Daniels v. Schierding, 45381
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | PUDLOWSKI |
| Citation | 650 S.W.2d 337 |
| Parties | Corrine DANIELS, Plaintiff-Appellant, v. Bernice SCHIERDING, et al., Defendants-Respondents, and Bernice SCHIERDING, Third-Party Plaintiff, v. Herbert F. DANIELS, Third-Party Defendant. |
| Docket Number | No. 45381,45381 |
| Decision Date | 12 April 1983 |
Page 337
v.
Bernice SCHIERDING, et al., Defendants-Respondents,
and
Bernice SCHIERDING, Third-Party Plaintiff,
v.
Herbert F. DANIELS, Third-Party Defendant.
Eastern District,
Division Four.
Page 338
Susan M. Hais, Clayton, for plaintiff-appellant.
Gerard T. Noce, Evans & Dixon, St. Louis, for defendant-respondent Monsanto Co.
PUDLOWSKI, Presiding Judge.
The sole question on appeal is whether the trial court erred in its dismissal of plaintiff's amended petition for damages on the ground the petition was barred by the 5-year statute of limitations, § 516.120, RSMo (1978). We affirm.
On May 18, 1976, plaintiff was injured while riding in an automobile operated by her husband, Herbert F. Daniels, while in the course of his employment by Monsanto Company. The original petition was filed on December 1, 1977, naming three defendants, Schierding, Lemans, and Daniels. Subsequent to the accident the plaintiff and her husband were divorced. On April 27, 1981, plaintiff filed a motion to join Monsanto Company as a new defendant along with an amended petition. Leave to join was granted on May 15, 1981 and plaintiff filed a first amended petition denominating Monsanto as one of the defendants. At that time, plaintiff did not request that a summons be issued on Monsanto. Summons was not requested until August 13, 1981. Shortly thereafter, a non-est return was filed. Two months later, on October 19, 1981, plaintiff ordered the issuance of an alias summons against Monsanto. This summons was served on October 26, 1981, five years, five months, eight days after the accident. On January 23, 1982 the trial court dismissed Monsanto Company and made its order final for purposes of appeal.
§ 516.120 RSMo (1978) defines what actions shall be brought within five years. This section states in relevant part:
Within five years:
* * *
* * *
(4) ... any other injury to the person or the rights of another, not arising on contract and not herein otherwise enumerated;
Generally speaking, "the rule is that a statute of limitation begins to run when the cause of action has accrued to the person asserting it, the accrual being whenever such a breach of duty has occurred, or such a wrong has been sustained, as will give a right to bring and sustain a suit." Davis v.
Page 339
Laclede Gas Company, 603 S.W.2d 554, 555 (Mo. banc. 1980). In the case at bar, the...To continue reading
Request your trial
-
Nitcher v. Newton County Jail, 15428
...6 Defendants do not challenge that proposition. See: Farwig v. City of St. Louis, 499 S.W.2d 388, 389 (Mo.1973); Daniels v. Schierding, 650 S.W.2d 337, 338-39 (Mo.App.1983); Langendoerfer v. Hazel, 601 S.W.2d 290 (Mo.App.1980). Defendants insist, however, that Wilson should not be applied r......
-
Sanders v. Clemco Industries, 88-1319
...but only so long as the prospective plaintiff exercises "due diligence" in serving process on the defendant. Daniels v. Schierding, 650 S.W.2d 337, 339 8 December 6, 1987 did not count in the thirty days for appeal because it fell on a Sunday. See Fed.R.App.P. 26(a). 9 Rule 58(2) provides t......
-
Givens v. Quinn, 93-0737-CV-W-1.
...Id. at 850-51. U.S. Laminating Corp. v. Consolidated Freightways Corp., 716 S.W.2d 847, 849 (Mo. Ct.App.1986). In Daniels v. Schierding, 650 S.W.2d 337 (Mo.Ct.App.1983), the plaintiff filed within the statute of limitations, but took five months to serve process. Id. at 338-39. The plaintif......
-
Wriedt v. Charlton, WD
...Electric Co. v. Ebco, Inc., 375 S.W.2d 134 (Mo.1964); Driscoll v. Konze, 322 S.W.2d 824, 829 (Mo.1959); Daniels v. Schierding, 650 S.W.2d 337, 339 (Mo.App.1983); Atkinson v. Be-Mac Transport, Inc., 595 S.W.2d 26, 28-29 (Mo.App.1980); Hennis v. Tucker, 447 S.W.2d 580 Judgment affirmed. All c......
-
Nitcher v. Newton County Jail, 15428
...6 Defendants do not challenge that proposition. See: Farwig v. City of St. Louis, 499 S.W.2d 388, 389 (Mo.1973); Daniels v. Schierding, 650 S.W.2d 337, 338-39 (Mo.App.1983); Langendoerfer v. Hazel, 601 S.W.2d 290 (Mo.App.1980). Defendants insist, however, that Wilson should not be applied r......
-
Sanders v. Clemco Industries, 88-1319
...but only so long as the prospective plaintiff exercises "due diligence" in serving process on the defendant. Daniels v. Schierding, 650 S.W.2d 337, 339 8 December 6, 1987 did not count in the thirty days for appeal because it fell on a Sunday. See Fed.R.App.P. 26(a). 9 Rule 58(2) provides t......
-
Givens v. Quinn, 93-0737-CV-W-1.
...Id. at 850-51. U.S. Laminating Corp. v. Consolidated Freightways Corp., 716 S.W.2d 847, 849 (Mo. Ct.App.1986). In Daniels v. Schierding, 650 S.W.2d 337 (Mo.Ct.App.1983), the plaintiff filed within the statute of limitations, but took five months to serve process. Id. at 338-39. The plaintif......
-
Wriedt v. Charlton, WD
...Electric Co. v. Ebco, Inc., 375 S.W.2d 134 (Mo.1964); Driscoll v. Konze, 322 S.W.2d 824, 829 (Mo.1959); Daniels v. Schierding, 650 S.W.2d 337, 339 (Mo.App.1983); Atkinson v. Be-Mac Transport, Inc., 595 S.W.2d 26, 28-29 (Mo.App.1980); Hennis v. Tucker, 447 S.W.2d 580 Judgment affirmed. All c......