Lorberg v. Jaynes

• Decision Date: 08 November 1927
• Docket Number: No. 20113.,20113.
• Parties: LORBERG v. JAYNES.
• Court: Missouri Court of Appeals

298 S.W. 1059

LORBERG v. JAYNES.

No. 20113.

St. Louis Court of Appeals, Missouri.

November 8, 1927.

Rehearing Denied, with Modification, November 22, 1927.

Appeal from Cape Girardeau Court of Common Pleas; O. A. Knehans, Judge.

"Not to be officially published."

Action by Martin Lorberg, assignee of the Illinois Automobile Insurance Association, against A. C. Jaynes. Judgment for defendant, plaintiff's motion for new trial was overruled, and plaintiff appeals. Reversed and remanded.

Frank A. Lowry, of Cape Girardeau, for appellant.

Alexander & Coffer, of Cape Girardeau, for respondent.

BENNICK, C.

This is an action instituted by plaintiff, as assignee of the Illinois Automobile Insurance Association, a mutual insurance company, to recover from defendant, a former policy holder in said company, an assessment in the sum of $15.30, for the nonpayment of which defendant had been suspended from membership on April 4, 1920. The case originated in a justice's court, summons having been issued for defendant or. July 10, 1926. Plaintiff prevailed in the justice's court, whereupon an appeal was taken by defendant to the Cape Girardeau court of common pleas.

It appears that in the justice's court plaintiff had filed nothing by way of pleading other than the contract relied upon. When the case was called for trial de novo on appeal, however, plaintiff saw fit to file a statement of his cause of action, in which it was alleged, in substance, that defendant, on September 4, 1919, procured the contract of insurance in question; that, by his written contract, he agreed to pay to such company his pro rata share of its losses, and to remit to it the amount of whatever assessments might be made upon him; and that, while said contract was in force, the particular assessment involved in this litigation was made, which defendant refused to pay. Plaintiff prayed judgment against defendant for the sum of $15.30, together with interest thereon from April 4, 1920.

To this statement defendant filed a special demurrer, setting up that plaintiff's cause of action had accrued more than 5 years before the institution of this action, and was therefore barred by the 5-year statute of limitations. After a consideration of such special demurrer, the court sustained the same, and, upon plaintiff's refusal to plead further, entered judgment for defendant, from which plaintiff, after an unavailing motion for a new trial, has duly perfected this appeal.

Necessarily the only point before us for determination concerns the propriety of the lower court's action in sustaining the special demurrer to plaintiffs statement. In this connection it will be observed from the facts as heretofore stated that defendant's liability arose, if ever, not later than April 4, 1920, and that the present action was instituted on July 10, 1926. Thus it is obvious that if plaintiff's cause of action was governed by the 10-year statute of limitations, the ruling of the court was erroneous, whereas if the 5-year statute should be held to be applicable, the special demurrer was properly sustained.

Section 1316, R. S. 1919 (the 10-year statute), in so far as it affects the matter at hand, provides that an action upon any writing for the payment of money or property shall be commenced within 10 years. In order to come within the purview of such statute, it has been consistently held by the courts that it must affirmatively appear from the petition or statement of the cause of action that the promise of payment was given by the language of the writing itself; and that, if the promise arose only upon proof of extrinsic facts, the cause of action was governed by the 5-year statute. Parker-Washington v. Dennison, 267 Mo. 199, 183 S. W. 1041; Curtis v. Sexton, 201 Mo. 217, 100 S. W. 17; Home Insurance Co. v. Mercantile Trust Co., 219 Mo. App. 645, 284 S. W. 834; Quint v. Kingsbury (Mo. App.) 289 S. W. 667; Lehner v. Roth, 211 Mo. App. 1, 227 S. W. 833, 229 S. W. 232; Brown v. Irving (Mo. App.) 269 S. W. 686; Babler v. Rhea (Mo. App.) 202 S. W. 604.

When we turn to plaintiff's statement of his cause of action, therefore, to ascertain if it was properly subject to the attack made upon it, we observe the allegation therein:

"That defendant agreed in his signed contract * * * to pay the company his pro rata portion of such losses as the company was called upon to pay, * * * and that he would pay promptly such assessment as was made upon him by the company, * * * as long as his policy or contract was in force."

As we read the above, we cannot conceive how the language therein employed could be construed otherwise than as alleging clearly and concisely that the promise of defendant to pay was given in the written contract itself, thus rendering the 5-year statute inapplicable and bringing the case within the terms of the 10-year statute. Nor may the import of the statement be questioned in this respect, because there was no specification therein of the exact amount agreed to be paid...