Loomer v. Dionne

• Decision Date: 14 January 1959
• Citation: 155 N.E.2d 411,338 Mass. 348
• Parties: William E. LOOMER et al. v. Fred DIONNE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 411

155 N.E.2d 411

338 Mass. 348

William E. LOOMER et al. v. Fred DIONNE.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 4, 1958.

Decided Jan. 14, 1959.

James F. Fallon, Jr., Concord, for plaintiffs.

Mayo A. Darling, Concord, for defendant.

Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN v. WHITTEMORE, JJ.

WILKINS, Chief Justice.

In this action of tort alleging negligent operation of a motor vehicle on March 2, 1955, there are two counts, one by the female plaintiff for personal injuries, and a second by the male plaintiff for consequential damages. The writ is dated December 19, 1956. One of the defences is the statute of limitations. When the case was reached for trial, the parties presented a statement of agreed facts upon that issue. The judge ruled that the action is barred by G.L. c. 260, § 4, and that G.L. c. 260, § 32, is not applicable, and ordered that judgment be entered for the defendant. The plaintiffs excepted.

We summarize the facts found by the judge. On February 21, 1956, the attorney for the plaintiffs sent to the deputy sheriffs a writ of the Superior Court with directions to serve on the defendant and to make a real estate attachment. The attachment was made on February 23, 1956, and on the following day the writ was served on the defendant. The writ described the action as 'Tort for personal injuries, consequential damages and property damage.' On the first Monday of April, 1956, when counsel for the plaintiffs attempted to enter the writ, it was brought to his attention that 'the Superior Court no longer had jurisdiction of automobile tort actions.' The plaintiffs' attorney wrote the attorneys for the defendant that, because of that error, the case would not be entered; that the real estate attachment would be discharged; and that a District Court action would be commenced. The attachment was discharged on April 3, 1956. On December 19, 1956, the attorney for the plaintiffs sent the writ in the present action to the sheriff to make a real estate attachment and to serve on the defendant. The case was duly entered and removed to the Superior Court. Except for the name of the court the declaration and writ in the present action are precisely the same as the declaration and writ in the first case. The claim for property damage has been waived.

When the first action was brought, G.L. c. 218, § 19 (as amended through St.1954, c. 616, § 1), provided, 'District courts shall have exclusive original jurisdiction of actions of tort arising out of the ownership, operation, maintenance, control or use of a motor vehicle.' By G.L. c. 260, § 4, '* * * actions of tort for bodily injuries or for death 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 * * *.'

The plaintiffs rely upon G.L. c. 260, § 32, which 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 or demandant or any person claiming under him may commence a new action for the same cause within one year after the abatement or other determination of the original action * * *'. (Italics supplied.)

Questions raised are whether the action was 'duly commenced' within the time limited, and if so, whether it is 'avoided or defeated * * * for any matter of form.' Both points are decided in the plaintiffs' favor, we think, by Woods v. Houghton, 1 Gray 580. There the first writ failed because the action was brought in another county against a defendant and a trustee residing in the county of Essex. It does not appear whether the mistake was in the fact of the trustee's residence or in law. The holding was that the first action prevented the cause of action from being barred by the statute of limitations. After reviewing the history of Rev.Sts. c. 120, § 11, a predecessor statute of G.L. c. 260, § 32, it was said, 'We therefore understand that, by an 'action duly commenced,' that section means an action on a claim 'actually declared upon in a proper writ returnable according to law.' And if these last quoted words had been inserted in § 11, instead of the words 'duly commenced,' we could not have understood 'a proper writ' to mean a writ that could not be abated or defeated for any matter of form, but must have understood it to mean a writ adapted to the cause of action' (at pages 582-583). In rejecting the defendant's argument denying that 'the original writ was abated, or the action otherwise avoided or defeated for any matter of form, because the court dismissed that action for want of jurisdiction,' it was said, '* * * the words used in the statutes declaring the cases in which a second action may be maintained, after a failure of the first, have always been construed favorably for the plaintiff, and never have been held to have a technical meaning; but, as said by Shaw, C. J., in Coffin v. Cottle, 16 Pick. [383,] 386, are meant to declare, that 'where the plaintiff has been defeated by some matter not affecting the merits, some defect or informality, which he can remedy or avoid by a new process, the statute shall not prevent him from so doing, provided he follows it promptly, by a suit within a year.''

In Gaines v. City of New York, 215 N.Y. 533, 109 N.E. 594, L.R.A.1917C, 203, a motor tort action was brought within the one year statutory limitation in a court which had no jurisdiction of actions against the city of New York. Within one year after the action was dismissed but more than one year after the accident, a new action was brought in a court which had jurisdiction. There was a statute similar to G.L. c. 260, § 32. Code Civ.Proc. § 405. In holding that the statute of limitations was not a bar, it was said in an opinion by Judge Cardozo: 'The statute [Code Civ.Proc. § 405] is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that, by invoking judicial aid, a litigant gives...