Boott Mills v. Boston & M.R.r.

• Decision Date: 24 October 1914
• Citation: 106 N.E. 680,218 Mass. 582
• Parties: BOOTT MILLS v. BOSTON & M. R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

218 Mass. 582

106 N.E. 680

BOOTT MILLS v. BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Middlesex.

October 24, 1914

Oct 24, 1914.

COUNSEL

F. E Dunbar, A. C. Spalding, and John J. Rogers, all of Lowell, for plaintiff.

Trull & Wier, of Lowell, for defendant.

OPINION

RUGG C.J.

This is an action in tort or contract which comes before us on report from a judge of the superior court, who overruled the defendant's demurrer to the plaintiff's declaration.

The first count in the declaration alleges in substance that the defendant, a railroad corporation, negligently delivered a loaded coal car owned by it to the plaintiff, a cotton manufacturer, knowing that the plaintiff in the ordinary course of its business would move the car by horses on tracks upon its premises, there unload and return it to the defendant; that the car was in a defective condition whereby, while the plaintiff was causing the car to be moved with due care, one of its employés was injured, whose administrator recovered and collected a judgment against it for his conscious suffering, due notice of that action having been given to the defendant. The third count, which is in contract, sets forth the same facts with an averment that the defendant impliedly represented and agreed that the car was safe to be moved and unloaded in the manner undertaken by the plaintiff.

Counts 2 and 4 of the declaration aver in substance that by reason of the same negligent conduct of the defendant the plaintiff has been compelled to pay a judgment recovered against it by the administrator of its employé for his death by virtue of St. 1909, c. 514, §§ 128 to 131.

I. Counts 2 and 4 are dealt with first. They relate to recovery for death under the Employers' Liability Act. According to its provisions, when an injury due to the tortious conduct of the employer or those for whom he is responsible results in the death of an employé, damages in a sum not less than $500 nor more than $5,000 'to be assessed with reference to the degree of culpability of the employer or of the person for whose negligence the employer is liable' may be recovered against the employer. So far as damages are recovered for death under this statute, they are to be paid to the widow, if there is one; if there is none, to the employé's next of kin.

The action between the administrator of the deceased employé and the plaintiff was before this court in D'Almeida v. Boott Mills, 209 Mass. 81, 95 N.E. 398, Ann. Cas. 1913C, 751. It there appears that the administrator brought two actions, one against the plaintiff, in part to recover for the death of his intestate under St. 1909, c. 514, §§ 128 to 131, wherein damages for $3,300 were awarded, and another action against the present defendant under St. 1906, c. 463, pt. 1, § 63, as amended by St. 1907, c. 392, wherein damages for $6,500 were recovered. The latter statute permits recovery for the death of any person not an employé caused by the negligence of a railroad or street railway corporation, or the unfitness or negligence of its servants engaged in its business, to an amount not less than $500 nor more than $10,000, also to 'be assessed with reference to the degree of culpability of the corporation or its servants or its agents.'

The nature of the liability imposed upon the plaintiff by the judgment recovered against it for $3,300, based upon its negligence in causing the death of its employé, must be considered.

With the exception of the Workmen's Compensation Act, St. 1911, c. 751, which has no bearing upon the questions here presented and which is to be considered as excluded from this discussion, the remedy provided by our statutes imposing liability for negligently causing the death of a human being uniformly, from the earliest instance, has been punitive in nature. Either by necessary implication or express terms in all such statutes the amount to be recovered has been proportioned to the degree of blame of the wrongdoer. None of these statutes have made the amount of damages recoverable compensatory in their character. Damages have not been and could not be assessed under the statutes with reference to the injuries suffered by the persons to whom they are paid, but solely with reference to the degree of culpability of the guilty party in causing the death. The greater the fault the greater has been the sum recovered. That appears from the detailed examination of our statutes in Hudson v. Lynn & Boston Railroad, 185 Mass. 510, 71 N.E. 66. The point was decided expressly in that case, with ample reference to all the statutes and a comparison with the English death statute known as Lord Campbell's Act and others following it in many states of the Union, and a review of all our cases. That was an inevitable conclusion from the tenor of our statutes and of our earlier decisions. Under this form of statute manifest advantages accrue to the widow and next of kin of the person whose life is lost over those afforded by statutes of which Lord Campbell's Act is the type. The wrongdoer is punished according to his guilt, and that which is in substance a fine proportioned to that guilt is paid to the person or persons, or some of them, who have suffered by reason of the death and thus to whom the injury has been done. The conduct of the deceased, in case he is a passenger upon any common carrier, whether negligent or otherwise, has nothing to do with the matter. Under all the statutes the deceased has no control over such an action, even though he survives the injury for a considerable time in the full possession of his faculties. The cause of action does not arise until his death. Bowes v. Boston, 155 Mass. 344, 349, 29 N.E. 633, 15 L. R. A. 365; Merrill v. Eastern Railroad, 139 Mass. 257, 29 N.E. 666; Church v. Boylston & Woodbury Café Co., 218 Mass. 231, 105 N.E. 883.

