Practice, Civil, Amendment. Negligence, Employer's liability, Causing death. Under R.L.c. 173, §§ 48, 121, the writ and declaration, in an action by an administrator against the employer of the plaintiff's intestate for negligence causing the death of the intestate, may be allowed to be amended by substituting the widow of the employee as the plaintiff and alleging a cause of action under R.L.c. 106, § 73, for negligence causing the instantaneous death of the employee.
HAMMOND, J.
This case is before us upon a report; and the question is whether the court had the authority to allow the amendment substituting the widow as the plaintiff in the place of the administrator and adding the fifth count to the declaration.
The court had the authority, if the purpose of the amendment was to enable the plaintiff to "sustain the action for the cause for which it was intended to be brought." What was the cause of action for which the action was intended to be brought? In a broad sense it was the death of the intestate by reason of negligence for which the defendant was answerable in damages to the widow. If the negligence was at common law, then the remedy under St. 1907, c. 392, was by an action to be brought by the administrator, but for the benefit of the widow (Vecchioni v. New York Central Hudson River Railroad, 191 Mass. 9); if under the employers' liability act, then the remedy was by an action to be brought in the name of the widow. R.L.c. 106, § 73. In either case the damages were to be assessed according to the degree of culpability, were to be paid by the defendant and received to the use of the plaintiff. The object of this action was to get this money for the widow from the defendant for the negligent killing of her husband. This object seems to have been pursued with confused ideas, but at the close of the evidence it was agreed that there was sufficient evidence to warrant a finding under the employers' liability act but not at common law. And under the circumstances the amendment was allowed.
Even if, as the defendant argues, the plaintiff's counsel was inclined to think that the remedy was under St. 1907, c. 392, still it is manifest that the purpose of the amendment was to maintain the action for the cause for which it was intended to be brought, namely, to enforce the liability of the defendant to pay money to the plaintiff for negligence in causing the death of her husband. And the substance of the various findings by the judge is to this effect. The judge therefore had the power to allow the amendment. R.L.c. 173, §§ 48, 121.
Judgment on the verdict.