Andrew v. Bendix Corporation

• Decision Date: 20 December 1971
• Docket Number: No. 71-1289,71-1290.,71-1289
• Parties: Mildred Frances ANDREW, Administratrix of the Estate of Edwin Franklin Jackson, Captain, Deceased, Plaintiff-Appellant and Cross-Appellee, v. The BENDIX CORPORATION, Defendant-Appellee and Cross-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

452 F.2d 961 (1971)

Mildred Frances ANDREW, Administratrix of the Estate of Edwin Franklin Jackson, Captain, Deceased, Plaintiff-Appellant and Cross-Appellee, v. The BENDIX CORPORATION, Defendant-Appellee and Cross-Appellant.

Nos. 71-1289, 71-1290.

United States Court of Appeals, Sixth Circuit.

December 20, 1971.

Lyman Brownfield, Columbus, Ohio, for plaintiff-appellant and cross-appellee; Laurence E. Sturtz, Walter J. McNamara, III, Columbus, Ohio, on brief; Brownfield, Kosydar, Bowen, Bally & Sturtz, Columbus, Ohio, of counsel.

Charles N. Myers, Jr., Columbus, Ohio, for defendant-appellee and cross-appellant; Hamilton, Kramer, Myers & Summers, Joseph R. Hague, Columbus, Ohio, on brief.

Before PHILLIPS, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.

JOHN W. PECK, Circuit Judge.

Trial of this wrongful death action in the District Court resulted in a verdict and judgment for the defendant, followed by this appeal alleging errors in evidentiary rulings during trial. The defendant perfected a cross-appeal alleging error by the District Court in holding that the action was not barred by the statute of limitations. The parties will hereby usually be referred to as they were in the trial court.

The incident which resulted in the death of plaintiff's decedent and which gave rise to this action occurred April 7, 1960. On June 14, 1961, plaintiff filed a wrongful death action in the United States District Court for the District of Columbia, which court dismissed the action for want of prosecution as of January 7, 1964. That dismissal may or may not have resulted from some lack of communication within the District Court, but in any event without seeking to have the order of dismissal vacated, plaintiff for reasons which she here attributes to a greater comparative facility in discovery procedures filed the complaint in the present case in the District Court for the Southern District of Ohio on January 5, 1965. In this general regard, it is to be noted that the death of plaintiff's decedent occurred in North Carolina, that she is a resident of that state and that she was appointed administratrix of the decedent's estate by a probate court of a North Carolina county. The defendant is alleged in the complaint to be a Delaware corporation with its principal place of business in Michigan and with an office in the Northern District of Ohio.

That the action is to be governed by the law of Ohio is not in debate, and the parties agree that the applicable statute of limitations is Ohio Revised Code Section 2125.02 which provides that "every such action must be commenced within two years after the death of the decedent." What is at issue is whether or not the Ohio "savings statute" (O.R.C. § 2305.19) has application. That section provides in pertinent part:

"In an action commenced, or attempted to be commenced, if in due time a judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff * * * may commence a new action within one year after such date. * * *"

Some comment to the contrary notwithstanding, we without hesitation conclude that for present purposes the entry of the District of Columbia District Court constituted a dismissal of that action "otherwise than upon the merits," and had that order been entered by an Ohio court plaintiff would clearly have been authorized by this statute to "commence a new action within one year." Thus the sole issue presented on the cross-appeal is whether the Ohio savings statute has application to a cause of action against which the statute of limitations has run, but where the cause has failed other than on its merits in another jurisdiction. Neither the Supreme Court of Ohio nor any Ohio court of appeals having passed on this issue, it is incumbent upon us to attempt to determine on the basis of logic and existing law which way Ohio's highest court would decide the question. Davis v. Smith, 253 F.2d 286, 289 (3rd Cir. 1958).

The district judge, citing Kleve v. Negangard, 330 F.2d 74 (6th Cir. 1964), and 9 O.Jur.2d 834, Conflict of Laws, Sec. 17, determined the issue to be the applicability of the Ohio savings statute. Concluding as we do that the failure of the District of Columbia action was "otherwise than on the merits within the meaning of Section 2305.19," and after citing Sherman v. Air Reduction Sales Co., 251 F.2d 543 (6th Cir. 1958), he in effect found the savings statute applicable and as hereinabove indicated permitted the cause to proceed through jury trial. In following this course, however, and specifically noting that the dismissal was "by the United States District Court for the District of Columbia", no recognition is taken of the fact that the issue might vary from that presented where the earlier dismissal was by an Ohio tribunal. As indicated, the District Court relied on Sherman for the conclusion reached, but therein the dismissal for want of prosecution was by the Common Pleas Court of Lucas County, Ohio, and the new action commenced within the savings statute period was in...