A reference to a few other of our cases makes plain the point. It was said in Carey v. Berkshire Railroad, 1 Cush. 475, 480, (48 Am. Dec. 616) respecting the railroad statute, that the penalty 'is doubtless to be greater or smaller, within the prescribed maximum and minimum, according to the degree of blame which attaches to the defendants, and not according to the loss sustained by the widow and heirs of the deceased.' This language has been quoted or referred to with approval, or the principle followed, in many subsequent cases: Commonwealth v. Boston & Lowell Railroad, 134 Mass. 211, 213; Commonwealth v. Eastern Railroad, 5 Gray, 473; Kelley v. Boston & Maine Railroad, 135 Mass. 448; Littlejohn v. Fitchburg Railroad, 148 Mass. 478, 20 N.E. 103, 2 L. R. A. 502; Com. v. Boston & Albany Railroad, 121 Mass. 36; Merrill v. Eastern Railroad, 139 Mass. 252, 29 N.E. 666; Cripp's Case, 216 Mass. 586, 589, 104 N.E. 565; Wiemert v. Boston Elevated Railway, 216 Mass. 598, 602, 104 N.E. 360. In Doyle v. Fitchburg Railroad, 162 Mass. 66, 71, 37 N.E. 770, 25 L. R. A. 157, 44 Am. St. Rep. 335, it was said respecting a kindred statute where substantially the same language was used, that the remedy 'is in substance a penalty'; and in Littlejohn v. Fitchburg Railroad, 148 Mass. 478, 482, 20 N.E. 103, 2 L. R. A. 502, that it was 'penal in its character'; in Jones v. Boston & Northern Street Railway, 205 Mass. 108, 109, 90 N.E. 1152, as being 'of a penal nature'; in Renaud v. New York, New Haven & Hartford Railroad, 210 Mass. 553, 557, 97 N.E. 98, 101 (38 L. R. A. [N. S.] 689) it was referred to as 'a penal statute to punish the railroad for causing through negligence the death of a passenger.' In Brown v. Thayer, 212 Mass. 392, 399, 99 N.E. 237, 240, it was said:

'The statute may be designated as remedial for the reason that a remedy is provided where before its enactment none existed. But the damages assessed are distinctly grounded upon the defendant's culpable misconduct and are diminished or enhanced according to the degree of his delinquency.'

The conclusion that the death statutes are punitive and not compensatory in nature is founded in large part upon the words now employed in all such statutes, that the amount of damages which may be recovered are 'to be assessed with reference to the degree of culpability of the' person liable. See as to death occasioned by defective highways, R. L. c. 51, § 17; by negligence of common carriers other than railroads and street railways, R. L. c. 70, § 6; by negligence of railroads and street railways, St. 1906, c. 463, pt. 1, § 63, as amended by St. 1907, c. 392 and by St. 1912, c. 354; by negligence of others not employers, R. L. c. 171, § 2, as amended by St. 1907, c. 375 (hereinafter referred to as the general death statute); and by employers, St. 1909, c. 514, §§ 128 to 131. The damages awarded by the first three of these statutes were recoverable only by indictment prior to St. 1881, c. 199 (except as to street railways, which was changed by St. 1886, c. 140). These two statutes last cited gave an option to proceed by an action of tort as well as by an indictment in cases against railroads and street railways (Hudson v. Lynn & Boston Railroad, 185 Mass. 510, 515, 71 N.E. 66), but abolished the remedy by indictment as to death caused by other common carriers and through defective highways. The damages awarded by the last two of these statutes, namely, for death occasioned by an employer (see St. 1887, c. 270, § 3) and by all others not otherwise made liable (see St. 1897, c. 416, St. 1898, c. 565), never had been recoverable by indictment. But these statutes always have required the amount recoverable to be assessed 'with reference to the degree of culpability' of the person liable, or his servants or agents, which are the same words used in all the other death statutes. These are the decisive words. They stamp the character of the...