Ricciuti v. Voltarc Tubes, Inc.

• Decision Date: 01 April 1960
• Docket Number: Docket 25873.,No. 184,184
• Citation: 277 F.2d 809
• Parties: Joseph J. RICCIUTI, Plaintiff-Appellant, v. VOLTARC TUBES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

277 F.2d 809 (1960)

Joseph J. RICCIUTI, Plaintiff-Appellant, v. VOLTARC TUBES, INC., Defendant-Appellee.

No. 184, Docket 25873.

United States Court of Appeals Second Circuit.

Argued February 5, 1960.

Decided April 1, 1960.

Thomas L. Mackin, Boston, Mass., Paul F. Shaughnessy, Marlborough, Mass., on the brief, for plaintiff-appellant.

Gregory C. Willis, Bridgeport, Conn., for defendant-appellee.

Before MEDINA and WATERMAN, Circuit Judges, and MADDEN, Judge, United States Court of Claims.¹

MADDEN, Judge.

The plaintiff brought this action in the United States District Court for the District of Connecticut against a manufacturer of neon tubes. These tubes were coated with material containing beryllium, and the plaintiff alleged that as a result of his use of the tubes, he contracted berylliosis, a disease of the lungs. His complaint alleged that between 1943 and 1956 he was self-employed in the sign-making business in Massachusetts, and that from 1944 to 1948, he purchased, from various sources, tubes made by the defendant, a Connecticut corporation. It also alleged that the plaintiff's disability occurring as a result of the disease in question commenced in 1953, but that his symptoms were not diagnosed as berylliosis until January 27, 1956.

This suit was brought on December 2, 1957. Jurisdiction in the District Court was based on diversity of citizenship. 28 U.S.C. (1952 ed.) § 1332. On December 27, 1957, the defendant filed a general denial. Depositions were taken and interrogatories filed. On January 12, 1959, the defendant moved for summary judgment. That motion was denied on March 11, 1959. On February 18, 1959, the defendant moved for permission to file a special defense setting up the statute of limitations. That motion was granted, over the plaintiff's objection, on March 2, 1959. Thereupon, on March 30, 1959, the defendant again moved for summary judgment, based on the statute of limitations. This motion was granted on June 4, 1959, and this appeal from the order granting summary judgment to the defendant was filed on June 30, 1959.

Since the action was brought in the District Court in Connecticut, the court applied the statutes of limitations which would have been applied by the Connecticut state courts, Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1021, 85 L.Ed. 1477; Walton v. Arabian American Oil Co., 2 Cir., 1956, 233 F.2d 541, certiorari denied, 1956, 352 U.S. 872, 77 S.Ct. 97, 1 L.Ed. 2d 77; State of Maryland ex rel. Thompson v. Eis Automotive Corp., D.C.Conn. 1956, 145 F.Supp. 444, i. e., those of Connecticut, Thomas Iron Co. v. Ensign-Bickford Co., 1945, 131 Conn. 665, 42 A.2d 145. Connecticut has three statutes of limitations which might arguably be applied in this case. Conn.Gen.Stat. § 52-584 (Rev. ed. 1958), covering actions for personal injuries caused by negligence, provides that such actions shall be barred after

"one year from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, * * * except that no such action may be brought more than three years from the date of the act or omission complained of * * *"

Conn.Gen.Stat. § 52-577 (Rev. ed. 1958) requires an action founded on a tort to be brought "within three years from the date of the act or omission complained of." Conn.Gen.Stat. § 52-576 provides a six-year period of limitations for actions based on implied contracts.

The district judge found that the action would have been barred under any of these statutes, so he did not decide which one of them was applicable to this case.

It is clear that the six-year statute, applicable to actions on implied contracts, would bar this action, which was not brought until more than eight years after the last sale of one of the defendant's products was made to the plaintiff.

The action would also be barred if the one-year negligence statute were to be applied, since it was brought more than one year after the plaintiff had received the diagnosis of his disease.

It is not clear, however, that under Connecticut law this action would be barred under the three-year statute applicable to actions on torts generally. The statute says:

"No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." Conn. Gen.Stat. § 52-577 (Rev. ed. 1958) Emphasis supplied.

