Macchiaroli v. Howell

• Decision Date: 01 April 1936
• Parties: MACCHIAROLI v. HOWELL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

294 Mass. 144

200 N.E. 905

MACCHIAROLI

v.HOWELL et al.

Supreme Judicial Court of Massachusetts, Middlesex.

April 1, 1936.

Exceptions from Superior Court, Middlesex County; Walsh, Judge.

Two actions of tort by Francesco A. Macchiaroli, administrator of the estate of G. A. Macchiaroli, deceased, against Bert E. Howell and Nelson Lister, respectively. Verdict for plaintiff in each action in the sum of $5,031.12, and defendants save exceptions.

Exceptions overruled.

J. P. Driscoll, of Framingham, for plaintiff.

W. T. Snow and J. E. Hartnett, Jr., both of Boston, for defendants.

RUGG, Chief Justice.

These two cases, arising out of substantially the same facts and tried together to a jury, are presented by a single bill of exceptions touching the second trial of the cases. The declaration in each case contained two counts, the first alleging that the plaintiff's intestate received injuries from which he died through the negligence of the defendant, and the second alleging injuries and conscious suffering from the same cause. A verdict was directed for the defendant on the second count in each case. That is not before us. These exceptions relate to the first count. That count was submitted to the jury and a verdict for $2,175 returned for the plaintiff in each case. The plaintiff seasonably filed a motion in each case that a ‘new trial be granted on the ground that the damages awarded are inadequate.’ In each case the order was made: ‘Motion for new trial allowed after hearing. Verdict set aside on ground that damages awarded are inadequate.’ The defendant excepted to this order in each case and a bill of exceptions was allowed. That bill of exceptions is not before us. Later the cases came on for trial before a different judge. Both before and after the jury were impaneled for this second trial, the defendant filed requests for rulings in each case to the effect that the verdicts at the first trial had not been set aside and that therefore the trial could not go forward. These requests were denied subject to the exception of the defendant. The present bill of exceptions relates to those requests. The cases were then tried on the issues of liability and damages and in each a verdict was returned for the plaintiff for $5021. The general contentionof the defendants is that the trial judge had no power under the law to set aside a verdict in a death case on the ground that the award of damages is inadequate and that therefore the second trial could not rightly proceed. The procedure was correct. Brooks v. Shaw, 197 Mass. 376, 84 N.E. 110;Weil v. Boston Elevated R. Co., 216 Mass. 545, 104 N.E. 343.

Count one was framed on G.L.(Ter.Ed.) c. 229, § 5. It is there provided, with exceptions not here material, that ‘a person who by his negligence or by his wilful, wanton or reckless act, or by the negligence or wilful, wanton or reckless act of his agents or servants while engaged in his business, causes the death of a person in the exercise of due care, who is not in his employment or service, shall be liable in damages in the sum of not less than five hundred nor more than ten thousand dollars, to be assessed with reference to the degree of his culpability or of that of his agents or servants, to be recovered in an action of tort.’ The amount so recovered is to be distributed for the use of the surviving wife or husband and children of the deceased, or, in default of these, to kindred of the deceased as provided in G.L.(Ter.Ed.) c. 229, § 1. An action brought under section 5 is described in section 6 of the same chapter as a ‘civil action.’ The cause of action thus created is in section 5 designated as an action of tort. That is a civil action. G.L.(Ter.Ed.) c. 231, § 1. Proceedings to collect damages for death by an action of tort are civil actions. Grella v. Lewis Wharf Co., 211 Mass. 54, 59, 97 N.E. 745, Ann.Cas.1913A, 1136;Kelley v. Boston & Maine R. R., 135 Mass. 448;Hudson v. Lynn & Boston R. Co., 185 Mass. 510, 516, 71 N.E. 66;Porter v. Sorell, 280 Mass. 457, 461, 182 N.E. 837, 85 A.L.R. 1159. The statutory description of that which may be recovered in such an action is ‘damages.’ The damages thus recoverable are in the main penal or punitive. They are designed to punish one guilty of causing the loss of a human life through negligence. They are assessed with reference to the degree of culpability of the defendant and not by way of compensation for any loss sustained by the beneficiaries of the action. Boott Mills v. Boston & Maine R. Co., 218 Mass. 582, 106 N.E. 680;Brooks v. Fitchburg & Leominster Street R. Co., 200 Mass. 8,85 N.E. 289;McCarthy v. William H. Wood Lumber Co., 219 Mass. 566, 107 N.E. 439;Arruda v. Director General of Railroads, 251 Mass. 255, 147 N.E. 21. The statute has compensatory features and a remedial function, because the damages when collected are for the use of the surviving widow or husband and children or other kindred. Sullivan v. Hustis, 237 Mass. 441, 446, 447, 130 N.E. 247, 15 %.a.l.r. 1360. t/hese aspects of the statute are highly important but they are not in a strict legal sense based upon compensation. The chief characteristic of the statute is penal. Porter v. Sorell, 280 Mass. 457, 182 N.E. 837, 85 A.L.R. 1159, and cases there reviewed.

Power is conferred upon the court at any time before judgment to ‘set aside...