Winston v. Wood

• Decision Date: 23 November 1993
• Docket Number: No. 21349,21349
• Citation: 437 S.E.2d 767,190 W.Va. 194
• Court: West Virginia Supreme Court
• Parties: Clifford WINSTON, in her capacity as Administratrix of the Estate of Willie Winston, Plaintiff Below, Appellant, v. Norman E. WOOD, D.O.; R.S. Glass, M.D., the Reynolds Memorial Hospital, Inc.; Jerry Hendrick, in His Capacity as Warden of the West Virginia State Penitentiary; A.V. Dodrill, in His Capacity as Director of the Department of Corrections of the State of West Virginia; and the West Virginia Department of Corrections, Defendants Below, Appellees.

Page 767

437 S.E.2d 767

190 W.Va. 194

Clifford WINSTON, in her capacity as Administratrix of the Estate of Willie Winston, Plaintiff Below, Appellant, v. Norman E. WOOD, D.O.; R.S. Glass, M.D., the Reynolds Memorial Hospital, Inc.; Jerry Hendrick, in His Capacity as Warden of the West Virginia State Penitentiary; A.V Dodrill, in His Capacity as Director of the Department of Corrections of the State of West Virginia; and the West Virginia Department of Corrections, Defendants Below, Appellees.

No. 21349.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 22, 1993.

Decided Nov. 23, 1993.

Syllabus by the Court

1. "Prior to the 1978 amendment of Rule 3 of the West Virginia Rules of Civil Procedure, a civil action was commenced by filing a complaint with the Court and the issuance of a summons or the entry of an order of publication; since such amendment, a civil action is commenced by filing a complaint with the Court." Syllabus Point 1, Huggins v. Hospital Bd. of Monongalia County, 165 W.Va. 557, 270 S.E.2d 160 (1980).

2. "The presumption that public officers discharge their duties in a regular and proper manner is a strong presumption compelled first by experience and second by society's interest in avoiding frivolous litigation over technicalities." Syllabus Point 2, Roe v. M & R Pipeliners, Inc., 157 W.Va. 611, 202 S.E.2d 816 (1973).

Allan N. Karlin, Morgantown, for appellant.

Darrell V. McGraw, Jr., Atty. Gen. and Samuel P. Cook, Sr. Asst. Atty. Gen., Charleston, for Norman E. Wood, D.O., Jerry Hendrick, A.V. Dodrill and the West Virginia Dept. of Corrections.

Elliot G. Hicks, Kay, Casto, Chaney, Love & Wise, Charleston, for R.S. Glass, M.D.

PER CURIAM:

Clifford Winston, administratrix of the estate of Willie Winston, appeals the final order of the Circuit Court of Kanawha County dismissing her wrongful death suit on the grounds that it was not filed within the statutory period. On appeal, Ms. Winston notes that her complaint was received and stamped as received by the Circuit Clerk of Kanawha County on October 17, 1986, and the clerk then stamped her complaint as filed on October 21, 1986. Ms. Winston argues that her suit was timely filed because the Clerk's office received it on October 17, 1986, which was within two years of October 17, 1984, the date of Mr. Winston's death. Because the record shows that the Clerk's office received Ms. Winston's complaint within the statutory period even though her complaint was stamped as filed on October 21, 1986, we find that the complaint was timely filed and reverse the decision of the Circuit Court.

Willie Winston, an inmate of the West Virginia State Penitentiary died on October 17, 1984 at Reynolds Memorial Hospital. ¹ Alleging that Mr. Winston's death was caused by medical malpractice and that his civil rights were violated, Ms. Winston, the mother of Mr. Winston and administratrix of his estate, delivered her complaint on Friday, October 17, 1986 to the Office of the Clerk of the Circuit Court of Kanawha County. The date, October 17, 1986, was noted on the Memorandum to the Clerk by a deputy clerk, who on the same day entered the case in the Clerk's Instituting Civil Action Proceeding book. A deputy clerk also prepared the summons on October 17, 1986. The complaint was sent to a different deputy clerk to be stamped as filed; however, the complaint was stamped as filed on October 21, 1986. ² On Monday, October 20, 1986, the sheriff's office picked up copies of the complaint and summons and entered their receipt of the documents in the sheriff's log book.

Although the appellees' answers raised the statute of limitation question ³, the motion to dismiss was not presented until February 1992 after substantial discovery was undertaken and the case was ready for trial. After a hearing the circuit court dismissed the complaint as not timely filed.

I.

W.Va.Code 55-7-6(d) [1989], our wrongful death statute, requires an action to be commenced within two years after the deceased's death. W.Va.Code 55-7-6(d) [1989] provides:

Every such action shall be commenced within two years after the death of such deceased person, subject to the provisions of section eighteen [§ 55-2-18], article 2, chapter fifty-five. The provisions of this section shall not apply to actions brought for the death of any person occurring prior to the first day of July, one thousand nine hundred eighty-two. ⁴

The appellees argue that under W.Va.Code 55-7-6(d) [1989] the last day to file in order to commence an action within two years of Mr. Winston's October 17, 1984 death was October 16, 1986. This computation argument fails to consider W.Va.Code 2-2-3 [1973], which provides that "[t]he time or period prescribed or allowed within which an act is to be done shall be computed by excluding the first day and including the last...." In Lamb. Trustee. etc. v. Cecil., 28 W.Va. 653, 658 (1886), we noted that "[t]he rule prescribed by the statute is, that the day on which the cause of action arose must be excluded so as to make the time commence on the following day...." See also Steeley v. Funkhouser, 153 W.Va. 423, 429, 169 S.E.2d 701, 705 (1969) (noting that the reason for excluding the first day and including the last is that the cause of action may occur "too late for a civil action to be commenced on that date").

II

The second issue concerns when a complaint is filed. Ms. Winston maintains that her complaint was filed on October 17, 1986 when she delivered it to the Clerk's office. The appellees maintain that the complaint was not filed until October 21, 1986, the filed day stamped on it by the Clerk's office.

Rule 3 of the W.Va.R.C.P. [1992] provides that "[a] civil action is commenced by filing a complaint with the court." ⁵ Rule 5(e) of the W.Va.R.C.P. [1978] defines "filing with the court" as "filing them[, the pleadings and other papers] with the clerk of the court, who shall note thereon the filing date...." ⁶ In Syl. Pt. 1, Huggins v. Hospital Bd. of Monongalia County, 165 W.Va. 557, 270 S.E.2d 160 (1980), we stated:

Prior to the 1978 amendment of Rule 3 of the West Virginia Rules of Civil Procedure, a civil action was commenced by filing a complaint with the Court and the issuance of a summons or the entry of an order of publication; since such amendment, a civil action is commenced by filing a complaint with the Court.

"The presumption that public officers discharge their duties in a regular and proper manner is a strong presumption compelled first by experience and second by society's interest in avoiding frivolous litigation over technicalities." Syllabus Point 2, Roe v. M & R Pipeliners, Inc., 157 W.Va. 611, 202 S.E.2d 816 (1973). Although a strong presumption is generally afforded to public officers discharging their duties in a regular and proper manner, the presumption is "far weaker ... when the party challenging a formal requirement can demonstrate direct injury to himself." Roe, 157 W.Va. at 620, 202 S.E.2d at 821.

In the present case, the record shows that Ms. Winston's complaint was received in the Clerk's office on October 17, 1986. The Clerk's office made two separate notations on or concerning Ms. Winston's complaint and prepared a summons on October 17, 1986. A deputy clerk testified that in 1986 the final action taken on a complaint by the Clerk's...