442 S.W.2d 517 | Mo. | 1969
Appellant herein, plaintiff below, appeals from a Judgment of Dismissal of his action for personal injuries entered in the Circuit Court of Jackson County on December 11, 1967.
The third suit from which this appeal is taken, was filed in the Circuit Court of Jackson County on September 21, 1967. The Circuit Court of Jackson County sus-sained a Motion to Dismiss the third suit on December 11, 1967. The Order of Dismissal of that case is as follows:
"ORDER DISMISSING PLAINTIFF’S CAUSE OF ACTION
The Court finds from the pleadings and affidavits filed herein that this is an action for personal injuries sustained by plaintiff on or about September 13, 1956, in Kansas City, Missouri;
That within the five-year limitation period plaintiff sued Frank Wesselman in the Circuit Court of St. Louis City, August 28, 1961, to recover for such injuries and was nonsuited by that court July 21, 1964;
That within one year thereafter, on July 22, 1964, plaintiff refiled his action in the Circuit Court of Cooper County, Missouri, against Lane Harlan, as administrator of the estate of said Frank Wesselman, deceased, which action was voluntarily dismissed by plaintiff July 5, 1967;
That plaintiff filed the present action in the Circuit Court of Jackson County, Missouri, September 21, 1967, for the same personal injuries sustained September 13, 1956.
Plaintiff’s cause of action is barred by the statute of limitations and that Mo RS 516.230 tolls the statute for only one refiling of the suit within one year of plaintiff’s first nonsuit in the Circuit Court of St. Louis City on July 21, 1964.
Defendant’s motion to dismiss plaintiff’s petition is accordingly sustained this 11th day of December, 1967.” From this Order, plaintiff appeals.
In their briefs the parties agree that the subject matter of this action is governed initially by the five-year period of limitations as set out in Section 516.120.
“If any action shall have been commenced within the times respectively prescribed in sections 516.010 to 516.370, and the plaintiff therein suffer a non-suit, or, after a verdict for him, the judgment be arrested, or, after a judgment for him, the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered or such judgment arrested or reversed ; * * ”
The third action was filed eleven years after the occurrence and long after the five year statute had run. The date of the filing of the third action was also three years after the first suit had been dismissed and therefore not within the one year saving period provided by Section 516.230 as applied to the first action. While it is clear the suit involved in this appeal was filed within one year of the voluntary dismissal of the second suit in Cooper County, plaintiff can prevail only if the statute is construed to provide a one-year saving period following the termination of an action which was not instituted within the period of the applicable statute of limitations governing the time in which such suit must originally be brought.
With respect to the action which gives rise to the benefit of the saving clause set forth in Section 516.230, it makes no difference whether it be the first action or a subsequent one, so long as it was filed within the original period of limitations. This is illustrated by the case of Wetmore v. Crouch, 188 Mo. 647, 87 S.W. 954. In that case the action accrued in May, 1899. A first action was filed on November 22, 1890 and a nonsuit suffered on December 5, 1893. A second action was commenced on April 17, 1894 and was terminated by a nonsuit on January 11, 1902. A third suit was instituted on April 28, 1902. In considering the application of the saving statute to the third case, the court held that since the second case was brought within the period of the statute of limitations under which the action could originally be brought, it served to give the plaintiff the benefit of the saving statute and the third action was not subject to being dismissed as being untimely filed.
Once, however, the provisions of Section 516.230 are invoked, plaintiff then has one year to file his action and the dismissal of an action so filed, does not give rise to any subsequent periods of grace.
In Foster v. Pettijohn, 358 Mo. 84, 213 S.W.2d 487, we held that the plaintiff may not suffer an indefinite number of nonsuits and institute an indefinite number of actions provided each successive new action be brought within one year of the preceding nonsuit. We limited the application of the statute to a one-year period following the nonsuit of an action filed within the original period of limitations. In that decision we set forth several other
While not germane to the result in the instant case, it would appear that the phrase “from time to time, within one year after such nonsuit” may bear on the question of whether the plaintiff is limited to bringing a single action within the one-year period or whether more than one suit might be filed in the year provided. The Oklahoma case referred to above concludes that the great weight of authority limits the litigant to the filing of only one suit. However, most of the cases considered in that opinion, were under statutes which did not contain the words “from time to time,” and there is a division of authority where the phrase occurs. The Circuit Court of Jackson County, in its Order, stated that our statute limits the litigant to the refiling of only a single action within the one-year period. If this view be adopted, the phrase “from time to time” would serve no apparent purpose. We believe the better view is that the inclusion of that phrase permits more than one action to be filed, so long as the first as well as any subsequent suit is brought within the single one-year period provided by the statute after a nonsuit.
The judgment is affirmed.
. All statutory references are to RSMo 1959 and Y.A.M.S., unless otherwise noted.