Keener v. Reynolds Transp. Co.

• Decision Date: 17 October 1950
• Docket Number: No. 773,773
• Citation: 61 S.E.2d 629,134 W.Va. 712
• Court: West Virginia Supreme Court
• Parties: KEENER, v. REYNOLDS TRANSP. CO. et al. C. C.

Page 629

61 S.E.2d 629

134 W.Va. 712

KEENER, v. REYNOLDS TRANSP. CO. et al.

C. C. No. 773.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 1950.

Decided Oct. 17, 1950.

Syllabus by the Court

Where a former action has been dismissed because of insufficiency of return of process, Code, 55-2-18, tolls the running of the statute of limitations where the parties to the new action were parties to the action dismissed, notwithstanding one of the defendants to the action dismissed was not made a party to the new action, and the original action remained pending as to him, provided that the cause of action be joint and several, and provided that the other requirements of the statute are present.

Grover C. Belknap, Sutton, Hoover, Hoover & Bickel, Webster Springs, for plaintiff.

Claude H. Vencill, Summersville, for defendants.

GIVEN, Judge.

Questions arising in this action of trespass on the case were certified to this Court by the Circuit Court of Nicholas County. The action was instituted on the 16th day of March, 1950, against Reynolds Transportation Company, a Corporation, and Atlantic Greyhound Corporation. The plaintiff, Charles S. Keener, claims damages for personal injuries in the amount of $25,000.00, alleged to have resulted from the negligence of Wallace Ramsey, the driver of a Reynolds Transportation Company Bus, on which plaintiff was, at the time of the accident, a passenger for hire. It appears from the declaration that the plaintiff purchased a ticket from Atlantic Greyhound Corporation at its Charleston, West Virginia, office, and that the ticket entitled plaintiff to passage from Charleston, by way of Gauley Bridge, West Virginia, to Webster Springs, West Virginia. Buses of the Atlantic Greyhound Corporation do not pass through Webster Springs but by virtue of an arrangement between Atlantic Greyhound Corporation and Reynolds Transportation Company the plaintiff was to be transported from Gauley Bridge to Webster Springs by Reynolds Transportation Company. It was while a passenger on a bus of Reynolds Transportation Company, by virtue of the ticket so purchased, and while passing through Nicholas County, that plaintiff suffered the injuries complained of.

The declaration charges that the injuries occurred on the 1st day of June, 1948; that on the 15th day of March, 1949, the plaintiff instituted an action of trespass on the case, in the Circuit Court of Nicholas County, against Wallace Ramsey, Atlantic Greyhound Corporation and Reynolds Transportation Company for damages in the amount of $15,000.00 resulting from injuries received in the same accident; and that Reynolds Transportation Company and Atlantic Greyhound Corporation appeared specially in that action and moved that the returns of service of process against them be quashed, because of insufficiency thereof apparent upon the face of the returns. The court sustained the motion, over the protest of the plaintiff, and, on the 13th day of June, 1949, dismissed the action as to Atlantic Greyhound Corporation and Reynolds Transportation Company. The plaintiff at no time moved for the reinstatement of the action so dismissed, although three terms of court passed after the dismissal and before the institution of the present action. At the time of the institution of this action the plaintiff had failed to pay the costs adjudged against him by the order of dismissal. It may be observed that the first action was instituted against the three defendants within one year after the date of the injury, and that the second action was not instituted within one year after the injury, but was instituted within one year after the date of the dismissal. The first action remains pending as to the defendant Ramsey. No writ of error was taken from the judgment dismissing the first action as to Atlantic Greyhound Corporation and Reynolds Transportation Company.

The defendants Reynolds Transportation Company and Atlantic Greyhound Corporation filed a joint and several demurrer to the declaration in the present action and a joint and several special plea. The plaintiff filed his demurrer and replication to the special plea. The trial court, on June 15, 1950, entered and order adjudging the declaration sufficient and overruling the demurrer thereto and sustaining the demurrer to the special plea. The action of the trial court in sustaining plaintiff's demurrer to the special plea is complained of here.

The principal contention of the defendants, as disclosed by the special plea, is that the present action is barred by the statute of limitations, the action not having been instituted within one year after the accident and, the parties not being the same, is not saved by the provisions of Code, 55-2-18, which 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.'

The statute quoted has been considered and applied in a number of cases by this Court. Where the first action is voluntarily dismissed by the plaintiff the statute will not save the second action. McClung v. Tieche, 126 W.Va. 575, 29 S.E.2d 250. The dismissal of an action at rules because of the plaintiff's failure to file his declaration, notwithstanding his failure was due to a bona fide belief that the action was instituted prematurely, is a voluntary dismissal. Allen v. Burdette, 89 W.Va. 615, 109 S.E. 739; Lawrence v. Winifrede Coal Company, 48 W.Va. 139, 35 S.E. 925. An action dismissed because of a void summons is an involuntary dismissal. Ketterman v. Dry Fork R. Co., 48 W.Va. 606, 37 S.E. 683. An action erroneously dismissed on a plea in abatement is an involuntary dismissal. Ryan v. Piney Coal & Coke Co., 69 W.Va. 692, 73 S.E. 330. In Mylius v. Arnold, 99 W.Va. 341, 128 S.E. 740, the Court held, in Point 2 of the syllabus: 'Plaintiff having instituted a suit in...