Deal v. St. Louis & San Francisco Railway Company

• Decision Date: 19 January 1914
• Citation: 162 S.W. 760,176 Mo.App. 8
• Parties: M. H. DEAL, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

162 S.W. 760

176 Mo.App. 8

M. H. DEAL, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

January 19, 1914

Appeal from Jackson Circuit Court.--Hon. Kimbrough Stone, Judge.

REVERSED.

Judgment reversed.

W. F Evans and Cowherd, Ingraham, Durham & Morse for appellant.

E. H Batson for respondent.

OPINION

ELLISON, P. J.

This action was brought for $ 235.75 before a justice of the peace in Blue township, Jackson county, Missouri, on an account for damages for the loss of a box of household goods shipped on defendant's road from Tulsa, Oklahoma, to Wynnewood in the same State. On appeal to the circuit court plaintiff recovered judgment.

The date of the shipment was the 13th of April, 1909, and this action was brought October 25, 1912, more than three years thereafter. Defendant defended by interposing the Statute of Limitations. It appears that in Oklahoma the statute is as follows:

"Sec. 550. Other Actions. Civil action, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterward:

"First. Within five years: An action upon any contract, agreement or promise in writing.

"Second. Within three years: An action upon a contract not in writing, express or implied; and action upon a liability created by statute other than a forfeiture or penalty."

This action is not based on any agreement in writing and therefore does not fall in the five-year period of limitation, but rather in the three-year period.

We are compelled to say the action is not brought on a written agreement for nothing of that nature appears in plaintiff's case. The entire record fails to disclose a writing or any reference to one. There is no evidence of a writing in the statement set out above, or in the testimony, or the instructions. Evidently plaintiff began his case and maintained it in the trial court on the theory of defendant having violated its common law duty as a carrier to safely carry and deliver the goods. The record does not disclose that he had any legal standing on any other theory.

Therefore the action was barred by the statute of Oklahoma and being barred there, it is barred here under the provision of section 1895, Revised Statutes 1909, reading as follows: "Whenever a cause of action has been fully barred by the laws of the State, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this State."

The cause of action in McCoy v. Railroad, 134 Mo.App. 622, 114 S.W. 1124, arose in Iowa and suit was brought in this State. It was barred in Iowa and, in consequence, we held it to be barred here, after full consideration of the subject. [To the same effect is Bemis v. Stanley, 93 Ill. 230; Lloyd v. Perry, 38 Iowa 144.]

But plaintiff insists that as his action was begun before a justice of the peace he was not required to set out a writing. That his action might be ex contractu and not ex delicto. If we should grant that, it will not help him; for the Oklahoma statute does not give a five-year period on actions ex contractu, unless they are in writing, and we are not disposed now to allow him to say that his action was based on a written...