Brooks v. Boston & Northern Street R. Co.
| Decision Date | 01 March 1912 |
| Citation | 211 Mass. 277,97 N.E. 760 |
| Parties | BROOKS v. BOSTON & N. ST. RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John J. O'Connor, for plaintiff.
Trull & Wier, for defendant.
The question is, whether an action for personal injuries can be maintained, which is brought after the death of the person injured and before the appointment of an executor or administrator in which the dead person is named as party plaintiff. The cause of action which accrued to Louise N Brooks during her life was not extinguished with her death but might have been prosecuted by her executor or administrator. R. L. c. 171, § 1. The writ is dated about 17 months after her death and 8 months before the appointment of the administrator of her estate. Nothing further appears as to the human agency by which the alleged action was instituted except that a declaration filed long after her death and long before the appointment of her administrator is signed by an attorney.
An action at law implies, by its very terms, the existence of a person who has the right to bring the action. Patterson v. Patterson, 59 N.Y. 574-578, 17 Am. Rep. 384. It is axiomatic that a corpse is not a person. That which constitutes a person is separated from the body by death and that which remains is 'dust and ashes,' sacred to kin and friends, whose feelings and rights in this regard receive the protection of the law, but having no inherent capacity. Feeley v. Andrews, 191 Mass. 313, 77 N.E. 766. No harshness is wrought by this rule for from early times our statute of limitations has made some provision for extension in the event of death of a person entitled to bring an action (see R. L. c. 202, § 10, and marginal annotations), and the law also allows a special administrator, who may be appointed at any time without notice, to bring actions (see R. L. c. 137, § 10).
It is urged, however, that under our statute allowing amendments, the administrator now appointed may be substituted as party plaintiff. The essential words of that statute, R. L. c. 173, § 48, are that 'the court may allow any other amendment in matter of form or substance in any process, pleading or proceeding which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought.' This language in plain words indicates the existence of a real plaintiff as the original instigator of the action. It gives no countenance to the idea that something phantasmal and visionary may be given a body and a substance by the aid of subsequent events. It pre-supposes a plaintiff. Here there was no plaintiff. It assumes an intent. The amendment must be bottomed on an intent contemporaneous with the bringing of the action. But one who is dead cannot have an intent in any earthly sense.
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