| W. Va. | Nov 7, 1911
For a variance between the writ and declaration the plaintiff’s action for damages for a personal injury was dismissed, the court having refused leave to amend the writ, whiclr was in assumpsit, so as to make it correspond with the declaration, which was in trespass on the case.
Soon after the dismissal, but more than a year after the date of the injury, the plaintiff instituted a new action in trespass on the case. In the declaration, he averred the dismissal of his first action and the cause thereof, and relies upon section 19 of chapter 104 of the Code of 1906, allowing an additional one year in which to bring a new action in case of dismissal of one commenced within clue time on a ground which does not preclude a new action for the same cause, or by reason of any other cause, which could not be pleaded in' bar of an. action. To this new action, the defendant interposed another plea, founded upon
The construction of the statute involved has been fairly well settled in Lawrence v. Coal Co., 48 W. Va. 139" court="W. Va." date_filed="1900-04-21" href="https://app.midpage.ai/document/lawrence-v-winifrede-coal-co-6596558?utm_source=webapp" opinion_id="6596558">48 W. Va. 139, denying the benefit thereof to a party who has taken a voluntary non-suit or the equivalent thereof, Ketterman v. Railroad Co., 48 W. Va. 606" court="W. Va." date_filed="1900-12-21" href="https://app.midpage.ai/document/ketterman-v-dry-fork-railroad-co-8174919?utm_source=webapp" opinion_id="8174919">48 W. Va. 606, allowing it in a case of dismissal for a fatal defect in the summons, and Tompkins v. Life Ins. Co., 53 W. Va. 479, granting it to a party whose action, commenced in the wrong court, had been dismissed for want of jurisdiction. In the first and last of these three eases, several decisions of other courts, construing similar statutes, are reviewed and analyzed. Our interpretation of the statute, based upon its terms and the general principle and object of statutes of its class, as defined by the courts and text-writers, makes its application depend largely upon the good faith and diligence of the party invoking it.
TVe are of the opinion that the plaintiff in error is within the spirit as well as the letter of the statute. As the dismissal was the result of court action and not abandonment by the plaintiff, it was involuntary, even though it may have been erroneous, by reason of refusal of the court to permit amendment of the unit to make it correspond with the declaration, as authorized by section 15 of chapter 125 of the Code, (Barnes v. Grafton, 61 W. Va. 408, 410), and the error acquiesced in. Every dismissal not purely voluntary, nor attributable solely to the negligence of the plaintiff, makes a case within the excepting statute. Here we have the elements of court action over the protest of the plaintiff, and fault on the part of the court alone, the plaintiff having offered to amend.
Liberality in the construction of this statute is warranted by its remedial character and also by the nature of its subject matter. A party whose action has once been commenced and then dismissed occupies naturally a position radically different from one who never sued within the period allowed for action by the statute of limitations. There, can be no presumption of abandon
We reverse the judgment, sustain the objection to defendant’s special Plea No. 2 and strike it out and remand the case for further proceedings.
Reversed and Remanded.