Gallo v. Foley

• Decision Date: 30 December 1936
• Citation: 296 Mass. 306,5 N.E.2d 425
• Parties: GALLO v. FOLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

296 Mass. 306

5 N.E.2d 425

GALLO v. FOLEY.

Supreme Judicial Court of Massachusetts, Worcester.

December 30, 1936

Exceptions from Superior Court, Worcester County; Baker, Judge.

Action of tort by John Gallo against George F. Foley, administrator heard without jury. The judge found for plaintiff in the sum of $4,362.50, and defendant saved exceptions.

Exceptions sustained and judgment for defendant.

F. P. McKeon, of Worcester, for plaintiff.

C. C Milton, of Worcester, for defendant.

QUA Justice.

This is an action of tort for personal injuries sustained by the plaintiff as a result of being struck by an automobile driven by one Ashton, the defendant's intestate. The sole issue is whether the action was prematurely brought against the administrator.

The accident occurred January 13, 1932. Ashton died May 14, 1932. The defendant qualified as administrator by giving bond January 4, 1933. The writ was dated January 6, 1933, and was served on the defendant January 7.

G. L (Ter.Ed.) c. 260 deals in general with the limitation of actions, classifying different types of actions in groups for which varying periods of limitation are prescribed. Section 4 provides that ‘ actions for libel and actions of tort for bodily injuries or 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.’ This action is one the payment of the judgment in which is required to be secured under the compulsory insurance provisions of chapter 90. G.L.(Ter.Ed.) c. 90, §§ 1A, 34A-34J. Hence the plaintiff would have been obliged to bring his action within one year after January 13, 1932, if Ashton had lived that long. But Ashton died in May, 1932, and section 10 of chapter 260 provides that: ‘ If a person * * * liable to any action before mentioned dies before the expiration of the time hereinbefore limited, or within thirty days after the expiration of said time, and the cause of action by law survives, the action may be commenced * * * against the executor or administrator in accordance with the limitations provided by chapter one hundred and ninety-seven, relative to the limitation of actions against the executor or administrator by creditors of the deceased.’ Turning then to chapter 197, we find that section 1 provides that, ‘ An executor or administrator shall not be held to answer to an action by a creditor of the deceased commenced within six months after his giving bond for the performance of his trust, unless such action is brought for the recovery of a demand which would not be affected by the insolvency of the estate,’ and section 9 provides that, ‘ An executor or administrator * * * shall not be held to answer to an action by a creditor of the deceased which is not commenced within one year from the time of his giving bond,’ with some further qualifications not here material.

From the foregoing summary of the applicable statutes it is apparent that the plaintiff could have brought his action against Ashton at any time between the happening of the accident on January 13, 1932, and Ashton's death on May 14, 1932. Thereafter he could bring no action until six months after the qualification of the administrator, which took place January 4, 1933. This six months' period did not expire until July 4, 1933. After that date he could sue the administrator up to January 4, 1934. This action was brought within six months after the administrator gave bond. It was therefore prematurely brought, unless it was ‘ brought for the recovery of a demand which would not be affected by the insolvency of the estate’ and so came within the exception contained in G.L.(Ter.Ed.) c. 197, § 1, hereinbefore quoted. But this exception is intended to apply to preferred claims such as the expenses of the last sickness and funeral, taxes and some others. National Bank of Troy v. Stanton, 116 Mass. 435. See G.L.(Ter.Ed.) c. 198, §§ 1, 31; Taylor v. Whitcomb, 192 Mass. 555, 557, 78 N.E. 536; Breen v. Burns, 280 Mass. 222, 226, 182 N.E. 294. A claim to recover damages in tort has none of the characteristics of a preferred claim.

The classification of claims under the statutes is not affected by the fact that the administrator's inventory discloses no assets in the estate, nor by the fact that the claim is secured under the compulsory insurance law. A claim is to be classified according to the nature of the claim itself. Its status must be capable of determination once and for all at the time when action or proceeding for its enforcement is brought, and that status must be fixed upon grounds which are not subject to change by such circumstances as the subsequent ascertainment of the existence or absence of assets or the possible failure of security which when suit was brought may have seemed sufficient. There is nothing in the compulsory motor...