Quinette v. Pullman Co.

• Decision Date: 05 January 1916
• Docket Number: 4235.
• Citation: 229 F. 333
• Parties: QUINETTE v. PULLMAN CO. et al. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

229 F. 333

QUINETTE v. PULLMAN CO. et al. ^[1]

No. 4235.

United States Court of Appeals, Eighth Circuit.

January 5, 1916

Charles Mitschrich, of Lawton, Okl., for plaintiff in error.

R. A Kleinschmidt, of Oklahoma City, Okl. (W. F. Evans, of St Louis, Mo., and E. H. Foster, of Oklahoma City, Okl., on the brief), for defendant in error St. Louis & S.F.R. Co.

Charles H. Woods, of Oklahoma City, Okl. (J. R. Cottingham, S. T Bledsoe, and George M. Green, all of Oklahoma City, Okl., and H. T. Wilcoxon, of Chicago, Ill., on the brief), for defendant in error Pullman Co.

Before SANBORN, ADAMS, and SMITH, Circuit Judges.

SMITH Circuit Judge.

The plaintiff, Jermain P. Quinette, brought this suit on August 18, 1911, in the district court of Comanche county, Okl against the Pullman Company, to recover for personal injuries sustained October 21, 1910. The case was removed to the United States District Court for the Western District of Oklahoma. There plaintiff filed an amended petition, and to this the Pullman Company filed answer. On January 31, 1913, the plaintiff filed an application to make the St. Louis & San Francisco Railroad Company, hereafter called the Frisco, a party defendant, and, leave having been granted, filed a second amended petition against the Pullman Company, an Illinois corporation, and the Frisco Company, a Missouri corporation, for $50,000 for personal injuries. The Frisco operated through vestibuled trains from St. Louis, Mo., to Lawton, Okl., through Ft. Sill, Okl. The plaintiff lived at the Ft. Sill military reservation. He left St. Louis, Mo., on October 20, 1910, for his home. He traveled on the line of the Frisco, but rode in a car of the Pullman Company. He claims that before they reached the Ft. Sill station he asked the conductor of the railroad train if it would stop at the water tank near the Ft. Sill station, and if he could there get off, as that was nearer his home than the station, and that he was told the train would stop there, and that he could get off there if he desired to do so. He communicated this to the Pullman porter before they reached the water tank, which was about 10 o'clock at night, on the 21st of October, 1910. As they approached the water tank stop the porter took his hand baggage and went to the forward end of the Pullman, and the plaintiff followed him out into the vestibule. As the train stopped the porter said, 'Here you are, boss,' and he stepped out and fell some 20-odd feet from a bridge to the bed of a stream and sustained serious injuries. The Pullman Company denies, and supports its denial by evidence, many of the latter claimed facts. It is conceded that the general statute of limitations of Oklahoma in such cases is two years, and this suit was brought against the Frisco Company about two years and four months after the accident.

Section 5553 of Snyder's Compiled Laws of Oklahoma of 1909 is as follows:

'Sec. 5553. Absence-- Limitations.-- If, when a cause of action accrues against a person, he be out of the state, or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state, or while he is so absconded or concealed; and if, after the cause of action accrues, he depart from the state, or abscond, or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought.'

It is provided in the Constitution of Oklahoma (article 9, Sec. 43) that:

'No corporation, foreign or domestic, shall be permitted to do business in this state without first filing in the office of the Corporation Commission a list of its stockholders, officers, and directors, with the residence and post office address of, and the amount of stock held by each. And every foreign corporation shall, before being licensed to do business in this state, designate an agent residing in the state; and service of summons or legal notice may be had on such designated agent and such other agents as now are or may hereafter be provided for by law. Suit may be maintained against a foreign corporation in the county where an agent of such corporation may be found, or in the county of the residence of plaintiff, or in the county where the cause of action may arise.'

Section 5605 of the Compiled Laws of Oklahoma of 1909 provides:

'Every railroad company or corporation, and every stage company doing business in Oklahoma, or having agents doing business therein for such corporation or company, is hereby required to designate some person residing in each county, into which its railroad line or stage route may or does run, or in which its business is transacted, on whom all process and notices issued by any court of record or justices of the peace of such county may be served.'

Section 5606 of the same statutes provides:

'In every case such railroad company or corporation, and stage company, shall file a certificate of the appointment and designation of such person, in the office of the clerk of the district court of the county in which such person resides; and the service of any process upon the person so designated, in any civil action, shall be deemed and held to be as effectual and complete as if service of such process were made upon the president, or other chief officer of such corporation.'

