Cutter v. Hamlen

Decision Date19 October 1888
Citation147 Mass. 471,18 N.E. 397
PartiesCUTTER et al. v. HAMLEN, (five cases.)
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

S.J. Thomas and M.O. Adams, for plaintiffs.

L.S Dabney and F. Rackeman, for defendant.



This is an action in two counts, the first of which alleges, in substance, that, to induce the plaintiff to hire a house, the defendant falsely represented that the drains, etc., were in perfect order, and that "the house was sweet and healthy;" that the plaintiff was induced by these representations to hire and did hire the house: that the drains were in bad condition, and the house was unhealthy and infected with diphtheria,--all of which the defendant knew; and that the plaintiff, by using the house, was made sick with diphtheria, unable to pursue any business, and helpless for life. It also alleges the illness, and the plaintiff's consequent loss of services, of other members of the plaintiff's family, and the death of his son. The second count alleges the dangerous condition of the house; and that the defendant, to induce the plaintiff to occupy the house, well knowing the facts alleged, negligently omitted to inform the plaintiff, or to take any due precaution against the exposure of the plaintiff to the disease, and concealed defendant's knowledge of the same. Then follow allegations of the plaintiff's ignorance, use of due care, entry into the house, induced by the defendant, and illness in consequence. The defendant died after the trial, and his executor appeared specially, and moved to dismiss the action on the ground that it did not survive. The motion was overruled, and the executor excepted.

If we assume, as is argued on behalf of the executor, that both counts of the declaration are counts in deceit, it does not follow that the action will not survive. It is settled in this commonwealth that the provisions of Pub.St. c. 165, § 1 that actions for "damages done to personal estate" shall survive, does not apply to mere impoverishing of a man's estate generally, but requires that damage to some specific property should be alleged and proved. Leggate v. Moulton, 115 Mass. 552; Read v. Hatch, 19 Pick. 47. In England a more liberal rule seems to have been established. Twycross v. Grant, 4 C.P.Div. 40. But Leggate v. Moulton implies, as plainly as the English cases decide, that an action for injury to specific property, and by the same reasoning, under our statute, an action for injury to the person, will survive, as well when the wrong is brought to pass by fraud as when it is done by force. See Hatchard v. Niege, 18 Q.B.Div. 771; Oakey v. Dalton, 35 Ch.Div. 700. In such cases the action is not for the deceit alone,--the naked infieria,--but for the damage caused by the deceit. The nature of the damage sued for, not the nature of its cause, determines whether the action survives. In Norton v. Sewall, 106 Mass. 143, an action was held to survive to an administratrix for personal injuries to her intestate caused by a dose of poison given by a third person to whom the defendant negligently sold the poison as a harmless medicine. Plainly, so far as the present question goes, the defendant in that case would have stood no better if he had committed an intentional fraud. Plainly, too, the connection between the cause and the effect, if that had anything to do with the question, is at least as close in the present case as in Norton v. Sewall. It is true that it was held in Cutting v. Tower, 14 Gray, 183, that an action for deceit in selling poisoned grain, whereby the purchaser's horses were killed, did not survive to his administrator. It might be argued, perhaps, that although inducing the plaintiff to use the house would have been a substantive tort but for the intervention of a contractual relation between him and the testator, through the lease, that relation reduced the tort to a mere incident of the fraud in making the contract, and that this view would reconcile Cutting v. Tower with Norton v. Sewall. We do not understand the explanation of Cutting v. Tower, offered in Norton v. Sewall, to turn on the fact that the fraud was incident to a sale; but on the ground that the damage to the plaintiff's horses, by eating the poisoned meal sold him, was alleged only by way of aggravation of the damage claimed for fraud in the sale. It is unnecessary to inquire whether we should have construed the declaration in Cutting v. Tower the same way. It is enough to say that whether the statute touching the survival of actions is to be construed strictly, as is said in Cutting v. Tower, or very liberally, as the English statutes have been construed, (Twycross v. Grant, 4 C.P.Div. 40, 45,) we are to look at the substance of the matter. See Pulling v. Railway Co., 9 Q.B.Div. 110. The substance of the complaint for damage caused the plaintiff's person by fraud is the same when the trap is baited with a lease as when he is led into it by a simple invitation. Nor is it...

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