
    William D. Silva, administrator, vs. New England Brick Company.
    Bristol.
    October 27, 1903.
    February 26, 1904.
    Present: Knowlton, C. J., Morton, Barker, Hammond, & Loring, JJ.
    
      Practice, Civil, Amendment. Employers’ Liability Act.
    
    Under the employers’ liability act, R. L. c. 106, §§ 72, 73, an action for causing the death of an employee after conscious suffering must be brought by his legal rep. resentatives, while for causing his instant death an action can be brought only by his widow, or if he leaves no widow, his next of kin, who were dependent upon his wages for support. A declaration by an administrator under that act alleged that the plaintiff’s intestate was killed instantly and that he " left no widow but three children for whose use and benefit this action is brought.” The plaintiff asked to amend by substituting as plaintiffs the widow and children of the deceased and alleging that they were dependent upon his wages for support. The trial judge ruled that the amendment introduced a new cause of action and the court had no power to allow it. Held, that the ruling was wrong, and that the court had power to allow the amendment. The 'mistake of the plaintiff was not in regard to the cause of action but in regard to the party in whose name the action should be brought.
   Morton, J.

This is an action of tort under the employers’ liability act, so called, brought by the plaintiff as administrator of the estate of Linnel da Cunha who was killed by the caving in of a bank of clay in the brick yard of the defendant where he was employed. Due notice of the time, place and cause of injury were given as required by statute. The declaration alleges that the deceased was instantly killed, and at the trial it appeared that such was the case. Thereupon the defendant moved that a verdict be directed for it on the ground that the action could not be maintained by the administrator. The plaintiff moved to amend his writ, by inserting as plaintiffs the names of the widow and children, and alleging that they were dependent upon his wages for support, and that the action was brought for their benefit. This motion was denied on the ground that it introduced a new cause of action, and the court had no power to allow it, and a verdict was ordered for the defendant. The plaintiff duly excepted to these rulings. The case is here on a report made by the presiding judge at the request of the parties. If the court had the power “to allow the amendment, then appropriate amendment is to be made, and the case stand for trial. If not, judgment is to be entered upon the verdict.”

O. O. Hagerty, (F. S. Hall with him,) for the plaintiff.

W. I. Badger, for the defendant.

We think that the court had power to allow the amendment. The declaration alleges in so many words “ that said deceased left no widow but three children for whose use and benefit this action is brought.” This, taken in connection with the further allegation that the deceased was instantly killed, shows, it .seems to us, that the cause of action intended to be relied on was the right of recovery given by the statute to the next of 3rin in cases of instant death. The fact that the death is alleged ¡to have been instant shows that the cause of action intended to ¡be relied on could not have been the right that is given to the .administrator to recover for death in cases where the death is mot instantaneous, or where it is preceded by a period of conscious suffering. The mistake arose, not in regard to the nature lof the cause of action, but in supposing that the administrator was the party in whose name the action should be brought. And ■in such a case it is plain that the court has power to allow an :amendment bringing in the proper parties. Adams v. Weeks, 174 Mass. 45. Lewis v. Austin, 144 Mass. 383. Hutchinson v. Tucker, 124 Mass. 240.

Appropriate amendments to he made and case to stand for trial.  