This action was commenced by the plaintiff in error against the defendant in error for the recovery of damages for personal injuries sustained by the plaintiff in error on November 28, 1916. The parties will hereinafter be referred to as they appeared in the trial court .
The defendant contended that the action was barred by the statutes of limitations, and this question was presented by a general demurrer and by answer. The case *60 was submitted to the jury aud a verdict returned' for the( plaintiff, Ibiut the trial court sustained a motion for a new trial on the ground that the action was barred by the statute of limitation, and this ap.peal presents only the question as to whether the action was barred by the statute of limitations.
The plaintiff admitted that the action was brought more than two years after the injury was received, -but contended that within the statutory period an action had been commenced by her in the circuit court of Jasper county, Mo., -and -was thereafter, in January, 1919, dismissed on: the motion of the defendant, and that the merits of said cause of action were not adjudicated and determined in said suit, and that this action was commenced within one year after the dismissal of the cause in Missouri. The plaintiff contends that the action is not barred by the statute of limitations by reason of section 190, Comp. Stat. 1921, which provides:
“If any action be commenced within due time, and a judgment thereon for the plaintiff toe 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.”
The defendant contends- that this statute has no application where the previous suit was filed in a court of another state, but only applies to suits which have been commenced in a court of competent jurisdiction within the state of Oklahoma and have failed otherwise than upon the merits. The plaintiff contends that if am action is commenced within due time in any court of competent jurisdiction, whether in the state or out of the state, and fails otherwise than upon the merits, the plaintiff has one year thereafter within -which to file his cause in this state. Ini several instances it has been held that this statute applies where actions have -been commenced in state courts and have failed otherwise than on the merits and thereafter, within the statutory •period, a new -suit was conimeneéd in the federal court of the same state.' These decisions are based upon the theory that the state courts and the federal courts have concurrent jurisdiction over certain classes of eases and section 914, U. S. Rev. Stat., which provides:
“The practice, pleadings, form and modes of proceedings in civil causes other than equity and admiralty causes, in the circuit and district courts, shall coniform as near as may be to the practice, pleadings and forms and modes of proceedings existing at the time in like causes in the courts of record of the state within which -such circuit or district courts are held, any rules of the court to the contrary notwithstanding”
—-and section 721, U. -S. Rev. Stat., which provides:
“The laws of the several states, except where the Conistitution, treaties, or statutes of the United States, otherwise require, provide, shall be regarded as rules of der cisión in trials at common law, in the courts of the United States, in cases -where they apply.”
In Kansas City Southern Railway Co. v. Atkin (Ark.)
‘The language of the statute is exceedingly comprehensive. There are no restrictions to causes of action begun in the state courts. There is nothing to indicate a purpose to so confine it. The language is broad enough, and was doubtless so intended, to cover any action in any court having jurisdiction within the state.”
It has been held that the commencement of a suit in one state does not suspend the statute of limitation of another state against an action for the same demand brought in such state _ in the following cases: DeLaplaine v. Crownenshille, 7 Fed. Case No. 3756; Conrad v. Buck,
“If an(y action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in sudh 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 representative, may commence a new action within one year after the reversal or failure.”
This section refers to actions -which have been commenced within this state as provided by section 187, supra, and it i-s essential that an -action should have been commenced within due time within this state and that the action should have failed oth- *61 «wise than upon! its merits. When these conditions have been met, a new action may be brought within one year after the failure, hut the statute has no application to actions which may have been commenced within other states and have failed otherwise than upon the merits.
The plaintiff contends that the cause of action is not barred by the statute of limitations because subdivision 2 of section 186, Comp. Stat. .1921, 'which authorizes an action upon a contract, express or implied, not in writing, to be 'brought within three years, is the applicable statute instead of subdivision & of section 185, Comp. Stat. '1021, which provides that actions for injuries to the rights of another not arising on contract shall be brought within two years.
Plaintiff in her petition alleged that the defendant was operating a railroad as a common carrier for passengers for hire and-that the plaintiff was a passenger on one of defendant’s passenger trains, and as such passenger, paid her fare and was entitled to transportation over said road to her place of destination; that it was the duty of the defendant to well and safely carry and transport plaintiff and deposit her in safety at her destination; but that the defendants, in violation of their contract with plaintiff as such passenger, failed to carry the plaintiff safely and to deposit her in safety at her destination, but carelessly and negligently conducted thenrslelves, so. that the car in, which the ■ plaintiff was riding was caused to collide with another of'defendants’ trains, and that, by reason of the collision, the car in which plaintiff was riding was wrecked, and the plaintiff, without fault upon her part, was by said carelessness, negligence, and want of care of defendants, their agents, servants, and employes in charge of said railroad trains, seriously and plermanently injured; that said collision and the wrecking of said train and coach in which plaintiff was riding and plaintiff’s injuries were caused by reason of the carelessness and negligence of the defendants, their agents, servants, and employes, and, by reason of the injuries and as a direct result of the negligence and carelessness of the defendants, the plaintiff was damaged in the sum of $25,000.
It is plaintiff’s contention that she had a choice of remedies and that she might sue either on the contract for transportation or in tort for the breach of duty imposed by law, and that the petition filed in this case, construed as a whole, shows that the cause of action was for. a breach of contract of transportation and not for damages for tort. It appears very clear to us that the petition of the plaintiff states a cause of action for tort and not for breach of contract of transportation, and, further, that the case was tried on that theory before the trial court. The contract of transip'orbation was mentioned in the petition, but simply as an inducement for the action and as showing that the .plaintiff was rightfully upon a train at the time of the injury; but the actiou itself and the damages which plaintiff sought to recover were based not upon] breach of contract of transportation, but upon the negligent disregard- of the duty which the defendant owed to the plaintiff. In Ft. Smith & Western R. Co. v. Ford,
“The character of an -action as to whether it is ex'delicto or ex contractu must he determined by the nature of the grievance, rather than the form of the petition, and, in a, suit against a common carrier for a breach of duty in failing to put a passenger off at the proper station, the courts are inclined to consider the action as founded in tort, unless a special contract very clearly appears to be made the gravamen of the complaint.”
In) the body of tbe opinion, the court said;
“Hence, when' the facts are plainly and distinctly, stated, the action -will be regarded .as either in tort or contract, having regard first, to the character of the remedy such facts" indicate;' and, second, to the most complete and ample redress -which upon the facts stated the law affords.”
-In the inst'dht case, the character of the remedy cle’árly indicates the' intention of the pleader to recover for the tort,' and á more complete and ample redress' upon the facts stated is afforded by the law in an action for damages for tort because under the provisions of-section 5976, Comp. Stat. 1921, in an action" for breach of contract no damag'és - can be recovered which are' not. clearly ascertainable in -both their nature and '^origin, whereas -under section 5996,' Comp. Stat. 1921, in- an action "for -breach of obligation' not- arising from contract, the plaintiff is -entitled to -recover such amount ’ as will compensate for all detriment prox-im-ately caused by the breach, and the last section does not contain the limitation that the damages must be clearly ascertainable in both their nature and origin. The courts have uniformly held petitions similar to the one under consideration here to state an action on tort -and not an action on contract, and it is not necessary to refer to any considerable number of these cases. The rule
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applied ini determining the character of the petition is well stated in the following cases: Canaday v. St. L. U. R. Co. (Mo.)
We are of the opinion that the cause of action stated in plaintiff’s petition was for a breach of obligation not arising from contract, land subdivision 3, section 185, Comp. Stat. 1921, limits the time within which the action can be brought to two years.
For the reasons stated, the judgment of the trial court is affirmed.