Koeppe v. Great Atlantic & Pacific Tea Company

• Decision Date: 16 December 1957
• Docket Number: No. 13080.,13080.
• Citation: 250 F.2d 270
• Parties: Sigrid Ethel KOEPPE, Appellant, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

250 F.2d 270 (1957)

Sigrid Ethel KOEPPE, Appellant, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., Appellee.

No. 13080.

United States Court of Appeals Sixth Circuit.

December 16, 1957.

Stephens L. Blakely, Covington, Ky. (Marion W. Moore, Blakely, Moore & Blakely, Covington, Ky., on the brief), for appellant.

Philip J. Schneider, Cincinnati, Ohio (Charles S. Adams, Covington, Ky., on the brief; Waite, Schindel, Bayless & Schneider, Cincinnati, Ohio, of counsel), for appellee.

Before SIMONS, Chief Judge, ALLEN and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

This case presents a single issue of law: Does the Kentucky statutory period of limitations, of one year, KRS 413.140, govern in an action for personal injuries, which arose in the State of New York, but which is sought to be enforced in Kentucky, by a party who, at the time of the accrual of the action, was a resident of New York? The period of limitations for such an action in the State of New York is three years, Civil Practice Act, § 49. The district court held that the Kentucky statute applied, and, on motion of appellee, dismissed the complaint on the ground that it was filed after the expiration of the one-year period of limitations.

In its decision, the district court relied upon the authority of Ley v. Simmons, Ky., 249 S.W.2d 808, and Mutual Trust & Deposit Co. v. Boone, Ky., 267 S.W.2d 751.

Appellant submits that these two authorities concerned actions upon foreign judgments and were governed by the Kentucky statute relating to suits on foreign judgments; that the rule laid down in those cases applied only to actions upon such judgments; that, under the law of Kentucky, in an action arising in another state which is sought to be enforced in Kentucky by a party who was, at the time of the accrual of the right of action, a resident of such other state, the statute of limitations of the state where the action arose is applicable, rather than the statute of limitations of the state where the action is brought; and that in the instant case, the New York statute of limitations of three years should, accordingly, apply.

Ley v. Simmons, supra, 249 S.W.2d 808 relied upon by the district court, was an action brought in Kentucky to enforce a judgment obtained in Florida. The statute of limitations for suits upon a judgment in Florida was twenty years; in Kentucky, fifteen years. The Court of Appeals of Kentucky held that the Kentucky, rather than the Florida, statute applied. The applicable Kentucky statute was KRS (Kentucky Revised Statutes) 413.090, which provided that an action must be commenced within fifteen years upon a judgment or decree of any court of Kentucky or of the United States, or of any state or territory thereof. Appellant, in Ley v. Simmons, had contended that he came within the exception to the rule of the statutory fifteen-year period of limitations, by virtue of the provisions of KRS 413.330, which reads:

"If, by the laws of any other state or country, an action upon a judgment or decree rendered in that state or country cannot be maintained there by reason of the lapse of time, and the judgment or decree is incapable of being * * * enforced there, an action upon it may not be maintained in this state, except in favor of a resident thereof who has had the cause of action from the time it accrued."

The basis for appellant's argument in the Ley case was stated by the court therein to be the construction placed on a somewhat similar statute, now designated as KRS 413.320. That statute, prior to its amendment in 1942, provided:

"When a cause of action has arisen in another state or country between residents of such state or country or between them and residents of another state or country, and by the laws of the state or country where the cause of action accrued an action can not be maintained thereon by reason of the lapse of time, no action can be maintained thereon in this state." Ky.St. § 2542.

In 1942, this provision of the statute was amended and thereafter provided:

"When a cause of action has arisen in another state or country, and by the laws of the state or country where the cause of action accrued the time for the commencement of an action thereon is limited to a shorter period of time than the period of limitation prescribed by the laws of this state for a like cause of action, then said action shall be barred in this state at the expiration of said shorter period."

The only difference in the provision of the statute before and after its amendment is that it previously applied only to residents of other states and not to residents of Kentucky, and that it now applies to both citizens of other states and citizens of Kentucky.

