U.S. Fire Ins. Co. v. Swyden
| Decision Date | 10 December 1935 |
| Docket Number | 25199. |
| Citation | 53 P.2d 284,175 Okla. 475,1935 OK 1191 |
| Parties | UNITED STATES FIRE INS. CO. v. SWYDEN. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 14, 1936.
Syllabus by the Court.
Where an action filed within period of limitation is dismissed or fails otherwise than upon merits after period of limitation and then, under section 106, O.S. 1931, within the year following said dismissal or failure, plaintiff files a second action and dismisses it within the year, he is not entitled to maintain a third action thereon, and said third action is barred by the statutes of limitation.
Appeal from District Court, Muskogee County; Enloe V. Vernor, Judge.
Action by Shirkey G. Swyden against the United States Fire Insurance Company on a fire insurance policy. From a judgment for plaintiff, defendant appeals.
Reversed and remanded, with directions.
Rittenhouse Webster & Rittenhouse, of Oklahoma City, for plaintiff in error.
O. E Cramer and Kelly Brown, both of Muskogee, for defendant in error.
On May 10, 1931, plaintiff's merchandise was damaged by fire. Prior to that time the defendant had insured the goods under a fire policy containing our statutory provision that any action to recover thereon must be instituted within twelve months after date of the fire, which period expired on May 10, 1932. First Nat. Bank v. Drew, 69 Okl. 59, 169 P. 1092.
January 5, 1932, plaintiff filed an action on the policy, in the district court of Muskogee county, No. 23,833. It was removed by the defendant to the federal court, where it was dismissed by the plaintiff without prejudice. That was the first action.
April 5, 1932, plaintiff filed another action on the policy in the district court of Muskogee County, No. 24,001. While the court was considering the defendant's demurrer to plaintiff's evidence, the plaintiff dismissed the action without prejudice. This was on October 20, 1932, after the one-year period of limitation would have expired if no action had been filed. That was the second action.
October 25, 1932, plaintiff filed another action on the policy, in the district court of Muskogee county, No. 24,407. Defendant removed it to federal court, and there it was dismissed without prejudice by plaintiff, on December 13, 1932. That was the third action.
December 21, 1932, plaintiff filed another action on the policy, in the district court of Muskogee county, No. 24,503. That, the fourth action, was the present action. Plaintiff recovered a verdict and judgment, and defendant appeals.
One of the many propositions urged by defendant is that the action is barred by our statutes of limitation.
The limitation in a standard fire insurance policy, such as we have here, that "No suit or action on this policy * * * shall be sustainable in any court * * * unless commenced within twelve months next after the fire," is not a contractual limitation in violation of section 9491, O.S. 1931; but, to the contrary, is a statutory limitation. This is because our Legislature adopted and incorporated the same provision in the standard form of fire insurance policy which it directed be used in this state. Sections 10556, 10557, O.S. 1931. Such limitation is therefore statutory, valid, and enforceable. Wever v. Pioneer Fire Ins. Co., 49 Okl. 546, 153 P. 1146, L.R.A.1918F, 507; Niagara Fire Ins. Co. v. Nichols, 96 Okl. 96, 220 P. 920; Connecticut Fire Ins. Co. v. Williams, 130 Okl. 15, 264 P. 881; George v. Connecticut Fire Ins. Co., 84 Okl. 172, 200 P. 544, 691, 201 P. 510, 23 A.L.R. 80. Therefore the "dead line," after which the action would have been barred but for the operation of section 106, O.S.1931, was May 10, 1932. (Observe at this point that plaintiff's second action, filed prior to May 10, 1932, was dismissed after that date, on October 20, 1932, and he then filed his third action on October 25, 1932, and said third action was later dismissed and the present action instituted on December 21, 1932.)
Section 106, O.S.1931, sometimes referred to as the "saving clause," reads: "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, or, if he die, and the cause of action survive, his representatives may commence a new action within one year after the reversal or failure."
Such "saving clause" applies to a one-year limitation for suing on an insurance policy containing our statutory provision, referred to above. George v. Connecticut Fire Ins. Co., supra; Niagara Fire Ins. Co. v. Nichols, supra.
