Janes v. Sackman Bros. Co., 38

• Decision Date: 17 November 1949
• Docket Number: No. 38,Docket 21404.,38
• Citation: 177 F.2d 928
• Parties: JANES v. SACKMAN BROS. CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

177 F.2d 928 (1949)

JANES v. SACKMAN BROS. CO. et al.

No. 38, Docket 21404.

United States Court of Appeals Second Circuit.

Argued October 6, 1949.

Decided November 17, 1949.

Edward McFadden, Jr., of New York City (Ignatius, McFadden & Catalano and Joseph S. Catalano, all of New York City, on the brief), for plaintiff-appellant.

Edward A. Harmon, of New York City, for defendants-appellees.

Before L. HAND, SWAN, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

In this action plaintiff, the administrator of the estate of his deceased infant son under appointment of the Probate Court for the County of Oakland, Michigan, appeals from a summary judgment of the district court dismissing his action for the wrongful death of his son on the ground that it was barred by the applicable statute of limitations. The child, about five years old, died as a result of the taking fire of a cowboy play suit worn by him which had been manufactured and sold by the defendants, New York corporations, to a Michigan retailer from whom it had been purchased. The complaint alleges that the material used in the manufacture of the suit was highly inflammable and imminently dangerous, and that the defendants knew of its inherently dangerous quality. Plaintiff seeks recovery under the Michigan Death and Survival Act, Mich.Stat.Ann. § 27.711, Comp.Laws 1948, § 691.581, for the pecuniary loss and damages resulting from his son's death to the latter's next of kin, the plaintiff and his wife, and for the child's pain and suffering prior to death.

The fatal accident occurred in Royal Oak, Michigan, on February 3, 1944; and the child died there the same day. Plaintiff was appointed administrator by the Michigan court on August 10, 1948, and instituted this action January 26, 1949. Jurisdiction depends upon the diverse citizenship of the parties. Our problem is to determine whether the courts of New York would allow an action for a wrongful death in Michigan within five years of the date of death and one year of the appointment of decedent's administrator.

In view of the truism of the conflict of laws that the statute of limitations normally to be applied is that of the forum, it is appropriate that we first examine the law of New York on this subject. The district could held that the time limitation in the New York Death Statute, Decedent Estate Law, McK.Consol.Laws, c. 13, § 130 — the statute granting the right of action for wrongful death¹ — operates as a statute of limitations on the remedy sought for the death, and that since it expressly limits such actions to two years from the date of death the suit here is barred.

It is well settled, however, that this act applies only to a wrongful death occurring in New York. Whitford v. Panama R. Co., 23 N.Y. 465; Johnson v. Phoenix Bridge Co., 197 N.Y. 316, 90 N.E. 953; Loucks v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 198; Baldwin v. Powell, 294 N.Y. 130, 61 N.E.2d 412; Cooper v. American Airlines, 2 Cir., 149 F.2d 355, 162 A. L.R. 318. This limitation therefore is a condition which the legislature of New York has imposed upon the right granted by it of recovery for a wrongful death occurring in New York. The limitation cannot be removed from its context and applied as a bar to actions brought under the statutes of another state. Instead we must do as was done in Mullins v. Alabama Great So. R. R., 239 Ala. 608, 195 So. 866, and look to the general statute of limitations of the state of the forum to ascertain how long a period will be allowed for the commencement of such an action as this. N.Y. Civil Practice Act, § 48 provides: "The following actions must be commenced within six years after the cause of action has accrued: * * * 2. An action to recover upon a liability created by statute." The principal characteristic of a wrongful death action is its statutory origin, and thus § 48, subd. 2, is the appropriate limitation, rather than such a section as § 49, subd. 6, which limits the common-law action for personal injuries for negligence to three years. Thus in McConnell v. Caribbean Petroleum Co., 278 N.Y. 189, 15 N.E.2d 573, where a suit for personal injuries was brought under the Employers Liability Act of Venezuela, the Court of Appeals held that the suit was dependent entirely on a statutory liability, rather than a common-law liability, and applied the limit of § 48, subd. 2, rather than § 49, subd. 6. A like conclusion was reached in Detmar v. Nussbaum, 149 Misc. 469, 267 N.Y.S. 732, affirmed 241 App.Div. 720, 269 N.Y.S. 1006, and Sacks v. Ventura, 156 Misc. 656, 282 N.Y.S. 821, as to claims for personal injuries for negligence based upon the N. Y. Workmen's Compensation Act, McK.Consol.Laws, c. 67, § 1 et seq.

