No. 13543
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1977
KEN CASSIDY,
P l a i n t i f f and A p p e l l a n t ,
GLENN FINLEY and WRIGHT W.
HAGERTY,
D e f e n d a n t s and Respondents.
Appeal from: D i s t r i c t Court of t h e Ninth J u d i c i a l D i s t r i c t ,
Honorable Nat A l l e n , Judge p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
Moses, T o l l i v e r and W r i g h t , B i l l i n g s , Montana
R . A l l e n Beck a r a u e d , B i l l i n g s , Montana
F o r Respondents:
G O U C J ~ , Booth, Shanahan and Joynson, H e l e n a , Montana
Ronald Waterman a r g u e d , H e l e n a , Montana
Submitted: J u n e 1 3 , 1977
Filed: f i k ! ! ~ 1977
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Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the Court.
Plaintiff Ken Cassidy seeks to recover damages from defend-
ants Glenn Finley and Wright W. Hagerty for alleged negligence,
arising from an incident which occurred February 8, 1970. The
action was initially filed in the district court, Glacier County,
on August 8, 1973. On April 8, 1976, plaintiff moved for and was
granted leave to amend his complaint. Thereafter, upon motion of
defendant Finley and following written and oral arguments, the dis-
trict court issued an order granting summary judgment to defendant
Finley. Plaintiff appeals.
On February 8, 1970, plaintiff entered the Babb Bar in Babb,
Montana. The bar was owned and operated by a partnership consisting
of defendants Finley and Hagerty. An altercation occurred between
plaintiff and the bartender, Arnold "Red" Savage. Savage subseqently
drew a .22 caliber pistol from behind the bar and fired into plain-
tiff's face, causing injuries.
On January 22, 1973, plaintiff commenced an action in the
United States District Court for the District of Montana, Great Falls
Division, seeking damages for intentional assault. The action was
brought against defendant Finley alone. Plaintiff therein alleged:
"That Red Savage in response to the argument
aimed a .22 caliber pistol from behind the bar
where it was kept and he did then and there
without warning, fire the same into the face
of the plaintiff, causing him severe and pain-
ful injuries."
On June 21, 1974, the United States District Court ordered dismissal
of the cause for lack of federal jurisdiction.
During pendency of the federal action plaintiff on August 8,
1973 filed the present action in state court; wherein plaintiff
elected to sue both Finley and his business partner, Hagerty. The
pleadings in the present case allege a cause of action in negligence,
rather than intentional assault:
" * * * That Red Savage, in response to the
argument, seized a .22 caliber pistol from
behind the bar where it was kept and he did
then and there accidentally discharge the same
into the face of plaintiff causing him severe
and painful injuries.
"Plaintiff alleges that the direct and proximate
cause of the injury was negligence on the part
of the employee * * * ." (Emphasis added.)
No service of process was ever obtained upon defendant Hagerty. He
has made no appearance in this action.
The amended complaint, filed April 8, 1976, also is grounded
in negligence, and alleges additional counts of negligent conduct.
On April 27, 1976, defendant Finley filed a motion to dismiss the
amended complaint on the ground the statute of limitations had ex-
pired. The issue was fully briefed by both parties. The district
court, on June 25, 1976, ordered summary judgment in favor of defend-
ant Finley, treating the motion to dismiss as one for summary judg-
ment. Plaintiff appeals from that order.
The issues presented on appeal are:
1. Whether plaintiff's cause of action originally instituted
in federal court was "renewed" by the provisions of section 93-2708,
R.C.M. 1947, thus preventing the running of the statute of limitations
against the subsequent action in state court.
2. Whether the filing of the second cause of action in
state court, prior to the termination of the first cause of action,
defeats the operation of the renewal statute.
Plaintiff argues the statute of limitations does not bar
the present action because an action on the same matter, having the
same set of operative facts, was instituted in federal court prior
to the running of the statute. It is argued section 93-2708, applies
and that the original federal action was "renewed" in state court,
thus effectively preventing the operation of the three year statute
of limitations applicable to actions for negligence. Section 93-2708
provides:
"If an action is commenced within the time
limited therefor, and a judgment therein is
reversed on appeal, without awarding a new trial,
or the action is terminated in any other manner
than by a voluntary discontinuance, a dismissal
of the complaint for neglect to prosecute the
action, or a final judgment upon the merits,
the plaintiff * * * may commence a new action
for the same cause, after the expiration of the
time so limited, and within one year after such
a reversal or termination."
We note here that plaintiff's original complaint filed in
federal court was plainly phrased in terms of an intentional tort.
The applicable statute of limitations is section 93-2606, R.C.M.
1947, it provides:
"Within two years:
"3. An action for * * * assault * * *."
A statute of limitations commences to run from the time the
cause of action accrues to the plaintiff. Stagg v. Stagg, 90 Mont.
180, 300 P. 539. Any cause of action existing in this case, whether
based upon intentional or negligent conduct, accrued to plaintiff
on February 8, 1970, the date of injury. The two year statute of
limitations had clearly expired, prior to institution of the federal
action on January 22, 1973.
The primary prerequisite to the applicability of section
93-2708, the "renewal" statute, is that the original action be
"commenced within the time limited therefor." Here, the prerequi-
site was not met, for the original action was not timely filed.
Hence, there was nothing to be renewed under section 93-2708. While
the federal court dismissed the action for lack of jurisdiction, it
certainly could also have done so on the ground the statute of
limitations had run.
We agree with plaintiff's argument that section 93-2708
would permit renewal in Montana district courts of actions filed
in federal courts within the proper time limitations, but subse-
quently dismissed for lack of jurisdiction. Johnson v. United States,
68 F. 2d 588 (9th Cir., Mont.) ; Gilmore v. Gilmore, 270 F. 260 (D.C.
Mont.). See: Anno. 6 ALR3d, 1043. This principle is representative
of the majority position. However, the rule is inapplicable where,
as here, the initial federal action is not timely filed.
The present cause of action, in negligence, must stand or
fall without regard to the renewal statute. The negligence action
operative
is not the same action filed in the federal court. The set of/facts
in the present action differs greatly from that of the prior federal
action. Alleged negligent conduct is simply not the equivalent of
an intentional assault.
We find the present cause of action is also barred by the
statute of limitations. Applicable to negligence actions is sec-
tion 93-2605, R.C.M. 1947, which provides:
"Within three years:
I f * * *
"3. An action upon an obligation or liability
not founded upon an instrument in writing,
other than a contract, account or promise."
As pointed out, the tort, if any,accrued on February 8,
1970. The present negligence action was filed on August 8, 1973,
well past the three year limitation. This Court has often stated
one of the objects of a true statute of limitations is to prevent
potential plaintiffs from sitting on their rights, and to suppress
stale claims after the facts concerning them have become obscured
by lapse of time, defective memory, or death or removal of witnesses.
No11 v. City of Bozeman, 166 Mont. 504, 534 P.2d 880.
The district court was correct in granting summary judgment
to defendant Finley on the ground the action is barred by the statute
of limitations. Given this holding, there is no need to resolve the
second issue on appeal.
The judgment is affirme
We Concur:
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Chief ~ u k t w e