Atkins v. Schmutz Manufacturing Company

• Decision Date: 10 September 1968
• Docket Number: No. 11566.,11566.
• Citation: 401 F.2d 731
• Parties: Donald L. ATKINS, Appellant, v. SCHMUTZ MANUFACTURING COMPANY, Incorporated, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

401 F.2d 731 (1968)

Donald L. ATKINS, Appellant, v. SCHMUTZ MANUFACTURING COMPANY, Incorporated, Appellee.

No. 11566.

United States Court of Appeals Fourth Circuit.

Argued January 12, 1968.

Decided September 10, 1968.

James A. Eichner, Richmond, Va. (George E. Allen, Jr., and Allen, Allen, Allen & Allen, Richmond, Va., on brief), for appellant.

Frank O. Meade, Danville, Va. (Meade, Tate & Meade, Danville, Va., on brief), for appellee.

Before WINTER and CRAVEN, Circuit Judges, and KELLAM, District Judge.

WINTER, Circuit Judge:

Plaintiff appeals from a summary judgment entered for defendant on the ground that plaintiff's action was barred by the Virginia statute of limitations. In the limited role that we occupy in the exercise of diversity jurisdiction, we are constrained to agree, and we affirm the judgment.

Plaintiff was injured on June 22, 1961, at South Boston, Virginia, when he became entangled in a machine manufactured and sold by the defendant. His injury necessitated amputation of both of his feet and he spent a long period of time in various hospitals and rehabilitation centers. Because he believed that the defendant was negligent in the design and construction of the machine which so severely and permanently injured him, he concluded to pursue his rights against the defendant.

The defendant's only place of business was and is in Louisville, Kentucky. Virginia had no "long-arm statute" until 1964.¹ Thus, plaintiff, at the time he initially sought to institute suit, reasonably concluded that the defendant could not be sued in Virginia. Suit was brought in the United States District Court for the Western District of Kentucky on June 19, 1963. The suit in Kentucky was brought more than one year, but three days less than two years, after the date of injury. The Virginia statute applicable to the plaintiff's alleged cause of action prescribes two years as the period of limitations, 2 Code of Virginia (1957 Repl. Vol.) § 8-24; the comparable period under Kentucky law is one year, K.R.S. § 413.140.

At the time plaintiff brought suit in Kentucky, Kentucky decisions were understood in the federal courts to hold that in a suit filed in Kentucky, based upon a cause of action arising in another state, "the statute of limitations of another state, if longer, is applicable." Collins v. Clayton & Lambert Manufacturing Co., 299 F.2d 362, 364 (6 Cir. 1962); Koeppe v. Great Atlantic & Pacific Tea Co., 250 F.2d 270 (6 Cir. 1957); Burton v. Miller, 185 F.2d 817 (6 Cir. 1950). However, while plaintiff's suit was pending in the Kentucky district court, the Kentucky Court of Appeals held that in such cases the Kentucky one-year statute of limitations would prevail over a longer period of another state. Seat v. Eastern Greyhound Lines, Inc., Ky.; 389 S.W.2d 908 (1965). And it also decided that this rule should be applied retrospectively. Wethington v. Griggs, Ky., 392 S.W.2d 56 (1965).

Thereafter, defendant filed a motion for summary judgment on the ground that suit was barred in Kentucky. The motion was granted by the district court and affirmed on appeal. Atkins v. Schmutz Mfg. Co., 372 F.2d 762 (6 Cir. 1967). Certiorari to the Supreme Court has been denied. Atkins v. Schmutz Manufacturing Co., Inc., 389 U.S. 829, 88 S.Ct. 92, 19 L.Ed.2d 86 (1967).

The instant case was filed in the United States District Court for the Western District of Virginia, on March 13, 1967, almost six years after the injury occurred, but before the mandate of the United States Court of Appeals for the Sixth Circuit had issued. By motion for summary judgment, defendant asserted that the Virginia two-year statute of limitations barred plaintiff's suit. Finding that plaintiff could not fit himself into any of the instances in which Virginia suspends the running of the statute, the district judge granted the motion. We agree that plaintiff may not maintain the action.

