No. 13543 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

KEN CASSIDY, 

Plaintiff and Appellant, 

GLENN FINLEY and WRIGHT W. 

HAGERTY, 

Defendants and Respondents. 

Appeal from: District Court of the Ninth Judicial District, 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Moses, Tolliver and Wright, Billings, Montana 

R. Allen Beck araued, Billings, Montana 

For Respondents: 

GOUCJ~, Booth, Shanahan and Joynson, Helena, Montana 

Ronald Waterman argued, Helena, Montana 

Filed: fik!!~ 7 1977 

Submitted: June 13, 1977 

. ,* + z2.U ** 2,' *-"- Z 

Clerk 
Mr. Justice John Conway 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 subseqently 

drew a .22 caliber pistol from behind the bar and fired into plaintiff'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 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. 

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 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., 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 section 93-2605, R.C.M. 1947, which provides: 

"Within three years: 

If*** 

"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: 

Chief ~uktwe '