The Frisco Company filed an answer setting up the statute of limitations, but not alleging a compliance with these constitutional and statutory provisions, and the plaintiff demurred and replied to such answer; but the court overruled this demurrer, and on October 10, 1913, the court sustained a motion for judgment for the Frisco Company upon the pleadings. The case was tried to a jury on the issue between the plaintiff and the Pullman Company, and resulted in a verdict for the defendant, upon which judgment was rendered. The plaintiff sued out a writ of error as against both defendants.

The first question in the case normally is as to the statute of limitations. In Hale v. Same Defendant (the Frisco) 39 Okl. 192, 134 P. 949, 49 L.R.A. 1915C, 544, Ann. Cas. 1915D, 907, on January 21, 1913, and of course before any of the questions in this case had been submitted or ruled on, the Supreme Court of Oklahoma decided that the Frisco was not entitled to plead the statute of limitations in question. This decision seems to be doubted, because it was prepared by the Judges of the Supreme Court Commission, Division No. 2; but at the close of the opinion is the announcement: 'Per Curiam. Adopted in whole.' It is evidently as much the opinion of the Supreme Court of Oklahoma as any other. A petition for a rehearing was overruled in that case on September 2, 1913.

It is elementary that the federal courts ordinarily are bound by the decisions of the Supreme Court of a state as to the interpretation and construction of a state statute. The cases in general upon this question are too numerous to cite, but reference is made to all the authorities cited in the Encyclopedia of the U.S. reports, vol. 4, page 1066 et seq., and volume 12, page 424, but reference will be had to some of the cases arising under the statute of limitations:

'Sec. 721. The laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply. ' Revised Statutes of the United States.

In Bauserman v. Blunt, 147 U.S. 647, 652, 13 Sup.Ct. 466, 468 (37 L.Ed. 316), it is said:

'No laws of the several states have been more steadfastly or more often recognized by this court, from the beginning, as rules of decision in the courts of the United States, than statutes of limitations of actions, real and personal, as enacted by the Legislature of a state, and as construed by its highest court. Higginson v. Mein, 4 Cranch, 415, 419, 420 (2 L.Ed. 664); Shelby v. Guy, 11 Wheat. 361, 367 (6 L.Ed. 495); Bell v. Morrison, 1 Pet. 351, 360 (7 L.Ed. 174); Henderson v. Griffin, 5 Pet. 151, 8 L.Ed. 79; Green v. Neal, 6 Pet. 291, 297-300 (8 L.Ed. 402); McElmoyle v. Cohen, 13 Pet. 312, 327 (10 L.Ed. 177); Harpending v. Dutch Church, 16 Pet. 455, 493 (10 L.Ed. 1029); Leffingwell v. Warren, 2 Black, 599 (17 L.Ed. 261); Sohn v. Waterson, 17 Wall. 596, 600 (21 L.Ed. 737); Tioga Railroad v. Blossburg & Corning Railroad, 20 Wall. 137 (22 L.Ed. 331); Kibbe v. Ditto, 93 U.S. 674 (23 L.Ed. 1005); Davie v. Briggs, 97 U.S. 628, 637 (24 L.Ed. 1086); Amy v. Dubuque, 98 U.S. 470 (25 L.Ed. 228); Mills v. Scott, 99 U.S. 25, 28 (25 L.Ed. 294); Moores v. National Bank, 104 U.S. 625 (26 L.Ed. 870); Michigan Insurance Bank v. Eldred, 130 U.S. 693, 696 (9 Sup.Ct. 690, 32 L.Ed. 1080); Penfield v. Chesapeake, etc., Railroad, 134 U.S. 351 (10 Sup.Ct. 566, 33 L.Ed. 940); Barney v. Oelrichs, 138 U.S. 529 (11 Sup.Ct. 414, 34 L.Ed. 1037).'

In Metcalf v. Watertown, 153 U.S. 671, 673, 14 Sup.Ct. 947, 948 (38 L.Ed. 861), it is said:

'And from the beginning this court has recognized statutes of limitations of actions, real and personal, as enacted by the Legislature of a state, and as construed by its highest court, as rules of decision in the courts of the United States.'

In Patton v. Easton, 1 Wheat. 476, 482, 4 L.Ed. 139 and again in Powell v. Harman, 2 Pet. 241, 7 L.Ed. 411, the Supreme Court construed a Tennessee statute of limitations of real actions in accordance with the decisions of the Supreme Court of that state; yet in Green v. Neal, 6 Pet. 291, 8 L.Ed. 402, a judgment of the Circuit Court of the United States which had followed those cases was reversed because of a more recent decision of the state Supreme Court establishing...