CHARLESTON.

#### Ryan *v.*Piney Coal & Coke Co.

Submitted September 9, 1910.

Decided November 7, 1911.

Limitations or *Actions*— Computation—Commencement *of*Action— *New Action After Dismissal.*

One whose action, commenced within the time allowed by law, has been erroneously dismissed on a plea in abatement for variance between the writ and the declaration, after refusal to permit an amendment of the writ, may bring a new action, having the same purpose as the one dismissed, within a year after the date of dismissal, though after his right of action would have been barred by limitation, had the dismissed action not been instituted. *i*(pp. 692 to 694).

Error to Circuit Court, Raleigh County.

Action by C. C. Ryan against the Piney Coal & Coke Company. Judgment for defendant, and plaintiff brings error.

*Reversed and Remanded.*

*T. N. Read*and *A. A.*Lilly, for plaintiff in error.

Watts, *Davis & Davis,*for defendant in. error.

POEEENBARGER, JUDGE:

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 *693the dismissal and denying the application of the statute relied upon as excepting the ease from the application of the general statute of limitations. It also plead the statute of limitations. To tire plea of the statute of limitations, there was a replication. Having overruled an objection to the plea, designated as Plea Ho. 2, the court determined the issue on said plea in favor of the defendant and dismissed said second action.

The construction of the statute involved has been fairly well settled in *Lawrence*v. *Coal Co.,*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, 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*694ment of claim, on which the statute is founded, in his case. His dismissed action negatives that presumption. This is the obvious basis of the differentiation made by the legislature. Naturally, therefore, only voluntary dismissals, or equivalents thereof, are excluded from the benefit of the saving section of the statute. To a limited extent, the common law, unaided by statute, made an exception on this ground. *25*Cyc. 1313.

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.*