180 Mass. 263 | Mass. | 1902
By the terms of the policy the defendant insured the plaintiff “ against loss from liability to- every person who may, during a period of twelve months ” from a time named, “accidentally sustain bodily injuries while travelling on any railway of the insured, or while in a car or upon the railway bed, or other property of the insured, under circumstances which shall impose upon the insured a common law or statutory liability for such injuries.”
The question presented is whether the terms of the policy are broad enough to cover the case where a person who is a traveller on the plaintiff road dies instantly and without conscious suffering, in consequence of an accident for which the plaintiff is responsible. The plaintiff contends that the terms are sufficiently broad. The defendant contends that the policy is satisfied by limiting the words used to cases of bodily injuries sustained, for which the plaintiff is liable, either at common law or by statute, to the person sustaining the injury, or to his executor or administrator, if the injured person survives the injury and subsequently dies.
The diligence of counsel has furnished us with no case in which a policy in the terms of the one before us has been construed, and we are obliged to consider the case mainly upon general principles.
It may be conceded that the policy is to receive a reasonable construction, in view of the plaintiff’s business; Mandell v. Fidelity Casualty Co. 170 Mass. 173; but when we have said this we have not advanced very far, for it is obvious that the parties may not have intended that all the risks incurred by the plaintiff as a common carrier of passengers should be covered. Whatever was their actual intention, we are obliged to determine the intent from the natural meaning of the language used, viewed in the light of the attendant circumstances.
It is plain that an accident insurance policy may insure a person against an injury caused by an accident, or against
In this Commonwealth there is no common law liability for death. Carey v. Berkshire Railroad, 1 Cush. 475. Moran v. Hollings, 125 Mass. 93. Nor is there any statute which gives a right of action for the death of a person to his executor or administrator as an asset of the estate. In all the statutes which have allowed an executor or administrator to bring an action on account, of the killing of a pers'on by the negligence of a corporation or its servants, the action is for the benefit of the widow, children or next of bin. Pub. Sts. c. 112, § 212. St. 1886, c. 140. St. 1887, c. 270. St. 1898, c. 565.
An action fo'r a personal injury, which has accrued to a person in his lifetime, survives, since the St. of 1842, c. 89. Pub. Sts. c. 165, § 1. But there is nothing in the statutes above cited which recognizes any right of survivorship in case of death. The power to recover in such a case was first given by an indictment, and a. fine was imposed for the benefit of the widow, etc., of the deceased. While an action of tort was afterwards allowed, the relief obtained was devoted to the same use, and not to the estate of the person billed.
The difference between the right to recover for an injury and for a loss by death has been recognized in our decisions. Thus under the St. of 1879, c. 297, which gave, among other things, a right of action to a wife, injured in her means of support by reason of the intoxication of her husband, against a person causing the intoxication, it was held that no action lay for death caused by intoxication. Barrett v. Dolan, 130 Mass. 366.
The Pub. Sts. c. 52, § 17, give a right of action not exceeding $1,000 to the executor or administrator of a person billed by reason of a defect or want of repair in a highway, etc., for the use of the widow and children. Section 18 gives a right of action to a person who “receives or suffers bodily injury ” under similar circumstances. These two actions are independent; and both may be maintained, if warranted by the evidence. Thus in Bowes v. Boston, 155 Mass. 344, 349, it was said by Mr. Justice ICnowlton: “ The right to recover damages suffered in his
We are not aware of any legislation in this Commonwealth giving a right of recovery for personal injuries, which has been construed to give a right of action for death. Nor are we aware of any legislation giving the right of recovery for death, in which the fact of bodily injury to the deceased is made an element in the computation of damages. The statutes generally give damages for death between certain fixed limits, according to the degree of culpability of the defendant. They give a new right of action to the executor or administrator, and not a right of action to the deceased, which goes to the executor or administrator by survival only. Commonwealth v. Boston & Lowell Railroad, 134 Mass. 211, 213. Littlejohn v. Fitchburg Railroad, 148 Mass. 478, 483. Mulhall v. Fallon, 176 Mass. 266, 268.
By the terms of the policy the plaintiff is insured against loss from liability to every person who may accidentally sustain bodily injuries, under circumstances which impose upon the insured a common law or statutory liability for such injuries. The liability, is to a person who sustains bodily injuries, and such person must have a right of action therefor, either at common law or by statute. The policy cannot include the case of death, for which the person never had a right of action.
According to the terms of the report the order must be, in the opinion of a majority of the court,
Judgment for the defendant.
I regret that I am unable to agree with the majority of the court. The question is one of construction, and is whether, in the language of Lord Cairns, in Sackville-West v. Holmesdale, L. R. 4 H. L. 543, 574, we shall servilely follow
The contract is one of indemnity against loss from liability for personal injuries caused by accidents for which the plaintiff was responsible, and the precise question is whether the liability of the plaintiff, which is a street railway company, for damages for death caused by its negligence, comes fairly within the terms of the policy. At common law damages for death caused by the negligence of another person were not recoverable. But such damages are now recoverable by statute in this State and in other States in many cases, and in England generally, and it seems to me that that fact should be borne in mind in construing the policy before us. Pub. Sts. c. 52, § 17, c. 112, § 212. St. 1886, c. 140. St. 1887, c. 270, § 2. St. 1898, c. 565. St. 9 & 10 Viet. c. 93. Sedg. Dam. § 571.
It is undoubtedly true that such damages do not constitute, generally speaking, assets of the estate of the deceased, and that the right of action is a new one. But it does not follow that the liability to loss on account of personal injuries which is insured against may not be fairly construed to include such damages. Parties well may be supposed to contract with reference to new conditions, though they use the old terms, and the old terms will be given a new content if they fairly admit of such a construction and such appears to have been the intention of the parties. The ground on which damages for death are allowed is that a person causing the death of another by his negligence should not be suffered to escape liability therefor. And whether the damages assessed are awarded according to the culpability of the defendant as in the employer’s liability act in this State, or according to the pecuniary loss sustained by the family of the deceased as in the English act, they go in fact, though not in terms, to those to whom the estate of the deceased passes at his death. The fact, therefore, that such damages do not, strictly speaking, constitute assets of the estate of the deceased person would not seem to be of vital consequence, if we look at substance rather than form. There can be no doubt that
For these reasons it seems to me that the ruling was right and that the judgment should be affirmed.
Mr. Justice Barker concurs in this opinion.