The Connecticut Supreme Court has interpreted the language "the date of the act or omission complained of," as used in the one-year negligence statute, to mean the time of injury resulting from an inherently defective product. Handler v. Remington Arms Co., 1957, 144 Conn. 316, 130 A.2d 793. In that case the defendant was the manufacturer of a defective cartridge, the explosion of which resulted in the plaintiff's injuries. The sale of the cartridge to the plaintiff had taken place more than one year prior to the commencement of the action, but the injury had occurred less than one year prior thereto. The court said that the sale was not the only act or omission complained of, but that the complaint alleged that the defendant, knowing a defective cartridge to be a source of unreasonable risk of injury, permitted it to be available for use without indicating by label or otherwise the possible danger.² The court said this "was a claim of conduct continuing to the time of injury. When the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed." 130 A.2d at page 795. The reasoning of this case would seem to vitiate the force of cases like Kennedy v. Johns-Manville Sales Corp., 1948, 135 Conn. 176, 62 A.2d 771;³ Tralli v. Triple X Stores, Inc., 1954, 19 Conn.Sup. 293, 112 A.2d 507, and Maynard v. New Haven Gas Company, 1955, 20 Conn.Sup. 31, 120 A.2d 156. See Rogers v. White Metal Rolling & Stamping Corp., 2 Cir., 1957, 249 F.2d 262.

Although the Connecticut court in the Handler case was concerned with the predecessor of the one-year negligence statute, the relevant statutory language was exactly the same as that of the three-year tort statute, which we are here considering, and we can think of no reason why the same language should be interpreted differently.

The District Court took this view of the three-year statute, but concluded that the injury could not have occurred after 1953 (four years before the action was brought). This conclusion appears to have been based on the plaintiff's allegation in his complaint that "the plaintiff since the year 1953 has been disabled from pursuing his usual occupation and has suffered a substantial loss of earnings and a substantial impairment of his earning capacity." In considering the defendant's motion for summary judgment, it was necessary to view the allegations in a light most favorable to the plaintiff. The plaintiff alleged that he was self-employed and engaged in the business of fabricating and selling neon signs until 1956. In the deposition of the plaintiff, as taken by the defendant, the plaintiff stated that he had ceased working as a glass blower in May, 1955. These allegations, together with the fact that the plaintiff's statement that he was "disabled from pursuing his usual occupation" in 1953 does not necessarily mean that he completely stopped his glassblowing activities in that year, lead us to the conclusion that it cannot be said at this point in the proceedings that the plaintiff's injury did not occur less than three years before the commencement of his action. However, it must be noted that the plaintiff's disease was not diagnosed until January 27, 1956. The plaintiff urges that the "time of injury" should be interpreted to refer to that date, which is the time "when the accumulated effects of the deleterious substance manifest themselves." Urie v. Thompson, 1949, 337 U.S. 163, 170, 69 S.Ct. 1018, 1025, 93 L.Ed. 1282.

With respect to the time of injury in a case like this, we have not found, nor has there been cited to us, any Connecticut case which deals directly with the question.⁴

Where a Federal court must apply the law of a state, and there is no direct authority from the courts of that state as to how they would decide the particular point of law at issue, the Federal court must make its own determination as to what the state courts would probably do. King v. Order of United Commercial Travelers, 1948, 333 U.S. 153, 161, 68 S.Ct. 488, 92 L.Ed. 608; Capitol Records v. Mercury Records Corp., 2 Cir., 1955, 221 F.2d 657, 662; Davis v. Smith, 3 Cir., 1958, 253 F.2d 286, 289; Rayonier, Inc. v. Bryan, 5 Cir., 1957, 249 F.2d 405, 408; Hadden v. United States, 1955, 130 F.Supp. 610, 619, 131 Ct.Cl. 326, 340. In making its determination, the Federal court is justified in examining decisions in other jurisdictions. Herrick v. Sayler, 7 Cir., 1957, 245 F.2d 171, 174.

The rule that the time of injury, or the time when the claim accrues, means the time when a disease is diagnosed has been adopted by the Supreme Court of the United States for the purpose of the statute of limitations of the Federal Employers' Liability Act, 45 U.S.C.A. § 56, Urie v. Thompson, supra, and has been applied by other Federal courts and the courts of other states. See Sylvania Electric Products v. Barker, 1 Cir., 1955, 228 F.2d 842, 847-848, certiorari denied, 1956, 350 U.S. 988, 76 S.Ct. 475, 100 L.Ed. 854; Stafford v. Shultz, 1954, 42 Cal.2d 767, 270 P.2d 1. Stafford was an action against a physician for alleged negligent treatment of a wounded leg. The court said:

"* * * the statute of limitations does not commence to run until the plaintiff discovered his injury, or through the use of reasonable diligence, should have discovered it * * *" (270 P.2d at page 7).

Cf. Huysman v. Kirsch, 1936, 6 Cal.2d 302, 57 P.2d 908, 913, and Marsh v. Industrial Accident Commission, 1933, 217 Cal. 338, 18 P.2d 933, 86 A.L.R. 563 which discusses many Connecticut workmen's...