O'Connor v. Benson Coal Co.
16 N.E.2d 636
Mass.
1938
Check Treatment
Qua, J.

This is an action under G. L. (Ter. Ed.) c. 229, § 5, to recover for the death by negligence of the plaintiff’s intestate, Lorraine Hofman, a child three years and seven months of agе living with her parents in Melrose.

The deceased met her death as the result of being run over by a truck driven by her own father, Frank Hofman, while acting within the scope of his employment by the defendant as a driver, in delivering at his own home some bags of coal which he had purchased from the defendant for his own use. It was agreed that thе deceased was incapable of exercising any care for her safety. The exceptions are addressed to the denial by the judge of the defеndant’s motion for a directed verdict and to a portion of the charge.

In the recent case of Luster v. Luster, 299 Mass. 480, we decided that an unemancipated minor living with his parent cannot recovеr against the parent for personal injuries caused by negligence. We need not determine whether the principle of that decision applies to thе statutory action *147for death (see Martinelli v. Burke, 298 Mass. 390, 391), as we are of the opinion that the reasons of policy underlying the Luster case have but slight bearing where the action is against the emplоyer of the parent, and that an action may lie against the employer where it would not lie against ‍​‌​‌‌‌‌‌‌‌‌‌​​​​​​​​​‌​​​‌‌​‌‌​‌‌​​​​‌​​​​​​‌​​‌‍the parent himself. Thus a wife can recover for her husbаnd’s negligence against his employer, though she cannot recover against her husband himself. Pittsley v. David, 298 Mass. 552, 553. See Am. Law Inst. Restatement: Agency, § 217, Comment b.

It is urged that the plaintiff as administratоr cannot prevail under the statute because the father, who as one of the next of kin would share in the distribution of the money recovered, would thereby prоfit from his own wrong. Upon the question so raised nearly every possible view seems to have been taken by the courts of various States. Where the wrongdoer would bе the sole beneficiary it seems to have been quite generally held that no action can be maintained. Niemi v. Boston & Maine Railroad, 87 N. H. 1. Richmond, Fredericksburg & Potomac Railroad v. Martin’s Administrator, 102 Va. 201. Ploof v. Burlington Traction Co. 70 Vt. 509, 514-518. Lee v. New River & Pocahontas Consolidated Coal Co. 203 Fed. 644. Compare, however, McKay v. Syracuse Rapid Transit Railway, 208 N. Y. 359; Consolidated Traction Co. v. Hone, 30 Vroom, 275. But in the present case the mother would be entitled to share as one of the next of kin. In such instances some courts have held that there can be no recovery at all, in spite of the existence of innocent distributees. Hazel v. Hoopeston-Danville Motor Bus Co. 310 Ill. 38, 42, et seq. Brown McClain Transfer Co. v. Major’s Administrator, 251 Ky. 741, 745. Others have held that the amount of recovery by the executor or administrator should be reduced by the amount payable as the share of the negligent distributee. Phillips v. Denver City Tramway Co. 53 Colo. 458, 470-473. Cleveland, Cincinnati, Chicago & St. Louis Railway v. Grambo, 103 Ohio St. 471, 477. Anderson v. Memphis Street Railway, 143 Tenn. 216. Still others support the view that where ‍​‌​‌‌‌‌‌‌‌‌‌​​​​​​​​​‌​​​‌‌​‌‌​‌‌​​​​‌​​​​​​‌​​‌‍there are any innocent beneficiaries re*148covery may be had for the benefit of all, even though there are some who are guilty. Southern Railway v. Shipp, 169 Ala. 327. Wilmot v. McPadden, 78 Conn. 276. Wymore v. Mahaska County, 78 Iowa, 396, 399. Danforth v. Emmons, 124 Maine, 156. Love v. Detroit, Jackson & Chicago Railroad, 170 Mich. 1.

These citations might be greatly extended to no useful purpose. It is apparent from reading them that the results are dependent upon the varying characters of the death statutes of different jurisdictions and to some extent upon the local law as to imputed negligence. Our own death statute provides that action be brought by the executor or administrator and that damages be assessed with reference to the degree of culpability of the defendant or of that of his agents or servants. G. L. (Ter. Ed.) c. 229, § 5. Its primary purpose is punishment proportionate to the degree of blame inherent in the wrongful act for which the • defendant is liable. Porter v. Sorell, 280 Mass. 457. In that case at page 462 we said, “This court cannot by construction add a limitation on punishment which the Legislature did not see fit to establish.” See also Boott Mills v. Boston & Maine Railroad, 218 Mass. 582; Putnam v. Savage, 244 Mass. 83; Macchiaroli v. Howell, 294 Mass. 144. Liability based upon the degree of culpability of the defendant cannot be varied according to the number of beneficiaries who аre guilty or innocent. Compare Brown v. Thayer, 212 Mass. 392, 399. There is no way in which damages can be either wholly denied or reduced because of the contributory negligence of. one or more out of a group of beneficiaries without violating the statute. We therefore conclude that, at least when there is one beneficiary whose fault ‍​‌​‌‌‌‌‌‌‌‌‌​​​​​​​​​‌​​​‌‌​‌‌​‌‌​​​​‌​​​​​​‌​​‌‍did not contribute to the death, recovery can be had without regard to the fault of other beneficiaries. It does not necessarily follow that beneficiaries who are at fault can share in the distribution by the executor or administrator of the money recovered. Compare McCarthy v. William H. Wood Lumber Co. 219 Mass. 566, 568. It may be that the attitude of thе common law toward a wrongdoer will be carried over to affect the statutory right, so that the proceeds of recovery *149must be distributed among the innocеnt beneficiaries alone as if the guilty beneficiaries did not exist. This is the rule laid down in Am. Law Inst. Restatement: Torts, § 493, Comment a (second paragraph). See Slocum v. Metropolitan Life Ins. Co. 245 Mass. 565, 570. But the question of distribution is not now before us, and we do not -decide it.

