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

413 N.E.2d 690, 381 Mass. 507

• Court: Massachusetts Supreme Judicial Court
• Decided: September 9, 1980
• Status: Published

Opinions

Liacos, J.

The plaintiffs, Judith A. Ferriter and her minor children, Jason R. and Leah N., filed a complaint and demand for jury trial on June 7, 1979, in the Superior Court for Hampden County. The complaint alleged that the plaintiffs’ husband and father, Michael Ferriter, was seriously injured as a result of the negligent, wilful, wanton and reckless conduct of the defendant, Daniel O’Connell’s Sons, Inc. (O’Connell). The complaint alleges that observing Michael’s injuries has caused the plaintiffs to suffer mental anguish and that as a result of Michael’s injuries their mental and physical health has been impaired. Furthermore, the plaintiffs allegedly have suffered loss of consortium and society. Thus, the plaintiffs prayed for damages of $3,000,000. On July 5, 1979, the defendants moved for summary judgment. The parties on September 26 filed a statement of agreed facts. On October 3, a judge of the Superior Court denied the motion on the claims for loss of consortium and society, but granted the defendant’s motion on the claims for mental anguish and impaired health. The judge reported the case pursuant to Mass. R. Civ. P. 64, 365 Mass. 831 (1974), for a determination of the propriety of his rulings. We granted the plaintiffs’ application for direct appellate review. We affirm the judge’s first ruling, but reverse the second ruling.

According to the statement of agreed facts, the plaintiffs are the wife and two children, aged five and three, of Michael Ferriter. While working as a carpenter for the defendant, Michael was seriously injured on May 18, 1979. A one-to-two-hundred pound load of wood beams, which was hoisted in a nylon sling from the boom of a crane, fell fifty feet, and at least one beam struck Michael on the neck. The persons hoisting the lumber, operating the crane, monitoring site safety, and supervising the work were O’Connell employees. The defendant also supplied the materials and equipment used.

Since the accident, Michael Ferriter has been hospitalized and paralyzed from the neck down. The plaintiffs first saw him in this condition in the hospital. They neither witnessed the accident nor came on the scene of the accident when Michael was there. Michael receives $211.37 a week in workmen’s compensation benefits from O’Connell’s insurer. Although the plaintiffs fall within the statutory presumption of dependency in G. L. c. 152, § 35A, they receive no benefits because Michael’s compensation exceeds $150 a week. See G. L. c. 152, § 35A.

The defendant employer attacks the plaintiffs’ claims in two respects. First, it asserts that the counts for mental anguish and impaired health fail to state a claim upon which relief can be granted. Second, the defendant argues that the Workmen’s Compensation Act, G. L. c. 152, bars the plaintiffs’ claims.

1. The employer does not assert that the wife’s and children’s counts for loss of consortium and society fail to state a claim upon which relief can be granted. Although a wife’s right to recover for loss of consortium is well established, Diaz v. Eli Lilly & Co., 364 Mass. 153 (1973), a child’s right to recover for loss of a parent’s society and companionship through a defendant’s negligence is problematic. Id. at 165 & n.41. We consider whether such a right exists before addressing the issue of whether, on these facts, a cause of action is barred by G. L. c. 152.

The question whether a child can recover for loss of a parent’s companionship and society caused by a defendant’s negligence is a matter of first impression in Massachusetts. However, in Feneff v. New York Cent, & H.R.R.R., 203 Mass. 278, 281-282 (1909), rejecting a wife’s claim for loss of consortium for injuries to her husband, the court in essence equated a wife’s interest in spousal consortium with a minor child’s interest in parental society. In Diaz v. Eli Lilly & Co., supra at 163, we characterized as “vulnerable” the Feneff court’s reasoning supporting rejection of the wife’s claim. We recognized a wife’s right to recover for loss of consortium resulting from personal injuries to the husband. The wife’s interest encompassed not only sexual relations with her husband, but also his society and companionship. Diaz, supra at 161. The combination of Diaz and the dicta in Feneff force recognition that a minor child has a strong interest in his parent’s society, an interest closely analogous to that of the wife in Diaz. The court in Diaz expressly reserved the question whether a child has a right to recover for loss of a parent’s society caused by a defendant’s negligence. Id. at 165 & n.41. We are skeptical of any suggestion that the child’s interest in this setting is less intense than the. wife’s.

As in Diaz, to take the measure of the present action, we consider this question in the perspective of the common law. Under the doctrine of paterfamilias, an injury to the family was an injury to the father. Neither children nor wives could bring actions in their own names to recover for personal injury. The action and any damages obtained belonged to the father.² The law also furnished the father with various actions to protect family relationships. In Diaz, supra at 154-158, we traced the evolution of claims for loss of spousal consortium. Though parallel in many respects, the histoy of actions for interference with the parent-child relationship has taken distinct turns.

A father has traditionally had actions for abduction and seduction of his child.³ Both causes were founded upon an analogy with a master’s action for enticement of his servant.⁴ In order to prevail, the father had to show actual loss of his child’s services. W. Prosser, Torts § 124, at 882 (4th ed. 1971). With time, a doctrine of constructive loss of services developed. If the child was a minor and the father had a right to his or her services the child was presumed to be his servant. Kennedy v. Shea, 110 Mass. 147, 150 (1872). Thus, loss of services became a technical requirement, an acknowledged fiction. See, e.g., Blagge v. Ilsley, 127 Mass. 191, 199 (1879). Once the parent established that the defendant’s act made the child mentally or physically incapable of rendering services, the court could award damages for emotional harm done the parent. Id. at 197-198. See Cook v. Bartlett, 179 Mass. 576, 579-580 (1901); Stowe v. Heywood, 7 Allen 118, 122 (1863). In abduction cases, the father could recover for loss of the child’s society. Stowe v. Heywood, supra at 122-123. See Worcester v. Marchant, 14 Pick. 510 (1834); W. Prosser, supra, § 124, at 883; Restatement (Second) of Torts § 700, Comment g (1977). Such recovery appears also to have been available in seduction cases. Stowe v. Heywood, supra at 122. See W. Prosser, supra, § 124 at 885 & n.99; but see Restatement (Second) of Torts § 701, Comment e (1977).

