(211 Mass. 366) WEBBER v. BENBOW. (Supreme Judicial Court of Massachusetts. Norfolk. March 1, 1912.) 1. HUSBAND AND WIFE (8 332*) - Loss OF CONSORTIUM-PLEADING-SUFFICIENCY. A declaration stating that defendant, wrongfully intending to injure plaintiff, and to deprive her of the comfort, society, aid, assistance, and support of plaintiff's husband, and to alienate and destroy his affection for her, unlawfully gained his affections and induced him to leave plaintiff's home, etc., sufficiently sets out loss of consortium as the cause of action, with alienation of affections as aggravation of damages. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 1123; Dec. Dig. § 332.*] 2. HUSBAND AND WIFE (8332*)- Loss OF CONSORTIUM-EVIDENCE-ADMISSIBILITY. In an action by a wife for loss of consortium, evidence as to familiar and suspicious conduct between defendant and the husband in defendant's bedroom was properly admitted, as not only bearing on defendant's mental attitude, but as tending to show adultery as a means of enticement, even if adultery was not charged in the declaration. [Ed. Note. For other cases, see Husband and Wife, Dec. Dig. § 332.*] Exceptions from Superior Court, Norfolk County; Edgar J. Sherman, Judge. Action by Elizabeth H. Webber against Sarah A. W. Benbow. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled. 557, 75 Am. St. Rep. 316. See, also, Lellis v. Lambert, 24 Ont. App. 653. Relying upon this rule the defendant insists that this declaration, like that in Neville v. Gile, alleges as the substantial cause of action alienation of affections. This position is untenable. The declaration is in the usual form for loss of consortium, and clearly sets out that loss as the cause of action. An examination of the original papers in the case of Hadley v. Heywood, 121 Mass. 236, dis closes the fact that the form of the second count in that case is, mutatis mutandis, identical with the declaration in the present case except that this, declaration is strengthafter "assistance." And this court has said ened by the addition of the word "support" that in the second count in Hadley v. Heywood "loss of consortium was properly charged." Neville v. Gile, ubi supra. See also in addition to cases above cited, Tasker v. Stanley, 153 Mass. 148, 26 N. E. 417, 10 L. R. A. 468, and Nolin v. Pearson, 191 Mass. 283, 77 N. E. 890, 4 L. R. A. (N. S.) 643, 114 Am. St. Rep. 605, 6 Ann. Cas. 658, for a discussion of the general subject. The present case is clearly distinguishable from cases like Neville v. Gile, ubi supra, and Houghton v. Rice, 174 Mass. 366, 54 N. E. 843, 47 L. R. A. 310, 75 Am. St. Rep. 351, cited by the defendant. [2] The evidence as to the familiar and George Granville Darling, for plaintiff. suspicious conduct of the defendant with the Harvey H. Pratt, for defendant. HAMMOND, J. The plaintiff's declaration is as follows: "And now comes the plaintiff in the above-entitled action and for declaration says that the defendant contriving and wrongfully intending to injure the plaintiff, and to deprive her of the comfort, society, aid, assistance and support of George H. Webber, the husband of the plaintiff, and to alienate and destroy his affection for her, unlawfully and unjustly gained the affections of her said husband, and persuaded, procured and enticed her said husband to leave the home of the plaintiff and to continue absent from the same, by means of which persuasion and enticement he did continue absent for a long period of time and up to the bringing of this suit, whereby the plaintiff lost the comfort, society, aid, assistance and support of her husband and his affection for the plaintiff was wholly alienated and destroyed. All to her great damage as she saith in her writ." [1] "In this commonwealth, alienation of affections alone is not a substantive cause of action, but is merely an aggravation of damages, for the loss of consortium," says Lathrop, J., in Neville v. Gile, 174 Mass. 305, 306, 54 N. E. 841, citing Bigaouette v. Paulet, 134 Mass. 123, 45 Am. Rep. 307; Evans v. O'Connor, 174 Mass. 287, 54 N. E. plaintiff's husband in the defendant's bedroom was properly admitted. It is to be noted that the plaintiff's counsel expressly disclaimed any suggestion of adultery or debauchery on the part of the defendant, and offered the evidence only as bearing on the defendant's "mental attitude." But it was admissible even if it tended to show adultery. If believed, it had a tendency to throw some light upon the methods of enticement used by the defendant, and also upon her motives. And this is so even if adultery was not set out in the declaration. Nor do we see that the defendant has any just ground of complaint as to the manner in which the presiding justice treated this matter in the charge to the jury. Exceptions overruled. (211 Mass. 105) SILSBEE v. SILSBEE et al. (Supreme Judicial Court of Massachusetts. A will directed the trustees to pay over the annual income of a part of the residue to his daughter H. for life, and "upon her decease leaving issue, my said trustees shall appropriate so much of such annual income as shall be necessary for the support and education of her children" until they become of age, and then pay over the principal to the children, and