Hoffman v. Wair

• Decision Date: 25 April 1961
• Docket Number: Civ. No. 7352.
• Citation: 193 F. Supp. 727
• Parties: Adolph G. HOFFMAN, Plaintiff, v. Donald WAIR, M.D., and Morris Goldstein, Defendants.
• Court: U.S. District Court — District of Oregon

193 F. Supp. 727

Adolph G. HOFFMAN, Plaintiff, v. Donald WAIR, M.D., and Morris Goldstein, Defendants.

Civ. No. 7352.

United States District Court D. Oregon.

April 25, 1961.

John Paul Jones, Portland, Or., for plaintiff.

Robert Y. Thornton, Atty. Gen., and Paul D. Hanlon, Sp. Asst. to Atty. Gen., for defendant Wair.

Goldstein, Galton, Galton & Popick, Zanley F. Galton, Portland, Or., for defendant Goldstein.

EAST, District Judge.

Parties and Jurisdiction

Each of the defendants, Donald Wair (Wair), and Morris Goldstein (Goldstein), have moved for an order of dismissal in the above-entitled action (F.R. Civ.P. 12(b), 28 U.S.C.A.). Wair's motion is based upon three grounds:

(a) The claim alleged in the amended complaint is barred by the applicable statute of limitations. ORS 12.110 (2 years);

(b) The matters and the claim alleged have been heretofore fully adjudicated in favor of Wair and against plaintiff; and

(c) The amended complaint fails to allege facts or to state an enforceable claim against Wair upon which any relief can be granted.

Goldstein's motion is based upon identical grounds (a) and (c) above.

The gist of plaintiff's claim under the allegations of the amended complaint appear to be:

On January 10, 1952, a hearing was held in the Circuit Court of the State of Oregon for Multnomah County, a court of competent jurisdiction, resulting in said court's order of adjudication that the plaintiff was mentally incompetent and, pursuant to said order, was confined in the Oregon State Hospital in Pendleton, Oregon, from August 5, 1952, to and including October 23, 1952.

That on August 5, 1952, and continuing through October 22, 1952, there was a civil action pending in the aforesaid Circuit Court, being Docket No. 189-494, in which the plaintiff herein was the plaintiff, and one James Peake was defendant, wherein the plaintiff sought the recovery of alleged damages for alienation of affections in the amount of $30,000.

In this action, plaintiff seeks to recover damages resulting from an alleged conspiracy between the defendants to violate plaintiff's civil rights, Title 42 U.S.C.A. § 1983.¹

Statute of Limitations

The date of the last overt act of Wair and Goldstein in furtherance of the alleged conspiracy was October 23, 1952, the date of the release of plaintiff from the Oregon State Hospital. Plaintiff, appearing pro. per., filed his original complaint herein with the Clerk of this Court on January 16, 1954; however, no service thereof or summons herein has ever been served upon the defendants. On June 18, 1956, plaintiff was by the aforesaid Circuit Court, adjudicated as having been restored to competency. It appears from a transcript of the records of the United States Marshal, with reference to the above-entitled cause, attached to the affidavit of the defendant Goldstein in support of his motion aforesaid, that summons as issued by the Clerk of this Court upon plaintiff's original complaint aforesaid was delivered to the Sheriff on January 18, 1954, and that on said date said process was redelivered by the Marshal to the plaintiff unserved.

Plaintiffs' amended complaint was filed herein on February 16, 1960, and that service of summons and complaint were personally had on each of the defendants prior to March 28, 1960.

"With the exception of a one year statute of limitations in Section 1986, Title 42 U.S.C.A. and pertaining solely to the remedies contained in such section, there is no period of limitations contained within the Civil Rights statutes, or elsewhere in the federal statutes, pertaining to such cases. `That the action depends upon or arises under the laws of the United States does not preclude the application of the statute of limitations of the state is established beyond controversy by cases cited * * citing cases. In a civil rights case the applicable statute of limitations is that of the state wherein the action arose and the district court is located. * * * citing cases.' Accordingly, the applicable state statute of limitations in Oregon controls, except insofar as the action is based on Section 1986, Title 42 U. S.C.A." Hoffman v. Halden, 9 Cir., 1959, 268 F.2d 280, 304-305.

