Rockwell v. Furness

• Decision Date: 21 October 1913
• Parties: ROCKWELL et al. v. FURNESS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 557

102 N.E. 914

ROCKWELL et al. v. FURNESS.

Supreme Judicial Court of Massachusetts, Berkshire.

October 21, 1913

COUNSEL

Warner & Barker, of Pittsfield, for plaintiffs.

Brown & Came, of Boston, for defendant.

OPINION

SHELDON J.

The plaintiffs seek to recover on the ground that the defendant falsely represented to Rosella A. Rockwell, their testatrix or rather to her agent, in her lifetime, that he had authority to settle her claims against certain insurance companies for the loss by fire of her property upon which those companies had issued to her policies of insurance against fire, or upon failure to make such settlements with her that he had authority to sign a 'reference paper' in the name of each of the companies. They claim that their testatrix and her agent, believing these representations and relying thereon, failed to notify the insurance companies of the loss that had occurred, and so lost her remedy against the companies. Rockwell v. Hamburg-Bremen Fire Ins Co., 212 Mass. 318, 98 N.E. 1086.

If we assume everything else in favor of the plaintiffs, it yet remains true that the remedy of the testatrix for the tort of the defendant could be enforced only in her lifetime; it did not survive her death. R. L. c. 171, § 1. As was said in Jenks v. Hoag, 179 Mass. 583, 586, 61 N.E. 221 'It has been decided repeatedly that 'a mere fraud or cheat by which one sustains pecuniary loss cannot be regarded as a damage done to personal estate.' Leggate v. Moulton, 115 Mass. 552, and cases there cited. See, also, Cutter v. Hamlen, 147 Mass. 471, 18 N.E. 397, 1 L. R. A. 429. The statute was 'intended to give a remedy which should survive only for injuries of a specific character to real or personal estate.” There is nothing to help the plaintiffs in Parker v. Simpson, 180 Mass. 334, 343, 62 N.E. 401; Von Arnim v. American Tube Works, 188 Mass. 515, 519, 520, 74 N.E. 680; Batty v. Greene, 206 Mass. 561, 564, et seq., 92 N.E. 715; or Lovejoy v. Bailey, 214 Mass. 134, 154, 101 N.E. 63. See, also, Dixon v. Amerman, 181 Mass. 430, 63 N.E. 1057.

If the plaintiffs since the decease of their testatrix have, in reliance upon the same representations of the defendant, spent money in the prosecution either of this suit or of the suits brought by her against the insurance companies, this could not revive the lapsed cause of action. They were bound to know that it did not survive.

Nor can we doubt that this...