Gustafsen v. Washburn & Moen Mfg. Co.

• Decision Date: 03 April 1891
• Citation: 27 N.E. 179,153 Mass. 468
• Parties: GUSTAFSEN v. WASHBURN & MOEN MANUF'G CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

153 Mass. 468

27 N.E. 179

GUSTAFSEN v. WASHBURN & MOEN MANUF'G CO.

Supreme Judicial Court of Massachusetts, Worcester.

April 3, 1891

COUNSEL

Thayer & Rugg, for plaintiff.

Kent & Dewey, for defendant.

OPINION

FIELD C.J.

The first two counts of the declaration are under the first clause of section 1, c. 270, St.1887; the third count is under the second clause of the same section. In each of the counts it is alleged that notice of the time, place, and cause of the injury was given to the defendant. The only person who could maintain an action for the death of Laurentz Gustafsen was his widow, and, as he was instantly killed this is the only action which could be maintained. St.1887 c. 270, §§ 2, 3; Ramsdell v. Railroad Co., 151 Mass 245, 23 N.E. 1103. The notice given was signed for the plaintiff, by her attorneys, and it was given "within 30 days of the death" of Laurentz Gustafsen, and, as the death was instantaneous, this must be within 30 days of the "occurrence of the accident" causing the death. It has not been contended that the notice is not sufficient in form, if under the statute the widow could give notice. The contention of the defendant is, as we understand it, that by St.1887, c. 270, § 3, as amended by St.1888 c. 155, when the person injured is instantly killed, the notice must be given by the executor or administrator of his estate. As the executor or administrator cannot maintain an action, there is no reason why either one or the other should be appointed for the purpose of giving notice, unless the statutes require it. It is argued that this is a statutory action, which cannot be maintained unless notice is given according to the statutes, and that the statutes, in such a case as this is, authorize only an executor or administrator to give the notice, which they may give within 30 days after their appointment. It is plain that, if the person killed left no estate to be administered upon, the appointment of an administrator ought not to be necessary to enable the widow or next of kin to recover money of other persons for their own use. The provisions concerning notice in the statutes cited seem to have been taken from Pub.St. c. 52, §§ 19, 21; St.1882, c. 36. See Pub.St. c. 73, § 6; Id. c. 112, §§ 212, 213; St.1886, c. 140; St.1888, c. 114. The legislature apparently did not notice that under Pub.St. c. 52, § 17, the action for damages on account of death must be brought by the executor or administrator of the deceased, while under St.1887, c. 270, such an action must be brought by the widow or the next of kin. Under Pub.St. c. 52, §§ 17, 18, if a person dies after having consciously suffered, there may be two causes of action, each to be prosecuted by the executor or administrator of the deceased. Under St.1887, c. 270, there can be but one cause of action. If there is conscious suffering, the action must be brought by the person injured, or his executor or administrator; if there is death, and no conscious suffering, the action must be brought by the widow or next of kin. St.1887, c. 270, § 3, required notice to be given within 30 days "from the occurrence of the accident causing the injury or death," but it did not expressly designate the person who should give the notice. The statute of 1888, c. 155, attempted to supply this deficiency, and also to enlarge the time within which the notice might be given, if from physical or mental incapacity it was impossible for the person injured to give the notice within the 30 days, or if he died without having given the notice, and without having been for 10 days, at any time after his injury, of sufficient capacity to give notice. In Taylor v. Woburn, 130 Mass. 495,--an action against a town for injuries sustained by reason of a defective highway,--it was held that under the statute of 1877, c. 234, a notice given by a father in behalf of his son who had died was sufficient, although the father had not then been appointed administrator of the estate of the son. St.1877, c. 234, § 4, provided that the notice may "be given by the person injured, or by any other person in his behalf; provided, however, that, if from physical or mental incapacity it be impossible for the person injured to give the notice within the time hereinbefore provided, he may give the notice within ten days after said incapacity is removed." If, however, the last clause of section 1, c. 155, St.1888, is applicable to the present action, since the decision in Nash v. South Hadley, 145 Mass. 105, 13 N.E. 376, there would be great difficulty in holding that the notice in the present case was signed by a person authorized to give notice. St.1887, c. 270, § 3, makes a distinction between a case of personal injury and a case of death, by which is meant instantaneous death. The principal reason for passing St.1888, c. 155, was to provide for cases of personal injury which did not cause instantaneous death, but which might or might not ultimately result in death, whereby the person injured was, temporarily at least, made...