Sherlag v. Kelley
| Decision Date | 24 November 1908 |
| Citation | 200 Mass. 232,86 N.E. 293 |
| Parties | SHERLAG v. KELLEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Frank A. Pease, for appellant.
Hugo A Dubuque, for appellee.
The question intended to be raised by the defendant's demurrer to the declaration, and the question principally discussed at the argument is whether, under an action of contract brought upon the implied agreement of a physician with a husband to render necessary and proper medical care and service to his wife in her illness, a recovery can be had for the husband's loss of her society, care, and comfort resulting from her death caused by the defendant's failure to perform his contract.
For many years it has been held in this commonwealth that without a statutory provision, no recovery can be had for the death of a person, however wrongfully caused by another. This has been decided in cases where the plaintiff was in such relatons to the deceased person that, by reason of the death, he was deprived of valuable legal rights, as in the case of a husband suing for loss of the services and consortium of his wife whose death was caused by the defendant's negligence (Carey v. Berkshire Railroad Company, 1 Cush. 475, 48 Am. Dec. 616), and in a similar case, where the action was brought by a father for loss of services of his minor son ( Skinner v. Housatonic Railroad Company, 1 Cush. 475, 48 Am. Dec. 616). So it was held that a promise to pay an annuity to a widow, on account of the death of her husband through the defendant's negligence, and upon her agreement to forbear to sue, could not be enforced, although she was deprived of her husband's support and of his consortium. Palfrey v. Portland, Sac. & Portsmouth Railroad Company, 4 Allen, 55. See Nolin v. Pearson, 191 Mass. 283, 77 N.E. 890, 4 L. R. A. (N. S.) 643, 114 Am. St. Rep. 605. It was recognized that in some countries, under different systems of jurisprudence, the law was different. Carey v. Berkshire Railroad Company, 1 Cush. 475, 48 Am. Dec. 616. But, except as changed by statute, this doctrine is firmly established in the law of this commonwealth. Barrett v. Dolan, 130 Mass. 366, 39 Am. Rep. 456; Richardson v. New York Central Railroad Company, 98 Mass. 85-89; Worcester & Suburban Street Railway Company v. Travelers' Insurance Company, 180 Mass. 263-265, 62 N.E. 364, 57 L. R. A. 629, 91 Am. St. Rep. 275. The decisions exclude, as a ground of recovery, all elements of damage which arise solely from death, and as to such damage they are applicable to actions of contract as to actions of tort.
The whole subject is now covered by statutes, of which some apply only to deaths caused by certain corporations or classes of persons, as railroad and street railway corporations, common carriers and employers of labor, and one is general (Rev. Laws, c. 171, § 2, amended by St. 1907, p. 324, c. 375), applying to all other corporations and persons. This last statute covers death by negligence, whether the relations of the parties are such that there is a breach of an express or implied contract, or whether the duty neglected arises outside of any contract. The remedy given by it is exclusive of any other in the cases to which it applies; and, if the present plaintiff had brought his action seasonably, he would have been entitled to a recovery under it. So far as the plaintiff claims damages growing out of the death of his wife, we are of opinion that the first and second grounds of demurrer are a bar to his recovery.
The third ground of demurrer is as follows: 'For that the plaintiff cannot recover in an action of contract for alleged injury to his wife, resulting in her death, as stated in the declaration.' If, through a breach of the defendant's contract, there was an injury to the plaintiff's wife that caused him damage, he can recover for it in an action of contract, notwithstanding that it finally resulted in her death. If he was caused additional expenses for her nursing, care, and treatment by the defendant's failure to perform his contract, he is entitled to damages. The fact that his wife subsequently died from the same cause is immaterial. As to this part of the case the declaration may be considered as if the allegation of death and the consequences of the death were omitted.
The demurrer does not distinctly raise the question whether the declaration is insufficient to permit a recovery of nominal damages or of actual general damages, if any were suffered previous to her death. If the question were raised, we should be obliged to answer it adversely to the defendant. The implied contract is set out, and the defendant's failure to perform it. In Hagan v. Riley, 15 Gray, 515, Chief Justice Shaw says: 'For every breach of a contract made on good consideration the law awards some damage.'
The breach is sufficiently alleged. It is a general rule in pleading that a breach of a contract may be assigned in the negative of the words of the contract. The exception is when such a negative does not plainly show that there is a breach. Marston v. Hobbs, 2 Mass. 433, 3 Am. Dec. 61; Bacon v. Lincoln, ...
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