Albert Gilbert Bowling v. Webb Gas Company

This is an action for damages for the alleged wrongful death of Roy Gilbert Bowling in which a recovery of $50,000 is sought. Decedent died on February 23, 1968. This suit was filed on February 24, 1970. The trial court, upon motion of defendants, dismissed plaintiff's petition, with prejudice, for the reason that the action was barred by the Statute of Limitations in that said suit was not commenced within two years after the cause of action occurred . Plaintiff has appealed. Since the appeal was taken prior to January 1, 1972, we have jurisdiction because of the amount in dispute. We reverse and remand. A cause of action for wrongful death is provided for in § 537.080. 1 Section 537.100 provides that action instituted under section 538.080 shall be commenced within two years after the cause of action shall accrue * * *. In regard to the filing of this suit the transcript discloses that on Friday, February 20, 1970, plaintiff's counsel mailed the petition at Aurora, Missouri, in an envelope addressed to the Circuit Clerk of Stone County at Galena, Missouri; that in the usual course of post office business the petition would have arrived at the Galena post office on Saturday, February 21, 1970; that the circuit clerk's office was closed on Monday, February 23, 1970, in observance of a legal holiday, i.e., Washington's Birthday (see § 9.010); that on Tuesday, February 24, 1970, the petition was received and filed by the circuit clerk.