City of Boston v. Nielsen
| Decision Date | 25 March 1940 |
| Citation | 26 N.E.2d 366,305 Mass. 429 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | CITY OF BOSTON v. CARRIE F. NIELSEN & others. |
December 27, 1939.
Present: FIELD, C.
J., DONAHUE LUMMUS, COX, & RONAN, JJ.
Limitations Statute of. Contract, Implied. Payment. Estoppel.
The city of Boston was subject to the defence of the general statute of limitations in an action brought by it for board, lodging and medical services furnished in its city hospital.
The mere fact that one who received board, lodging and medical service at a hospital during certain periods also received treatments in the out-patient department on various occasions, on each of which he paid the charge requested for that treatment, did not render the account for the hospitalization mutual and open, nor did any of such payments constitute a partial payment of previous hospitalization items so as to affect the operation of the statute of limitations thereon.
A city was estopped to maintain an action against a married woman for treatment in its hospital occasioned by personal injuries caused by a defect in one of its public ways although the judge found that the city had extended credit to her for the treatment if it appeared that, at the trial of a previous action by her against the city for such injuries, evidence as to the charges for the treatment was excluded on objection by the city on the ground that she had not paid nor become liable therefor but that credit therefor had been given to her husband.
BILL IN EQUITY filed in the Superior Court on July 29, 1938. The case was heard by Burns, J., and in this court was submitted on briefs.
H. Parkman, Jr Corporation Counsel, & H.
Freed, Assistant Corporation Counsel, for the plaintiff.
I. Gordon, for the defendants.
This is a bill filed July 29, 1938, to establish an indebtedness of one Nielsen, hereinafter called the defendant, in the amount of $1,857 for board, lodging and medical services furnished to her at the Boston City Hospital, a municipal department of the plaintiff, from June 1, 1923, to January 31, 1938, and to have that indebtedness set off against a judgment for $2,876.36 recovered on July 25, 1938, by the defendant against the plaintiff for personal injuries sustained on account of a defect in a public highway.
The Judge found that the plaintiff in truth extended credit to the defendant, and not to her husband, who died on May 4, 1937; that as to $72 for treatment as an outpatient the defendant paid cash and owes nothing; that as to $483.86 the indebtedness was incurred prior to July 29, 1932, and consequently recovery was barred by the statute of limitations, which was pleaded; and that as to hospital charges amounting to $704 occasioned by the highway accident, recovery was barred for reasons hereinafter stated. A final decree was entered establishing the defendant's indebtedness to the plaintiff for the remainder of the claim, amounting to $597.14, and ordering it set off against the judgment. The plaintiff appealed.
The plaintiff contends that the statute of limitations cannot be successfully interposed in a suit by a municipality to collect for services rendered by its public hospital which it contends is merely the enforcement of a public or governmental right. It is well settled that the Federal government and the States are not subject to the statute of limitations unless they have expressed their consent to be bound thereby. Stoughton, Sharon & Canton v. Baker, 4 Mass. 522 , 528. Arundel v. M'Culloch, 10 Mass. 70. Attorney General v. Revere Copper Co. 152 Mass. 444 . Sklaroff v. Commonwealth, 236 Mass. 87 . United States v. Commissioner of Banks, 254 Mass. 173. Chesapeake & Delaware Canal Co. v. United States, 250 U.S. 123. Grand Trunk Western Railway v. United States, 252 U.S. 112. United States v. Minnesota, 270 U.S. 181. United States v. Wurts, 303 U.S. 414. County Commissioners v. United States, 308 U.S. 343. But not only is it questionable whether the plaintiff in bringing this action was exercising any of the powers of the sovereign rather than acting as a private creditor , but G.L. (Ter. Ed.) c. 260, Section 18, makes the provisions of the statute of limitations, including the requirement of bringing actions of contract in general within six years (Section 2), apply to the Commonwealth equally with ordinary litigants. It would be unreasonable to suppose that the Legislature intended to leave municipalities with rights superior to those of the Commonwealth itself. See Cohasset v. Moors, 204 Mass. 173 , 178. Actions of contract by collectors for the recovery of taxes are governed by the statute of limitations. Rich v. Tuckerman, 121 Mass. 222 . Bartlett v. Tufts, 241 Mass. 96. Compare Bradford v. Storey, 189 Mass. 104 . We think that the judge rightly applied the statute of limitations to the present case.
The second point made by the plaintiff is that its claim is for the "balance due upon a mutual and open account current," and that the whole account therefore dates from the last item of the account. G.L. (Ter. Ed.) c. 260, Section 6. If that point is well taken, the statute of limitations is escaped, and none of the items is barred.
The account was not a mutual and open account. There were no items in favor of the defendant against the plaintiff which could be set off against the plaintiff's claim. Naturally there was no agreement for any set-off by which a balance would become the debt between the parties. It is sufficient for present purposes to say that the record does not disclose that any such agreement was made. The evidence shows that the plaintiff's account continued to be a running account against the defendant and that this account had not been converted into an open mutual account current between the parties. Parker v. Schwartz, 136 Mass. 30 . Eldridge v. Smith, 144 Mass. 35. Kingsley v. Delano, 169 Mass. 285 . Harding v. Covell, 217 Mass. 120 . Kennedy v. Drake, 225 Mass. 303 . Howland v. Stowe, 290 Mass. 142 . Markiewicz v. Toton, 292 Mass. 434 .
The defendant received treatments at the out-patient department of the hospital, and the judge found that a payment of fifty cents was requested for each treatment and was paid by the defendant. [*] These payments did not change the account into an open mutual account current, Parker v Schwartz, 136 Mass. 30; Day v. Mayo, 154 Mass. 472; Markiewicz v. Toton, 292 Mass. 434, and they did not take the running account outside the statute of limitations. They were not paid in partial satisfaction of a past indebtedness and, consequently, could not be considered an acknowledgment of such indebtedness and an implied promise to pay it. The payments were made for a particular purpose which was separate and independent of the existing indebtedness. The payments were the consideration for treatment presently to be administered to the defendant and were not made on account of any preexisting debt. Such...
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