The Court of Appeals of Kentucky held, in the Ley case, that appellant, in an action on a foreign judgment, under KRS 413.090, did not, by analogy to KRS 413.320, as amended, relating to limitations on certain actions other than foreign judgments, come within any exception to the rule that an action on a foreign judgment must be brought within the fifteen-year period of limitations, as provided by the Kentucky statute.

The foregoing reference to the Ley case may seem somewhat remote from the issue before us — whether an action in Kentucky for personal injuries, arising in another state in which the plaintiff was, at the time of the injuries, a resident, must be brought within the period of limitations of one year, as provided by Kentucky, or within the three-year period, as provided by New York, the state in which the claim of action arose.

The reason, however, for the above reference by us to the views of the Court of Appeals of Kentucky, in the Ley case, as to the application of the various Kentucky statutes of limitations involving suits brought on foreign judgments, is because of the fact that the Ley case is the chief authority on which appellant relies, and because the court therein alluded to such statutes as being somewhat similar to the Kentucky statute of limitations applicable to causes of action other than suits upon foreign judgments. In referring to the Kentucky statute applicable to causes of action other than suits on foreign judgments, the court referred to Labatt v. Smith & Whitney, 4 Ky.Law Rep. 357, 422, where it was held that statutes of limitations affected the remedy and not the merits, and that the common-law rule of applying the lex fori will be followed, except when it is clear the Legislature intended to change it. It further remarked that, as said in Labatt v. Smith & Whitney, supra, "The foreign statute is only to apply where the limitation is less than that mentioned in the Kentucky statute." The court then observed that appellant, in the case before it, had relied upon the cases of Labatt v. Smith, 83 Ky. 599; John Shillito Co. v. Richardson, 102 Ky. 51, 42 S. W. 847; Smith v. Baltimore & Ohio R. Co., 157 Ky. 113, 162 S.W. 564; Burton v. Miller, 6 Cir., 185 F.2d 817.

It is to be noted that all of these cases departed from the prior rule in Labatt v. Smith & Whitney, supra, and held to the direct contrary thereof. The court, in the Ley case, then went on to declare that all of the last cited cases had construed KRS 413.320 to mean that in an action brought in Kentucky, "the statute of limitations of the state where the action accrued would be applied, with certain exceptions not here material, even though the action would be barred under the Kentucky statute." This is exactly what appellant contends in the instant case. However, the court, in the Ley case, went on to state that all of the cases relied upon by appellant therein (except the decision of this court in Burton v. Miller, 6 Cir., 185 F.2d 817) were decided prior to the 1942 amendment of KRS 413.320; that prior to such amendment, the provision in question applied only to residents of other states and not to residents of Kentucky; and that the failure of the courts to recognize this distinction "seems to have caused some confusion, and probably explains the language used in some of the cases." It is true that the above mentioned amendment resulted in the elimination of the prior requirements as to the parties. In other words, the statute, before its amendment, applied to causes of action arising in another state or country, between residents of such state or country, and the amended statute applied to causes of action arising in another state or country, regardless of whether the parties were residents of such state, or of Kentucky.

It was suggested by the court in the Ley case that this amended provision resulted in changing the rule announced by former Kentucky decisions which held that in an action brought in Kentucky, the statute of limitations of the state where the action accrued would be applied, even though the action would be barred under the Kentucky statute, — and that the amended section of the statute did not operate to lengthen the limitation period of the Kentucky statute.

It is difficult to see how the above mentioned amendment, merely eliminating the requirements of the residence of the parties, affected the rule announced in the prior Kentucky cases, which were relied upon by appellant in the Ley case and which were conceded by the court therein to support its contention that the statute of limitations of the state where the action accrued would be applied, even though the action would be barred under the Kentucky statute.

In Burton v. Miller, 6 Cir., 1950, 185 F.2d 817, 819, involving a claim for personal injuries that had occurred in Florida, and upon which action had been brought in Kentucky by a party who, at the time of the accident, was a resident of a foreign state, this court had before it the identical question of construction of the statute, KRS 413.320, as amended in 1942 by KRS 413.330, which was discussed in the Ley case. In the course of the opinion, Judge Martin, speaking for this court, referred to the prior decisions of the Court of Appeals of...