Mulhall v. Fallon

• Decision Date: 31 May 1900
• Citation: 57 N.E. 386,176 Mass. 266
• Parties: MULHALL v. FALLON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 266

57 N.E. 386

MULHALL v. FALLON et al.

Supreme Judicial Court of Massachusetts, Norfolk.

May 31, 1900

COUNSEL

Jas.

E. Cotter and J. W. McAnarney, for plaintiff.

Wm. B Sprout and Dickson & Knowles, for defendants.

OPINION

HOLMES C.J.

This is an action under St. 1887, c. 270, § 2, for causing the death of the plaintiff's son. The plaintiff is an Irish woman who, so far as appears, never has left Ireland. In the superior court she had a verdict, and the case is here on exceptions to a refusal to direct a verdict for the defendant either on the ground that the statute conferred no rights upon the plaintiff, or on the ground that she did not appear to have been dependent upon the wages of her son for support. Exceptions were taken also upon some matters of evidence.

On the question of the plaintiff's dependence upon her son we are of opinion that there was evidence for the jury. It appeared from declarations of the deceased, properly admitted under St. 1898, c. 535, that his mother was very poor, and that he sent over money repeatedly, and regretted not being able to do more. The money, it is true, was received by his father while alive, but the father was a paralytic, and died nearly a year before his son. The plaintiff, in her deposition, confirmed the statements of her son. She testified that she bought food with his money among other things, and that she wished she had more to eat.

In answer to the question to what extent, if at all, she was dependent upon her son for support, she answered that she was almost entirely dependent upon him for the last two years. This question was objected to, but was admissible. The extent to which particulars may be summed up in a general expression is a matter involving more or less discretion, and cannot be disposed of by the suggestion that the general expression involves the conclusion which the jury is to draw, or that it is law rather than fact. Poole v. Dean, 152 Mass. 589, 591, 26 N.E. 406; Windram v. French, 151 Mass. 547, 550, 551, 24 N.E. 914, 8 L. R. A. 750. The question to what extent she was dependent upon her son called for details of fact in a perfectly proper way. Whether the answer showed a sufficient dependence to satisfy the statute remained for the jury to answer under the instructions of the court. Even more plainly admissible were interrogatories whether the son contributed to her support, and, if so, how much. The plaintiff also testified that she 'had to turn and go three miles to earn [her] support'; that she had a boy that was hard set to earn from eight pence to one shilling a day, and another boy an invalid. How far these statements should outweigh the others was for the jury. See Houlihan v. Railroad Co., 164 Mass. 555, 557, 42 N.E. 108; Daly v. Iron Co., 155 Mass. 1, 5, 29 N.E. 507; American Legion of Honor v. Perry, 140 Mass. 580, 590, 5 N.E. 634. Partial dependence for the necessaries of life would be enough, as it is made in terms by the English statute. 60 & 61 Vict. c. 37, § 7, cl. 2; McCarthy v. Supreme Lodge, 153 Mass. 314, 318, 26 N.E. 866, 11 L. R. A. 144; Simmons v. White [1899] 1 Q. B. 1005; Railway Co. v. Gravitt, 93 Ga. 369, 372, 20 S.E. 550, 26 L. R. A. 553. In Hodnett v. Railroad Co., 156 Mass. 86, 30 N.E. 224, there was nothing to show that the plaintiff did not support herself by her own earnings.

We come, then, to the more difficult question whether the plaintiff can claim the benefit of the act. However this may be decided, it is not to be decided upon any theoretic impossibility of Massachusetts law conferring a right outside her boundary lines. In Mannville Co. v. City of Worcester, 138 Mass. 89, where a Rhode Island corporation sought to recover for a diversion of waters from its mill in Rhode Island by an act done higher up stream in Massachusetts, it was held, following earlier decisions, that there was no such impossibility, although the point was strongly urged. It is true that legislative power is territorial, and that no duties can be imposed by statute upon persons who are within the limits of another state. But rights can be offered to such persons, and if, as is usually the case, the power that governs them makes no objection, there is nothing to hinder their accepting what is offered. The same principle is recognized without discussion in Lumb v. Jenkins, 100 Mass. 527, where a nonresident alien was held entitled to take land by descent. So, after discussion, as to a nonresident's right to sue. Peabody v. Hamilton, 106 Mass. 217. So the supreme court of the United States holds that a right to recover for wrongfully causing death under a state law similar to Lord Campbell's act may be asserted by an administrator appointed in another state. Dennick v. Railroad Co., 103 U.S. 11, 26 L.Ed. 439. See 8 Am. & Eng. Enc. Law (2d Ed.) 879, 'Death by Wrongful Act.' It is true that the arguments which prevailed in this case did not prevail in Richardson v. Railroad Co., 98 Mass. 85, and perhaps would not have prevailed in England. Adam v. Steamship Co., 79 Law T. (N. S.) 31. But, so far as the principle for which we cite the case is concerned, it is in accord with our own decisions, assuming that, like Lord Campbell's act, the statute was regarded as conferring a new right of action on the executor or administrator, and not as giving a right of action to the deceased which went to the executor by survival only. Blake v. Midland Ry., 21 L. J. Q. B. 233, 237; Seward v. Vera Cruz, 10 App. Cas. 59, 67. The cause of action survived in Higgins v. Railroad Co., 155 Mass. 176, 29 N.E. 534. This distinction seems to be lost sight of by many of the cases given in the Encyclopedia as following Dennick v. Railroad Co., so that their reasoning is not very satisfactory. But see Bruce's Adm'r v. Railroad Co., 83 Ky. 174, 182, et seq.

The question, then, becomes one of construction, and of construction upon a point upon which it is probable that the legislature...