further provided that, if the daugh ter die leaving no issue, the trustees should pay For other definitions, see Words and Phrases, vol. 4, pp. 3778-3782; vol. 8, p. 7693.] Case Reserved from Supreme Judicial Court, Suffolk County. Petition by Arthur B. Silsbee, trustee, against Martha Silsbee and others. Case heard before a judge of the Supreme Judicial Court, and decision reserved for the full court. Decree ordered as stated. Roger F. Sturgis, for Martha Silsbee and others. Loring, Coolidge & Noble, for respondents. is to be construed as meaning children, or whether it should be construed as in Jackson v. Jackson, 153 Mass. 374, 26 N. E. 1112, 11 L. R. A. 305, 25 Am. St. Rep. 643, to include all lineal descendants and as taking per stirpes. It is said in that case that when personal property is given in trust to pay the income to a person during life and on his death to pay the principal to his issue then living, it will be presumed that the intention was that issue should include all lineal descendants, and that they should take per stirpes unless a contrary intention appears from other language in the will. We think that there is other language in the will in this case indicating that the word was used as meaning children, and we feel constrained to give it that meaning notwithstanding that the result will be to deprive the grandchildren of the share which their mother would have taken if she had survived Mrs. Silsbee. The testator left six children, four sons and two daughters. He intended substantial equality between them. What was given to the sons out of the residue as well as out of the body of the estate was given to them outright, except that in the case of the youngest son the gift was contingent on his arriving at 21 years of age. Certain real estate was given to the two daughters, Mrs. Bolles and Mrs. Silsbee, absolutely; but their shares in the residue were given in trust for their benefit, the same persons being named trustees in both cases. It is plain, we think, that in the clause relating to Mrs. Bolles the words "issue" and "children" are used interchangeably and as synonymous. The testator directs the trus tees to pay over the net annual income to his daughter Harriet C. Bolles during her life, "and upon her decease leaving issue my said trustees shall appropriate so much of said annual income as shall be necessary for the support and education of her children until they shall arrive at the age of twentyone years, and shall divide and pay over the principal of said sixth part to and among said children as they respectively arrive at that age. And if my said daughter shall decease leaving no issue, then my said trustees shall pay over the said one sixth part equally among her heirs according to law." It is evident, we think, as we have said, that in the two instances in which it is here used the word "issue" means "children." Having used it in that sense in the clause relating to Mrs. Bolles, there is no reason why the testator should have used it in any other sense in the clause relating to Mrs. Silsbee which immediately follows that relating to Mrs. Bolles. No reason is shown for making any difference between Mrs. Bolles and Mrs. Silsbee in this respect, and the more natural and reasonable construction seems to us to be that which leads to the The question is whether the word "issue" conclusion that the testator used the word •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes MORTON, J. This is a petition for instructions as to the construction of the following clause in the will of Michael Shepard, late of Salem: "I give, devise & bequeath unto T. P. Shepard, M. Webb Shepard and Jno. B. Silsbee one sixth part thereof [the rest and residue], to have and to hold the same to them and their heirs and assigns upon the following trusts, to wit, that my said trustees shall pay over the net annual income thereof to my daughter Martha M. Silsbee wife of John B. Silsbee of said Salem, during her natural life; and at her decease leaving issue, if said issue shall be under age at the time of her decease, my said trustees shall appropriate so much of said annual income as shall be necessary to their support and education until they shall arrive at the age of twenty-one years, and shall divide and pay over the principal of said sixth part to and among said issue, as they respectively arrive at that age, in equal portions to their use and benefit forever. And if my said daughter shall decease without issue, then my said trustees shall pay over said income to my daughter's said husband, during his natural life; and upon his decease the principal shall be divided among her heirs according to law." Martha Silsbee died February 28, 1911, leaving three children surviving her, Arthur B. Silsbee, Martha Silsbee and Thomas Silsbee, and three grandchildren the children of a deceased daughter, and no other children or grandchildren. [Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. 439.