Henthorn v. Collins, 12044

• Decision Date: 28 March 1961
• Docket Number: No. 12044,12044
• Citation: 146 W.Va. 108,118 S.E.2d 358
• Court: West Virginia Supreme Court
• Parties: Lychester R. HENTHORN v. John Auldie COLLINS, etc.

Page 358

118 S.E.2d 358

146 W.Va. 108

Lychester R. HENTHORN v. John Auldie COLLINS, etc.

No. 12044.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 17, 1961.

Decided Feb. 14, 1961.

Rehearing Denied March 28, 1961.

Syllabus by the Court

1. Code, 55-2-18, does not toll the statute of limitations as to a cause of action sued on in a second proceeding, where the first proceeding was by the plaintiff voluntarily dismissed or abated.

2. A demurrer to a declaration filed in a second proceeding, involving a cause of action sued on in a former proceeding, is properly sustained where such declaration fails to show that, as to the plaintiff, the first proceeding was involuntarily dismissed or abated.

Beryl A. Cunningham, William L. Jacobs, Parkersburg, for plaintiff in error.

McCluer, Davis, McDougle, Stealey and Morris, R. E. Stealey, Parkersberg, for defendant in error.

GIVEN, Judge.

The plaintiff, Lychester R. Henthorn, instituted an action of trespass on the case, in the Circuit Court of Wood County, against Auldie Collins, whose full name was John Auldie Collins. Process was served on a son of John Auldie Collins, whose full name was Charles Auldie Collins. The father and son were each commonly known as 'Auldie' Collins. On the trial the son established that he was not the 'Auldie' Collins involved in the automobile collision out of which the cause of action accrued, and the trial court 'directed a verdict' in favor of the son. Thereafter, and within one year from the time of the direction of the verdict, but more than one year from the date of the accrual of the cause of action, that being the period fixed by the applicable statute of limitations in effect at the time material, plaintiff instituted the instant proceeding, involving the same cause of action, and now claims the benefit of Code, 55-2-18. The trial court sustained the demurrer to the amended declaration filed in the second action and, the plaintiff having declined to further amend, rendered judgment for the defendant.

The amended declaration shows on its face that the cause of action sued on is barred by the statute of limitations, unless saved by provisions of Code, 55-2-18. The only pertinent allegations contained in the amended declaration are found in the paragraph thereof which reads: 'And the plaintiff further alleges that he commenced an action upon the hereinabove alleged cause of action against the defendant in the Circuit Court of Wood County, West Virginia, within one year from the date of the happening of the wrongs, grievances and resulting injuries to the plaintiff hereinabove alleged and through no fault or neglect of the plaintiff the summons in said action was served upon the son of the defendant who bears the same name as the defendant and as a result thereof on the trial of said action the Court directed a verdict in favor of the said defendant's father [son] upon whom service was obtained, following which the plaintiff commenced this action within one year from the date of the Court's action as aforesaid in so directing such verdict, and the plaintiff further sayd that this new action was commenced pursuant to West Virginia Code, Chapter 55, Article 2, Section 18, and that in all respects he has complied therewith.' Prior to final consideration by the court, the paragraph was amended by striking the word 'father' first appearing therein and by substituting in lieu of that word the word 'son', as quoted above.

Code, 55-2-18, reads: 'If any action or suit commenced within due time, in the name of or against one or more plaintiffs or defendants, abate as to one of them by the return of no inhabitant, or by his or her death or marriage, or if, in an action or suit commenced within due time, judgment or decree (or other and further proceedings) for the plaintiffs should be arrested or reversed on a ground which does not preclude a new action or suit for the same cause, or if there be occasion to bring a new action or suit by reason of such cause having been dismissed for want of security for costs, or by reason of any other cause which could not be plead in bar of an action or suit, or of the loss or destruction of any of the papers or records in a former action or suit which was in due time; in every such case, notwithstanding the expiration of the time within which a new action or suit must otherwise have been brought, the same may be brought within one year after such abatement, dismissal or other cause, or after such arrest or reversal of judgment or decree, or such loss or destruction, but not after.'

