NO. 88-50 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

RUSSELL R. WESTON, JR., 

Plaintiff and Appellant, 

-vsDOROTHY COLE, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Jefferson, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Daniel J. Shea, Helena, Montana 

For Respondent: 

Smith Law Firm; Chadwick H. Smith, Helena, Montana 

Submitted on Briefs: June 30, 1988 

Decided: July 19, 1988 

Filed: 9 9 1988 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Plaintiff-appellant, Russell E. Weston, Jr. (Weston), 

appeals a District Court order dismissing his law suit 

against defendant-respondent, Dorothy Cole (Cole). The order 

was entered in the Fifth Judicial District, Jefferson County, 

by the Honorable Frank M. Davis. We affirm. 

On October 23, 1986, Weston filed a law suit against 

Cole alleging she struck him in the head with a cane. 

Specifically, the complaint alleged: 

[dl efendant without cause or provocation . . . unlawfully assaulted and battered 

plaintiff by then and there striking 

plaintiff with her cain [sic] in the 

head, which blow was struck without 

warning and while plaintiff was 

unprepared to fend off said blow. 

(Emphasis added.) 

The complaint alleged the assault occurred "on or about 

October 30, 1983." Subsequently, Cole filed a motion to 

dismiss alleging, among other things, that the statute of 

limitations applicable to Weston's alleged cause of action 

had expired. The motion was argued October 28, 1987 and the 

District Court filed an order granting the motion to dismiss 

December 21, 1987. The District Court found that the 

applicable statute of limitations for Weston's claim was two 

years, according to 5 27-2-204(3), MCA. Since it was 

undisputed that Weston filed his complaint nearly three years 

after the incident, the cause of action was dismissed. 

On appeal, Weston raises two issues: 

1. Did the District Court implement the correct 

statute of limitations? 

2. Based on general principles of equity, should the 

statute of limitations have been tolled during the time 

period that Weston was living outside Montana? 
APPLICABLE STATUTE OF LIMITATIONS 

Section 27-2-204, MCA, states: 

(1) The period prescribed for the 

commencement of an action upon a 

liability not founded upon an instrument 

in writing is within 3 years. 

(2) The period prescribed for the 

commencement of an action to recover 

damages for the death of one caused by 

the wrongful act or neglect of another is 

within 3 years. 

(3) The period prescribed for the 

commencement of an action for liable, 

slander, assault, battery, false 

imprisonment, or seduction is within 2 

years. (Emphasis added.) 

Weston asserts the three year period stated in subsection (1) 

should apply, rather than the two year period specified in 

subsection (3). He makes this argument by alleging that he 

intends to prove simply an "unlawful act" instead of an 

intentional tort. Weston states that Cole was incompetent 

and could not form the necessary intent for an assault action 

in any event. Therefore, he concludes that the true intent 

of his complaint was to simply allege that Cole committed an 

unlawful act which damaged him. 

Weston's complaint however, could not be more clear. 

It states that Cole unlawfully "assaulted and battered" 

Weston. The complaint asserts Cole committed an assault and 

battery, and no additional or alternative claims are 

presented. In determining which subsection of § 27-2-204, 

MCA, to apply, the following statutory provision is helpful: 

1-2-102. Intention of the legislature 

-- particular and general provisions. In 

the construction of a statute, the 

intention of the legislature is to be 

pursued if possible. When a general and 

particular provision are inconsistent, 

the latter is paramount to the former, so 
a particular intent will control a 

general one that is inconsistent with it. 

Although a strict reading of S 27-2-204, MCA, may present 

some conflict between subsections (1) and (3), the intent 

appears to have been to establish a general three year 

statute of limitations for tort actions, with a shorter two 

year period for certain particular tort actions such as 

assault and battery. We find that the District Court 

implemented the correct statute of limitations by invoking 

the two year period set forth in 5 27-2-204(3), MCA. 

TOLLING OF THE STATUTE OF LIMITATIONS. 

As a second argument, Weston asserts that general 

principles of equity should have tolled the statute of 

limitations for a twenty month period in which he was absent 

from this state. Weston cites virtually no authority 

supporting this argument. His position rests on the 

allegation that Cole developed a special relationship with 

the local sheriff by giving him, or selling to him at a 

drastically low price, a significant amount of mining 

equipment. As a result, Weston claims the local authorities 

ignored his criminal complaint and he was subsequently denied 

monetary relief through the Crime Victims Compensation Fund. 

Weston states he was unable to work due to the injuries he 

sustained and that he had no monetary resources. This 

situation forced him to move to Illinois where he resided 

with relatives. He was absent from the state for 

approximately twenty months and claims equitable principles 

dictate that the statute of limitations should be tolled 

during that period. 

Weston cites no authority directly supporting his 

position. By analogy he cites § 27-2-402, MCA, which states: 

When defendant is out of state. When the 

cause of action accrues against a person 

who is out of the state and cannot be 
served with process, the action may be 

commenced within the term herein limited 

after his return to the state; and if 

after the cause of action accrues he 

departs from the state and cannot be 

served with process, the time of his 

absence is not part of the time limited 

for the commencement of the action. 

Weston asserts that this statute creates a situation where 

"defendant's absence from the state estops him from relying 

on the statute of limitations for that period of time in 

which he was absent from the state." Weston states a reverse 

situation exists in this case because Cole effectively forced 

him to leave the state. Weston concludes that "equity and 

good conscience should not permit defendant Cole to rely on 

the twenty months that plaintiff Weston was in Illinois 

recovering from his injuries." 

The District Court filed a memorandum accompanying its 

order of dismissal and correctly noted that there was simply 

no authority supporting Weston1s argument. Weston seems to 

be making an equitable estoppel argument by asserting the 

defendant Cole should not be allowed to take advantage of 

Weston1s delay, when she in fact caused that delay. See 

generally, City of Billings v. Pierce Packing Co. (1945), 117 

Mont. 255, 266-267, 161 P.2d 636, 641. However, there is 

insufficient evidence in the record to demonstrate that Cole 

affirmatively induced the delay. 

For the foregoing reasons, we affirm the decision of 

the District Court. 

A 
We concur: 

ief Justice 

Justic 7