Page v. Cameron Iron Works

• Decision Date: 30 September 1957
• Docket Number: No. 10455.,10455.
• Citation: 155 F. Supp. 283
• Parties: Frank H. PAGE, Plaintiff, v. CAMERON IRON WORKS, Inc., Defendant.
• Court: U.S. District Court — Southern District of Texas

155 F. Supp. 283

Frank H. PAGE, Plaintiff, v. CAMERON IRON WORKS, Inc., Defendant.

No. 10455.

United States District Court S. D. Texas, Houston Division.

September 30, 1957.

Albert L. Weintraub, Miami, Fla., and Patterson & McDaniel, Houston, Tex. (Louis M. Moore, Houston, Tex.), for plaintiff.

Butler, Binion, Rice & Cook, Houston, Tex. (Frank J. Knapp and Charles C. Crenshaw, Jr., Houston, Tex.), for defendant.

INGRAHAM, District Judge.

In this diversity action filed on December 28, 1956, plaintiff, of Florida, seeks recovery of damages from defendant, a Texas corporation, for personal injuries received in an airplane crash occurring on December 5, 1955, in Louisiana. Plaintiff's allegations in substance are that the airplane, a Camair 480, manufactured by defendant in this district, was purchased under a conditional sales contract from defendant by Blue Star Motors Corporation, a New York corporation, on or about October 22, 1955. At the time of the sale the airplane was licensed by the Civil Aeronautics Administration. Forty-three days later, and after the airplane had been flown for approximately eighty hours, the plane while in flight with plaintiff Page, an employee of Blue Star Aviation Corporation, a Florida corporation, as pilot, crashed to earth, seriously injuring plaintiff. In support of his claim plaintiff alleged in substance in Count No. I of his amended complaint based on negligence, that the defendant was negligent in the designing, selection of material, construction, assembly, workmanship, inspection, and testing of the airplane and its component parts, which negligence resulted in certain defective parts which failed while the airplane was in flight. In Count No. II of his amended complaint based on alleged breach of implied contractual warranty, that defendant warranted that said aircraft was reasonably fit for the purpose of flight and further represented and warranted that the said aircraft was properly made of good materials, well constructed and of the best manufacture. Plaintiff further alleges in detail that while he, a professional pilot, was operating the aircraft in the air certain mechanical failures occurred in component parts of each engine due to defects therein resulting from negligence of defendant in the design, materials used, workmanship, assembly, inspection, and testing thereof. That these defects were not known to plaintiff, were hidden and could not be observed, but were known to defendant, or should have been known. That the aircraft was approximately eighty flying hours old. That it had not received its 100 hour check, and the parts which were defective had not been examined or checked, as they were parts that would ordinarily last the life of the aircraft. That the pin in the carburetor alternator valve door cannot be observed on the outside, and the propeller pitch control cable housing could only be checked with a wrench and as the 100 hour inspection period had not arrived, there was no occasion to check it, and it could not be observed by merely looking at it.

Defendant moved on three grounds to dismiss plaintiff's amended complaint for insufficiency of same to state a claim against it upon which relief could properly be granted. This motion should be sustained as to the first and third grounds thereof as hereinafter discussed. In view of the disposition to be made of the motion as to the first ground, the second ground thereof becomes immaterial and need not be here considered.

Defendant also filed two other alternative motions which become immaterial by reason of the disposition to be made of its Motion to Dismiss, and are therefore not here discussed.

This being a diversity case we look to Texas law to determine the substantive rights and obligations of the parties, including the Texas conflict of law rules since the operative facts occurred in Louisiana. Under Texas law, the law of the place where the injury was sustained, the lex loci delicti, determines whether a right of action exists. DeHam v. Mexican Nat. Ry. Co., 86 Tex. 68, 23 S.W. 381; El Paso & N. W. Ry. Co. v. McComas, 36 Tex.Civ.App. 170, 81 S.W. 760; err. ref. 98 Tex. 615; Lykes Bros. S. S. Co., Inc., v. Esteves, 5 Cir., 1937, 89 F.2d 528; Slater v. Mexican Nat. R. Co., 194 U.S. 120, 126, 24 S.Ct. 581, 48 L.Ed. 900; Goodrich Conflict of Laws, 3rd Ed., 1949, p. 260, Sec. 92. The injury for which the plaintiff here sues having occurred in Louisiana, the law of Louisiana creating his right to sue for the alleged tort, the liability of the defendant therefor, and the defenses it may plead to plaintiff's suit, is the law to be applied by this court in determining the respective rights of the parties.

