Hobbs v. Firestone Tire & Rubber Co.

• Decision Date: 23 June 1961
• Docket Number: Civ. No. 1112,1125
• Citation: 195 F. Supp. 56
• Parties: Ada HOBBS, Plaintiff v. FIRESTONE TIRE & RUBBER CO., Defendant. Raymond HOBBS, Plaintiff v. FIRESTONE TIRE & RUBBER CO., Defendant.
• Court: U.S. District Court — Northern District of Indiana

195 F. Supp. 56

Ada HOBBS, Plaintiff v. FIRESTONE TIRE & RUBBER CO., Defendant.

Raymond HOBBS, Plaintiff v. FIRESTONE TIRE & RUBBER CO., Defendant.

Civ. Nos. 1112, 1125

United States District Court N. D. Indiana, Fort Wayne Division.

June 23, 1961.

Ralph W. Probst, Kendallville, Ind., Gilmore S. Haynie, Fort Wayne, Ind., for plaintiff.

Hunt & Suedhoff, Ft. Wayne, Ind., for defendant.

GRANT, District Judge.

This matter is presently before the Court on defendant's Motion for Summary Judgment. The grounds alleged in support of the Motion for Summary Judgment are that the above-entitled actions were "not commenced within the time required by law, and (are) barred by the statute of limitations, there being no genuine issue as to any material fact on the issue of the statute of limitations."

Before embarking upon a discussion and disposition of this Motion, a brief statement of the salient facts would be in order here:

The Complaint in Civil No. 1112 (Ada Hobbs) was filed on December 15, 1958 and that in Civil No. 1125 (Raymond Hobbs) on February 3, 1959. The plaintiff, Ada Hobbs, seeks recovery for personal injuries sustained by her when the automobile, driven by her husband, Raymond Hobbs, in which she was a passenger, was struck from behind by an automobile owned by the defendant, Firestone Tire and Rubber Co., being then driven by its agent, Michael R. Chiara, near Flemingsburg, Kentucky, on December 4, 1957. The plaintiff, Raymond Hobbs, having sustained no personal injuries, seeks recovery for medical expenses necessitated by his wife's injuries, loss of her society, aid, etc., property damage to his automobile, the cost of household help and wages lost by virtue of his having to be absent from work to care for his wife. Mr. Chiara, originally a defendant in these actions, is no longer a party, having successfully attacked the service of summons by a Motion to Quash which was sustained by this Court.

The issue of the expiration of the statute of limitations was originally injected into each of these actions by the defendant's Second and Fourth Paragraphs of Answer. In substance, these defenses assert that the Kentucky statute of limitations period of one year is applicable to the facts of this case and that inasmuch as each of these actions was filed more than one year after the date of the accident, December 4, 1957, both of these actions are barred.

Counsel for both parties have submitted several briefs which the Court has examined and considered in detail. Notwithstanding these copious and well-written briefs, the Court has independently researched the authorities preparatory to arriving at this decision.

Initially it should be pointed out that generally the defense of the statute of limitations may properly be raised by a Motion for Summary Judgment. The Creditors' Committee of the Horton Corporation v. Goodhart, 1956, 98 U.S.App. D.C. 144, 233 F.2d 23; Roe v. Sears, Roebuck & Co., 7 Cir., 1943, 132 F.2d 829; 6 Moore, Federal Practice § 58, p. 2661 (1953).

In order to avoid the possibility of unnecessary duplication and as an aid to better understanding, it would appear advisable at this point to set out in detail the defendant's assertion that the statute of limitations bars the instant action, and also to quote the pertinent portions of all the statutes asserted to control the factual situation existent herein.

On December 4, 1957, the statute of limitations applicable to personal injury actions, as enacted by the Indiana legislature and as contained in Burns' Ann. Stat. § 2-602 (1946 Replacement—1960 Cum.Pocket Supp.), was as follows:

"Limitation of actions * * *.

"The following actions shall be commenced within the period herein prescribed after the cause of action has accrued, and not afterwards.

"First. For injuries to person or character, for injuries to personal property, and for a forfeiture of penalty given by statute, within two (2) years * * *."

