McLearn v. Hill

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation276 Mass. 519,177 N.E. 617
PartiesMcLEARN v. HILL.
Decision Date12 September 1931


Exceptions from Superior Court, Suffolk County; C. H. Donahue, Judge.

Action by John W. McLearn against William J. Hill. On plaintiff's bill of exceptions to directed verdict for defendant.

Exceptions sustained.

J. S. McCann, of Boston, for plaintiff.

C. F. Albert, of Boston, for defendant.


This is an action of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff on December 9, 1927, through the negligent operation of a motor vehicle owned by the defendant and driven by his agent acting within the scope of his employment. In his answer the defendant, amongst other matters, pleaded the statute of limitations, whereby it is required that an action of this nature be brought within one year after the cause of action accrues. The plaintiff was allowed during the trial to file a replication to that part of the answer. G. L. c. 231, §§ 34, 35; Comstock v. Livingston, 210 Mass. 581, 97 N. E. 106. In support of his replication the plaintiff offered to prove these facts: On April 27, 1928, the plaintiff commenced an action in a municipal court for the same cause as the present action. The answer of the defendant to that action was a general denial alone. Toward end of the year that case was in order for trial and the plaintiff was prepared to proceed to trial. Counsel for the defendant then suggested to counsel for the plaintiff that there were a number of cases growing out of the same accident pending in the Superior Court and that, in order to save several trials in different cases on the same facts, he felt that the case should be brought in the Superior Court and there tried with the other cases. In reply, counsel for the plaintiff stated that he was willing to discontinue the pending case and start a new one in the Superior Court, provided all opposing counsel would agree that it could be tried with other pending cases and would not have to wait to be tried in its order. An agreement to that effect was made. Conference and correspondence touching the suggestion and ultimate arrangement lasted a number of weeks, if not months. Shortly thereafter, and in reliance by counsel for the plaintiff upon all that had occurred, on January 28, 1929, the action in the municipal court was discontinued and on the same date the present action was instituted. The answer of the defendant, filed on March 15, 1929, set up the statute of limitations as well as other defences including a general deniel, but no copy was sent to the plaintiff as required by Common Law Rule 9 of the Superior Court (1923). Counsel for the plaintiff overlooked the fact that no copy had been received by him and assumed that the answer was the same as in the earlier action. At the trial in the Superior Court pleadings were not read in open court because eighteen cases were involved, and it was not until motion was made for a directed verdict in favor of the defendant on the ground of the statute of limitations that this defense came to the attention of counsel for the plaintiff.

This offer of proof was excluded. The case was submitted to the jury. A verdict was returned for the plaintiff, but under leave reserved the presiding judge directed the entry of a verdict in favor of the defendant on the ground that the action was barred by the statute of limitations, G. L. c. 231, § 120. The plaintiff's exceptions to these adverse rulings bring the case here.

Since the offer of proof was excluded, the facts therein stated must be taken to be true for the purposes of this decision. The jury might have believed the evidence tending to prove them, if it had been admitted.

The point to be decided is whether the offer of proof raised an issue of fact on the defense of the statute of limitations. But for the matters contained in the offer of proof, the statute of limitations was a complete bar. The plaintiff's cause of action accrued at the time his injuries were sustained. The requirement of the statute is that an action of this nature must be begun within one year after it accrues. St. 1925, c. 346, § 10, amending G. L. c. 260, § 4. The writ in the case at bar was sued out after the expiration of that one year.

The cause of action on which the plaintiff relies was not created by any statute. It is recognized by the common law. Therefore, the one year period fixed by the statute is not of the essence of the cause of action and a limitation upon the right. The statute is a mere restriction upon the meredy. It must be pleaded. If not pleaded, it is deemed to be waived. It may be waived by other conduct amounting to the relinquishment of a known right. Castaline v. Swardlick, 264 Mass. 481, 483, 484, 163 N. E. 62;Aisenberg v. Royal Ins. Co. Ltd., 266 Mass. 543, 546, 165 N. E. 682.

The plaintiff had seasonably protected his rights by bringing his action in the municipal court. That action was instituted well within the period allowed by the statute of limitations. Therefore, the plaintiff had a live cause of action on which writ had been seasonably sued out and entered in court and to which that statute could not possibly afford a defence. It was not pleaded. No gain could accrue to him by not prosecuting that action to judgment. The proposition that this action be discontinued and a new one be started in another court was put forward in behalf of the defendant. The grounds urged for its acceptance by the plaintiff were wholly for the profit of the defendant and of no benefit whatever to the plaintiff. So far as he was concerned, by pursuing to a conclusion his pending action he would not be caused duplication of trials on the same facts. That was an argument in the interest of the defendant alone. There was no intimation of advantage to the plaintiff from acceptance of the proposition made in behalf of the defendant during the negotiations between counsel. No such intimation has been presented in discussion at the bar. The making of such a proposition by the defendant in the circumstances disclosed carried the implication that, if it were accepted by the plaintiff, no harm would befall him as a result of extending an accommodation requested by the defendant for his sole convenience. Compliance by the plaintiff with the request of the defendant involved as a necessary step discontinuance of the pending action in the municipal court. The second action could not be brought and tried in the Superior Court until the first action in the municipal court was out of the way by discontinuance. Alpert v. Mercury Publishing Co. (Mass.) 172 N. E. 221, and cases cited. The plaintiff was induced to discontinue his seasonable action, impregnable against the defence of the statute of limitations, in reliance upon the conduct of the defendant. Acceptance by the defendant of the favor so solicited from the plaintiff involved as matter of fair dealing an undertaking on his part not to rely on a defence based upon facts coming into existence solely from the granting of that favor by the plaintiff. Nothing appears to have been said about the statute of limitations during the talks or correspondence between counsel. It cannot be ruled that the plaintiff was lacking in essential perspicacity in failing to think of that as possible defence open in these conditions to the defendant in the second action. Insistence by the defendant upon that defence at the trial may be regarded as an indication that he knew or had reasonable ground for belief that the defence would be open to him when he availed himself of the favor extended to him at his own entreaty by the plaintiff. Imputation of that knowledge or belief may be ascribed to him from the interposition of that defence.

The offer of proof does not charge deceit, bad faith or actual fraud. Facts falling short of these elements may constitute conduct contrary to general principles of fair dealing and to the good conscience which ought to actuate individuals and which it is the design of courts to enforce. It is in the main to accomplish the prevention of results contrary to good conscience and fair dealing that the doctrine of estoppel has been formulated and taken its place as a part of the law. It has been said that, ‘In order to work an estoppel it must appear that one has been induced by the conduct of another to do something different from what otherwise would have been done and which has resulted to his harm and that the other knew or had reasonable cause to know that such consequence might follow. But the doctrine of estoppel is not applied except when to refuse it would be inequitable. The law does not regard estoppels with favor, nor extend them beyond the requirements of the transactions in which they originate.’ Boston & Albany Railroad v. Reardon, 226 Mass. 286, 291, 115 N. E. 408, 411.

The offer of proof set forth facts which bring the case at bar within the doctrine of estoppel as thus defined. Every factor there named is present in the offer of proof.

The application of that doctrine to the facts in the offer of proof in the case at bar is not repugnant to any fixed rule of law. It was...

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