278 Mass. 315 | Mass. | 1932
The plaintiff, a minor, seeks to recover in this action of tort compensation for personal injuries received on October 28, 1929, as a result of being struck by an automobile owned by the defendant, insured by it under the compulsory motor vehicle insurance law, and operated by its agent. The writ is dated on January 26, 1931.
The defendant contends that “special provision is otherwise made” relative to the case at bar within the meaning of § 19 of G. L. c. 260, and that therefore the extension in favor of minors contained in § 7 is not applicable. That contention is based on the circumstance that the compulsory motor vehicle insurance law contains such special limitation. That contention involves inquiry into the nature
The cause of action here in issue arises under the common law. It is not created by statute. It accrued at the time the plaintiff received his injuries. McLearn v. Hill, 276 Mass. 519, 522. Confessedly, also, this is a cause of action, payment of judgment in which is required to be secured by G. L. c. 90, as amended. Elaborate provisions are made requiring compulsory insurance or other financial protection to secure payment of damages for bodily injuries caused by the negligent operation of motor vehicles. St. 1925, c. 346, as most recently amended by St. 1928, c. 381, and St. 1930, c. 340. The statutes to that end were adopted after prolonged study by a legislative committee and careful preliminary preparation of the proposed remedial legislation. See Opinion of the Justices, 251 Mass. 569, 594; Opinion of the Justices, 251 Mass. 617. The framework of that remedial legislation is significant of the purpose of the General Court in enacting ■ it. In this connection it will be sufficient to examine the original act without adverting to its amendments. That act was St. 1925, c. 346. By its first two sections ten entirely new sections are inserted in G. L. c. 90. That chapter relates to motor vehicles. Those sections constitute the essence of said c. 346. Thereby compulsory security for the payment of damages for bodily injuries, including death, caused by motor vehicles, is established. The remaining sections are ancillary to the first two sections. Sections 3-10, both inclusive, are in form amendments to other chapters of the General Laws. Their force and effect are to modify sections of those other chapters so that, in addition to matters theretofore the subject of statutory regulation, are included the new matters required by the compulsory motor vehicle insurance law. By § 3, a board of appeal as to motor vehicle liability policies and bonds is established by adding a section to G. L. c. 26, a chapter relating to the department of. banking and insurance. By §§ 4, 5, and 6, new or amended sections are added to G. L. c. 175, which relates to insurance. By § 7, amendment is
The provision of G. L. c. 260, § 4, as finally amended, so far as now pertinent, by St. 1929, c. 29, § 1, is left in its new form otherwise undisturbed as a part of the main statutory provisions as to limitations of actions. There has been no amendment of either § 7 or § 19 of said c. 260,
Plainly, it was not within the contemplation of its framers that there should be conflict of construction between the several parts of G. L. c. 260. It is a short and comprehensive chapter. The natural interpretation of § 19 in exempting from the sweep of the chapter instances where “special provision is otherwise made relative to the limitation of any action” is that such other provision exists outside the terms of c. 260. Instances where it has been held that § 19, or the corresponding section of earlier laws, was applicable, have related to such outside provisions. It was decided in French v. Marshall, 136 Mass. 564, that the earlier statute corresponding to G. L. c. 137, § 1, limiting an action to recover money lost in gaming to three months from the time of loss, was such special provision otherwise made and that an infant who had thus lost money could not rightly invoke the benefit of the statute now embodied in G. L. c. 260, § 7. In Hill v. Arnold, 199 Mass. 109, it was held that the action authorized and limited by what is now G. L. c. 205, § 35, against the sureties on a guardian’s bond, was also such special provision. The opinion in that case reviews numerous other decisions where there is such special provision. Doubtless there are other such special provisions scattered through the statutes. See Castaline v. Swardlick, 264 Mass. 481.
The principle on which rest Bickford v. Furber, 271 Mass. 94, and Wescott v. Henshaw Motor Co. 275 Mass. 82, does not aid the defendant. The reason is that those actions were to recover damages for death caused by specified negligence. That cause of action did not exist at common law. It is the special creation of G. L. c. 229, § 5, as most recently amended by St. 1925, c. 346, § 9. The requirement as to the time within which such an action must be commenced is a limitation upon the right as well as upon the remedy, and is not a
The conclusion seems to us irresistible that the infancy disability provisions of § 7 are available to a plaintiff in an action like the present, and that the lapse of one year after the cause of action accrued is not an absolute bar.
2. The second point urged in behalf of the defendant is that, since one year elapsed after the cause of action accrued without suing out the writ, the plaintiff cannot now bring this writ but must wait until the disability of minority is removed. That contention is based upon a highly technical and impractical interpretation of G. L. c. 260, § 7, already quoted. That section was manifestly enacted for the benefit of the minor. The general policy of the law is that causes of action ought to be tried in courts before the evidence is lost and while memory is fresh. It would be strangely lacking in common sense to compel an infant to wait helpless and without possibility of redress for his grievances during the period between the expiration of the limitation barring actions by those of full age and of sound mind and the time of reaching his majority. Such a meaning would not be adopted unless compelled by statutory language of unmistakable import. The reasonable construction of the section is that action may be maintained by the minor at any time before it is finally barred. That is the conclusion reached by all courts, so far as we are aware, where the question has been raised. Chandler v. Vilett, 2 Saund. (6th ed. [1845] by Edward Vaughan Williams) 120, 121a, 121b. Forbes v. Smith, 11 Exch. 161. Carson v. Jackson, 52 App. D. C. 51. Snare
Order dismissing report affirmed.