362 Mass. 60 (1972), Gaudette v. Webb

Citation362 Mass. 60, 284 N.E.2d 222
Party NameMarion Joan GAUDETTE, administratrix, v. Richard E. WEBB et al.
Case DateJune 05, 1972
CourtSupreme Judicial Court of Massachusetts

Page 60

362 Mass. 60 (1972)

284 N.E.2d 222

Marion Joan GAUDETTE, administratrix,

v.

Richard E. WEBB et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 5, 1972

Argued Oct. 6, 1971.

[284 N.E.2d 223] Allan Robinson, Boston, (Louis M. Saab, Lowell, with him), for plaintiff.

Frank P. Hurley, Boston, for defendants.

Before TAURO, C.J., and CUTTER, SPIEGEL, REARDON, QUIRICO, BARUCHER and HENNESSEY, JJ.

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QUIRICO, Justice.

This is an action in tort seeking recovery from three defendants for the conscious suffering and death of the plaintiff's intestate, Joseph Francis Gaudette (Gaudette) as the result of a collision of two motor vehicles. The declaration is in twelve counts, two against each defendant for the death of Gaudette, and two against each defendant for his conscious suffering. 1 [284 N.E.2d 224] 1 The case is here on the plaintiff's exception to the allowance of the defendants' pre-trial motion that 'the causes of action set forth in plaintiff's amended declaration be dismissed, on the ground that the statute of limitations as to each of said actions had expired before the same were commenced.'

The facts relied on by the defendants for their motion to dismiss are all apparent on the face of the plaintiff's declaration and they are as follows. Gaudette died on April 15, 1967, as the result of injuries which he sustained on that day in the collision of an automobile driven by him and a tractor-trailer unit driven by the

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defendant Webb allegedly on the business of the two corporate defendants. Gaudette was survived by his widow and three minor children. The widow was appointed administratrix of Gaudette's estate on March 4, 1970, and on the same date she gave the required bond for the discharge of her trust in that capacity. This action was started by a writ dated March 6, 1970, served on the defendants on March 9, 1970, and entered in the Superior Court on May 4, 1970.

The question for our decision is whether, as matter of law, the statute of limitations had run against the causes of action for which this action was brought. Although G.L. c. 229, § 6, as amended through St.1958, c. 238, § 5, permits the joinder of separate counts for death and for conscious suffering in a single action, they are separate causes of action. Finnegan v. Checker Taxi Co., 300 Mass. 62, 69, 14 N.E.2d 127, and cases cited. Goltz v. Besarick, 313 Mass. 14, 15, 46 N.E.2d 9. We shall therefore consider the two causes of action separately.

1. Conscious Suffering. Under G.L. c. 260, § 4, as amended through St.1965, 1965, c. 302, 'actions of tort for bodily injuries or for death the payment of judgments in which is required to be secured by chapter ninety . . . shall be commenced only within two years next after the cause of action accrues.' This provision applies to the present action, since it arises out of such an automobile accident. See Bickford v. Furber, 271 Mass. 94, 96, 170 N.E. 796; DeCosta v. Ye Craftsman Studio Inc., 278 Mass. 315, 317, 180 N.E. 151. Had Gaudette lived, he could have commenced an action at any time up to April 15, 1969, which was two years after the date of the accident, for his personal injuries and suffering.

If Gaudette continued to live for any period of time after he was injured, and consciously suffered pain during that period, he had a cause of action for such conscious suffering caused to him by the negligence of the defendants. Such a cause of action would survive his death by virtue of G.L. c. 228, § 1, as appearing in St.1934, c. 300, § 1, which provides in part that 'In addition

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to the actions which survive by the common law, the following shall survive:--. . . Actions of tort . . . for assault, battery, imprisonment or other damage [284 N.E.2d 225] to the person.' If Gaudette consciously suffered pain before his death, 'A right of action simultaneous with the injury (negligently caused by the defendants) accrued to . . . (him), 'as a person in esse, and . . . (his) subsequent death does not defeat it, but, by operation of the statute, vests it in the personal representative. " Battany v. Wall, 232 Mass. 138, 140, 122 N.E. 168, 169. Royal Indem. Co. v. Pittsfield Elec. Co., 293 Mass. 4, 7--8, 199 N.E. 69; Campbell v. Romanos, 346 Mass. 361, 367, 191 N.E.2d 764.

The plaintiff, as Gaudette's personal representative, obviously could not bring an action for conscious suffering within two years after the cause of action accrued because she was not appointed administratrix until March 4, 1970, almost three years after the date of the accident. However, she has the benefit of G.L. c. 260, § 10, which provides in part that 'If a person entitled to bring . . . any action before mentioned dies before the expiration of the time hereinbefore limited . . . and the cause of action by law survives, the action may be commenced by the executor or administrator at any time within the period within which the deceased might have brought the action or within two years after his giving bond for the discharge of his trust' (emphasis supplied). The plaintiff's bond as administratrix was approved on March 4, 1970. She started this action on March 6, 1970, and it was therefore within the time permitted by § 10 quoted above. It was error to dismiss the plaintiff's counts for Gaudette's conscious suffering.

