Connors v. Newton Nat. Bank
| Decision Date | 15 January 1958 |
| Citation | 147 N.E.2d 185,336 Mass. 649,65 A.L.R.2d 1209 |
| Parties | , 65 A.L.R.2d 1209 Rose G. CONNORS v. NEWTON NATIONAL BANK et al., Executors. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Thomas B. Shea, Boston, for plaintiff.
Alton H. Grauman, Boston, for defendants.
Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and WHITTEMORE, JJ.
This is an action of tort against the estate of a deceased attorney at law for damages 'for the negligence, carelessness and unskilfulness' of the attorney in the prosecution of a claim for injury which the plaintiff entrusted to him. The defendants filed answers which admitted that an accident occurred on the premises of the attorney and that injury to the plaintiff resulted. They also filed a motion to dismiss on the ground that the cause of action declared upon did not survive the death of the attorney which occurred before this action was begun. After hearing, the motion to dismiss was allowed subject to the exception of the plaintiff. There was no error.
'At common law a right of action for tort does not survive the death either of the person injured or of the wrongdoer.' Putnam v. Savage, 244 Mass. 83, 85, 138 N.E. 808, 809; Prosser, torts, 2d Ed., pages 705-709. Putnam v. Savage, 244 Mass. 83, 85, 138 N.E. 808, 809.
The applicable statute here is G.L. (Ter.Ed.) c. 228, § 1, as appearing in St. 1934, c. 300, § 1, which reads in part, 'In addition to the actions which survive by the common law, the following shall survive * * * (2) Action of tort (a) for assault, battery, imprisonment or other damage to the person * * * or (d) for damage to real or personal property * * *.'
Because we are concerned solely with a question of law on the allegations of the declaration as we have stated them, we do not deem it necessary to recite other allegations of the declaration. It is plain from an examination of the declaration that the judge could find that the plaintiff seeks no damages for injury to her person or to her real or personal property; and that she only sought to recover for the negligence of the deceased in the posecution of her original claim for injury. Undoubtedly she could have maintained her action if the deceased were living but after his death no such claim survived under c. 228, § 1. Read v. Hatch, 19 Pick. 47, 48; Lee v. Fisk, 222 Mass. 418, 109 N.E. 833; Piper v. Childs, 290 Mass. 560, 565, 195 N.E. 763; Summers v. Boston Safe Deposit & Trust Co., 301 Mass. 167, 169, 16 N.E.2d...
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...or (D ) for damage to real or personal property . . . ." In particular, the defendants rely on our decision in Connors v. Newton Nat'l Bank, 336 Mass. 649, 147 N.E.2d 185 (1958), a tort action based on the negligence of a deceased attorney, where we held that the claim did not survive by th......
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...death. It is elementary that at common law an action of tort did not survive the death of either party. Connors v. Newton National Bank, 336 Mass. 649, 147 N.E.2d 185, 65 A.L.R.2d 1209; Putnam v. Savage, 244 Mass. 83, 85, 138 N.E. 808. However, by statute Massachusetts has provided that cer......
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...considering the question of whether the estate of an attorney can be held liable for his malpractice. In Connors v. Newton National Bank, 336 Mass. 649, 147 N.E.2d 185, 65 A.L.R.2d 1209, the plaintiff brought, 'an action of tort against the estate of a deceased attorney at law for damages '......