In addition to the actions for abduction and seduction, our cases recognized a further consequence of the master-servant analogy. “The remedy, on principle, is equally clear whether the injury is produced by beating and wounding, by enticing away, or by seduction.” Blagge v. Ilsley, supra at 198. See Bradstreet v. Wallace, 254 Mass. 509, 511 (1926). A third person’s tortious infliction of injury upon a child gave the parent⁵ a cause of action for loss of services. Even a negligent act would suffice. Horgan v. Pacific Mills, 158 Mass. 402 (1893). Wilton v. Middlesex R.R., 125 Mass. 130 (1878). Moreover, the parent could recover for labor performed and expenses reasonably incurred in the child’s care. Dennis v. Clark, 2 Cush. 347 (1848). As in actions for abduction and seduction, the requirement of actual loss of services withered, becoming a mere fiction. Id. See W. Prosser, supra, § 125 at 890. However, it does not appear that damages for the parent’s mental suffering or for loss of the child’s society were available when the gravamen of the parent’s claim was physical injury to the child. See Restatement (Second) of Torts § 703, Comment h (1977). But see W. Prosser, supra, § 125, at 889-890, and cases cited in n.58. See also Dennis v. Clark, supra 6

These cases supply analogous precedent for a child’s right to recover for loss of a parent’s society resulting from the defendant’s negligence. The common law has traditionally recognized a parent’s interest in freedom from tortious conduct harming his relationship with his child. As in husband-wife relations, albeit to a more limited extent, our law has compensated parents for sentimental as well as economic injuries.⁷ If the common law sometimes protects a parent’s sentiments in the parent-child relationship, we might expect similar protection for the fledgling needs of the child. But the common law has been nearly silent concerning a child’s right to recover damages for loss of parental society. Perhaps because courts would not stand the master-servant analogy on its head, with the child as master,⁸ the question of the child’s action does not appear in our cases until 1931. Cole v. Cole, 277 Mass. 50 (1931). Furthermore, the question was not clearly presented until Nelson v. Richwagen, 326 Mass. 485 (1950). See White v. Thomson, 324 Mass. 140, 143 (1949).

In Nelson, a minor child sought relief against the defendant for enticing her mother to desert her and her father. The child prayed for damages for loss of support, maintenance and maternal care. This court affirmed an order sustaining a demurrer to the child’s claim. The court acknowledged that one spouse has a right to the personal presence and care of the other. However, a minor child has no comparable right to the presence and care of a parent. “So far as the parent is bound to support the child the parent may be compelled to do so by other proceedings.” Nelson, supra at 487. The court also raised four practical objections to the child’s action: “(1) Possibility of a multiplicity of suits . . .; (2) Possibility of extortionary litigation . . .; (3) Inability to define the point at which the child’s right would cease [i.e., the point at which the child becomes an adult]; (4) Inability of a jury adequately to cope with the question of damages” both because the damages are too speculative and because overlapping recovery is probable. The court then likened the policies involved to those underlying parent-child tort immunity. Id.

Nelson is the only Massachusetts case to discuss in any detail a child’s right to recover damages for loss of parental society. Because it involves the disfavored action for alienation of affections, it is distinguishable from the present case. The court implied a distaste for tort litigation among family members. Id. at 487-488. Also, the court was concerned with the likelihood of extortionate litigation. However, when a third party’s negligence causes injury to a parent and the child suffers loss of society, the litigation does not typically pit family members against each other. Cf. Soren-sen v. Sorensen, 369 Mass. 350, 356, 363 (1975) (permitting parent-child litigation over automobile accidents will not unduly harm family). And the potential for extortionate litigation is absent. Diaz, supra at 160.

Although these distinctions may justify the Nelson result, the Nelson court’s reasoning demands our attention. Reasons similar to those stated in Nelson, and a reluctance to act absent legislative sanction, have persuaded many courts to deny recovery in actions like the one before us.⁹ For example, in Borer v. American Airlines, Inc., 19 Cal. 3d 441, 453 (1977), the court held “that taking into account all considerations which bear on this question, including the inadequacy of monetary compensation to alleviate [a family] tragedy, the difficulty of measuring damages, and the danger of imposing extended and disproportionate liability, we should not recognize a nonstatutory cause of action for loss of parental consortium.” But see id. at 453-560 (Mask, J., dissenting). Despite the conceded natural justice of a child’s claim¹⁰ and extensive commentary favoring such actions,* ¹¹ only one jurisdiction presently permits recovery. Berger v. Weber, 82 Mich. App. 199 (1978). See Scruggs v. Meredith, 134 F. Supp. 868 (D. Haw. 1955), rev’d, 244 F.2d 604 (9th Cir. 1957), in light of Halberg v. Young, 41 Haw. 634 (1957) (Hawaii law). We believe that Michigan’s approach is the correct one. Scrutiny of the reasons for denying recovery finds them unsound. Moreover, many of the objections to the child’s claim raise anew the questions that we laid to rest in Diaz.

The principal reason in Nelson for rejecting the child’s alienation of affections claim was that a child had no legal entitlement to his parent’s society. That proposition is no longer true. In an action for wrongful death, the children of the deceased are persons entitled to receive the damages recovered, as defined in G. L. c. 229, § 1. As such, they are entitled to recover for “loss of the reasonably expected . . . society ... of the decedent.” G. L. c. 229, § 2, as appearing in St. 1973, c. 699, § 1. We think it entirely appropriate to protect the child’s reasonable expectation of parental society when the parent suffers negligent injury rather than death. Cf. W. Prosser, supra, § 130, at 950-951 & n.68 (tortious interference with reasonably expected noncommercial benefit). Protecting a child’s need for parental love and nurture is the express legislative policy of this Commonwealth. G. L. c. 119, § 1. See id. § 24. In the courts, “ [cjhildren enjoy the same right to protection and to legal redress that others enjoy. Only the strongest reasons, grounded in public policy, can justify limitation or abolition of those rights.” Sorensen v. Sorensen, 369 Mass. 350, 359 (1975). Here such a countervailing policy is wanting.

