Gilpatrick v. Cotting

• Decision Date: 20 May 1913
• Citation: 101 N.E. 993,214 Mass. 426
• Parties: GILPATRICK v. COTTING et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

214 Mass. 426

101 N.E. 993

GILPATRICK v. COTTING et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 20, 1913

COUNSEL

Charles Wood

Bond and Harry E. Perkins, both of Boston, for plaintiff.

John Lowell and James A. Lowell, both of Boston, for defendants.

OPINION

MORTON J.

This action was brought in 1910 to recover under St. 1907, c. 375 for the death of the plaintiff's intestate. Under that statute the damages were to be assessed according to the degree of culpability and were limited to $10,000. At the time when the action was brought a count for conscious suffering could not be joined with a count for death. Brennan v. Standard Oil Co., 187 Mass. 376, 73 N.E 472. Subsequently St. 1911, c. 31, was enacted, which allowed a count for conscious suffering resulting from the same injury to be joined to a count for death. After the passage of this statute the plaintiff was allowed to amend her declaration by adding a count for conscious suffering. The defendants asked the court to rule that the plaintiff's right of recovery was limited to $10,000, that being the limit of recovery upon the action as originally brought. The court refused so to rule and this presents the first and most important question raised by the defendants' exceptions.

The defendants concede that the statute being remedial applied to pending actions, but contend that since recovery in the action where the amendment was allowed was limited by statute to $10,000 the adding of a new count could not extend the limit thus established, and rely upon Bartley v. Boston & Northern Street Railway, 198 Mass. 163, 83 N.E. 1093, and Howard v. Fall River Iron Works Co., 203 Mass. 273, 89 N.E. 615. The defendants insist that if the plaintiff wished to recover both for death and conscious suffering she should have brought two separate actions. But we think that the effect of the amendment was and is to do away with the necessity of bringing two separate actions and to allow a count for conscious suffering at common law to be joined to a count for death under the statute and the recovery of damages under each with like effect as if two separate actions had been brought. By the addition of the court for conscious suffering what was before an action for death alone becomes in effect two actions joined in one with the right of recovery limited in the count for death to the amount established by the statute, and with no limit in the other count except that fixed by the rules of the common law. In the two cases relied on the statute which permitted the joining of a count for conscious suffering with a count for death in an action for one and the same injury was an amendment to R. L. c. 106, § 72, the employer's liability act so called, in which it is provided that the amount of damages awarded for both the injury and death shall not exceed $5,000. That was the ground on which those cases were decided, and it renders them inapplicable to the case before us.

The accident was caused by the...