Doughty v. Me. Cent. Transp. Co.

• Decision Date: 04 November 1944
• Citation: 39 A.2d 758
• Parties: DOUGHTY v. MAINE CENTRAL TRANSP. CO.
• Court: Maine Supreme Court

39 A.2d 758

DOUGHTY

v.MAINE CENTRAL TRANSP. CO.

Supreme Judicial Court of Maine.

Nov. 4, 1944.

Exceptions from Superior Court, Cumberland County.

Action of assumpsit for personal injuries by Bessie S. Doughty against the Maine Central Transportation Company. To review a ruling sustaining the plaintiff's demurrer to its plea, the defendant brings exceptions.

Exceptions overruled.

Before STURGIS, C. J., and THAXTER, HUDSON, and MANSER, JJ.

Nathan W. Thompson and Richard S. Chapman, both of Portland, for plaintiff.

William B. Mahoney and John B. Thomes, both of Portland, for defendant.

HUDSON, Justice.

The defendant excepts to a ruling below sustaining the plaintiff's demurrer to its plea, wherein, by way of brief statement, a special statute of limitations was set up in defense.

This action is assumpsit, brought to recover damages for personal injuries suffered by the plaintiff on June 15, 1942, while a fare-paying passenger on a motor bus owned and operated by the defendant, when the bus left the travelled portion of the highway and collided with a tree near Bethel, Maine.

In the brief statement, the defendant alleged “That under Section 11 of Chapter 66 of the Revised Statutes of Maine, 1930, it is provided that this action shall be commenced only within one year after the cause of action occurs.” It was not brought within the year.

Sec. 11, reads as follows:

“Actions of tort for injuries to the person or for death and for injuries to or destruction of property caused by the ownership, operation, maintenance or use on the ways of the state of motor vehicles or trailers subject to the supervision and control of the public utilities commission, shall be commenced only within one year next after the cause of action occurs.”

The question is the applicability of this statute. The plaintiff contends that in place of Sec. 11, the statute governing the time in which this action could have been brought lawfully is Chap. 95, Sec. 90, Par. IV, R.S.1930, which reads in part:

“The following actions shall be commenced within six years after the cause of action accrues and not afterwards.

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“IV. Actions of account, of assumpsit or upon the case, founded on any contract or liability, express or implied.”

If this statute is applicable, this action was seasonably commenced.

The gist of the defendant's argument is that this “action, in substance, is one ‘of tort”’ and that “if the words ‘of tort’ are directed to the form of the action rather than to its substance, then the action is one for personal injury for negligence” and “is controlled by the limitation in Sec. 11.”

Thus we are called upon to construe the statutory words “actions of tort for injuries,” etc. It is elemental that in doing this we must attempt to discover the legislative intent. That intent is to be sought from the language used by the Legislature and we should not substitute language of our own in place of that used by it or do violence to its language. Furthermore, regarding this statute in derogation of common law, it must be strictly construed.

Then what did the Legislature intend when it said “actions of tort”? Had it in mind the form of the action or the cause of action upon which it would be based? Counsel agree upon the law enunciated in Goddard v. Grand Trunk Railway, 57 Me. 202, on pages 217 and 218, 2 Am.Rep. 39, where the Court said:

“The law requires the common carrier of passengers to exercise the highest degree of care that human judgment and foresight are capable of, to make his passenger's journey safe. Whoever engages in the business impliedly promises that his passenger shall have this degree of care. *** The passenger's remedy may be either in assumpsit or tort, at his election.”

“The law requires him” (meaning a common carrier) “to carry with impartiality and safety for those who offer. If he fails to do so, he is chargeable with a tort. But when goods are delivered to him for carriage, there is also a contract, express or by operation of law, that he will carry with impartiality and safety; and if he fails in this there is a breach of contract. Thus for the breach of the general duty, imposed by law because of the relation, one form of action may be brought, and for the breach of contract another form of action may be brought.” Cooley on Torts, 3d Ed., Vol. 1, p. 159.

This from 37 C.J. § 73, p. 749:

“Viewed with reference to the statute of limitations, an action against a carrier, whether of goods, or of passengers, for injury resulting from a breach of contract for safe carriage is one on contract, and not in tort, and is therefore governed by the statute fixing the period within which actions for breach of contract must be brought.”

To the same effect, 25 Cyc. § 3, p. 1033. In both C.J. and Cyc., supra, are cited many cases sustaining the context.

In Lamb, Executor, v. Clark, 5 Pick. 193, 22 Mass. 193, on page 198, it is stated:

“If an injured party has a right to either of two actions, the one he chooses is not barred, because the other, if he had brought it, might have been.”

In United States v. Whited & Wheless, Ltd., 246 U.S. 552, 38 S.Ct. 367, 62 L.Ed. 879, 882, 883, Mr. Justice Clarke held likewise, citing Lamb v. Clark, supra.

Later, in Currier v. Studley, 159 Mass. 17, 27, 33 N.E. 709, 713, that Court said:

“It is well settled also that one remedy may be barred and another not. The question in each case is whether the remedy that is chosen is barred.” (Italics ours)

In Hughes v. Reed et al., 10 Cir., 46 F. 2d 435, on page 440, the Court stated:

“Stated more accurately, the question presented to us is whether the facts alleged state a breach of an implied contract, for, if the facts disclose both a breach of an implied contract and a tort, the appellant may recover in debt or assumpsit, although the remedy in tort is barred by limitations. *** Where doubt exists as to the nature of the action, courts lean toward the application of the longer period of limitations.”

Also see Frankfort Land Co. v. Hughett, 137 Tenn. 32, 191 S.W. 530, in which the tort was waived and action in indebitatus assumpsit was brought and the Court applied the assumpsit rather than the tort statute of limitations.

It must be assumed that the Legislature enacted Sec. 11 with knowledge of the law as to...