#### KEN CASSIDY, Plaintiff and Appellant, *v.*GLENN FINLEY and WRIGHT W. HAGERTY, Defendants and Respondents.

No. 13543.

Submitted June 13, 1977.

Decided Aug. 17, 1977.

568 P.2d 142.

*476Moses, Tolliver & Wright, Billings, R. Allen Beck argued, Billings, for plaintiff and appellant.

Gough, Booth, Shanahan & Johnson, Helena, Ronald F. Waterman argued, Helena, for defendants and respondents.

MR. JUSTICE HARRISON

delivered the opinion of the Court.

Plaintiff Ken Cassidy seeks to recover damages from defendants 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 district 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 subsequently drew a .22 caliber pistol from behind the bar and fired into plaintiff’s face, causing injuries.

*477On 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 painful 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 expired. The issue was fully briefed by both parties. The district court, on June 25, 1976, ordered summary judgment in favor of defendant Finley, treating the motion to dismiss as one for summary judgment. Plaintiff appeals from that order.

*478The 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, *479whether 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 prerequisite 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 subsequently dismissed for lack of jurisdiction. *Johnson v. United*States, 68 F.2d 588 (9th Cir.); *Gilmore v. Gilmore,*270 F. 260 (D.C.Mont.). See: Anno. 6 A.L.R.3d 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 is not the same action filed in the federal court. The set of operative 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 section 93-2605, R.C.M.1947, which provides:

“Within three years:

“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, *4801970. 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. *Noll 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 affirmed.

MR. CHIEF JUSTICE HATFIELD and JUSTICES HASWELL, DALY and SHEA concur.