Bickford v. Furber

• Decision Date: 26 March 1930
• Citation: 271 Mass. 94
• Parties: BESSIE L. BICKFORD, administratrix, v. EDWARD P. FURBER, administrator.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

271 Mass. 94

BESSIE L. BICKFORD, administratrix, v. EDWARD P. FURBER, administrator.

Supreme Judicial Court of Massachusetts, Middlesex.

March 26, 1930

March 3, 1930.

Present: RUGG, C.

J., CARROLL, WAIT SANDERSON, & FIELD, JJ.

Limitations Statute of. Negligence, Causing death. Executor and Administrator.

A cause of action for death under G.L.c. 229, Section 5, in the amended form appearing in St. 1925, c. 346, Section 9, arises at the time of the death rather than at the time of the appointment of the executor or administrator of the deceased.

The limitation of time in G.L.c. 229, Section 5, as thus amended, for the commencement of actions thereunder, is a limitation of the right of action thereby provided for as well as of the remedy.

A cause of action for death under G.L.c. 229, Section 5, as thus amended, is lost if the action is not commenced within the time limited irrespective of the time of appointment of an executor or administrator of the person killed, and, if the wrongdoer die subsequent to the arising of the cause of action irrespective of the time of appointment of his executor or administrator: the general principle that, before a period of limitation can commence to run, there must be someone in existence by whom the cause of action can be enforced and a different person in existence against whom it can be enforced, is inapplicable to a cause of action arising under said Section 5, as thus amended.

The circumstance, that there were incorporated into G.L.c. 229, Section 5, by St. 1925, c. 346, Section 9, the provisions of G.L.c. 260, Section

4, in the amended form appearing in St. 1925, c. 346, Section 10, limiting to one year the time for the commencement of "actions of tort . . . the payment of judgments in which is required to be secured by . . . [G.L.c. 90, as amended by said c. 346 and amendments thereto]," does not affect the character of the limitation of time provided for by said Section 5; and an action of tort for death, the payment of the judgment in which is required to be secured by said c. 90, as amended, must be brought within such period of one year.

The limitation of time specified in said G.L.c. 229, Section 5, as thus amended, is a "special provision" within the meaning of G.L.c. 260,

Section 19; and therefore Section 10 of said c. 260, extending the time for the commencement of actions in case of the death of "a person entitled to bring [them] or liable to [them]," is inapplicable to actions for death under said Section 5, as thus amended.

A man died on March 16, 1927, as a result of injuries received in a collision between a motor truck in which he was riding and an automobile. An administrator of his estate was appointed and qualified on June 16, 1927. The operator of the automobile died on September 12,

1927. An administrator of his estate was appointed on March 23, 1928, and qualified on March 27, 1928. By writ dated March 26, 1928, and served on the defendant March 29, 1928, an action was commenced by the first administrator against the second for the death of the plaintiff's intestate. Held, that

(1) A judgment in the action would be one, the payment of which would be required to be secured by G.L.c. 90, as amended by St. 1925, c. 346, and amendments thereto;

(2) The action was not commenced within one year from the time of the death of the plaintiff's intestate;

(3) Not having been commenced within one year of the time when the cause of action arose, the action was barred by G.L.c. 260, Section 4, in the amended form appearing in St. 1925, c. 346, Section 10, incorporated in G.L.c. 229, Section 5, by St. 1925, c. 346, Section 9.

TORT. Writ dated March 26, 1928. The defendant pleaded the statute of limitations among other defences. Material evidence at the trial in the Superior Court before Macleod, J., is stated in the opinion. The judge denied a motion by the defendant that a verdict be ordered in his favor. The jury found for the plaintiff in the sum of $5,000. The defendant alleged exceptions.

J.F. Cavanagh, (W.G. Wehle with him,) for the defendant. R.H. Peacock, for the plaintiff.