The other objections in Nelson were the subject of discussion in Diaz, supra. We dealt at length with such problems as possible multiplicity of suits, id. at 161-162; purported remoteness of the damages, id. at 159-160; and dangers of redundant recovery, id. at 162-163. We need not rehearse those discussions here. As for the argument that we should withhold our hand until the Legislature acts, we need only repeat: “In a field long left to the common law, change may well come about by the same medium of development. Sensible reform can here be achieved without the articulation of detail or the creation of administrative mechanisms that customarily comes about by legislative enactment. ... In the end the Legislature may say that we have mistaken the present public understanding of the nature of the [parent-child] relation, but that we cannot now divine or anticipate.” Id. at 166-167.

We hold that the Ferriter children have a viable claim for loss of parental society if they can show that they are minors dependent on the parent, Michael Ferriter. This dependence must be rooted not only in economic requirements, but also in filial needs for closeness, guidance, and nurture. In so holding, we do not abandon our determination to “proceed from case to case with discerning caution” in this field. Diaz v. Eli Lilly & Co., supra at 165. As claims for injuries to other relationships come before us, we shall judge them according to their nature and their force.¹²

Over sixty years ago, Dean Pound said, “As against the world at large a child has an interest ... in the society and affection of the parent, at least while he remains in the household. But the law has done little to secure these interests. . . . It will have been observed that legal securing of the interests of children falls far short of what general considerations would appear to demand.” Pound, Individual Interests in the Domestic Relations, 14 Mich. L. Rev. 177, 185-186 (1916). We meet part of that demand today.

2. We turn to the plaintiffs’ claims for negligent infliction of mental distress and impaired health. The judge below allowed the defendant’s motion for summary judgment on this issue. Relying on the plaintiffs’ complaint and a statement of agreed facts, the judge concluded that “[t]he claims are barred by reason of the case of [Dziokonski v. Babineau, 375 Mass. 555 (1978)].”

The judge properly allowed the motion only if the pleadings and the statement of agreed facts “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). “On summary judgment the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.” Hub Assocs. v. Goode, 357 Mass. 449, 451 (1970), quoting from United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The judge seems to have based his ruling exclusively on his understanding of the legal principles stated in Dziokonski v. Babineau, 375 Mass. 555 (1978).

In Dziokonski v. Babineau, supra, we held that “allegations concerning a parent who sustains substantial physical harm as a result of severe mental distress over some peril or harm to his minor child caused by the defendant’s negligence state a claim for which relief might be granted, where the parent either witnesses the accident or soon comes on the scene while the child is still there.” Id. at 568. The theory underlying that holding is that “reasonable foreseeability is a proper starting point in determining whether an actor is to be liable for the consequences of his negligence.” Id. at 567. Furthermore, “[i]n cases of this character, there must be both a substantial physical injury and proof that the injury was caused by the defendant’s negligence. Beyond this, the determination whether there should be liability for the injury sustained depends on a number of factors, such as where, when, and how the injury, to the third person entered into the consciousness of the claimant, and what degree there was of familial or other relationship between the claimant and the third person.” Id. at 568.

We think that the present case is within the principles set out in Dziokonski. According to the complaint, the defendant’s acts and the employee’s injuries caused the plaintiffs to suffer physical impairment. The statement of agreed facts is silent concerning the plaintiffs’ injuries. The allegation in the complaint, together with favorable inferences, suffices as a showing of substantial physical injury. Cf. American Mut. Liab. Ins. Co. v. Commonwealth, 379 Mass. 398, 400-401 (1979) (using “injury” and “impairment” interchangeably). Furthermore, Michael Ferriter is the plaintiffs’ husband and father. According to the statement of agreed facts, the plaintiffs first saw his injuries in the hospital, not at the scene of the accident. However, on summary judgment, we may infer that the shock occurred immediately after the accident. A plaintiff who rushes onto the accident scene and finds a loved one injured has no greater entitlement to compensation for that shock than a plaintiff who rushes instead to the hospital. So long as the shock follows closely on the heels of the accident, the two types of injury are equally foreseeable. Thus, in all respects, the plaintiffs’ claims fall within the principles of proximity set out in Dziokonski. The motion for summary judgment should have been denied.¹³

3. The defendant’s principal argument is that the Workmen’s Compensation Act, G. L. c. 152, bars all of the plaintiffs’ claims. Chief Justice Rugg described the act’s purposes in Ahmed’s Case, 278 Mass. 180, 183 (1932): “The underlying principle of that act is that the cost of injuries sustained by those employed in industry, save those due to serious and wilful misconduct of the employee, shall be treated as a part of the cost of production. In place of common law or statutory remedy for personal injury suffered by an employee based upon negligence, a system is established whereby compensation is paid for all injuries and for death arising out of and in the course of the employment, . . . without regard to the fault or freedom from fault of the employer or those for whom he is responsible, whether such injury or death is sustained because of unavoidable accident, negligence of fellow servants or of third persons, negligence of the employee or assumption of risk by him, or otherwise, excepting only injuries or death caused by the serious or wilful misconduct of the employee.”

