Myrick v. City of Tulsa

• Decision Date: 04 February 1936
• Docket Number: Case Number: 23727
• Parties: MYRICK v. CITY OF TULSA
• Court: Oklahoma Supreme Court

1936 OK 124

54 P.2d 330

175 Okla. 647

MYRICK v. CITY OF TULSA

Case Number: 23727

Supreme Court of Oklahoma

Decided: February 4, 1936

Syllabus

¶0 1. PLEADING - Reply to Answer Treated as Reply to Amended Answer Where Defense not Changed.

Where an amended answer states substantially the same defense as the first answer, the reply to the first answer will be treated as a reply to the amended answer.

2. SAME - Amendment to Answer in Personal Injury Suit Held to Make no Substantial Change in Defense.

Pleadings examined, and held, amendment to answer, filed subsequent to filing of plaintiff's reply to answer, stated substantially same defense as defense alleged in answer, obviating necessity of additional reply.

3. JUDGMENT - When Judgment Non Obstante Veredicto Authorized.

When jury has returned its verdict, trial court is without jurisdiction to enter judgment non obstante veredicto unless (1) party in whose favor judgment is rendered would be entitled to judgment on the pleadings, or (2) the jury has returned special findings of fact contrary to the general verdict.

Appeal from District Court, Tulsa County; S.J. Clendinning, Judge.

Action in negligence to recover for personal injuries, by M.D. Myrick against the City of Tulsa. Verdict for plaintiff, followed by judgment non obstante veredicto for defendant. Plaintiff appeals. Reversed and remanded, with directions.

Ellis A. Robinson and Quincy J. Jones, for plaintiff in error.

H.O. Bland, Bert E. Johnson, O.H. Searcy, C.L. Hamilton, and Edna Claire King, for defendant in error.

PHELPS, J.

¶1 The plaintiff recovered a verdict against the defendant city for personal injuries caused by the latter's negligence. The trial judge then sustained defendant's motion for judgment notwithstanding the verdict, and the plaintiff appeals from that order. The appeal is by transcript, containing none of the evidence.

¶2 The facts are: On May 23, 1930, plaintiff filed her petition in which it was alleged that the act of negligence, resulting in her injury, occurred on November 8, 1923. Therefore her cause of action was barred by the two-year statute of limitation unless the petition on its face alleged facts indicating otherwise. This the petition did. It alleged that on June 10, 1924, she filed her petition in cause No. 27258, against this same defendant, the facts therein stated being the same as those alleged in the present cause of action, and that she dismissed that action on September 21, 1929 (defendant's answer admitted that the dismissal was without prejudice). The present action was therefore commenced within one year following the dismissal of the former action (see sec. 106, O. S. 1931).

¶3 The defendant interposed a demurrer to the present petition, which was overruled. Thereafter the defendant filed an answer in which, among other defenses, the defense evidenced by the following paragraphs was set forth:

"For further answer, defendant states that said plaintiff in her petition heretofore filed June 10, 1924, in the district court of Tulsa county, being cause No. 27258, wherein she sought to recover damages for the alleged injuries as set out in her alleged cause of action in this case, did not state a cause of action, and that no cause of action, if any, was stated by plaintiff until after her said amended petition in case No. 27258 was filed on date of June 5, 1926; that the alleged injury complained of occurred on or about November 18, 1923, and that said alleged cause of action set forth and described in her amended petition in case No. 27258 did not accrue to said plaintiff at any time within two years next before the filing of said amended petition, and that said alleged cause of action in case No. 27258 and in this case is barred by the statute of limitations in such cases made and provided for.

"For further answer, defendant states that in said cause 27258, involving the same alleged cause of action as in this case, a special demurrer of the defendant, city of Tulsa, to plaintiff's amended petition was sustained by the court on the 21st day of September, 1929, and that plaintiff dismissed her said cause without prejudice after the defendant's special demurrer had been sustained by the court; that said cause 27258 was determined upon the merits and that the alleged cause of action in this case is thereby barred by the statute of limitations in such cases made and provided."

¶4 The plaintiff then filed a reply, consisting of a general denial of all of the now matter alleged in said answer. Thereafter the defendant filed an amendment to its answer. The record does not show that plaintiff was served with notice of this amendment. The record further shows that this pleading was an amendment to the answer, as distinguished from an amended answer. The plaintiff failed to file a reply to the amendment, although, as above stated, she had filed a reply to the answer itself.

¶5 The theory of defense set forth by the answer is that (a) plaintiff's former action was barred by the statute of limitations because of the fact that her original petition, filed within time, did not state a cause of action, and that no cause of action was stated by her at all until she filed her amended petition on June 5, 1926,...