madden's Case, 222 Mass. 487, 492, 111 N. E. 379, L. R. A. 1916D, 1000. Decisions of that nature, however, are not pertinent to the words of the statute as to survival of actions, which from the first rightly have been confined for historical and other reasons to ‘damages of a physical character.’

‘On the other hand, it was held in Wilkins v. Wainwright, 173 Mass. 212 at page 213,53 N. E. 397, that an action for injury to the person of the plaintiff from an assault by dogs of the defendant survived death of the latter. Referring to the survival statute it was said:

‘The damage to the person referred to means damages resulting from a bodily injury, or damages of physical character, as distinguished from those which are suffered only in the feelings or reputation.’ Norton v. Sewall, 106 Mass. 143, 145,8 Am. Rep. 298.

It was held in Johnston v. Bay State Street Railway, 222 Mass. 583, 111 N. E. 391, L. R. A. 1918A, 650, that the right to the damages afforded by St. 1907, c. 392, § 1, now G. L. c. 229, § 3, in case of death to one not in its employ negligently caused by a street railway ‘vested by legislative provision in the named beneficiary living at the death of the person...

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