Gideon v. Gates

611 P.2d 166, 5 Kan. App. 2d 23, 1980 Kan. App. LEXIS 245
CourtCourt of Appeals of Kansas
DecidedMay 23, 1980
Docket50,623
StatusPublished
Cited by11 cases

This text of 611 P.2d 166 (Gideon v. Gates) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gideon v. Gates, 611 P.2d 166, 5 Kan. App. 2d 23, 1980 Kan. App. LEXIS 245 (kanctapp 1980).

Opinions

Spencer, J.:

Plaintiff seeks to recover damages allegedly sustained as a result of a collision of automobiles, one of which was owned by defendant Reed and was then being driven by defendant Gates. Plaintiff dismissed as to Reed and the trial court entered summary judgment in favor of defendant Gates on grounds the action was barred by the provisions of K.S.A. 60-513(a)(4). Plaintiff has appealed.

[24]*24The parties agree that the accident out of which this action arose occurred on November 30,1974; that plaintiff’s petition was filed November 2,1976, but defendant Gates was not served with process until February 3, 1977; that by reason of K.S.A. 60-203, the action is deemed to have been commenced on February 3, 1977, because service of process was not obtained until ninety-three days after the petition was filed; and that the action is barred by the two-year statute of limitations embodied in K.S.A. 60-513(a)(4) unless the operation of that statute is tolled by K.S.A. 60-517, which provides in relevant part:

“[I]f after the cause of action accrues he or she [i.e., the person against whom a cause of action has accrued] depart from the state, or abscond or conceal himself or herself, the time of the absence or concealment shall not be computed as any part of the period within which the action must be brought. This section shall not apply to extend the period of limitation as to any defendant whose whereabouts are known and upon whom service of summons can be effected under the provisions of article 3 of this chapter.” Emphasis 'added.

This statute has been in existence in Kansas since 1862 (L. 1862, ch. 26, § 28), and was amended to include the last sentence of the section in 1963 (L. 1963, ch. 303, § 60-517). The many Kansas decisions construing and applying the section continue to be authoritative except as modified by the last sentence of the new provision. Gard’s Kansas C. Civ. Proc. 2d § 60-517 (1979).

The statute of limitations is an affirmative defense and the burden of pleading and proving its applicability rests on the defendant. K.S.A. 60-208(c); Barnes v. Gideon, 1 Kan. App. 2d 517, 518, 571 P.2d 42 (1977), rev’d on other grounds 224 Kan. 6, 578 P.2d 685 (1978). However, the burden of proving facts sufficient to toll the statute is upon the plaintiff. Bowman v. Bowman, 134 Kan. 477, 7 P.2d 521 (1932); Cott v. Baker, 112 Kan. 115, 210 Pac. 651 (1922); Easter v. Easter, 44 Kan. 151, 24 Pac. 57 (1890).

In his consideration of K.S.A. 60-517, Judge Gard has stated:

“The effect of the last sentence of the section is to prevent the statute from being tolled by the absence of a person from the state wherever, in spite of the absence, jurisdiction over the person of the defendant, corporate or individual, can be acquired by service of summons within or without the state. It has particular impact in view of the provisions of section 60-308 which makes it possible in the classes of cases there mentioned to obtain personal service in another state as a basis for obtaining a personal judgment in Kansas. Care must be taken, therefore, if the address of the party to be sued is known, to observe the applicable statute of limitation and bring the action under the authority of section 60-308 to enforce a liability which falls within that section.
[25]*25“It [i.e., the last sentence of 60-517] would apply, in fact, to any other situation where personal service can be had within the state by any manner whatsoever, unless there is concealment on the part of the defendant.” Gard’s Kansas C. Civ. Proc. 2d § 60-517 (1979).

In Carter v. Zahn, 37 F.R.D. 556, 559 (D. Kan. 1965), the United States District Court for the District of Kansas held that “known” within the Kansas tolling statute means “ ‘known to plaintiff,’ or by the exercise of due diligence should have been known to plaintiff.” The same definition was adopted by this court in Carter v. Kretschmer, 2 Kan. App. 2d 271, 577 P.2d 1211, rev. denied 225 Kan. 843 (1978), and was cited with approval by our Supreme Court in In re Estate of Barnes, 212 Kan. 502, 508, 512 P.2d 387 (1973). Both Zahn and Kretschmer equate the term “whereabouts” with an address where service of process can be effected, and in Kretschmer this court noted that absence sufficient to toll the statute of limitations means “beyond the reach of process from our courts.” 2 Kan. App. 2d at 272.

Under K.S.A. 60-203 this action would have been commenced with the filing of the petition only if there had been service of process within ninety days thereafter. K.S.A. 60-517 does not alter the fact. Accordingly, this action was commenced February 3, 1977, a period of two years and sixty-five days after the date of the accident. Unless it has been shown that the operation of K.S.A. 60-513(a)(4) was tolled for at least sixty-five days, it is barred by that statute.

It is apparent that a plaintiff does not sustain the burden of proving facts sufficient to toll the statute of limitations by demonstrating merely that a defendant was physically absent from the state. It must also be shown that defendant’s whereabouts while outside the state were not known, and that service of process could not have been effected under article 3 of chapter 60.

Plaintiff has specified four separate occasions during which it is alleged defendant was absent from the state: (1) In November, 1975, he was gone for three or four days over Thanksgiving visiting some people named John and Janice Shoddy; (2) in June, 1976, he went to Oklahoma City for a weekend to visit a girlfriend and was gone two days; and (3) after suit was filed, he visited his parents in Tacoma, Washington, for a period of twenty-one days. The foregoing represent but three visitations outside the state .during which defendant maintained his residence in Junction [26]*26City and his status as a student at Kansas State University. There is no showing in this record as to whether plaintiff made any attempt to learn of defendant’s whereabouts on these occasions; but it is apparent that, with some minimal effort, his whereabouts could have been ascertained if it was necessary to do so.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Vasquez Arroyo v. Gross
475 F. App'x 681 (Tenth Circuit, 2012)
Bayless v. Dieckhaus
106 P.3d 83 (Court of Appeals of Kansas, 2005)
Morris v. Morris
10 P.3d 771 (Court of Appeals of Kansas, 2000)
Slayden v. Sixta
825 P.2d 119 (Supreme Court of Kansas, 1992)
Slayden v. Sixta
813 P.2d 393 (Court of Appeals of Kansas, 1991)
O'DONNELL v. Fletcher
681 P.2d 1074 (Court of Appeals of Kansas, 1984)
Johnson v. Miller
655 P.2d 475 (Court of Appeals of Kansas, 1982)
Hitt v. J. B. Coghill, Inc.
641 P.2d 211 (Alaska Supreme Court, 1982)
Gideon v. Gates
611 P.2d 166 (Court of Appeals of Kansas, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
611 P.2d 166, 5 Kan. App. 2d 23, 1980 Kan. App. LEXIS 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gideon-v-gates-kanctapp-1980.