O'Connor v. Benson Coal Co.

Decision Date13 September 1938
PartiesJOHN J. O'CONNOR, administrator, v. BENSON COAL COMPANY.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

February 11, 1938.


Negligence Liability of employer for negligence of employee toward employee's minor child, Causing death, Due care of person in charge of child, Imputed, Motor vehicle, In use of way. Actionable Tort. Parent and Child. Practice, Civil, Charge to jury; Exceptions: general exception.

An action can be maintained under G. L. (Ter. Ed.) c. 229, Section 5, against the employer of the father of an unemancipated minor whose death was caused by negligence of the father acting in the scope of his employment if the child's mother, also next of kin, was not guilty of negligence contributing to cause the death. The questions, whether there could be recovery in an action under G. L (Ter.

Ed.) c. 229 Section 5, against the employer of one whose negligence in the scope of his employment had caused the death and who was the decedent's sole next of kin, and whether, where there were other next of kin who had not been guilty of negligence contributing to the death, the one guilty of such negligence should be permitted to share in what was recovered in such an action, were not decided.

On evidence of the circumstances in which a child three years and seven months of age, admitted to be incapable of exercising care for his own safety, had been absent from the side of his mother in the laundry yard in the rear of their home only two or three minutes, a finding was warranted that the mother was free from negligence in caring for him.

Evidence that a father left home for work in the morning and that his child always was in the mother's care, warranted a finding that when at noon his negligence caused the child's death near the home, the child was in the mother's care, so that the father's negligence could not be imputed to the child.

Evidence that the operator of a truck, driving it on a curved driveway into a narrow space near a house, saw a child running close alongside toward the narrow space and then took his attention from the child, whom he ran over shortly thereafter, warranted a finding that he was negligent.

A general exception to a portion of a charge to a jury which covered several propositions was of no avail in that it failed to point out which of the propositions were objectionable and wherein they were deemed erroneous.

An objection to a charge to a jury on the ground that it was inadequate in detail and insufficient to give the jury a clear perception of the alternatives presented to them must be made to the trial judge and cannot be made as of right for the first time in this court.

TORT. Writ in the First District Court of Eastern Middlesex dated August 1, 1935.

On removal to the Superior Court, the action was tried before J. W. Morton, J., and there was a verdict for the plaintiff in the sum of $3,971.92. The defendant alleged exceptions.

J. H. Gilbride, (C.

R. Flood with him,) for the defendant.

P. P. O'Connor, for the plaintiff.

QUA, J. This is an action under G. L. (Ter. Ed.) c. 229, Section 5, to recover for the death by negligence of the plaintiff's intestate Lorraine Hofman, a child three years and seven months of age living with her parents in Melrose.

The deceased met her death as the result of being run over by a truck driven by her own father, Frank Hofman, while acting within the scope of his employment by the defendant as a driver, in delivering at his own home some bags of coal which he had purchased from the defendant for his own use. It was agreed that the deceased was incapable of exercising any care for her safety. The exceptions are addressed to the denial by the judge of the defendant's motion for a directed verdict and to a portion of the charge. In the recent case of Luster v. Luster, 299 Mass. 480 , we decided that an unemancipated minor living with his parent cannot recover against the parent for personal injuries caused by negligence. We need not determine whether the principle of that decision applies to the statutory action for death (see Martinelli v. Burke, 298 Mass. 390 , 391), as we are of the opinion that the reasons of policy underlying the Luster case have but slight bearing where the action is against the employer of the parent, and that an action may lie against the employer where it would not lie against the parent himself. Thus a wife can recover for her husband's negligence against his employer, though she cannot recover against her husband himself. Pittsley v. David, 298 Mass. 552 , 553. See Am. Law Inst. Restatement: Agency, Section 217, Comment b.

It is urged that the plaintiff as administrator cannot prevail under the statute because the father, who as one of the next of kin would share in the distribution of the money recovered, would thereby profit from his own wrong. Upon the question so raised nearly every possible view seems to have been taken by the courts of various States. Where the wrongdoer would be the sole beneficiary it seems to have been quite generally held that no action can be maintained. Niemi v. Boston & Maine Railroad, 87 N.H.1. Richmond, Fredericksburg & Potomac Railroad v. Martin's Administrator, 102 Va. 201. Ploof v. Burlington Traction Co. 70 Vt. 509, 514-518. Lee v. New River & Pocahontas Consolidated Coal Co. 203 F. 644. Compare, however, McKay v. Syracuse Rapid Transit Railway, 208 N.Y. 359; Consolidated Traction Co. v. Hone, 30 Vroom, 275. But in the present case the mother would be entitled to share as one of the next of kin. In such instances some courts have held that there can be no recovery at all, in spite of the existence of innocent distributees. Hazel v. Hoopeston-Danville Motor Bus Co. 310 Ill. 38, 42, et seq. Brown McClain Transfer Co. v. Major's Administrator, 251 Ky. 741, 745. Others have held that the amount of recovery by the executor or administrator should be reduced by the amount payable as the share of the negligent distributee. Phillips v. Denver City Tramway Co. 53 Colo. 458, 470-473. Cleveland, Cincinnati, Chicago & St. Louis Railway v. Grambo, 103 Ohio St. 471, 477. Anderson v. Memphis Street Railway, 143 Tenn. 216. Still others support the view that where there are any innocent beneficiaries recovery may be had for the benefit of all, even though there are some who are guilty. Southern Railway v. Shipp, 169 Ala. 327. Wilmot v. McPadden, 78 Conn. 276. Wymore v. Mahaska County, 78 Iowa, 396, 399. Danforth v. Emmons, 124 Maine, 156. Love v. Detroit, Jackson & Chicago Railroad, 170 Mich. 1.

These citations might be greatly extended to no useful purpose. It is apparent from reading them that the results are dependent upon the varying characters of the death statutes of different jurisdictions and to some extent upon the local law as to imputed negligence. Our own death statute provides that action be brought by the executor or administrator and that damages be assessed with reference to the degree of culpability of the defendant or of that of his agents or servants. G. L. (Ter. Ed.) c. 229, Section 5. Its primary purpose is punishment proportionate to the degree of blame inherent in the wrongful act for which the defendant is liable. Porter v. Sorell, 280 Mass. 457 . In that case at page 462 we said, "This court cannot by construction add a limitation on punishment which the legislature did not see fit to establish." See also Boott Mills v. Boston & Maine Railroad, 218 Mass. 582; Putnam v. Savage, 244 Mass. 83; Macchiaroli v Howell, 294 Mass. 144 . Liability based upon the degree of culpability of the defendant cannot be varied according to the number of beneficiaries who are guilty or innocent. Compare Brown v. Thayer, 212 Mass. 392 , 399. There is no way in which damages can be either wholly denied or reduced because of the contributory negligence of one or more out of a group of beneficiaries without violating the statute. We therefore conclude that, at least when there is one beneficiary whose fault did not contribute to the death, recovery can he had without regard...

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