Church v. Boylston & Woodbury Cafe Co.
| Decision Date | 15 June 1914 |
| Citation | 218 Mass. 231,105 N.E. 883 |
| Parties | CHURCH v. BOYLSTON & WOODBURY CAFE CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W. W. Clarke, of Boston, and C.J. Muldoon, Jr., of Somerville, for plaintiff.
Dickson & Knowles, of Boston, for defendant.
The plaintiff's intestate, George W. MacDonald, by writ dated March 7, 1910, brought an action in the superior court for personal injuries alleged to have been sustained by him by reason of the negligence of the defendant.
MacDonald died during the pendency of the action, and the plaintiff was duly appointed administratrix of his estate and, having suggested his death, entered her appearance in the case and filed a motion to amend the declaration by adding a count in which she seeks to recover for the death of her intestate under R. L. c. 171, § 2; St. 1907, c. 375; St. 1911, c. 31. The motion to amend has been allowed.
The sole question presented is whether as matter of law it was within the power of the superior court to allow the amendment.
The statute authorizing amendments (R. L. c. 173, § 48) is very broad and under it any amendment in matter of form or substance may be allowed which may enable a plaintiff 'to sustain the action for the cause for which it was intended to be brought.'
It is also provided by statute that 'the allowance by the court of an amendment shall be conclusive evidence of the identity of the cause of action.' R. L. c. 173, § 121.
The court had power to allow an amendment to enable the plaintiff to maintain the action for the cause for which it was originally intended to be brought, but it had no power to bring in a new cause of action not intended when the writ was sued out. The amendment sets forth a cause of action under a statute that is penal in its nature. It was a cause of action which not only did not exist during MacDonald's lifetime and could not arise until after his death, but it is not brought for his benefit nor that of his estate. Cripp's Case, 216 Mass. 586, 104 N.E. 565.
It follows as matter of law that MacDonald could not have intended to bring the action originally for his own death. Hence as matter of law, the superior court had no power to allow an amendment to add a count to the original cause of action, alleging his death and claiming recovery therefor. See Herlihy v. Little, 200 Mass. 284-289, 86 N.E 294; Strout v. United Shoe Machry. Co., 215 Mass 116, 119,...
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...This is the plain effect of the words of the statute quoted above. It has been expressly so decided. Church v. Boylston & Woodbury Café Co., 218 Mass. 231, 105 N. E. 883;Clark v. New England Tel. & Tel. Co., 229 Mass. 1, 6, 118 N. E. 348. The principle of adjusting in a final decree in equi......
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...This was held no bar to the amendment. The cases upon which the defendant relies are distinguishable. In Church v. Boylston & Woodbury Cafe Co., 218 Mass. 231, 105 N. E. 883, and Bowen v. Fairfield, 260 Mass. 38, 157 N. E. 39, the cause of action arose subsequent to the suing out of the wri......
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...like Peterson v. Waltham, 150 Mass. 564, 23 N. E. 236,Partridge v. Arlington, 193 Mass. 530, 79 N. E. 812,Church v. Boylston & Woodbury Cafe Co., 218 Mass. 231, 105 N. E. 883, and Knights v. Treasurer and Receiver General, 236 Mass. 336, 341, 128 N. E. 637, where the allowance of an amendme......
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