Baltimore & O.R. Co. v. Reed

• Decision Date: 17 June 1915
• Docket Number: 2515.
• Citation: 223 F. 689
• Parties: BALTIMORE & O.R. CO. v. REED.
• Court: U.S. Court of Appeals — Sixth Circuit

223 F. 689

BALTIMORE & O.R. CO. v. REED.

No. 2515.

United States Court of Appeals, Sixth Circuit.

June 17, 1915

Judson Harmon, of Cincinnati, Ohio, for plaintiff in error.

C. W Baker, of Cincinnati, Ohio, for defendant in error.

Before KNAPPEN and DENISON, Circuit Judges, and KILLITS, District judge.

KILLITS District Judge.

August 6, 1901, at the office of the plaintiff in error in Chicago the husband of the defendant in error purchased tickets for himself, wife, and daughter over the railroad of plaintiff in error from Chicago to New York. Immediately thereafter the family boarded the train in Chicago, and on the afternoon of the same day, within the confines of the state of Indiana the train was derailed, and defendant in error as a consequence received personal injuries.

The amended petition averred the railroad company to be a corporation organized in and having its main offices in the state of Maryland, and operating a line of railroad from Chicago, through the states of Illinois, Indiana, Ohio, West Virginia, and Maryland, to Baltimore, and thence to New York. June 8, 1905, an action was brought by defendant in error in the superior court of Cincinnati to recover her damages by reason of the injury in question. The case subsequently was removed to the Circuit Court of the United States for the Southern District of Ohio.

To the amended petition the defendant below set up three defenses the second, the only one of consequence for the purposes of this decision, being a plea of the statute of limitations in Indiana. The reply denied application of the Indiana statute to the cause of action set out in plaintiff's petition. Trial being had, defendant in error recovered a judgment. On the overruling of the motions of defendant below for judgment non obstante veredicto and in arrest of judgment and for a new trial, error was prosecuted.

At the time of the commencement of the action, section 4990, Revised Statutes of Ohio (now, with some amendments, section 11234, General Code), read:

'If, by the laws of the state or country where the cause of action arose, the action is barred, it is also barred in this state.' At the same time, and also when the accident occurred, section 294,^[1] Burns' Annotated Statutes of Indiana read as follows:

'The following actions shall be commenced within the periods herein prescribed, after the cause of action has accrued, and not afterward: First, For injuries to person or character, and for a forfeiture or penalty given by statute, within two years. * * * '

In our judgment, the proper action of this court turns upon a consideration of the effect of this statute of limitations; wherefore it will be unnecessary to pass upon other assignments of error.

We encounter little difficulty in determining that the law of Indiana respecting limitations of actions controls this case, whether we consider the present case one ex contractu or ex delicto. The fact that the contract of transportation, if defendant in error may be said to have made one, was entered upon in Illinois, does not affect the situation, although counsel for defendant in error argues earnestly for the applicability of the law of Illinois. In our judgment, the cause of action, as that term is used in the Ohio statute quoted above, arose and accrued in Indiana. We offer no original definition for the term in suggesting that a cause of action comes into being only when a right enjoyed by one has been infringed by another, and not at the time when merely a right was secured to require performance of a duty from the obligor to the obligee. In the case at bar, assuming that Mrs. Reed enjoyed contractual relations with the railroad company, the obligation of the company to her was transitory through the several states over which her ticket read. No cause of action could arise until the obligation was dishonored, for essential to it was the concurrence of the obligation and a breach thereof which resulted in the obligee's damage. This is undoubtedly the sense in which the term is used in the Ohio statute. Clark v. Eddy, 10 Ohio Dec. 539, 544; Railroad Company v. Larwill, 83 Ohio St. 108, 115, 93 N.E. 619, 34 L.R.A. (N.S.) 1195. The elements of a judicial action, according to Pomeroy's Remedies, Sec. 453, are:

'A primary right possessed by the plaintiff and a corresponding primary duty devolving upon the defendant; a delict or wrong done by the defendant which consisted in a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from this delict, and finally the remedy or relief itself. Every action, however complicated or however simple, must contain these essential elements. Of these elements, the primary right and duty and the delict or wrong combined constitute the cause of action in the legal sense of the term, and as it is used in the codes of the several states. They are the legal cause or foundation whence the right of action springs. * * * The cause of action, as it appears in the complaint, when properly pleaded, will therefore always be the foundation from which the plaintiff's primary right and the defendant's corresponding primary duty have arisen, together with the facts which constitute the defendant's delict or act of wrong.'

