Trudel v. Gagne

• Decision Date: 04 March 1952
• Citation: 104 N.E.2d 489,328 Mass. 464
• Parties: TRUDEL v. GAGNE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 489

104 N.E.2d 489

328 Mass. 464

TRUDEL v. GAGNE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 1, 1951.

Decided March 4, 1952.

F. C. Zacharer, Lowell, for plaintiff.

K. C. Parker, Boston, for defendants.

Before QUA, C. J., and WILKINS, SPALDING, WILLIAMS and COUNIHAN, JJ.

QUA, Chief Justice.

On July 4, 1949, the plaintiff's intestate was the victim of an automobile accident in the Province of Quebec and sustained injuries from which she died there on the same day. The plaintiff administratrix asserts that the accident was caused by the negligence of the defendant Pierre Gagne who she asserts was the agent or servant of the defendant Rose Anna Gagne, and she seeks to recover in this single action for the death and for conscious suffering and expenses, both against the defendant Pierre Gagne and against the defendant Rose Anna Gagne. G.L.(Ter.Ed.) c. 229, § 6, as appearing in St.1949, c. 427, § 5; c. 231, § 4A, as inserted by St.1943, c. 350, § 1.

Demurrers of the two defendants to the original declaration were sustained for a matter of detail not now material, with leave to move to amend within ten days, but when, within that time, the plaintiff did move to amend without changing the general character of the action, the motion was denied. The plaintiff excepted to the order denying her motion to amend and also attempted to appeal from the order. The appeal will not lie because the order denying the motion to amend was not an 'order decisive of the case founded upon matter of law apparent on the record'. G.L.(Ter.Ed.) c. 231, § 96; Means v. Leveroni, 297 Mass. 61, 64, 7 N.E.2d 418; Summers v. Boston Safe Deposit & Trust Co., 301 Mass. 167, 168, 16 N.E.2d 670. The case is here only on the exception to the denial of the motion to amend.

Even though the leave to amend was, in a general sense, an exercise of the court's discretion in favor of rather than against amendment, that action did not exhaust the power of the court over the subject of amendment. When the amendment was actually presented it still remained for the court to determine whether such an amendment as was presented ought to be allowed. Massachusetts Gasoline & Oil Co. v. Go-Gas Co., 267 Mass. 122, 126, 166 N.E. 563; Bucholz v. Green Bros. Co., 290 Mass. 350, 354, 195 N.E. 318; Keljikian v. Star Brewing Co., 303 Mass. 53, 56, 20 N.E.2d 465; Elfman v. Glaser, 313 Mass. 370, 374, 47 N.E.2d 925. Perhaps it would be enough to say that the denial of the amendment is not shown by the record to have been an abuse of discretion. Brooks v. Gregory, 285 Mass. 197, 206, 189 N.E. 195; Urban v. Central Massachusetts Electric Co., 301 Mass. 519, 524, 17 N.E.2d 718; Enga v. Sparks, 315 Mass. 120, 124, 51 N.E.2d 984; Foster v. Shubert Holding Co., 316 Mass. 470, 477, 55 N.E.2d 772. But in this case there is an overriding reason why the proposed amendment ought not to be allowed.

All substantive rights of action growing out of the injury and death of the plaintiff's intestate necessarily have their origin in the law of the place where the wrong was done. This principle is well settled both as to actions for injuries and as to actions for death. Levy v. Steiger, 233 Mass. 600, 124 N.E. 477; Pilgrim v. MacGibbon, 313 Mass. 290, 47 N.E.2d 299; Gregory v. Maine Central Railroad, 317 Mass. 636, 59 N.E.2d 471, 159 A.L.R. 714; Holland v. Boston & Maine Railroad, 279 Mass. 342, 344, 181 N.E. 217; Jackson v. Anthony, 282 Mass. 540, 545, 185 N.E. 389, and cases cited. Restatement: Conflict of Laws, §§ 378, 384. It determines the matter of survival after death of a cause of action for personal injury. Davis v. New York & New England Railroad, 143 Mass. 301, 9 N.E. 815; Higgins v. Central New England & Western Railroad, 155 Mass. 176, 29 N.E. 534; Ormsby v. Chase, 290 U.S. 387, 54 S.Ct. 211, 78 L.Ed. 378; Restatement: Conflict of Laws, § 390. It determines the theory upon which damages are to be assessed. Jackson v. Anthony, 282 Mass. 540, 545-548, 185 N.E. 389. And by what seems to us the weight of authority it determines the person or persons in whom the right of action is vested, whether in the widow or children of the deceased or his next of kin as individuals or in the executor or administrator appointed to settle his estate. Johnson v. Phoenix Bridge Co., 197 N.Y. 316, 90 N.E. 953; Betts v. Southern Railway, 4 Cir., 71 F.2d 787; Anderson v. Lane, D.C., 97 F.Supp. 265; Restatement: Conflict of Laws, §§ 394, 395, 396; Goodrich, Conflict of Laws (2d ed.) 253. Determination of the persons in whom the cause of action is vested and who are entitled to sue upon it is matter of substance to be controlled by the law which creates the right, and not matter of form or procedure to be controlled by the law of the forum. We must therefore look to the law of Quebec.

Article 1056 of the Civil Code of Lower Canada gives a right of recovery to the consort and the ascendant and descendant relatives of a person who dies in consequence of...