Maki v. George R. Cooke Co., 8774.

• Decision Date: 09 January 1942
• Docket Number: No. 8774.,8774.
• Citation: 146 ALR 1352,124 F.2d 663
• Parties: MAKI v. GEORGE R. COOKE CO.
• Court: U.S. Court of Appeals — Sixth Circuit

146 ALR 1352, 124 F.2d 663 (1942)

MAKI v. GEORGE R. COOKE CO.

No. 8774.

Circuit Court of Appeals, Sixth Circuit.

January 9, 1942.

J. Russell Carroll, of Hopkins, Minn., for appellant.

Thomas H. Adams, of Detroit, Mich. (Charles E. Lewis, Thomas H. Adams, and Hill, Hamblen, Essery & Lewis, all of Detroit, Mich., on the brief), for appellee.

Before HAMILTON, MARTIN, and McALLISTER, Circuit Judges.

MARTIN, Circuit Judge.

This civil action for damages was instituted in the United States District Court for Eastern Michigan against an incorporated resident of Michigan by an individual resident of Minnesota, for damages for personal injuries alleged to have been sustained by appellant in Minnesota as a proximate result of the violation by appellee of a Minnesota Statute (Book 1, Sec. 4174) requiring employers to maintain proper and sufficient ventilation of places where workmen are employed.

The amended complaint charged that from August, 1934, to May 13, 1935, appellant, as a miner in the employ of appellee, was forced to breathe air in a tunnel filled with sand, dust, silica and other foreign materials, in proximate consequence of which he contracted pneumoconiosis and tuberculosis on or about December 15, 1936.

On July 18, 1939, appellant filed his original complaint; on September 16, 1939, an amended complaint; and, on November 8, 1939, a motion to file an amended amended-complaint.

Appellee moved to dismiss the amended complaint and objected to the filing of the amended amended-complaint, on the ground that appellant's civil action accrued on or before May 13, 1935, the last date of his employment, and was therefore barred by Section 13976 of Compiled Laws of Michigan of 1929, which provides: "Actions to recover damages for injuries to person or property shall be brought within three (3) years from the time said actions accrue, and not afterwards; * * *."

The District Court applied the ban of limitation of the forum state and dismissed the action. Two points are advanced by appellant: (1) That the time within which his action could be commenced in Michigan is governed by the six-year limitation statute of Minnesota (Mason's Minnesota Statutes of 1927, Section 9191); and (2) that even if the three-year limitation of the forum state be applied, his action was timely because it did not accrue until pneumoconiosis and tuberculosis affected him, on or about December 15, 1936.

We are cognizant of the doctrine that in diversity of citizenship cases, the rules of conflict of laws which govern are the rules of the state in which the Federal Court sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; Griffin v. McCoach, 313 U.S. 498, 61 S.Ct. 1023; 85 L.Ed. 1481, 134 A.L. R. 1462. But we have been pointed to no opinions of Michigan courts which erect signposts to appropriate decision of the instant case.

In construing a statute of its own state, however, the Supreme Court of Michigan did hold that "the applicable rule is that, as the cause of action is created by statute, the statutory conditions, including the period of limitations, must be complied with." Bigelow v. Otis, 267 Mich. 409, 412, 255 N.W. 270, 271.

Moreover, the Minnesota ventilation statute is in consonance with Michigan laws of like character. See Michigan Statutes Annotated, Vol. 12, Sec. 17.341, Compiled Laws of Michigan of 1929, Section 8546. Enforcement in Michigan of the Minnesota statute would, therefore, conform to the public policy of the forum.

Certain extra-territorial limitation upon statutes of limitation may be recognized as settled. In common law actions, the statute of limitation of the forum is a bar to remedy, even though the action is not barred in the state where it arose; and conversely, an action not barred by the limitation of the forum is maintainable, though barred in the state of origin of the cause of action.

"If," however, "by the law of the state which has created a right of action, it is made a condition of the right that it shall expire after a certain period of limitation has elapsed, no action begun after the period has elapsed can be maintained in any state." Restatement of the Law, Conflict of Laws (American Law Institute), Section 605.

Where the statute of a state had created a new liability, with the right to sue for its enforcement, provided the suit was brought within a specified time and not otherwise, the Supreme Court said: "The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all." The Harrisburg, 119 U.S. 199, 214, 7 S.Ct. 140, 147, 30 L.Ed. 358.

But the problem presented us is not soluble by these settled principles. Here, we confront a more complex situation. The State of Minnesota has created by statute a right not existent at common law, with no delimitation of time for its enforcement. The time limitation for assertion of the right created rests upon a separate Minnesota Statute, covering, inter alia, all actions commenced "upon a liability created by statute, other than those arising upon a penalty or forfeiture." The period of limitation prescribed in this general statute of Minnesota is longer by three years than the time limitation prescribed for personal injury actions under the law of Michigan. May this Minnesota Statute of limitation be construed as carrying extra-territorial force into the forum of the sister state of Michigan, where a cause of action is brought for redress for personal injuries in pursuance of the Minnesota Statute creating a right unknown to the common law?

Had the same statute of Minnesota not only created the right, but also barred the remedy within a fixed period, there would be firm, though not unchallenged, authority for appellant's position. Theroux v. Northern Pacific Railway Co., 8...