Summary
holding that appointment of guardian does not operate to start statute of limitations running in cases where title to cause of action is in person belonging to class of disabled persons encompassed within tolling provision
Summary of this case from Abels ex Rel. Hunt v. Genie IndustriesOpinion
40378.
DECIDED NOVEMBER 4, 1963. REHEARING DENIED NOVEMBER 19, 1963.
Action for damages. Chatham Superior Court. Before Judge Harrison.
John R. Calhoun, Frank R. Cullum, for plaintiff in error.
Oliver Maner, 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, contra.
The statute of limitation does not begin to run 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.
DECIDED NOVEMBER 4, 1963 — REHEARING DENIED NOVEMBER 19, 1963.
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.
It is conceded that the second action was filed more than six months 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 the petition, stated that it was his opinion that the statute of limitation began to run on December 1, 1960, the date of the appointment of the guardian. We are unable to agree with the trial judge's reason for dismissing the action. Code § 3-808, which provides that a second action may be brought within six months from the dismissal of a prior action, does not apply so long as the statute of limitation has not attached. Williford v. State, 56 Ga. App. 840 ( 194 S.E. 384); Hackney v. Asbury Co., 124 Ga. 678 ( 52 S.E. 886). Code § 3-801 provides: "Infants, idiots, or insane persons, or persons imprisoned, who are such when the cause of action shall have accrued, shall be entitled to the same time, after the disability shall have been removed, to bring an action, as is prescribed for other persons." We think that the question has been definitely and conclusively settled that as to a minor, the appointment of a guardian does not operate to start the statute of limitation running against the minor or the guardian in cases where the title to the cause of action is in the minor. Wingfield v. Virgin, 51 Ga. 139 (1); Monroe v. Simmons, 86 Ga. 344 ( 12 S.E. 643) and cases cited; Grimsby v. Hudnell, 76 Ga. 378 (2 ASR 46); Nelson v. Estill, 190 Ga. 235, 243 ( 9 S.E.2d 73). See also City of Atlanta v. Barrett, 102 Ga. App. 469 ( 116 S.E.2d 654).
Since all the parties enumerated in Code § 3-801 are in the same class, it follows that the law applicable to a minor is equally applicable to the other classes of persons enumerated.
The court erred in sustaining the pleadings of the defendants which raised the question of the statute of limitation and in dismissing the action.
Judgment reversed. Eberhardt and Russell, JJ., concur.