Johnston v. Bay State St. Ry. Co.

• Decision Date: 11 February 1916
• Citation: 222 Mass. 583,111 N.E. 391
• Parties: JOHNSTON v. BAY STATE ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

222 Mass. 583

111 N.E. 391

JOHNSTON

v.BAY STATE ST. RY. CO.

Supreme Judicial Court of Massachusetts, Bristol.

Feb. 11, 1916.

Exceptions from Superior Court, Bristol County; Philip J. O'Connell, Judge.

Action by David Johnston, as administrator of the estate of Lester H. Toal, deceased, against the Bay State Street Railway Company. To the refusal of the court to charge as requested by the defendant, and to the charge of the court as given the defendant excepts. Exceptions overruled.

H. F. Hathaway and J. E. Warner, both of Taunton, for plaintiff.

F. S. Hall and S. P. Hall, both of Taunton, for defendant.

PIERCE, J.

This action was brought by David Johnston, administrator of the estate of Lester H. Toal, deceased, against the Bay State Street Railway Company, under St. 1906, c. 463, pt. 1, § 63, as amended by St. 1907, c. 392, § 1, for negligently causing his death. It was not disputed that the deceased was a single man, nor that at the time of the accident and at the date of his death his father was his only next of kin. The accident occurred on September 16, 1911, and an administrator was duly appointed thereafter; the administrator brought an action on April 16, 1912, and since the bringing of the action the father has died.

The defendant requested the presiding judge to rule as follows:

‘The father of the deceased Lester Toal being the only next of kin at the death of the deceased and said father having died since his son's death, and before the trial, the plaintiff cannot recover on either the third or fourth counts of his declaration.’

The Legislature, in providing an additional remedy in cases of death resulting from negligent conduct in St. 1881, c. 199, § 1, and St. 1886, c. 140, retained, in the use of the words ‘damages * * * to be assessed with reference to the degree of culpability,’ the distinguishing feature of a fine imposed by court after a conviction upon an indictment. In the emphasis given to the consideration of the wrongful and blameworthy conduct of the defendant there appears a dominating purpose to induce carriers and others to exercise a higher degree of care toward passengers, the traveling public and others, than they might exercise otherwise. Compensation is a secondary consideration and results only from the provision common to indictment and action that the fine or damage shall be paid to or recovered by the executor or administrator of the deceased to the use of certain designated persons. Brown v. Thayer, 212 Mass. 392, 99 N. E. 237;Boott Mills v. B. & M. R. R., 218 Mass. 582, 106 N. E. 680. If the death of the beneficiary discharges the liability of the wrongdoer, the principal object of the Legislature is defeated.

The difficulty of determining the pecuniary injury to a beneficiary who shall die before judgment is not present in the administration of our act, as it may be in jurisdictions where remedial acts of legislation are held to be either an extension of common law rights or purely compensatory; and the decisions of courts in construing compensatory legislation modeled upon the so called ‘Lord Campbell's act,’ 9 & 10 Vict. c. 93, are of little weight in the consideration of the question presented in the case at bar.

We are of opinion that the right to recover the fine when imposed by the court, or the damage as determined by a jury, vested by legislative provision in the named beneficiary living at the death of the person injured, and that the pending action was not abated nor the cause of action discharged upon his death. Com. v. Boston & Worcester Railroad, 11 Cush. 512, 517, 518.

The defendant excepted to the refusal of the presiding judge to allow him to examine several witnesses as to their experience and qualifications to make an estimate in miles of the speed of the car before the witnesses testified in relation thereto. Had the witnesses been offered as experts it would have been proper practice to permit such examination. But as the testimony was not offered as the opinion of persons who by reason of education, of observation or of experience were peculiarily qualified to speak, the defendant had no right to a preliminary examination; and the exception in this regard must be overruled.

The witnesses, after stating that the speed of the car had first attracted their attention, testified subject to the defendant's exception that at the time of the accident the car was going at the rate of thirty-five or forty miles an hour. The...