*1 Report from Superior Court, Middlesex County; Henry A. King, Judge. Action by Louise N. Brooks against the Boston & Northern Street Railway Company. On report. Action dismissed. John J. O'Connor, for plaintiff. Trull & Wier, for defendant. "issue" in the same sense in both clauses. I pointed for personal injury to decedent in his The case is different from Jackson v. Jack-lifetime. son, 153 Mass. 374, 26 N. E. 1112, 11 L. R. A. 305, 25 Am. St. Rep. 643, and from Coates v. Burton, 191 Mass. 180, 77 N. E. 311, in that there was nothing to show in those cases that the word "issue" was used in any other sense than as including all lineal descendants. If the clause containing the gift to Mrs. Silsbee had stood alone the case would have been governed by Jackson v. Jackson, supra. It is also unlike cases of which Carter v. Bentall, 2 Beav. 551, is an example, where the use of the word "issue" in the disposition of one portion given by the will is accompanied by expressions which show that it is there limited to children, and in the disposition of another portion the word is not only unaccompanied by such expressions but the disposition is itself radically different from that wherein the expressions showing that the word was limited to children occurred. In the present case Mrs. Bolles and Mrs. Silsbee are each given a sixth of the residue, and the general character of the gift is the same in both cases. It is to be noted that construing the word "issue" as meaning "children," those who take will be the same in the case of both Mrs. Bolles and Mrs. Silsbee, namely, those who survive the life tenant. We have not deemed it necessary to take up and consider here the numerous cases which are relied on on one side and the other. We find nothing in those relied on by the grandchildren inconsistent with the conclusion here arrived at. RUGG, C. J. [1] The question is, whether an action for personal injuries can be maintained, which is brought after the death of the person injured and before the appointment of an executor or administrator in which the dead person is named as party plaintiff. The cause of action which accrued to Louise N. Brooks during her life was not extinguished with her death, but might have been prosecuted by her executor or administrator. R. L. c. 171, § 1. The writ is dated about 17 months after her death and S months before the appointment of the administrator of her estate. Nothing further appears as to the human agency by which the alleged action was instituted except that a declaration filed long after her death and long before the appointment of her administrator is signed by an attorney. [2] An action at law implies, by its very terms, the existence of a person who has the right to bring the action. Patterson v. Patterson, 59 N. Y. 574-578, 17 Am. Rep. 384. It is axiomatic that a corpse is not a person. That which constitutes a person is Decree to be entered in favor of the three separated from the body by death and that surviving children of Mrs. Silsbee. (211 Mass. 277) BROOKS v. BOSTON & N. ST. RY. CO. (Supreme Judicial Court of Massachusetts. Middlesex. March 1, 1912.) 1. ACTION (§ 13*)-PARTIES ENTITLED TO SUE -DECEDENT. An action at law implies the existence of one entitled to sue, and does not lie in the name of a decedent, before appointment of an administrator, for injury to decedent in his lifetime. which remains is "dust and ashes," sacred to kin and friends, whose feelings and rights in this regard receive the protection of the law, but having no inherent capacity. Feeley v. Andrews, 191 Mass. 313, 77 N. E. 766. No harshness is wrought by this rule for from early times our statute of limitations has made some provision for extension in the event of death of a person entitled to bring an action (see R. L. c. 202, § 10, and marginal annotations), and the law also allows a special administrator, who may be appointed at any time without notice, to bring actions [Ed. Note.-For other cases, see Action, Dec. (see R. L. c. 137, § 10). Dig. § 13.*] 2. WORDS AND PHRASES-"PERSON." A corpse is not a "person." That which constitutes a person is separated from the body by death. [Ed. Note.-For other definitions, see Words and Phrases, vol. 6, pp. 5322-5335; vol. 8, p. 7752.] 3. EXECUTORS AND ADMINISTRATORS (§ 439*) -SUBSTITUTION BY AMENDMENT-ADMINIS TRATORS. Rev. Laws, c. 173, § 48, authorizing amendment of process, pleading, or proceedings to enable plaintiff to sustain his suit, does not permit substitution of an administrator as plaintiff in an action brought in the name of a decedent before the administrator was ap [3] It is urged, however, that under our statute allowing amendments, the administrator now appointed may be substituted as party plaintiff. The essential words of that statute, R. L. c. 173, § 48, are that "the court may allow any other amendment in matter of form or substance in any process, pleading or proceeding which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought." This language in plain words indicates the existence of a real plaintiff as the original instigator of the action. It gives no countenance to the idea that something phantasmal and visionary may be given a body and a substance by the aid of subsequent events. It pre-supposes a plaintiff. Here there was no plaintiff. It assumes an intent. The amendment must be bottomed on an intent contemporaneous with the bringing of the action. But one who is dead cannot have an intent in any earthly sense. Lewis v. Austin, 144 Mass. 383, 11 N. E. 538, gives no support to the