FIELD, J. This is an action of tort to recover for the death of Donald E Bickford, the plaintiff's intestate, alleged to have been caused by the negligence of Arthur Mertin, the defendant's intestate. There was a verdict for the plaintiff. The case is here on the defendant's bill of exceptions, which raises the question whether the action was brought seasonably. If it was not, judgment, by agreement of the parties, is to be entered for the defendant.

Donald E. Bickford died March 16, 1927, from injuries received in a collision between a motor truck on which he was riding and an automobile owned and operated by Arthur Mertin. It is agreed "that there was competent evidence which would warrant the jury in finding that the death of the plaintiff's intestate was caused by the negligence of the defendant's intestate and that the plaintiff's intestate was in the exercise of due care."

The plaintiff was appointed and qualified as administratrix of the estate of Donald E. Bickford on June 16, 1927. Arthur Mertin died September 12, 1927. The defendant was appointed administrator of his estate on March 23, 1928, and qualified as such on March 27, 1928. The writ was dated March 26, 1928, and served on the defendant March 29, 1928.

The plaintiff seeks to enforce a cause of action created by G.L.c. 229, Section 5, as amended by St. 1922, c. 439, and by St. 1925, c. 346, Section 9, which states that "Except as provided in sections one, two and three, a person who by his negligence . . . causes the death of a person in the exercise of due care, who is not in his employment or service, shall be liable in damages . . . to be recovered in an action of tort, commenced, except as provided by section four of chapter two hundred and sixty, within two years after the injury which caused the death by the executor or administrator of the deceased . . ." Sections 1, 2 and 3 of G.L.c. 229 are not applicable to this case, but Section 4 of G.L.c. 260, as amended by St. 1921, c. 319, St. 1925, c. 346, Section 10, is applicable. It provides that, among other proceedings, "actions of tort . . . for death the payment of judgments in which is required to be secured by chapter ninety . . . shall be commenced only within one year next after the cause of action accrues," and a judgment for the plaintiff in this case would be one for the payment of which security was required by said chapter 90. See G.L.c. 90, as amended by St. 1925, c. 346, Sections 1, 2, by the addition of Section 1A and Sections 34A-34I, inclusive. St. 1926, c. 368, Sections 1, 2, 3. See now St. 1928, c. 381, Section 4. Other than actions for libel the proceedings so limited arise in connection with compulsory security for personal injuries caused by motor vehicles and were brought within the scope of G.L.c. 260, Section 4, when it was amended by St. 1925, c. 346, Section 10.

This action was not brought seasonably. It did not meet the statutory requirement that it must be "commenced only within one year next after the cause of action accrues." Nor was the time for commencing action extended by reason of any facts shown.

1. The action was not commenced within a year after the cause thereof accrued. On no view of the law was it commenced before the date of the writ, March 26, 1928, which was more than a year after the death of the plaintiff's intestate, March 16, 1927. Within the meaning of the statute the cause of action accrued at the time of his death rather than at the time of the appointment of his administratrix. A cause of action may accrue even if there is then no person legally qualified to enforce it. See G.L.c. 260, Sections 7, 8.

An action to recover for death by negligence, which is brought under G.L.c. 229, Section 5, as amended, but is not within the provisions of G.L.c. 260, Section 4, as amended, must be "commenced . . . within two years after the injury which caused the death." See also G.L.c. 229, Sections 1, 3; St. 1929, c. 119, Section 1. This provision, before it was changed by St. 1925, c. 346, Section 9, applied also to actions like the present. It was a limitation upon the right as well as upon the remedy, and the right was lost when two years expired. Crosby v. Boston Elevated Railway, 238 Mass. 564 , 566. Murphy v. Avery Chemical Co. 240 Mass. 150 , 153. Sterling v. Frederick Leyland & Co Ltd. 242 Mass. 8 , 13. The statute evidenced an intention to set a definite limit to the time within which an action might be brought, regardless of the situation of the estate of the deceased with reference to...