Silva v. New England Brick Co.

• Decision Date: 25 February 1904
• Citation: 185 Mass. 151,69 N.E. 1054
• Parties: SILVA v. NEW ENGLAND BRICK CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 151

69 N.E. 1054

SILVA v. NEW ENGLAND BRICK CO.

Supreme Judicial Court of Massachusetts, Bristol.

February 25, 1904

COUNSEL

Chas C. Hagerty and Fredk. S. Hall, for plaintiff.

Walter I. Badger and Wm. H. Hitchcock, for defendant.

OPINION

MORTON, J.

This is an action of tort under the employer's liability act, so called, brought by the plaintiff, as administrator of the estate of Linnel Da Cunha, who was killed by the caving in of a bank of clay in the brickyard of the defendant, where he was employed. Due notice of the time, place, and cause of injury were given as required by statute. The declaration alleges that the deceased was instantly killed, and at the trial it appeared that such was the case. Thereupon the defendant moved that a verdict be directed for it on the ground that the action could not be maintained by the administrator. The plaintiff moved to amend his writ by inserting as plaintiffs the names of the widow and children and alleging that they were dependent on his wages for support, and that the action was brought for their benefit. This motion was denied on the ground that it introduced a new cause of action, and the court had no power to allow it, and a verdict was ordered for the defendant. The plaintiff duly excepted to these rulings. The case is here on a report made by the presiding justice at the request of the parties. If the court had the power 'to allow the amendment, then appropriate amendment is to be made, and the case stand for trial. If not, judgment is to be entered on the verdict.'

We think that the court had power to allow the amendment. The declaration alleges in so many words 'that said deceased left no widow, but three children, for whose use and benefit this action is brought.' This, taken in connection with the further allegation that the deceased was instantly killed, shows, it seems to us, that the cause of action intended to be relied on was the right of recovery given by the statute to the next of kin in cases of instant death. The fact that the death is alleged to have been instantaneous shows that the cause of action intended to be relied on could not have been the right that is given to the administrator to recover for death in cases where the death is not instantaneous, or where it is preceded by a period of conscious suffering. The mistake arose not in regard to the nature of the cause of action, but in supposing that the...