Sterling v. Frederick Leyland and Company, Limited

• Decision Date: 27 June 1922
• Citation: 242 Mass. 8
• Parties: PERCY L. STERLING, administrator, v. FREDERICK LEYLAND AND COMPANY, LIMITED.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 8

PERCY L. STERLING, administrator, v. FREDERICK LEYLAND AND COMPANY, LIMITED.

Supreme Judicial Court of Massachusetts, Suffolk.

June 27, 1922

December 7, 1921.

Present: RUGG, C.

J., BRALEY, DE COURCY, CARROLL, & JENNEY, JJ.

Practice, Civil Report by judge, Amendment. Jurisdiction. Superior Court. Workmen's Compensation Act, Procedure. Negligence Causing death. Limitations, Statute Of.

A judge of the Superior Court, who has heard a motion to dismiss, a plea in abatement and a demurrer in an action at law and has allowed the motion but has not acted upon the plea or the demurrer while he may report to this court for determination the propriety of his action as to the motion, has no jurisdiction to report questions relating to the plea or the demurrer.

An employee of a contractor died on November 2, 1916, as the result of exposure to poisonous fumigating gas in the hold of a steamship in navigable waters of the port of Boston. His widow filed a petition in the Superior Court on September 5 1917, to enforce in accordance with

St. 1911, e.

751, Part III, Section 11, as amended (see now G.L.c. 152,

Section 11), payment of a weekly indemnity under an agreement with the insurer filed with the Industrial Accident Board under the workmen's compensation act. No writ, summons or other process was issued on the petition but, after notice to the insurer, a decree awarding the widow compensation was ordered. On September 11, 1919, this court upon a bill of review vacated that decree. An administrator of the estate of the deceased employee was appointed on October 20, 1919, and on November 12,

1919, he filed a motion in the Superior Court that the petition be amended under R.L.c. 173, Section 48, into an action at law for death under St. 1907, c. 375, in which he should be plaintiff and the owner of the steamship the defendant. The motion was allowed without notice to the steamship owner and a summons was issued to it on November 15, 1919.

The defendant, appearing specially, filed a motion to dismiss, which was allowed. Held, that

(1) The motion to dismiss was allowed rightly; (2) The remedy under St. 1907, c. 375, and the proceeding under the work men's compensation act involved different parties, different procedure and different causes of action;

(3) An action for causing the death of the intestate could not be maintained because it was not begun within two years after the cause of action arose;

(4) The steamship owner, not having been brought into court under the statute under which alone it could be made liable, had a right to interpose the defence of the lapse of the time within which an action under the statute should have been brought;

(5) The court had no jurisdiction to allow the amendment permitting the change of the cause of action and of all the parties;

(6) The court had no jurisdiction to consider the action set forth in the declaration.

TWO ACTIONS OF TORT for the death of the plaintiff's intestates William E. Sterling and William L. Sterling alleged to have been caused on or about November 2, 1916, by poisonous gases accumulated through the negligence of the defendant in the hold of the steamship "Devonian" while lying in navigable waters in the port of Boston. Each action was commenced as a petition under the workmen's compensation act by the widow of the deceased, was amended into an action of tort and a summons was issued to the present defendant on November 15, 1919.

The defendant appeared specially and filed in each action a motion to dismiss. These motions were the same in substance. That filed in the action brought by the administrator of the estate of William L. Sterling alleged as grounds for dismissal the following:

That "it appears upon the record of this case that Percy L. Sterling was not appointed by the Probate Court administrator of the estate of said William L. Sterling within two years after the injury to said William L. Sterling, alleged to have caused his death, and that the action now sought to be maintained was not brought by the plaintiff as such administrator within two years after the injury to said William L. Sterling, alleged to have caused his death, as required by R.L.c. 171, Section 2, as amended by St. 1907, c. 375, providing that any action for death shall be commenced by the administrator of the deceased within two years after the injury which caused the death, which said statute the defendant relies on."

