Ferriter v. Daniel O'Connell's Sons, Inc.

Quirico, J.

(concurring in part and dissenting in part). 1. I concur with the general conclusion reached in part 1 of the court’s opinion that, as a general principle of the law *531 of torts, one who by his tortious conduct causes personal injury to another should be liable in damages to the minor dependent children of the victim for the resulting interference with the parental relationship existing between the victim and the minor children. However, I have reservations about the application of that general principle of law to an injury which is within the coverage of the Workmen’s Compensation Act, G. L. c. 152. These reservations will be discussed later in this opinion.

2. I dissent from that holding of the court in part 2 of its opinion which recognizes a right of the wife and minor children of Michael Ferriter, who were not present when he was injured, to recover for the mental distress and for physical injuries resulting from such distress which the wife and children suffered when they learned of the injury to Michael Ferriter and saw him in his injured condition. The court bases its holding on its prior decision in Dziokonski v. Babineau, 375 Mass. 555 (1978), from which I also dissented. The reasons for my present dissent are the same which I stated in my dissent in the Dziokonski case, at 569, viz., that I believe that recovery of damages for mental distress and resulting physical injury suffered by close relatives of an injured person should be limited to those relatives who were present, although not necessarily in the “zone of danger,” at the time of the alleged tortious conduct which caused the original physical injury out of which the claims for mental distress arise. See Dillon v. Legg, 68 Cal. 2d 728 (1968).

Here again, I have reservations about the application of the principles of law allowing recovery for mental distress and resulting physical injuries suffered by close relatives of an injured person, to relatives of a person who sustains an injury which is within the coverage of the Workmen’s Compensation Act, G. L. c. 152. These reservations will be discussed later in this opinion.

3. In part 3 of its opinion the court considers the question whether the Workmen’s Compensation Act, G. L. c. 152, bars recovery by the wife and dependent minor children of Michael Ferriter on claims for (a) their loss of consortium or *532 familial relationship, and (b) their mental distress and resulting physical injuries, if any. After considerable discussion the court concludes that it does not bar recovery on either of such claims. I respectfully disagree and dissent from that conclusion for the reasons stated below.

The answer to the question before us depends almost entirely on the intent and purpose of the Legislature in enacting the Workmen’s Compensation Act, which originated with St. 1911, c. 751, and in enacting the various amendments thereto as the Act developed to its present state in G. L. c. 152. In Young v. Duncan, 218 Mass. 346, 349 (1914), this court said: “The purpose of this act . . . was to substitute a method of accident insurance in place of the common law rights and liabilities for substantially all employees. ... It was a humanitarian measure enacted in response to a strong public sentiment that the remedies afforded by actions of tort at common law and under the employers’ liability act had failed to accomplish that measure of protection against injuries and of relief in case of accident which it was believed should be afforded to the workman. It was not made compulsory in its application, but inducements were held out to facilitate its voluntary acceptance by both employers and employees. It is manifest from the tenor of the whole act that its general adoption and use throughout the Commonwealth by all who may embrace its privileges is the legislative desire and aim in enacting it. The act is to be interpreted in the light of its purpose and, so far as reasonably may be, to promote the accomplishment of its beneficent design”’

In King v. Viscoloid Co., 219 Mass. 420, 422 (1914), there is this further statement of the legislative intent: “It was undoubtedly the intention of the Legislature by that statute to take away from employees who should become subject to its provisions all other remedies that they had against their employers for injuries happening in the course of their employment and arising therefrom, and to substitute for such remedies the wider right of compensation given by the act.” 1 *533 The same statement appears in Zygmuntowicz v. American Steel & Wire Co., 240 Mass. 421, 424 (1922).

The intent and purpose for which the Workmen’s Compensation Act was enacted by the Legislature becomes obvious upon a study of social, economic, industrial, legal, and judicial conditions as they developed during the latter part of the Nineteenth and early part of the Twentieth Centuries. These conditions are described and documented in numerous publications, including the reports of a number of committees appointed by the Massachusetts General Court to study the subject and to make recommendations for legislation concerning compensation of injured employees.

The first such committee was established by Res. 1903, c. 87, and it was labeled the “Committee on Relations Between Employer and Employee.” The committee’s report, dated January 13, 1904, included in part V, at 36-56, a review of the law on employers’ liability for injuries to employees, with particular emphasis on the volume of such cases in the courts and the dissatisfaction by the parties on both sides of such cases,* 2 and it concluded by recommend *534 ing new legislation along the lines of the later Workmen’s Compensation Act. See 14 Yale L.J. 18 (1904). The legislation proposed in that report failed to pass the Legislature. Despite that failure, efforts to pass a comprehensive law for the compensation of employees injured in the course of their employment continued until the passage of St. 1911, c. 751. These efforts are described in detail in a document entitled “Report of the Massachusetts Commission on Compensation for Industrial Accidents” filed with the Legislature on July 1, 1912. This is a comprehensive report tracing the movement for legislation on this subject from 1887 through the passage of St. 1911, c. 751, and beyond that point to July 1, 1912.

