Battany v. Wall
| Decision Date | 26 February 1919 |
| Citation | 232 Mass. 138,122 N.E. 168 |
| Parties | BATTANY v. WALL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; William Cushing Wait, Judge.
Action of tort by Jabour Battany, administrator, against Patrick J. Wall, to recover for the conscious suffering and death of Nabeha Battany. Verdict was directed for defendant on the first count of the declaration, and the jury found for defendant on the second count, and plaintiff excepts. Exceptions sustained.
John Louis Sheehan and Frederick W. Miller, Jr., both of Boston, for plaintiff.
Walter I. Badger and Donald Knowlton, both of Boston, for defendant.
Under essential conditions sufficient to warrant the submission to the jury of the issue of the due care of the intestate and the negligence of the defendant, the intestate was struck and severely injured by an automobile driven by the defendant at 7:15 p. m., March 16, 1915, and thereafter lived until the following midnight. A right of action simultaneous with the injury accrued to the intestate, ‘as a person in esse, and [her] subsequent death does not defeat it, but, by operation of the statute, vests it in the personal representative.’ Hollenbeck v. Berkshire Railroad Co., 9 Cush. 478. ‘The continuance of life after the accident, and not insensibility or want of consciousness, is the test by which it is determined whether a cause of action survives.’ Kearney v. Boston & Worcester Railroad Corporation, 9 Cush. 108.Mulchahey v. Washburn Car Wheel Co., 145 Mass. 281, 285, 286, 14 N. E. 106,1 Am. St. Rep. 458.
The direction of the verdict for the defendant was error, because the plaintiff as matter of law was entitled to a verdict for nominal damages should the jury find the injury resulted from the negligence of the defendant without the contributing negligence of the intestate. Mulchahey v. Washburn Car Wheel Co., supra; St. 1914, c. 553. As there was no evidence of injury to property or property rights of the intestate, the plaintiff to recover actual damages must show the intestate suffered conscious pain or suffering. Kennedy v. Standard Sugar Refinery, 125 Mass. 90, 28 Am. Rep. 214. The only evidence to indicate consciousness of the intestate between the moment of her injury and death was the testimony of the mother, corroborated by that of the father, that, at the hospital, the child in answer to her mother's call said, ‘Oh, Mama,’ and ‘that was all she said that night.’ Upon...
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Armentrout v. Hughes
...are recoverable in an action for wrongful death, even though no actual pecuniary damage be sustained, or none proved. Battany v. Wall, 232 Mass. 138, 122 N.E. 168; Young v. Columbus & G. R. Co., 165 Miss. 287, 147 So. 342; Rice v. Erie R. Co., 271 Pa. 180, 114 A. 640; Yellow Cab Co. v. Malo......
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Gaudette v. Webb
...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.......
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Carr v. Arthur D. Little, Inc.
...Overman Wheel Co., 174 Mass. 455, 463, 54 N.E. 890. Boutlier v. City of Malden, 226 Mass. 479, 487-488, 116 N.E. 251. Battany v. Wall, 232 Mass. 138, 140-141, 122 N.E. 168. Cf. Edgarton v. H. P. Welch Co., 321 Mass. 603, 613, 74 N.E.2d 674, 174 A.L.R. 462. On the other hand evidence of acts......
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Royal Indemnity Co. v. Pittsfield Elec. Co.
... ... Railroad Co., 134 Mass. 499, 504, 505; Mulchahey v ... Washburn Car-Wheel Co., 145 Mass. 281, 14 N.E. 106,1 ... Am.St.Rep. 458; Battany v. Wall, 232 Mass. 138, 122 ... N.E. 168. The burden of proof in these matters is on the ... plaintiff. Fuller v. Andrew, 230 Mass. 139, 147, ... ...