In its early forms, the act was elective for both the employer and the employee. St. 1911, c. 751, Parts II & IV (employers). St. 1911, c. 751, Part I, § 5 (employees). See Young v. Duncan, 218 Mass. 346, 349 (1914). The act created incentives to induce both the employer and employee to avail themselves of its benefits. For example, the employee escaped the difficulty of establishing the employer’s negligence and negating common law defenses such as the fellow servant rule, assumption of the risk, and contributory negligence. The employer, on the other hand, could avoid litigation and treat his payments as an actuariallypredictable cost of doing business.¹⁴ A corollary of the latter point was that the employee accepting compensation had to give up his common law rights against the employer. St. 1911, c. 751, Part I, § 5, current version at G. L. c. 152, § 24. St. 1911, c. 751, Part V, § 1, current version at G. L. c. 152, § 23. See, e.g., King v. Viscoloid Co., 219 Mass. 420, 422 (1914). However, an employee could give notice that he wished to preserve his common law rights and reject the compensation program. St. 1911, c. 751, Part I, § 5. Even after the act underwent substantial revision and participation became compulsory for most employers, St. 1943, c. 529, § 7, employees retained their right to reject compensation and preserve their common law remedies. St. 1943, c. 529, § 6, current version at G. L. c. 152, § 24.

In the present case, the employee not only failed to give notice that he wished to preserve his rights at common law, G. L. c. 152, § 24,¹⁵ but he also accepted compensation payments, G. L. c. 152, § 23.¹⁶ His waiver of rights is undisputed. However, we must decide whether his waiver bars his family from recovering against the employer at common law for damage suffered by them. We first addressed this question in King v. Viscoloid Co., supra, only three years after St. 1911, c. 751, inserted the Workmen’s Compensation Act.

In King, a mother sued her son’s employer for loss of the son’s services and for expenses incurred in nursing and caring for him. The workmen’s compensation insurer had made various payments to the son. This court upheld the mother’s claim. Her right of action “was not in any just sense consequential upon that of the son.” Id. at 422. She sought redress for her own injury, not his. Furthermore, her action was distinct from the action that the son had waived under St. 1911, c. 751, Part I, § 5, the progenitor of G. L. c. 152, § 24. “[H]e had waived his right of action; but he had not waived, by his own mere act he could not waive, his parent’s independent right.” King, supra at 422.

The court relied on the principle “that an existing common law remedy is not to be taken away by a statute unless by direct enactment or necessary implication.” Id. at 425. The language of St. 1911, c. 751, Part I, § 5, seemed expressly to limit the waiver to the employee: “An employee of a subscriber shall be held to have waived his right of action at common law to recover damages for personal injuries . . .” (emphasis supplied). The court said, “The Legislature have stated the consequence that is to follow the failure to give the statutory notice; how can the court say that further consequences shall follow, by taking away the right of a third person not mentioned in the act?” King, supra at 423.

Moreover, nothing in the statute took away by implication the mother’s remedy at common law. Even though the insurer paid the son’s medical and hospital bills, the mother could recover for her own injuries. She had received no compensation payments herself, and the court remarked, “Our decision does not apply to cases where the parent has received any benefit or compensation under the act.” Id. Because the parties had stipulated to the amount of damages at issue, the court did not have to consider possible set-offs resulting from the insurer’s compensation payments to the son. Thus, the Workmen’s Compensation Act neither expressly nor impliedly barred the mother’s remedy.

Neither the rule of King v. Viscoloid Co., supra, nor the pertinent language of the statute has been modified since 1914. Indeed, in years that followed, this court has repeatedly reaffirmed the King rule. In Erickson v. Buckley, 230 Mass. 467, 471 (1918), we said in dicta: “Under the . . . workmen’s compensation act . . . the common law right of a third person to recover for injuries sustained by him as a consequence of harm and injury coming upon [an employee] through the negligence of the defendant, is not barred by the neglect or refusal of [the employee] to give notices which are conditions precedent to any right of recovery by that [employee], by a release or by a refusal to prosecute, for the reason that the rights of third persons are not included in the terms of the act.”

In Slavinsky v. National Bottling Torah Co., 267 Mass. 319 (1929), a mother sued her minor son’s employer in tort for expenses incurred in her son’s care and treatment. The employee also brought an action of tort against the employer for personal injuries. We held that, under the King rule, the Workmen’s Compensation Act barred the employee’s claim, but did not bar the mother’s claim. Nevertheless, since the mother’s claim was based solely on the alleged negligence of a fellow employee, we held the employer could invoke the fellow servant rule as a defense. Hence, despite the favorable King precedent, the mother could not recover. Cf. G. L. c. 153, § 1 (fellow servant rule may not apply in certain employee actions against employer).

Finally, in Zarba v. Lane, 322 Mass. 132 (1947), we applied the King rule even after workmen’s compensation had become compulsory for most employers. A minor brought a tort action against his employer, who was not a subscriber under the Workmen’s Compensation Act, for personal injuries inflicted by a fellow employee. The boy’s father brought a count seeking consequential damages. The plaintiffs sought the benefit of G. L. c. 152, § 66, which abolished a nonsubscribing employer’s common law defenses, including the fellow servant rule, in actions by employees injured in the course of employment. We held that the employer was not entitled to a directed verdict that the son’s injury occurred outside of his employment. Therefore, the son did not, as a matter of law, fall outside of the statute’s protection. However, under the King rule, the father’s right of action was independent of the son’s. As in Slavin-sky, the fellow servant rule defeated the parent’s claim.

