Porter v. Sorell

• Decision Date: 28 October 1932
• Parties: PORTER v. SORELL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 457

182 N.E. 837

PORTER

v.SORELL et al.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 28, 1932.

Appeal from Superior Court, Hampden County; Lummus, Judge.

Bill in equity by Emma J. Porter, administratrix, against Leon E. Sorell and the Liberty Mutual Insurance Company. Decree for plaintiff, and the last-named defendant appeals.

Affirmed.

E. W. Sawyer, of Boston, for appellant.

J. E. Kerigan, of Springfield, for appellee.

DONAHUE, J.

The plaintiff's intestate was killed on May 19, 1929, in a collision between an automobile owned and operated by the defendant Sorell and a truck operated by the defendant Sorell and a truck operated by an employee of the Mexican Petroleum Corporation. In separate suits brought under G. L. c. 229, § 5, as amended by St. 1925, c. 346, § 9, by the plaintiff as administratrix against the defendant Sorell and the Mexican Petroleum Corporation for negligently causing the death of her intestate, she recovered verdicts of the same amount. Both cases went to judgment. The Mexican Petroleum Corporation paid the full amount of the execution which issued on the judgment against it, namely, $4,026.57 damages and $27.65 costs, and the execution was indorsed as ‘satisfied in full.’ No part of the judgment for $4,026.57 damages and $23.25 costs which was entered in the suit against the defendant Sorell has been paid. The defendant Sorell at the time of the death of the plaintiff's intestate held a policy of motor vehicle liability insurance issued by the defendant insurance company under the provisions of St. 1925, c. 346, insuring him against loss or damage by reason of liability on his part to pay damages on account of bodily injuries or death from an accident caused by his automobile through his negligence. The plaintiff as administratrix has brought a bill in equity to reach and apply the obligation of the defendant insurance company under the policy issued to the defendant Sorell in satisfaction of the judgment recovered against him by the plaintiff administratrix for the death of her intestate. G. L. c. 214, § 3, cl. 10, as amended by St. 1923, c. 149, § 3. The trial was on a case stated and the case comes before us on the appeal of the defendant insurance company from a final decree ordering it to pay the plaintiff the sum of $4,210.19 in satisfaction of the judgment against the defendant Sorell and costs in this suit amounting to $20.60. The appeal presents for discussion and decision the question whether the satisfaction by one concurrent tortfeasor of a judgment against him in an action for negligently causing death bars the collection of a judgment recovered against another concurrent tortfeasor in an action for negligently causing the same death where the sum of the two judgments is less than $10,000. What is herein said is confined to that precise question. Vigeant v. Postal Telegraph Cable Co., 260 Mass. 335, 343, 157 N. E. 651, 53 A. L. R. 867.

