Rosenblatt v. Foley

Pierce, J. This is an action of tort, brought against the defendants as executors of the estate of Luigia Casassa, to recover damages for physical, personal injuries alleged to have been sustained by the plaintiff on February 14, 1920, by falling on ice; which ice, through the alleged negligence of the defendants’ intestate, had frozen on the sidewalk in consequence of a flow of water from the buildings of the intestate onto that sidewalk. Due notice of the time, place and cause of the accident was given the defendant’s testator. The writ was dated December 31, 1921, and was returnable to the Superior Court on the first Monday of February, 1922, that is on February 6, 1922. On the return day, the writ never having been in the hands of an officer for service, the plaintiff moved and the court allowed an order of notice to the defendants, returnable on the first Monday of March, 1922. The order of notice was served on February 8, 1922. On February 21, 1922, the defendants filed a general denial — 190 — and the affirmative defence “that the injuries alleged were caused in whole or in part by the plaintiff’s own negligence.” On February 5, 1924, by consent and allowance by the court, the defendants filed the further answer that the plaintiff’s action was not commenced within one year from the date of the qualification of the defendants as executors, and that said action is therefore barred under the statute. At the conclusion of the evidence for the plaintiff, it was agreed that the executors’ bond “which they are required to file in the Probate Court, was filed and approved on the 14th day of January 1921, . . . and that notice was given of their appointment.” The trial judge thereupon granted a motion in writing of the defendants that a verdict be ordered in their favor, on the ground that the plaintiff had not brought his action against them within a year from the date of this qualification, and a verdict was ordered for the defendants, subject to the plaintiff’s exception. The trial judge and the parties treated the writ as in proper form. Treating it as amended to be in the form obviously intended, G. L. c. 231, § 51; Lester v. Lester, 8 Gray, 437; Hutchinson v. Tucker, 124 Mass. 240; Eaton v. Walker, 244 Mass. 23; Jones v. Benjamin, 251 Mass. 198, the exceptions must be overruled. The writ had not even been placed in the hands of an officer for service when the order of notice was issued, supposedly under G. L. c. 223, § 84. An action is commenced when a writ issues out and is delivered to an officer with a bona fide intent to have it served upon the defendant. Estes v. Tower, 102 Mass. 65. J. Cushing Co. v. Brooklyn Trust Co. 235 Mass. 171. The date of the writ is not conclusive evidence of the commencement of the action; it may be held to be commenced at any day after the issuance of the writ which may be most conducive to justice. Badger v. Phinney, 15 Mass. 359. Seaver v. Lincoln, 21 Pick. 267. Swift v. Crocker, 21 Pick. 241. Federhen v. Smith, 3 Allen, 119. In the case at bar the presumption that the date of the writ marks the commencement of the action is overcome by the admitted fact that the writ was never delivered to an officer for service, and was retained within the absolute control of the plaintiff until it was filed in the court by him on — 191 — February 6, 1922. International Paper Co. v. Commonwealth, 232 Mass. 7, 12. The burden of proof was upon the plaintiff to establish by affirmative evidence that the action was commenced within the time required by the statute, that is, within one year after January 14, 1921. G. L. c. 260, § 10, G. L. c. 197, § 9. Pond v. Gibson, 5 Allen, 19. Currier v. Studley, 159 Mass. 17, 20. International Paper Co. v. Commonwealth, supra. Although the general appearance of the defendants cured any defect in the jurisdiction of the court over the parties, it did not relate back to the date of the writ, and it could not operate as a waiver of the special statute, G. L. c. 197, § 9, as an executor or administrator has no power to waive that statute. Stebbins v. Scott, 172 Mass. 356, 362. Finance Corp. of New England v. Parker, 251 Mass. 372. Exceptions overruled.