Desmaris v. People's Gaslight Co.

• Citation: 107 A. 491
• Parties: DESMARIS v. PEOPLE'S GASLIGHT CO.
• Decision Date: 01 April 1919
• Court: Supreme Court of New Hampshire

107 A. 491

DESMARIS

v. PEOPLE'S GASLIGHT CO.

Supreme Court of New Hampshire. Hillsborough.

April 1, 1919.

Transferred from Superior Court, Hillsborough County; Kivel, Judge.

Action by Mary E. Desmaris, administratrix, against the People's Gaslight Company. Transferred on exceptions. Exceptions overruled,

Case. The plaintiff claims the death of her intestate was caused by the defendant's negligence. The suit was not brought for more than two years after his death. The plaintiff seeks to recover under P. S. c. 191, alleging the defendant's fraudulent concealment and active misrepresentation of the facts as an avoidance of the limitation of the action to two years. By amendment another count was added declaring upon the fraud and alleging that thereby the original cause of action was lost. Subject to exceptions, the superior court sustained a demurrer to the count on the original cause of action and overruled it as to the count in deceit.

Samuel J. Dearborn, of Manchester, and Robert W. Upton, of Concord, for plaintiff.

Jones, Warren, Wilson & Manning and Taggert, Tuttle, Wyman & Starr, all of Manchester, for defendant.

PEASLEE, J. No recovery can now be had on the original cause of action. The statute which created the right made it conditional upon suit being brought within two years. Poff v. Telephone Co., 72 N. H. 164, 55 Atl. 801. If it were conceded that the general statute limiting actions for deceit could be tolled by the defendant's fraudulent concealment, it would not affect the result here. "Unlike the general statute of limitations, this special statute creating the right and giving the remedy does not merely confer a privilege upon the defendant to interpose a definite time limitation as a bar to the enforcement of a distinct and independent liability, but it defines and limits the existence of the right itself." 72 N. H. 166, 55 Atl. 802.

The plaintiff also seeks to recover for the fraud alleged to have been perpetrated, as an independent cause of action. All the elements necessary to maintain an action for deceit are alleged. The defendant's answer is that to permit such recovery would be an evasion of the statutory limitation on the original cause of action, and that the damages are speculative.

The first ground of defence is clearly untenable. The count is not upon the original liability, but to recover damages for its loss. It proceeds upon the basis that the original cause of action does not now exist. Deception which does not cause loss is not a fraud, in the legal sense. The damage here alleged is the loss of the original cause of action.

The second ground of defense finds support in a recent case in South Carolina. Whitman v. Seaboard Air Line Railway Co., 107 S. C. 200, 92 S. E. 861, L. R. A. 1917F, 717. No authorities...