Duff v. Zonis
| Decision Date | 07 May 1951 |
| Citation | 327 Mass. 347,99 N.E.2d 47 |
| Parties | DUFF v. ZONIS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W. H. McLaughlin, Boston, for plaintiff.
P. J. Dolan, Boston, for defendants.
Before QUA, C. J. and LUMMUS, SPALDING and WILLIAMS, JJ.
This action is brought against Leonard Zonis, Sheldon Baker, and David Zonis 'doing business under the firm name and style of Zonis Manufacturing Company.' The action is in tort for personal injuries sustained by the plaintiff by reason of a collision between a motor vehicle owned by him and a motor truck owned by the defendants and operated by their agent or servant. The defence is the statute of limitations. After a verdict for the plaintiff in the amount of $4,350, received under leave reserved, the trial judge entered a verdict for the defendants and reported his action in so doing to this court, judgment to be entered for the defendants if his action was correct, or for the plaintiff in the amount of the verdict, if his action was erroneous.
General Laws (Ter.Ed.) c. 260, § 4, as most recently amended by St. 1943, c. 409, § 4, provides in part that '* * * actions of tort for bodily injuries * * * the payment of judgments in which is required to be secured by chapter ninety * * * shall be commenced only within one year next after the cause of action accrues.' This action is one the payment of a judgment in which is required to be secured by c. 90. The collision occurred, and the cause of action accrued, on May 31, 1946. The writ in this action is dated June 26, 1947. It is apparent that, if § 4 governs, this action was not brought within the required time.
But the plaintiff relies upon c. 260, § 32. That section, in so far as might be pertinent to this case, reads, 'If, in an action duly commenced within the time limited in this chapter, the writ fails of a sufficient service or return by reason of an unavoidable accident or of a default or neglect of the officer to whom it is committed, or if the writ is abated or if the action is otherwise avoided or defeated by the death of a party thereto or for any matter of form * * * the plaintiff * * * may commence a new action for the same cause within one year after the abatement or other determination of the original action * * *.'
Facts which the jury could have found and upon which the plaintiff relies to bring the present action within the provisions of § 32 were in substance these: On May 29, 1947, within the year following the collision, at about four forty-five or five o'clock in the afternoon, the plaintiff consulted an attorney about the accident and gave him the name 'Zonis Manufacturing Company' as the name of the owner of the truck which had struck the plaintiff's vehicle. The plaintiff had copied this name from the 'registration' which the operator of the truck had exhibited to him. On that day, the 29th, which was Thursday, because of the lateness of the hour, the attorney 'did not have an opportunity to check the registration' of the defendants' truck. The following day, Friday May 30, would be a holiday, and on Saturday the 31st the State House would still be closed. The attorney, knowing that the action had to be brought by the 31st, and 'having no means of checking,' 'accepted the name of Zonis Manufacturing Company,' and on the 29th had a writ prepared, dated that day, in which 'Zonis Manufacturing Company' was named as defendant. We refer to this writ as the former writ to distinguish it from the writ in the action now before us. Upon this former writ was indorsed a memorandum to the officer to serve it on 'the defendant' at an address in Cambridge. It was sent to the deputy sheriff's office with instructions 'to make every effort' to serve it on the 31st. The return of the deputy sheriff shows that on May 31 he attached a chip as the property of 'the within-named defendant corporation, Zonis Manufacturing Company,' and that on June 23 he made diligent search and was unable to find within his precinct its president, treasurer, clerk, cashier, secretary, agent, or other officer in charge of its business and therefore had been unable to make service of the writ upon it. This former writ was received back by the attorney on June 24 or 25. Thereafter, too late to make service the required time before the return day, the attorney discovered that there was no corporation named Zonis Manufacturing Company. The writ was never entered. At the time of the collision Zonis Manufacturing Company was a partnership consisting of the three persons named as defendants in the present writ. Its truck which was in the collision was registered in the partnership name. See Dunn v. Merrill, 309 Mass. 174, 177, 34 N.E.2d 498. When the attorney sent the former writ to the deputy sheriff he intended to bring the action against the person responsible for the accident, and from the information he had he believed that person to be a corporation named Zonis Manufacturing Company.
Before § 32 could be applied in favor of the plaintiff it was necessary for him to show that the former action had been 'duly commenced within the time limited in this chapter'. An action may be 'duly commenced,' even though the writ is subject to abatement. Woods v. Houghton, 1 Gray 580, 581-583. The former writ was made out two days before the expiration of the year, and an attempt was made to serve it on the last day. What was done was done in time. But the defendants contend that the former writ was a nullity because there was no such corporation as Zonis Manufacturing Company, and so the former action was no action at all and could not have been 'duly commenced.' We are unable to agree. The jury could find that the plaintiff and his attorney intended to bring the former action against the person or persons, natural or artificial, by whatever form of organization they might be associated together, who were responsible for the operation of the truck and who were designated in the 'registration' exhibited by the operator of the truck to the plaintiff as Zonis Manufacturing Company. This was in truth the partnership name of the three present defendants who owned the truck and were responsible for its...
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