331 F. 2d 223 - Myers v. Alvey-Ferguson Company E

In accordance with the general rule in Ohio as indicated by the above cited cases, the Ohio statute of limitations is applicable to the time for filing the plaintiff-appellant's action in the District Court. There is another principle of law, that may be regarded as an exception to the general rule, which counsel for plaintiff-appellant claims is controlling here. If the statute creating a cause of action also fixes a limitation of time in which an action may be brought, the limitation is regarded as a part of the substantive law of the cause of action and is controlling when an action is brought in a sister state. A limitation in a separate statute of the creating state may be a part of the substantive law, if in express terms it is made applicable to the liability created by statute. Maki v. George R. Cooke Co., 124 F.2d 663, 666, 146 A.L.R. 1352, C.A.6 (Mich.). See also. Hutto v. Benson, 212 F.2d 349, 352, C.A.6 (Tenn.); Zellmer v. Acme Brewing Co., 184 F.2d 940, C.A.9 (Cal.); and, Wilson v. Massengill, 124 F.2d 666, C.A.6 (Tenn.).

The exception was recognized by the Supreme Court in Davis v. Mills, 194 U.S. 451, 24 S.Ct. 692, 48 L.Ed. 1067, decided prior to Erie v. Tompkins. The Court said, 196 U.S. at p. 454, 24 S.Ct. at p. 693, 48 L.Ed. 1067: "It is true that this general proposition is qualified by the fact that the ordinary limitations of actions are treated as laws of procedure, and as belonging to the lex fori, as affecting the remedy only, and not the right. But in cases where it has been possible to escape from that qualification by a reasonable distinction, courts have been willing to treat limitations of time as standing like other limitations, and cutting down the defendant's liability wherever he is sued. The common case is where a statute creates a new liability, and in the same section or in the same act limits the time within which it can be enforced, whether using words of condition or not. The Harrisburg, 119 U.S. 199 [7 S.Ct. 140, 30 L.Ed. 358]. But the fact that the limitation is contained in the same section or the same statute is material only as bearing on construction. It is merely a ground for saying that the limitation goes to the right created, and accompanies the obligation everywhere. The same conclusion would be reached if the limitation was in a different statute, provided it was directed to the newly created liability so specifically as to warrant saying that it qualified the right." (Emphasis added.)

Counsel for appellant attaches great importance to the case of Maki v. George R. Cooke Co., 6 Cir., 124 F.2d 663, decided by this Court. That case involved Michigan conflict of laws and is not applicable in Ohio. However, this principle of law, here characterized as an exception to the general rule, was quoted with approval in Castrovinci v. Castrovinci, 93 Ohio App. 133, 138, 112 N.E.2d 53. This Court had occasion to consider this principle in a prior case between the same parties involving the same accident. 326 F.2d 590. In that case the plaintiff-appellant brought an action for wrongful death, under the District of Columbia Code (Section 1201, Title 16), in the United States District Court for the Southern District of Ohio. Section 1202, Title 16, of the District of Columbia Code limits the time in which an action for wrongful death may be brought to one year after the death of the party injured and is specifically directed to the liability created by Section 1201, Title 16 of the Code. The complaint was filed more than a year following the death of the deceased and the district judge dismissed the action for the reason that it was not brought within the time limit fixed by the act which created the liability. The limitation there was properly considered a part of the substantive law of the cause of action.

The case now before us does not involve a statute which makes the limitation a part of the substantive law of the cause of action. No limitation of time for bringing an action under Section 101, Title 12, of the District of Columbia Code is fixed as a part of the cause of action created by that section. Neither is the limitation provided by Section 201, Title 12, of the District of Columbia Code, directed so specifically to the liability here involved as to warrant saying that it qualifies or defines the right.

Counsel for the appellant contends that the Ohio rule violates the Full Faith and Credit Clause of the Federal Constitution.4 In Wells, Adm'r v. Simonds Abrasive Co., 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 1211, the cause of action arose in Alabama and the action was brought in Pennsylvania. The Alabama statute creating the cause of action had a two-year "built in" limitation. The Pennsylvania statute applicable to an analogous cause of action was one year. The district judge found that under the Pennsylvania conflict of laws rule the Pennsylvania limitation was applicable rather than that of the place of the accident. The Supreme Court granted certiorari limited to the question whether the Pennsylvania conflicts rule violated the Full Faith and Credit Clause of the Constitution.

The Court said at p. 517 of 345 U.S., p. 858 of 73 S.Ct., 97 L.Ed. 1211: "We are not concerned with the reasons which have led some states for their own purposes to adopt the foreign limitation, instead of their own, in such a situation. * * * Our prevailing rule is that the Full Faith and Credit Clause does not compel the forum state to use the period of limitation of a foreign state." The judgment of the District Court was affirmed. The Court said, with reference to Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212, and First National Bank v. United Air Lines, 342 U.S. 396, 72 S.Ct. 421, 96 L.Ed. 441: "The crucial factor in those two cases was that the forum laid an uneven hand on causes of action arising within and without the forum state. Causes of action arising in sister states were discriminated against." In this case, by application of the Ohio statute of limitations, the plaintiff-appellant is not subjected to a different rule than are the residents of the state of Ohio.

We conclude that the action of the plaintiff-appellant was barred by the Ohio statute of limitations and the judgment of the District Court is accordingly affirmed.