Clark v. New England Tel. & Tel. Co.

• Decision Date: 02 January 1918
• Citation: 118 N.E. 348,229 Mass. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CLARK v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.

229 Mass. 1

118 N.E. 348

CLARK

v.NEW ENGLAND TELEPHONE & TELEGRAPH CO.

Supreme Judicial Court of Massachusetts, Bristol.

Jan. 2, 1918.

Appeal from Superior Court, Bristol County; Hugo A. Dubuque, Judge.

Action by Stephen H. Clark, administrator, against the New England Telephone & Telegraph Company. From an order overruling defendant's demurrer to plaintiff's substituted declaration, as amended, defendant appeals. Appeal considered as part of defendant's bill of exceptions taken to verdict for plaintiff. Exceptions sustained.

John W. Cummings, Charles R. Cummings, and James W. Nugent, all of Fall River, for plaintiff.

Powers & Hall, of Boston, for defendant.

RUGG, C. J.

This action was begun in tort. The declaration contained several counts founded upon negligence of the defendant at common law, and under the Employers' Liability Act seeking to recover damages for the conscious suffering and death of the plaintiff's son. Thereafter he was permitted to amend his writ, so that the action would appear to be either in tort or contract, and to add a count to his declaration, sounding in contract and alleging in substance that the defendant had established and maintained and undertaken to administer an insurance fund for the benefit among others of the plaintiff's intestate, who, while an employé of the defendant, had lost his life by accident in the performance of his duties; and had agreed with him to pay to the plaintiff as his dependent father under the conditions which have arisen, a sum of money, but had refused to do so. The defendant excepted to the allowance of this amendment.

It is provided by R. L. c. 173, § 48, that the court may allow any amendment of form or substance, in process or pleading ‘which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought,’ and by section 121, that ‘the cause of action shall be considered to be the same for which the action is brought, if the court finds that it is the cause of action relied on by the plaintiff when the action was commenced however the same may be misdescribed; and the allowance by the court of an amendment shall be conclusive evidence of the identity of the cause of action.’ This is a remedial statute. It has been construed liberally. Mann v. Brewer, 7 Allen, 202;Herlihy v. Little, 200 Mass. 284, 86 N. E. 294;Upson v. Boston & Maine Railroad, 211 Mass. 446, 98 N. E. 32;Lowrie v. Castle, 225 Mass. 37, 113 N. E. 206. The power to allow amendments is not unlimited and cases arise where as matter of law a finding of identity of the cause of action is impossible. Brooks v. Boston & Northern Street Railway, 211 Mass. 277, 97 N. E. 760;Church v. Boylston & Woodbury Café Co., 218 Mass. 231, 105 N. E. 883. Cases may arise, also, where the evidence shows that finding of identity of the cause of action set out in the proffered amendment, with that intended when the action was instituted, would not be warranted. Silver v. Jordan, 139 Mass. 280, 1 N. E. 280. The basis in facts upon which this amendment was allowed by the judge in the case at bar is not set out in the record. It does not appear that there was a purpose at the time the action was brought to pursue the defendant in tort with a knowledge of the existence and character of the action in contract. Although it seems a great stretch to suppose such thoughtlessness, forgetfulness, or confusion of ideas as would induce one to institute an action of tort based on negligence when the cause of action intended was an action of contract growing out of beneficiary quasi-insurance established by the employer, it is not quite possible in the absence of any report of the evidence to say as matter of law that a finding to that effect is impossible. Strout v. United Shoe Machinery Co., 215 Mass. 116, 102 N. E. 312. If the ground for the allowance of the amendment was a ruling of law, that is not set forth in the record and hence cannot be reviewed.

The defendant moved to amend its answer by setting up an action of tort by the plaintiff against the Union Street Railway Company for its negligence in causing the death of the plaintiff's intestate and payment to him by that defendant of seventeen hundered dollars in settlement and release of the cause of action. While these allegations, if proved, would have barred the action in tort against this defendant, set out in several counts in the original declaration, Brewer v. Casey, 196 Mass. 384, 389, 82 N. E. 45, they constitute no defense to the action in contract upon which the case was tried. The denial of this motion was not error.

The case went to trial upon the count in contract alone. The plaintiff's intestate was an employé of the defendant and received injuries in the course of his work, from which he died without conscioussuffering. The evidence tended to show that the defendant had undertaken to establish, maintain and administer all at its own expense a fund known as the Employés' Benefit Fund, for the relief among others of dependent relatives of employés meeting death by accident occurring in and due to the performance of their work. The plan was comprehensive in scope, with many provisions, among which were the following.

‘1. There shall be a committee of five (5) appointed by the board to serve during its pleasure, which committee shall be charged with the administration of the plan and the fund hereby established. This committee shall be called the Employés' Benefit Fund Committee and shall be empowered to employ a secretary and such other assistants as may be required in the administration of the fund.’

‘3. The word ‘committee’ shall mean the persons appointed by the board to administer the Employés' Benefit Fund in accordance with approved regulations.'

‘33. Questions of fact arising in the administration of these regulations shall be determined conclusively for all parties by the committee.’

The ‘Obligation of the Company’ is stated in these words:

‘The obligation of the company is limited:

‘First: To safeguarding the sum already appropriated.

‘Second: To crediting said sum 4% per annum of the unexpended balance of the fund.

‘Third: To the appointment of a committee to administer the fund according to these regulations.

‘Fourth: To making payments out of the fund upon the order of the committee.

‘Fifth: To adding to the fund at the end of each fiscal year such amount as will restore it to the original amount, provided that such addition shall in no year exceed 2% of the company's pay-roll.’

These terms fix definitely the liability of the defendant. The obligation to make payments out of the fund was confined to such as were ordered by the committee. In this regard the stipulations of the plan were not unlike those sometimes found in building contracts respecting architects' certificates. Herbert v. Dewey, 191 Mass. 403, 77 N. E. 822;Loftus v. Jorjorian, 194 Mass. 165, 80 N. E. 235;Handy v. Bliss, 204 Mass. 513, 90 N. E. 864,134 Am. St. Rep. 673;Hathaway v. Stone, 215 Mass. 212, 102 N. E. 461;Flint v. Gibson, 106 Mass. 391. The committee is made the quasi-arbitrator as to all claims against the fund. C. W. Hunt Co. v. Boston Elevated Railway, 199 Mass. 220, and cases collected at 227 and 228, 85 N. E. 446. Moreover, this was a fund supplied and kept up entirely by the defendant and administered at its own expense. The employés made no contribution to it. The case at bar is in this respect quite distinguishable from Miles v. Schmidt, 168 Mass. 339, 47 N. E. 115,Bauer v. International Waste Co., 201 Mass. 197, 202, 203, 87 N. E. 637,Lewis v. Brotherhood Accident Co., 194 Mass. 1, 79 N. E. 802,17 L. R. A. (N. S.) 714,White v. Middlesex Railroad Co., 135 Mass....