Although most of the references in judicial opinions and other writings to the rights and benefits created by, or resulting from the Workmen’s Compensation Act refer to rights and benefits enjoyed by employees, there are corresponding rights and benefits enjoyed by employers under the Act. Among the rights and benefits enjoyed by an employer insured under the Act is immunity against suits for damages for injuries to employees “arising out of and in the course of [their] employment.” G. L. c. 152, § 26, as amended through St. 1973, c. 855, § 1.

The original Workmen’s Compensation Act, as enacted by St. 1911, c. 751, included the following provision in Part V, § 1: “If an employee of a subscriber [insured employer] files any claim with or accepts any payment from the association [insurer] on account of personal injury, or makes any agreement, or submits any question to arbitration, under this act, such action shall constitute a release to the subscriber [insured employer] of all claims or demands at law, if any, arising from such injury” (emphasis supplied). A *535 similar provision has continued to be a part of the Act to this date, and G. L. c. 152, § 23, now provides: “If an employee files any claim for, or accepts payment of, compensation on account of personal injury under this chapter, or makes any agreement, or submits to a hearing before a member of the division under section eight, such action shall constitute a release to the insured or self-insurer of all claims or demands at law, if any, arising from the injury” (emphasis supplied). This section was last amended in 1953. St. 1953, c. 314, § 6.

The original Act also contained the following provision in Part I, § 5: “An employee of a subscriber [insured employer] shall be held to have waived his right of action at common law to recover damages for personal injuries if he shall not have given his employer, at the time of his contract of hire, notice in writing that he claimed such right . . . .” A similar provision has continued to be a part of the Act at all times, and it now appears in G. L. c. 152, § 24, in almost the same language, the last amendment thereto having been made in 1955. St. 1955, c. 174, § 5.

It is clear that the Workmen’s Compensation Act gives an insured employer immunity against “all claims or demands at law, if any, arising from the injury,” if such claims or demands are brought by the injured employee himself, or by his administrator or executor for damages for his death resulting from such an injury. The problem in this case arises from the fact that the “claims or demands,” although arising out of the injury to an employee of an insured employer, are not being brought by the employee for his injury, but they are brought by his wife and children for loss of consortium and for emotional distress.

In holding that the claims of the plaintiffs are not barred by the Workmen’s Compensation Act, the court relies principally on the reasoning of the decision of this court in King v. Viscoloid Co., 219 Mass. 420 (1914). That case held that the acceptance of workmen’s compensation benefits by a sixteen year old injured employee did not bar a claim by his mother against the employer “to recover for medical and *536 other expenses incurred by the [mother] in nursing and caring for her son and for the loss of his services during a certain period of time.” Id. at 421 . The reasoning of the court in the King case was that the Legislature intended, by enacting the Workmen’s Compensation Act, “to take away from employees who should become subject to its provisions all other remedies that they had against their employers for injuries happening in the course of their employment and arising therefrom, and to substitute for such remedies the wider right of compensation given by the act.” Id. at 422 . The court then stated that the common law right of a parent to recover for expenses and loss of services for wrongful injury to a minor child, was a right separate and distinct from that of the child and held that the child’s waiver of common law rights in the case before it did not take away the rights of the parent. Id. at 422-424 .

The court, in the King decision, said that “ [i]n our statute there is no direct enactment taking away the parent’s right of action, and we find nothing which takes it away by necessary implication. The Legislature simply have not covered the case. ... If they had chosen not to leave the parent’s right of action unaffected, they might have taken it away altogether; they might have made some stated division of the alleged compensation between the minor employee and his parent. . . . But we have no right to conjecture what the Legislature would have enacted if they had foreseen the occurrence of a case like this; much less read into the statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose.” Id. at 424-425 . 3