The jury could find that the mother of the deceased was an innocent beneficiary free from negligence. Thеre was evidence that Mrs. Hofman with the deceased and another child was in the rear of her home taking in clothes; that a neighbor and her young child were alsо present; that after “a very short time” Mrs. Hofman missed the deceased and “instantly went to look for her,” when she observed her husband bringing the deceased in his arms either unconscious or dead; that the deceased had been gone from her mother’s side two or three minutes; and that Mrs. Hofman had instructed the deceased to stay in hеr own yard and had never known her to disobey these instructions. Herd v. Boston Elevated Railway, 265 Mass. 125. Shear v. Rogoff, 288 Mass. 357, 360-361. St. Pierre v. Hathaway Baking Co. 296 Mass. 455. Capano v. Melchionno, 297 Mass. 1.

There was evidence from which the jury could find that the deceased at the time of the accident wаs in the custody of her mother and not of her father, and therefore that negligence of her father was not to be imputed to her. In addition to that already stated there was evidence that the father had left for work about 7:30 a.m. ; that the accident happened about ‍​‌​‌‌‌‌‌‌‌‌‌​​​​​​​​​‌​​​‌‌​‌‌​‌‌​​​​‌​​​​​​‌​​‌‍noon; that the children always were in their mother’s care; and that when the father returned with the truck, although he saw the deceased and “waved a greeting to her,” he did not speak to her or warn her to be careful or otherwise assume charge of her by any act on his part. Custody as the word is used in this connection is commonly a question of fact. Slattery v. O’Connell, 153 Mass. 94. Mellen v. Old Colony Street Railway, 184 Mass. 399. Tucker v. Ryan, 298 Mass. 282, 285. See Tornroos v. R. H. White Co. 220 Mass. 336, 342.

Finally, there was evidence of negligence on the part of *150the father. The approach to his house was through a narrow driveway which first ran in a southerly direction and then turned at a right angle toward the west, where the piazza of another hоuse was located so near the southerly side of the way on his left that he was obliged to drive within a few inches of it in order to make the turn. It could be found that he last saw the deceased running along in the same direction in which the truck was going, three or four feet from the left side of the truck, into the narrowing space between the truck and this piazza; that he then “took his head in and did not keep his eyes on his child any longer,” but continued on until he felt a bump and then found the deceased on the ground about a foot in the rear of the left rear wheel, which was then twelve to eighteen inches from the westerly corner of the piazza. In view of the child’s age and her position it could have been found that the father was negligent in going on before the deceased had reached a place of assured safety. Dowd v. Tighe, 209 Mass. 464. Tenney v. Reed, 262 Mass. 335. Minsk v. Pitaro, 284 Mass. 109, 112. Eaton v. S. S. Pierce Co. 288 Mass. 323. Capano v. Melchionno, 297 Mass. 1, 7.

From what has been said it appears that there was no error in denying the defendant’s motion for a directed verdict.

The defendant took a single exception to “that part of the charge which deals with the question of the due care of the father and mother and whether or not the child was in the control or сustody of the father at the time the accident happened.” The part of the charge thus referred to contains six or seven different propositions, each very briefly stated. The exception failed to point out which of these were deemed objectionable or wherein they were wrong. Such an exception is of no avail. Anderson v. Beacon Oil Co. 281 Mass. 108, 110-111. Mitchell v. Lynn Fire & Police Notification Co. Inc. 292 Mass. 165, 168. Tucker v. Ryan, 298 Mass. 282, 284. The defendant now argues that the charge was inadequate in detail and insufficient to give the jury a clear perception of thе alternatives presented to them. Mahoney v. Boston Elevated Railway, 271 Mass. 274, 279. *151But an objection of this kind must be drawn specifically to the attention of ‍​‌​‌‌‌‌‌‌‌‌‌​​​​​​​​​‌​​​‌‌​‌‌​‌‌​​​​‌​​​​​​‌​​‌‍the judge at the trial in order that the charge may be then corrected. Butler v. Butler, 225 Mass. 22, 27-28. Hamilburg v. Meffert, 290 Mass. 456, 460.

Exceptions overruled.