Bateman v. Wood

• Decision Date: 29 June 1937
• Citation: 297 Mass. 483,9 N.E.2d 375
• Parties: BATEMAN v. WOOD (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 483

9 N.E.2d 375

BATEMAN

v.WOOD (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

June 29, 1937.

Exceptions from Superior Court, Middlesex County; Williams, Judge.

Tort actions by Carolyn Bateman and by George H. Bateman against Florence M. Wood, administratrix. The defendant's pleas in abatement were sustained, and the plaintiffs bring exceptions.

Exceptions overruled.

S. H. Davis, of Boston, for plaintiffs.

E. J. Sullivan, of Boston, for defendant.

RUGG, Chief Justice.

The one of these actions of tort by the female plaintiff (hereafter called the plaintiff) is brought to recover compensation for personal injuries received by her in an automobile accident, and the other by her husband is brought to recover compensation for consequential damages. The cases come before us on a consolidated bill of exceptions to a ruling of the trial judge sustaining in each case the plea in abatement of the defendant. The facts material to the issues raised are these: The causes of action arose out of a collision which occurred on October 21, 1932, between an automobile truck owned and alleged to have been negligently operated by David M. Wood on a public highway and an automobile in which the plaintiff was a passenger. David M. Wood died intestate on May 17, 1933. The defendant, Florence M. Wood, was appointed administratrix of his estate on June 28, 1933, and gave notice of her appointment as then required by law. The writs were dated on September 5, 1933, and the intestate, although at that time dead, was named as defendant. The return of the officer upon the writs stated that he had summoned Florence M. Wood, administratrix of the estate of David M. Wood, to appear and answer ‘by giving a summons of this writ to her in hand.’ The summonses served upon the defendant were sent to the insurer of the automobile belonging to the intestate and counsel provided by that insurer appeared generally and on September 17, 1935, answered in the actions in behalf of David M. Wood in ignorance of the fact that he was dead. On September 27, 1935, motions to substitute the administratrix of the estate of the intestate as defendant were filed by the plaintiffs and were allowed. Since the allowance of those motions, no citations have been taken out requiring the defendant as such administratrix to appear and defend the actions. The time within which such citation may be taken out has expired under G.L.(Ter.Ed.) c. 228, § 4. On November 21, 1935, the counsel who had purported to appear generally for the intestate appeared specially for the administratrix and filed a plea in abatement of the writ in each action, setting forth in substance the facts heretofore recited. The plaintiff in each case excepted to an order sustaining the plea in abatement.

The provisions of G.L.(Ter.Ed.) c. 228, §§ 4 and 5, have no application to the facts here disclosed. Those provisions are restricted to cases where a party dies after the commencement of an action. In such cases, the executor or administrator of a deceased party may be required to come in by a citation issuing from the court, unless he appears voluntarily. Colt v. Learned, 133 Mass. 409, 411. Such citation cannot issue after the expiration of one year from the time such executor or administrator has given bond, if he has given notice as required by law. See now St. 1933, c. 221, § 7, amending G.L.(Ter.Ed.) c. 228, § 5. This rule prevails even though the opposing party has no knowledge of the death until after the statutory period has run. E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 111, 163 N.E. 883. It was agreed that all allegations of fact and all references to matters of record set out in the plea were true.

Where, as in the cases at bar, a party dies before any action has been commenced and the action is one which survives, the action should properly be commenced by or against the executor or administrator of the decedent. G.L. (Ter.Ed.) c. 230, § 1.

The precise question to be decided is whether actions against Florence M. Wood as administratrix, the present defendant, were commenced by the service on her of writs in which David M. Wood, her intestate, was named as defendant. The writ is the foundation of an action at law. Resort must be had to the writ to ascertain the parties. It and it alone describes the defendant. Eaton v. Walker, 244 Mass. 23, 30, 138 N.E. 798;Tyler v. Boot & Shoe Workers Union, 285 Mass. 54, 55, 188 N.E. 509.

The person named in these writs as defendant was dead. No such person existed. The actions were in truth against nobody. Sawyer & Manning v. New York State Clothing Co., 58 Vt. 588, 2 A. 483;Hayhurst v. J. Kenny Transfer Co., 110 W.Va. 395, 158 S.E. 506;Brooks v. Boston & Northern Street Railway Co., 211 Mass. 277, 278, 97 N.E. 760. Where a person intended to be sued is simply misdescribed in the writ, his remedy is by plea in abatement. Fitzgerald v. Salentine, 10 Metc. 436, 437, 438;Trull v. Howland, 10 Cush. 109, 113,57 Am.Dec. 82;Langmaid v. Puffer, 7 Gray, 378, 380, 381;Morrison County Lumber Co. v. Duclos, 131 Minn. 173, 154 N.W. 952. If, at the commencement of the action, it is intended that one person be sued and that person is named as defendant, service on a different person...