*537 It is clear from the language of the King decision that the court did not want to read the then new Workmen’s Compensation Act as meaning that by the child’s acceptance of benefits thereunder the parent lost the right then recognized by the common law to recover damages in such a case. That is not the situation in the present case. The rights which the plaintiffs seek to enforce in this case did not exist under the common law when the Workmen’s Compensation Act was first enacted, nor did they exist for many years thereafter. The right to recover for mental distress, absent prior physical injury, was first recognized in our decision of George v. Jordan Marsh Co., 359 Mass. 244 (1971), and was developed further in Agis v. Howard Johnson Co., 371 Mass. 140 (1976), and Dziokonski v. Babineau, 375 Mass. 555 (1978). The right to recover for loss of consortium was first introduced into the law of this Commonwealth by the Legislature in 1973 when it amended our death statute, G. L. c. 229, § 2, by defining one of the elements of damages recoverable to be “(1) the fair monetary value of the decedent to the persons entitled to receive the damages recovered, as provided in section one, including but not limited to compensation for the loss of the reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent to the persons entitled to the damages recovered” (emphasis supplied). St. 1973, c. 699, § 1, approved August 27, 1973. The Legislature did not then or at any other time provide for recovery for loss of consortium by spouses of victims of injuries in employment. Recovery for the loss of consortium was later made a part of our common law of torts by our decision in Diaz v. Eli Lilly & Co., 364 Mass. 153 (1973), decided on October 10, 1973.

In my opinion it is one thing for the court to hold, as it did in King v. Viscoloid Co., supra, that in enacting the Work *538 men’s Compensation Act in 1911 the Legislature did not intend to take away the common law right of parents of a minor child to recover damages resulting from the child’s injury in employment, but it is quite a different thing for the court to hold as it does in its present opinion that notwithstanding the fact that the Workmen’s Compensation Act has been in effect for almost seventy years, during all of which insured employers have been immune from claims such as those pressed by the present plaintiffs, this court can now subject employers to liability for such claims. In the King decision this court held, in effect, that the Legislature, when it first enacted the Workmen’s Compensation Act, knew that parents of minor children injured through the tortious conduct of their employers were entitled to recover damages such as those involved in King , and yet used no language in the new statute to affect the rights of persons other than the injured employee. On the other hand, in the present case, this court, without any substantive amendments to the Workmen’s Compensation Act, imposes upon employers who are insured under the Act, new and additional obligations based on causes of action which did not become a part of the tort law of this Commonwealth until 1971 as to mental distress, 1973 as to spouses’ right of consortium, and the date of the present opinion as to the familial rights of minor dependent children.

There is nothing in the language of the Workmen’s Compensation Act or in its legislative history to indicate that the Legislature ever foresaw that many years later this court would by judicial decisions expand the scope of the law of torts to permit recovery by a spouse for wrongful interference with a right of consortium, by a child for wrongful interference with his familial rights, or by various persons for mental distress resulting in personal injuries. In these circumstances it seems appropriate to apply the same reasoning which was used in the King case, viz.: “The Legislature simply have not covered the case. . . . But we have no right to conjecture what the Legislature would have enacted if they had foreseen the occurrence of a case like this. . . .” King v. Viscoloid Co., supra at 424-425.

*539 By the same reasoning as that applied to the Legislature, it can be said that there is nothing in our decisions in the George, Agis, Dziokonski, or Diaz cases, all supra, to indicate that we foresaw, or intended that the principles stated there were to apply to cases stemming from injuries covered under the Workmen’s Compensation Act. In my opinion we start with a clean slate as to the applicability of the rules of those cases to cases stemming from injuries under the Act. The expansion of our common law of torts such as that accomplished by the four decisions identified above is invariably followed by litigation to determine the scope or limitations of the new principles, and that is what we face here. Nothing we have done to date compels or requires that we now make these new principles applicable to cases stemming from injuries under the Workmen’s Compensation Act. It is not enough to determine whether the legal theories can be extended to cover the cases before us. The question is whether they should be. I believe that they should not. In this as in most situations, abstract theorization must yield to practicality at some point.

An examination of the volume of cases ndw covered by the Workmen’s Compensation Act may serve to give some idea of what may follow in the wake of today’s decision. The following figures from the 1979 Annual Report of the Division of Industrial Accidents are relevant on this subject.

1976

1977

1978

1979

First Reports of Injury. (Employees of State, self-insurers and all others.)

218,237

235,128

242,469

249,404

Cases Completed

11,594

11,797

11,382

14,217

Lump Sum Settlements Approved

5,896

6,829

6,880

6,880

Lump Sum Awards

$49,009,867

$59,308,925

$60,821,665

$73,515,218

*540 These statistics do not, of course, give the number of cases in which relatives of the injured employees might make claims against the employers for loss of consortium, interference with familial relationship, or mental distress, but they are sufficient to permit an inference that the number will be considerable. Will the opinion of the court in the present case put our courts on the road back to the situation of congestion which the Legislature sought to remedy in 1911? Will it place a new and heavy burden on the employers for the cost of defending against such claims and the cost of meeting whatever judgments or settlements may result from them? Will it be one more factor to contribute to the decline of industry in this Commonwealth?

