Consol. Motor Lines, Inc. v. M. & M. Transp. Co.

• Decision Date: 06 June 1941
• Parties: CONSOLIDATED MOTOR LINES, Inc. v. M. & M. TRANSP. CO.
• Court: Connecticut Supreme Court

20 A.2d 621

CONSOLIDATED MOTOR LINES, Inc.

v. M. & M. TRANSP. CO.

Supreme Court of Errors of Connecticut.

June 6, 1941.

Appeal from Superior Court, New Haven County; William H. Comley, Judge.

Action by the Consolidated Motor Lines, Inc., against the M. & M. Transportation Company, to recover for property damage allegedly caused by the negligence of an employee of the defendant while operating a motor truck, wherein the defendant filed a counterclaim to recover for damages to its truck. The issues were tried to the court. From a judgment in favor of the defendant on the complaint and counterclaim, the plaintiff appeals.

No error.

Argued before MALTBIE, C. J., AVERY, BROWN, JENNINGS, and ELLS, JJ.

William L. Hadden, of New Haven (Daniel Pouzzner and Clarence A. Hadden, both of New Haven, on the brief), for appellant.

Philip R. Shiff, of New Haven, for appellee.

MALTBIE, Chief Justice.

On January 23, 1940, the plaintiff brought this action to recover damages alleged to be due to the negligence of an employee of the defendant while operating a motor truck in the course of his employment, alleging that the accident occurred on October 10, 1939. On October 5, 1940, the defendant made a motion for permission to amend an answer which it had already filed to include a counterclaim, a copy of which was attached to the motion. In this pleading it sought damages to its truck which was involved in the accident, alleging that the accident occurred on the day stated in the complaint. It was admitted on the argument that a copy of the motion, including the proposed counterclaim, was received by the plaintiff's attorneys on October 7, 1940. The motion was granted on October 15, 1940. The case having been heard, the trial court gave judgment for the defendant on both the complaint and the counterclaim. The plaintiff has appealed on the ground that the claim stated in the counterclaim was barred by the Statute of Limitations, which requires that an action seeking a recovery in a case of this kind shall be brought within one year from the date of the act or omission complained of. General Statutes, Cum. Supp. 1935, § 1680c.

We may assume for the purposes of this case that a counterclaim of the nature of that before us is so far to be regarded as an independent action that the Statute of Limitations applies as it would were a separate suit brought. In many jurisdictions, as regards that statute, an action is deemed to have been brought when the writ is issued, if the plaintiff then has a definite intention to pursue it in court and does so within a reasonable time; and in other jurisdictions the action is deemed to have been brought when the writ is given to an officer to serve. Note, 15 Am. Dec. 344; 1 Am.Jur., Actions, § 58. The reason why such action by the plaintiff is deemed sufficient to stop the running of the statute is that it "evinces a settled purpose no longer to sleep upon his rights and allow the time limited by statute, in which the law will presume the debt to have been paid, to elapse." Randall v. Bacon, 49 Vt. 20, 22, 24 Am.Rep. 100. From a very early date in this state the time when the action is regarded as having been brought is the date of service of the writ upon the defendant....