Noon v. Beford

• Decision Date: 13 July 1965
• Citation: 209 N.E.2d 292,349 Mass. 537
• Parties: Veronica V. NOON, Executrix, v. Leonard F. BEFORD, Administrator.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 292

209 N.E.2d 292

349 Mass. 537

Veronica V. NOON, Executrix, v. Leonard F. BEFORD, Administrator.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 6, 1965.

Decided July 13, 1965.

Peter D. Cole, Boston, for defendant.

Richard S. McCabe, Maynard, for plaintiff.

Before WILKINS, C. J., and WHITTEMORE, KIRK, SPIEGEL and REARDON, JJ.

KIRK, Justice.

This is an action for wrongful death under G.L. c. 229, § 2, as appearing in St.1958, c. 238, § 1. ¹ The case was heard in the District Court on a statement of agreed facts submitted to the court as evidence. We treat it not as a case stated but as a case with an agreement as to evidence. Duff v. Town of Southbridge, 325 Mass. 224, 226, 90 N.E.2d 12. The judge found for the plaintiff in the amount of $8,000. The defendant being aggrieved by the denial of certain requests for rulings claimed a report. The defendant's appeal from the order of the Appellate Division dismissing the report brings the case to us.

The plaintiff's decedent Leo J. Noon (Noon) was a guest occupant in an automobile driven by the defendant's intestate Elder J. Beford (Beford) which left the road and struck a tree on May 15, 1959. Both Noon and Beford died at the time of the accident or immediately thereafter as a result of injuries received in the accident. Noon left heirs at law on whose behalf this action is brought.

The plaintiff is the duly appointed executrix of the estate of Noon. Her bond was approved on April 11, 1960. The defendant is the duly appointed administrator of the estate of Beford and his bond was approved on April 18, 1961. The date of the writ in this action is November 6, 1961, and service in hand was made on the administrator on November 10, 1961.

The first issue presented is whether the action has been seasonably commenced. The governing statute, G.L. c. 229, § 2, provides that '[a]n action to recover damages under this section shall be commenced within one year from the date of death or within such time thereafter as is provided by sections four, four B, nine or ten of chapter two hundred and sixty.' This action was not commenced within one year from the date of death and therefore is timely only if it is within one of the named exceptions appearing in G.L. c. 260. Since it is not argued that G.L. c. 260, §§ 4, 4B or 9 apply, we direct our attention to § 10, which consists of two sentences.

The instant case is not within the provisions of the first sentence ² of G.L. c. 260, § 10, in so far as they relate to the death of a person 'entitled to bring' an action. 'The cause of action [for wrongful death] does not arise until death occurs, when it springs into existence by force of the statute. It is a different cause of action from any which the deceased ever had in his lifetime.' Oliveria v. Oliveria, 305 Mass. 297, 301, 25 N.E.2d 766, 768, and cases cited. The executor or administrator is the one entitled by statute to bring the proceeding. G.L. c. 229, § 2. Therefore the person for whose decease the death action is brought cannot be 'a person entitled to bring' the action, nor is there any time 'within which the deceased might have brought the action * * *.' That the Legislature did not intend the decease of the person whose death gives rise to the action to bring into operation the above discussed part of G.L. c. 260, § 10, is confirmed by the fact that such an interpretation would make the one year limitation provision found in G.L. c. 229, § 2, inapplicable in every wrongful death action.

The first sentence of G.L. c. 260, § 10, also provides that upon the death of a person liable to any action 'before the expiration of the time hereinbefore limited, or within thirty days after the expiration of said time' the action may be brought against the executor or administrator in accordance with the limitations provided by G.L. c. 197. General Laws c. 197, § 9, provides that an action must be brought within one year of the time the administrator furnishes his bond and G.L. c. 197, § 1, bars an action within six months from the time of his furnishing the bond. If the above provision of c. 260 is effective to extend beyond the one year provided in G.L. c. 229, § 2, the time within which the executor or administrator may bring a wrongful death action, then the case before us is timely under the provisions of c. 197. We conclude that the one year limitation is so extended.

