I do not dissent from the majority of the court in the final disposition of this case. I do not dissent from the first part of that opinion up to and including the statement that "in view of the facts above stated, as to the admissions and contentions made by the present respondent in the former case and previously, and as to the determinations and statements set forth by this court in its opinion in that case, we are convinced that the finding of the superior court in the instant case, that the defense of refusal of cooperation by the assured was not available to the respondent, should be sustained."
But I do dissent from the reasoning which follows this quoted language and by which the court reached a conclusion *Page 407 to the effect that even apart from the facts above referred to in this language the findings of the trial justice as to the interpretation of the policy, and as to the interpretation of the Massachusetts statutes referred to therein, and as to their applicability to the defense of refusal of cooperation by the insured, should be sustained and therefore also his ruling, based on these findings, that that defense was not open to the respondent.
There was no testimony by any expert as to the Massachusetts law relating to these matters, and the written evidence upon which he based his findings, namely, the policy and the Massachusetts statutes, which were brought before him by stipulation and reference, is before us just as it was before him. Therefore, in my judgment, we can make findings thereon as well as he could. We are untrammeled by his findings; and if it were not for the respondent's contentions in the former case between these same parties and the opinion of this court therein, I should not be prepared to say that under a proper interpretation of the policy and of the Massachusetts law relating thereto the defense of refusal of cooperation by the assured would not be open to the respondent in this suit by the injured person, just as it would have been in an action on the policy by the assured against the respondent.
I dissent also from that part of the opinion of the court in which it is held that certain words in the direction by this court in the former case to the superior court to dismiss the action at law, and in the order of the latter court dismissing that action accordingly, namely, "without prejudice to the right of the plaintiff to prosecute his claim in equity," had the effect of preventing the respondent from relying, in the instant case, upon the Massachusetts statute of limitations relating to a proceeding of this kind.
According to the information which I have been able to obtain on the subject, the language above quoted is in accordance with the usual wording of a "without prejudice" provision in an order or decree dismissing a legal or equitable *Page 408 proceeding; and, in my judgment the only effect which such a provision has is to prevent such order or decree from being set up by the defendant in a later proceeding, to which the order or decree is stated to be "without prejudice", in support of a defense of res judicata. Under the rule laid down in all the pertinent authorities which I have been able to find, such a provision has no other effect and cannot prevent the defendant from availing himself of any other defense which would otherwise be available to him, including one based on laches or on the statute of limitations.
In the opinion of the court in the instant case a part of the opinion of this court in Taylor v. Slater, 21 R.I. 104, at 108, is quoted, in which is stated that such a "without prejudice" provision in a decree of dismissal "gives to a complainant the right to state a new and proper case, if he can, but it takes away no right of defense to such suit on any ground other than that of the judgment as a bar." The language from that opinion next quoted in the opinion of this court in the instant case, does not, in my judgment, derogate from that ruling in the slightest degree. The defense at issue in that case was laches and not the statute of limitations; and this court, in the later language, was simply stating, by way of dictum, a rule which is a part of the equitable doctrine of laches, namely, that if the former proceeding had been begun with due diligence, then, if that proceeding came to an end without a decision on the merits, and the complainant began a new suit within a reasonable time thereafter, the defense of laches would not be available to the respondent, under the doctrine of laches. The actual decision of this court in Taylor v. Slater, supra, was that since the former proceeding had not been brought with due diligence, the defense of laches was available to the respondent in the later suit, notwithstanding the "without prejudice" provision.
Two rules that are exactly analogous to the dictum and the decision just discussed are well established also when *Page 409 a statute of limitations and a "tolling" provision are involved. If the first case is begun within the statutory period of limitations and is dismissed without prejudice to the right of the defendant to bring a new action, such new action may be brought within the period allowed by the "tolling" provision, and a defense based on the regular statute of limitations will not be available to the defendant. But if the first case is begunafter the statute has run against it, the "tolling" provision will not prevent the defendant from relying on the statute of limitations in the second case, whether or not the first case was dismissed without prejudice to the right of the plaintiff to bring a new action. In other words, a "without prejudice" clause has no effect on the availability of a defense based on such statute.
The opinion in Taylor v. Slater, supra, was quoted from and the decisive rule therein laid down by this court was affirmed and applied, by the United States Circuit Court of Appeals for the fifth circuit, in Southport Mill, Ltd. v.Commissioner of Internal Revenue, 38 Fed. (2d. ed.) 986, (1930). See also Nevitt v. Bacon, 32 Miss. 212; 2 Black on Judgments, (2d. ed.) 1082, § 721; 2 Freeman on Judgments, (5th ed.) 1587, § 754. I can see no reason for treating the former case between the parties in the instant case as in any way exceptional with regard to this matter; nor even any reason for believing that this court then, in inserting the "without prejudice" provision in its opinion, had in mind the Massachusetts statute of limitations, which had no relevancy in that case.
In my opinion the "without prejudice" provision, in the direction to the Superior Court by this court in the former case and in that court's order of dismissal, should not be held to prevent the respondent in the instant case from availing itself of the Massachusetts statute of limitation, if it would otherwise constitute a good defense.
I concur in the result reached in the last part of the opinion of the court in the instant case, that under the provisions *Page 410 of the Massachusetts general statute of limitations the complainant is not barred by the fact that the case was not commenced within one year after the plaintiff recovered his judgment against the assured, since the former case was commenced within that period and was defeated for a matter of form less than one year before the instant case was commenced. But I do not, as the court does, reach that result because the trial justice found as a fact, from conflicting evidence, that this case was not barred by those statutory provisions, which were brought before him, and we ought to sustain his finding unless clearly wrong.
On the contrary, as there was no expert testimony in the case, and the statutory provisions are before us, just as they were before him, I see no reason why we should not exercise our independent judgment as to their proper interpretation and effect, without being trammeled by his finding. Apparently no Massachusetts decisions as to these provisions were submitted to him, and, if not, we are probably not bound to give to these provisions the interpretation and effect which have been given to them by such decisions. But we can properly consider such decisions and give them such weight as in our judgment they are entitled to, as precedents, just as we can properly consider decisions from other states as to the interpretation and effect of similar provisions.
Such a decision is Taft v. Stow, 174 Mass. 171, 54 N.E. 506. The provision there involved was one in the Massachusetts statute of limitations relative to actions by creditors of estates of deceased persons, and was that if an action commenced against an executor or administrator, in due time, is defeated by reason "of a mistake in the form of the proceeding," the plaintiff "may commence a new action for the same cause within one year thereafter." It was held to apply where a cause of action, which had been brought at law, was defeated because it should have been brought in equity and for some other reasons of form, and the plaintiff, with due diligence, brought a suit in equity *Page 411 on the same cause of action. See also Coffin v. Cottle, 16 Pick. 383; East Tennessee Iron Coal Co. v. Lawson, 35 S.W. 456; and dicta in Jordan v. County Commissioners ofBristol, 268 Mass. 329, 167 N.E. 652; and Cumming v. Jacobs,130 Mass. 419, 421.
On general principles of construction of statutes and in the light of these cases, I am convinced that the findings which are set forth in the opinion of the court in this case as having been apparently made by the trial justice with respect to the defense of the statute of limitations, are correct and govern this case; and I therefore agree with my associates that that defense was properly ruled out by the trial justice.
For the reasons above given, while I dissent from some parts of the opinion of the court, I do not dissent from the final disposition of the case, as made therein.