The line of authority from King to Zarba spans thirty-three years and extends beyond the 1943 revision of the Workmen’s Compensation Act. The cases rest on the principle that employees have always had an election to participate in the workmen’s compensation system. Yet the plaintiffs in cases like King were not “employees” under the act. See White v. George A. Fuller Co., 226 Mass. 1, 4-5 (1917). They did not choose to waive their common law rights to redress of personal injuries. Nor did they receive compensation payments for their injuries.¹⁷ In light of the limited language of G. L. c. 152, § 24, it would be unfair to hold that the employee waived a third party’s right as well as his own. See Pinnick v. Cleary, 360 Mass. 1, 21-22 (1971); Clark v. M.W. Leahy Co., 300 Mass. 565, 569 (1938). The Legislature has created various incentives to induce an employer to comply with the act. However, avoiding the threat of nonemployee actions under the King rule is not part of the employer’s incentive for complying with the act.¹⁸

The defendant O’Connell raises several arguments to attack application of the King rule in this case. First, O’Connell characterizes G. L. c. 152, § 24, as an isolated statutory provision which must be read in the broad context of the purposes of the act. As O’Connell would have it, permitting third party actions of this nature will render uncertain an employer’s costs for employee injuries. Moreover, the employer will have to litigate the issue of fault. According to O’Connell, workmen’s compensation was designed to relieve the employer of these burdens. Smither & Co. v. Coles, 242 F.2d 220, 222 (D.C. Cir.), cert, denied, 354 U.S. 914 (1957).

We recognized in King v. Viscoloid Co., supra at 422, that the employee’s remedy should be exclusive, and we do not question that proposition today. “But we find in the act nothing which goes further than this for the protection of the employer.” Id. In Massachusetts, employers within the compensation act have never been in a position to rely on determinate liability for derivative third party injuries.¹⁹ And fault has never been purged entirely from the statutory scheme. This is the legacy of the King decision and our unusual statute, G. L. c. 152, § 24, whose language unambiguously limits the scope of the employee’s waiver.²⁰ Despite numerous legislative reports on workmen’s compensation,²¹ a revision of the participation requirement of the act,²² and many amendments of the section in question,²³ that strict language remains. Few exclusive liability provisions in workmen’s compensation statutes are so narrowly drawn.²⁴ 2A A. Larson, Workmen’s Compensation §§ 66.00-66.20 (1976 & Supp. 1980). In the construction of statutes resembling ours, King v. Viscoloid Co., supra, is the acknowledged leading case. 2A A. Larson, supra § 66.20, at 12-24.²⁵ Without a declaration of legislative intent to the contrary, we are disinclined to disturb our rule, which has weathered sixty-six years unscathed.²⁶

The defendant’s second attack seems to rest on the suggestion that the Legislature has tacitly overruled King. When King was decided, the act did not provide for payment of dependency benefits to the parent of an injured, unmarried, minor employee. In St. 1926, c. 190, current version at G. L. c. 152, § 32 (e), the Legislature created a conclusive presumption of dependency for a parent of an unmarried minor employee living with the parent at the time of an injury resulting in death. In Pierces Case, 267 Mass. 208, 211 (1929), the court remarked that workmen’s compensation benefits were the sole remedy for a parent of an unmarried minor employee whose injuries resulted in death. Statute 1945, c. 717, inserted G. L. c. 152, § 35A, which provided for dependency benefits for injured employees and incorporated the presumption of dependency for parents of an unmarried, minor child. According to O’Connell, this history implies that the mother in King could no longer recover for loss of her son’s services.

This argument rests on several mistakes. The defendant looks to Pierce’s Case, supra, for authority that workmen’s compensation is the sole remedy for a deceased employee’s dependents. In fact, the original basis for that proposition is McDonnell v. Berkshire St. Ry., 243 Mass. 94 (1922). The King case was expressly stated to be of “no pertinency to the facts here disclosed.” Id. at 96. Moreover, G. L. c. 152, § 68, inserted by St. 1911, c. 751, Part I, § 4, states that the wrongful death statute, G. L. c. 229, § 2B, does not apply to employees of employers covered by the provisions of G. L. c. 152. According to G. L. c. 152, § 1 (4), dependents of a deceased employee are “employees” under the compensation act. Thus, G. L. c. 152, § 68, deprives them of a remedy against such employers under the wrongful death act. As the McDonnell court recognized, the King rule has no application in this context. The court in King said its rule would not apply when the Legislature expressly withdrew such rights. See King, supra at 425.

Unlike recipients of death benefits, who receive direct payments, the mother in King would not receive direct payments herself as a matter of right. Also, she would not have had a chance to give notice to preserve her common law rights under § 24. It follows that the status of the mother’s right of action in King would be unsettled at best under the present Workmen’s Compensation Act. We find nothing in G. L. c. 152, § 35A,²⁷ indicating that the Legislature intended to overrule King 28 The employer next argues that application of the King rule in the present case would create an anomaly. According to O’Connell, dependents of injured employees could recover for loss of consortium, but dependents of deceased employees could not.

We acknowledge that G. L. c. 152, §§ 1 (4) and 68, bar a deceased employee’s dependents from recovering under G. L. c. 229, §§ 2 and 2B, for loss of consortium, as against an employer covered by G. L. c. 152. Furthermore, we recognize that the dependents of a deceased employee generally suffer more severe loss of consortium than dependents of an employee who is merely injured. Nevertheless, we point out that dependents entitled to death benefits enjoy all of the advantages available to any injured employee under the act. Although dependents of an injured employee seeking damages for loss of consortium may have a chance for a large award, they must litigate the issue of fault and prevail against common law defenses. There is no certainty they will recover. It would not be unreasonable for the Legislature to have granted the more certain remedy of workmen’s compensation to families of deceased employees. Furthermore, the two classes of dependents have never been treated with perfect parity. As O’Connell implicitly admits, death benefits paid to dependents have been available since 1911, St. 1911, c. 751, yet dependency benefits to injured employees did not become available until 1945. St. 1945, c. 717. Thus, the Legislature may have chosen to continue the historical pattern of different treatment for the two classes.

