Farthing v. Sams
| Decision Date | 22 December 1922 |
| Citation | 247 S.W. 111,296 Mo. 442 |
| Parties | W. D. P. FARTHING, Appellant, v. GEORGE SAMS |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Benjamin J. Klene Judge.
Affirmed.
John A Nolan for appellant.
A cause of action arising in another state, territory or country, is enforceable in this State, unless such cause of action has been fully barred by the laws of the state, territory or country in which it arose. Sec. 1324, R.S. 1919; Handlin v. Burchett, 270 Mo. 114; Yost v. Railway, 245 Mo. 235; Wojtylak v. Coal Co., 188 Mo. 260; Berkley v. Tootle, 163 Mo. 592; Railway v Elwood Grain Co., 199 Mo.App. 435; Guibert v. Kessinger, 173 Mo.App. 677.
Alfred Kehde for respondent.
(1) The general rule is that the Statute of Limitations of the place where the remedy is sought governs. McCoy v. Railroad, 134 Mo.App. 622; Gross v. Watts, 206 Mo. 373, 397; McMerty v. Morrison, 62 Mo. 143; Stirling v. Winter, 80 Mo. 147; Williams v. Ry. Co., 123 Mo. 573, 583; Hurley v. Mo. Pac. Ry. Co., 57 Mo.App. 675, 683. (2) The action is barred by the statute. Sec. 1889, R.S. 1909; Sec. 1317, R.S. 1919; McCoy v. Ry. Co., 134 Mo.App. 622. Section 1324 has no application to this case. It applies only to cases where the cause of action has been barred in the state in which it arose. Theis v. Wood, 238 Mo. 643.
Action for personal injuries, filed May 20, 1920, in the Circuit Court of the City of St. Louis, wherein plaintiff demanded judgment for twenty-five thousand dollars.
Defendant filed a demurrer to the petition, which was sustained August 30, 1920. Plaintiff declined to plead further, and judgment was entered against him on the second day of September, 1920, from which he appealed to this court.
The petition shows that plaintiff now is, and at all the times mentioned was, a resident of the State of Illinois; that the defendant has been a resident of the State of Missouri since the year 1907.
For cause of action the plaintiff alleges that on the twentieth day of September, 1899, while he was of the age of about twelve years and lawfully upon the public highway in the village of Odin in the State of Illinois, the defendant, likewise a resident of that village was, on the same highway, in possession of a single barrel shotgun, "and did then and there carelessly, negligently and recklessly handle and operate said shotgun so as to cause same to be fired or discharged directly toward this plaintiff, this plaintiff receiving the charge from said shotgun, fired by the defendant as aforesaid, the shot therefrom lodging in his left shoulder, back, and left side of his head," etc.
The petition, after specifying the various injuries resulting from the shot, continues as follows:
"Plaintiff further states that he became of the age of twenty-one years on the 12th day of April, 1908, that on that day there was in full force and effect in the State of Illinois and applicable to the County of Marion, in which this plaintiff then resided, a general statute entitled, 'An Act in regard to limitations;' . . . that Section 14 of the aforesaid act provides that actions for personal injuries may be brought at any time within two years after the cause of action accrues; that Section 18 of the aforesaid act provides that the statute shall not run while the defendant is out of the State; and that Section 21 of the aforesaid act provides, among other things that where a cause of action for personal injuries accrues to a minor that he shall have a period of two years after attaining his majority in which to institute his suit therefor."
The petition then states that in the month of July, 1908, in the Circuit Court of Marion County, Illinois, plaintiff brought suit against the defendant; summons was issued thereon and returned by the sheriff "not found," owing to the fact that the defendant, shortly prior thereto, had left the State of Illinois and taken up his abode in the city of Saint Louis, State of Missouri, where the said defendant has ever since resided.
Defendant demurred to the petition on the ground that the petition showed on its face that the plaintiff's cause of action accrued more than five years prior to the filing of the petition therein and was barred by the Statute of Limitations of this State.
I. It is conceded that the Statute of Limitations of the State of Illinois did not bar the action; the minority of the plaintiff and the non-residence of the defendant preventing the operation of the statute.
It is likewise true that except for the statute of Illinois, Section 1317 of the Revised Statutes of Missouri of 1919, limiting the right to bring an action of this character to five years from the time the cause of action accrues, would bar this action.
Defendant invokes Section 1324, Revised Statutes 1919, as follows:
The appellant contends that the Statute of Limitations of another state applies in all cases whether it extends beyond or falls short of the period of the Missouri statute. The question to be determined is whether Section 1324 shall be construed to enlarge the right of the plaintiff to bring an action after it is barred by the statute of this State, or shall be limited to what it says; whether the statute of limitations of another state affects an action brought in this State only when by its operation an action is fully barred by the laws of that state.
II. The language of Section 1324 is simple enough. It imposes an additional limitation upon causes of action arising in another state. It does not purport to relieve a suitor from the operation of our Statute of Limitations, but applies whenever a cause of action "has been fully barred " by the laws of the state in which it originated. In order to apply the construction for which the plaintiff contends it would be necessary to imply certain negative statements in the statute to the effect that when a cause of action is not barred by laws of the state in which it originated, the Statute of Limitations of this State cannot be applied in defense of the action.
The general rule in this State and elsewhere is that the law of the forum applies where it affects the remedy, while the law of the place where the cause of action originated is applied where it affects the right. Statutes of limitations, which by their terms go to the remedy and do not extinguish the right, constitute a part of the lex fori of every civilized country. [Williams v. St. Louis & San Francisco Ry. Co., 123 Mo. 573, l. c. 583, 27 S.W. 387.]
The court in that case said: "The law of the forum governs whether the right of action depends upon the common law, or a local statute, unless the local statute which creates the right also limits the duration of the right within a prescribed time."
The cause of action stated here is a common-law action, and the law of the forum under the general rule would necessarily apply as affecting the time within which the action must be brought, unless Section 1324 modifies the rule. That section is purely negative in its language; it confers no affirmative right and gives no additional privileges to a suitor.
III. It would be unnecessary to extend this discussion further if it were not for decisions construing Section 1324, which say that a statute of limitations of another state "applies" (without qualification) to a cause of action arising in such state and sued on here. Such rulings are likely to be misunderstood. Likewise there are some jurisdictions where the rule contended for by appellant is held to be correct. [Bruner v. Martin, 14 Am. & Eng. Ann. Cases, p. 39, note.]
Statutes similar to Section 1324 have received attention of courts in many states. In most of the cases where such a statute has been under consideration, the construction is affected by the residence of the parties and the consideration of the precise question involved here is quite rare. The case of Fletcher v. Spaulding, 9 Minn. 64, l. c. 67-68, is where an action was brought in Minnesota on promissory notes executed in the State of Massachusetts. The defendant pleaded the Statute of Limitations of Minnesota. The plaintiff had always resided in the State of Massachusetts, in which state both plaintiff and defendant resided at the time of the execution of the notes, and the defendant moved to the State of Minnesota more than six years before the beginning of the action. If the Statute of Limitations of Massachusetts should be applied it would not bar the action, but it would be barred by the Statute of Limitations of Minnesota where the suit was brought. Minnesota had a statute very similar to our Section 1324. In commenting upon it the court said, at page 68:
In the case of Isenberg v. Ranier, reported in 130 N.Y.S. 27, the Court of Appeals of New York applied the...
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