Louisville & N.R. Co. v. Burkhart

• Decision Date: 28 May 1913
• Citation: 154 Ky. 92,157 S.W. 18
• Parties: LOUISVILLE & N. R. CO. v. BURKHART.
• Court: Kentucky Court of Appeals

157 S.W. 18

154 Ky. 92

LOUISVILLE & N. R. CO. v. BURKHART.

Court of Appeals of Kentucky.

May 28, 1913

Appeal from Circuit court, Henderson County.

Action by Fred A. Burkhart against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, and cause remanded for a new trial.

Yeaman & Yeaman, of Henderson, and C. H. Moorman and Benjamin D Warfield, both of Louisville, for appellant.

F. J Pentecost and J. W. Johnson, both of Henderson, for appellee.

SETTLE J.

The appellee, Fred A. Burkhart, a bridge carpenter, while in the employ of the appellant, Louisville & Nashville Railroad Company, and at work upon one of its railroad bridges in Vanderburgh county, ind., fell therefrom a distance of 14 feet to the ground below, whereby his collar bone was broken and back strained, resulting in serious and permanent injury to his person.

The accident occurred September 1, 1910, and on August 23, 1912 this action to recover damages therefor was brought by him against appellant in the Henderson circuit court; it being alleged in the petition that both appellant and appellee are residents of Kentucky; appellee being a citizen of the city of Henderson and appellant having been incorporated under the laws of Kentucky, having its chief office in the city of Louisville and owning a railroad running from the city of Louisville through the county and city of Henderson to Evansville, Ind. It is alleged in the petition that appellee's injuries were caused by the negligence of appellant and its bridge foreman in furnishing him a defective jack screw not reasonably safe for use, the rod of which slipped from its place while he was using it to raise a bridge timber, causing him to lose his equilibrium and fall to the ground.

The action was based upon a statute of Indiana which makes the employer liable in damages to the employé for an injury sustained by the latter by reason of the employer's negligence in furnishing him a defective tool or machinery for use in work required of him. Yet another statute of that state, also pleaded by appellee, provides that an action to recover damages for personal injuries may be brought at any time within two years next after the cause of action accrues. The answer traversed the affirmative matter of the petition except its averments as to appellant and appellee being residents of Kentucky, alleged contributory negligence on the part of appellee, and pleaded the statute of limitations of Kentucky which bars an action for the recovery of damages for a personal injury, unless brought within a year after the injury is received. The issues were completed by the filing of a reply which controverted the pleas of contributory negligence and limitation. The trial resulted in a verdict awarding appellee $200 damages, and from the judgment entered thereon this appeal is prosecuted.

The record does not contain the evidence nor instructions, and the single question presented for decision by the appeal is, Do the pleadings support the judgment? In other words, does the limitation of two years prescribed by the statute of Indiana, or that of one year prescribed by the statute of Kentucky apply? If the latter statute should control, it is manifest that the trial court erred in refusing the peremptory instruction directing a verdict for appellant, which was asked by its counsel at the conclusion of appellee's evidence and again after all the evidence was introduced.

As previously stated, it appears from the petition that the action was instituted only 17 days short of two years after appellee's injuries were received, and it is therein alleged that "the law of the state of Indiana also provides that a suit for damages resulting from said injury may be instituted at any time within two years from the date of said injury." The answer of appellant denies the applicability of the Indiana statute of two years, and, in the third paragraph, pleads the Kentucky statute of one year, therefore the question of limitation was one upon which the evidence threw no light, but a question of law to be determined from the admitted facts presented by the pleadings. Waiving the question whether the Indiana statute of limitations was sufficiently pleaded by appellee, it can have no effect in this state. It is a well-recognized rule that statutes of limitation are of state regulation and founded on state policy. Such statutes, therefore, have no exterritorial force or operation, for which reason foreign jurisdictions are not bound by them; hence the doctrine in respect to limitations of actions is that the law of the forum governs; and this is true whether the action is ex contractu or ex delicto. Minor's Conflict of Laws, § 210; 25 Cyc. 1018.

The doctrine is thus stated in Lewis' Sutherland's Statutory Construction, § 668: "And ordinarly courts disregard the limitation fixed in the contract or tort and enforce only the lex fori."

Necessarily statutes of limitation affect the remedy and not the right; and, as argued by counsel for appellant, they are as much a part of the remedy as are our forms of pleading, our rules of evidence, and our manner of conducting trials; hence the Indiana statute of limitations can have no more operation in this state upon the one than upon the other.

The rule to which we refer has always been the law in Kentucky and, among the earlier cases approving it, is that of Graves v. Graves, 2 Bibb, 209, 4 Am.Dec. 697, in the opinion of which it is said: "The statute of limitations does not affect the validity of the contract, but the time of enforcing it; or, in other words, it does not destroy the right but withholds the remedy. It would seem to follow therefore, that the lex fori, and not the lex loci, was to prevail with respect to the time when the action should be commenced." The latter cases show no departure from this rule; among these are the following: Bennett v. Derlin, 17 B. Mon. 358; Farmers', etc., Bank v. Lovel, 1 S. W. 426, 8 Ky. Law Rep. 261; Templeton v. Sharp, 9 S. W. 507, 696, 10 Ky. Law Rep. 499; Shillito v. Richardson, 102 Ky. 52, 42 S.W. 847, 19 Ky. Law Rep. 1020; Labatt v. Smith & Whitney, 83 Ky. 599--in each of which it was held that the statutory bar of the state where the remedy is sought to be enforced by action,...