That "the petition of Maud M. Sterling which has been attempted to be amended into this action was filed in this court on or about September 5, 1917, on which date the said Percy L. Sterling had not been appointed administrator of the estate of

William L. Sterling, said appointment having been made October 20, 1919; and that if the allowance by this court of the amendment of the said petition into this action has any effect, it has the legal effect of making the date of the commencement of this action September 5, 1917, on which date the said Percy L. Sterling was not the administrator of the estate of William L. Sterling and could not bring this action."

That "this court was without jurisdiction of the said petition of Maud M. Sterling and that the said petition was void and a nullity and was not subject to be amended by this court into the action or suit now relied on or into any other action."

That "the said petition of Maud M. Sterling was neither an action at law nor a suit in equity within the meaning of R. L. c. 173, Section 52, as amended by St. 1911, c. 275, and was not subject to be amended by this court into the action or suit now relied on."

That "the cause of action now relied on is not the same cause of action as that for which the said petition of Maud M. Sterling was brought and that said petition is not under or by virtue of the last named statute as amended, subject to be amended into the cause of action now relied on."

That "the parties to the said petition of Maud M. Sterling are not the same either as to the petitioner or as to the respondents as the parties to the cause of action now relied on, and that the said petition is not under or by virtue of the above last named statute as amended, subject to be amended into the cause of action now relied on."

That, "as appears of record, no proper and sufficient notice or opportunity to be heard, was given this defendant either of the motion of this plaintiff to amend the said petition of Maud M. Sterling, or of the action of this court upon said motion."

The defendant also filed in each action a plea in abatement setting forth the same grounds as in the motion to dismiss, and a demurrer alleging that the declaration did not state a legal cause of action in said Percy L. Sterling as administrator under or by virtue of R.L.c. 171, Section 2, as amended by St. 1907, c. 375, or otherwise.

In the Superior Court the actions were heard on the motions to dismiss, the pleas in abatement and the demurrers by Lawton, J. The proceedings are described in the opinion. The judge allowed the motion to dismiss in each action without passing on the plea in abatement or demurrer and reported the actions to this court upon an agreement of parties as to each case that, if the motion to dismiss were properly allowed, or if the plea in abatement or the demurrer should be sustained, or if the appeal taken or which, after any judgment for the administrator on this record, might be taken by Frederick Leyland and Company, Limited, would be sustained, or if on a proper pleading in any form in answer by Frederick Leyland and Company, Limited, of the provisions of the R.L.c. 171, Section 2, as amended by St. 1907, c. 378, and of the facts stated and proof of those facts, the plaintiff in the case would be precluded from recovering in this proceeding against Frederick Leyland and Company, Limited, under the statute, for the death of the intestate, the case should stand dismissed; otherwise the order dismissing the action should be overruled and the plea in abatement and demurrer overruled with the right in Frederick Leyland and Company, Limited, to answer over on the merits.

A. C. Burnham, for the defendant. W. N. Osgood, for the plaintiff, submitted a brief.

RUGG, C.J. The plaintiff as administrator of the estates of William L Sterling and of William E. Sterling seeks to maintain these two cases as actions of tort under R.L.c. 171, Section 2, as amended by St. 1907, c. 375 (see now G.L.c. 229, Section 5) to recover damages for the death of his two intestates. They died on November 2, 1916, each being then in the employ of one Tully. The death of each is now alleged to have been due to poisonous fumigating gases accumulated and remaining in the hold of a steamship lying in navigable waters in the port of Boston through the negligence of the owner, Frederick Leyland and Company, Limited. Each of the present proceedings was commenced as a petition filed in the Superior Court on September 5, 1917, by the widow of each decedent to enforce in accordance with St. 1911, c. 751, Part III, Section 11, as amended (see now G L. c. 152, Section 11), payment of a weekly indemnity under an agreement of the insurer filed with the Industrial Accident Board under the workmen's compensation act. No writ, summons, or other process was issued on this petition, but after...