Lydia S. Johnson v. Wells-Lamson Quarry Co., Inc

• Decision Date: 06 October 1931
• Citation: 156 A. 681,103 Vt. 475
• Parties: LYDIA S. JOHNSON v. WELLS-LAMSON QUARRY CO., INC
• Court: Vermont Supreme Court

156 A. 681

103 Vt. 475

LYDIA S. JOHNSON v. WELLS-LAMSON QUARRY CO., INC

Supreme Court of Vermont

October 6, 1931

May Term, 1931.

Opinion field Limitation of Actions---Manner of Raising Question of Statute of Limitations---Effect of Plaintiff's Failure To Rely in Declaration upon All Grounds of Negligence Available---Judgment---"Matters of Form" within Meaning of G. L. 1866.

1. Statute of limitation, in law action, can be taken advantage of only by answer or plea, even though declaration shows on its face that statutory period has expired.

2. Suit tried on merits, and questions involved, whether of law or fact, finally determined, cannot be said to have failed for matter of form, under G. L. 1866 granting extension of time because plaintiff omitted therein to rely on other facts available to him.

3. Parties to judgment are concluded thereby not only as to all issues which were actually tried, but as to all those which might have been tried.

4. Suit for alleged negligence, which could have been based both upon negligent operation of stone crusher and negligent obstruction of highway, but was based upon former ground only, held not to have failed for "matter of form," within meaning of that term as used in G. L 1866, granting extension of time for instituting suit under certain circumstances.

ACTION OF TORT for negligence. Defendant filed motion to dismiss on ground that on face of record plaintiff's right of action, if she had one, was barred by the statute of limitations, to which plaintiff answered that nature and disposition of former suit in which there was verdict and judgment for the defendant (see 103 Vt. 178, 153 A. 208) was such that she could maintain present suit by virtue of the provisions of G. L. 1866. Trial by court at the March Term 1931, Washington County, Sherburne, J., presiding. Defendant's motion sustained, and suit dismissed. The plaintiff excepted. The opinion states the case.

Judgment dismissing the action stricken off, and judgment for the defendant, which would be the regular entry if the main question had been raised in proper form.

John W. Gordon for the plaintiff.

J. Ward Carver for the defendant.

Present: POWERS, C. J., SLACK, MOULTON, and THOMPSON, JJ.

OPINION

SLACK

The plaintiff is seeking damages for personal injuries alleged to have resulted from the defendant's negligence. She received such injuries October 26, 1927. She seasonably brought suit therefor returnable to the Washington county court. In that case the defendant had a verdict and judgment in the lower court, and the judgment was affirmed by this Court at the November Term, 1930 (103 Vt. 178, 153 A. 203). The present suit was commenced January 20, 1931. The declaration alleges the true date on which plaintiff was injured, but alleges no facts that toll the statute of limitations fixed by G. L. 1850. The defendant filed a motion to dismiss on the ground that it appears on the face of the record that plaintiff's right of action, if she had one, is barred by the statute of limitations. The motion was sustained, and the suit dismissed.

The first question for consideration is whether the statute of limitations can be taken advantage of by this kind of a motion. This must be answered in the negative. Not a single case has been found in this, or any other jurisdiction, that recognizes such procedure. In some states the question may be raised by demurrer where it affirmatively appears from the allegations of the declaration that the statute has run. But at common law, which governs our procedure in this respect, the statute of limitations, in actions at law, can be taken advantage of only by answer or plea, even when the declaration shows on its face that the statutory period has expired. Wall v. C. & O. R. R. Co., 200 Ill. 66, 65 N.E. 632; Russell v. Garrett, 204 Ala. 98, 85 So. 420; Miller v. Aldrich, 202 Mass. 109, 88 N.E. 441, 132 Am. St. Rep. 480; Humphrey v. Carpenter, 39 Minn. 115, 39 N.W. 67; Callan v. Bodine, 81 N.J.L. 240, 79 A. 1057; Punta Gorda Bank v. Ft. Meade State Bank, 52 Fla. 399, 42 So. 846; Vyse v. Richards, 208 Mich. 383, 175 N.W. 392; 13 Enc. Pl. & Pr., 200; 1 Chitty's Pl., 496. The reason for this is stated thus in Wall v. C. & O. R. R. Co., supra, "The defendant cannot demur to a declaration even where it appears on its face that the limitation prescribed by the statute has expired, because the plaintiff would thus be deprived of the opportunity of replying and pleading any matter which would prevent the bar from attaching." So in the instant case, if the defendant could avail itself of the statute of limitations under this motion the plaintiff would be deprived of the opportunity of pleading another statute which, if applicable, entitles her to maintain this suit. This statute is G. L. 1866, and it provides: "If, in an action commenced within the time limited in this chapter (G. L. chap. 95), the writ * * * is abated, or the action otherwise defeated or avoided by the death of a party thereto, or for matter of form, * * * the plaintiff may commence a new action for the same cause within one year after such determination of the original action," etc. There are many other exceptions to the general provisions of the statute fixing the time within which different actions must be brought. See G. L. 1859 et seq. If the statute of limitations can be interposed as a defense by a motion to dismiss, or by demurrer, a plaintiff in order to avail himself of any of these exceptions must anticipate the defense, and embody in his declaration the exception relied upon. Such is not, nor has it ever been, the practice in this State. The proper procedure is that adopted in Carpenter v. McClure, 40 Vt. 108. Nor was this changed by the Practice Act (G. L. 1789 et seq.).

It follows that the judgment would have to be reversed had not the parties, induced by plaintiff's answer to the defendant's motion, brought into the record by their subsequent pleadings the precise question upon which her right to maintain this suit depends, namely, whether the nature and disposition of the former suit was such as to enable her to maintain the present one by virtue of the provisions of G. L. 1866. Since this question has been fully presented, although in a manner that would not ordinarily be recognized, and since the rights of the parties ought to be determined without further expense or delay, we deem it advisable to consider it.

If this suit can be maintained, it is because the former one failed for matter of form, since this is the only exception provided by G. L. 1866 applicable to the situation presented. It appears from the declaration both in this and in the former suit that the defendant had dug ditches within the limits of the highway and in so doing had thrown dirt and other material into the traveled portion thereof, and had placed a barrel or drum on either side of such highway so near together that the space available for travel was narrow; that on the day of the...