Morris v. Wise

• Decision Date: 18 October 1955
• Docket Number: No. 36617,36617
• Citation: 293 P.2d 547,55 A.L.R.2d 1033
• Parties: , 1955 OK 297 S. W. MORRIS, Plaintiff in Error, v. Paul WISE, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 547

293 P.2d 547

55 A.L.R.2d 1033, 1955 OK 297

S. W. MORRIS, Plaintiff in Error, v. Paul WISE, Defendant in Error.

No. 36617.

Supreme Court of Oklahoma.

Oct. 18, 1955.

Rehearing Denied Feb. 21, 1956.

Syllabus by the Court.

1. An action in tort for personal injuries is barred after two years by 12 O.S.1951 § 95, subd. 3, and the fact that each of two occupants of an automobile denied being the driver, and thus continuously concealed who was the driver, did not toll the statute of limitation.

2. The right to refile an action as provided by 12 O.S.1951 § 100 is limited to actions commenced within the State of Oklahoma, and the filing of an action in a United States District Court in Texas would not authorize the filing of an action in Oklahoma within one year after the dismissal of the action in the court in Texas.

Appeal from the District Court of Pottawatomie County; J. Knox Byrum, Judge.

Action by S. W. Morris, plaintiff, to recover damages for personal injuries against Paul Wise and Albert General McFarland, defendants. From an order of the trial court sustaining the separate demurrer of Paul Wise and dismissing the action plaintiff appeals. Affirmed.

Paul Pugh, Francis G. Morgan, Oklahoma City, for plaintiff in error.

Grigsby, Foliart & Hunt, Oklahoma City, for defendant in error.

CORN, Justice.

Plaintiff, S. W. Morris, brought this action against defendants, Paul Wise and Albert General McFarland, to recover damages for personal injuries received in an automobile collision. Plaintiff's petition, filed August 20, 1953, alleged that on June 25, 1950, the plaintiff, while driving his own automobile, was struck by a motor vehicle driven by defendants at the intersection of Tinker Field Road and Northeast 10th street in Oklahoma County. The petition further alleged:

'Plaintiff further alleges that immediately after the accident each defendant accused the other of being the driver of the vehicle in which they were riding; that each defendant has asserted, sworn and represented that the other was the driver of said car; that the plaintiff has actively endeavored to ascertain who was the driver; that he and his attorneys have taken the statement of the defendant Albert General McFarland, who asserted therein that the defendant Paul Wise, was the driver; that the plaintiff has taken the deposition of Paul Wise, in which deposition said defendant swore under oath that the defendant Albert General McFarland was the driver of the automobile; that plaintiff and his attorneys, have talked in person, and by telephone to numerous parties in Shawnee, Oklahoma City and Houston, Texas, in an effort to ascertain who was the driver, and who was fraudulently withholding information as to the driver who caused his damage; that the plaintiff was without money or funds to further investigate or determine who was responsible for said damage; that the defendants have used all means possible to prevent plaintiff and others from discovering who was responsible for said accident, and plaintiff's resulting injuries.

'It is further alleged that an original action was started in the United States District Court sitting at Houston, Texas, wherein the parties to said action were the same as the parties to this action; that said cause was No. 6470 of said United States District Court; that this action was timely filed well within the Statute of Limitations, and grew out of the same cause as this action but was dismissed on May 4, 1953; that within a year's time, as required by the Statutes of the State of Oklahoma, this action was refiled in this Court.

'Plaintiff further alleges that on September 2, 1952, the defendant, Paul Wise, failed and neglected to appear for the taking of deposition at Houston, Texas, which deposition had been agreed to by his attorneys at that time, Baker, Botts, Andrew and Parish, of Houston, Texas; that if said defendant, Paul Wise, had appeared at the deposition, it would have been known at that time that he was a resident of the State of Oklahoma, and the plaintiff could have refiled his petition in this State well within the Statute of Limitations; and that said action on the part of the defendant, Paul Wise, was calculated to, and did lull this plaintiff into a false sense of security, and by said action the defendants are estopped from asserting and relying upon the Statute of Limitations as a defense.'

Defendant Wise filed his separate demurrer to the petition, upon the ground the action was barred by the applicable statute of limitations, 12 O.S.1951 § 95(3). The trial court sustained the demurrer and dismissed plaintiff's action, from which order and judgment plaintiff has appealed.

Plaintiff urges two propositions as grounds for reversal of this judgment. The first contention is that, because defendant Wise denied having been the driver of the vehicle, the true facts were concealed from plaintiff, and the statute of limitations did not run against the cause of action. Plaintiff cites and relies upon our holdings in Waugh v. Guthrie Gas, Light, Fuel & Improvement Co., 37 Okl. 239, 131 P. 174, L.R.A.1917B, 1253; Liberty Nat. Bank of Weatherford v. Lewis, 172 Okl. 103, 44 P.2d 127; Kansas City Life Ins. Co. v. Nipper, 174 Okl. 634, 51 P.2d 741; Loyal Protective Ins. Co. v. Shoemaker, 178 Okl. 612, 63 P.2d 960, and other cases to the same general effect.

The correct rule is that announced in the Waugh case, supra, wherein the first and second syllabi state:

'An action for damages for personal injuries, being an action for injury to the rights of a person, not arising on contract, is governed by the third subdivision of section 5550, Comp.Laws 1909, and must be brought within two years after the cause of action shall have accrued.

'Fraudulent concealment constitutes an implied exception to the statute of limitations, and a party who wrongfully conceals material facts, and thereby prevents a discovery of his wrong, or the fact that a cause of action has accrued against him, is not allowed to take advantage of his own wrong by pleading the statute, the purpose of which is to prevent wrong and fraud.'

The allegations of the petition, examined in the light of the question herein at issue, were as follows: (1) Immediately following the accident the occupants of defendant's automobile, defendants herein, each accused the other of being the driver thereof; (2) plaintiff's investigation as to which party actually was the driver was unavailing; (3) plaintiff took the statement of defendant McFarland, who asserted the defendant Wise was the driver; (4) the deposition of defendant Wise, taken under oath, disclosed the defendant McFarland actually was the driver; (5) plaintiff instituted suit in the United States District Court in Houston, Texas, wherein it was alleged 'the parties to said action were the same as the parties to this action well' within the statute of limitations; (6) that the Federal Court action was dismissed May 4, 1953.

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