Wright v. Keiser, 48721

• Decision Date: 14 June 1977
• Docket Number: No. 48721,48721
• Citation: 568 P.2d 1262
• Parties: Charles WRIGHT, Narvella Wright, and Marietta Wright, Individually and Charles Wright, as Guardian and next friend of Janet Wright, Cary Hogan and Rae Nell Wright, minors, Appellants, v. Linda Mae KEISER, Appellee.
• Court: Oklahoma Supreme Court

Page 1262

568 P.2d 1262

Charles WRIGHT, Narvella Wright, and Marietta Wright Individually and Charles Wright, as Guardian and next friend of Janet Wright, Cary Hogan and Rae Nell Wright, minors, Appellants, v. Linda Mae KEISER, Appellee.

No. 48721.

Supreme Court of Oklahoma.

June 14, 1977.

Rehearing Denied Sept. 21, 1977.

Appeal from the District Court of Oklahoma County, Carmon C. Harris, Trial Judge.

Summary judgment for defendant entered in a personal injury case based on statutes of limitation. Trial Court refused to allow tolling under 12 O.S. 1971, § 98. That court found unconstitutional a portion of that section which provides for the tolling for the time one absents himself from the state, notwithstanding the availability of statutory methods of service. AFFIRMED IN PART, AND REVERSED IN PART.

Robert G. Grove, Carl Michael Smith, Oklahoma City, for appellants.

Foliart, Mills & Niemeyer, Oklahoma City, for appellee.

SIMMS, Justice.

Plaintiffs, the Wrights, seek reversal of the trial court's sustention of defendant's motion for summary judgment dismissing their action as barred by the statute of limitations. For convenience the parties will be referred to by their designation in the trial court.

The essential facts are few and undisputed. Plaintiffs, driver and passengers of one automobile, were involved in a collision with an automobile driven by defendant, Linda Keiser, on August 7, 1972, in Oklahoma City. When the accident occurred and the cause of action accrued, defendant was a resident of Oklahoma. Sixteen months later, on December 4, 1973, plaintiffs, three adults and three minors, filed this tort action for personal injuries and property damage.

Within the two year statutory period, ¹ plaintiffs made two unsuccessful attempts to obtain service on defendant. On August 29, 1974, twenty-two days after the expiration of the two year period, summons was again issued, and again returned "not found". Plaintiffs then learned that defendant had moved to Omaha, Nebraska and, on September 13, 1974, defendant was served at her residence in Omaha.

Defendant's motion for summary judgment was based upon the expiration of the statute of limitations. Plaintiffs argued that under the tolling statute, 12 O.S.1971, § 98, defendant's absences from Oklahoma (for an aggregate of approximately twelve months) prior to the expiration of the period, tolled the statute and that their action was therefore timely commenced.

Title 12, O.S.1971, § 98, provides:

"If, when a cause of action accrues against a person, he be out of the state, or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state, or while he is so absconded or concealed; and if, after the cause of action accrues, he depart from the state, or abscond, or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought, notwithstanding the provisions of Title 12, §§ 141, 187 and 1701.01 to 1706.04, inclusive, and Title 47, §§ 391, 392 and 393 to 403, inclusive, of the Oklahoma Statutes, or any other statutes extending the exercise of personal jurisdiction of courts over a person or corporation based upon service outside this state, or based upon substituted service upon an official of this or any other state or nation."

The emphasized portion of the statute, which is at issue here, was added by amendment in 1970, ch. 76. The statutory provisions mentioned therein are our "long-arm" statute and non resident motorist act.

It should be emphasized that there is no issue of concealment or absconding.

Plaintiffs asserted that this statute tolled the limitation period during defendant's absence, even though defendant was at all times amenable to service and plaintiffs made no attempt to obtain substituted service on defendant through available statutory methods. 12 O.S.1971, § 141; 47 O.S.1971, §§ 391-403.

The trial court held this portion of § 98 unconstitutional as a denial of defendant's right to equal protection of the laws. The basis for the trial court's ruling was that the statute deprives alleged tortfeasors who leave the state the protection of the statute of limitations, while allowing tortfeasors who remain within the state the benefit of the limitation period; even though a complaining party has the same opportunity to obtain service upon both categories of defendants.