It was held in Bickford v. Furber, 271 Mass. 94, 170 N.E. 796, 70 A.L.R. 469, that the provisions of G.L. c. 260, § 10, which at the time contained only the first sentence of the present section, did not apply to an action of wrongful death. The wrongful death statute involved in the Bickford case (G.L. c. 229, § 5, as appearing in St.1925, c. 346, § 9) had no reference to § 10, and provided for a limitation of two years from the date of the injury causing death 'except as provided by section four of chapter two hundred and sixty.' The court stated that '[t]he plaintiff takes no benefit from G.L. c. 260, § 10, which extends the time for commencing an action in case of the death of 'a person entitled to bring or liable' thereto. This section is a part of the general statute of limitations and does not apply where 'a special provision is otherwise made relative to the limitation of any action.' G.L. c. 260, § 19. * * * The limitation imposed by G.L. c. 229, § 5, as amended, incorporating a part of G.L. c. 260, § 4, as amended, is special, since, in form, it is included in the statute creating the right and, in substance, is a limitation of the right as well as of the remedy.' Id. at 99, 170 N.E. at 798. The court concluded that the death action in the Bickford case, brought over one year after the death of the plaintiff's decedent, was not timely under the limitation provided in G.L. c. 260, § 4 (applicable to actions 'the payment of judgments in which is required to be secured by chapter ninety'). The death of the person liable to the action within the one year did not affect the running of the limitation period because, the court stated, the plaintiff as a creditor could, if necessary, petition for the appointment of an executor.

Subsequent to the decision in the Bickford case, the Legislature amended G.L. c. 260, § 10, by adding the second sentence ³ thereof (St.1937, c. 406, § 2) and amended the wrongful death act (G.L. c. 229, § 5) to make G.L c. 260, § 10, an exception to the limitation set out in the wrongful death section (St.1937, c. 406, § 3). We think that in so doing the Legislature made G.L. c. 260, § 10, applicable to wrongful death actions generally.

If the Legislature had intended only the second sentence of G.L. c. 260, § 10, to be applicable to wrongful death actions, then there would have been no reason to refer to § 10 in the wrongful death act itself. The second sentence of § 10, applicable only to actions to which G.L. c. 260, § 4, applies, is sufficiently incorporated into the wrongful death act by the reference in the death act to § 4. The second sentence of § 10 is, by its terms, a specific extension of the limitation of § 4 in wrongful death actions wherein the person liable to the action dies within the specified period. Therefore, the Legislature, in inserting specific reference to § 10 in the wrongful death act, must have intended to make § 10 applicable to wrongful death actions generally, and not just those to which § 4 applies.

The defendant has argued, however, that G.L. c. 260, § 10, cannot apply to the present action because, by its terms, it applies only to 'any action before mentioned' and the case before us is not within any preceding section of c. 260. We think that the specific reference in G.L. c. 229, § 2, to § 10, makes the wrongful death action one 'before mentioned' and the limitation within it a 'time hereinbefore limited.' We conclude, for the reasons stated, that the first sentence of G.L. c. 260, § 10, applies to wrongful death actions, and the present action is timely. The conclusion we have reached makes it unnecessary to discuss the denial of certain requests by the defendant for rulings and certain findings of the judge relating to the application of G.L. c. 90 and the provisions of G.L. c. 260, § 10, which deal with the death of a person entitled to bring an action. The errors, if any, were harmless.

The defendant also asserts that the court's finding of negligence on the part of the defendant's decedent was not warranted by the evidence. The following facts appear from the report: The accident occurred at approximately 4:20 P.M. as the Beford car was going south on Route 27. The day was fair and no other cars were involved. An eyewitness who followed the Before car for two miles stated that the car was traveling at a moderate rate of speed, between thirty-five and forty miles an hour. There was no erratic movement or operation of the Beford car during that time according to the witness....