Importers & Exporters Ins. Co. v. Farris

• Decision Date: 09 November 1937
• Docket Number: Case Number: 27272
• Parties: IMPORTERS & EXPORTERS INS. CO. et al. v. FARRIS
• Court: Oklahoma Supreme Court

1937 OK 644

73 P.2d 831

181 Okla. 339

IMPORTERS & EXPORTERS INS. CO. et al. v. FARRIS

Case Number: 27272

Supreme Court of Oklahoma

Decided: November 9, 1937

Syllabus

¶0 1. LIMITATION OF ACTIONS - Demurrable Petition Where Summons Duly Issued Held Sufficient to Toll Statute and Upon Failure of Action Otherwise Than Upon Merits to Authorize Commencement of New Action Within One Year.

Where petition is filed and summons duly issued thereon seeking certain relief, although not sufficiently stating a cause of action therefor, the same is sufficient to toll the statute of limitations, and if such attempted action fail otherwise than on the merits after the limitation has run, another action seeking the same relief may be commenced within one year from such failure by reason of the provisions of section 106, O. S. 1931.

2. SAME - Amendment Relating Back to Filing of Petition Amended.

An amendment which sets up no new cause of action relates back to the filing of the petition amended.

Appeal from District Court of Carter County; John B. Ogden, Judge.

Consolidated actions by M. Farris against the Importers & Exporters Insurance Company and the Hanover Fire Insurance Company on two policies of fire insurance. Judgments for plaintiff, and defendants appeal. Affirmed.

Rittenhouse, Webster & Rittenhouse, for plaintiffs in error.

Stephen A. George, Twyford & Smith, and William J. Crowe, for defendant in error.

GIBSON, J.

¶1 This is an appeal from two separate judgments obtained by defendant in error against plaintiffs in error in the district court of Carter county in consolidated actions upon certain fire insurance policies. The parties are hereinafter designated as they appeared at the trial.

¶2 The principal question here for consideration is whether the actions were barred by the statute of limitations.

¶3 The insurance policies sued upon were of standard form within the meaning of section 10557, O. S. 1931, and contained the following clause as authorized by statute:

"No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire."

¶4 Plaintiff commenced, or attempted to commence, actions against defendants within the year, dismissed same without prejudice, and within a year subsequent to such dismissals, but more than a year after the loss, commenced, or attempted to commence, the present actions, thus apparently saving his claims from the operation of the aforesaid limitation by virtue of the provisions of section 106, O. S. 1931, which reads as follows:

"If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff * * * may commence a new action within one year after the reversal or failure."

¶5 Defendants assert that the steps taken by plaintiff in instituting the first actions as aforesaid were insufficient to constitute the commencement of an action within the meaning of said section 10557, in that the petitions failed to state a cause of action, and that said actions therefore did not toll the one-year limitation. Wheeler v. City of Muskogee, 51 Okla. 48, 151 P. 635; Burke v. Unger, 88 Okla. 226, 212 P. 993; Morrissey v. Hurst, 107 Okla. 1, 229 P. 431; Murray v. McGehee, 121 Okla. 248, 249 P. 700; Niagara Fire Ins. Co. v. Nichols, 96 Okla. 96, 220 P. 920.

¶6 In our view of this particular proposition, it becomes unnecessary to determine the question of the sufficiency of the petitions in the former actions. From our decisions we draw the conclusion that when a petition is filed, and summons issued in due time, seeking certain relief, although not sufficiently stating a cause of action therefor, the same is sufficient to toll the statute, and if such attempted action fail otherwise than on the merits after the limitation has run, another action seeking the same relief may be commenced within one year from such failure by reason of the provisions of said section 106, O. S. 1931. United States Fire Ins. Co. v. Whitchurch, 138 Okla. 182, 280 P. 834; Collum v. Stokes, 146 Okla. 176, 293 P. 1036.

¶7 The latter decisions hold in effect that a petition fatally defective on general demurrer tolls the statute, where summons is properly issued, and that an amended petition filed after expiration of the limitation and seeking the same relief as between the same parties relates back to the time of filing the original petition. The decisions under consideration clearly are authority for the proposition that a fatally defective petition, with summons issued, tolls the statute as to the...