In several cases this Court has pointed out the breadth of the pertinent statute and that, its purpose being remedial, it should be liberally construed for the purpose of accomplishing the intent thereof. Keener v. Reynolds Transportation Company, 134 W.Va. 712, 61 S.E.2d 629; Bent v. Read, 82 W.Va. 680, 97 S.E. 286; Tompkins v. Pacific Mutual Life Ins. Co., 53 W.Va. 479, 44 S.E. 439, 62 L.R.A. 489; Ketterman v. Dry Fork Railroad Co., 48 W.Va. 606, 37 S.E. 683. But the breadth of a statute or the duty to construe a remedial statute liberally can not amount to authority to a court to extend a statute to a case wholly beyond its effects.

It will at once be noticed that the saving effect of the pertinent statute quoted above, as applied to the instant case, is made to depend on the former 'cause having been dismissed' or abated, and that nothing in the amended declaration to which the demurrer of defendant applies, the pertinent paragraph thereof being quoted above, makes any mention of the dismissal or abatement of the first action. Clearly, the allegation to the effect that the trial court 'directed a verdict' against the plaintiff does not amount to a dismissal or an abatement of the action.

Moreover, this Court has repeatedly held that a dismissal of an action which will save a second action from the effects of a statute of limitations must not be the result of voluntary action on the part of plaintiff, or must not amount to an abandonment of the action by the plaintiff. Carroll Hardwood Lumber Company v. Stephenson, 131 W.Va. 784, 51 S.E.2d 313; Town of Clendenin ex rel. Fields v. Ledsome, 129 W.Va. 388, 40 S.E.2d 849; McClung v. Tieche, 126 W.Va. 575, 29 S.E.2d 250; Ketterman v. Dry Fork Railroad Co., 48 W.Va. 606, 37 S.E. 683; Lawrence v. Winifrede Coal Co., 48 W.Va. 139, 35 S.E. 925.

In Sage v. Boyd, W.Va., 113 S.E.2d 836, 837, it was held that the 'institution of an action against one person does not arrest the running of the statute of limitations with respect to an action against another person'. In the instant case, however, it is alleged that the first action was instituted against the defendant named in the second case, and that 'through no fault or neglect of the plaintiff the summons was served on the son of the defendant', which allegation, on demurrer, is admitted as true.

Though the pertinent allegations of the declaration are considered as true, they do not establish an involuntary dismissal or abatement of the action first instituted and, therefore, the judgment of the trial court must be affirmed.

Affirmed.

CALHOUN, Judge (dissenting).

Believing that the majority opinion represents an unnecessarily harsh construction of a statute which has been characterized as 'highly remedial', I respectfully dissent.

The majority opinion states that it 'clearly' appears that the allegation that the trial court directed a verdict against the plaintiff 'does not amount to a dismissal or abatement of the action;' and that the allegations 'do not establish an involuntary dismissal or abatement of the action first instituted, * * *.'

It is true that a plaintiff may be permitted to take a nonsuit immediately after the court, out of the presence of the jury, has announced its decision to direct a verdict for the defendant and before such verdict has been actually directed. Lykens v. Jarrett, 123 W.Va. 631, 17 S.E.2d 328. Had plaintiff done so in this case, it could hardly be said that, with the directed verdict impending, such nonsuit would have been 'voluntary' in the sense of abandonment of purpose and desire to prosecure the action further.

It is difficult for me to perceive what alternative was available to the plaintiff. The plaintiff 'was not bound to move for a reinstatement but could elect to institute a new action, as permitted by Code, 55-2-18.' Keener v. Reynolds Transportation Co., 134 W.Va. 712, 719, 61 S.E.2d 629, 633. A motion to set aside the verdict would have been futile and could have had no basis in reality. The verdict was not directed on the basis of a variance, and hence I fail to see that a motion for leave to amend could have been availing. Alias or other process could not have been issued under Code, 56-3-21, because the process was returned executed. In Keener v. Reynolds Transportation Co., 134 W.Va. 712, 718, 61 S.E.2d 629, 632, the Court stated: 'Neither was it neglect on the part of the plaintiff to have failed to have alias process issued in the first action. He had the right to have the court pass upon the sufficiency of the return of process, and he had no right to have such alias process issued after the returns were held insufficient, because of the hiatus that would have existed. See Dunaway v. Lord, 114 W.Va. 671, 173 S.E. 568.' The only alternative to nonsuit or court order of dismissal of which I can conceive would have been a motion to the court for permission to remand to rules for...