Virginia suspends the running of the statute for varying periods when the plaintiff is under the disability of infancy or insanity, when the plaintiff has died, when there is delayed qualification of plaintiff's personal representative and when suit is prevented by the defendant. 2 Code of Virginia (1957 Repl.Vol.) §§ 8-30; 8-31; 8-32; 8-33. None of these instances of suspension is applicable. Section 8-34 is the only remaining suspension statute, and its text is set forth in the margin.²

Section 8-34 (known as § 5826 in the Code of 1919) was judicially construed in Jones v. Morris Plan Bank of Portsmouth, 170 Va. 88, 195 S.E. 525 (1938). There, the plaintiff to avoid the bar of limitations argued that there should be excluded from the limitation period the fourteen months during which there was pending in the Circuit Court of the City of Suffolk a suit by him against the same defendants for the same alleged cause of action for malicious abuse of civil process which had been finally dimissed for lack of venue properly pleaded. In rejecting the contention, the Supreme Court of Appeals said this about the statute:

"An analysis of our statute (section 5826) shows that in only four instances is there a suspension of the statute of limitations by reason of the pendency of a former suit brought in due time. These are: (1) Where such suit abates `by the return of no inhabitant,\' that is, where the writ is not served for that reason; (2) where the suit abates by reason of the `death or marriage\' of a party; (3) where, after the plaintiff has obtained a judgment or decree in his favor, it is `arrested or reversed upon a ground which does not preclude a new action or suit for the same cause\'; and (4) where `there be occasion to bring a new action or suit by reason of the loss or destruction of any of the papers or records in a former suit or action which was in due time.\'

None of these provisions applies to the plaintiff\'s case. There is no saving provision where a suit, such as that of the plaintiff here, was brought in the wrong forum or was dismissed otherwise than upon the merits." 195 S.E. 526-527.

See also Manuel v. Norfolk & Western Ry. Co., 99 Va. 188, 37 S.E. 957 (1901).

As significant as the holding and what was said was the approach of the Court in that case. The Court treated as absolute the bar contained in § 8-24 unless and until plaintiff could bring himself specifically into one of the instances of suspension of the bar elsewhere provided in the statute. In that case, the plaintiff could not, any more than can the plaintiff in the instant case, and hence his suit was held barred. In this connection, the Court in the Morris Plan Bank case deemed significant, as do we, that when a suit is for wrongful death (as distinguished from personal injuries), Virginia law suspends the period of limitations during the pendency of any action subsequently abated or dismissed without a determination of its merits. 2 Code of Virginia (1957 Repl.Vol.) § 8-634. The presence of this provision in suits for wrongful death makes its absence in suits for personal injuries strong evidence that Virginia would not permit suspension of the limitation period in the instant case.³

Citing Burnett v. New York Cent. R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed. 2d 941 (1965), plaintiff argues that pendency of the action in Kentucky tolled the Virginia statute.⁴Burnett held that a timely state action under the Federal Employers' Liability Act dismissed for lack of proper venue tolled the Act's three-year period of limitations until the state court order dismissing the action became final by expiration of the time for appeal or the entry of final judgment on appeal; hence, a federal suit, filed eight days after dismissal of the state action, was not barred. Although the Burnett case concerned limitations under the Act and presented a question different from that presented here, plaintiff stresses its broad statements that statutes of limitations are intended to promote justice by preventing the revival of claims which have been allowed to slumber until evidence has been lost, and that the policy of repose is frequently outweighed where the interests of justice require vindication of a plaintiff's rights. The Burnett case did contain such language and we are in full accord with it. Indeed, we are in full accord with the observations of the Sixth Circuit that the equities of this case "strongly favor appellant" (372 F.2d 764) and of the district judge below that the argument that plaintiff should prevail on the point in issue "is appealing to this court." In the instant case, the pendency of the Kentucky litigation would certainly satisfy any legislative purpose to guard against slumbering claims and would have provided ample opportunity for discovery and preservation of relevant evidence.

But the short answer is that we do not have before us a federal statute of limitations on which we are free to apply the holding or the rationale of the Burnett decision. We have a state statute to which we must apply state decisional law to the end that "the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court." Guaranty Trust Co. of New York v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079 (1945); Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).⁵ We cannot read the Virginia statutes or the Morris Plan Bank case as permitting plaintiff an opportunity to show if his claim of negligence on the part of defendant is meritorious.

We find no merit in plaintiff's argument that we are free to reexamine § 8-34 under federal law because this case presents a federal question — whether plaintiff has been denied due process of law because of the deprivation of a trial on the merits. If plaintiff has been denied due process of law, that deprivation occurred when the Kentucky district court under the Erie doctrine applied Kentucky's retroactive state...