Albanese v. Ohio River-Frankfort Cooperage Corp.

• Decision Date: 27 October 1954
• Docket Number: Civ. A. No. 2747.
• Citation: 125 F. Supp. 333
• Court: U.S. District Court — Western District of Kentucky
• Parties: Albert ALBANESE, Plaintiff, v. OHIO RIVER-FRANKFORT COOPERAGE CORPORATION, Defendant.

125 F. Supp. 333

Albert ALBANESE, Plaintiff, v. OHIO RIVER-FRANKFORT COOPERAGE CORPORATION, Defendant.

Civ. A. No. 2747.

United States District Court W. D. Kentucky, at Louisville.

October 27, 1954.

H. S. Horen, David L. Gittleman, Louisville, Ky., Baker, Garber & Chazen, Hoboken, N. J., for plaintiff.

Greenebaum, Barnett & Carroll, Louisville, Ky., for defendant.

BROOKS, District Judge.

Plaintiff, Albert Albanese, a resident of New Jersey, brought this action against the defendant, Ohio River-Frankfort Cooperage Corporation, a Kentucky corporation, for recovery of damages for personal injuries arising out of an accident which occurred in the State of New Jersey on March 14, 1952.

The Kentucky statute of limitation for actions for personal injuries is one year, KRS 413.140. The New Jersey statute of limitation for similar actions is two years, N.J.S.A. 2A:14-2. This complaint was filed on March 13, 1954, which is more than one year but less than two years after the accident.

The issue to be decided here is whether effect should be given to the statute of New Jersey where the action accrued or to the statute of Kentucky where this action was instituted. This requires consideration of both Section 2542, Carroll's Kentucky Statutes, 1936 Edition and its amendment and reenactment in 1942 as KRS 413.320.

Section 2542 provided as follows:

"When a cause of action has arisen in another state or country between residents of such state or country or between them and residents of another state or country, and by the laws of the state or country where the cause of action accrued an action can not be maintained thereon by reason of the lapse of time, no action can be maintained thereon in this state."

In Labatt v. Smith, 1882, 4 Ky. Law Rep. 422, 428; 75 A.L.R., page 232, it was stated, "in no case do they (the provisions of Section 2542) enlarge the time within which the action is to be brought. The foreign statute is only to apply where the limitation is less than that mentioned in the Kentucky statute." This interpretation is in keeping with the weight of authorities and with the general rule as quoted in 53 C.J.S., Limitations of Actions, § 27.

"Statutes of limitation are generally considered as municipal regulations founded on local policy, which have no coercive authority abroad, and with which foreign jurisdictions have no concern, and hence the general rule is that in respect of the limitation of actions the law of the forum governs, regardless of where the cause of action arose, * * *."

Subsequent Kentucky decisions, however, departed from the Labatt opinion wherein it held that Section 2542 did not operate to lengthen the limitation period of the Kentucky forum. John Shillito Co. v. Richardson, 1897, 102 Ky. 51, 42 S.W. 847; Hoerter v. Garrity, 1913, 155 Ky. 260, 159 S.W. 815; Smith v. Baltimore & Ohio Railway Co., 1914, 157 Ky. 113, 162 S.W. 564; Gibson v. Womack, 1927, 218 Ky. 626, 291 S.W. 1021, 51 A.L.R. 773. This departure resulted in Kentucky becoming the only state not following the majority rule.

As stated in 75 A.L.R., page 231:

"With the exception of Kentucky decisions, the rule is followed with little question that a statute admitting the bar of law of any other State or country does not so adopt the foreign law as to lengthen the limitation period otherwise described at the forum."

In 1942 the Kentucky Legislature amended and reenacted Section 2542 and as KRS 413.320, it now provides as follows:

"When a cause of action has arisen in another state or country, and by the laws of the state or country where the cause of action accrued the time for the commencement of an action thereon is limited to a shorter period of time than the period of limitation prescribed by the laws of this state for a like cause of action, then said action shall be barred in this state at the expiration of said shorter period."

The only significant difference between Section 2542 and KRS 413.320 is the removal of the requirement that all parties must be residents of a foreign state or country.

In Burton v. Miller, 6 Cir., 1950, 185 F.2d 817, 819, the Court said:

"It is reasonable to presume that, in thus amending section 2542, the Kentucky Legislature was aware of the interpretation which had been placed upon the old statute in the opinions of the Court of Appeals of Kentucky. It would appear that the real purpose of the Kentucky Legislature in amending section 2542 was to place residents of Kentucky on the same basis with non-residents of that state with respect to causes of action arising in other states, or countries. There would seem to be no other differentiation between the old and the revised statute than the elimination of the requirements as to parties.

"Inasmuch as we have been cited to no opinion of the Court of Appeals of Kentucky construing the 1942 revised statute and because of the compelling similarity of the two enactments, we are constrained to follow the interpretation of

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