Normally, the above statute of limitations period of two years would be applicable to actions filed both in the Courts of Indiana as well as the Federal District Courts sitting in Indiana. However, Indiana, like most other states, has what is known as a "borrowing statute" which imposes upon the trial court the duty of applying the statute of limitations of a sister state under certain circumstances. Unlike the borrowing statute of many of its sister states which refer to and make applicable the statute of limitations of the state wherein the injury occurred, the Indiana borrowing statute directs the trial court, in cases where the defendant is a non-resident of Indiana, to apply the statute of limitations of the state where the defendant resides. The Indiana borrowing statute as embodied in Burns' Ann.Stat. § 2-606 (1946 Replacement—1960 Cum. Pocket Supp.) provides as follows:

"* * * when a cause has been fully barred by the laws of the place where the defendant resided, such bar shall be the same defense here as though it had arisen in this state: Provided, That the provisions of this section shall be construed to apply only to causes of action arising without this state."

It is undisputed that the defendant, Firestone Tire & Rubber Co., is a resident of the State of Ohio insofar as the term "resident" is employed by the statute. It follows that by virtue of section 2-606, this Court is referred to the laws of Ohio to determine whether the instant actions have been barred by the applicable statute of limitations.

It is at this point that the defendant and the plaintiffs cease to be in agreement and at which the crucial issue to be resolved first presents itself. The plaintiffs contend that by virtue of the Indiana borrowing statute the Court is referred to Section 11224-1 of the Ohio Code (Ohio Revised Code, § 2305.10), which is the Ohio Statute of Limitations, providing as follows:

"Two year; bodily injury or injuring personal property. An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose." (112 V. 238, Eff. Aug. 2, 1927)

The plaintiff further asserts that this Court must then conclude that inasmuch as the Ohio Statute of Limitations is two years in personal injury cases, it had not run at the time of the filing of each of these actions and therefore the defendant's Motion for Summary Judgment should be denied.

The defendant, on the other hand, contends that the words "when a cause has been fully barred by the laws of the place where the defendant resided" should be interpreted literally and this Court must look to all the laws of Ohio rather than, merely, to the Ohio Statute of Limitations. (Emphasis supplied.)

This literal interpretation, asserts the defendant, would refer this Court to and necessitate application of the Ohio Borrowing Statute as found in Ohio Code, § 11234 (Ohio Revised Code, § 2305.20):

"Action, time for bringing.

"If the laws of any state or country where the cause of action arose limits the time for the commencement of the action to a less number of years than do the statutes of this state in like causes of action then said cause of action shall be barred in this state at the expiration of said lesser number of years."

To complete the summary of the defendant's position necessitates the borrowing of the Kentucky Statute of Limitations if the latter is less than the Ohio two-year limitation period stated above. Section 413.140(1) of Baldwin's Kentucky Revised Statutes Annotated (1955) provides:

"The following actions shall be commenced within one (1) year after the cause of action accrued; (a) An action for an injury to the person of the plaintiff or of his wife, child, ward, apprentice or servant."

Thus, under the defendant's theory both of the instant actions would be barred because brought more than one year after the date the causes of action accrued, December 4, 1957.

Having thus stated the respective contentions and positions of both the plaintiffs and the defendant, the Motions for Summary Judgment are now ready for disposition by the Court.

The question to be determined in the disposition of these Motions is the controversial conflicts of law theory of "renvoi", and its acceptance or non-acceptance by this Court. Consequently the Court has found it necessary to research the authorities on renvoi, both textwriters' and case decisions, in order to determine the proper disposition of the Motions for Summary Judgment.

The following statements from Goodrich and American Jurisprudence will suffice as a general statement of the theory of renvoi:

"The principles of private international law or conflict of laws are of ancient origin and are part of the common law in England and in the United States. According to the general view, where a question comes before a court which, according to the law of the forum as to conflict of laws, is to be determined by the law of another jurisdiction, the question is determined by the law of such other jurisdiction applicable to the precise question; the law of such other jurisdiction as to conflict of laws is not taken into consideration.

"Another theory, known as the `doctrine of renvoi', has been advanced. The theory of the doctrine of renvoi is that the court of the forum in determining the question before it, must take into account the whole law of the other jurisdiction, including, not only the local law of such other jurisdiction, but also its rules as to conflicts of laws, and then apply the law as to the actual question which the rules of the other jurisdiction prescribe. This may be the law of the forum. The doctrine of renvoi has generally been repudiated by the American authorities." 11 Am.Jur. "Conflict of Laws" § 3, p. 296 (1937).

"In the United States when the Conflict of Laws rule of the forum refers to the law of a foreign state, the reference is generally taken to be to the internal law of that foreign state and not to its Conflict of Laws rules. Whether the reference should be

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