Anderson v. Qualey
| Decision Date | 31 October 1913 |
| Citation | 216 Mass. 106,103 N.E. 90 |
| Parties | ANDERSON v. QUALEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Stebbins Storer & Burbank, of Boston, for plaintiff.
Walter I. Badger and Wm. Harold Hitchcock, both of Boston, for defendant.
On September 4, 1908, Tyko Robert Eronen was injured while working for the defendant. On July 14, 1909, the plaintiff was appointed administrator of his estate and on August 25 1909, brought this action to recover damages for conscious suffering and also to recover for his death on behalf of his mother who was dependent upon him for support. To this the defendant pleaded (inter alia) a release dated July 1, 1909 given by one Spillane, who the defendant alleged was 'duly appointed administrator of the estate of Robert Eronen, otherwise known as Tyko Robert Eronen.' By a special replication the plaintiff (inter alia) denied that Spillane was 'duly appointed administrator of the estate of Robert Eronen, otherwise known as Tyko Robert Eronen,' and further alleged 'that any release executed by said Spillane to the defendant was made and executed by reason of fraudulent collusion between said Spillane and the defendant.'
At the trial it would seem that no requests for rulings were made by the plaintiff and no exception was taken to the charge of the presiding judge. Two questions were submitted to the jury, namely:
(1) 'Was Robert Eranen, named in the letter of administration to Maurice P. Spillane, the same person as Tyko Robert Eronen, the plaintiff's intestate?' To which the jury answered, 'Yes.' (2) 'Was the plaintiff's intestate commonly known by the name of Robert Eronen?' To which the jury answered, 'No.' On these answers being made the judge directed the jury to find a verdict for the defendant. To this ruling the plaintiff took the exception which is now before us.
It is not necessary to consider the plaintiff's contention that the release pleaded by the defendant was obtained by collusion, for we are of opinion that the judge was wrong in ruling (as he in effect did rule) that as matter of law Spillane was the 'duly appointed administrator of the estate of Robert Eronen, otherwise known as Tyko Robert Eronen.'
The evidence on the validity of Spillane's appointment as administrator of the estate of the deceased was as follows: He was appointed administrator of the estate of 'Robert Eranen.' The 'petition and letter of appointment' were introduced in evidence, but no copy of them appears in the record before us. Spillane testified: McKay, the attorney employed by Spillane to bring suit for the accident which happened to the deceased, testified: The defendant also introduced in evidence And 'the plaintiff and another witness qualified as experts on the Finnish language and testified that the name 'Eranen' would not be a Finnish name because of the presence of the letter 'a' in the way it appeared in 'Eranen,' and that it would not be recognized as a Finnish name by a Finn.'
It is stated in it that the bill of exceptions contains all the material evidence bearing on the exceptions.
When a writ is served on the person intended and there is a mistake in his name, the mistake is not fatal if the defendant does not plead the misnomer in abatement. Such are the cases of Trull v. Howland, 10 Cush. 109, 57 Am. Dec. 82; Root v. Fellowes, 6 Cush. 29; Sanford v Hodges, 11 Gray, 485, relied on by the defendant. But in other cases the rule is different. Where service of a writ naming 'S. F. Leonard' as defendant was made by leaving a copy at the last and usual place of abode of 'Leonard Salentine,' the person intended to be sued, it was held that an action on a judgment rendered on default could not be maintained against 'Leonard Salentine.' Fitzgerald v. Salentine, 10 Metc. 436. It was held in Parker v. Parker, 146 Mass. 320, 15 N.E. 902, that the deposition of 'E. T. Shepard' taken on interrogatories addressed to, and under a commission to take the deposition of, 'E. S. Shepard,' could not be read at the trial, although it was intended to take the deposition of 'E. T. Shepard' and 'E. T. Shepard' was the person whose deposition was taken. In Slasson v. Brown, 20 Pick. 436, it was held that a notice of intention to take the poor debtor's oath addressed to 'Ebenezer B. Slasson' when it should have been addressed to 'Edward B. Slasson,' was not good although served on Edward's attorney as Edward's attorney and although it was proved that Edward B. Slasson was the only client the attorney had by the name of Slasson. In Com. v. Hall, 3 Pick. 262, it was held that 'Charles Jones Hall' could not be fined for neglecting to appear...
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Commonwealth v. Snow
...as proved would have been fatal. The middle name or initial is part of the name. Commonwealth v. McAvoy, 16 Gray, 235;Anderson v. Qualey, 216 Mass. 106, 109, 103 N. E. 90, and cases cited. It was held in Commonwealth v. Buckley, 145 Mass. 181, 13 N. E. 368, 369, that the ‘name of the person......
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...or other fatal error appears affirmatively upon the record of that court. Jochumsem v. Suffolk Savings Bank, 3 Allen, 87;Anderson v. Qualey, 216 Mass. 106, 103 N. E. 90;Pierce v. Prescott, 128 Mass. 140. This aspect of the case at bar is precisely governed by Crocker v. Crocker, 198 Mass. 4......
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