McIntosh v. General Chemical Defense Corporation

• Decision Date: 07 August 1946
• Docket Number: No. 341.,341.
• Court: U.S. District Court — Southern District of West Virginia
• Parties: McINTOSH et al. v. GENERAL CHEMICAL DEFENSE CORPORATION.

67 F. Supp. 63

McINTOSH et al. v. GENERAL CHEMICAL DEFENSE CORPORATION.

No. 341.

District Court, S. D. West Virginia.

August 7, 1946.

J. G. F. Johnson, of Point Pleasant, W. Va., and Lucian Blankenship, of Huntington, W. Va. (Marbury, Gosnell & Williams and Jesse Slingluff, Jr., all of Baltimore, Md., on the brief), for plaintiff.

Leslie E. Given, U. S. Atty., of Charleston, W. Va., and Philip A. Baer, Asst. U. S. Atty., of Huntington, W. Va., for defendant.

WATKINS, District Judge.

Plaintiff, William B. McIntosh, brought this action for personal injury against General Chemical Defense Corporation in the Circuit Court of Mason County, West Virginia, and the same was removed to this court by defendant on the ground of diversity of citizenship. The complaint alleges that the defendant, a West Virginia corporation, produced, and shipped nitric and sulphuric acid from its plant at Point Pleasant, W. Va., to Curtis Bay, Maryland; that plaintiff is a resident of Maryland and was severely injured when he undertook to open a tank car loaded with such acid at Curtis Bay, in the State of Maryland on June 5, 1943; and that his injuries were caused by the negligent manner in which such car was overloaded in violation of rules and regulations of the Interstate Commerce Commission. The action was instituted November 20, 1945. Defendant has moved to dismiss the complaint as failing to state a cause of action on the ground that the statute of limitations in West Virginia for such a personal injury suit is one year.

Since this suit was instituted in West Virginia, the parties agree that the statute of limitations of West Virginia must be applied. But the plaintiff says that such statute allows him five years instead of one year in which to institute suit. The statute is as follows: "Every personal action for which no limitation is otherwise prescribed shall be brought five years next after the right to bring the same shall have accrued, if it be for a matter of such nature that, in case a party die, it can be brought by or against his representative; and if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued, and not after." Code, § 55-2-12.

No limitation is "otherwise prescribed" in West Virginia for personal injury action. It is, therefore, obvious that the statute allows five years in which to institute an action "if it be for a matter of such nature that, in case a party die, it can be brought by or against his representative." Otherwise, the limitation is one year. This squarely presents the question as to whether a right of action based on personal injury survives the death of either plaintiff or defendant. Plaintiff contends that this action arose in Maryland; that the laws of that state determine the question of survivability; and that the action survives under the law of Maryland. Defendant does not deny that the action arose in the state of Maryland; does not deny that such an action survives under the law of Maryland, and does not claim that the action is barred by the statute of limitations of Maryland. Code 1939, art. 57, § 1. It says that whether a claim for damages for a tort survives the death of the tortfeasor or of the injured person is determined by the law of the forum and not by the law of the place of wrong; and that under the law of the forum (West Virginia) such actions do not survive.

The law is now well settled that whether a tort claim survives is determined by the law of the place of the wrong. Prior to Ormsby v. Chase, 1933, 290 U.S. 387, 54 S.Ct. 211, 78 L.Ed. 378, 92 A.L.R. 1499, there were some decisions to the contrary which were the subject of much criticism. See Friedman v. Greenberg, 110 N.J.L. 462, 166 A. 119, 87 A.L.R. 852. Since the decision in Ormsby v. Chase the decisions have uniformly supported the rule stated above. There Ormsby operated an elevator in New York. Following his death an employe brought suit in Pennsylvania against Ormsby's executors for an injury occurring before Ormsby's death, claiming that while the cause of action did not survive in New York, the place of wrong, it did survive under the law of Pennsylvania. The District Court, 3 F.Supp. 680, dismissed the action, the Circuit Court of Appeals reversed, 3 Cir., 65 F.2d 521, and the Supreme Court reversed the Circuit Court of Appeals, holding that the law of the state where the injury occurred determined whether the action survived. For decisions on the question, see annotations to the Ormsby case set out in 92 A.L.R. 1502.

This rule is also sustained by American Law Institute Restatement of Conflict of Laws, § 390, as follows: "Whether a claim for damages for a tort survives the death of the tortfeasor or of the injured person is determined by the law of the place of wrong."

The West Virginia decisions and those of Fourth Circuit are to the same effect. Keesee v. Atlantic Greyhound Corp., 120 W.Va. 201, 197 S.E. 522; Barnes Coal Corp. v. Retail Coal, etc., 4 Cir., 128 F.2d 645; Betts, et al. v. Southern Railway...