[3][4] The plaintiff as administratrix had obtained the verdict of a jury against the defendant Sorell in an action brought under G. L. c. 229, § 5, to recover damages for the death of her intestate. That verdict represents a jury's determination of the guilt of Sorell and also its determination of the amount of the penalty to be paid by Sorell for his wrongful act. The statute on which the suit against Sorell was grounded is one of many legislative enactments during a period of nearly two and a half centuries which have created in this commonwealth what did not exist at common law, rights of action for negligence which causes the death of a human being. The history of this legislative system of death statutes is told with adequate detail in Hudson v. Lynn & Boston Railroad, 185 Mass. 510, 71 N. E. 66, and Brooks v. Fitchburg & Leominster Street Railway, 200 Mass. 8, 86 N. E. 289. In the various statutes there have been and are differences as to the grounds of liability and the procedure for the determination of liability, the burden of proof as to the care used by the deceased, the amount recoverable, the person or persons entitled ultimately to receive such amount and the matter of costs. Whatever these variances now are or in the past have been, all the death statutes have this common, uniform and unaltered characteristic that the amount recoverable is fixed, not on the theory of compensating the surviving relatives of the deceased, but solely on the basis of the quantity of guilt of the defendant under the circumstances of the killing. From the time of the passage of St. 1786, c. 81, § 7, down to 1881 (St. 1881, c. 199, P. S. c. 112, § 212), the only remedy provided by statute was by indictment. Grella v. Lewis Wharf Co., 211 Mass. 54, 58, 97 N. E. 745, Ann. Cas. 1913A, 1136. Such cases were prosecuted by the Attorney General (Commonwealth v. Boston & Worcester Railroad, 101 Mass. 201, 202), or by a district attorney (Commonwealth v. Boston & Worcester Railroad, 11 Cush. 512, 514), or by an attorney allowed to appear and represent the commonwealth (Commonwealth v. Eastern Railroad, 5 Gray, 473). By St. 1786, c. 81, § 7, if a defect in a way caused death a municipality was ‘liable to be amerced in one hundred pounds.’ Later statutes referred to the money payment for death as a ‘fine.’ Beginning with St. 1881, c. 199, statutes have been passed which provide an action of tort as the only remedy in all classes of death actions except in the case of railroads and street railways where the remedy is either by indictment or by an action of tort. In providing the remedy by an action of tort the Legislature ‘retained, in the use of the words ‘damages * * * to be assessed with reference to the degree of culpability,’ the distinguishing feature of a fine imposed by court after a conviction upon an indictment.' Johnston v. Bay State Street Railway, 222 Mass. 583, 584, 111 N. E. 391, 392, L. R. A. 1918A, 650. While such an action of tort differs in important particulars from the earlier remedy of indictment (Kelley v. Boston & Maine Railroad, 135 Mass. 448) so far as the character of the liability of the defendant goes ‘no distinction * * * can be made between an indictment and an action of tort’ brought under the death statutes. Merrill v. Eastern Railroad, 139 Mass. 252, 257, 29 N. E. 666, 667;Hudson v. Lynn & Boston Railroad, 185 Mass. 510, 516, 71 N. E. 66;Arruda v. Director General of Railroads, 251 Mass. 255, 260, 147 N. E. 21. The conclusion is unavoidable that the death statutes in providing a right of action in tort ‘gave a civil remedy for the recovery of a penalty imposed by way of punishment.’ Hudson v. Lynn & Boston Railroad, 185 Mass. 510, 517, 71 N. E. 66, 69. In decisions in cases brought under the same statute on which the action against Sorell was based (G. L. c. 229, § 5) the statute is described as being ‘penal’ (McCarthy v. William H. Wood Lumber Co., 219 Mass. 566, 568, 107 N. E. 439) or ‘punitive’ (Brown v. Thayer, 212 Mass. 392, 399, 99 N. E. 237,Putnam v. Savage, 244 Mass. 83, 85, 138 N. E. 808) in nature, and as providing a ‘penalty’ (Nugent v. Boston Consolidated Gas Co., 238 Mass. 221, 237, 130 N. E. 488;Sterling v. Frederick Leyland & Co. Ltd., 242 Mass. 8, 13, 136 N. E. 60;Dzura v. Phillips, 275 Mass. 283, 290, 175 N. E. 629) or a ‘fine’ (Turnquist v. Hannon, 219 Mass. 560, 562, 107 N. E. 443;Leahy v. Standard Oil Co. of New York, 220 Mass. 90, 95, 107 N. E. 458;Eldridge v. Barton, 232 Mass. 183, 186, 122 N. E. 272). Although by the provision that the penalty when assessed and paid shall be truned over to the persons designated to receive it the death statutes have a remedial aspect (Sullivan v. Hustis, 237 Mass. 441, 448, 130 N. E. 247, 15 A. L. R. 1360), there is manifested in our death statutes in their present as much as in their earlier forms the clear legislative intent that by means of a judgment in an action of tort adequate punishment shall be meted out to the negligent killer of a human being.

[6] ‘The guiding principle for the interpertation of a statute is that it must be construed, if reasonably possible, so as to effectuate the purpose of the framers.’ Commonwealth v. S. S. Kresge Co., 267 Mass. 145, 148, 166 N. E. 558, 559. The definite purpose of the death statutes to punish those who through negligence cause the death of a human being would be only partially accomplished if one of two persons wrongfully causing death escaped punishment. Like all punitive legislation the death statutes prescribe the extent of punishment. The statute on which the action against Sorell was based places a minimum limitation of $500 and a maximum limitation of $10,000, between which extremes the amount of the penalty is to be fixed with reference to the degree of culpability of the wrongdoer. Nugent v. Boston Consolidated Gas Co., 238 Mass. 221, 237, 130 N. E. 488. There was no action at common law for wrongfully causing death, and the Legislature in creating a remedy might have adopted the theory that compensation should be given the surviving relatives of the person killed, as did Lord Campbell's act (9 & 10 Vict. c. 93), but ‘the Massachusetts acts are exactly what Lord Campbell's act is not.’ Hudson v. Lynn & Boston Railroad, 185 Mass. 510, 519, 71 N. E. 66, 70;Arruda v. Director General of Railroads, 251 Mass. 255, 263, 147 N. E. 21. Their basic theory as to damages is punishment not compensation. Even on a theory of punishment the General Court might, if such was its purpose, have placed another limitation on the matter of punishment by providing that the punishment of one of two negligent takers of a human life should absolve the other from the consequence of his wrongful act. For a somewhat similar provision in the statute permitting recovery of a forfeiture for color or race discrimination see G. L. c. 272, § 98; Bryant v. Rich's Grill, 216 Mass. 344, 103 N. E. 925, Ann. Cas. 1915B, 869. This the Legislature has not done in the death statutes. This...