Concern over the inadequacy of the compensation provided for the injured employee and his or her family under the Workmen’s Compensation Act is understandable, and reasonable efforts by the courts to improve the benefits to the level of the employee’s actual wages, as a minimum, plus periodic adjustment of benefits to compensate for the ravages of inflation, would be commendable if such a decision were within the competence of the judiciary. See The Report of the National Commission on State Workmen’s Compensation Laws, c. 7, at 117-119 (1972), on subject “A Time for Reform.” However, under our system of a government of laws, such a decision is one of public policy entrusted primarily to the Legislature. Based on all of the considerations discussed above, it is my opinion that the question whether the long established and supposedly exclusive legislative plan for determination of the rights and liabilities arising out of injuries to employees should provide additional or different types of benefits for relatives of the injured employees is one which should be considered and addressed by the Legislature; and that the judiciary should not intrude itself into the making of that policy decision. Longever v. Revere Copper & Brass Inc., ante 221, 226 (1980).

If the Legislature determines, as a matter of policy, that it should bring about an increase in the benefits payable by *541 insurers to injured employees, it will have an opportunity to decide not only the amount of such increase, but also the form which it should take, i.e., whether it should be in the form of an increase in payments to the injured employee, an increase in payments to the dependent relatives or other relatives of the employee, or a combination of increased payments to the employee and to his relatives. Much more important, however, is the fact that in doing so the Legislature will have the opportunity to decide whether the administration of any increased payments or benefits should be delegated and entrusted to the Industrial Accident Board (G. L. c. 23, §§ 15-24), the quasi judicial board which is now responsible for the administration of the Workmen’s Compensation Act (G. L. c. 152), rather than to have any part of the increased benefits, particularly those payable to persons other than the injured employees, be subject to adjudication by the judiciary. In view of the well-documented court congestion and other evils incident to litigation between injured employees and their employers which the Legislature sought to correct by its enactment of the Workmen’s Compensation Act in 1911, it would seem that if the Legislature were now given an opportunity to consider the matter, it probably would not elect to aggravate further our already congested court dockets by a return to the pre-1911 practices which produced an unmanageable glut of litigation with oppressive costs to all concerned. (See note 2, supra.)

This is the same case upon which the court relies in the present case for the proposition that an employee who has waived his right of action at *533 common law by failing to give his employer written notice that he claims such right when he is hired does not by such waiver affect the rights of other persons. See G. L. c. 152, § 24.

The following are excerpts from the committee’s report: “The number of personal injury cases of all kinds in the community is very large, and is constantly increasing with the growth of population, the extension of industry and the development of means of transportation. The volume of litigation in this class of cases, not to mention those which are compromised before suits are instituted, is sufficiently large to engage almost the entire time of many sessions of courts and to demand from [time] to time the appointment of new judges, with accompanying increase in court expenses. A much greater proportion of personal injury cases than ever before, in comparison with other cases, occupies the attention of trial courts. These cases, good and bad, encumber the court dockets and in various ways delay the progress of justice. It has been estimated that, of this large volume of personal injury cases, those particularly relating to employees constitute from one-eighth to one-seventh.” Id. at 37-38.

There then followed a reference to improper conduct by lawyers and other persons on both sides of such litigation. The report then continued as follows: “At all events, there is a great waste of money, so far as justice and the rights of both employers and employees are concerned. The real beneficiaries frequently are not parties to the litigation, and oftentimes *534 their selfish interests are served by defeating justice or by the promotion of injustice. It is no part of the duty of this committee, nor is it our intention, to censure the conduct of any persons for this condition of things, which indeed may be the result of forces and influences beyond the control of individuals. It would seem, however, to be for the true interest of the community, as well as for the interest of the employer and the injured employee, that some adequate remedy or remedies should be devised to correct these evils.” Id. at 39.

It is interesting to note that although the decision in the King case has been cited, and statements have been quoted therefrom with seeming approval in a number of later decisions by this court, there appears to be no opinion in which it has been applied to permit a relative of an employee who has received workmen’s compensation benefits to recover for loss of consortium, interference with familial relationship, mental distress, or even to permit a parent of a minor injured employee of a subscribing employer to recover for the loss of a minor’s services or to recover for medical expenses incurred for him. The following are some of the cases which *537 seem to approve the holding in the King case, but which do not involve the same fact situation or legal issue: Erickson v. Buckley, 230 Mass. 467 (1918), Gilbert v. Wire Goods Co., 233 Mass. 570 (1919), Slavinsky v. National Bottling Torah Co., 267 Mass. 319 (1929), and Zarba v. Lane, 322 Mass. 132 (1947).