Whalen v. Certain-Teed Products Corp.
| Decision Date | 04 November 1963 |
| Docket Number | No. 40378,No. 1,CERTAIN-TEED,40378,1 |
| Parties | Louise M. WHALEN, Guardian, v.PRODUCTS CORP. et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The statute of limitation does not begin to ren against an insane person who has not been restored to sanity, or against his guardian, at the time of the appointment of a guardian for such insane person.
Louise Magee Whalen, as legal guardian of Thomas Joseph Whalen sued Certain-Teed Products Corporation, St. Regis Paper Company, S. A. Allen, Inc., and Henry Lee Edwards in the Superior Court of Chatham County, Georgia, to recover damages for personal injuries to Thomas Joseph Whalen allegedly caused by the negligence of the defendants on March 30, 1960. The action was filed on March 5, 1963 and alleged in substance that the plaintiff in error had previously filed in the same court an action against the same defendants, alleging the same facts; that it arose out of the same cause of action; that the former action had been dismissed by the plaintiff in error on September 5, 1962; that the action was dismissed voluntarily by plaintiff in error without prejudice and that all costs had been paid in the previous suit; and that the present action was renewed under Code § 3-808; that as a result of said injuries Thomas Joseph Whalen was permanently disabled and lost his mental faculties; that as a result of the said loss of his mental faculties he was declared an incompetent; and that on December 1, 1960, Louise Magee Whalen was duly appointed the guardian of Thomas Joseph Whalen by the Court of Ordinary of Chatham County, Georgia. Each of the defendants in error filed a plea of statute of limitation, a motion to dismiss, a general demurrer and a special plea, all of which raised the question whether or not the present action was barred by the statute of limitation by reason of the fact that the present action was not filed within two years from the appointment of said guardian nor within six months from the dismissal of the first action. The court rendered a judgment sustaining all of the pleadings of the defendants which raised the question of the statute of limitation and dismissed the petition, to which judgment the guardian excepted.
John R. Calhoun, Frank R. Cullum, Savannah, for plaintiff in error.
Oliver & Maner, Joseph M. Oliver, Connerat, Dunn, Hunter, Houlihan & MacLean, Stanley W. Feiler, E. Ormonde Hunter, Kennedy & Sognier, John W. Sognier, Lawton, O'Donnell, Sipple & Chamlee, Julian C. Sipple, Robert A. Cronin, Allyn M. Wallace, Savannah, for defendants in error.
It is conceded that the second action was filed more than six month from the dismissal of the first action and more than two years from December 1, 1960, the date of the appointment of the plaintiff in error as guardian. The trial judge, in his order dismissing...
To continue reading
Request your trial
-
Unkert by Unkert v. General Motors Corp.
... ... App.1986); Emerson v. Southern Ry. Co., 404 So.2d 576, 579 (Ala.1981); Whalen v. Certain-Teed Prod. Corp., 108 Ga.App. 686, 134 S.E.2d 528, 529-30 (1963); Mason v. Sorrell, ... ...
-
Ethridge v. Price
...that the law applicable to a minor is equally applicable to the other classes of persons enumerated." Whalen v. Certain-Teed Prods. Corp., 108 Ga.App. 686, 688, 134 S.E.2d 528 (1963). Consequently, it is established law that the statute of limitation remains tolled against an incompetent de......
-
Howard v. State, A97A1453
...219 S.E.2d 341 (1975); Jones v. Hartford Accident, etc., Co., 132 Ga.App. 130, 207 S.E.2d 613 (1974); Whalen v. Certain-Teed Products Corp., 108 Ga.App. 686, 687, 134 S.E.2d 528 (1963). Thus, appellant's cause of action, brought by her mother as next friend, is not barred by virtue of the a......
-
Sahf v. Lake Havasu City Ass'n for the Retarded and Handicapped, 1
...Sorrell, 260 Ark. 27, 551 S.W.2d 184 (1976); Gottesman v. Simon, 169 Cal.App.2d 494, 337 P.2d 906 (1959); Whalen v. Certain-Teed Products Corp., 108 Ga.App. 686, 134 S.E.2d 528 (1963); Paavola v. St. Joseph Hospital Corp., 119 Mich.App. 10, 325 N.W.2d 609 (1982); Young v. State Dept. of Soc......
-
Trial Practice and Procedure - C. Frederick Overby and Jason Crawford
...Sec. 9-3-90 (1982 & Supp. 1995). See Barnum v. Martin, 135 Ga. App. 712, 219 S.E.2d 341 (1975); Whalen v. Certain-Teed Prods. Corp., 108 Ga. App. 686, 687, 134 S.E.2d 528 (1963). 144. Price, 214 Ga. App. at 88, 446 S.E.2d at 752; see also Cline v. Lever Bros. Co., 124 Ga. App. 22, 23, 183 S......