Cassidy v. Constantine

• Citation: 168 N.E. 169,269 Mass. 56
• Parties: CASSIDY v. CONSTANTINE.
• Decision Date: 09 October 1929
• Court: United States State Supreme Judicial Court of Massachusetts

269 Mass. 56

168 N.E. 169

CASSIDY

v.CONSTANTINE.

Supreme Judicial Court of Massachusetts, Middlesex.

Oct. 9, 1929.

Appeal from District Court of Lowell; Arthur L. Eno, Judge.

Action by William H. Cassidy against Joseph R. Constantine. From an order dismissing the report, plaintiff appeals. Affirmed.

M. G. Rogers, of Lowell, for appellant.

W. H. Vincent, of Boston, for appellee.

RUGG, C. J.

This is an action by a husband to recover expenses for medical attendance, nursing, and medicine incurred by him as a result of injuries sustained by his wife through the negligence of the defendant. Testimony was excluded to the effect that probably as a further future result of such injuries an operation and additional treatment at an estimated cost would become necessary. A requested ruling that, if the plaintiff were entitled to recover, he might recover for probable future expenses in treating his wife for the injuries sustained by her, was denied. The correctness of these rulings in the question to be decided.

A plaintiff, other than a married woman and a minor in some circumstances, in an action to recover compensation for personal injuries sustained through the negligence of the defendant is entitled to have considered not only disbursements made and liabilities incurred for nursing and physicians' care before the time of trial, but also unascertained expenses of that nature likely to arise in the future as the result of the wrong done by the defendant. Turner v. Boston & Maine Railroad, 158 Mass. 261, 266, 267, 33 N. E. 520. There can be but one recovery and all factors of damages must be sought in a single action. Cole v. Bay State Street Railway, 223 Mass. 442, 111 N. E. 955. It is a part of the rule of damages in actions of negligence that a reasonable sum for estimated future necessary expenses of the kind here sought to be recovered constitutes a part of the liability of the wrongdoer.

At common law and before the enactment of statutes affecting the rights of married women, a husband might without the consent of his wife release damages for injury jury to her person, or, if collected in her lifetime, they became his separate property, and he might maintain an action in his own name alone for an injury to his wife which resulted in his loss of consortium with her. Kelley v. New York, New Haven & Hartford Railroad, 168 Mass. 308, 311, 46 N. E. 1063,38 L. R. A. 631, 60 Am. St. Rep. 397;Nolin v. Pearson, 191 Mass. 283, 285, 77 N. E. 890,4 L. R. A. (N. S.) 643, 114 Am. St. Rep. 605,6 Ann. Cas. 658. A necessary concomitant of such powers was the right to recover every factor of damage founded on expenses for nursing and physicians whether already accrued or likely to arise in the future. An equally certain consequence of those principles was that there could be no recovery for such expenses by the wife. Most of these common-law powers of the husband and limitations upon the wife have faded away under modern statutes, including the right to recover for loss of consortium arising out of actions for personal injuries to the wife. Bolger v. Boston Elevated Railway, 205 Mass. 420, 91 N. E. 389.Feneff v. New York Central & Hudson River Railroad, 203 Mass. 278, 89 N. E. 436,24 L. R. A. (N. S.) 1024, 133 Am. St. Rep. 291.

Actions for such personal injuries must now be maintained by the wife or by her representative. The husband still remains the nominal and legal head of the family and is responsible for the reasonable support of the wife and for affording her necessary nursing and physicians's care. Kenyon v. Vogel, 250 Mass. 341, 344, 145 N. E. 462. The wife may, however, bind her separate estate for service of this nature. Charron v. Day, 228 Mass. 305, 117 N. E. 347. In those circumstances, if properly pleaded, she might recover therefor in an action for personal injuries sustained by her. The husband is presumed to be liable therefor and the wrongdoer is liable to him for his disbursements and obligations already incurred by him on this account. Driscoll v. Gaffey, 207 Mass. 102, 108, 92 N. E. 1010.Braun v. Bell, 247 Mass. 437, 440, 142 N. E. 93. Stated as a principle of law, the measure of damages against a wrongdoer is the same, whether the person injured is a married woman, single woman, or man. He is bound to make compensation for the injury inflicted. As a practical matter the wrongdoer ought not to escape in part the consequences of his tort provided the person injured is a married woman. This precise question is not settled by authority in this commonwealth. The point was not raised in Hunt v. Boston Terminal Co., 212 Mass. 99, 98 N. E. 786,48 L. R. A. (N. S.) 116, and all that there was said related to different contentions.

There are two ways of meeting the situation. One is by resorting to the common-law history of the relation of husband and wife, and by emphasizing the fact that in any...