Hall v. Henry Thayer & Co.
| Decision Date | 13 September 1916 |
| Citation | 113 N.E. 644,225 Mass. 151 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | HALL v. HENRY THAYER & CO. HILL v. SAME. |
OPINION TEXT STARTS HERE
Report from Superior Court, Middlesex County; Geo. A. Sanderson, Judge.
Actions by Grace Hall, Administratrix, and by Julia A. Hill, Administratrix, against Henry Thayer & Company. Verdict ordered in each case for the defendant and cases reported to the full court for the determination of the questions of defendant's liability for the death of plaintiffs' intestates, and whether plaintiffs could maintain the actions. Judgment for the plaintiff in the stipulated amount ordered to be entered in each case, in accordance with the terms of the report.
Claude L. Allen and Raymond T. Parke, both of Boston, for plaintiffs.
Sawyer, Hardy, Stone & Morrison, of Boston (Edward defendant.
The plaintiffs sue in tort for the death without conscious suffering of their respective intestates, employees of one Shaw, who were killed on March 28, 1913, while at work on the defendant's water tank which Shaw had contracted to repair. A verdict in each case having been ordered and returned for the defendant, the cases are here on the report of the presiding judge in which not only the question of the defendant's liability for the death of the intestates but also the question whether the plaintiffs can maintain the actions, is raised.
The declarations were not demurred to, and we assume that although not alleged, the decedents left either a widow and children, or a widow and next of kin, for whose sole benefit damages are given under R. L. c. 171, § 2, as amended, for death caused by the negligence of a person or corporation of those not in his or its employment or service. Oulighan v. Butler, 189 Mass. 287, 289, 75 N. E. 726.
We assume from the report that the administratrices are respectively the widows of the deceased employees. It is also stated that the parties agreed that Shaw was a subscriber and the insurance company has been ordered under the Workmen's Compensation Act to pay compensation to the widow for a period of three hundred weeks from the date of death of each employee. The death of the decedents having been caused by the alleged negligence of the defendant and the plaintiffs having elected to take compensation, they cannot maintain the actions for their own benefit. St. 1911, c. 751, pt. 3, § 15, as amended by St. 1913, c. 448, § 1.1Turnquist v. Hannon, 219 Mass. 561, 107 N. E. 443;Barry v. Bay State St. Ry., 222 Mass. 366, 110 N. E. 1031. See Cripps' Case, 216 Mass. 586, 104 N. E. 565, Ann. Cas. 1915B, 828. The right conferred upon the association or insurer by section 15 is to bring suit against the wrongdoer either in the name of the employee or in its own name. But as the employee is dead, and Rl. L. c. 171, § 2, provides that actions for death should be brought in the name of ‘the executors or administrators of the deceased,’ no sufficient reason is shown why the insurer may not prosecute the actions in the names of the plaintiffs for its own benefit. The report further states that before the cases were opened to the jury, the defendant presented motions ‘to amend its answers' and the motions having been allowed the answers as amended set up these matters in defence. It would have been better practice undoubtedly to have stated in each writ that the action was brought in the name of the administratrix for the benefit of the insurer, but this was not necessary. The defendant in any event would be fully protected from double liability. Kelly v. Greany, 216 Mass. 296, 103 N. E. 779;St. Albans Granite Co. v. Elwell & Co., 88 Vt. 479, 482, 92 Atl. 974. The insurer being entitled to maintain the actions in the names of the plaintiffs, we come to the issue whether there was any evidence for the jury of the defendant's negligence. To recite the evidence in detail would serve no useful purpose. The tank was situated on the roof of the defendant's building and the jury would have been warranted in finding that the uprights supporting the tank rested on brick piers, and that from the vibration caused by operation of the defendant's machinery and also from age and exposure to the weather, the uprights and struts or braces by which the...
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