De Marco v. Pease

• Decision Date: 21 October 1925
• Parties: DE MARCO v. PEASE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 499

149 N.E. 208

DE MARCO

v.PEASE et al.

Supreme Judicial Court of Massachusetts, Berkshire

Oct. 21, 1925.

Exceptions from Superior Court, Berkshire County; W. A. Burns, Judge.

Action of tort by Thomas De Marco, administrator, against W. H. Gross, to recover for conscious suffering and death of plaintiff's intestate, Simone Montani, from cavein of ditch located on defendant's premises. Verdict for plaintiff, and defendant excepted, and thereafter, on suggestion of defendant's death, Charles H. Pease and others, executors, appeared and moved for a new trial. Exceptions overruled.J. M. Rosenthal, of Pittsfield (J. B. Cummings, of Pittsfield, and S. Martinelli, of Springfield, on the brief), for plaintiff.

H. N. Joyner, of Pittsfield, for defendants.

SANDERSON, J.

The plaintiff, as administrator, seeks to recover damages for the conscious suffering and death of his intestate, Simone Montani, who, it is alleged, while employed as a laborer by the defendant, received fatal injuries resulting from the cave-in of a ditch located on his premises. The declaration was in five counts. Two of the counts for conscious suffering were at common law. A verdict for the plaintiff was rendered April 30, 1924.

The defendant died November 9, 1924. After a suggestion of death, the executors of his will entered their appearance and filed a motion for a new trial, in which they contended that no verdict for death could stand against the executors because damages under the death statute are vindictive and exemplary within the meaning of G. L. c. 230, § 2. This position is untenable. The liability of the defendant was fixed by the verdict, rendered while he was living. His death occurred during the pendency of the case for the determination of the questions of law raised by the exceptions taken at the trial. In such circumstances, even if the action did not survive, judgment may be entered as of the date of the verdict, if no executor or administrator has been appointed. Kelly v. Riley, 106 Mass. 339, 8 Am. Rep. 336. This court, in referring to Rev. St. c. 93, § 9, from which G. L. c. 230, § 2, is derived, said:

‘The kind of damages described in it are such as formerly were commonly allowed under the same designation, when torts were committed with actual malice, or wantonly, or with peculiar harshness and oppression. In this commonwealth such damages are not now considered punitive or vindictive, but are allowed in compensation for the injury to the feelings.’ Wilkins v. Wainwright, 173 Mass. 212, 213, 53 N. E. 397.

Damages recoverable under our statutes for death ‘while penal in form * * * are * * * largely remedial in character.’ Commonwealth v. Boston & Albany Railroad, 121 Mass. 36, 37. They are not vindictive or exemplary in their nature. Furthermore, it has been decided that an action to recover damages for death may be begun and prosecuted against the personal representative of the person resposible therefor. Putnam v. Savage, 244 Mass. 83, 138 N. E. 808.

The defendant operated a quarry in the town for Lee under the name of Lee Marble Works. Montani was working for him under the direction of his superintendent, digging and laying a pipe in a ditch on the defendant's premises. It could have been found that at the time of the accident he was at the place in the ditch where the performance of his work required him to be. After the cave-in, he was discovered held in the dirt up to his hips with his shovel upright partly buried. At this point the ditch was about 6 feet deep, having a width of 20 to 24 inches at the bottom and 3 to 4 feet at the top, without shoring on either side. The certificate of death, which stated the cause to be ‘accidental fractured pelvis and injury to abdominal viscera caused by caving of ditch,’ and the medical testimony to the effect that the injury hastened his death, was evidence for the jury of the causal connection between the accident and the death. G. L. c. 46, § 19; Wiemert v. Boston Elevated Railway, 216 Mass. 598, 603, 104 N. E. 360; Madden's Case, 222 Mass. 487, 496, 111 N. E. 379, L. R. A. 1916D, 1000.

The testimony relating to the absence of shoring and shoring material to prevent the ditch from caving in was sufficient to justify the jury in finding that the defendant was negligent because of his failure to furnish the deceased a reasonably safe place in which to work. It was the duty of the superintendent ‘to take proper precautions for the safety of the men at work in the trench. He should have observed carefully the character of the soil, and all other conditions which would enable him to determine what should be done to prevent such accidents as that which happened to the plaintiff.’ Hennessy v. Boston, 161 Mass. 502, 503, 37 N. E. 668;Breen v. Field, 157 Mass. 277, 31 N. E. 1075;Coan v. Marlborough, 164 Mass. 206, 41 N. E. 238;Norton v. New Bedford, 166 Mass. 48, 43 N. E. 1034.

The defendant's requests, relating to obvious danger, could not have been given upon the facts in this case. The dangers connected with the caving in of the ditch arose after the contract of employment was made, and the employer could not relieve himself from the responsibility of furnishing the employee with a reasonably safe place in which to work by proving contributory negligence or assumption of the risk. G. L. c. 152, § 66. Ashton v. Boston & Maine Railroad, 222 Mass. 65, 109 N. E. 820, L. R. A. 1916B, 1281;McGonigle v. O'Neill, 240 Mass. 262, 133 N. E. 918. The request as to serious and willful misconduct was given in substance.

Notice that the injury was caused by reason of a cave-in, resulting in the instant death of Simone Montani in the town of Lee, in the quarry, was sent to the defendant by the plaintiff, as administrator, accompanied by a letter from the plaintiff's attorney. The defendant replied that he carried no insurance covering any employee. He excepted to the admission of the notice on the ground that it did not show the correct place or cause of injury and was not a legal notice. He also excepted to the refusal of the court to give his...