Brown v. Boston & M.R. Co.

• Decision Date: 29 May 1933
• Citation: 283 Mass. 192,186 N.E. 59
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BROWN v. BOSTON & M. R. CO.

283 Mass. 192

186 N.E. 59

BROWN

v.BOSTON & M. R. CO.

Supreme Judicial Court of Massachusetts, Essex.

May 29, 1933.

Report from Probate Court, Essex County; Britton, Judge.

Action by Dana J. Brown, administrator, against the Boston & Maine Railroad Company. Verdict for defendant. On report.

Judgment for defendant.

A. V. A. Thomason, J. A. Hines, H. L. Miller, and C. S. Hartwell, all of Boston, for plaintiff.

F. P. Garland and J. DeCourcy, both of Boston, for defendant.

PIERCE, Justice.

This is an action of tort brought by the plaintiff as he is administrator of the estate of John S. Langille, late of Wolfeboro, Carroll county, New Hampshire, to recover for the conscious suffering and death of said John S. Langille which occurred on September 14, 1929, as the result of a collision between certain trains and locomotives of the defendant on the tracks of the defendant in Andover in the county of Essex and commonwealth of Massachusetts. John S. Langille at the time of his accident and death was a locomotive fireman in the employ of the defendant. At the opening of the case before the trial commenced, it was agreed between counsel that the defendant was a common carrier engaged in interstate commerce, and that the deceased was employed in such commerce at the time of his death. The defendant admitted at the trial that ‘there was sufficient evidence to warrant a finding of negligence on the part of the railroad, causing the death of John S. Langille.’ It appeared by uncontroverted evidence at the trial that the plaintiff, Dana J. Brown, was appointed administrator of the estate of John S. Langille on January 27, 1930, by the probate court for the county of Carroll in the state of New Hampshire; that the plaintiff ‘had accepted the duties imposed on him by virtue of that appointment; that John S. Langille, the party named in the papers, was a married man and left a widow, but no children or other dependents; that the widow is still living at Wolfeboro, New Hampshire.’ On cross-examination the plaintiff testified in substance that he could not say whether the deceased had been supporting his wife for a number of years prior to his decease; that he knew there had been some trouble [between them], that he did not know that it had been for a number of years, that it might have been about a year and that he did not know whether the deceased had been supporting his wife or not. Counsel for the plaintiff stated in open court that he had no further evidence on the issue of pecuniary loss and on the issue of the plaintiff's right to bring this action as administrator. Thereupon both parties rested. The defendant then duly presented a written motion for a directed verdict. The judge allowed the motion subject to the following stipulation: ‘If, on the record as it now stands, the plaintiff is entitled to maintain his action, judgment is to be entered for the plaintiff in the sum of $5,000; if, on the record as it now stands, the plaintiff is not entitled to maintain his action, judgment is to be entered for the defendant.’

On the material facts covered by the report and the record as it stands the plaintiff states the issue to be as follows: ‘Can a foreign administrator of intestate, killed through the negligence of defendant, prosecute his action to a conclusion when suing under the Federal Employers' Liability Act on behalf of widow of intestate after issue has been joined and trial started?’ and contends that this issue should be decided in the affirmative for the following reasons: (a) ‘A domiciliary administrator is the personal representative of his intestate within the meaning of the Federal Employers' Liability Act’; (b) ‘a domiciliary administrator is the proper party to bring suit to enforce the liability of a carrier under the Federal Employers' Liability Act’; (c) ‘by ‘maintaining an action’ is meant the right to prosecute it to a conclusion'; and (d) ‘any fact which impeaches the capacity of the plaintiff must be pleaded by answer in abatement, or it is waived.’

The present action is brought under the Federal Employers' Liability Act, 35 U. S. Sts. at Large, c. 149 (45 USCA §§ 51-59), the material parts of which read as follows: ‘Every common carrier by railroad while engaging in commerce between any of the several States or Territories, * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal...