Viscount De Valle Da Costa v. Southern Pac. Co.

• Decision Date: 04 March 1910
• Docket Number: 840.
• Citation: 176 F. 843
• Parties: VISCOUNT DE VALLE DA COSTA v. SOUTHERN PAC. CO.
• Court: U.S. Court of Appeals — First Circuit

176 F. 843

VISCOUNT DE VALLE DA COSTA v. SOUTHERN PAC. CO.

No. 840.

United States Court of Appeals, First Circuit.

March 4, 1910

Wendell P. Murray (Charles F. Smith, on the brief), for plaintiff in error.

William D. Turner (Reginald Foster and George Hoague, on the brief) for defendant in error.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

PUTNAM Circuit Judge.

The plaintiff in error was the plaintiff in the Circuit Court and it is convenient to speak of both parties as there arranged. This is an action of tort for an injury to the intestate, who was an employe of the defendant, and who was injured aboard a steamship operated by it on a voyage from New York to Galveston, followed by continued suffering and death six days later, of which the injury was the cause. The defendant was a corporation created and existing under the laws of the state of Kentucky, so that the law by which the case is governed is the law of Kentucky, in accordance with the decision in The Hamilton, 207 U.S. 398, 28 Sup.Ct. 133 52 L.Ed. 264. The suit was commenced in the superior court of the state of Massachusetts by a writ which issued on the 21st day of November, 1906, subsequently removed to the Circuit Court of the United States for the District of Massachusetts. The Hamilton was decided after this suit was brought, namely on December 23, 1907. There had, of course, been previous decisions looking in the same direction, but The Hamilton was the first that authoritatively determined, so far as the purposes of this suit are concerned, that the international rule with reference to the domicile of a vessel while on the high seas applies as between the various states of the Union. There were numerous subordinate rulings in the Circuit Court growing out of the changing aspects of the case, which will in part appear from what we may further say, as to which rulings we find no error.

The case before us turns on the application of the rule with regard to the provision for limitation found in a statute conferring a right of action, in connection with an amendment, as applied in Union Pacific Railway Company v. Wyler, 158 U.S. 285, 15 Sup.Ct. 877, 39 L.Ed. 983, followed by us in April, 1901, in Boston & M.R.R. v. Hurd, 108 F. 116, 47 C.C.A. 615, 56 L.R.A. 193. The litigation in Union Pacific Railway Company v. Wyler arose in Missouri. The declaration there as originally drawn was strictly at common law. It was amended by substituting a cause of action arising under the statutes of Kansas. The consequent decision was that the introduction of such an amendment was the substitution of a new cause of action to such an extent, and of such a character, that the period of limitation was counted from the day of the amendment rather than from the day of commencing the suit. The case at bar, according to one proposition of the defendant, was at most a substitution of a cause of action arising under the statutes of Kentucky for a cause of action arising under the statutes of Massachusetts, or some other state than Kentucky; so that the plaintiff's case is not literally governed by Union Pacific Railway Company v. Wyler, where the substitution was that of a statutory cause of action for one arising at common law. Again, the plaintiff claims that the litigation in Union Pacific Railway Company v. Wyler arose in Missouri, while in the present case the litigation was initiated in Massachusetts, and that, although in the jurisdiction of the state of Missouri the amendment would be held to be one of an entirely new cause of action, it is otherwise in Massachusetts.

If this proposition were correct, it might well be that the federal courts would be governed by the local practice, and that the question made here would not arise. In Boston & M.R.R. v. Hurd the litigation originated in the state of New Hampshire, and neither of these propositions was brought to our attention. We are able, however, to dispose of this appeal without reaching any definite conclusions on these particular points.

The substituted declaration contained three counts, one of which was admittedly and specifically based on the statutory laws of Kentucky. This was succeeded by a verdict in favor of the plaintiff. This also was succeeded by the fact that the defendant brought to the attention of the court the proposition that the statutory laws of Kentucky contained a conditional limitation of the same character as that noticed in Union Pacific Railway Company v. Wyler and Boston & M.R.R. v. Hurd, by virtue of which the right of action had already been lost at the time the amendment was allowed. The verdict was to a certain extent special, so that, on this being brought to the attention of the court, the court directed on the record as it stood a judgment for the defendant, applying to the case the rule of Union Pacific Railway Company v. Wyler, already cited. It is this latter ruling on which this appeal turns.

Yet the third count of the declaration as originally drawn stated every...