This action is well within the six-year period of § 48, subd. 2; but since N. Y. Civil Practice Act, § 13, provides that under no circumstances shall the New York courts allow a suitor a longer time to commence an action than would the court of the place of wrong, we must make sure that Michigan law does not cut down the time allowed. To do this requires analysis of the nature of the Michigan Death and Survival Act under which this action is brought.

Until the law was changed in 1939, recovery for wrongful death in Michigan might be under the Survival Statute, Mich. Stat.Ann. § 27.684, Comp.Laws 1948, § 612.32, or under the Death Act, Mich.Stat.Ann. § 27.711. The distinction was made as to whether death was practically instantaneous or there was a period of survival during which there was pain and suffering. The distinction became quite arbitrary and the ascertainment of time intervals was vastly important, since the claims were mutually exclusive, and the recoveries substantially different. Ford v. Maney's Estate, 251 Mich. 461, 232 N.W. 393, 70 A.L. R. 1315; Cooper, Recoveries in Wrongful Death Actions, 18 Mich.St.B.J. 116. The rigor of the temporal distinction is exemplified by Nelson v. Glover, 231 Mich. 229, 203 N.W. 840, where it was held that death was not "instantaneous" and suit lay under the Survival Act where the injured party lived twenty minutes after the injury, although he did not groan and was unconscious all the time. And in Janse v. Haywood, 270 Mich. 632, 259 N.W. 347, testimony that the pulse was beating for several minutes after the fatal injury, and that blood spurted from the deceased's mouth, brought the action under the Survival Act, rather than the Death Act.

An action under the Survival Act was an action for personal injuries, the right to which had accrued to the injured, and thus was subject to Mich.Stat.Ann. § 27.605, Comp.Laws 1948, § 609.13, providing that actions to recover damages for injuries to persons must be brought within three years from the time the action accrues. But the time for bringing such an action where the injured person dies is extended by Mich. Stat.Ann. § 27.610, Comp.Laws 1948, § 609.18, which states that if a person shall die before the limit of the time in which he might himself bring an action has expired, and if the claim survives, the action may be brought by the deceased person's administrator at any time within two years after the granting of letters of administration, provided that in no event may an action be brought more than three years after the expiration of the time limit which would have applied had the plaintiff lived. This statute provides the important exception which is relied on to keep this present action alive. As seems clear, it would thus have kept alive an action under the former Survival Act.

The situation as to the former Death Act is, however, not so clear. Indeed, it has been shortly stated in two cases that claims under this Act were subject to the three-year limitation applicable to actions for personal injuries. From this it might be argued as a corollary that, since the action accrued only to the personal representative, there was nothing upon which the exception of § 27.610 could apply. But such a conclusion involves two steps in deduction, of which we are not too confident of even the first, since the point was not considered with any care in the two cases to which we refer. In Cugell v. Sani-Wash Laundry Co., 280 Mich. 286, 273 N.W. 571, where plaintiff had followed the then usual practice of inserting counts upon both the Death and the Survival Acts, the court cited both § 27.605 and § 27.610 as the applicable statutes of limitation and went on to hold, not unnaturally, that a suit brought twenty-one years after the wrongful death was definitely barred. In the other case, Szydelko v. Smith's Estate, 259 Mich. 519, 244 N.W. 148, where the decedent was "instantly killed," the court treats the action as one for personal injuries, with the three-year statute applicable; but the action is held nevertheless maintainable under the exception of § 27.610 because of the delay in appointing an administrator for the defendant. Since there the administrator for the plaintiff had been promptly appointed, the case does not actually turn upon our present point. Perhaps the most immediately significant thing about these cases, in addition to their failure to discuss this matter beyond the bare reference to the three-year statute, is the tacit assumption that there is nothing to prevent the application of the exception of § 27.610 to death cases. Had the matter been viewed on principle, there would have been much to have been said for the application of the general provisions of § 27.605, allowing six years for the commencement of actions except where otherwise specified. Thus compare the oft-cited case of Lake Shore & M. S. Ry. Co. v. Dylinski, 67 Ill.App. 114, that a statutory right of this form is not an action for the injury suffered by the deceased, but a new action to the widow or next of kin for their pecuniary loss by their death; and Tiffany, Death by Wrongful Act § 123, 2d ed. 1913, that such an action, as distinguished from one under a survival statute, "is not strictly one for...