2. Wrongful Death. The wrongful death statute in effect at the time of Gaudette's death, G.L. c. 229, § 2, as appearing in St.1958, c. 238, § 1, as amended through St.1965, c. 683, § 1, provided, in pertinent part, that '(a)n action to recover damages under this section shall be commenced within one year from the date of death or within such time thereafter as is provided by sections four, four B, nine or ten of chapter two hundred and

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sixty' (emphasis added). As noted earlier in this opinion, G.L. c. 260, § 4, as amended through St.1965, c. 302, which requires commencement of tort actions arising out of certain automobile accidents 'within two years next after the cause of action accrues,' is applicable to this case. See Bickford v. Furber, 271 Mass. 94, 96, 170 N.E. 796; DeCosta v. Ye Craftsman Studio Inc., 278 Mass. 315, 317, 180 N.E. 151. The cause of action for death 'accrued at the time of . . . (Gaudette's) death.' Bickford v. Furber, supra, 271 Mass. p. 97, 170 N.E. at p. 798; Wescott v. Henshaw Motor Co., 275 Mass. 82, 85, 175 N.E. 153. In this case the death occurred on April 15, 1967, and therefore for time for bringing the plaintiff's action for wrongful death would have expired on April 15, 1969, unless it was extended by the tolling provisions of G.L. c. 260.

The plaintiff first argues that such time was extended by G.L. c. 260, § 10, but that provision applies only to actions which 'the deceased might have brought.' As such it does not apply to wrongful death actions, which may be brought only 'by the executor or administrator of the deceased.' G.L. c. 229, § 2, as appearing in St.1958, c. 238, § 1. Nothing appearing in the case of Noon v. Beford, 349 Mass. 537, 209 N.E.2d 292, relied upon by the plaintiff, is to the contrary.

The second provision relied upon by the plaintiffs is G.L. c. 260, § 7, which tolls the statute of limitations in part if a person is a 'minor . . . when a right to bring an action first accrues.' This Commonwealth has long subscribed to the rule that there is no common law right to civil recovery for death, and that any right to such recovery is solely a creation of the statutes. 2 As such, [284 N.E.2d 226] the period of limitation appearing in our wrongful death

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statute has been held to be 'a limitation upon the right as well as upon the remedy, and the right was lost when . . . (the period of limitation) expired.' Bickford v. Furber, 271 Mass. 94, 97, 170 N.E. 796, 798, and cases cited. In the Bickford case we held that the tolling provision in G.L. c. 260, § 10 (which extended the time for commencing an action in case of the death of 'a person entitled to bring or liable' thereto), was not applicable in a wrongful death action, even though the limitation set forth in G.L. c. 260, § 4, was held to apply to the case. In so ruling, we said, at p. 99, 170 N.E. at p. 798: 'This section is a part of the general statute of limitations and does not apply where 'a special provision is otherwise made relative to the limitation of any action.' G.L. c. 260, § 19. . . . The limitation imposed by G.L. c. 229, § 5, as amended (now G.L. c. 229, § 2), incorporating a part of G.L. c. 260, § 4, as amended, is special, since, in form, it is included in the statute creating the right and, in substance, is a limitation of the right as well as of the remedy.' 3

The reasoning in the Bickford case was subsequently followed by the court in Wescott v. Henshaw Motor Co., 275 Mass. 82, 86, 175 N.E. 153 (holding that G.L. c. 260, § 9, which tolls the statute of limitations while the defendant is residing out of the Commonwealth, was not applicable to an action for wrongful death), and was more recently referred to with approval, although not applied, in Noon v. Beford, 349 Mass. 537, 540--541, 209 N.E.2d 292, decided in 1965. The tolling provision for minors, appearing in G.L. c. 260, § 7, is also part of the general statute of limitations and, if we were to follow the reasoning of the cases just discussed, that provision would also be inapplicable to actions for wrongful death. See Developments in the Law,

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Statutes of Limitations, 63 Harv.L.Rev. 1177, 1234 (1950).

Despite the seeming hopelessness of the plaintiff's cause of action for death in the light of the formidable array of adverse judicial precedents reviewed above, she argues, through counsel, more on the basis of common sense and fairness than on the basis of adherence to legal precedents, and perhaps despite the precedents, that the law should find some way to afford a remedy for redress of the legal wrongs of...

