DeMarco v. Pease

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 amended 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. Kelley v. Riley, 106 Mass. 339. This court in referring to Rev. Sts. 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. 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 — 506 — 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 responsible therefor. Putnam v. Savage, 244 Mass. 83. The defendant operated a quarry in the town of Lee under the name of Lee Marble Works. Montará 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 six feet deep, having a width of twenty to twenty-four inches at the bottom and three to four 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. Madden’s Case, 222 Mass. 487, 496. 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.” Hennessey v. Boston, 161 Mass. 502, 503. Breen v. Field, 157 Mass. 277. Coan v. Marlborough, 164 Mass. 206. Norton v. New Bedford, 166 Mass. 48. 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 — 507 — 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 an assumption of the risk. G. L. c. 152, § 66. Ashton v. Boston & Maine Railroad, 222 Mass. 65. McGonigle v. O’Neill, 240 Mass. 262. The request as to serious and wilful 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 request to the effect that the notice was insufficient because it incorrectly stated the place and nature of the alleged injury, and was otherwise misleading. The defendant could not complain of the recital therein that death was instantaneous. The plaintiff was required to state the time, place and cause of injury and nothing more. Bartley v. Boston & Northern Street Railway, 198 Mass. 163, 171. G. L. c. 153, § 6. The time was accurately given and the cause could have been found to be in accordance with the facts. The accident occurred in a trench near a mill built to be operated in connection with the quarry. The statement of the place of the accident could have been found not to have misled the defendant, because his superintendent was one of the first to reach Montani at the time of the occurrence. The jury could have found that there was no intention to mislead. The whole property owned and operated by the defendant might be referred to as the quarry. The statute does not require technical accuracy. The letter accompanying the notice tends to show there was no intention to mislead. Naze v. Hudson, 250 Mass. 368, 370. This intention often may be inferred from circumstances without testimony directly to the point. Bowes v. Boston, 155 Mass. 344, 349. The — 508 — notice was admissible in evidence and the judge could not have ruled that it was insufficient. The exceptions relating to it must, therefore, be overruled. The judge erroneously-ruled, however, that as a matter of law the notice was sufficient. He should have submitted to the jury the questions of fact involved in the determination of its sufficiency. But no exception was saved to this ruling. The remaining questions to be considered relate to the defendant’s contention that there is no evidence • of the existence or dependency of next of kin of the deceased. Evidence offered of communications from the parents of the deceased and the power of attorney from the father made the question of the existence of next of kin at the time of the death of Montani one of fact for the jury. The defendant contends that, by a proper construction of G. L. c. 229, § 7, the plaintiff must prove the existence of next of kin at the time of trial. The expression therein, "if there is any person who would have been entitled to bring an action under section four,” has relation to the' existence of such person at the time of the death of the plaintiff’s intestate. If next of kin entitled to recover were living then the right of action vested in them and the action would not abate by reason of their death before trial. Johnston v. Bay State Street Railway, 222 Mass. 583. The evidence offered that a commission issued on January 26, 1924, to take the deposition of the father of the deceased in Italy, had not been returned, was properly excluded as incompetent. The question, whether the evidence would justify the jury in finding that the next of kin were dependent for their support upon the wages of the deceased at the time of his death, was sought to be raised by two requests for rulings both of which were unsound in that they asked in substance for a ruling that the verdict must be for the defendant on all counts if the jury find the facts to be as stated in the requests relating to the dependency of parents. But the evidence as to dependency has no relation to the counts for conscious suffering. There might be recovery on these without evidence of dependent next of kin. Battany v. Wall, 232 Mass. 138. G. L. c. 229, § 7. The trial judge made it clear to the — 509 — jury that as a condition of the plaintiff’s right to recover it must appear that there were next of kin wholly or partially dependent on the wages of the deceased for their support. Bartley v. Boston & Northern Street Railway, 198 Mass. 163, 172. There is no request which raises the question of dependency with reference to the counts for death, and the sufficiency of the evidence on that issue is not presented and need not be here decided. It cannot properly be considered under the request that upon all the evidence the plaintiff cannot recover, because if the defendant desired to raise a question on all the evidence he should have done so by a motion for a directed verdict. Rule 44 of the Superior Court (1923). Carp v. Kaplan, 251 Mass. 225. Exceptions overruled.