Maltzman v. Hertz

• Decision Date: 05 February 1958
• Parties: Philip MALTZMAN v. Henry HERTZ, Administrator.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 767

147 N.E.2d 767

336 Mass. 704

Philip MALTZMAN v. Henry HERTZ, Administrator.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Nov. 8, 1957.

Decided Feb. 5, 1958.

Esther M. Stevens, Chelsea, for plaintiff.

Melville F. Weston, Boston, for defendant.

Before WILKINS, C. J., and RONAN, COUNIHAN, WHITTEMORE and CUTTER, JJ.

WILKINS, Chief Justice.

The bill of complaint is purportedly brought pursuant to G.L. (Ter.Ed.) c. 230, § 5, as amended by St.1934, c. 116, by a son and heir of Bessie Maltzman, late of Chelsea. There are allegations that one Gross, the executrix under her will, appointed by the Probate Court for Suffolk County, has refused to bring this suit, although so requested by the plaintiff; that the defendant's intestate was a physician in Boston; that on or about November 30, 1948, while the plaintiff's mother was a patient at a hospital in Boston and 'under the care and control of said defendant [sic], he wilfully, wantonly, in a grossly negligent manner, and in disregard and violation of his duty, failed to apply the proper care, skill and attention in her case, that as a result of the carelessness, recklessness, unskilfulness, and wilful and wanton misconduct of the defendant [sic], and his negligence, the plaintiff's mother * * * was caused great pain, suffering and anguish of both body and mind, and put to great expense, for all of which the plaintiff now claims damages'; and that the plaintiff's mother 'was caused to die,' and 'this action is being brought for the use and benefit of the children.'

Upon the defendant's motion 'for dismissal for lack of jurisdiction,' an order was entered for a final decree dismissing the bill, because 'the bill of complaint states no case cognizable according to the principles of equity, or known to the common law, or conformable to the statutes of the Commonwealth.' From a final decree dismissing the bill, the plaintiff appealed.

The motion to dismiss denies no facts alleged in the bill and alleges no new facts. Accordingly, it will be treated as a demurrer, which is a proper method in equity of raising a question of jurisdiction over the subject matter alleged. Luscomb v. Bowker, 334 Mass. 468, 472-473, 136 N.E.2d 192. The question of jurisdiction is open even though a judge of the Superior Court had earlier overruled the defendant's demurrer based on similar grounds. Jones v. Jones, 297 Mass. 198, 202, 7 N.E.2d 1015.

The case could have been decided on the ground that the executrix was not made a party. General Laws (Ter.Ed.) c. 230, § 5, as amended by St.1934, c. 116, provides that when an executor refuses to bring 'an action or suit to enforce a claim in favor of the estate * * * an heir legatee or creditor having an interest in the enforcement of any such claim may bring a suit in equity to enforce it for the benefit of the estate in like circumstances and in like manner as a person beneficially interested in a trust fund may bring a suit to enforce a claim in favor of such fund * * *.' When the beneficiary of a trust fund brings a suit against a third person who commits a tort with reference to the trust property for which the trustee improperly refuses to sue, the trustee must be made a party defendant if he is subject to the jurisdiction of the court. Jones v. Jones, 297 Mass. 198, 204, 7 N.E.2d 1015. Cherry v. Howell, 2 Cir., 66 F.2d 713, 716. Western Railroad v. Nolan, 48 N.Y. 513, 518. Scott on Trusts (2d ed.) §§ 282.1, 282.2. See Restatement: Trusts, § 282, comment on subsection (2), comment on subsection (3).

The order for a final decree, however, was rested upon broader grounds. We interpret the bill of complaint as alleging that the plaintiff's mother died on or about November 30, 1948. On this date and until January 1, 1950, ¹ the applicable act relative to actions for death and injuries resulting in death was G.L. (Ter.Ed.) c. 229, § 2, as appearing in St.1947, c. 506, § 1A, which, so far as material provided: 'If * * * by reason of his * * * negligence, or wilful, wanton or reckless act, * * * any person * * * causes the death of a person in the exercise of due care * * * he * * * shall be liable in damages, in an amount not less than two thousand nor more than fifteen thousand dollars, to be assessed with reference to the pecuniary loss sustained by the parties entitled to benefit hereunder and recovered by the executor or administrator of the deceased person in an action of tort, commenced within two years after the injury causing the death * * * and distributed one half to the surviving wife or husband and one half to the children of the deceased dependent upon him for support at the time of his death, or, if there are no such dependent children, to the surviving wife or husband, or, if there is no surviving wife or husband, to the next of kin.'

Under our death statutes, money received as damages for the death is held in trust by the personal representative for the statutory beneficiaries. In Brennan v. Standard Oil Co. of New York, 187 Mass. 376, 377, 73 N.E. 472, an opinion by Chief Justice Knowlton, it was said with reference to R.L. c. 171, § 2, a predecessor of G.L. (Ter.Ed.) c. 229, § 2, as appearing in St.1947, c. 506, § 1A: 'The first count is founded upon an alleged statutory liability for causing the death of the plaintiff's intestate, which the plaintiff seeks to enforce as the representative of the next of kin, for whom he would hold the proceeds. The second count is upon the liability at common law, for injuries to the intestate, for which he had a right of action during his life, and the claim is made by the plaintiff as legal representative of the estate of the deceased, for which he would hold the proceeds. In the first the plaintiff acts only as trustee for the next of kin; in the second, only as trustee for those interested in the estate.' In Putnam v. Savage, 244 Mass. 83, 87, 138 N.E. 808, 810, Chief Justice Rugg had occasion to refer to Johnston v. Bay State Street Railway, 222 Mass. 583, 111 N.E. 391, L.R.A.1918A, 650, which concerned the right to damages afforded by St. 1907, c....