Hanlon v. Frederick Leyland & Co.

• Decision Date: 09 March 1916
• Citation: 111 N.E. 907,223 Mass. 438
• Parties: HANLON v. FREDERICK LEYLAND & CO., Limited.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 438

111 N.E. 907

HANLON

v.FREDERICK LEYLAND & CO., Limited.

Supreme Judicial Court of Massachusetts, Suffolk.

March 9, 1916.

Report from Superior Court, Suffolk County; Marcus Morton, Judge.

Action by Mary E. Hanlon, administratrix of Joseph Dow, deceased, against Frederick Leyland & Co., Limited. On report. Order overruling demurrer to plaintiff's declaration affirmed. Case remanded for trial upon the merits.

Moulton, Loring & Bigelow, of Boston (William R. Bigelow, of Boston, of counsel), for plaintiff.

Blodgett, Jones, burnham & Bingham, of Boston, for defendant.

CROSBY, J.

This is an action brought by the administratrix of Joseph Dow, late of Boston, deceased, to recover damages for his death caused by the alleged negligence of the defendant by reason of which he was drowned in English waters.

The plaintiff, who has been duly appointed administratrix of the estate of the deceased in this commonwealth, brings this action for the benefit of the wife and four minor children of the intestate. The action is founded upon St. 9 & 10 Vict. c. 93, enacted in 1846 and known as Lord Campbell's Act. The act, so far as material is as follows:

‘That whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.

‘II. And be it enacted, that every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant,shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict shall find and direct.’

The case comes before us on a report made by a judge of the superior court who overruled a demurrer to the plaintiff's declaration. The report recites that:

‘By agreement of the parties the following decisions of the English courts may be referred to in the construction of chapter 93 of the Statutes of the United Kingdom of Great Britain and Ireland 9th and 10th Victoria with the same force and effect as if pleaded in the declaration.’

The decisions referred to are then recited.

The inquiry is therefore presented whether the plaintiff in her capacity as administratrix can maintain an action upon the statute in the courts of this commonwealth. It is plain that our courts have jurisdiction of the parties. An action to recover damages for a tort is a personal action and is not local but transitory and can, as a general rule, be maintained wherever the wrongdoer can be found, and this is true whether the remedy sought to be enforced exists under the common law or is given by statute. The English statute obviously is not penal but remedial for the benefit of the persons injured by the death. Higgins v. Central New England & Western R. R., 155 Mass. 176, 29 N. E. 534,31 Am. St. Rep. 544;Walsh v. B. & M. R. R., 201 Mass. 527, 88 N. E. 12. The statute, like others similarly phrased, does not create a cause of action which accrued to the plaintiff's intestate in his lifetime and which survived and passed to his personal representative. The personal representative of the deceased is simply a nominal plaintiff. The damages recovered do not become part of the assets of the estate or liable for the debts of the deceased, but are distributed among the persons described in the statute. The statute expressly authorizes the action to be brought in the name of the personal representative who has been appointed as such by our court. In Walsh v. B. & M. R. R., supra, this court said at pages 529 and 530, of 201 Mass. 88 N. E. 12:

‘The fundamental question is whether there is a substantive right originating in one state and a corresponding liability which follows the person against whom it is sought to be enforced into another state. Such a right, arising under the common law, is enforceable everywhere. Such a right, arising under a local statute, will be enforced ex comitate in another state, unless there is a good reason for refusing to enforce it.’

No contention is made that the statute is objectionable because contrary to public policy or good morals or that its enforcement would be unjust or calculated to injure the state or its citizens, but it is claimed by the defendant that as the act does not provide for the...