Burtchell v. Willey

• Decision Date: 31 March 1952
• Citation: 147 Me. 339,87 A.2d 658
• Parties: BURTCHELL v. WILLEY.
• Court: Maine Supreme Court

Page 658

87 A.2d 658

147 Me. 339

BURTCHELL v. WILLEY.

Supreme Judicial Court of Maine.

March 31, 1952.

Lewis Bernstein, Melvin P. Roberts, Fort Fairfield, for plaintiff.

James P. Archibald, Houlton, for defendant.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.

FELLOWS, Justice.

After verdict for the plaintiff in the sum of $4694.50, this case comes to the Law Court from the Superior Court, Aroostook County, on the defendant's motion for a new trial.

The writ in this action was dated June 29, 1950. The writ was served on June 30, 1950 and was made returnable at Houlton 'on the second Tuesday of June, 1950.' There was no term, provided by law, in June at Houlton. The writ was entered at the September Term 1950, and the defendant entered a general appearance. The defendant filed no plea to abate and made no motion to dismiss. The case was continued and tried at the November Term, 1950. After verdict for the plaintiff, the defendant filed motion for new trial on the usual grounds that the verdict was contrary to the law and evidence, and that the damages were excessive.

The principal facts and contentions are these: On May 5, 1950 at about two-thirty in the morning, on State Highway No. 100 near the town line between the towns of Clinton and Benton, the parties to this suit were operating trailer tractors. The plaintiff, Ludrick Burtchell of Fort Fairfield, was engaged in sending a load of potatoes to market in his vehicle, and his driver was proceeding southerly. The defendant, Frank S. Willey, Sr., was travelling northerly to obtain a load of potatoes. The night was foggy. Both vehicles had the lights on, and the driver of each vehicle was guiding the movement of his vehicle more or less by the painted center line of the highway, which painted center line could be plainly and easily seen.

The plaintiff claims, and Dale Kimball the driver for the plaintiff testified, that he was driving a new 1949 Ford tractor, with a 28 foot trailer. The trailer was 8 feet wide. The trailer was 4 feet wider than the tractor and loaded with 15 tons of potatoes. The highway was approximately 20 feet wide, 'black top' surface, with '2 foot shoulders.' The fog was thick and visibility only about 150 feet. He was driving at the rate of 30 to 35 miles per hour. The plaintiff's driver further testified that he was on his right-hand side of the highway and all of his tractor and all of his trailer was on the right side of the painted white center line. He saw the defendant's tractor trailer when it was 150 feet away and it then was 'straddling the white line' with the defendant's left wheels about 3 feet on the plaintiff's side of the road. 'I started to cut out and he started cutting to the right to miss, but we were too close.' * * * 'I applied my brakes.' The defendant's left rear wheels struck the plaintiff's left trailer wheels. The plaintiff's driver after applying the brakes, went 200 feet, when the trailer and tractor tipped over in the 'ditch' on their left side and were damaged so that they were practically a complete loss.

The defendant, on the other hand, testified that he was travelling about 35 miles an hour in an International tractor with 30 foot trailer, and that he could see only 'one telephone pole at a time,' but 'I could see the white line in the center of the road' and 'I was keeping the front wheel of my tractor just to the right-hand side of it all the way along.' The defendant said that he saw the plaintiff's headlights at 200 feet and that he then was 'just to the right of the white line.' The defendant said, concerning the plaintiff, that 'he was following the line just the same as I was.' 'He was on the other side of it.' 'It didn't appear to me as though we were going to hit. In fact, the front of his tractor got way by me before we hit.' The rear wheels of the tractors hit. The defendant said 'the back end is wider than the front.' The defendant did not testify that he turned in any manner toward the right, because he did not believe they were going to hit.

The highway police officer investigated within an hour after the collision and made measurements. He told of locations of broken glass and other materials in the road, and of tire marks on the west side of the highway. The officer said that the plaintiff's driver, Kimball, told him that night that the defendant, Willey, was 'one foot over' on Kimball's side of the road, but Willey did not claim to the officer that the plaintiff was on Willey's side of the road. Donald Willey, son of the defendant and riding with his father, was asleep and 'heard a crash, that is all.'

The Superior Court in any county has jurisdiction of transitory actions such as assumpsit, or action for damages. Transitory actions are personal actions brought for the recovery of money, whether they sound in contract or in tort. In contemplation of law transitory actions 'have no locality' and the court has jurisdiction in any county. The matter of wrong venue in transitory actions (such as bringing the suit in a county where neither party lives) is a question of procedure. The defendant may submit to jurisdiction in a transitory action in any county, if he chooses. If he objects, he must do so by dilatory plea or motion seasonably filed. If he fails so to plead he waives the objection. Webb v. Goddard, 46 Me. 505; Central Maine Power Co. v. Maine Central Railroad Company, 113 Me. 103, 93 A. 41. Local actions, however, such as replevin, must be brought in the county where the statute demands, or there is no jurisdiction, and the action may be dismissed on motion, or taken advantage of at the trial. The court on its own motion may dismiss where lack of jurisdiction becomes apparent. Where the statute prescribes the County in which a particular kind of action shall be brought, the action is local. Central Maine Power Company v. Maine Central Railroad Company, 113 Me. 103, 104, 93 A. 41; Plaisted v. Walker, 77 Me. 459.

If a wrong return date is made in an action, or if there is no return day, advantage of such an error can be taken by motion or plea in abatement. If the party objecting neglects to make his motion or file his plea within the time fixed by the rule of court, and he enters a general appearance and goes to trial, he has waived the defect. Pattee v. Lowe, 35 Me. 121. A writ returnable on a day out of term is voidable and is abatable on motion seasonably filed. Kehail v. Tarbox, 112 Me. 327, 92 A. 182; Rule of Court 5. Of course, if the time when the defendant is to appear is not clearly and distinctly stated, or if an impossible date, or there is other lack of proper process, his failure to appear may not justify any legal conclusion against him. Inhabitants of Dover-Foxcroft v. Lincoln, 135 Me. 184, 192 A. 700; Penobscot Railroad Company v. Weeks, 52 Me. 456. If, however, the defendant does appear he may waive the irregularity. The court may in its discretion, and in a proper case, permit an amendment. Barker v. Norton, 17 Me. 416; Guptill v. Horne, 63 Me. 405; Lawrence v. Chase, 54 Me. 196; Appeal of Bunker, 129 Me. 317, 151 A. 669; Inhabitants of Dover-Foxcroft v. Lincoln, 135 Me. 184, 192 A. 700. See also Revised Statutes 1944, Chapter 100, Section 11, providing in substance that no proceeding shall be reversed for want of form or for circumstantial errors or mistakes which are amendable. In regard to plaintiff making a change of return day in the writ or process before, or after, service on the defendant, see Bray v. Libby, 71 Me. 276; Harris v. Barker, 87 Me. 270, 32 A. 896; Dodge v. Hunter, 85 Me, 121, 26 A. 1055.

In this case at bar, the return day of the writ was 'the second Tuesday of June 1950,' a day when no term was to be held. The writ was entered at the September term, 1950. The defendant appeared at the September term and entered a general appearance. The defendant filed no plea in abatement, or motion to dismiss. This action for damages is a transitory action. The court had jurisdiction. The case was continued and tried at the November term, 1950. The irregularity was waived, and, by the waiver, became immaterial in this case.

In order to obtain a new trial on a general...