Leno v. Meunier

• Decision Date: 06 April 1965
• Docket Number: No. 318,318
• Court: Vermont Supreme Court
• Parties: Robert C. LENO v. Louis J. and Marie R. MEUNIER.

Page 485

209 A.2d 485

125 Vt. 30

Robert C. LENO v. Louis J. and Marie R. MEUNIER.

No. 318.

Supreme Court of Vermont.

April 6, 1965.

Peter Forbes Langrock, Middlebury, for plaintiff.

Black, Wilson & Hoff, Burlington, for defendants.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH, and KEYSER, JJ.

KEYSER, Justice.

Plaintiff's action was brought to Chittenden County Court on July 10, 1961 to recover damages for injuries claimed to have been suffered on defendants' premises where plaintiff rented an apartment. The defendants' answer set forth general denial and affirmative defenses of statute of limitations, contributory negligence and assumption of risk. The answer included a motion to dismiss the action on the ground that it was barred by the statute of limitations.

The plaintiff replied to this motion that a previous suit was seasonably brought on August 16, 1960 in the United States District Court for Vermont; that the writ was dismissed by the District Court on June 17, 1961 without trial on the merits for the lack of jurisdiction and that this present action was commenced within one year after the dismissal of the former action as provided by 12 V.S.A. § 558(a)(2).

The defendants by rejoinder admitted the prior suit in Federal court and that it was dismissed on the ground that the court lacked jurisdiction to determine the cause. The rejoinder also alleged that plaintiff testified at the trial in Federal court regarding his claimed residence in New York state; that the Federal court judge later read a deposition of plaintiff's landlady in New York and then made a finding that there was no diversity of citizenship and dismissed the action; and further that the plaintiff was not entitled to take advantage of 12 V.S.A. § 558(a)(2) 'because he deliberately sought to deceive the District Court on the question of his citizenship.'

The court below heard the motion to dismiss on oral arguments of counsel. Later the trial judge advised counsel by letter that it was his intention to grant the motion but felt that certain evidence was required to make the record straight in support of defendants' motion. He directed that evidence be taken on the issue raised by the pleadings. Upon hearing, evidence was taken and findings of fact were made. The court by written order granted defendants' motion to dismiss based on the statute of limitations. Judgment was entered for defendants from which the plaintiff appealed to this court.

The record shows plaintiff's alleged injury occurred on December 24, 1957 and that this action was brought in Chittenden County court on July 10, 1961. The overall question raised by the pleadings is whether the three-year limitation (12 V.S.A. § 512) for bringing an action bars the prosecution of this suit, or whether under the facts in the case 12 V.S.A. § 558(a)(2) tolls the statute for a further period of one year.

The pertinent part of 12 V.S.A. § 558 involved here reads:

'The plaintiff may commence a new action for the same cause within one year after the determination of the original action, when such original action has been commenced within the time limited in this chapter, and such action has been determined for any of the following reasons:

'(2) Where the writ is abated.'

In an action at law the statute of limitations cannot be taken advantage of by a motion to dismiss. Johnson v. Wells-Lamson Quarry Company, 103 Vt. 475, 476, 156 A. 681, 77 A.L.R. 492. Numerous cases are there cited in support of this proposition. The reason for this rule as the court there said is that the plaintiff would be deprived of the opportunity of replying and pleading any matter which would prevent the bar from attaching.

In the instant case the plaintiff did reply by setting forth facts which he claimed made the saving proviso of 12 V.S.A. § 558(a)(2) operative. And to this plea the defendants rejoined, admitting the critical facts related to the statute but alleging other facts in support of their claim that the benefit of the statute should not be available to the plaintiff.

Under 12 V.S.A. § 1024, it is required that a party shall affirmatively set forth and establish, inter alia, fraud, statute of limitations and any other matter constituting avoidance of affirmative defense. Here, the defendants did set forth as one of its affirmative defenses the statute of limitations and made the statute the basis of their motion to dismiss. In effect defendants' motion and rejoinder constitute a plea in abatement. It asserts matter which is claimed to be a ground for abating or defeating plaintiff's suit without destroying the right of action itself.