Plaintiff contends that the applicable Oregon statute is:

"ORS 12.080—Within six years. (1) An action upon a contract or liability, express or implied, excepting those mentioned in ORS 12.070 and 12.110;

"(2) An action upon a liability created by statute, other than a penalty or forfeiture, excepting those mentioned in ORS 12.110;

"(3) An action for waste or trespass upon real property; or

"(4) An action for taking, detaining or injuring personal property, including an action for the specific recovery thereof; shall be commenced within six years. Amended by 1957 c. 374 § 3"

Wair and Goldstein counter with:

"ORS 12.110. Within two years; determination of period in action for fraud or deceit. (1) An action for assault, battery, false imprisonment, for criminal conversation, or for any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years; provided, that in an action at law based upon fraud or deceit, the limitation shall be deemed to commence only from the discovery of the fraud or deceit.

"(2) An action upon a statute for a forfeiture or penalty to the state or county shall be commenced within two years.

"(3) An action for overtime or premium pay or for penalties or liquidated damages for failure to pay overtime or premium pay shall be commenced within two years. Amended by 1957 c. 374 § 1"

To resolve the conflict and properly chart our course, it is necessary to ascertain the meaning or delineation of "a liability created by statute."

"The phrase `liability created by statute' or `liability created by law,' within the meaning of such a statute, has been held not to include or extend to actions arising under the common law, * * *" 53 C.J.S. Limitations of Actions § 83, p. 1052, note 9.

"The test of `a liability created by statute' is whether or not `"`* * * independent of the statute, the law implies an obligation to do that which the statute requires to be done, and whether, independently of the statute, the right of action exists for a breach of the duty or obligation imposed by the state'" Wood, Limitations, § 39.' State v. Baker County, 24 Or. 141, 146, 33 P. 530. This definition has been generally accepted and approved by the majority of the courts of this country. * * *" Shelton v. Paris, 1953, 199 Or. 365, 367, 261 P.2d 856, 858, to which case reference is made in Hoffman v. Halden, supra.

In Shelton v. Paris, supra, the question was:

"Whether the Oregon Employers' Liability Act, involved therein, the rules and regulations of the State Industrial Accident Commission, which have the force and effect of law, creates a liability by statute?"

In answering in the negative, the court said, 199 Or. at page 368, 261 P.2d at page 858:

the Act "imposes upon every employer the duty to furnish the employee a safe place of employment, together with such tools, safety devices and safeguards as shall be reasonably necessary to protect the life and safety of the employee. This section in general enjoins upon an employer the same duties that were required by the common law. * * *"

and

"The statute increases the burden of the employer in hazardous occupations, but not the liability. The gist of the action is the same, that is,— liability for negligence, but no new liability is created by statute, since the liability of an employer for his negligent act toward an employee existed in the common law. * * *"

An enlightening case, wherein a "liability created by statute" was found and dealt with is Hocking Valley R. Co. v. New York Coal Co., 6 Cir., 1914, 217 F. 727.

So it goes that if plaintiff's amended complaint alleges a breach of a duty owed by either of the defendants to plaintiff, which breach puts into play or out of which arises a "liability created by statute" on the part of such defendant, the six year limitation would be the proper measure; on the other hand, if plaintiff's amended complaint alleges a breach of a duty owed by either of the defendants to plaintiff, and which breach puts into play or out of which arises a liability known at common law on either of the defendants, then it follows that the two year limitation is controlling. The question presented is one of first impression in the Ninth Circuit (see Hoffman v. Halden, supra). Research reveals that three circuits have dealt with the problem; however, not conclusively. Wilson v. Hinman, 10 Cir., 1949, 172 F.2d 914, 915, was "an action under the Civil Rights Act" (old Title 8 U.S.C.A. §§ 43 and 47, now Title 42 U.S.C.A. 1981-1983 and Title 42 U.S.C.A. 1984-1990), wherein the court said:

"* * * The time for filing an action under the Civil Rights Act is controlled by the applicable Kansas Statute of Limitations * * * Section 60-306, par. 3, Kansas G.S. 1935, provides that an `action for injury to the rights of another, not arising on contract,' must be brought within two years. * * *"

The court applied the two year limitation period. It is interesting to note that the immediate preceding paragraph of the Kansas statute cited provided for a three year limitation within which to bring an "action upon a liability created by statute." Since the court took no cognizance of this three year limitation, it must be concluded that the court considered the asserted liability of the defendant to plaintiff was not one created by statute.

In Kenney v. Killian, D.C.W.D.Mich. 1955, 133 F.Supp. 571, at page 575, the opinion recites:

"In his complaint * * * plaintiff alleges that his arrest on November 16, 1950, and his detention in the Berrien county jail in temporary (for approximately 40 hours) protective custody was in deprivation of his rights, privileges or immunities secured by the Constitution and Federal laws. Therefore, it is clear that

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