On appeal plaintiffs contend that the statutory tolling provision is constitutional and that the trial court erred in its ruling. Generally, plaintiffs assert that statutes of limitations are created by the legislature and are subject to a large degree of legislative control, that this statute is entitled to the presumption of constitutionality and that the classifications created by the provision are constitutionally permissible.

In support of the trial court's judgment, defendant argues that in addition to the denial of equal protection, the classification of absent defendants created by the tolling provision, also infringes upon her right to travel freely interstate. ²

Statutes of limitation are statutes of repose. Their purpose is to suppress and prevent fraudulent and stale claims from springing up after the expiration of long periods of time and surprising parties, or their representatives, when evidence is lost, memories have faded and witnesses are missing or dead. Adams v. Coon, 36 Okl. 644, 129 P. 851 (1913). They are intended to run against those who are neglectful of their rights and fail to use reasonable and proper diligence in enforcing them. Seitz v. Jones, Okl., 370 P.2d 300 (1962).

We do not find it necessary to determine whether defendant's "right to travel" is infringed upon by the portion of § 98 at issue. Neither is it necessary to answer the questions raised by the parties as to whether the defendant's right to plead the statute of limitations is such a "fundamental" personal right that this residency requirement should be subject to the test of strict judicial scrutiny to determine if it is necessary to promote a compelling governmental interest. ³

If we assume, for the purpose of this opinion, that the right to rely upon the statute of limitations is not a "fundamental" right, the statute nonetheless fails to pass even the most basic equal protection test.

As stated by the Supreme Court in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972):

"* * * The tests to determine the validity of state statutes under the Equal Protection Clause have been variously expressed, but this Court requires at a minimum, that a statutory classification bear some rational relationship to a legitimate state purpose."

What is the purpose of our tolling statute, § 98? We have always held it to be a means of protecting plaintiff's right of action from being defeated by an inability to obtain service on defendant, and preserving that right of action until such time as plaintiff could enforce it.

For sixty years, this Court has held that within the meaning of § 98 (the amendment was added to the original statute adopted in 1910), a defendant was "out of the state" only when he could not be served.

In St. Louis-S.F.R. Co. v. Taliaferro, 67 Okl. 37, 168 P. 788 (1917) we stated that:

"The theory of the statute of limitations is that it operates to bar all actions, except as against persons and corporations upon whom notice of the action cannot be served because of their being out of state. If such notice can be served during the whole of the prescribed period, and a personal judgment obtained which can be enforced in the mode provided by law, then such person or corporation is not 'out of the state,' within the meaning of section 4660, Rev.Laws Okl. 1910."

The same rule was followed in Walker v. L. E. Meyers Const. Co., 175 Okl. 548, 53 P.2d 547 (1935). See also, Graves, et al. v. Foster, 158 Okl. 36, 12 P.2d 502 (1932). This is the view of the overwhelming majority of jurisdictions. See, Annot. Absence as Tolling Statute of Limitations, 55 A.L.R.3d 1158.

We applied this same rationale in our decisions under the nonresident motorist act by holding that the absence of a defendant would not toll the statute where plaintiff had the capacity to obtain the equivalent of personal service on defendant by substituted service as provided by statute, but failed to do so. Jarchow v. Eder, Okl., 433 P.2d 942 (1967); Lowder v. Oklahoma Farm Bureau Mutual Ins. Co., Okl., 436 P.2d 654 (1968); McCullough v. Boyd, Okl., 475 P.2d 610 (1970). See, also, Moore v. Dunham, (10th Cir. 1956) 240 F.2d 198.

In Jarchow, supra, we stated:

"* * * Since this statute (§ 98) was obviously intended only to protect and preserve a right for the plaintiff which might, by reason of the defendant's absence, have been impossible or impracticable for him to enforce, justice would not seem to require that the statute be applied to give him an advantage when the disability has been effectively removed by other statutory provisions . . .

"To permit the plaintiff in a case such as this to defer the commencement of his cause of action for an indefinite period of time, when there is continuously open to him the right to commence a personal action against the defendant, would frequently result in hardship to the defendant, who might often be completely unaware of his position of peril."

Plaintiffs submit that through the amendment of § 98, the Legislature intended to vitiate our holding in Jarchow, supra, and the decisions following it, and to substitute therefor the rule that absence from the state precludes the running of the statute, regardless of the availability of methods to obtain personal service.

This would mean that in Oklahoma, actions would never be barred against nonresidents. Residents of our 49 sister states would always be in peril of being subjected to litigation about events which...