Rejecting the defendant’s arguments,²⁹ we conclude that the rule of King v. Viscoloid Co., supra, governs the present case. The Workmen’s Compensation Act does not bar the plaintiffs’ claims for loss of consortium and society.³⁰

4. The plaintiffs’ claims for negligent infliction of mental distress stand on the same footing as the claims for loss of consortium and society. We find no Massachusetts cases in which members of an employee’s family sought damages from a subscribing employer for emotional harm caused by injury to the employee in the course of employment. The defendant cites no authority from any court holding that a workmen’s compensation statute bars actions of that type. Cf. Diebler v. American Radiator & Standard Sanitary Corp., 196 Misc. 618 (N.Y. Sup. Ct. 1949); Price v. Yellow Pine Paper Mill Co., 240 S.W. 588 (Tex. Civ. App. 1922) (family member can recover for physical and emotional harm caused by employer’s independent act following injury to employee). See also Foley v. Polaroid Corp., post 545 (1980) (barring employee action for intentional infliction of mental distress). We conclude that the King rule applies to the plaintiffs’ claims for negligent infliction of mental distress, and those claims are not barred.

5. The judge’s ruling denying the motion for summary judgment on the claims for loss of consortium and society (par. I, [5], of his report) is affirmed. His ruling allowing the motion for summary judgment on the claims for mental anguish and impaired health (par. I, [6], of his report) is reversed. The case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.

2 See Diaz v. Eli Lilly & Co., 364 Mass. 153, 154 (1973); Note, The Child’s Right to Sue for Loss of a Parent’s Love, Care and Companionship Caused by Tortious Injury to the Parent, 56 R.U.L. Rev. 722, 724 (1976).

3 The most recent abduction action to reach this court appears to be Rice v. Nickerson, 9 Allen 478 (1864). The most recent seduction action to reach this court appears to be Thibault v. Lalumiere, 318 Mass.. 72 (1945) (female employee’s action for seduction by employer).

4 Prosser points out an even earlier basis for an abduction action: a writ “giving an action for the taking away of an heir, which apparently was based upon the pecuniary loss to the parent of the heir’s marriage prospects, and so did not apply to any other children.” W. Prosser, Torts, § 124 at 882 (4th ed. 1971). See Barham v. Dennis, 78 Eng. Rep. 1001 (C.P.1600).

5 We find no Massachusetts cases in which a mother attempted to recover in a common law abduction or seduction action. Cf. Worcester v. Marchant, 14 Pick. 510 (1834) (widowed mother, since remarried, may not recover in statutory abduction action). However, at least after the enactment of the married women’s acts, current version at G. L. c. 209, §§ 1-13, the father’s death or desertion permitted the mother to sue for loss of services and consequential damages resulting from personal injury to her minor child. King v. Viscoloid Co., 219 Mass. 420 (1914). Torn-roos v. R.H. White Co., 220 Mass. 336 (1915). Horgan v. Pacific Mills, 158 Mass. 402 (1893). In some jurisdictions, a mother could also recover for loss of services of an illegitimate son. W. Prosser, supra, § 125, at 891.

6 In Dennis v. Clark, 2 Cush. 347 (1848), the father sought consequential damages for expenses incurred in his son’s care and for his own and his family’s mental suffering. The trial judge nonsuited the plaintiff. This court reversed, sustaining the claim for expenses, but saying nothing about the claim for mental suffering. Apart from the Dennis decision, we find no early Massachusetts authority in which a parent even sought damages for sentimental harm resulting from injury to his child.

7 At common law, a husband was entitled to damages for loss of his wife’s consortium in actions for alienation of affections, criminal conversation, and intentional or negligent infliction of personal injury. Diaz, supra at 154-155. Before Diaz, a wife could recover for loss of the husband’s consortium in actions for alienation of affections and criminal conversation, but not for injuries to the husband. Id. at 156. By contrast, a parent has been denied recovery for alienation of his child’s affections. Ronan v. Briggs, 351 Mass. 700 (1966). And as our previous discussion indicates, a parent could receive damages for loss of his child’s society in an action for abduction, and perhaps in an action for seduction. However, the parent could not recover such damages in an action involving intentional or negligent injury to the child. See, e.g., Grant v. Crook, 468 F. (D. Mass. 1979). But see, e.g., Yordon v. Savage, 279 So. 2d 844, 846 (Pia. 1973); Shockley v. Prier, 66 Wis. 2d 394 (1975). For compilations of cases and statutes upholding recovery, see Baxter v. Superior Court, 19 Cal. 3d 461, 464-465 n.1 (1977). Annot., 69 A.L.R.3d 553, 559-561 (1976). We need not consider today the scope of the parent’s right.

8 “We may observe that, in these relative injuries [i.e., injuries to the master-servant, husband-wife and parent-child relationships], notice is only taken of the wrong done to the superior of the parties related, by the breach and dissolution of either the relation itself, or at least the advantages accruing therefrom; while the loss of the inferior by such injuries is totally unregarded. One reason for which may be this: that the inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior; and therefore the inferior can suffer no loss or injury.” 3 W. Blaekstone, Commentaries 142-143 (1768).

9 See Borer v. American Airlines, Inc., 19 Cal. 3d 441, 449-450 n.2 (1977), and cases cited. See generally Annot., 69 A.L.R.3d 528 (1976). See also Hinde v. Butler, 408 A.2d 668 (Conn. Super. 1979); Hickman v. Parish of East Baton Rouge, 314 So. 2d 486 (La. App. 1975); Rothv. Bell, 24 Wash. App. 92 (1979). Outside of Massachusetts, we count eighteen jurisdictions that currently deny recovery.

10 See, e.g., Hill v. Sibley Memorial Hosp., 108 F. Supp. 739, 741 (D.D.C. 1952); Borer v. American Airlines, Inc., supra at 453; Hankins v. Derby, 211 N.W.2d 581, 582 (Iowa 1973); Hoffman v. Dautel, 189 Kan. 165, 168-169 (1962); Russell v. Salem Transp. Co., 61 N.J. 502 (1972); Duhan v. Milanowski, 75 Misc. 2d 1078, 1084 (N.Y. 1973).

