Horvath v. Davidson

Decision Date10 December 1970
Docket NumberNo. 970A155,No. 2,970A155,2
Citation148 Ind.App. 203,264 N.E.2d 328
PartiesMary HORVATH, Appellant, v. Walter D. DAVIDSON, Appellee
CourtIndiana Appellate Court

Myron J. Hack, Hack & Gonderman, Bernard S. Schrager, South Bend, for appellant.

John J. Lorber, Crumpacker, May, Levy & Searer, South Bend, for appellee.

SHARP, Judge.

This action grew out of a personal injury collision which occurred on August 21, 1966, in Michigan. The Defendant-Appellee, Walter D. Davidson, was at all times material a resident of St. Joseph County, Indiana. At all times material the Plaintiff-Appellant was a resident of Michigan. On August 19, 1969, Appellant filed suit in St. Joseph County, Indiana. The Appellee filed answer in two paragraphs, one in general denial, and the second raised the defense that the Appellant's cause of action did not accrue within two years before the commencement of this action. Thereafter Appellee moved for summary judgment alleging generally that the Indiana Statute of Limitations barred Appellant's cause of action.

On February 24, 1970, the parties entered into a stipulation as follows:

'1. The collision alleged in the plaintiff's complaint did occur on August 21, 1966, as alleged therein.

2. The plaintiff on the date of said collision, August 21, 1966, and thereafter was not then and is not now under any legal disability.

3. At the time of the collision in question and at the time of the filing of this action and at the present time, the plaintiff was, is and continues to be a resident of the State of Michigan.

4. The collision, as alleged in plaintiff's complaint did occur in Cass County, State of Michigan.'

On June 17, 1970, the trial court entered the following judgment:

'This cause came on to be heard this 14th day of May, 1970, on the defendant's Motion for Summary Judgment. The Court having considered the pleadings, stipulations of fact and briefs filed by the parties and after argument of counsel, now finds that the defendant's Motion for Summary Judgment should be granted, and that the plaintiff recover nothing from the defendant and that the defendant have judgment for costs, there being no genuine issue as to any material fact in this cause concerning the defendant's affirmative defense that the plaintiff failed to file a timely complaint for damages within the applicable statute of limitations, the same being found in Burns Indiana Annotated Stat. § 2--602, and the defendant, therefore, being entitled to judgment as a matter of law.

The Court further makes the following findings of fact:

1. The automobile collision which is the subject of the plaintiff's complaint occurred in Cass County, Michigan, on August 21, 1966.

2. The plaintiff was not under any legal disability at the time said collision occurred and is not now under any legal disability.

3. The plaintiff filed her complaint for damages resulting from said collision in the Superior Court of St. Joseph County, Indiana, on August 19, 1969.

Upon consideration of the foregoing facts, the Court now concludes as a matter of law:

1. That the Indiana Statute of Limitations, being the law of the forum, is applicable to the controversy herein.

2. The Indiana Statute of Limitations for personal injuries, as found in Burns Indiana Annotated Stat. § 2--602, requires that suit be commenced within two (2) years after the cause of action has accrued.

3. The plaintiff's action was not commenced within two (2) years after the accrual of her cause of action and is, therefore, barred by the Indiana Statute of Limitations.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the defendant's Motion for Summary Judgment be granted and that the plaintiff take nothing of and from the defendant by virture of her Complaint. Costs assessed against the plaintiff. Judgment.'

Generally the Statute of Limitations may be raised on a Motion for Summary Judgment. Hobbs v. Firestone, 195 F.Supp. 56 (N.D.Ind.1961); Cassidy v. Cain, Ind.App., 251 N.E.2d 852 (1969); Roe v. Sears, Roebuck & Co., 132 F.2d 829 (7th Cir. 1943); and Meier v. Combs, Ind.App., 263 N.E.2d 194 (1970).

On June 23, 1970, Appellant filed Motion to Correct Errors under Trial Rule 59 which was overruled.

The sole legal question to be determined here is whether the Statute of Limitations of Indiana or Michigan applies.

There is no dispute that actions relating 'injuries to person' must be commenced within two years under the provisions of Burns' Indiana Statutes Annotated § 2--602. There is also no dispute that under the law of Michigan such actions must be commenced within a three year period. Michigan Revised Judicature Act of 1961, § 5805.

All the facts relevant to the issues presented here have been agreed upon and no evidentiary questions are raised.

