176 Mass. 266 | Mass. | 1900
This is an action under St. 1887, c. 270, § 2, for causing the death of the plaintiff’s son. The plaintiff is an Irishwoman 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 defendants, 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.
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. Windram v. French, 151 Mass. 547, 550, 551. 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 around and go three miles to earn [her] support,” that she had a boy that was hard set to earn from 8d. to Is. a day, and another boy an invalid. How far these statements should outweigh the others was for the jury. See Houlihan v. Connecticut River Railroad, 164 Mass. 555, 557; Daly v. New Jersey Steel Iron Co. 155 Mass. 1, 5; American Legion of Honor v. Perry, 140 Mass. 580, 590. 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. New Fngland Order of Protection, 153 Mass. 314, 318. Simmons v. White Brothers, [1899] 1 Q. B. 1005. Atlanta & Charlotte Air-Line Railway v. Gravitt, 93 Ga. 369, 372. In Hodnett v. Boston & Albany Railroad, 156 Mass. 86, 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. Worcester, 138 Mass. 89, where a Rhode Island corporation sought to recover for a diversion of waters
The question then becomes one of construction, and of construction upon a point upon which it is probable that the Legislature never thought when they passed the act. In view of the decisions to which we have referred, we lay on one side.as too absolute some expressions which are to be found in the English
One or two cases may be found where a general grant of a right of action for wrongfully causing death has been held to confer no rights upon non-resident aliens. Deni v. Pennsylvania Railroad, 181 Penn. St. 525. Brannigan v. Union Cold-Mining Co. 93 Fed. Rep. 164. But compare Knight v. West Jersey Railroad, 108 Penn. St. 250. On the other hand, in several States the right of the non-resident to sue is treated as too clear to need extended argument. Philpott v. Missouri Pacific Railroad, 85 Mo. 164, 167. Chesapeake, Ohio, Southwestern Railroad v. Higgins, 85 Tenn. 620, 622. Augusta Railway v. Glover, 92 Ga. 132,142,143. Luke v. Calhoun County, 52 Ala. 115, 118, 120.
Under the statute the action for death without conscious suffering takes the place of an action that would have been brought by the employee himself if the harm had been less, and by his representative if it had been equally great, but the death had been attended with pain. St. 1887, c. 270, § 1, cl. 3. In the latter case, there would be no exception to the right of recovery if the next of kin were non-resident aliens. It would be strange to read an exception into general words when the wrong is so nearly identical, and when the different provisions are part of one scheme. In all cases the statute has the interest of the employees in mind. It is on their account that an action is given to the widow or next of kin. Whether the action is to be brought by them or by the administrator, the sum to be recovered is to be assessed with reference to the degree of culpability of the employer or negligent person. In other words, it is primarily a penalty for the protection of the life of a workman in this State. We cannot think that workmen were intended to be less protected if their mothers happen to live abroad, or less protected against sudden than against lingering death. In view of the very large amount of foreign labor employed in this State, we cannot believe that so large an exception was silently left to be read in. Whether if the statute were of a different kind we could make a distinction between a mother living just across the
We are of opinion that the Superior Court was right in letting the case go to the jury. A similar decision has been rendered upon this statute by the United States Circuit Court for this district. Vetaloro v. Perkins, 101 Fed. Rep. 393.
Exceptions overruled.