Tracey v. Boston & N. St. Ry. Co.
| Citation | 204 Mass. 13,90 N.E. 416 |
| Parties | TRACEY v. BOSTON & N. ST. RY. CO. |
| Decision Date | 04 January 1910 |
| Court | United States State Supreme Judicial Court of Massachusetts |
E. P Saltonstall, for defendant.
The defendant does not now rely upon the exceptions taken to the admission and exclusion of evidence, having expressly waived them. It contends (1) that the court had no power to allow the amendment, and (2) that the court erred in refusing to rule as requested that upon all of the evidence the plaintiff was not entitled to recover.
1. The objection that the defendant would be deprived of the defense of the statute of limitations if the amendment was allowed was not conclusive against the power of the court to allow the amendment, but on the contrary could have been found to furnish an additional reason for allowing it. McLoughlin v. West End Street Railway, 186 Mass. 150, 151, 71 N.E 317; Cogswell v. Hall, 185 Mass. 455, 456, 70 N.E 461. The question whether, taking all of the circumstances into account, the plaintiff should or should not be allowed to amend was plainly for the court, and no exception lies to the exercise of its discretion. In regard to the identity of the cause of action the statute expressly provides that the allowance of an amendment by the court shall be conclusive evidence of the identity of the cause of action in the amended declaration with that for which the action was intended to be brought. Rev. Laws, c. 173, § 121; Cogswell v. Hall, 185 Mass. 455, 456, 70 N.E. 461. No provision is made for reviewing the action of the court in respect to the question of identity, and its decision upon that matter must therefore stand, as was formerly the case in regard to pleas in abatement. Rev. Laws, c. 173, §§ 47, 96, 106; St. 1906, p. 310, c. 342, § 2. If it is necessary that the question of identity should appear to have been raised and passed upon, then it was plainly included in the objection made by the defendant to the allowance of the amendment on the ground that the cause of action set out in the amendment was different from that for which the action was originally brought, and in allowing the amendment the court necessarily must have passed upon the question of identity and have found that the cause of action was the same as that for which the action was intended to be brought.
2. The defendant does not contend that the plaintiff was not...
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