Plaintiff's first action, filed and dismissed within one year after the fire, had no effect one way or the other on the question before us, since an action dismissed prior to the running of the original limitation does not give the plaintiff a year from his dismissal in which to file his next action, and section 106 is not operative as to that action. English v. Rogers Lumber Co., 68 Okl. 238, 173 P. 1046; Meshek v. Cordes, 164 Okl. 40, 22 P.2d 921.
By virtue of section 106, when plaintiff filed his second action on April 5, 1932, "within due time," and then dismissed it on October 20, 1932, after the expiration of one year following the fire, section 106 became operative, and he became entitled to "commence a new action within one year" after the date of that dismissal, October 20, 1932. This gave him until October 20, 1933 in which to "commence a new action." He did commence such new action on October 25, 1932, by filing his third action in cause No. 24,407, above. This "new action" he voluntarily dismissed on December 13, 1932. Now comes the vital point. Having filed said new action and dismissed it, could he subsequently file and dismiss new actions throughout the entire year beginning October 20, 1932, and ending October 20, 1933, or was he entitled to just one "new action" within that year? If he was entitled to just one new action he was not entitled to file the fourth action on December 21, 1932, which is the present action.
The novelty of this question has prompted us to search the digests entirely back to the beginning of reported cases in this country, and therein we have found but two cases allowing plaintiff more than one action during the period of time permitted for the filing of a new action after a dismissal of the cause on other than its merits subsequent to the original period of limitation. Schock v. J. A. Frazer & Co. (1881) 6 Ohio Dec. Reprint 1078, 10 Am. Law Rec. 305; Dressler v. Carpenter (1913) 107 Ark. 353, 155 S.W. 108. On the other hand, we find that the observation contained in the annotation in 83 A.L.R. 487, is supported by the authorities: "It is generally held that the privilege conferred by an enabling provision in the Statute of Limitations may be exercised but once; that is, that such a provision does not give protection to an indefinite number of actions merely because each has been commenced before the period allowed by the saving clause has expired." However, the scope of the present question is more restricted than the scope of the above excerpt, which considers both this and the question of whether the period for filing may be extended indefinitely from year to year by the simple expedient of filing a new action within each year and dismissing it within the following year. We have found no case holding that that could be done. The present question is whether one may dismiss his action after the original limitation period, file a second action within the extension period, dismiss it and then maintain another action filed within that extension period. Although legal history reveals that the privilege conferred by our section 106, supra, extends back into ancient times, when under the common law of England it was known as "journey's account" (see 37 C.J. 1082), the precise question before us has never been passed upon more than half a dozen times.
Statutes permitting filing of new actions after the original period of limitation are not ordinarily considered statutes of limitation with the same meaning and dignity of original statutes of limitation. Their essence is not that the original period is added to, or extended, for an additional year, so that the cause is for all purposes alive during that period, but the real nature and effect of such a statute is that it is simply a saving clause to prevent the bar which otherwise would be applicable. Rogers v. Fidelity Savings Bank (D.C.) 172 F. 735; Kline v. Groeschner, 280 Mo. 599, 219 S.W. 648; Karnes v. American Fire Ins Co., 144 Mo. 413, 46 S.W. 166; Geitner v. Jones, 176 N.C. 542, 97 S.E. 494; cases infra, and 37 C.J. 1088. See, also, 9 R.C.L. 214. The statute was not intended to afford in all cases an additional time in which to bring suit, and the general periods of limitation are not changed by the provision. English v. Rogers Lumber Co., 68 Okl. 238, 173 P. 1046, 1047, 1048; Denton v. City of Atchison, 76 Kan. 89, 90 P. 764. The effect of the statute is simply to provide a conditional, limited extension of time in certain cases and under certain circumstances. And "while the statute should be given a liberal construction * * * it may not be interpreted in such way as would tend to subvert the purpose of the statute clearly expressed" (English v. Rogers Lumber Co., supra); and the defective suit, plus the statute, is "used to nurse the cause of action into full life in the proper form and forum." Meshek v. Cordes, 164 Okl. 40, 22 P.2d 921, at page 924. "Nor was it intended to hold open the way indefinitely for vexatious and harassing continuation or renewal of litigation." Moran v. Weinberger, 149 Tenn. 537, 260 S.W. 966; Denton v. City of...
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