Martinelli v. Burke

• Decision Date: 20 September 1937
• Citation: 10 N.E.2d 113,298 Mass. 390
• Parties: MARTINELLI v. BURKE (three cases). GAGLIANO v. BURKE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

298 Mass. 390

10 N.E.2d 113

MARTINELLI

v.BURKE (three cases).

GAGLIANO

v.BURKE.

Supreme Judicial Court of Massachusetts, Hampden.

Sept. 20, 1937.

Report from Superior Court, Hampden County; Broadhurst, Judge.

Actions of tort by Silvio Martinelli, administrator, and by Antonio Gagliano against Florence W. Burke, administratrix. Verdict for plaintiff in each action for $1,093.33, and defendant excepts. On report by the trial judge.

Judgment for defendant.

E. S. Searle, of Springfield, for plaintiffs.

I. R. Shaw and J. M. Carroll, both of Springfield, for defendant.

QUA, Justice.

These are action for death under G.L.(Ter.Ed.) c. 229, § 5. The plaintiffs' intestateswere the wife and three minor children of the defendant's intestate and constituted his entire family. All, including the defendant's intestate, while riding in an automobile in Monson driven by the defendant's intestate, were killed without conscious suffering by a collision with a railroad train at a grade crossing due to the negligence of the defendant's intestate, the plaintiffs' intestates being in the exercise of the due care. Of the five victims of the accident, the father, the defendant's intestate, died first. The trial judge has reported the questions whether the respective plaintiffs as administrators of the estates of the wife and of the minor children have rights to damages under the statute.

We need not decide whether in general the administrator of a wife or minor child can recover under the death statute against the estate of the husband and father. Here the father died first. The wording of the statute is, ‘a person who by his negligence or by his wilful, wanton or reckless act * * * causes the death of a person * * * shall be liable.’ Section 5. It has been stated repeatedly that no cause of action arises until the actual occurrence of the death for which recovery is sought. Wall v. Massachusetts Northeastern Street Railway, 229 Mass. 506, 118 N.E. 864;Putnam v. Savage, 244 Mass. 83, 88, 138 N.E. 808;Bickford v. Furber, 271 Mass. 94, 97, 170 N.E. 796;Wescott v. Henshaw Motor Co., 275 Mass. 82, 85, 175 N.E. 153;Hutchinson v. H. E. Shaw Co., 277 Mass. 115, 177 N.E. 813;Melnik v. Perwak (Mass.) 4 N.E.(2d) 329. When that event took place in each of the cases at bar the ‘person’ who, in the language of the statute, would ‘be liable’ was himself dead. ‘It is axiomatic that a corpse is not a person.’ Brooks v. Boston & Northern Street Railway, 211 Mass. 277, 278, 97 N.E. 760. A dead person cannot ‘be liable,’ nor can a cause of action arise against a person who does not exist. See Fairbanks v. Kemp, 226 Mass. 75, 78, 115 N.E. 240;Miller v. Rosenthal, 258 Mass. 368, 155 N.E. 3;Partan v. Niemi, 288 Mass. 111, 113, 192 N.E. 527, 97 A.L.R. 473;Bateman v. Wood (Mass.) 9 N.E.(2d) 375. There are no words in the statute which can be construed as creating a new cause of action against the administrator of the wrongdoer after his appointment. The actor himself and not his administrator is named as the ‘person’ who is to ‘be liable.’ The administrator of the person killed is in a different position. The statute is explicit in granting to him the right to prosecute in behalf of the specified beneficiaries the cause of action which arose upon the death of his intestate. In reference to this same statute it was said in Prondecka v. Turners Falls Power & Electric Co., 238 Mass. 239, 243, 130 N.E. 386, 388, ‘A statute cannot be extended by construction or enlargement beyond its fair import. If it does not reasonably include a right of action, none can be implied. The argument of hardship or unintentional omission is not enough.’ This is the common rule of statutory construction. Commonwealth v. S. S. Kresge Co., 267 Mass. 145, 148, 166 N.E. 558.

The conclusion is inescapable that none of the actions can be maintained. That result has been reached in the only cases which we have seen dealing with the precise question and is supported by the reasoning in cognate cases. Beavers' Adm'x v. Putnam's Curator, 110 Va. 713, 67 S.E. 353;Hegel v. George, 218 Wis. 327, 259 N.W. 862,261 N.W. 14;...