Kenyon v. United Electric Rys. Co.

• Decision Date: 30 June 1930
• Docket Number: No. 6759.,6759.
• Citation: 151 A. 5
• Parties: KENYON v. UNITED ELECTRIC RYS. CO.
• Court: Rhode Island Supreme Court

151 A. 5

KENYON

v. UNITED ELECTRIC RYS. CO.

No. 6759.

Supreme Court of Rhode Island.

June 30, 1930.

Reargument Denied.

Oct. 20, 1930.

Exceptions from Superior Court, Providence and Bristol Counties; Antonio A. Capotosto, Judge.

Action of trespass on the case by Frances A. Kenyon against the United Electric Railways Company. Defendant's motion for a new trial after a verdict for plaintiff was granted, unless plaintiff remitted part of the verdict, and each party brings exceptions.

Exception to denial of defendant's motion for a directed verdict sustained.

Ralph M. Greenlaw, of Providence, for plaintiff.

Clifford Whipple and Earl A. Sweeney, both of Providence, for defendant.

SWEENEY, J.

This action of trespass on the case is brought to recover damages for personal injuries. After trial in the superior court, the jury returned a verdict for the plaintiff for $19,000. Defendant's motion for a new trial was granted by the trial justice, if plaintiff refused to remit $5,000 of the verdict. The case is before this court on the exceptions of each party to this decision of the trial justice and other exceptions taken during the trial.

The only exception necessary to be considered is the one to the denial of defendant's motion for a directed verdict on the ground that the action was not commenced within the time limited by law.

There is legal evidence to support the finding that, as alleged in the declaration, plaintiff was seriously injured October 22, 1926, by the negligent starting of one of defendant's trolley cars.

By section 4876, chapter 334, § 1, General Laws 1923, entitled, "Of the Limitation of Actions," it is provided that: "Actions for injuries to the person shall be commenced and sued within two years next after the cause of action shall accrue, and not after." Plaintiff did not commence her action until the 25th day after the expiration of the two years fixed by this statute. In reply to defendant's special plea in bar to the effect that plaintiff could not maintain her action because it was not commenced within two years after her cause of action accrued, plaintiff filed a replication alleging that she ought not to be barred from maintaining her action, because defendant, by its agents and servants, caused her to delay bringing said action within said two years "by inducing her by words to that effect to believe that an amicable settlement of her claim against the defendant would be made without suit." Defendant's demurrer to this replication was overruled, and its exception was noted. Issue was then joined on the facts alleged in the replication.

The exception to the denial of the motion for a directed verdict requires a construction of the statute above quoted: "If the language of the statute is plain and free from ambiguity, and expresses a single, definite and sensible meaning, the meaning is conclusively presumed to be the meaning which the legislature intended to convey. In other words, the statute must be interpreted literally." In such a case the court is not at liberty to substitute for the will of the Legislature its own ideas as to the justice, expediency, or policy of the law. Blais et al. v. Franklin et al. Comm'rs, 31 R. I. 95, 105, 106, 77 A. 172, and no construction will be adopted which will defeat the evident purpose of the statute, Greenough, Atty. Gen. ex rel. v. Board of Police Commissioners, 29 R. I. 410, 71 A. 806, and the court cannot declare a statute void as against public policy, Baxter v. Tripp, C. T., 12 R. I. 310. In Griffin v. Woodhead, 30 R. I. 204, 74 A. 417, this court said it was of the opinion that this statute was "explicit as to the period of limitation for all actions for injuries to the person, whatever may be their form." The language of the statute is clear and definite, and has only one meaning.

Plaintiff seeks to avoid the effect of this statute by claiming that defendant is estopped from pleading it in bar of her action under authority of Reynolds, Adm., v. Hennessy, 17 R. I. 169, 20 A. 307, 23 A. 639, 640, where it was held on demurrer to replication that defendant's fraudulent concealment of the existence of the cause of action would hinder the operation of the statute of limitations, the court saying: "If one by fraud conceals the fact of a right of action for six years, it is not engrafting an exception on the statute to say he is not protected thereby, but it is simply saying he never was within it, since the protection was never designed for such as he." Soon after this opinion was rendered the General Assembly adopted the substance of it by enacting a law, now known as section 4882, c. 334, § 7, General Laws 1923, which provides in substance that, if any person, liable to an action by another, shall fraudulently, by actual misrepresentation, conceal from him the existence of the cause of such action, said cause of action shall be deemed to accrue at the time when the person entitled to sue thereon shall first discover its existence.

The case and statute just cited do not apply to the facts in the case at bar, for there was no concealment of the cause of action from plaintiff. It appears in the record that defendant's adjuster, Mr. Lavoice, did not know of the accident to the plaintiff until she called at the office of the defendant in November, 1926, and told him about her accident and gave him the number of the conductor and the number of the trolley car; the adjuster said they would look the matter up; that, after this interview, November 22, defendant's claim agent wrote to plaintiff that her claim had been investigated, and, if she would call at his office, he would be glad to talk with her. After the receipt of this letter, plaintiff went to defendant's office in November, met Mr. Lavoice, and had a talk with him, during which he asked her how much she wanted, and she said she had been injured severely and would wait until she had recovered before she made a final claim, and he said: "Then you will come in and let us know when you are ready to settle," and she said, "Yes," and he replied: "We" will do the right thing by you. It is evident you have been badly injured and we will do the right thing by you."

Eighteen months passed before plaintiff went again to the office of defendant in May, 1928, and had a talk with Mr. Lavoice, during which he asked her how much she wanted, and she named him a figure, and he said he would see about it and let her know. In July, 1928, plaintiff telephoned to Mr. Lavoice that she had not heard from him, and he said she would hear from him. Not hearing from Mr. Lavoice, she telephoned in September, and he said that they had been very busy but that she would hear from him. She did not hear from him, and telephoned again November 5, 1928, and he said that they would not do anything, as they had dropped the case. November 9 she went to the office of Mr. Lavoice and asked him why they did not let her know they would not do anything, and he said "they had been very, very busy in the office," and she said: "I made a proposition to you," an...