See, also, Veeder v. Baker, 83 N.Y. 156, 160; Post v. Campau, 42 Mich. 90, 3 N.W. 272; Bradford v. Southern Railway Company, 195 U.S. 243, 248, 25 Sup.Ct. 55, 49 L.Ed. 178.

In the Bradford Case the court states that a cause of action comprises every fact a plaintiff is obliged to prove in order to obtain judgment, or, conversely, every fact the defendant would have the right to traverse. It follows from these definitions, of course, that a cause of action can arise or accrue only at the place where the facts transpire which ripen it.

The decision in the case of Doughty v. Funk, 15 Okl. 643, 84 P. 484, 4 L.R.A. (N.S.) 1029, upon which counsel for defendant in error so strongly relies as to this particular question, turns very largely upon the peculiarities of the Oklahoma practice, as the opinion itself shows, and otherwise is out of harmony with the current of opinion elsewhere, as may be seen by an examination of the annotations thereto in 4 L.R.A. (N.S.). Besides, as observed by counsel for plaintiff in error, there is a manifest distinction between causes of action on absolute obligations and those which arise because of the happening of a mere contingency affecting a contractual duty.

Touching the claim that a bar by limitation existed when this action was brought, defendant in error insists: First, that the Indiana statute quoted above refers to injuries to the person not arising because of a breach of a contractual relation, and that, this being an action on a contract of carriage, section 293, Burns' Statutes, applies, making a six-year limitation 'on accounts and contracts not in writing. ' Secondly, it is urged that, the plaintiff in error being a foreign corporation, the operation of the statutes of limitation of Indiana is suspended, section 298 providing that:

'The time during which the defendant is a nonresident of the state or absent on public business shall not be computed in any of the periods of limitation.'

Respecting the first proposition, we are concerned only with the interpretation to be made of section 294, providing for a two-year limitation in actions brought 'for injuries to person or character. ' If that law covers all causes of action involving injuries to the person, whether arising on contract or in tort, we need not go into an analysis whether the action sounds in contract or in tort, upon which Indiana authorities differ. De Hart v. Haun, 126 Ind. 378, 26 N.E. 61; Lane v. Boicourt, 128 Ind. 420, 27 N.E. 1111, 25 Am.St.Rep. 442. The defendant in error, as well as the court below, relied very largely upon the cases of Staley v. Jameson, 46 Ind. 159, 15 Am.Rep. 285, and Kansas Pacific Railway Company v. Kunkel, 17 Kan. 145.

Staley v. Jameson was a suit against physicians and surgeons, in which it was alleged that for a special consideration they undertook to attend and care for the plaintiff in the setting and healing of a fracture, and that they so negligently and unskillfully conducted themselves in performing their contractual duty in that respect as to impair and destroy the efficiency of plaintiff's arm, wherefore they were sued for damages. The case specifically raises the question involved here. The second paragraph of the answer pleaded that the cause of action set forth in the complaint did not accrue within two years next before the commencement of suit. A demurrer to this second paragraph was overruled by the trial judge, whereupon judgment was entered against the plaintiff. The Supreme Court of Indiana say (46 Ind. 160 (15 Am.Rep. 285)):

'The appellees insist that the action is for a personal injury to the appellant, resulting from the alleged unskillfulness and negligence of the appellees. The opinion of the court below in general term is copied into the transcript. From that we learn that its ruling was based upon the theory that the gravamen of the action was the personal injuries resulting to the appellant from the omission of the appellees to exercise the care and use the skill in the discharge of their undertaking to care for his broken arm, which the law required of them upon the facts of the case, and not on a contract to properly treat the arm as surgeons. * * * '

Also (46 Ind. 165 (15 Am.Rep. 285)):

'We think the action was upon the contract. That a breach of the contract should result in impairing and destroying the efficiency of the appellant's arm does not show that the gravamen of the action is an injury to his person within the...