Turnbull v. Bonkowski

• Decision Date: 18 December 1969
• Docket Number: No. 22615.,22615.
• Citation: 419 F.2d 104
• Parties: William Neil TURNBULL, Appellant, v. Josephine BONKOWSKI and Leonard King, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

419 F.2d 104 (1969)

William Neil TURNBULL, Appellant, v. Josephine BONKOWSKI and Leonard King, Appellees.

No. 22615.

United States Court of Appeals Ninth Circuit.

November 24, 1969.

Rehearing Denied December 18, 1969.

Michael A. Stepovich (argued), Fairbanks, Alaska; Vincent J. Biskupic and Frank J. Merrill, Oak Brook, Ill., for appellant.

Charles J. Clasby (argued), Fairbanks, Alaska, for appellees.

Before BARNES, ELY, and HUFSTEDLER, Circuit Judges.

ELY, Circuit Judge:

This appeal is from a summary judgment granted by the District Court upon its conclusion that the action of the appellant, plaintiff below, was barred by the statute of limitations. The jurisdiction of the District Court rested upon diversity of citizenship and the requisite amount in controversy, 28 U.S.C. § 1332, and the correctness of the challenged judgment depends upon the application of Alaska's law.

The complaint was filed in Illinois, where the plaintiff is a resident, and thereafter transferred to the District of Alaska. The date of the filing was January 25, 1966, the twenty-first anniversary of the plaintiff's birth. The complaint set forth a tort claim, alleging that on June 15, 1956, when the plaintiff was eleven years of age, the defendant-appellees tortiously conducted themselves in a manner which proximately caused personal injury to the plaintiff. Under Alaska's law, the claimant attained his majority at the age of nineteen years, and until that time, of course, the running of the controlling statute of limitations was tolled. This is specifically provided by the Alaskan Code of Civil Procedure, Alaska Stat.Ann., tit. 9, ch. 10, § 140 (Michie 1962), and the same statute adds, "But the period within which the action may be brought is not extended in any case longer than two years after the disability ceases."

The District Court held that the appellant reached the age of nineteen on January 24, 1964, the day before the nineteenth anniversary of his birth and that his action was thus filed more, by one day, than two years after the termination of his disability. All parties agree that, as to the point, the common law controls, absent its modification by Alaska.¹

Beyond doubt, the District Court's conclusion is soundly based upon the common law. See especially Nelson v. Sandkamp, 227 Minn. 177, 34 N.W.2d 640, 5 A.L.R.2d 1136 (1948); People v. Dudley, 53 Cal.App.2d 181, 127 P.2d 569 (1942). The logic of the common law rule is apparent. Since one is in existence on the day of his birth, he is, in fact, on the first anniversary of his birth, of the age of one year plus a day or some part of a day. The appellant did, then, reach the age of nineteen years on the day before the nineteenth anniversary of his birth, and he instituted his suit more than two years thereafter.

The appellant's only contention in our court, as it was in the court below, is that Alaska has modified the common law, in its application to this case, by the adoption of a statute pertaining to computation of time, Alaska Stat.Ann., tit. 1, ch. 10, § 80 (Michie 1962), which reads: "The time in which an act provided by law is required to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded." The fallacy of appellant's argument is, as we see it, that the quoted statute, even if applicable, did not come into play until the time when the appellant reached the age of nineteen. Until then, the claimant was required to do nothing to protect his right. And, by the specific statutory provision which prescribed, precisely, the period within which he was required to file his action after the termination of his disability, he had only two years after January 24, 1964, within which to do so. That two-year period expired on January 24, 1966, a day which was not a holiday. The Supreme Court of Minnesota, in Nelson v. Sandkamp, supra, analyzing a computation-of-time statute like that of Alaska, declared:

"Our computation-of-time statute, * * * is but declaratory of the general common-law rule. * * * A declaratory or expository statute is one which has been enacted in order to put an end to a doubt as to what is the common law — or the meaning of another statute — and which declares what it is and ever has been. Clearly the computation-of-time statute is expressive of only the general common-law rule and does not presume to abrogate the well-established exception thereto governing the computation of a person\'s age. * * * It follows that the statute has no application in calculating a person\'s age."

227 Minn. at 179-180, 34 N.W.2d at 642 (footnote omitted).

There is one Alaska authority which teaches that Alaska's computation-of-time statute also merely expresses the common law. In Lowe v. Hess, 10 Alaska 174 (1941), the court examined section 3275, Compiled Laws of Alaska (1933). That section contained language which is identical, for our purposes, to that now appearing in Alaska's present computation-of-time statute. The court declared that the predecessor statute merely codified the common law. Id. at 181. The fact that Alaska was a territory, rather than a state, when the holding was made should not diminish the respect which we should accord to an Alaska court's interpretation of Alaska's law in this diversity case. If the computation-of-time sta...