Pierce v. Tiernan

• Decision Date: 13 September 1932
• Citation: 182 N.E. 292,280 Mass. 180
• Parties: PIERCE v. TIERNAN. PHILLIPS v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 180

182 N.E. 292

PIERCE

v.TIERNAN.

PHILLIPS

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 13, 1932.

Exceptions from Superior Court, Suffolk County; Frederic B. Greenhalge, Judge.

Actions by Georgie E. Pierce and by Charlotte B. Phillips against Gertrude C. Tiernan. The court found for defendant in each case, and plaintiffs bring exceptions.

Exceptions overruled.

S. H. Davis and M. L. Looney, Jr., both of Boston, for plaintiffs.

E. J. Sullivan, of Boston, for defendant.

RUGG, C. J.

Each of the plaintiffs in these actions of tort seeks to recover compensation for personal injuries alleged to have been sustained by reason of the collision of the automobile in which the plaintiff was a passenger with an automobile negligently operated by the defendant. The statute of limitations was pleaded among other defences. In each action the injuries were sustained on October 8, 1928; the writ was dated October 8, 1929, was returnable on the first Monday of January, 1930, was placed in the hands of the officer for service on December 4, 1929, was served on December 10, 1929, and was duly entered in court on January 6, 1930. No evidence was offered by the plaintiffs concerning the date of the writ. No evidence was offered by the defendant that either writ was made provisionally (Estes v. Tower, 102 Mass. 65, 3 Am. Rep. 439), or was not made at the time it bore date, or that either action was not commenced in good faith by the drawing of the writ on October 8, 1929. At the close of the evidence the defendant filed a motion in each case that the finding should be in her favor. Tese motions were allowed. The trial judge, before whom there was trial without a jury, made identical findings in each case of this tenor: ‘I find that although the Writ was dated October 8, 1929, it was not placed in the hands of an officer for service until December 4, 1929, and was not actually served until December 10, 1929. As the accident occurred on October 8, 1929, I find that the action was not seasonably begun by the plaintiff, and I rule that it cannot be maintained and find for the defendant.’

These actions under the governing statute, G. L. c. 260, § 4, as amended by St. 1925, c. 346, § 10 (see St. 1929, c. 29, § 1; St. 1931, c. 458, § 5), must have been commenced within one year after the cause of action accrued. In computing this limit of time, the day upon which the cause of action accrued is to be excluded. Bemis v. Leonard, 118 Mass. 502, 506,19 Am. Rep. 470;Laine v. Aarnio, 265 Mass. 374, 164 N. E. 238. Therefore, each action would be seasonably commenced by writ actually made on the date written in the writ. That was the last date on which actions could have been commenced without being barred by the statute of limitations. It was said in Gardner v. Webber, 17 Pick. 407, 412, that ‘the day of the date [of the writ] was the commencement of the action. It is prima facie evidence only, and admits of evidence to rebut the presumption arising from the date; but until rebutted, the presumption is to prevail, that the true date appears; and that date is the commencement of the suit.’ Krasnow v. Krasnow, 253 Mass. 528, 149 N. E. 321;Alpert v. Mercury Publishing Co., 272 Mass. 39, 41, 172 N. E. 221. This was affirmed in Bunker v. Shed, 8 Metc. 150, where the facts were that the writ was dated March 8, 1841, and was served on May 31, 1841, the statute of limitations, if available as a defence, having become a bar after the date and before the service of the writ. The jury were charged in substance that the burden was on the defendant to show that the action was barred and that if it was found that the writ was made at the time it bore date, with an intention to cause it to be seasonably served, the commencement of the action was the date to the writ. Respecting this point, it was said in the opinion, at page 153: ‘Such writ must have been made with the intention to have the same seasonably served, and the delay in procuring such service, in the present case, was proper evidence for the consideration of the jury; but this fact imposed no new burden on the plaintiff. The whole matter was properly left to the jury to consider, and under such instructions as seem to us conformable to law.’ This principle is supported by more recent decisions. International Paper Co. v. Commonwealth, 232 Mass. 7, 11-15, 121 N. E. 510;Rosenblatt v. Foley, 252 Mass. 188, 190, 147 N. E. 558;Myers v. Warren, 275 Mass. 531, 534, 176 N. E. 600. It prevails generally. Cross v. Barber, 16 R. I. 266, 15 A. 69, and cases there collected and reviewed.

The application of this principle to the case at bar requires the ruling as matter...