Merko v. Sturm & Dillard Co.

• Decision Date: 02 May 1916
• Docket Number: 2722.
• Parties: MERKO v. STURM & DILLARD CO.
• Court: U.S. Court of Appeals — Sixth Circuit

233 F. 68

MERKO v. STURM & DILLARD CO.

No. 2722.

United States Court of Appeals, Sixth Circuit.

May 2, 1916

H. M Healy, Jr., of Newport, Ky., for plaintiff in error.

B. R Jouett, of Winchester, Ky., for defendant in error.

Before WARRINGTON and DENISON, Circuit Judges, and KILLITS, District judge.

WARRINGTON Circuit Judge.

The question presented upon this writ of error is whether Merko is entitled to the benefit of a three months' extension provision of a statute of limitations of Kentucky. Merko is an alien, a citizen of Austria, and was injured in Clark county, Ky., October 10, 1912, while in the employ of the Sturm & Dillard Company, a West Virginia corporation. Merko commenced an action against that company in the United States District Court for the Eastern District of Kentucky, July 15, 1913, to recover damages for his injuries; and on the following November 14th a plea of defendant to the jurisdiction was sustained, on the ground that defendant had not been sued in the district of its residence. Later, January 7, 1914, Merko commenced a suit against the company in the Clark Circuit Court of Kentucky to recover for the same injuries. February 2d following, the defendant filed a petition for removal of the cause to the court below, alleging the diversity of citizenship pointed out above, and an order of removal was entered on the 9th of the following April. In the court below defendant demurred to Merko's petition, alleging that it did not state facts sufficient to constitute a cause of action and also, by way of plea in avoidance, that the negligence and injuries complained of in the petition occurred more than twelve months prior to commencement of the suit in the Clark Circuit Court. The demurrer was sustained, and, plaintiff failing to plead further, the petition was dismissed.

Reliance for this dismissal is placed on certain statutes of Kentucky. Section 2516 provides that an action like this 'shall be commenced within one year next after the cause of action accrued, and not thereafter' (Carroll, Ed. 1909), but section 2545 (Id.) provides:

'Where an action has been or shall be commenced in due time and in good faith, in any court of this commonwealth, and the defendants, or either of them, have or shall make defense, and it shall be adjudged that such court had or has no jurisdiction of the action, the plaintiff or his representative may, within three months from the time of such judgment, commence a new action in the proper court, and the time between the commencement of the first and last action shall not be counted in applying the limitation.'

It is true, as the dates before pointed out show, that more than one year elapsed between the date of plaintiff's injuries, and the commencement of his action in the Clark Circuit Court; though it will be observed that less than three months passed between the first dismissal in the court below and the commencement of plaintiff's action in the Clark Circuit Court. The proposition of the defendant company is that the federal District Court, in which the action was originally commenced, is not a 'court of this commonwealth' within the meaning of section 2545, and consequently that Merko's action does not fall within the three months' period there provided. This question has not been determined in the state of Kentucky, except in the present case; and we have not the benefit of an opinion of the learned trial judge.

The question is one of purely statutory intent. The District Court mentioned was of course created and its jurisdiction defined by acts of Congress. In the sense then of its origin and jurisdiction, the District Court is not a court of the commonwealth of Kentucky; but we cannot think that this is decisive of the present question. The pendency of a suit between the same parties and involving the same subject-matter, in both a state and federal court existing within a given state, does not warrant abatement of the suit in either tribunal (Hunt v. N.Y. Cotton Exchange, 205 U.S. 322, 339, 27 Sup.Ct. 529, 51 L.Ed. 821); but this rule has no present pertinency, for the jurisdiction of each is foreign to that of the other. Here, in accordance with section 721 (U.S. Rev. Stat.; Comp. St. 1913, Sec. 1538), the state statutes of limitation involved must be 'regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply' (Michigan Insurance Bank v. Eldred, 130 U.S. 693, 696, 9 Sup.Ct. 690, 691, 32 L.Ed. 1080); and thus the present question must in obedience to the federal statute depend solely upon a true interpretation of the state statute (section 2545). It is said that conditions prevailing in the system of procedure of Kentucky induced the legislative body of that state to enact section 2545. This does not, however, show an intent to restrict the extension provision to actions only that shall have been commenced in a court created by the state and there dismissed for want of jurisdiction. In the absence, as here, of distinct language to the contrary, the state Legislature is to be presumed to have legislated with reasonable reference to all...