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126 practice notes
  • 628 F.Supp. 1219 (D.Mass. 1986), Civ. A. 82-1672, Anderson v. W.R. Grace & Co.
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • 3 Enero 1986
    ...judicial alteration and expansion because the "right to recovery for wrongful death is of common law origin". Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222, 229 (1972) (overruling contrary decisions). The limitations period of the wrongful death statute is a limitation upon the r......
  • 19 Cal.3d 564, 30574, Justus v. Atchison
    • United States
    • California United States State Supreme Court (California)
    • 8 Junio 1977
    ...to the point where it may now be held that the right to recovery for wrongful death is of common law origin' (Gaudette v. Webb (1972) 362 Mass. 60, 284 N.E.2d 222, 229). As will appear, in California the question is not a matter of 'evolution' but of legislative intent. Page 574 It is true,......
  • 26 Mass.App.Ct. 681 (1988), Gage v. City of Westfield
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • 23 Diciembre 1988
    ...cause of action from any claim for wrongful death. See Dermody v. Utley, 328 Mass. 209, 211, 103 N.E.2d 234 (1952); Gaudette v. Webb, 362 Mass. 60, 62, 284 N.E.2d 222 (1972). The motion judge based his ruling that the plaintiffs could not recover on a negligence theory for their decedents' ......
  • 387 Mass. 841 (1983), International Fidelity Ins. Co. v. Wilson
    • United States
    • Massachusetts United States State Supreme Judicial Court of Massachusetts
    • 10 Enero 1983
    ...in the criminal law, each wrongdoer may be made to suffer the maximum penalty, no matter how many are guilty." See Gaudette v. Webb, 362 Mass. 60, 73-74 n. 9, 284 N.E.2d 222 (1972); O'Connor v. Benson Coal Co., 301 Mass. 145, 148, 16 N.E.2d 636 (1938). The analogy to c. 93A is helpful.......
  • Request a trial to view additional results
123 cases
  • 628 F.Supp. 1219 (D.Mass. 1986), Civ. A. 82-1672, Anderson v. W.R. Grace & Co.
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • 3 Enero 1986
    ...judicial alteration and expansion because the "right to recovery for wrongful death is of common law origin". Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222, 229 (1972) (overruling contrary decisions). The limitations period of the wrongful death statute is a limitation upon the r......
  • 19 Cal.3d 564, 30574, Justus v. Atchison
    • United States
    • California United States State Supreme Court (California)
    • 8 Junio 1977
    ...to the point where it may now be held that the right to recovery for wrongful death is of common law origin' (Gaudette v. Webb (1972) 362 Mass. 60, 284 N.E.2d 222, 229). As will appear, in California the question is not a matter of 'evolution' but of legislative intent. Page 574 It is true,......
  • 26 Mass.App.Ct. 681 (1988), Gage v. City of Westfield
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • 23 Diciembre 1988
    ...cause of action from any claim for wrongful death. See Dermody v. Utley, 328 Mass. 209, 211, 103 N.E.2d 234 (1952); Gaudette v. Webb, 362 Mass. 60, 62, 284 N.E.2d 222 (1972). The motion judge based his ruling that the plaintiffs could not recover on a negligence theory for their decedents' ......
  • 387 Mass. 841 (1983), International Fidelity Ins. Co. v. Wilson
    • United States
    • Massachusetts United States State Supreme Judicial Court of Massachusetts
    • 10 Enero 1983
    ...in the criminal law, each wrongdoer may be made to suffer the maximum penalty, no matter how many are guilty." See Gaudette v. Webb, 362 Mass. 60, 73-74 n. 9, 284 N.E.2d 222 (1972); O'Connor v. Benson Coal Co., 301 Mass. 145, 148, 16 N.E.2d 636 (1938). The analogy to c. 93A is helpful.......
  • Request a trial to view additional results
3 books & journal articles
  • A general theory of governance: due process and lawmaking power.
    • United States
    • William and Mary Law Review Vol. 54 Nbr. 3, February - February 2013
    • 1 Febrero 2013
    ...as a matter of federal common law), nonstatutory wrongful death has also become available in some states. See, e.g., Gaudette v. Webb, 284 N.E.2d 222 (Mass. 1972). (245.) 42 U.S.C. [section] 1983 (2006). (246.) 18 U.S.C. [section] 2 (2006). (247.) In criminal prosecutions the enumerated rig......
  • Taking wrongful death seriously: Dworkinian interpretivism and the common law right of action for wrongful death.
    • United States
    • Faulkner Law Review Vol. 5 Nbr. 2, March - March 2014
    • 22 Marzo 2014
    ...at 383-85. (9) Malone, supra note 8, at 1058. (10) Carey v. Berkshire R.R. Co., 55 Mass. 474-75 (1848), overruled by Gaudette v. Webb, 284 N.E.2d 222 (Mass. 1972). (11) But see Gaudette, 284 N.E.2d at 229 (recognizing common law existence of wrongful death in Massachusetts); Rohlfing v. Mos......
  • Dueling decisions: the wrongful death clock clangs twice on the same day.
    • United States
    • Missouri Law Review Vol. 81 Nbr. 2, March - March 2016
    • 22 Marzo 2016
    ...v. Monroe, 20 Wend. 210 (N.Y. 1838). (79.) Carey v. Berkshire R.R. Co., 55 Mass. 475, 478 (1848), overruled in part by Gaudette v. Webb, 284 N.E.2d 222 (Mass. 1972); see Doesburg, supra note 66, at 497. (80.) Carey, 55 Mass. at 475. See Doiron, supra note 71, at 454. (81.) The Harrisburg, 1......