By the pleadings the parties injected an issuable fact into the case and one triable by jury. The defendants inappropriately labeled their pleadings a motion to dismiss and the court also denominated it as such. It was a plea to resist and defeat plaintiff's right to maintain his suit and was tried and determined as such. The procedure adopted by the court below to hear and decide this one particular defense was acquiesced in by the parties. The matter proceeded to hearing by the court without opposition or objection of the parties. They participated in the proceeding and by so doing waived any right to a jury trial on this issue. It was treated by them as a resolution of the issue. Thus, the factual situation is before us since it was squarely raised and concluded through the action of the court and the parties. In Merrill v. Reed, 123 Vt. 248, at page 252, 185 A.2d 737, at page 740, we held that 'where it appears from the record that the trial below proceeded upon a certain theory, acquiesced in by court and counsel, the theory thus adopted, whether right or wrong, becomes the law of the case.'

The defendants urge it was fraudulent action on the part of the plaintiff to claim his residence in New York and that by doing so he 'sought to deceive the District Court.' If true, defendants say the writ abated because of the fault of the plaintiff and he does not have the benefit of the exception in the statute.

It is our settled law that statutes of limitations are remedial and should be construed liberally. Hayden v. Caledonia Nat'l Bank, 112 Vt. 491, 28 A.2d 389, 142 A.L.R. 1178; Spear v. Curtis, 40 Vt. 59, 65; 54 C.J.S. Limitations of Actions § 287, p. 347.

We cannot ignore the plain meaning of unambiguous words or language, it being the long established rule that where the meaning of a statute is plain there is no necessity for construction, Blanchard v. Blanchard's Estate, 109 Vt. 454, at page 459, 199 A. 233, and the courts must enforce it according to its terms. City of Rutland v. Keiffer, 124 Vt. 357, 205 A.2d 400; Mier's Admr. v. Boyer, 124 Vt. 12, 13, 196 A.2d 501.

'There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.' United States v. American Trucking Ass'ns Inc., 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345.

The statute, 12 V.S.A. § 558(a)(2), specifically provides in clear, plain and definite language under what circumstances a plaintiff has the right to bring a new action for the same cause. It has no doubtful meaning or repugnancy, and is susceptible to but one construction. There are neither exceptions nor limitations mentioned in sub-section 2. Neither does the statute invoke a penalty for failure of the plaintiff to establish jurisdiction of the court in the prior action. We cannot engraft upon the statute exceptions, conditions or requirements under which the saving proviso shall become forfeited or inoperative. To do so would require something in the nature of a major operation upon the long standing work of the legislature. The court would be making the law instead of administering it. Thus, if a case falls within the letter of the statute, the court has no power to attach conditions to it.

The questions for review raised by the plaintiff's appeal and his brief are (1) the sufficiency of the evidence to support findings of fact numbered 8 and 9 and (2) whether the findings support the judgment. Various other exceptions appear of record but not being briefed by the appellant are waived. Metcalf Co. v. Crossroads, Inc., 121 Vt. 147, 150, 151 A.2d 307.

Findings 8 and 9 with which we are concerned are as follows:

'8. The court does not find that it is improper or illegal to change one's residence in order to come within the jurisdiction of another court. However, it is improper and illegal to fraudulently attempt to establish such residence, and that the plaintiff in this action did fraudulently attempt to establish a residence in Plattsburg, New York, for the purpose of coming within the jurisdiction of the Federal Court of the District of Vermont.'

'9. The reason for the dismissal of the cause of action in the United States District Court for the District of Vermont was caused by the fraudulent acts of the plaintiff, and therefore, the application of 12 VSA Section 558(2) is not available to the plaintiff, and the motion to dismiss should be granted.'

Plaintiff excepted to all but the first sentence of finding 8 and to all of finding 9.

Findings must stand if there is any evidence fairly and reasonably tending to support them. Murray v. Webster, 123 Vt. 194, 196, 186 A.2d 89. And we must read the evidence in support of the findings, if reasonably possible, when considered as a whole. Little v. Little, 124 Vt. 178, 182, 200 A.2d 276.

The pertinent portion of finding 8 excepted to is 'the plaintiff * * * did fraudulently attempt to establish a residence in Plattsburg, New York.' In this finding, the court stated that it is proper and legal for a person to attempt to change his residence so as to give jurisdiction to another court. The court does not find any facts upon which plaintiff's 'fraudulent attempt' to change his residence is formulated.

The only evidence produced at the hearing was by the...