Boudreau v. New England Transp. Co.

• Decision Date: 01 February 1944
• Parties: MARIA BOUDREAU, administratrix, v. NEW ENGLAND TRANSPORTATION COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 423

53 N.E.2d 92

MARIA BOUDREAU, administratrix, v. NEW ENGLAND TRANSPORTATION COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

February 1, 1944

November 5, 1943.

Present: FIELD, C.

J., LUMMUS, QUA & RONAN, JJ.

Practice, Civil Amendment, Parties. Pleading, Civil, Declaration, Admission of facts. Executor and Administrator, Action by personal representative.

An allegation in a writ and a declaration in an action of tort for causing death through negligence, that the plaintiff was "administratrix of the estate" of a nonresident without any statement as to the State in which she was appointed, must be construed to mean that she had been appointed in Massachusetts and was qualified to bring the action here. Failure by the defendant in an action to file within the time specified in

G. L. (Ter.

Ed.) c. 231 Section 30, a special demand for proof of an allegation by the plaintiff construed as meaning that she brought the action as administratrix of the estate of a nonresident appointed in

Massachusetts incontrovertibly established that allegation as the fact notwithstanding that in truth the plaintiff's appointment had been in another State.

An action, even if originally brought by an individual who merely alleged herself to be an administratrix, but in fact was such only by appointment in another State, was not a nullity from the beginning so as to prevent the court, upon a subsequent appointment of the same individual as administratrix in Massachusetts, from allowing an amendment designating her as such.

An action by the administratrix of the estate of a nonresident, with a declaration containing allegations that in a town in Massachusetts the intestate was struck and killed by a vehicle through negligence of the defendant, that the plaintiff was "put . . . to loss and expense" and that the action was brought "in behalf of the heirs of" the intestate, might properly be found to have been intended to be brought for recovery under the Massachusetts death statute, G. L. (Ter. Ed.) c. 229, Section

5, as amended, and an amendment showing specifically that the action was brought under that statute was not improper under c. 231, Sections 51,

138.

TORT. Writ in the Municipal Court of the City of Boston dated July 15, 1940.

The original declaration was as follows: "Now comes the plaintiff in the above entitled action and says that she is the duly appointed administratrix of the estate of Charles L. Boudreau, late of Pawtucket, County of Providence, and State of Rhode Island; that said suit is brought in behalf of the heirs of said deceased: that on or about September 2, 1939, said defendant was a corporation, owning, controlling and operating buses in connection with its business: that on or about September 2, 1939, said deceased, Charles L. Boudreau, while in the exercise of due care, was rightfully and lawfully walking on East Washington Street, in the Town of Attleboro, County of Bristol, and Commonwealth of Massachusetts: that then and there by reason of the negligence and carelessness of the defendant's agents or servants in charge of and operating said defendant's bus, said bus struck said deceased, Charles L. Boudreau, thereby causing the death of said deceased, and put said administratrix to loss and expense."

Upon removal to the Superior Court, an amendment of the writ and declaration was allowed by Fosdick, J., and the defendant alleged exceptions.

J. J. Whittlesey, for the defendant. J. H. Baldwin, for the plaintiff.

QUA, J. 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, Section 5, last amended by St. 1941, c. 504, Section 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 & Maine Railroad, 283 Mass. 192 , 195; Old Colony Trust Co. v. Clarke, 291 Mass. 17 , 23), 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, Section 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 appointed in 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 accord to the statute the effect which the Legislature intended it should have. No...