Herlihy v. Little

• Decision Date: 25 November 1908
• Parties: HERLIHY CRANE v. LITTLE et al. CRANE v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 284

86 N.E. 294

HERLIHY CRANE v. LITTLE et al. CRANE v. SAME.

Supreme Judicial Court of Massachusetts, Essex.

November 25, 1908

COUNSEL

Starr Parsons, H. Ashley Bowen, and John Ingraham, for plaintiffs.

Walter I. Badger and Wm. Harold Hitchcock, for defendants.

OPINION

RUGG, J.

These two actions were brought in the name of the personal representatives respectively of Mary F. Herlihy and of Benjamin O. Crane. The declaration in the Herlihy Case contained four counts, each alleging, in substance, that the plaintiff was the administratrix of Mary F. Herlihy and that her intestate, by reason of specified negligence, in the first count, was 'mortally wounded and killed'; in the second, 'was greatly injured and died in consequence thereof'; and, in the third and fourth, was riding in an elevator, which fell 'thereby inflicting great injury * * * on the * * * intestate, in consequence of which injury she died.' The notice given under Rev. Laws, c. 106, § 75 stated that the death was preceded by conscious suffering. At the trial the plaintiff, Herlihy, moved to amend her writ by striking out the words indicative of her representative capacity, and by inserting, as descriptive of her, words of nearest kinship to the deceased and of dependency for support upon her wages, and to amend the declaration so as clearly to allege a cause of action under Rev. Laws, c. 106, § 73. The action thus set out after the amendment was by the dependent next of kin for the death, instantaneous or not preceded by conscious suffering, of her intestate. This amendment was allowed against the exception of the defendants, who contend that upon this record the court had no power to allow such an amendment. Rev. Laws, c. 173, § 48, empowers the superior court to allow any amendment which will enable an action to be maintained for the cause for which it was originally intended to be brought. The court has no power to allow an amendment, which will introduce a new cause of action not intended at the time the writ was sued out. Silver v. Jordan, 139 Mass. 280, 1 N.E. 280. It is possible that the writ and declaration as originally framed set forth a cause of action under Rev. Laws, c. 106, § 72, for the recovery of damages for conscious suffering followed by death. But it does not unequivocally state conscious suffering, and, narrowly construed, asserts no such claim, while it does distinctly allege death as the result of the injury. At best it is doubtful on its averments whether the death was preceded by conscious suffering or not. It may be assumed that a cause of action under section 72, Rev Laws, c. 106, is a different cause of action from the one under section 73 of the same chapter. The notice given under Rev. Laws, c. 106, § 75, sets forth death and preceding conscious suffering, but such statements necessarily preceding, and perhaps by a considerable time, the commencement of the action, are of slight consequence in determining the plaintiff's intent at the time of suing out the writ or drafting the declaration. The fact that the action was brought in the name of the administratrix of the deceased is some indication of an intent to proceed under section 72, but it is by no means conclusive, and amendments are often allowed to correct a mistake in this respect. Hutchings v. Tucker, 124 Mass. 240; Adams v Weeks, 174 Mass. 45, 54 N.E. 350; Silva v. New England Brick Co., 185 Mass. 151, 69 N.E. 1054; Drew v. Farnsworth, 186 Mass. 365, 71 N.E. 783. The allowance of the amendment made certain which section of the statute was relied upon, and cleared up what was before doubtful upon the pleadings. Hence it cannot be said as matter of law on this record that it introduced a new cause of action. If it be suggested that something occurred outside the record, it must be assumed that the trial court before allowing the amendment was satisfied upon what appeared before him that the cause of action intended to be brought was for the recovery of death without conscious suffering. The circumstances under which this finding was made are not reported, and hence cannot be reviewed. St. 1908, p. 415, c. 457, was enacted too recently to be applicable to this case.

In the Herlihy Case it is argued that because the notice required by the employers' liability act was given by the administratrix, and contained the statement that the deceased 'received personal injuries resulting in death preceded by conscious suffering,' it will not support an action for death without conscious suffering. While the giving of a sufficient statutory notice is a condition precedent to a recovery, such a notice is not to be construed with technical refinement. Especially is this true when no counter notice is given as provided in Rev. Laws, c. 106, § 75, and chapter 51 § 22. A description of the injury is not required. The purpose is to give to the employer information as to its time, place, and cause, not to advise him specifically as to its details or effects. Carroll v. N. Y., N.H. & H. R. R., 182 Mass. 237, 65 N.E. 69. By the present notice the defendants were informed of death as the result of the injury and of its time, place, and cause. The plaintiff was not required to give any further information. Amplification,...