contention now urged. That was a case where a live person having a valid claim, which he was obliged to prosecute in the name of another, by inadvertence used the name of one who had died. But the real plaintiff was alive. As was pointed out in the opinion, if he had brought the action in his own name, clearly an amendment could have been allowed. So also if brought in a fictitious name. Moreover, there had been appointed an administratrix of the estate of the deceased person in whose name the action might have been brought. McLaughlin v. West End St. Ry. Co., 186 Mass. 150, 71 N. E. 317, is manifestly distinguishable. There both the plaintiff and the cause of action were in existence. A wrong defendant was named in the writ. The present decision does not impair in any degree that which has been said in these and many other cases as to the liberality with which amendments are allowed under our practice. It only holds that where, in the nature of things, no person can be plaintiff and the cause of action is in suspense, an action cannot be instituted. If no action can be instituted, there is nothing to amend. The ruling of the superior court was wrong in entering judgment for the defendant. No judgment can be entered in a case which never has had an existence and is a nullity. The action should be dismissed. Under the terms of the report the case is to "stand for trial." This means that it should stand for such disposition as is required by this opinion. So ordered. (211 Mass. 269) SMITH v. JORDAN (two cases). (Supreme Judicial Court of Massachusetts. Middlesex. March 1, 1912.) 1. PARENT AND CHILD (§ 13*)-TORTS OF CHILD-FATHER'S LIABILITY. which the son had been commissioned, the father may be liable, even though he had no and though it was contrary to his directions; knowledge of the specific conduct in question, but if the act is not done in the furtherance of the father's business, but in the performance of some independent design of the son, the father is not liable. [Ed. Note.-For other cases, see Parent and Child, Cent. Dig. §§ 145-151; Dec. Dig. § 13.*] 3. PARENT AND CHILD (§ 13*)—NEGLIGENCE OF MINOR-LIABILITY OF FATHER. the general use of his family, but his minor Defendant purchased an automobile for son was the only member of the family licensed to operate it. Defendant's wife had permission to use the machine whenever she mother, if she asked him to take her out in desired; the son being expected to mind his the car. Plaintiff was injured by a collision with the machine under circumstances indicating that the son was negligent when driving it with his mother, at her request. Held, that the relation of husband and wife was such that the wife's use of the machine at the time was not her business, as a matter of law, but could be found the business of the husband, mobile, was doing so in furtherance of the and that the son, in then operating the autofather's business, and that the latter was therefore liable for his negligence. [Ed. Note.-For other cases, see Parent and Child, Cent. Dig. §§ 145-151; Dec. Dig. § 13.*] Exceptions from Superior Court, Middlesex County; Jabez Fox, Judge. Actions by Mary L. Smith and Georgiana B. Smith against George E. Jordan for injuries due to a collision between plaintiffs' carriage and an automobile owned by defendant and operated by defendant's minor son. In the superior court there was a verdict for plaintiff in each case, and defendant brings exceptions. Overruled. Chas. W. Bond and Geo. F. Wales, for plaintiffs. Geo. L. Mayberry and John M. Gibbs, for defendant. RUGG, C. J. [1, 2] The principles of law which govern this case are plain. A father is not liable for the torts of his minor son, simply because of paternity. There must exist an authority from the father to the son to do the tortious act or a subsequent ratification and adoption of it, before responsibility attaches to the parent. This authority may be express or it may arise by implication from all the attendant circumstances. The wrongful act must be performed by the son in pursuance of the business, incident or undertaking authorized by the father before the latter can be held liable. Such authority may be found in actual presence of the parent, in express or implied direction, or in a precedent course of conduct. If the act is within the general scope of authority conferred by the father, or in carrying out the If the act of a minor is within the gen-missioned, then the father may be liable even enterprise for which the minor has been comeral scope of authority conferred by the father, or in carrying out the enterprise for though he had no knowledge of the specific *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes A father is not liable for the torts of his minor son merely because of paternity; but, in order to render the father liable, there must exist authority from him to the son to do the tortious act, or a subsequent ratification and adoption thereof, either express or implied. [Ed. Note.-For other cases, see Parent and Child, Cent. Dig. §§ 145-151; Dec. Dig. § 13.