Norwood v. Buffey
| Decision Date | 25 April 1955 |
| Docket Number | No. 4358,4358 |
| Citation | 196 Va. 1051,86 S.E.2d 809 |
| Court | Virginia Supreme Court |
| Parties | C. WILLARD NORWOOD, ADMR., ETC. v. WALTER H. BUFFEY, M.D. Record |
Steingold & Steingold, for the plaintiff in error.
White, White & Roberts, for the defendant in error.
Rebecca Faye Dowdy died on May 17, 1952, and on May 15, 1953, her administrator, C. Willard Norwood, instituted action against Walter H. Buffey under the death by wrongful act statute, § 8-633, Code of 1950. On November 5, 1953, the court entered the following order:
'This day came the plaintiff and the defendant, by counsel, and the plaintiff failing to further prosecute his suit, on his motion, it is ordered that he be non-suited, paying to the defendant five dollars ($5,00) damages according to law, together with his costs by him about his defense in this behalf expended.'
On the same day that this order was entered, plaintiff reinstituted his action against Buffey under the same statute.
On November 19, 1953, defendant filed a plea of the statute of limitations and asserted that the alleged cause of action for death by wrongful act was barred by the one year limitation fixed in § 8-634, Code of 1950. That latter section follows:
'Every such action shall be brought by and in the name of the personal representative of such deceased person and within one year after his or her death, but if any such action is brought within such period of one year after such person's death, and for any cause abates or is dismissed without determining the merits of such action, the time such action is pending shall not be counted as any part of such pariod of one year, and another suit may be brought within the remaining period of such one year as if such former suit had not been instituted. ' Emphasis added.
Plaintiff filed a replication to defendant's plea and set out that the first suit was brought within one year after the alleged cause of action arose and that this second suit was instituted on the same day that he suffered the nonsuit. He insisted that under the saving language of § 8-634, the time that the first action was pending could not be counted against him even though the nonsuit was entered upon his motion.
The court stuck out the replication, sustained defendant's plea of the statute of limitations and entered judgment accordingly. We granted plaintiff an appeal.
The statute providing a right of action where death is caused by the 'wrongful act, neglect or default of another' and fixing one year as the time within which the action must be instituted was first enacted on January 14, 1871. Acts 1870-71, c. 29, p. 27. The parts of that act granting the right to the personal representative to maintain the action (now § 8-633) and the part fixing one year as the time in which the action must be instituted (now § 8-634) appear as paragraphs 1 and 2 respectively in the act of 1871, and §§ 2902 and 2903, Code of 1887.
The above italicized part of § 8-634, Code of 1950, was not a part of the original act. This saving clause was first brought into the statute on March 7, 1904 (Acts 1904, c. 64, p. 110) as an amendment to § 2903, Code of 1887. Its enactment was about three years subsequent to the decision of Manuel, Adm'r v. Norfolk & Western Ry. Co., 99 Va. 188, 37 S.E. 957.
The facts of that case disclose that plaintiff's decedent lost his life on July 27, 1893, and the administrator instituted action on January 19, 1899, under the death by wrongful act statute. At the 1899 October term of court, on his motion, plaintiff was nonsuited. The administrator thereafter instituted another action for the alleged wrongful death of his decedent. He asserted that under §§ 2919 and 2934, Code of 1887, as amended respectively by Acts 1895-96, c. 292, p. 331, and Acts 1897-98, c. 226, p. 252, he was entitled to the further time specified in those statutes in which to reinstitute his action. Because of the saving provisions of these acts, he claimed that his second action had been brought in time and was not barred by the one year limitation.
These two statutes saved or gave to plaintiffs additional time in which to institute or reinstitute actions under certain stated circumstances and conditions, which actions would be otherwise barred. 1 However, neither one provided for additional time in a case where plaintiff had moved for and obtained a nonsuit. In rejecting these statutes as inapplicable and holding that the limitation of one year applied in the absence of an appropriate act extending or giving additional time in which to institute another action, the court said:
'Where an action is brought within the statutory period, and after the expiration of that period, the plaintiff is nonsuited upon his own motion, the statute of limitations is a bar to another action for the same cause.' 99 Va., at p. 189.
This holding would seem to be in accord with the general rule applicable where there is no special provision by statute. 'In the absence of statute, a party cannot deduct from the period of the statute of limitations applicable to his case the time consumed by the pendency of an action in which he sought to have the matter adjudicated, but which was dismissed without prejudice as to him, and if, before he commences a new action after having become nonsuited or having had his action abated or dismissed, the limitation runs, the right to a new action is barred.' 34 Am. Jur., Limitation of Actions, § 281, p. 227.
The effect of special statutory provisions has been stated as follows: 54 C.J.S., Limitations of Actions, § 291(a), p. 356.
54 C.J.S., Limitations of Actions, § 291(b)(2), p. 357. 132 A.L.R. 292, et seq.
The express language of the amendment to § 8-634, enacted March 7, 1904, excludes from the one year...
To continue reading
Request your trial
-
Harmon v. Sadjadi, Record No. 060704.
...in the same right; and the cause of action was the same. McDaniel, 198 Va. at 617, 619, 95 S.E.2d at 205-06. Citing Norwood v. Buffey, 196 Va. 1051, 86 S.E.2d 809 (1955), this Court then concluded that since the first action had not been adjudicated on the merits, the ameliorative purpose o......
-
Ipsen v. Moxley
...333, 626 S.E.2d 821, 823 (2006); Gilbreath v. Brewster, 250 Va. 436, 442, 463 S.E.2d 836, 838 (1995). 9. See Norwood v. Buffey, 196 Va. 1051, 1055, 86 S.E.2d 809, 811 (1955) ("A dismissal (not upon the merits) is a nonsuit." (citations and internal quotation marks omitted)); Scoggins v. Dou......
-
McDaniel v. North Carolina Pulp Co., 4577
...same manner as provided in Section 26-48; * * *.' The legislative history of §§ 8-633 and 8-634 is reviewed in Norwood, Adm'r. v. Buffey, 196 Va. 1051, 86 S.E.2d 809, and Hudson Motor Co. v. Hertz, 121 F.2d Plaintiffs ask for a liberal construction of the saving clause in § 8-634, in view o......
-
Dodson v. Potomac Mack Sales & Service, Inc., s. 900299
...a limitation period and a discrete tolling provision applicable to nonsuits of wrongful death actions. Norwood v. Buffey, 196 Va. 1051, 1055-56, 86 S.E.2d 809, 811-12 (1955) (nonsuit is "dismissal" of wrongful death action within context of tolling provision of Code § 8-634 (1950), statutor......