200 Mass. 232 | Mass. | 1908
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 relations 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, 1 Cush. 475,) 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, 1 Cush. 475. 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, Saco & Portsmouth Railroad, 4 Allen, 55. See Nolin v. Pearson, 191 Mass. 283. It was recognized that in some countries, under different systems of jurisprudence, the law was different. Carey v. Berkshire Railroad, 1 Cush. 475. But, except as changed by statute, this doctrine is firmly established in the law of this Commonwealth. Barrett v. Dolan, 130 Mass. 366. Richardson v. New York Central Railroad, 98 Mass. 85, 89. Worcester & Suburban Street Railway v. Travelers Ins. Co. 180 Mass. 263, 265. The decisions exclude, as a ground of recovery, all elements of damage which arise solely from death, and as to such damage they are as 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
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, 13 Gray, 515, Chief Justice Shaw says, “ For every breach of a promise 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. Mar
The only averment of damages is general, in the ad damnum. Where there are previous averments that show a liability this is enough, unless special damages are claimed. The forms of pleading previously used in this Commonwealth are authorized by the R. L. c. 173, § 130. In the Pub. Sts. c. 167, § 94, under the forms of declarations in actions of tort, is this language: “ The ad damnum is a sufficient allegation of damage in all cases in which special damages are not claimed.” In the form of declaration for breach of promise of marriage, there is no reference to the subject of damages, but the claim is left to the ad damnum. This is also true of some of the other forms in actions of contract in the same section.- The principle is recognized in many cases. Baldwin v. Western Railroad, 4 Gray, 333. Prentiss v. Barnes, 6 Allen, 410. Warner v. Bacon, 8 Gray, 397. Postlewaite v. Wise, 17 W. Va. 1, 24. Hoffman v. Dickinson, 31 W. Va. 142, 146. Louisville, New Albany & Chicago Railroad v. Smith, 58 Ind. 575. Laraway v. Perkins, 10 N. Y. 371. Peters v. Cooper, 95 Mich. 191. McCarty v. Beach, 10 Cal. 461. Mitchell v. Clarke, 71 Cal. 163, 167. Packard v. Slack, 32 Vt. 9. Wilson v. Clarke, 20 Minn. 367. Hadley v. Prather, 64 Ind. 137. The declaration is sufficient to entitle the plaintiff to recover nominal damages, and general damages if any resulted to the husband from a breach of such a contract as is set out. There being no other averments than the statement of the contract and an allegation of a breach of it, it does not appear whether there will be a claim of general damage to the plaintiff in his wife’s lifetime, and we need not consider whether further averments would be necessary to entitle him to anything more than nominal damages.
Because the declaration states a cause of action in the plaintiff, without reference to the averments of the death of his wife and the damages resulting from it, the judgment is reversed and the demurrer is overruled.
So ordered.