*] 2. PARENT AND CHILD (§ 13*)-TORTS OF CHILDPARENT'S LIABILITY-AUTHORITY OF PARENT. Bourne v. Whitman, 209 Mass. 155, 95 N. E 404; Hunt v. Rhodes Bros. Co., 207 Mass. 30, 92 N. E. 1001. conduct in question and it was contrary to | but may be found to be that of the husband. his direction. If the act is not done by the son in furtherance of the father's business, but in performance of some independent design of his own, the father is not liable. The controlling rules of law are the same whether the business in question concerns the operation of an automobile or any other matter. [3] In the case at bar, a father had bought an automobile for the general use of his family. It was registered in his name, but the only member of his family licensed to operate it was his minor son and the machine never was operated except by him. The defendant testified in substance that his wife had his permission to use the automobile whenever she desired, without making any special request for it, and that he expected his son to mind his mother if she asked him to take her out with the car. The plaintiff was injured by a collision with it under circumstances which warranted a finding that the son was negligent, on an afternoon when he was driving the car with his mother, at her request. These facts warranted the inference that the son was then acting in accordance with general instructions expressly or impliedly given by his father. The boy was not running it for any purpose of his own, but for the convenience of his mother and by her express direction, for whose use, in common with the rest of the family, it had been purchased by his father. If the father had employed a chauffeur outside the family at a stated compensation, it could not be contended seriously that taking the wife There was no error in refusing the defendant's prayers for instructions. There does not appear to have been evidence warranting the ruling that if the defendant had directed his son not to be out after dark and the son was driving after dark in violation of that direction, the defendant could not be held. There was evidence that the defendant had restricted the son that he should not be out after dark. But he also testified that he did not intend the car should not be brought home if he chanced not to get home earlier and that it "was a caution." But upon a broader ground, the rulings upon this point could not have been given properly. The jury might have found that the business of the father in this connection was that the son should follow his mother's direction. If this involved being out after dark, it was still the father's business. There seems to have been no dispute that the son was doing as his mother had told him. So far as the substance of the other prayers was not given in the charge, they either were not applica ble to the evidence or not sound in law. Exceptions overruled. Rev. Laws, c. 165, § 45, punishing one not admitted to practice as an attorney, who represents himself to be an attorney, is not inconsistent with the practice to permit an attorney of a sister state to appear and conduct a case in the state, but the prohibition applies to all persons not admitted to practice in the firm which practiced in the state was a citistate; and where the junior member of a zen of a sister state and admitted to practice there, but not admitted in Massachusetts, he practiced illegally in the state, and for legal services rendered there could be no recovery by him, alone or jointly with the other member of the firm. out for an afternoon call was not the business for which he had been-employed. If, instead of hiring a stranger, the father chose to have the same work performed by his minor son, to whose time and services he was entitled as a matter of law, it could not be ruled as matter of law that a jury might not find the business to be that of the father. This is not a case of mere permissive use of the father's vehicle by the son for his own pleasure. Although the father had no knowledge of the particular journey which was taken on the occasion of the accident, his knowledge that on prior occasions the wife had used the car and his testimony of the purpose for which it was bought and that it was not customary when the wife was going on errands with the automobile to ask his permission were enough to support a finding that the trip in question was authorized by him. The fact that the son was the only person in the family who could legally operate the car had some tendency in that direction. The relation of husband and wife is such that when the former has purchased an automobile for family use, a ride by the wife in it with his general permission is not as matter of law the business of the wife, [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 297, 298; Dec. Dig. § 136.*] 2. ATTORNEY AND CLIENT (§ 136*)-ADMISSION TO PRACTICE STATUTES CONSTRUC TION. Rev. Laws, c. 165, § 47, providing that a person may act as attorney for another, if authorized by personal nomination in open court, applies only where the party in a pending suit supposes that the person whom he nominates is subjected to the responsibility of a regularly admitted attorney solely by reason of the nomination; and where a client, believing that two persons in partnership were both admitted to practice in the state, engag ed them as such to represent him, and in court named them both, when asked in court who his attorneys were, believing them to be |