In Hobbs v. Ludlow, 199 Ind. 733, 160 N.E. 450 (1928), our Supreme Court stated:

'The lex fori governs in respect to matters concerning the remedy to be pursued, including the bringing of suits, etc., * * * and in respect to the limitation of actions * * *, as well in the matter of exceptions from the bar fixed by the statute as in the matter of the actual bar itself, * * *.'

This rule was followed without deviation in Karvalsky v. Becker, 217 Ind. 524, 532, 29 N.E.2d 560, 563 (1940), where Judge Fansler, speaking for the court, stated:

'The contract provides that no action on the contract shall be brought after the expiration of one year from the time such action accrues. This provision is void under the statute of Indiana, and the statute of limitations applies. The appellees contend that the law of West Virginia should control the time within which the action is brought, but it is well settled that statutes and rules governing the time in which actions may be brought affect only the remedy, and that the law of the forum will control.'

The above Indiana authority was followed by the U.S. Court of Appeals for the Seventh Circuit, in the application of the Indiana rule, in Albrecht v. Indiana Habor Belt R. Co., 178 F.2d 577 (7th Cir. 1949).

The Indiana rule is also consistent with the statement of Chief Justice Vinson in Wells v. Simonds Abrasive Co., 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 1211:

'The states are free to adopt such rules of conflict of laws as they choose, Kryger v. Wilson (1916), 242 U.S. 171 (37 S.Ct. 34, 61 L.Ed. 229), subject to the Full Faith and Credit Clause and other constitutional restrictions. The Full Faith and Credit Clause does not compel a state to adopt any particular set of rules for conflict of laws; it merely sets certain minimum requirements which each state must observe when asked to apply the law of a sister state.

Long ago, we held that applying the statute of limitations of the forum to a foreign substantive right did not deny full faith and credit, McElmoyle (for Use of Bailey) v. Cohen (1839) (38 U.S.), 13 Pet. 312 (10 L.Ed. 177); Townsend v. Jemison (1850) (50 U.S.), 9 How. 407 (13 L.Ed. 194); Bacon v. Howard (1857) (61 U.S.), 20 How. 22 (15 L.Ed. 811). Recently we referred to '* * * the well established principle of conflict to laws that 'If action is barred by the statute of limitations of the forum, no action can be maintained though action is not barred in the state where the cause of action arose.' Restatement, Conflict of Laws, § 603 (1934).' Order of United Commercial Travelers (of America) v. Wolfe (1947), 331 U.S. 586, 607 (67 S.Ct. 1355, 1365, 91 L.Ed. 1687).

The rule that the limitations of the forum apply (which this Court has said meets the requirements of full faith and credit) is the usual conflicts rule of the states. However, there have been divergent views when a foreign statutory right unknown to the common law has a period limitation included in the section creating the right. The Alabama statute here involved creates such a right and contains a built-in limitation. The view is held in some jurisdictions that such a limitation is so intimately connected with the right that it must be enforced in the forum state along with the substantive right.

We are not concerned with the reasons which have led some states for their own purposes to adopt the foreign limitation, instead of their own, in such a situation. The question here is whether the Full Faith and Credit Clause compels them to do so. Our prevailing rule is that the Full Faith and Credit Clause does not compel the forum state to use the period of limitation of a foreign state. We see no reason in the present situation to graft an exception onto it. Differences based upon whether the foreign right was known to the common law or upon the arrangement of the code of the foreign state are too unsubstantial to form the basis for constitutional distinctions under the Full Faith and Credit Clause.' (Emphasis added.)

The Appellant suggests that the application by the Indiana courts of the Indiana statute of limitations should be changed as a result of the much discussed and cited trilogy of New York cases, namely, Kilberg v. Northeast Air Lines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961); Pearson v. Northeast Air Lines, Inc., 307 F.2d 131, and 309 F.2d 553 (2nd Cir. 1962); and Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963). (It is interesting that the exact approach to choice of law problems which the New York Courts adopted in the early 1960's was suggested in 1945 by Judge Richmond in W. H. Barber Co. v. Hughes, 223 Ind. 570, 63 N.E.2d 417.)

However, a careful examination of the New York 'Center of Gravity' or Grouping of Contracts' cases are in no way authority to compel the Indiana Courts to 'borrow' the Michigan statute of limitations in this case.

Recently, this court stated in Prudence Life Ins. Co. v. Morgan, 138 Ind.App. 287, 292, 213 N.E.2d 900, 904 (1966):

'The rule of law generally followed is that where a cause of action is brought in a state other than the state in which the action arose, matters of a substantive nature are governed by...

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