Mulligan v. Hilton
| Decision Date | 04 January 1940 |
| Citation | 305 Mass. 5,24 N.E.2d 676 |
| Parties | MARJORIE T. MULLIGAN v. FREDERIC H. HILTON, executor. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
December 5, 1938.
Present: FIELD, C.
J., DONAHUE LUMMUS, & QUA, JJ.
Revival of Action. Constitutional Law, Due process of law, Equal protection of law. Statute, Retroactive. Limitations, Statute of. Equity Pleading and Practice, Appeal. It would not be "in contravention of" the provisions of the Federal and the
State Constitutions as to due process of law and equal protection of the law to give effect to St. 1938, c. 16, by granting relief sought in a bill in equity under the amended form of G.L. (Ter. Ed.) c 228 Section
5, appearing in St 1937, c. 406, Section 1, filed three and a half years after the qualifying of an executor in 1934, by requiring him to appear and defend an action of tort, begun against his testator and still pending, for personal injuries alleged to have been caused by the testator's negligent operation of a motor vehicle.
Although it might have been proper in 1937 to sustain a demurrer to a bill in equity stating a proper case for relief under G.L. (Ter. Ed.) c. 228, Section 5, in the amended form appearing in St.
1937, c. 406,
Section 1, on the ground that said Section 1 was not retroactive, the enactment of St. 1938, c. 16, showing that said Section 1 was to be retroactive, made it proper for the full court thereafter to reverse the interlocutory decree sustaining such demurrer and a final decree, based on the earlier decree and dismissing the bill and entered after the enactment of said c. 16, and to order the demurrer overruled.
BILL IN EQUITY, filed in the Supreme Judicial Court for the county of Middlesex on September 18, 1937.
A demurrer was sustained by Dolan, J., on December 20, 1937, and a final decree dismissing the bill was entered on September 6, 1938, by order of Ronan, J. The plaintiff appealed from both decrees.
R. B. Walsh, for the plaintiff. H. B. White, for the defendant.
On October 8, 1932, the plaintiff brought an action of tort against Harold F. Clough, the defendant's testator, to recover for bodily injury and property damage alleged to have been caused by the negligence of Clough in the operation of a motor vehicle on a public way in this Commonwealth. Clough was insured under the compulsory motor vehicle liability insurance act, G.L. (Ter. Ed.) c. 90, Sections 34A-34J. An answer was filed in his behalf. The action has never been determined of record. On January 19, 1936, when a suggestion of death was filed, the plaintiff discovered that Clough had died on March 1, 1934, and that on the same day the defendant had been appointed executor of his will, and had given bond in that capacity.
Both the cause of action and the action survived. G.L. (Ter. Ed.) c. 228 Section 1; c. 230, Section 1. Treasurer & Receiver General v. Sheehan, 288 Mass. 468 , 470. But on January 19, 1936, though a new action as to the property damage may not have been barred by the general statute of limitations (G.L. [Ter. Ed.] c. 260, Sections 2[2], 4), a new action for either bodily injury or property damage was barred by the special statute of limitations requiring a creditor of a decedent to commence his action against the executor or administrator within one year after the giving of bond for the performance of the trust. G.L. (Ter. Ed.) c. 197, Section 9, as amended by
St. 1933, c.
221, Section 4. One who has a cause of action in tort that survives is a "creditor" within that statute. Brotkin v. Feinberg, 265 Mass. 295. Nichols v. Pope, 287 Mass. 244 , 246. Lynch v. Springfield Safe Deposit & Trust Co. 300 Mass. 14 . Gordon v. Shea, 300 Mass. 95 , 99. Gallo v. Foley, 296 Mass. 306 . No citation could be issued, under G.
L. (Ter. Ed.) c. 228, Section 4, and Section 5 as amended by St. 1933, c. 221, Section 7, to bring the executor into the pending action as the defendant, because more than a year had elapsed since he gave his bond. The fact that the plaintiff was ignorant of the death did not extend the time limited by that statute. E. S. Parks Shellac Co. v. Jones, 265 Mass. 108 , 111. Nichols v. Pope, 287 Mass. 244, 246. Bateman v. Wood, 297 Mass. 483 , 484.
But on May 29, 1937, St. 1937, c. 406, Section 1, took effect as an emergency act. By it the earlier limitation of time for issuing a citation to an executor or administrator in a case brought against the decedent, contained in G.L. (Ter. Ed.) c. 228, Section 5, as amended by St. 1933, c. 221, Section 7, was modified by adding the following exception: "except that if the supreme judicial court, upon a bill in equity filed by a plaintiff or former plaintiff in a personal action the cause of which survives and who had a right to take out such a citation against the executor or administrator of a sole defendant but who did not do so within the time limited in this section," shall decide that the conditions of relief have been satisfied, the court may order the executor or administrator to appear in and defend the action, and may vacate any judgment or other act that may stand in the way.
