Goltz v. Besarick
| Decision Date | 07 January 1943 |
| Parties | DORA M. GOLTZ, administratrix, v. JULIAN C. BESARICK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 6, 1942.
Present: FIELD, C.
J., DONAHUE, QUA COX, & RONAN, JJ.
Negligence, Causing death. Practice, Civil, Charge to jury.
The provision of G L. (Ter. Ed.) c. 229, Section 5, for the assessment of damages in an action for death "with reference to the degree of . . . culpability" does not require proof of more than ordinary negligence to establish liability.
Upon exceptions by the plaintiff after verdicts for the defendant upon both counts of a declaration containing a first count for causing death and a second for conscious suffering, where the evidence was conflicting on the issue of casual connection between alleged negligence of the defendant and the death and where the jury, following a charge which was not included in the record, returned for further instructions in answer to the question, "If we find for the defendant on count one can we find for the plaintiff on count two?" no reversible error appeared in the judge's answer "The answer to your question is no; you find for the defendant on count one, you find there was no negligence or culpability, it necessarily follows you will find for the defendant on count two."
TORT. Writ in the Municipal Court of the City of Boston dated November 16 1939.
On removal to the Superior Court the case was tried before Walsh, J.
A. C. Rome, (L.
P. Doherty with him,) for the plaintiff.
G. Sullivan & A.
M. Donahue, for the defendant, submitted a brief.
There was evidence that the plaintiff's intestate, a pedestrian on a public way, was struck on August 6, 1939, by an automobile owned and operated by the defendant. The intestate died on August 8, 1939. The declaration contains two counts, the first being to recover damages for the death under G. L (Ter. Ed.) c. 229, Section 5, as amended by St. 1937, c. 406, Section 3 (see St. 1941, c. 504, Section 3), and the second count being to recover damages for conscious suffering, of which there was evidence. There was testimony from physicians who attended the deceased that trauma was an adequate cause for the injuries found, and that the injuries were sufficient to cause death. Another physician, called by the plaintiff, testified that the injuries sustained only contributed to the death, and that the primary cause was the "stoppage" of the heart.
The case was submitted to the jury, and it does not appear from the report that any question was raised but that the evidence presented questions for the jury as to the intestate's due care and the defendant's negligence. After the jury had retired for deliberation, they returned for further instructions, which were given in the absence of plaintiff's counsel. See Rule 72 of the Superior Court (1932). The plaintiff seasonably claimed an exception to the further instructions, and after a verdict was returned for the defendant on each count, she filed a motion for new trial, which was denied, subject to her exception.
The instructions excepted to were as follows:
Both counts were properly joined in the declaration. G. L. (Ter. Ed.) c. 229, Section 6. (See St. 1939, c. 451, Section 62.) In effect, two causes of action were joined in one, that is, one under the statute and the other at common law. Finnegan v. Checker Taxi Co. 300 Mass. 62 , 69, and cases cited. The basis, however, of each action is negligence, there being no allegation in the first count of wilful, wanton or reckless conduct on the part of the defendant. The due care of the deceased is an issue under each count, although it is not involved on this record. The plaintiff, in order to recover on either or both counts, had the burden of showing ordinary negligence. Sughrue v. Booth, 231 Mass. 538 , 539. Kimball v. George A. Fuller Co. 258 Mass. 232 , 233. Apart, however, from the questions of ordinary negligence and due care, the plaintiff, on the death count, in order to recover, was required to show that the negligence in the case caused the death. On the question of assessing damages, there is a further distinction between the two counts, inasmuch as on the first count for death damages are assessed with reference to the degree of the defendant's culpability. This distinction, however, does not enter into the case until the question of ordinary negligence, which is the same thing under each count, has been determined. In the development of the statutory right to recover damages for death, it has been required that the damages recoverable be assessed with reference to the degree of culpability of the person liable, or his servants or agents. Boott Mills v. Boston & Maine Railroad, 218 Mass. 582 , 586. See G. L. (Ter. Ed.) c. 229, Sections 1, 2, 3, 4, 5, 7, 9, as amended. It is not open to contention that this statutory provision as to the assessment of damages, based as it is upon the degree of culpability, establishes any difference in degree between the negligence that must be shown before the question of damages can be considered under either count.
A causal connection must be shown between the negligence established and the death that ensued if the plaintiff is to recover on the first count. It is unnecessary to determine whether the medical testimony in the case at bar required a finding that this causal connection, assuming that negligence was shown, was established (see Wallace v. Ludwig, 292 Mass. 251, 253; Lydon v. Boston Elevated Railway, 309 Mass. 205 , 206-208), for the reason that a majority of the court are of opinion that there was no reversible error.
The judge's charge is not reported. See Mabardy v. McHugh, ...
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