Borovitz v. American Hard Rubber Co.
| Decision Date | 10 March 1923 |
| Docket Number | 11696. |
| Parties | BOROVITZ v. AMERICAN HARD RUBBER CO. |
| Court | U.S. District Court — Northern District of Ohio |
Michael Cerrezin, of Cleveland, Ohio, for plaintiff.
Commins Brouse, Englebeck & McDowell, of Akron, Ohio, for defendant.
The question presented on this demurrer is the effect of the state of war between the United States and Austria-Hungary upon the two-year limitation imposed by the wrongful death statute of Ohio. Gen. Code Ohio, Secs. 10772 and 10773-- 1. These sections require an action for wrongful death to be commenced within two years after the date of the death, but if so commenced or attempted to be commenced within two years, and it fails otherwise than upon the merits, and the two years have expired, a new action may be commenced within a year after the date of such failure.
Plaintiff's decedent met his death June 28, 1917, while employed by defendant at Akron, Ohio. His beneficiaries were his widow and two infant children, all of whom at the date of his death were, and ever since have been, in Austria-Hungary. No administrator was appointed or qualified until peace was officially made and declared, and this action was not commenced until October 25, 1922. War between the United States and Austria-Hungary was declared December 17, 1917. The President's proclamation of peace was issued November 17, 1921, but Congress had in the meantime, July 2, 1921 passed a joint resolution (42 Stat. 105) declaring the war at an end. It is immaterial whether the date of that joint resolution or the date of the President's proclamation shall be taken as the end of the war, because, if plaintiff's contention is correct, that the war period should be excluded, two years will not in either event have elapsed between the date of death and the commencement of this action.
Defendant concedes that the statute of limitations does not run against alien enemies during the war period, if the action is based on an ordinary commercial transaction, or one like it in which the statute bars merely the remedy. Alien enemies within this rule, mean persons resident within the territorial jurisdiction of a nation with which the United States is at war. Defendant insists, however, that, when a right as for a wrongful death is given, the remedy is a part of the right itself, and, if not enforced within the time fixed, the right itself expires, and is not merely suspended, and such, it is asserted, is the nature of the right of action stated in the petition. This is undoubtedly true of the right conferred by the Ohio wrongful death statute. See Railway Co. v. Hine, 25 Ohio St. 629, 634; Railroad Co. v. Fulton, 59 Ohio St. 575, 577, 53 N.E. 265, 44 L.R.A. 520; Collins v. Railway Co., 11 Ohio N.P. (N.S.) 251, affirmed 63 Ohio St. 577, 60 N.E. 1129. Defendant further contends that the right of action under the Ohio wrongful death statute is given, not to the widow or next of kin, but to the personal representative, and that the present plaintiff is and was not at any time since the date of death an alien who might not have sued, and further that the alienage of the widow and next of kin during the period of the war did not prevent the appointment and qualification of an administrator and the prosecution during the war by him of this action. Upon these grounds it is urged that the cause of action stated in the petition is barred.
My conclusion is that defendant's contention cannot be sustained. In my opinion, the alienage and disabilities of the beneficiaries suspended the running of the statute, even in a case of this character, during the war period, and that the usual rule requires an exception to be read into section 10773-- 1, G.C., and excluding from computation the period of the war. This exception is of the same nature as the one therein contained, to meet the failure of an action otherwise than on its merits.
The authorities need not be reviewed. The general principles are fully and sufficiently set forth in Hanger v. Abbott, 6 Wall. 532, 18 L.Ed. 939. According to the principles of international law, an alien enemy is disabled during the war from seeking redress or communicating with this country; this disability suspends during the war both the right and the remedy; and an exception is, as a result of war, read into all general statutes of limitation to meet the disability created by war. It will be noted that the suspension is not merely of the remedy, but also of the...
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