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.
January 5, 1932, plaintiff filed an action on the policy in the district court of Muskogee county, No. 23833. 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 оf Muskogee county, No. 24001. 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. 24407. 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 anothei action on the policy, in the district court o1 Muskogee county, No. 24503. 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 stаtutory limitation. This is because our Legislature adopted and incorporated the same provision in the standard form of fine insurance policy which it directed be used in this state. Sections 10566, 10557, O. S. 1931. Such limitation is therefore statutory, valid and enforceable. Wever v. Pioneer Fire Ins. Co.,
Section 106, O. S. 1931, sometimes referred io as the “saving clause,” reads:
“If any action be commenced within due time, and a judgment thereon for the plain *476 tiff 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 hie 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. Conn. 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 questiоn 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 Lbr. Co.,
By virtue of section 106, when plaintiff filed his second action on April 5, 1932, “within due timе,” and then dismissed it on October 20, 1932, 'after the euqpiration of one year following the fire, section 106 became operative and he became entitled to “commence a new action within one year” alter the date of that dismissal, October 20, 1932. This gave him until October 20, 1933, in which to “сommence a new action.” He did commence such new action on October 25, 1932, by filing his third action in cause No. 24407, 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” witbln-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 wie have found but two eases 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)
“It is generally held that the privilege conferred by an enabling provision in the statute of limitations may be exercised but оnce; 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 hаve 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 revеals 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 pеrmitting 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,
The Tennessee court, in Memphis & C. R. Co. v. Pillow,
“The new action in such case must be brought within one year after the termination of the action, which was commenced within the time limited by law for the bringing of such action, so that the indefinite succession of suits upon the same cause of action cannot result from the construction given to the act.”
That ease was later quoted by the Tennessee court in Reed v. Cinсinnati Ry. Co., supra, in which the second suit after the original period of limitation (not counting the suit filed within the period) was held barred, and not within a saving provision which provided that plaintiff may “from time to time commence a new action.” It was said in the syllabus that “the bringing of an indefinite number of actions within a year after non-suit in the last previous action is not authorized.”
Prom fear of misquoting we listed the Ohio case of Schock v. Frazer & Co., supra, as being contra to the prevailing rule. However. that point is debatable, depending on whether the original limitation expired on Seрtember 15. or on September 16, 1872. Neither does the opinion make clear whether the first suit, filed on the 15th was dismissed on the same date or on the 16th. At least, the second suit was filed on the 10th, dismissed on the 20th, and a third suit filed on the 24th of September. If the period of limitation included the 16th the case is not in сonflict with the general rule.
The other ease which we cited above as being contrary to the general rule is Dressler v. Carpenter,
“The sole question here is whether this quoted portion of the state statute gives the right to bring repeated actions or only one action after expiration of the three-year limitation and within one year after the оriginal action has been disposed of. There is no controlling decision by the Supreme Court of Arkansas. Plaintiff in error places some reliance upon Turrentine v. St. Louis S. W. Ry. Co.,96 Ark. 181 ,131 S. W. 337 ; but that case is not in point and is not helpful as toi the particular- matter before us. Turning to other jurisdictions, we are not greatly aided. * * * However, if there is a weight of authority either way, that weight and, to our minds the sound reasoning, seems to favor the rule that only one such new action can be brought.” (Citing cases.)
In Morrow v. Atlanta & C. Airline Ry. Co., 84 S. C. 224,
“Where plaintiff, commencing an action within the time limited therefor, was non-suited, and he brought a second action within a year thereafter and was again non-suited, a statute providing that, where an; action is commenced within the time limited and plaintiff is nonsuited, he may commence a new action within one year after the non-suit, did not authorize a subsequent action.”
*478
To the same effect, see 9 R. C. L. 214. The Kаnsas case of Denton v. City of Atchison, supra, and all of the Oklahoma cases cited above, lean in the direction of the general rule, although this precise point was not involved in those cases. Also see Walker v. Meyers Const. Co.,
We must remember that the grace period is not a release of the original limitation, nor even an extension thereof for all purposes, but is only a conditional, limited extension granted plaintiff because the suit which lie did file in time consumed somq time in court before dismissal, сarrying him beyond the original limitation date, possibly without any fault of his own. That he could file and dismiss as often as he desired within the original period of limitation has nothing to do with it, for at that time there was no bar 'at all. Once, however, he passes the-bar he is on the law’s own time, and is per. mitted to ignore the statute only by virtue of legislative exception especially created for the occasion. Thus good reason appears to support the general rule and interpretation of such statutes, to the effect that the Legislatures of the various states, in еxtending litigants the privilege of filing 'actions out of time, mean just what they express by the words “commence a new action,” and that they do not thereby intend that plaintiffs may file as many new actions as they desire, all within the year. Had. that been their intention, then such statutes would have been worded in the language of the ordinary statutes of limitation, with minor changes. To give such an interpretation as desired by plaintiff would do violence to the letter, spirit, meaning, and purpose of the statute.
This is the fourth action on this matter. The first three were voluntarily dismissed by plaintiff, one of them aftеr all of his evidence was in. The third action was both, filed and dismissed after the original period-of limitation. It was said in the authorities above cited that the purpose of such statutes is not to permit or encourage vexatious or harassing continuation or renewal of litigation, This case is squarely within the rule and the rule is sufficiently established.
The judgment is reversed and the cause remanded, with directions to dismiss the petition.