Dunn v. Holladay
| Decision Date | 02 February 1978 |
| Citation | 6 Mass.App.Ct. 842,372 N.E.2d 286 |
| Parties | John R. DUNN, Jr. v. Howard K. HOLLADAY et al. Appeals Court of Massachusetts, Suffolk |
| Court | Appeals Court of Massachusetts |
Robert P. Springer, Boston, for plaintiff.
Edward S. Rooney, Jr., Boston (John D. Hughes, Boston, with him), for Nat. Life Ins. Co.
George C. Caner, Jr., Boston, for Howard K. Holladay.
Before KEVILLE, ARMSTRONG and BROWN, JJ.
RESCRIPT.
1. The first count of the complaint should not have been dismissed as against the defendant National Life Insurance Company (National), because the plaintiff would be entitled to damages against that defendant if he should prove, pursuant to paragraph 1.6 of the count, that Holladay, acting as agent for National, induced annuitants to replace annuity contracts generated by the plaintiff with new ones for the purpose of causing the plaintiff to lose "persistency" commissions and service fees on the replaced contracts. Compare Druker v. Roland Wm. Jutras Associates, Inc., --- Mass. ---, --- - --- a, 348 N.E.2d 763 (1976); Fortune v. National Cash Register Co., --- Mass. ---, --- - --- b, 364 N.E.2d 1251 (1977). 2. We agree with the conclusion reached by the judge that the assignment of the plaintiff's future commissions was not subject to the restrictions imposed by G.L. c. 154, § 3, on assignments of "future wages" (although it may fall within the restrictions of § 6 as an assignment of "earnings," as to which see Jenks v. Dyer, 102 Mass. 235 (1869); Kendall v. Kingsley, 120 Mass. 94 (1876); Jason v. Antone, 131 Mass. 534 (1881); compare Chester v. McDonald, 185 Mass. 54, 69 N.E. 1075 (1904), and In re Nance, 556 F.2d 602 (1st Cir. 1977), a point we need not decide). To the same effect, see Union Life Ins. Co. v. Perkins, 257 F.Supp. 154, 158 (W.D.Ark.1966); Crepeau v. Renewal Guar. Corp., 29 Colo.App. 23, 478 P.2d 698, 701 (1970); Fitch v. Pacific Fid. Life Ins. Co., 54 Cal.App.3d 140, 145-148, 126 Cal.Rptr. 445 (1975). The arguably contrary results reached in First Natl. Bank v. Hellen, 392 F.2d 58 (9th Cir. 1968), and Laird v. Carton, 196 N.Y. 169, 174-175, 89 N.E. 822 (1909), are based on statutory language clearly distinguishable from ours. It follows that the motion of both defendants to dismiss the fourth count of the complaint was correctly allowed. The judgment is affirmed as to count 4 and reversed as to count 1.
So ordered.
a. Mass.Adv.Sh. (1976) 1408, 1411-1412.
b. Mass.Adv.Sh. (1977) 1569, 1577-1579.
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...commissions which would have been payable in the normal course." Cheney, 377 Mass. at 148-149, 385 N.E.2d 961. Dunn v. Holladay, 6 Mass.App. 842, 372 N.E.2d 286 (1978) (cause of action stated where complaint alleged the defendant insurance company "induced annuitants to replace annuity cont......
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