Robinson v. Merchants' & Miners' Transp. Co.

• Decision Date: 23 November 1889
• Citation: 16 R.I. 637,19 A. 113
• Court: Rhode Island Supreme Court
• Parties: ROBINSON v. MERCHANTS' & MINERS' TRANSP. CO.

19 A. 113

16 R.I. 637

ROBINSON

v. MERCHANTS' & MINERS' TRANSP. CO.

Supreme Court of Rhode Island.

Nov. 23, 1889.

Trespass on the case. On demurrer to the rejoinder.

Walter H. Barney and Thomas H. Crowley, for plaintiff. Arnold Greene, for defendant.

DURFEE, C. J. This is case for negligence whereby the plaintiff was injured. The defendant pleads the statute of limitations, and the pleading proceeds to replication and rejoinder, which latter is demurred to by the plaintiff. The material facts, as disclosed by the pleadings, are these: The cause of action accrued in July, A. U. 1883. The plaintiff first sued therefor, by action begun in this court, June 26, A. D. 1886. Said action came on for trial, before Mr. Justice MATTESON and a jury, October 21, A. D. 1887; and after the plaintiff had put in his whole case in evidence the justice ordered a judgment of nonsuit to be entered against him, in the language of the rejoinder, "on the merits." The judgment remains unreversed. The plaintiff commenced in the court of common pleas, November 14, 1887, another action against the defendant, for the same cause, in which the defendant, after pleading, submitted to judgment for the amount claimed, and took an appeal to this court, where the action was dismissed October 6, A. D. 1888, (see Index CC, 26, 14 Atl. Rep. 860,) for failure of the plaintiff to comply with an order of the court to furnish security for the costs. The plaintiff began his present action in this court September 6, A. D. 1889.

The question is whether the action is barred by the statute of limitations, the period of limitation generally prescribed for such actions being six years. The question arises under Pub. St. R. I. c. 205, § 8, as follows: "Sec. 8. If any action, duly commenced within the time limited and allowed therefor in and by this chapter, shall be abated, or otherwise avoided or defeated, by the death of any party thereto, or for any matter, or if, after verdict for the plaintiff, the judgment shall be arrested, the plaintiff may commence a new action, for the same cause, at any time within one year after the abatement or other determination of the original suit, as aforesaid; and, if the cause of action does by law survive, his executor or administrator may, in case of his death, commence said new action within the said one year." The defendant contends that the action is barred because it was not commenced within a year after the determination of "the original suit," sO called in said section; his argument being that the action first brought was such "original suit." We do not think the argument is tenable. The obvious purpose of the section is to enable a plaintiff to bring an action after the general period of limitation has expired, provided he has duly commenced any action for the same cause within said period, and lost the benefit of it in either of the modes described, and the section, being remedial, should be liberally construed, in furtherance of its purpose. So construed, the section evidently means, by "any action duly commenced," not the first, but the last, of any actions duly commenced, where more than one action have been duly commenced within the general period; and, if so, also, of course, by "the original suit," the last of such actions,—the last being regarded as "original," relatively to the new action brought after the general period has expired.

The defendant contends that the action is barred because the plaintiff, in his first action, was nonsuited, by order of the court, after having put in the whole of his testimony, and section 8 does not apply where the plaintiff has been so defeated. Under our construction, the question depends on the commencement and termination, not of the first, but of the second, action. If the second action had been duly commenced, and had come to an end, as indicated in section 8, before the present action was brought, the present action was well brought. The points to be considered are: First, had the second action been so commenced? and, second, had it so come to an end? It is not denied that the second...