Snyder v. Wylie

• Decision Date: 29 March 1965
• Docket Number: Civ. No. 1948.
• Citation: 239 F. Supp. 999
• Court: U.S. District Court — Western District of North Carolina
• Parties: Donald C. SNYDER, Plaintiff, v. James B. WYLIE, Defendant.

239 F. Supp. 999

Donald C. SNYDER, Plaintiff, v. James B. WYLIE, Defendant.

Civ. No. 1948.

United States District Court W. D. North Carolina, Charlotte Division.

March 29, 1965.

Ernest S. DeLaney, Jr., Charlotte, N. C., for plaintiff.

William T. Covington, Jr., Charlotte, N. C., for defendant.

CRAVEN, Chief Judge:

Choice of law — whether to apply the statute of limitations of Virginia or North Carolina — is the problem presented for decision in this personal injury case arising out of an automobile collision in Virginia. Plaintiff Snyder has been at all times a resident of Ohio. Defendant Wylie has been at all times a resident of North Carolina.

Jurisdiction exists only by reason of diversity of citizenship. If the action cannot be maintained in the Superior Court of North Carolina, it ought not to be allowed to be maintained here. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945).

Snyder commenced his action in this court more than two years after it arose, but within three years. It is barred if the two year Virginia statute of limitations¹ applies, and is permitted to be maintained if the three year North Carolina statute² applies.

If it were a new question, both logic and common sense would seem to indicate the application of lex loci, i. e., Virginia law. Prescription statutes prescribe no procedure. Mr. Justice Barnhill, concurring in Merchants & Planters National Bank v. Appleyard, 238 N.C. 145, 77 S.E.2d 783 (1953), pointed out that statutes of limitation when pleaded become conditions precedent to the maintenance of the action and cut off the right. Traditionally, the right to recover, if any, is determined by the law of the state wherein the cause of action arose. 16 Am.Jur.2d "Conflicts of Laws" Section 71. But, as Mr. Justice Barnhill said, "The judicial mind sometimes becomes closed. Apparently on this question it has become closed, clamped down, and padlocked." Merchants & Planters National Bank v. Appleyard, 77 S.E.2d at 794. According to the weight of authority, and according to a majority of the members of the Supreme Court of North Carolina in the Appleyard case, the prescription statute of the forum is applicable on the theory that it is adjective or procedural law. 34 Am.Jur. "Limitation of Actions" Section 51; 53 C.J.S. Limitations of Actions § 27; Merchants & Planters National Bank v. Appleyard, 77 S.E.2d at 785.

Nothing else appearing, the North Carolina three year statute of limitation applies, and it is a legal irrelevancy that Snyder's claim is stale under the law of Virginia where the cause of action arose.

But defendant Wylie, moving to dismiss the Complaint, points hopefully to an enactment of the North Carolina Legislature in 1953, now codified as an amendment to Section 1-21 of the General Statutes of North Carolina. The entire statute³ is set out in the margin with the 1953 amendment being italicized. It is urged by defendant Wylie that the italicized portion is, in effect, a general "borrowing" statute and that it is of no consequence or meaning that it was enacted in form as a proviso to former N.C.G.S. § 1-21.

Except for the circumstances of its enactment, discussed herein below, and the form of a proviso to an existing statute relating to tolling or suspending our periods of prescription, there is nothing unusual about the italicized amendment. In substance, it is a "borrowing" statute and such statutes are said to exist now in "probably all jurisdictions". 34 Am.Jur. "Limitation of Actions" Section 51(6) (Supp. 1964). Although the terms of such statutes vary greatly, they all provide, in effect, that a cause of action arising in another jurisdiction and barred by lex loci delicti shall likewise be barred in the courts of the forum. Lex fori, so frequently preferred by judges, is thus displaced by the command of the legislature to look elsewhere for the prescription period. The result is to bar, in almost every jurisdiction, causes of action which are stale by the law of the state wherein they arose.

Is the italicized portion of N.C.G.S. § 1-21 a "borrowing" statute of general application, or is it what it appears to be in form, i. e., merely a proviso to the "tolling" statute? The answer is to be found in the legislative history of the enactment. Apparently this amendment was enacted ad hoc—at the invitation of the North Carolina Supreme Court—to meet a particular problem. In Merchants & Planters National Bank v. Appleyard, supra, the court was faced with the problem of permitting a suit in this State which was alive under the prescription law of the state where the cause of action arose but which was stale under the North Carolina statute of limitations. The decision was to permit the maintenance of the action. The majority achieved this result in two steps: (1) lex fori was held applicable and to bar the maintenance of the action, and (2) the tolling statute was construed to extend the North Carolina prescription period although plaintiff was a Texas bank suing a resident of Texas who had recently come to North Carolina. Mr. Justice Barnhill, concurring, reached the same result more directly: he would simply have applied the Texas prescription period rather than that of North Carolina. A major problem, unresolved by the majority opinion, and not arising on the facts of the case, was pointed out by Mr. Justice Barnhill: the majority rationale left open the possibility that such a construction of the tolling statute would permit prosecution of a claim which had been stale even ten or twenty years under the lex loci. Merchants & Planters National Bank v. Appleyard, 77 S.E.2d at 795. Mr. Justice Barnhill's concern was plainly shared by the other members of the court. The majority opinion concludes with the court noting: "that many jurisdictions * * * have adopted legislation which may prevent recovery on a cause of action arising out of the state of the forum, if such action, at the time of its institution, was barred in the jurisdiction in which it arose. Whether we should take similar action is a matter for the Legislature." Id. at 789.

At the next session of the legislature, on the recommendation of the Judicial Council of North Carolina, the door left open by the court was closed by the legislature with the enactment of the amendment to N.C.G.S. § 1-21. How tightly was it closed? Was it left ajar enough to permit prosecution of a claim stale by Virginia law so long as the claim was not stale under the pertinent North Carolina prescription statute? Or was it shut entirely so as to bar all claims stale by the law of the state wherein they arose?

These questions require examination of N.C.G.S. § 1-21 before it was amended by the so-called "borrowing" statute. It was, and still is, simply a "tolling" statute, the effect of which is simply to extend periods of prescription under certain conditions, e. g., departure from this State so as to prevent being sued here. But it is important to remember that it had been construed in the Appleyard case so as to toll or suspend the running of North Carolina periods of prescription indefinitely and in favor of non-residents as against defendants coming into this State for the first time. As feared by Mr. Justice Barnhill, such a construction would permit prosecution of claims arising in a foreign state between residents of that foreign state which had been stale for as long as twenty years by the law of that state upon the happenstance of one of the parties moving into North Carolina. Our prescription period would begin to run from the time of arrival of the non-resident in this State, and the claim could be prosecuted within the allowable North Carolina period however long it...