295 Mass. 384 | Mass. | 1936
The plaintiff declared in this action for personal injury and death of her intestate under G. L. (Ter. Ed.) c. 153, § 1, commonly known as the employers’ liability act. See also G. L. (Ter. Ed.) c. 229, § 7. There is also a separate count at common law for conscious suffering only under said § 7. At approximately the same time the plaintiff, in the same representative capacity, brought in the District Court of the United States for this district another action against the defendant for injury and death of her intestate under the Federal employers’ liability act, U. S. C. Title 45, c. 2. The defendant thereupon moved in this action that the plaintiff be required to elect whether she would proceed in this action or in the action pending in the District Court. The trial judge ruled that he had no power to require the plaintiff to elect, denied the motion and reported the case to this court.
The ruling was right. The question is not whether both actions are based upon the same cause or causes of action. We do not decide that question. See Mackintosh v. Chambers, 285 Mass. 594; Gallagher v. Wheeler, 292 Mass. 547, 551-553. But see also Porter v. Sorell, 280 Mass. 457. The defendant is not seeking an abatement. It properly concedes that it is not entitled to abatement because of another action pending in the Federal court. Consolidated Ordnance Co. v. Marsh, 227 Mass. 15, 19. The question raised by the defendant’s motion is simply whether the
This case is governed by Corbett v. Boston & Maine Railroad, 219 Mass. 351, where the controlling principles are fully discussed with citation of many authorities. Those principles are equally applicable though in this instance the actions are pending in different jurisdictions and though each was brought by the plaintiff in the same capacity. Further illustrations of the general rule as to election of remedies are found in Butler v. Hildreth, 5 Met. 49, 52, Snow v. Alley, 156 Mass. 193, 195, Loomis v. Pease, 234 Mass. 101, 106, Burke v. Willard, 249 Mass. 313, 317, Donovan v. Draper, 268 Mass. 555, 558, and Wabash Railroad v. Hayes, 234 U. S. 86. The case of Consolidated Ordnance Co. v. Marsh, 227 Mass. 15, is distinguishable. In that case the plaintiff’s substantive rights were the same in both jurisdictions. No question arose as to where the true remedy lay, and the plaintiff was trying to use the equitable attachment permitted by the statute of this Commonwealth as an adjunct to its action in the Federal court.
Order denying the defendant’s motion to require the plaintiff to elect affirmed.