Jarchow v. Eder

• Decision Date: 19 September 1967
• Docket Number: No. 40787,40787
• Citation: 433 P.2d 942
• Parties: James JARCHOW and Farmers Insurance Exchange, a corporation, Plaintiffs in Error, v. Billy George EDER, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 942

433 P.2d 942

1967 OK 179

James JARCHOW and Farmers Insurance Exchange, a corporation, Plaintiffs in Error, v. Billy George EDER, Defendant in Error.

No. 40787.

Supreme Court of Oklahoma.

Sept. 19, 1967.

Syllabus by the Court

1. Title 12 O.S. 1961, Sec. 141, provides for service of summons in actions for damages, resulting from the use or operation of a motor vehicle, wherein the defendant resides in the State of Oklahoma at the time of the injury, when service of summons, with due diligence, cannot be obtained in Oklahoma upon the defendant.

2. The absence of a defendant from the State will not serve to suspend or toll the running of the applicable statute of limitations if there is then available to the plaintiff a method by which the equivalent of personal service can be obtained upon the defendant.

Appeal from the District Court of Comanche County; Luther B. Eubanks, Judge.

From a judgment sustaining the defendant's demurrer to the plaintiff's petition the plaintiff has appealed. Affirmed.

James D. Grigsby, Oklahoma City, for plaintiffs in error.

Pierce, Mock, Duncan, Couch & Hendrickson, Oklahoma City, Robert S. Baker, Oklahoma City, of counsel, for defendant in error.

PER CURIAM:

This action was originally instituted by James Jarchow against Billy George Eder to recover a judgment for damages to property resulting from an automobile accident. Subsequent to the institution of the action the plaintiff filed an application to substitute Farmers Insurance Exchange as the party plaintiff. However, it does not appear that this application was ever acted upon by the trial court and Farmers Insurance Exchange is therefore not a proper party to this appeal.

In this opinion the parties will be referred to by name or by reference to their trial court designations.

The automobile accident out of which this action arose occurred on July 6, 1960, in Comanche County, Oklahoma. James Jarchow, the plaintiff and owner of one of the two automobiles involved, was then a citizen and resident of the State of Texas. The other automobile was owned by the defendant, Billy George Eder, a resident and citizen of Comanche County, Oklahoma, at that time.

This action was instituted on July 24, 1962.

In his petition the plaintiff alleged that the defendant had moved from Oklahoma following the automobile accident and established his residence first in Nebraska and later in Texas and that he was a resident of Texas at the time of the commencement of this action.

The defendant was served with process in this cause by obtaining substituted service upon the Secretary of State in the manner provided by 12 O.S.1961, § 141, and 47 O.S.1961, §§ 391--395, the Nonresident Motorist Act.

The defendant demurred to the plaintiff's petition on the ground that the alleged cause of action was barred by the two year statute of limitations, 12 O.S.1961, § 95(3). The trial court overruled this demurrer when it was first presented but granted the defendant permission to present further argument in support of his demurrer at pre-trial conference. Thereafter, when the demurrer was again considered by the trial court at pre-trial conference, an order was entered sustaining the demurrer and dismissing the action. The plaintiff elected to appeal from this final order.

The plaintiff's sole contention in this appeal is that the two year statute of limitations, 12 O.S.1961, § 95(3), does not operate to bar his cause of action for the reason that the running of the limitation period was tolled by the defendant's absence from this State. It is argued that the allegation of the defendant's residency in the states of Nebraska and Texas at various times subsequent to the date of the accident was sufficient to withstand the defendant's demurrer, under the authority of 12 O.S.1961, § 98.

In support of the decision of the trial court the defendant advances the argument that the running of the statute of limitations was not tolled by the defendant's absence from the State since the plaintiff had at all times been able to obtain personal service upon the defendant by the substitute service provided by 12 O.S.1961, § 141, and 47 O.S.1961, §§ 391--395.

It appears that the question presented by this appeal is one of first impression, for the parties have cited no decision of this court which would indicate that this problem had previously been argued here, and the court's research has not been more productive.

The clear intend and meaning of 12 O.S.1961, § 98, is that a statute of limitation shall not continue to run during a defendant's absence from this State. Electric Supply Co. v. Garland, 188 Okl. 21, 105 P.2d 758; Wynne v. McCarthy, 10 Cir., 97 F.2d 964. Therefore, since the defendant's demurrer admitted the truth of the plaintiff's allegations concerning the defendant's absence from the State, the plaintiff's petition was sufficient to withstand the demurrer, unless the plaintiff's right to obtain service upon the defendant by substitute service under 12 O.S.1961, § 141, can be said to have rendered 12 O.S.1961, § 98, ineffective or inapplicable in this situation.

Title 12 O.S.1961, § 141, provides:

'The venue of civil actions for damages resulting from the use or operation of motor vehicles, wherein the defendant or defendants resided in the State of Oklahoma at the time of injury, shall be, at the option of the plaintiff or plaintiffs, in either of the following:

'1. In any county of Oklahoma where service of summons can be obtained upon one or more of the defendants as now provided by law.

'2. In any county where the damages or a part thereof were sustained.

'The plaintiff or plaintiffs may cause summons to issue to any county in Oklahoma for service upon one or more of the defendants. When service of summons upon one or more of the defendants cannot be obtained in Oklahoma with the exercise of due diligence, service may then be secured upon such defendant or defendants, as now provided in Chapter 11, 47 O.S.1951, for service upon non-resident motorists. Laws 1953, p. 49, § 1.'

The Nonresident Motorist Act referred to in this statute provides that service of process may be had upon a defendant by the service of summons upon the Secretary of State and by notification to the defendant by registered mail addressed to his last known address within fifteen days thereafter.

It is well recognized in all jurisdictions having provisions for substituted service upon nonresident motorists that judgments granted in actions brought under these statutes are personal and of equal dignity with judgments obtained pursuant to actual personal service. The question presented here therefore is whether the plaintiff's cause of action should be barred by the two year statute of limitation, since he could have instituted the action within the period with the same right to recover a personal judgment as if the defendant had been personally served with process in this State. That the plaintiff was aware of these rights is evidenced by the fact that he did take advantage of the substitute service provisions of the Nonresident Motorist Act.

This court has previously held that the provisions of 12 O.S.1961, § 98, are not available to extend the period within which a cause of action can be instituted if process can be served during the entire limitation period and a personal judgment obtained. St. Louis & S.F. Co. v. Taliaferro, 67 Okl. 37, 168 P. 788, L.R.A.1918B, 994. In that case the court said:

'The theory of the statute of limitations is that it...