Theroux v. Northern Pac. R. Co., 472.

• Citation: 64 F. 84
• Decision Date: 22 October 1894
• Docket Number: 472.
• Parties: THEROUX v. NORTHERN PAC. R. CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

64 F. 84

THEROUX v. NORTHERN PAC. R. CO. et al.

No. 472.

United States Court of Appeals, Eighth Circuit.

October 22, 1894

C. B Smith (C. L. Smith was with him on brief), for plaintiff in error.

J. H Mitchell, Jr., (Tilden R. Selmes was with him on brief), for defendants in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

In this case the record discloses that Josephine Theroux, as administratrix of the estate of James Theroux, deceased brought an action against the Northern Pacific Railroad Company, and Thomas F. Oakes, Henry C. Rouse, and Henry C Payne, as receivers of that company, to recover damages for the death of her husband and intestate, who was killed in the state of Montana on the 20th day of October, 1890, while in the service of the Northern Pacific Railroad Company as a locomotive engineer. The complaint showed, by proper averments, that the death of the deceased was occasioned by the wrongful act, neglect, and default of the Northern Pacific Railroad Company, and the suit was founded on the provisions of the damage act of the state of Montana which was in force on October 20, 1890. Comp. St. Mont. 1887, Secs. 981, 982. The action was commenced on October 10, 1893,-- more than two years, and less than three years, after the death occurred,-- in the district court of Hennepin county, Minn., from whence it was removed to the circuit court of the United States for the district of Minnesota. An answer was filed by the defendant company which admitted that James Theroux, the plaintiff's intestate, was killed on or about October 20, 1890, in the state of Montana, while in the employ of the Northern Pacific Railroad Company, but it denied generally all other allegations. Subsequently, while the answer remained on file, a motion was made orally, by the defendant company, for judgment in its favor on the pleadings. This motion was sustained by the court, and a final judgment was entered in favor of the defendant company. The record does not show upon what ground this motion was predicated, and but for the statements of counsel and the assignment of errors we would be unable to tell, except by surmise, why a judgment was rendered in favor of the defendant, without trial, when a well-defined issue of fact requiring a jury trial was presented by the pleadings. We are advised, however, that it was contended on the hearing of the motion that the complaint showed that the cause of action therein stated was barred by limitation because the Minnesota damage act required a suit like the one at bar to be commenced 'within two years after the act or omission by which the death was caused. ' Gen. St. Minn. c. 77, Sec. 2. This view, as we are advised, prevailed in the circuit court, and the action was dismissed, although the Montana statute on which the suit was founded (sections 981 and 982, supra) allows three years after death occurs within which to commence such an action, and although the suit had been brought within that period. The principal question that we have to determine is whether this ruling can be sustained.

It was held in Boyd v. Clark, 8 Fed. 849, which is a leading case on the subject, that when a statute of a state or country gives a right of action unknown to the common law and, in conferring the right, limits the time within which action may be brought, such limitation is operative in any jurisdiction where it is sought to enforce such cause of action. The same doctrine was recognized and approved in the following cases: The harrisburg, 119 U.S. 199, 214, 7 Sup.Ct. 140; Munos v. Southern Pac. Co., 2 U.S.App. 222, 2 C.C.A. 163, 51 F. 188; Eastwood v. Kennedy, 44 Md. 563; Railway Co. v. Hine, 25 Ohio St. 629; and O'Shields v. Railway Co., 83 Ga. 621, 10 S.E. 268. Indeed, it may be said that cases of the kind last referred to form a well-established exception to the general doctrine that the lex fori governs in determining whether a cause of action is barred by limitation. An attempt is made to distinguish the case at bar from Boyd v. Clark, supra, and to exempt it from the operation of the rule declared in that case, on the ground that in that case an effort was made to enforce a statutory cause of action in a foreign jurisdiction after it had ceased to be enforceable in the country by whose laws the right of action was given, whereas in the case at bar the effort is simply to bar a statutory cause of action, when sued upon in a foreign state, by applying thereto the local limitation law which is applicable to similar causes of action when they originate within the state. We recognize the obvious difference between the two cases, but we think that it will not suffice to withdraw the case in hand from the operation of the rule enunciated in Boyd v. Clark and in the other cases heretofore cited. It was said, in substance, by Mr. Chief Justice Waite, in The Harrisburg, supra, that when a statute creates a new legal liability with the right to sue for its enforcement within a given period, and not afterwards, the time within which suit must be brought operates as a limitation of the liability, and not merely as a limitation of the remedy. The same thought was expressed by the supreme court of Ohio in Railway Co. v. Hine, supra, and by the supreme court of Maryland in Eastwood v. Kennedy, supra. In the Ohio case it was said that a proviso contained in a statute creating a new cause of action, which limits the right to sue to two years, is a condition qualifying the right of action, and not a mere limitation of the remedy. It must be accepted, therefore, as the established doctrine, that where a statute confers a new right, which by the terms of the act is enforceable by suit only within a given period, the period allowed for its enforcement is a...