283 Mass. 192 | Mass. | 1933
This is an action of tort brought by the plaintiff as he is administrator of the estate of John S. Langille, late of Wolfeboro, Carroll County, New Hampshire, to recover for the conscious suffering and death of said John S. Langille which occurred on September 14, 1929, as the result of a collision between certain trains and locomotives of the defendant on the tracks of the defendant in Andover in the county of Essex and Commonwealth of Massachusetts. John S. Langille at the time of his accident and death was a locomotive fireman in the employ of the defendant. At the opening of the case before the trial commenced, it was agreed between counsel that the defendant was a common carrier engaged in interstate commerce, and that the deceased was employed in such commerce at the time of his death. The defendant admitted at the trial that “there was sufficient evidence to warrant a finding of negligence on the part of the railroad, causing the death of John S. Langille.” It appeared by uncontroverted evidence at the trial that the plaintiff, Dana J. Brown, was appointed administrator of the estate of John S. Langille on January 27, 1930, by the Probate Court for the county of Carroll in the State of New Hampshire; that the plaintiff “had accepted the duties imposed on him by virtue of that appointment; that John S. Langille, the party named in the papers, was a
On the material facts covered by the report and the record as it stands the plaintiff states the issue to be as follows: “Can a foreign administrator of intestate, killed through the negligence of defendant, prosecute his action to a conclusion when suing under the Federal employers’ liability act on behalf of widow of intestate after issue has been joined and trial started?” and contends that this issue should be decided in the affirmative for the following reasons: (a) “A domiciliary administrator is the personal representative of his intestate within the meaning of the Federal employers’ liability act”; (b) “A domiciliary administrator is the proper party to bring suit to enforce the liability of a carrier under the Federal employers’ liability act”; (c) “By 'maintaining an action’ is meant the right to prosecute it to a conclusion”; and (d) “Any fact which impeaches the capacity of the plaintiff must be pleaded by answer in abatement, or it is waived.”
The present action is brought under the Federal employers’
The defendant in this action had no duty seasonably to plead by abatement or otherwise the question of the “personal disqualification” of the plaintiff to maintain this action. The burden of proof was upon the plaintiff to show that he was the personal representative to whom the statute gave the right. A plea in abatement without the appointment of an ancillary administrator, who would not necessarily be the plaintiff, would not supply the lack of proof that there was a personal representative appointed in this Commonwealth.
In our opinion there is no need to consider whether the agreement as to the amount of damages was an absolute agreement that there was such damage, or fixed the amount of damage, if the evidence warranted a finding of substantial damage. We think on the report and record that the motion was allowed rightly. It follows in accordance with the stipulation that judgment is to be entered for the defendant; and it is
So ordered.