The first ground of defendant's Motion to Dismiss is that plaintiff's alleged cause of action in tort having accrued on December 5, 1955, when the plane he was piloting crashed in Louisiana, such cause of action was extinguished, under the provisions of the Louisiana law governing tort actions, within one year from such date; and plaintiff having failed to file his suit until more than one year later, his complaint fails to state a claim against defendant upon which relief can be granted. The motion to dismiss should be sustained on this ground. The clerk's file mark on the plaintiff's original complaint shows the suit to have been instituted in this court on December 28, 1956, more than one year after the date of plaintiff's accident and injury.

Article 2315, LSA-Civil Code of the State of Louisiana Revision of 1870, as amended, provides in part:

"Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it;"

Article 3536, of the same Code, provides as follows:

"The following actions are also prescribed by one year: That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses. * * *"

Article 3537, of the same Code, provides as follows:

"The prescription mentioned in the preceding articles runs: * * And in other cases from that on which the injurious words, disturbance or damage was sustained. * * *"

Article 3541, of the same Code, provides as follows:

"The prescription mentioned in the preceding article, and those provided in paragraphs I and II of Section Three (3) of Chapter Three (3) of this title, and those of thirty years, shall run against married women, minors and interdicted persons reserving however, to minors and interdicted persons recourse against their tutors or curators. This prescription shall also run against persons residing out of the State."

Articles 3536 and 3537 are to be found in Chapter Three (3), Section Three (3), Paragraph I, of the cited Code, and are thus within the provisions of Article 3541.

Article 2315, supra, is to be read together with Articles 3536, 3537 and 3541. Bourgeois v. Indemnity Ins. Co. of North America, La.App.1952, 60 So.2d 718; Young v. McCullium, La. App., 74 So.2d 339.

That the above cited statutes are applicable to actions ex delicto has been clearly established by the Supreme Court of Louisiana. Reeves v. Globe Indemnity Co. of New York, 1936, 185 La. 42, 168 So. 448; Sims v. New Orleans Ry. & Light Co., 1914, 134 La. 897, 64 So. 823.

Plaintiff contends that Article 3536, supra, is merely a statute of limitation barring the remedy, and therefore procedural, and that the law of the forum should be applied. With this contention the court cannot agree, nor do the authorities cited by plaintiff in support of such contention appear to be applicable.

It is a well established principle in conflict of laws that an exception to the rule as to the application of the lex fori exists where a liability is sought to be enforced under a statute which prescribes the time within which suit may be brought and which in effect provides that the cause of action or right of recovery shall be extinguished after such time. Goodrich on Conflict of Laws (3rd Ed.), page 242, Sec. 86; American Law Institute's Restatement on The Conflict of Laws, p. 720, Sec. 604; Id. p. 722, Sec. 605; 28 Tex.Jur., p. 92, Sec. 17; 53 C.J.S. Limitations of Actions § 30, pp. 975-976; Ross v. Kansas City S. R. Co., 1904, 34 Tex.Civ.App. 586, 79 S.W. 626; Wood on Lim., Sec. 9, page 30; Finnell v. Southern Kan. Ry. Co., C.C., 33 F. 427; Brunswick Terminal Co. v. National Bank of Baltimore, 4 Cir., 99 F. 635, 40 C.C.A. 22, 48 L.R.A. 625; Flash v. Connecticut, 109 U.S. 371, 3 S.Ct. 263, 27 L.Ed. 966; The Harrisburg, 119 U.S. 199, 7 S.Ct. 140; 30 L.Ed. 358; Fourth National Bank of City of New York v. Francklyn, 120 U.S. 747, 7 S.Ct. 757, 30 L.Ed. 825. Whether the foreign statute extinguishes the right of action or merely affects the remedy has been held a question of construction governed by the adjudicated cases in that foreign jurisdiction. 53 C.J.S. Limitations of Actions § 30, pp. 975-976; Keys v. Pullman Company, D.C., 87 F. Supp. 763. Louisiana follows the civil rather than the common law, and according to its law, statutes of prescription extinguish the right rather than merely bar the remedy which is the common law rule. DeBouchel v. Koss Const. Co., Inc., 1934, 180 La. 615, 157 So. 270; Guillory v. Avoyelles Ry. Co., 104 La. 11, 28 So. 899. Such construction has been recognized and adhered to by a Texas Court of Civil Appeals, in Ross v. Kansas City S. R. Co., 1904, 34 Tex.Civ.App. 586, 79 S.W. 626, and by the United States District Court, Southern District of New York, in the case of Badhwar v. Colorado Fuel and Iron Corporation, 1955, 138 F.Supp. 595. Both of these cases involved suits for damages based upon negligence occurring in the State of Louisiana, and both suits were brought in other...