Section 6 is derived from St. 1911, c. 31, and St. 1911, c. 635, which were enacted following the decision Brennan v. Standard Oil Co. of New York. In that case it had been held that a count to recover for death and a count to recover for personal injuries which resulted in the death and for which the decedent had a right of action during his life could not be joined in one action. Section 6 is remedial and relates merely to the form of procedure by which existing rights are to be enforced. It creates no new causes of action. The existing rights to which the section refers are the same as those considered in the Brennan case. The right to recover for death is grounded on G.L. (Ter.Ed.) c. 229, § 2 one of the series of so called death statutes, whose history has been traced. The right to recover for the personal injuries is that right which is given by the common law and which by reason of actual damage to the decedent before his death in the form of suffering, expenses for medical attention, or loss of earning capacity survives his death. It is the same right of action which, previous to the 1947 amendment, was designated in § 6 as a count for ‘conscious suffering’ and in § 6, as amended, as a count for ‘damages for the injury’. The change in the descriptive phrase is of no significance. The term count for conscious suffering has been generally, although perhaps inaccurately, used both by the Legislature and by the courts to describe an action for personal injuries at common law when death has resulted. Section 6 makes no change in the substantive law applicable to these rights of action. At common law the elements of the damage resulting from the personal injuries are those above mentioned. If separately assessed, the sum of the awards constitutes full compensation for the injury. Bodily mutilation is not an independent element of damage. It was said that ‘to permit the assessment of damages for bodily mutilation there must have been pain or at least consciousness of injury.’
The plaintiff therefore was not entitled to recover substantial damages on count 4. Nor was he entitled to a verdict for nominal damages on that count. An act of negligence constitutes no invasion of the rights of another and gives rise to no right of action unless legal damage is caused. Mulchahey v. Washburn Car-Wheel Co. and Battany v. Wall are not authorities to the contrary. In the former case the defendant submitted to a verdict for nominal damages and in the latter case there was evidence of conscious suffering by reason of which a verdict for substantial damages might have been returned.
As the defendant’s exception to the denial of his motion for a directed verdict on count 4 must be sustained, there is no occasion to consider his exceptions to the refusal to grant his requests for rulings presented at the trial and those later presented at a hearing on a motion for a new trial.
Exceptions sustained.
Judgment for the defendant on count 4.
