Kincheloe v. Farmer

• Citation: 214 F.2d 604
• Decision Date: 09 August 1954
• Docket Number: No. 11144.,11144.
• Parties: KINCHELOE v. FARMER.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

214 F.2d 604 (1954)

KINCHELOE v. FARMER.

No. 11144.

United States Court of Appeals Seventh Circuit.

July 2, 1954.

Rehearing Denied August 9, 1954.

Thomas Kincheloe, Detroit, Mich., for appellant.

Frederick P. Bamberger, Evansville, Ind., Edmund F. Ortmeyer, William P. Foreman, Evansville, Ind., for appellee.

Before MAJOR, Chief Judge, and FINNEGAN, and SCHNACKENBERG, Circuit Judges.

MAJOR, Chief Judge.

This action was brought in the United States District Court for the Southern District of Indiana to recover damages for personal injuries alleged to have been sustained by plaintiff as a result of defendant's negligence in the operation of his automobile in which plaintiff was riding as a passenger. The allegations of the complaint disclose that the court acquired jurisdiction by reason of diversity of citizenship. The complaint alleges that the accident giving rise to plaintiff's injuries occurred on September 18, 1947. The action was commenced November 17, 1953, on which date the complaint was filed and summons issued.

The defendant moved to dismiss the complaint on the ground that it affirmatively discloses that the cause of action therein set forth was barred under the provisions of Section 2-602, Burns' Indiana Statutes, 1933, as amended, which requires an action for personal injuries to be brought within two years from the date of its accrual. From the court's order of dismissal, the appeal comes to this court.

The Indiana Statute contains exceptions to the limitation period thus fixed: Section 2-605 provides that a person under legal disability at the time a cause of action accrues has two years after the removal of disability to bring suit; Section 2-606 provides that where the defendant is a non-resident of the state or absent on public business at the time of the accrual of the action, the time of non-residence or absence from the state shall not be computed in the general limitation period; Section 2-608 provides that where a plaintiff has commenced an action and fails therein from any cause excepting negligence, or where the action has abated or is defeated by the death of a party, or the judgment is arrested or reversed on appeal, a new action may be brought within five (5) years after such determination.

Admittedly, the action was commenced, as shown by the complaint, long after expiration of the limitation period as provided by the Indiana Statute. Plaintiff argues, however, that it does not necessarily follow that his cause of action was barred because one of the exceptions to the general statute of limitations might have been applicable. Indiana cases are cited to the effect that a defense of limitation must be pleaded and that it cannot be raised on a motion to dismiss. We need not cite or discuss these cases because they are without application. Plaintiff's argument rests on the premise that the state limitation...