Sides v. Richard Machine Works, Inc.

• Decision Date: 29 January 1969
• Docket Number: No. 12508.,12508.
• Parties: Robert William SIDES, Appellant, v. RICHARD MACHINE WORKS, INC., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

406 F.2d 445 (1969)

Robert William SIDES, Appellant, v. RICHARD MACHINE WORKS, INC., Appellee.

No. 12508.

United States Court of Appeals Fourth Circuit.

Argued October 10, 1968.

Decided January 29, 1969.

Allan D. Zaleski, Norfolk, Va. (Richard J. Tavss, and Sacks, Sacks, Kendall & Tavss, Norfolk, Va., on brief) for appellant.

Vincent J. Mastracco, Jr., Norfolk, Va. (Canoles & Mastracco, Norfolk, Va., on brief) for appellee.

Emanuel Emroch and Robert G. Clark, Richmond, Va., filed a brief, as amicus curiae, in support of appellant.

Before SOBELOFF, BRYAN and BUTZNER, Circuit Judges.

ALBERT V. BRYAN, Circuit Judge:

The determinative inquiry here is at what point did the plaintiff-appellant's right of action for personal injuries accrue within the meaning of the Virginia act of limitations. As bearing here, the statute demands that every such action "shall be brought within two years next after the right to bring the same shall have accrued". Va.Code 1950, as amended § 8-24. With jurisdiction resting on diversity of citizenship, the State law is decisive, and the parties agree on the aptness of the cited section. The inception of plaintiff's cause, we think, was within the 2-year period just preceding commencement of the suit. The order on appeal is in error in dismissing it as time-barred.

On February 1, 1968 Robert William Sides sued Richard Machine Works, Inc. to recover damages for the physical hurt and disability, as well as consequent immediate and future pecuniary loss, resulting from a fall on February 2, 1966. While the plaintiff was operating a gasoline locomotive "on an overhead track" in the Dubuque, Iowa, plant of his employer, the Virginia-Carolina Chemical Corporation, the vehicle derailed and careened, thereby throwing him to the factory floor, some 25 feet below. The locomotive had been manufactured by defendant Richard Machine Works and sold by it to Virginia-Carolina on November 13, 1958. Pleading further, plaintiff declares that the producer and vendor of the vehicle intended that it be run on elevated rails — of 24-inch gauge — and otherwise used by the purchaser's employees in the manner plaintiff Sides was doing when injured. The malfunction of the locomotive is ascribed to the negligence of defendant Richard Machine Works in designing and building it.

This was the complete and unquestioned fact footing of the limitation plea. No question was raised of the plaintiff's right or standing to sue, either as affected by the receipt of workmen's statutory compensation, by want of privity between the employee Sides and the defendant producer-vendor, or otherwise. The District Judge, and not without reason, thought certain Virginia decisional precedents set the inceptive date of the 2-year limitation as the day of the sale of the locomotive by defendant to the plaintiff's employer, November 13, 1958, and not the time of the fall, February 2, 1966.

For a claim of the kind here to become actionable these factors are indispensable: (1) a legal obligation of the defendant to the claimant; (2) a commission or omission by the defendant breaching that duty; (3) negligence of the defendant occasioning the breach; and (4) harm to the claimant as a proximate conseqeunce of the breach. Only from the happening of all of these ingredients does a cause of action evolve. Until all of them have become executed actualities, no right of action for the harm is constituted. Virginia's courts have been undeviant in like pronouncement. Trimyer v. Norfolk Tallow Co. et al., 192 Va. 776, 66 S.E.2d 441, 443 (1951); Stephens v. Virginia E. & P. Co., 184 Va. 94, 34 S.E.2d 374, 377 (1945). In Trimyer it was expressed in this way:

"To constitute actionable negligence there must be a duty, a violation thereof, and a consequent injury."

Here, there was no actionable tort until Sides was hurt. Before that eventuality, of course, a duty, an act or failure to act in violation of the duty, and negligence were outstanding, but no tort was then in being; it was no more than a potentiality or threat. If harm had not ensued, there would have been no tort and nothing to sue on. A right of action cannot accrue until there is a cause of action. Sides could not sue before he was hurt, February 2, 1966. When he did sue, February 1, 1968, his action was seasonable.

This was the formula applied in Louisville & N. R. Co. v. Saltzer, 151 Va. 165, 144 S.E. 456 (1928). Harm or hurt — injury — is expounded as the essential of a tort action, and until its happening there is no cause for suit. The Court declared that this is the event which sets the limitation in motion. It elaborated:

"Where the damage * * * arises from a cause not then immediately effective, * * * the cause of action does not arise until the injury can be shown. The reason and justice of this is perfectly apparent, for a plaintiff who merely feared ultimate damage * * * under such circumstances would invite defeat if he only relied upon his fears and was unable to prove any actual damage. So the courts have formulated the general rule thus: Whenever any injury, however slight it may be, is complete at the time the act or omission is completed, the cause of action then accrues; but, whenever the act or omission is not legally injurious, there is no cause of action until such injurious consequences occur, and it accrues at the time of such consequential injury. * * *" 144 S.E. at 457, quoting Southern Ry. Co. v. Leake, 140 Va. 438, 439, 125 S.E. 314 (Accent added.)

Undoubtedly the pith of Sides' complaint was flaws in the making of the locomotive, resulting from negligence committed at that time. On this pleading, the District Judge reasoned that the defendant's tort was complete when, in 1958, the defendant delivered its product to the purchaser for its purposed use. The time limitation for suit for the defendant's faults, it seemed to the trial judge, would begin then. He concluded, on the Virginia authorities, that the eventual infliction of harm upon the buyer's employee, in February 1966, was simply a damage flowing as an aftermath of the previously consummated tort. A corollary of this view was that the date of the accident was merely the date of the discovery, not the perpetration, of the tort.

This computation of time, the appellee-defendant argues, was dictated by City of Richmond v. James, 170 Va. 553, 197 S.E. 416, 116 A.L.R. 967 (1938); Street v. Consumers Mining Corporation, 185 Va. 561, 39 S.E.2d 271, 167 A.L.R. 886 (1946); Richmond Redevelop. & H. A. v. Laburnum Const. Corp., 195 Va. 827, 80 S.E.2d 574 (1954); and Hawks v. DeHart, 206 Va. 810, 146 S.E.2d 187 (1966). No parallel of decision with those cases is justified here.

City of Richmond v. James, supra, 170 Va. 553, 197 S.E. 416, 116 A.L.R. 967, was an action for hurt to the plaintiff in the inhalation of gas fumes escaping into her residence from city mains. True, on the defense of limitations the Court observed in its opinion that the statute "begins to run at the time of the commission of a wrongful or negligent act, and not from the time of the damage or discovery of the injury". Nevertheless, the Court held that in a sequence of negligently and similarly occasioned bodily injuries, a cause of action is born...