Harrigan v. Marvell

• Decision Date: 04 January 1950
• Parties: HARRIGAN v. MARVELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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89 N.E.2d 762 325 Mass. 185 HARRIGAN
v.
MARVELL. Supreme Judicial Court of Massachusetts, Bristol. Argued Oct. 24, 1949.
Decided Jan. 4, 1950.

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L. J. O'Malley, Boston, for plaintiff.

J. A. Perkins, Boston, for defendant.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and COUNIHAN, JJ.

[325 Mass. 186] RONAN, Justice.

This is an appeal from a final decree entered upon a bill in equity brought under G.L. (Ter.Ed.) c. 228, § 5, as appearing in St.1937, c. 406, § 1, ordering the executor to appear and defend a pending action of tort which had been commenced against his testator during his lifetime. The judge made findings of fact and the evidence is reported.

Some of the facts are undisputed and others we find for ourselves. The plaintiff on September 22, 1942, commenced an action of tort to recover damages for alleged malpractice by the original defendant, a physician, who died testate on June 12, 1945. His executor was appointed and gave bond for the performance of his trust on July 6, 1945. The attorney who had appeared for the defendant filed a suggestion of death on April 13, 1946, but he did not notify the plaintiff or her counsel of the defendant's death and he never furnished either of them with a copy of the suggestion of death. The plaintiff's counsel first learned of the death on April 3, 1947.

The judge found that justice and equity required that the executor should be ordered to appear and defend the action of tort and that the plaintiff was not guilty

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of culpable neglect. The correctness of both of these findings is challenged by the present defendant.

No citation could issue under G.L. (Ter.Ed.) c. 228, § 4, or under section 5, prior to the amendment of this last section by St.1937, c. 406, § 1, after more than a year had elapsed since the giving of bond by the personal representative of the deceased defendant, and the fact that the plaintiff failed to discover the death of the defendant within the year did not affect this statutory limitation. Finance Corp. of New England v. Parker, 251 Mass. 372, 146 N.E. 696; E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 163 N.E. 883. A plaintiff, having a claim in tort which survived the death of the alleged wrongdoer, was a creditor under G.L. (Ter.Ed.) c. 197, § 9, as amended; Brotkin v. Feinberg, 265 Mass. 295, 164 N.E. 85; Bickford v. Furber, 271 Mass. 94, 98, 170 N.E. 796, 70 A.L.R. 469; Union Market National Bank v. Gardiner, 276 Mass. 490, 494, 177 N.E. 682, 79 A.L.R. 1512; Gordon v. Shea, [325 Mass. 187] 300 Mass. 95, 14 N.E.2d 105, and could, if no action had been commenced against the decedent in his lifetime or against his executor or administrator within the said one year period, Worcester County National Bank of Worchester v. Stiles, 292 Mass. 453, 198 N.E. 902; Gray v. Dahl, 297 Mass. 260, 8 N.E.2d 919, file a bill in equity in this court under G.L. (Ter.Ed.) c. 197, § 10, or by virtue of G.L. (Ter.Ed.) c. 213, §§ 1A, 1B, inserted by St.1939, c. 257, § 1, in the Superior Court, Monaghan v. Monaghan, 323 Mass. 96, 97, 79 N.E.2d 900; First Portland National Bank v. Taylor, 323 Mass. 492, 493, 83 N.E.2d 161, to recover a judgment by showing that justice and equity required such a judgment and that he had not been guilty of culpable neglect in not commencing his action within the time prescribed by section 9. In proceedings under section 10 the creditor could not escape being charged with culpable neglect by showing merely that he was ignorant of the death of the decedent--a fact which was commonly all that he had to rely upon to avoid being so charged. Waltham Bank v. Wright, 8 Allen 121; Estabrook v. Moulton, 223 Mass. 359, 111 N.E. 859; Thompson v. Owen, 249 Mass. 229, 144 N.E. 216; Haven v. Smith, 250 Mass. 546, 146 N.E. 18; Nichols v. Pope, 287 Mass. 244, 191 N.E. 387. The result was that a plaintiff was barred from relief against an estate, and indirectly against an insurance company, which frequently was the real party in interest. It must be assumed that the Legislature was familiar with the existing law and the decisions of this court relative thereto and sought by the amendment to G.L. (Ter.Ed.) c. 228, § 5, by St.1937, c. 406, § 1, to eliminate some of the hardships plaintiffs encountered by reason of their failure to learn seasonably of the death of a defendant. Gar Wood Industries, Inc., v. Colonial Homes, Inc., 305 Mass. 41, 24 N.E.2d 767, 126 A.L.R. 591; New England Novelty Co. Inc. v. Sanberg, 315 Mass. 739, 54 N.E.2d 915; Meunier's Case, 319 Mass. 421, 66 N.E.2d 198. Section 5, as amended, in so far as material, provides that a citation 'shall not issue after the expiration of one year from the time such executor or administrator has given bond, except that if the supreme...