11 “It is not easy to understand and appreciate this reluctance to compensate the child who has been deprived of the care, companionship and education of his mother, or for that matter his father, through the defendant’s negligence.” W. Prosser, supra, § 125, 896-897. See Love, Tortious Interference with the Parent-Child Relationship: Loss of an Injured Person’s Society and Companionship, 51 Ind. L. J. 590 (1976); Note, The Child’s Right to Sue for Loss of a Parent’s Love, Care and Companionship Caused by Tortious Injury to the Parent, 56 B.U.L. Rev. 722 (1976); Comment, The Child’s Claim Appeal, 13 San Diego L. Rev. 231 (1975). See also 8 S.C.L.Q. 477 (1956); 2 St. Louis U.L.J. 305 (1953); 6 Vand. L. Rev. 926 (1953). Contra: 42 Cornell L.Q. 115 (1956); 54 Mich. L. Rev. 1023 (1956).

12 For reasons similar to those expressed in Diaz, we declare that, where a spouse’s claim for loss of consortium has been concluded by judgment or settlement or the running of limitations before this opinion is issued, no child’s action for loss of parental society thereafter instituted and arising from the same incident will be allowed, even if that action would not otherwise be barred by limitations. See Diaz v. Eli Lilly & Co., 364 Mass. 153, 167 (1973).

13 The plaintiffs’ complaint contains allegations of wilful, wanton, and reckless infliction of mental distress. However, neither the statement of agreed facts nor the plaintiffs’ brief contains anything to support the view that these are viable claims or claims that the plaintiffs press before us. We have not ruled on the validity of a claim for intentional infliction of mental distress through conduct directed at a third party. See Agis v. Howard Johnson Co., 371 Mass. 140 (1976); George v. JordanMarsh Co., 359 Mass. 244, 253 (1971). Compare Restatement (Second) of Torts § 46 (1) (1965) with § 46 (2). We do not reach the issue today.

14 See generally L. Locke, Workmen’s Compensation § 24, at 24 (1968).

15 General Laws c. 152, § 24, as amended through St. 1955, c. 174, § 5, provides in pertinent part: “An employee 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, written notice that he claimed such right, or, if the contract of hire was made before the employer became an insured person or self-insurer, if the employee shall not have given the said notice within thirty days of the time said employer became an insured person or a self-insurer.”

16 General Laws c. 152, § 23, as amended through St. 1953, c. 314, § 6, 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.”

17 The principle that the compensation act should not bar a person from asserting rights at law unless he waived his rights also appears in Reidy v. Old Colony Gas Co., 315 Mass. 631 (1944). In that death action, only some of the dead employee’s beneficiaries were receiving compensation. The court held that the nondependent children had not had an election under G. L. c. 152, § 15, as appearing in St. 1929, c. 326, § 1. Therefore, their rights could not be subordinated to those of the insurer.

18 General Laws c. 152, § 66, abolishes an employer’s common law defenses in employee suits for injuries sustained in the course of employment. “The purpose ... is to place the employee of an employer who is not a subscriber under the workmen’s compensation’ act as nearly as possible in the same position as is the employee of an employer who is a subscriber.” Zarba v. Lane, 322 Mass. 132, 134 (1947). See Barrett v. Transformer Serv., Inc., 374 Mass. 704 (1978). Only employers participating in the compensation system are entitled to raise such defenses as the fellow servant rule. G. L. c. 152, § 67. However, in Zarba, the court permitted even a nonsubscribing employer to raise the fellow servant defense against a nonemployee plaintiff.

19 In addition, application of the King rule will not result in wholly indeterminate liability for employers. Although actual liability may be harder to predict than costs under the Workmen’s Compensation Act, employer losses will probably be capable of actuarial prediction, and insurance will probably be available.

20 Even if that language were ambiguous, the legislative history of G. L. c. 152, § 24, would support a strict interpretation of the phrase, “[a]n employee . . . shall be held to have waived his right of action at common law. . . .” St. 1911, c. 751, Pt. I, § 5. In 1911, the Governor’s Commission on Compensation for Industrial Accidents submitted three different drafts of a workmen’s compensation act. 1911 House Doc. No. 1925. One of those drafts contained the language eventually enacted. The other two, however, contained a much broader exclusivity provision: “The right to compensation and the remedy therefor herein granted shall be in lieu of all rights and remedies now existing either at common law or under [certain statutes], and such rights and remedies shall not accrue to employees entitled to compensation under this act while it is in effect.” Our Legislature chose the narrow version.

21 1911 House Doc. No. 300; 1912 House Doc. No. 346. Report of the Massachusetts Commission on Compensation for Industrial Accidents (July 1, 1912) (unnumbered). 1917 Senate Doc. No. 370. 1927 House Doc. No. 999. 1947 House Doc. No. 1803. 1948 Senate Doc. No. 427. 1949 Senate Doc. No. 580. 1954 Senate Doc. No. 760.

22 St. 1943, c. 529.

23 St. 1912, c. 666, § 2. St. 1927, c. 309, § 2. St. 1943, c. 529, § 6. St. 1955, c. 174, § 5.

24 For example, the defendant looks to Smither & Co.v. Coles, 242 F.2d 220, 222 (D.C. Cir.), cert, denied, 354 U.S. 914 (1957), which we cited in Diaz v. Eli Lilly ér Co., 364 Mass. 153, 165 n.42 (1973). In Smither the court held that the District of Columbia workmen’s compensation statute bars a wife’s action for loss of consortium of her employee husband. The court construed D.C. Code 1951, § 36-501, which adopted the Longshoremen’s and Harbor Workers Compensation Act, 33 U.S.C. §§ 901 et seq. (1976). Section 5 of that act, 33 U.S.C. § 905, inserted by March 4, 1927, c. 509, § 5, 44 Stat. 1426, then provided: “The liability of an employer . . . shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer ... on account of such injury or death.” This statute expressly bars a wife’s action arising from the injury of her employee husband. The dramatic difference in language between the District of Columbia statute and G. L. c. 152, § 24, explains why the Smither court did not follow the King rule. It also indicates that Smither has limited persuasive value for our decision today.

