Ockerman v. Wise

• Decision Date: 19 November 1954
• Citation: 274 S.W.2d 385
• Parties: Foster OCKERMAN, Ancillary Administrator of the Estate of Leander Siebenhar, Deceased, Appellant, v. Grover N. WISE, Trading and Doing Business as Wise Transfer Line, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 385

274 S.W.2d 385

Foster OCKERMAN, Ancillary Administrator of the Estate of Leander Siebenhar, Deceased, Appellant, v. Grover N. WISE, Trading and Doing Business as Wise Transfer

Line, Appellee.

Court of Appeals of Kentucky.

Nov. 19, 1954.

Rehearing Denied Jan. 28, 1955.

Yancey, Martin & Ockerman, Lexington, Coleman Kiss, Cleveland, Ohio, or appellant.

Woodward, Hobson & Fulton, Louisville, for appellee.

MILLIKEN, Justice.

The decision in this case turns on whether the one year statute of limitations (KRS 413.120) governing actions for wrongful death, Irwin v. Smith, 150 Ky. 147, 150 S.W. 22, has been tolled within the meaning of KRS 413.270, which provides:

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

On February 12, 1951, Leander Siebenhar, a resident of Ohio, was killed in an accident in Kentucky. His Ohio administrator brought suit in the District Court of the United States for the Western District of Kentucky against Grover N. Wise, seeking to recover damages for his death, and this suit was dismissed on July 12, 1951, on the ground that the Ohio administrator could not maintain the suit in Kentucky. 16 F.R.D. 479. On January 20, 1952, appellant herein, as ancillary administrator, instituted an action in the District Court of the United States for the Eastern District of Kentucky, seeking to recover for Siebenhar's death, and that suit was dismissed on April 28, 1952, because that court had no jurisdiction, since both plaintiff and defendant were residents of Kentucky and, as a result, there was not the requisite diversity of citizenship for Federal jurisdiction. An appeal from this judgment was taken to the United States Court of Appeals, and the judgment was affirmed on February 16, 1953. 6 Cir., 202 F.2d 144. Then, on May 4, 1953, this action was instituted by appellant in the Oldham Circuit Court, again seeking to recover damages for the death of his decedent. The Oldham Circuit Court dismissed the suit on appellee's plea of limitation because the suit in the Circuit Court was instituted more than three months after judgment was rendered in the United States District Court for the Eastern District of Kentucky, and more than a year after the death.

It will be noted that the quoted statute says 'any court of this state', and the question naturally arises whether a Federal court located in Kentucky is a 'court of this state' within the meaning of the statute. We have not ruled on this question directly. In Vassill's Adm'r v. Scarsella, 292 Ky. 153, 166 S.W.2d 64, it was held that a suit filed in a Federal court in Kentucky by a foreign administrator, who had not qualified under Kentucky law, did not operate to toll the statute of limitations because it was not brought by a qualified party. The legal effect of that decision on the case at bar is to eliminate the suit filed in the United States District Court for the Western District of Kentucky from our consideration in construing the quoted statute, because it too was not filed by a qualified party. Consequently, we are not confronted with invoking the statute more than once in the same litigation, a practice condemned in Fielder v. Hansbrough, 195 Ky. 574, 242 S.W. 832. Although there is authority to the contrary, the general rule is that a dismissal in a Federal court is not a bar to a new action in a state court, and that the proceeding is a state court, and clause of a state stature. 34 Am.Jur., Limitations of Actions, Section 283, page 230; Adcox v. Southern Ry. Co., 182 Tenn. 6, 184 S.W.2d 37, 156 A.L.R. 1097. Our statute was construed by the United States Circuit Court of Appeals, Sixth Circuit, in Merko v. Sturm & Dillard Co., 233 F. 68, 70, in conformity to the general rule, and a Federal court was held to be a 'court of this state' within the meaning of the statute, the court saying:

'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 similar conditions that might arise within the state, such as the commencement of cases and their failure for like reasons in a federal court under federal procedure within the state. * * * The very idea of enacting the extension statute was to enlarge the time within which wrongs might be redreased, and so to prevent cases from failing otherwise than upon their...