The statutory conditions of the relief so provided are two: (1) that the court deems that justice and equity require it, and (2) that the plaintiff or former plaintiff is not chargeable with culpable neglect in not taking out a citation within the time limited. The expression "culpable neglect" doubtless was taken from G.L. (Ter. Ed.) c. 197, Section 10. Under ordinary circumstances the failure of a creditor to discover the death of his debtor is culpable neglect as matter of law. Waltham Bank v. Wright, 8 Allen, 121. Wells v. Child, 12 Allen, 333. Sykes v. Meacham, 103 Mass. 285 . Estabrook v.
Moulton, 223 Mass. 359 . Haven v. Smith, 250 Mass. 546 . Nichols v. Pope, 287 Mass. 244, 247. Dietrick v. Hayward, 304 Mass. 623 . But in the statute now under consideration the words "culpable neglect" do not stand without qualification. The statute expressly provides: "If at the hearing of such a bill in equity it shall he made to appear to said court that the legal representative of the deceased person within nine months of his appointment failed to notify in writing the petitioner of such death and failed within said nine months duly to suggest such death in such action, such facts may be sufficient ground for granting the relief herein authorized." This provision qualifies in favor of the plaintiff what otherwise would be the meaning of the words "culpable neglect."
On September 18, 1937, the plaintiff filed a bill in equity under St. 1937, c. 406, Section 1, and alleged all the facts necessary to satisfy that statute. The executor demurred on various grounds, among them that the statute of limitations was a bar. No other ground appears to be well taken. The provision in St. 1937, c. 406, Section 1, that the remedy afforded shall not affect any distribution made before the filing of the bill in equity, is obviated in the present case by the allegation that the liability of the insurer constitutes an asset of no value to the estate except as a means of satisfying the claim of the plaintiff. On December 20, 1937, a single justice sustained the demurrer, and the plaintiff appealed. Pending that appeal, on February 10, 1938, St. 1938, c. 16, took effect as an emergency act. It provided that relief under St. 1937, c. 406, Section 1, may be granted "in any action which was pending on the effective date of said section, if the granting of such relief would not be in contravention of the constitution." The action against Clough was "pending" on that date, for no final judgment of dismissal had been entered. On September 6, 1938, another single justice entered a final decree dismissing the bill, evidently as a result of the sustaining of the demurrer. The plaintiff appealed.
St. 1937, c.
406, Section 1, before the enactment of St. 1938, c. 16, might well have been construed to apply only prospectively to cases arising subsequently, and perhaps to cases in which the right to bring in an executor or administrator had not already been lost. Page v. Melvin, 10 Gray, 208. Kinsman v. Cambridge, 121 Mass. 558 . E. S. Parks Shellac Co. v. Jones, 265 Mass. 108 , 112. Wynn v. Assessors of Boston, 281 Mass. 245 , 249. Pittsley v. David, 298 Mass. 552 . Decker v. Pouvailsmith Corp. 252 N.Y. 1, 6. Fullerton-Krueger Lumber Co. v. Northern Pacific Railway, 266 U.S. 435. Note, 67 A.L.R. 297. That may have been the adequate ground of the sustaining of the demurrer. But the later statute, St. 1938, c. 16, made it clear that the Legislature intended that the remedy provided was to operate as well upon cases in which the right to bring in the executor or administrator, existing under earlier statutes, had already been lost. If in that respect the legislative intent can be given effect, the decree sustaining the demurrer, however correct it may have been when entered, cannot stand as a decree decisive of the case, but must, like the final decree, be reversed. Danforth v. Groton Water Co. 178 Mass. 472 , 475, 478. United States v. Schooner Peggy, 1 Cranch, 103, 110. Dinsmore v. Southern Express Co. 183 U.S. 115, 120. Robinson v. Robins Dry Dock & Repair Co. 238 N.Y. 271, 281. People v. Gilchrist, 243 N.Y. 173, 180. Note, 111 A. L. R. 1318. Compare Marquis v. Messier, 303 Mass. 553 , 556-557.
The question before us is, therefore, whether the Legislature has power by a statute to authorize the summoning in as a defendant of an executor or administrator who had become, before the statute took effect, fully entitled to have the action abated because the time had gone by within which, under existing laws, he could lawfully be made a party. Finance Corp. of New England v. Parker, 251 Mass. 372 . The constitutional...
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