25 Allen v. Trester, 112 Neb. 515 (1924). LaBonte v. National Gypsum Co., 110 N.H. 314 (1970). Roxana Petroleum Co. v. Cope, 132 Okla. 152 (1928). Silurian Oil Co. v. White, 252 S.W. 569 (Tex. Civ. App. 1923). New Hampshire and Texas have since amended their statutes to forbid ac-tians for loss of consortium and loss of services. See O’Keefe v. Associated Grocers of New England, Inc., 117 N.H. 132 (1977); Martin v. Southland Corp., 463 S.W.2d 471 (Tex. Civ. App. 1971). See also Garrett v. Reno Oil Co., 271 S.W.2d 764 (Tex. Civ. App. 1954).

The employer points to Danek v. Hommer, 14 N.J. Super. 607 (1951), aff’d 9 N.J. 56 (1952), as a decision arising under a statute similar to ours, but reaching a result opposite to that which we reach today. The court held that N.J. Stat. Ann. § 34:15-8 (West) barred a husband’s action for loss of consortium. Assuming that it is fair to characterize this provision as similar to G. L. c. 152, § 24, Danek is still distinguishable from the present case. New Jersey had long before relied on a peculiarity of its statute as grounds for rejecting the King rule. Buonfiglio v. R. Neumann & Co., 93 N.J.L. 174 (1919). Unlike the situation we face today, the Danek court did not face a well-established body of precedent favoring third-party actions for loss of services or consortium.

26 We are mindful that legislative inaction following a judicial interpretation of a statute provides frail evidence that the Legislature approves of the court’s interpretation. We do not know whether the Legislature has been aware of the rule of King v. Viscoloid Co. during the years since 1914. However, relatively frequent legislative attention to the workmen’s compensation statute and to § 24, the unusual language of § 24, and the prominence of King in scholarly commentary provide some evidence of legislative approval. 2A C. Sands, Sutherland Statutory Construction § 49.10, at 261-262 (4th ed. 1973).

27 The defendant seems to argue that the Ferriter dependents’ eligibility for dependency benefits bars the plaintiffs’ actions. Nevertheless, in support of this argument, the defendant points to no section of the statute other than § 35A. That section says nothing about limiting common law rights.

The defendant also points out that Michael Ferriter receives no dependency benefits because his compensation payments, apart from dependency benefits, exceed the statutory limit. G. L. c. 152, § 35A. The defendant argues that the Ferriter dependents should be treated no differently from dependents of employees who actually receive benefits. According to the defendant, mere eligibility is sufficient.

We agree with the defendant that it is irrelevant whether Michael Fer-riter actually receives benefits under § 35A. However, even if he were receiving such benefits, G. L. c. 152 would not bar the actions before us. General Laws c. 152, § 23, applies only to an employee who accepts compensation payments. The Ferriter wife and children are not employees. Thus, an employee’s receipt of benefits under § 35A would not bar the claims of a spouse or child for loss of the employee’s consortium or society.

28 The defendant seeks support from Liberty Mut. Ins. Co. v. Westerlind, 374 Mass. 524 (1978). In that case, an insurer standing in an employee’s shoes sued a third party under G. L. c. 152, § 15. The defendant there sought to implead the employer for contribution. We held that the defendant would not be entitled to contribution even if the employer had been negligent. O’Connell sees the Westerlind decision as evidence that “it is difficult to conceive of any party with common-law or statutory rights deriving from an injury to an employee which do not come within . . . the Workmen’s Compensation Act.”

Westerlind, however, depended upon construction of the Massachusetts contribution statute, G. L. c. 231B, § 1 (a), which requires that the potential contributor be “directly liable to the plaintiff.” Westerlind, supra at 526. Because the employee had accepted compensation payments, G. L. c. 152, § 23, absolved the employer of liability to the employee. Therefore, the employer could not be liable for contribution. The court did not articulate a broad principle that any third party action against an employer falls unless the employee himself could have recovered against the employer. Westerlind merely construed a statute not applicable to the case before us.

29 The employer makes one final attack upon application of the King rule. O’Connell argues that the plaintiffs’ actions are derivative; i.e., they stand or fall with Michael Ferriter’s claim. According to O’Connell, because the Workmen’s Compensation Act bars Michael Ferriter’s claims for personal injuries, the plaintiffs’ actions must fall. In support of this analysis, the employer points to our “recognition” in Diaz of the derivative character of a wife’s loss of consortium claim: “ The consortium claim . . . has been treated as so far derivative . . . that contributory negligence of the spouse who suffered the physical injuries is held to bar the plaintiff’s claim . . . .” Diaz, supra at 157 n.14. The employer also cites Thibeault v. Poole, 283 Mass. 480, 486 (1933). There we said that a husband could not recover consequential damages resulting from an injury to his wife if his wife had been contributorily negligent.

This argument is misconceived. The label “derivative” tells little about the state of affairs it purports to describe. Our remark in Diaz, placed in context, points out that in some jurisdictions the contributory negligence of an injured spouse bars the other spouse’s loss of consortium claim. We also noted that the injured spouse’s negligence has been held to reduce recovery in a comparative negligence State. Diaz, supra, n.14 at 157. The issue is open in Massachusetts. We cited Thibeault v. Poole, supra, to show that this court has applied a similar principle in the analogous context of a husband’s action for consequential damages.

To answer the defendant’s argument, we need only point to King v. Viscoloid Co. and its progeny. In actions for loss of services or consequential damages, we have consistently treated the employer’s workmen’s compensation defense differently from the defense that the employee was contributorily negligent.

30 The statement of agreed facts suggests that further proceedings in this case may necessitate determination whether the fellow servant rule is still vital in this Commonwealth. See, e.g., Zarba v. Lane, supra. As neither party has briefed that issue, we do not decide it.