Morman v. STANDARD OIL COMPANY, DIV. OF AMERICAN OIL CO.
Decision Date | 21 February 1967 |
Docket Number | Civ. No. 64-55W. |
Citation | 263 F. Supp. 911 |
Parties | Dale L. MORMAN, Special Administrator of Sophia Ferdig, deceased, Plaintiff, v. STANDARD OIL COMPANY, DIVISION OF AMERICAN OIL COMPANY, Defendant. |
Court | U.S. District Court — District of South Dakota |
Milek & Brown, by E. G. Brown, Sturgis, S. D., for plaintiff.
Costello, Porter, Hill, Banks & Nelson, Rapid City, S. D., for defendant.
DECISION AND ORDER
These are two diversity suits, stemming from the same accident, predicated on different theories and for that reason, in the complaint as amended, presented as eight separate causes of action, but all actually in two main groups, one grounded on pain and suffering of Sophia Ferdig following an explosion which caused her death, the other statutory damages for such death. Damages sought in the first are for $1,000,000 and in the other $30,000.
Both are now before the court on motions to dismiss, one challenging the claim for personal injuries on the ground that the action was not commenced within the three year statutory limitation period, SDC 33.0232(5) (c)1 and the other with a like time bar asserted under the provisions of SDC 37.2203, as amended.2
The following summary is sufficiently specific and broad enough to allow final rulings2a on each of those motions: (1) a sale by the defendant through its agent of a distillate fuel oil with a flash point, inherently dangerous; (2) an explosion as it was used by the victim on May 26, 1961; (3) instantaneous injuries resulting in complete loss of capacity, mental as well as physical which continued until the time of her death on May 28, two days later; (4) appointment of a special administrator of her estate on October 6, 1961; (5) filing of the complaint with the clerk of this court on May 27, 1964; (6) that officer's issuance of the summons and delivery of it and two copies of the complaint to the United States Marshal on the same date for service by mail on the Secretary of State of South Dakota; (7) such mailing made that day with the required $2 included and (8) her written admission of service, in due course, on June 3, 1964.
Statutes of limitation, in diversity cases, when invoked, as for instance in the wrongful death part of this one, are tolled, at the moment the summons and the complaint after filing by the clerk are delivered to the United States Marshal, for service, providing they are thereafter served within the time period allowed under the laws of the state where such actions are brought. Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520; Burkhardt v. Bates, 191 F.Supp. 149 (Iowa 1961); Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8; Groninger v. Davison, 364 F.2d 638 (8 Cir. 1966); SDC supra, SDC 33.02023; Smith v. Wells, 70 S.D. 435, 18 N.W.2d 308 (1945); Rules 34, 4(c)5, and (d) and (1), Fed.R.Civ.P., as amended; and Black's Law Dictionary, 4th Ed., page 1658.
Hanna, on the basis of its facts, rules evolved and results reached, compels such a conclusion. Service of process there as here was by the Marshal in accordance with the federal rules of civil procedure. The challenge in Hanna, went not to failure to observe those rules, but to the omission to follow those prescribed by the state. Had they been, it was urged, and on this point there is no dispute, the plaintiff, eventually, could have won or lost. Being rejected in those contentions she did not have that choice. This, she said, violated Ragan. The court, as it referred to that case and others, held otherwise. By that act it held commencement of diversity actions and in conjunction therewith service of process, exclusively for the federal courts under its prescribed rules of procedure and the on how it is to be done, not affected by the procedural within a state, even when the course and outcome thereby could or would be altered or changed. Cases and authorities, supra.
Certain comments in Hanna, 380 U.S. pages 472-474, 85 S.Ct. page 1145, touching on the outcome determinative, not being a factor, origin of federal rules of civil procedure and their effect in a case of this kind, are in order at this point:
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