Boudreau v. New England Transp. Co.

• Decision Date: 01 February 1944
• Citation: 315 Mass. 423,53 N.E.2d 92
• Parties: BOUDREAU v. NEW ENGLAND TRANSP. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 423

53 N.E.2d 92

BOUDREAU

v.NEW ENGLAND TRANSP. CO.

Supreme Judicial Court of Massachusetts. Suffolk.

Feb. 1, 1944.

Exceptions from Superior Court, Suffolk County; Fosdick, Judge.

Action by Maria Boudreau, administratrix, against New England Transportation Company to recover for the death of the plaintiff's intestate. On defendant's exception to allowance of amendments to the original declaration.

Exceptions overruled.

Before FIELD, C. J., and LUMMUS, QUA, and RONAN, JJ.

J. H. Baldwin, of Boston, for plaintiff.

J. J. Whittlesey, of Boston, for defendant.

QUA, Justice.

This is an action to recover for the death of the plaintiff's intestate, which occurred on September 2, 1939. The writ, dated July 15, 1940, and the declaration originally filed described the plaintiff as ‘administratrix of the estate of Charles L. Boudreau, late of Pawtucket, County of Providence, and State of Rhode Island.’ The declaration stated that the action was brought in behalf of the ‘heirs' of the deceased. The defendant answered by a general denial and an allegation of contributory negligence. From facts stated in the bill of exceptions it appears that when the action was brought the plaintiff had been appointed administratrix of the estate of the deceased in Rhode Island, and that on January 2, 1941, nearly six months after the action was brought, she was appointed special administratrix in this Commonwealth. After the latter appointment she was allowed to amend her writ by striking out the description of the plaintiff therein and by describing the plaintiff as the ‘special administratrix within this Commonwealth’ of the estate of the deceased, and to amend her declaration by alleging her appointment in this Commonwealth, by stating that the action was brought to the use of the next of kin instead of in behalf of the heirs, and by adding a specific reference to the Massachusetts death statute, G.L.(Ter.Ed.) c. 229, § 5, last amended by St.1941, c. 504, § 3. Both declarations alleged that the negligence of the defendant caused the death of the deceased. The original declaration contained a further allegation, omitted in the amended declaration, that the administratrix had been put ‘to loss and expense.’ The defendant excepted to the allowance of the amendments.

The defendant first contends that, since a foreign administrator cannot as such maintain an action in this Commonwealth (Brown v. Boston & M. R. R., 283 Mass. 192, 195, 186 N.E. 59;Old Colony Trust Co. v. Clarke, 291 Mass. 17, 23, 195 N.E. 758), the original writ was of no validity; that when the writ was taken out there was nobody who could bring the action; that it is like an action brought in the name of a dead person; that the action was ‘a mere nullity’ from the beginning; and that there was nothing to amend.

We think this contention unsound. It is provided by G.L. (Ter.Ed.) c. 231, § 30, that ‘If it is alleged in any civil action or proceeding that a party is an executor, administrator, * * * such allegation shall be taken as admitted unless the party controverting it files in court, within the time allowed for the answer thereto, or within ten days after the filing of the paper containing such allegation, a special demand for its proof.’ In this case it was alleged in the original writ and declaration that the plaintiff was the administratrix of the estate of the deceased. It was not alleged that she had been appointed in another State. The allegation must therefore be construed to mean that she was appointedin this Commonwealth and was qualified to bring the action. Langdon v. Potter, 11 Mass. 313, 314;Brigham v. Coburn, 10 Gray 329, 331. It does not appear that the defendant filed any special demand for proof as required by the statute. It answered generally to the writ and declaration. Consequently, by the terms of the statute, the allegation must be ‘taken as admitted,’ and the defendant cannot deny it at any later stage in the case. Not to take this position would be to fail to actord to the statute the effect which the Legislature intended it should have. No doubt the statute is predicated upon the belief that the allegations to which it refers are nearly always true, and that insistence upon their being proved at the trial is nearly always mere obstruction. Nevertheless, in order to make the statute effective it must be allowed to operate fully in those rare instances where the allegations are not true. In the absence of the demand for proof, a party who has alleged that he is administrator acquires, for the purposes of the action, a status equivalent to that of administrator. In Hirrel v. Lacey, 274 Mass. 431, 174 N.E. 679, an action under the death statute, it was held that the defendant could not rely upon ‘the narrow and technical but sound defense that the plaintiff was not administrator of the estate of the decedent at the time the writ was sued out,’ where there had been no demand for proof under the statute. 274 Mass. at page 436, 174 N.E. at page 680.

Even apart from any admission under G.L.(Ter.Ed.) c. 231, § 30, this is not a case where there was no plaintiff in existence when the action was brought. The plaintiff was a live person in whatever capacity she was acting or purporting to act. The question was whether she had the capacity to maintain the action. She could assert that she had and could bring the action and try the issue of her competency to maintain it. The action was therefore not a mere nullity but was from the first a genuine lawsuit and an adequate basis for an amendment alleging an appointment in the State of the forum when such appointment was secured. Before the enactment of what is now G.L. (Ter.Ed.) c. 231, § 30, and under the system of pleading before the practice act, it was held that the defence that one suing as administrator had been appointed only in a foreign State was...