Hey v. Prime

• Decision Date: 28 February 1908
• Citation: Hey v. Prime, 197 Mass. 474, 84 N.E. 141 (Mass. 1908)
• Parties: HEY v. PRIME.
• Court: Supreme Judicial Court of Massachusetts

197 Mass. 474

84 N.E. 141

HEY v. PRIME.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1908

COUNSEL

Everett W. Crawford, for plaintiff.

William J. Drew, William W. Kennard, and Winfield F. Prime, for defendant.

OPINION

BRALEY J.

If upon an opening, the plaintiff fails to state a case, ordinarily the defendant may request that a verdict be ordered in his favor. The presiding judge in his discretion, may either then give a decision, or wait until the plaintiff's, or the entire evidence has been introduced, before deciding the question. But although no demurrer had been filed, or request made, it was not too late for the defendant to move to dismiss, if the declaration, and the facts stated in the opening showed, that the cause of action did not survive, as the court was left without jurisdiction. Allin v Connecticut River Lumber Co., 150 Mass. 560, 563, 23 N.E. 581, 6 L. R. A. 416, and cases cited; Merriman v Currier, 191 Mass. 133, 77 N.E. 708. By the common law the right of the husband to recover damages for an injury to his wife, whereby either her services or consortium became lost, perished with the death of the wrongdoer. The injury inflicted, being the act of the tort-feasor who escaped by death, his executor or administrator, could not be held because in their personal capacity having committed no wrong, the plea, which must have been not guilty, raised only the issue of the decedent's guilt. Wilbur v. Gilmore, 21 Pick. 250, 252. But this rule having been modified by statute, the question is, whether such an action survives under Rev. Laws, c. 171, § 1. This section, which follows previous revisions, provides, that '* * * actions of * * * tort for assault, battery, imprisonment, or other damage to the person * * * shall not abate by death.' Gen. St. 1860, c. 127, § 1; Pub. St. 1882, c. 165, § 1. Unless the case comes within the last clause, the plaintiff is not relieved. It has uniformly been held since the enactment of St. 1842, p. 539, c. 89§ 1, to which this clause runs back for its origin, that the nature of the damages sued for, rather than the form of remedy, is the test. By this construction, the language, 'or other damages to the person,' includes such damages only, as result from direct bodily injury, but excludes consequential damages suffered by those, who are injured from a wrongful interference with their rights, arising from the negligence of the decedent. Smith v. Sherman, 4 Cush. 408, 413; Cutter v. Hamlen, 147 Mass. 471, 18 N.E. 397, 1 L. R. A. 429; Wilkins v. Wainwright, 173 Mass. 212, 53 N.E. 397, and cases cited; Dixon v. Amerman, 181 Mass. 430, 63 N.E. 1057. If the common-law doctrine of unity of husband and wife, by which she was deemed a part of his person, has been almost wholly abrogated by legislation, yet the right to her exclusive conjugal fellowship still remains, and he may recover damages for its impairment by the wrongful acts of strangers. Nolin v. Pearson, 191 Mass. 283, 285, 286, 77 N.E. 890, 4 L. R. A. (N. S.) 643, 114 Am. St. Rep. 605. But while this right has been preserved, if...