Gallo v. Foley

• Decision Date: 03 December 1937
• Citation: 11 N.E.2d 803,299 Mass. 1
• Parties: GALLO v. FOLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 1

11 N.E.2d 803

GALLO

v.FOLEY.

Supreme Judicial Court of Massachusetts, Worcester.

Dec. 3, 1937.

Action of tort by John Gallo against George F. Foley, administrator. From orders sustaining the defendant's demurrer and plea in bar, the plaintiff appeals.

Appeal from order sustaining the plea in bar dismissed and order sustaining the demurrer reversed.Appeal from Superior Court, Worcester County; Burns, Judge.

F. P. McKeon, of Worcester, for appellant.

C. C. Milton, of Worcester (R. C. Milton, of Worcester, on the brief) for appellee.

FIELD, Justice.

This is an action of tort brought by writ dated February 10, 1937, against George F. Foley, as he is administrator of the estate of Allan G. Ashton. The declaration as amended alleges in substance that on or about January 12, 1932, the plaintiff, while lawfully using a public highway, was injured as the result of the negligent operation of an automobile by the defendant's intestate, and alleges further that this ‘action is brought under the provisions of General Laws (Ter.Ed.) chapter 197, section 12.’

The defendant demurred on three grounds: The first, ‘That the matters contained in the plaintiff's declaration are insufficient in law to enable the plaintiff to maintain his action,’ and the third, ‘That the plaintiff's declaration sets forth no allegations of facts entitling him to bring his action under the provisions of General Laws (Ter.Ed.) chap. 197, sec. 12.’ The defendant also filed a so called ‘Defendant's plea and motion for judgment for the defendant’ in which he alleges that the plaintiff had brought an action of tort ‘against the defendant in this action for the same cause of action and damage set forth in the declaration in the present case,’ that the action was tried and judgment thereon was entered in accordance with a rescript of this court, ‘all of which appears according to the attested copies of the docket entries of said Superior Court, the writ, declaration, defendant's answer, defendant's motion to amend answer and rescript hereto annexed,’ and ‘that the aforesaid judgment is a bar to the plaintiff's action and he cannot recover in this action,’ and ‘moves that the Court enter judgment for the defendant.’

The trial judge sustained the demurrer on the first and the third grounds thereof, and on the same day made an order, ‘Defendant's Plea in Bar is Sustained. Case ordered dismissed.’ The plaintiff appealed ‘from the order of the Court * * * sustaining the defendant's demurrer and plea in bar.’

First. The appeal brings before us for review the order sustaining the demurrer. Such an appeal was specifically authorized by G.L. (Ter.Ed.) c. 231, § 96, and entry thereof in this court was authorized by that section since the case, except for this appeal, was ‘ripe for final disposition by the Superior Court’ in accordance with the order sustaining the demurrer. Morrill v. Crawford, 278 Mass. 250, 252, 179 N.E. 609.

The order sustaining the demurrer was error.

The declaration contains the allegations essential to an ordinary action of tort for negligence in the operation of a motor vehicle. See G.L. (Ter.Ed.) c. 231, § 147, form 13. It appears, however, that the action was brought against the administrator for the negligence of his intestate. Such an action must be ‘commenced within one year from the time of his giving bond’ (G.L.[Ter.Ed.] c. 197, § 9, as amended by St.1933, c. 221, § 4), with qualifications not here material. But the plaintiff was not required to allege in his declaration that the action was so commenced. The defence in an action at law, of the short statute of limitations must be set up in the answer if it is to be availed of, though if so pleaded the burden is cast upon the plaintiff of proving that the action was commenced seasonably. Breen v. Burns, 280 Mass. 222, 228, 182 N.E. 294. Even where it appears from the declaration that the action was not commenced within the time limited, the defence cannot be taken by demurrer. Sawyer v. Boston, 144 Mass. 470, 472, 11 N.E. 711;Hodgdon v. Haverhill, 193 Mass. 327, 330, 79 N.E. 818;Miller v. Aldrich, 202 Mass. 109, 113, 88 N.E. 441,132 Am.St.Rep. 480. The declaration, therefore, was good against demurrer unless made bad by the reference therein to G.L.(Ter.Ed.) c. 197, § 12.

G.L.(Ter.Ed.) c. 197, § 12, provides in part that ‘If an action commenced against an executor or administrator before the expiration of one year from the time of his giving bond fails of a sufficient service or return by an unavoidable accident, [or] if the writ in such action is abated or defeated in consequence of a defect in the form thereof or of a mistake in the form of the proceeding * * * the plaintiff may commence a new action for the same cause within one year after the abatement or other determination of the original action.’ No cause of action arose under this section. It merely authorizes ‘a new action for the same cause’ and extends the time within which such an action may be brought, removing the bar of the short statute of limitations. Allegations of fact which bring the case within the terms of this section are not essential to a statement of the cause of action. Such facts are to be shown to remove the bar of the short statute of limitations if properly pleaded. Hodgdon v. Haverhill, 193 Mass. 327, 330, 79 N.E. 818. The reference in the declaration to G.L.(Ter.Ed.) c. 197, § 12, was made in anticipation of this defence. This reference, however, did not bring into the declaration allegations of fact showing that the action was not commenced seasonably. But even if it had done so the defence could not be taken by demurrer. And it was not taken by answer. The inclusion of the reference in anticipation of the defence of the short statute of limitations is not ground for demurrer. Brocklehurst & Potter Co. v. Marsch, 225 Mass. 3, 6, 113 N.E. 646. Where, as here, this defence was not pleaded the reference to said section 12 was merely surplusage. Consequently it is immaterial whether or not the declaration alleged facts sufficient to meet the defence of the short statute of limitations if it had been set up in an answer. The declaration was not bad on demurrer by reason of the reference therein to G.L.(Ter.Ed.) c. 197, § 12.

Second. The appeal does not bring before us for review the order relating to the so called ‘plea in bar.’

The so called ‘plea in bar’ contains matter proper for an answer setting up a former judgment in avoidance of the action and, though wrongly entitled (since pleas in bar in actions at law are abolished), is to be treated as an answer in accordance with its true nature. See G.L.(Ter.Ed.) c. 231, § 22; Foye v. Patch, 132 Mass. 105, 109, 110;E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110, 163 N.E. 883;DiRuscio v. Popoli, 269 Mass. 482, 486, 169 N.E. 548.

An appeal can be taken from an order of the Superior Court in an action of law only from (a) an order ‘sustaining or overruling a demurrer which alleges that the facts stated in the pleadings demurred to do not in law support or answer the action,’ (b) ‘an order for judgment upon a case stated,’ or (c) an ‘order decisive of the case founded upon matter of law apparent on the record.’ G.L.(Ter.Ed.) c. 231, § 96. The order here in question was not an order of any of the kinds here described. It did not sustain or overrule a demurrer. And there was no case stated.

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