Petition for Writ of Certiorari — Nolan v. Transocean Air Lines

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ILE COPY be Oftice-Supreme Com, U.S.

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: ie MAY 27 19°.

ae JAMES R. BROWNING, Clerk

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Supreme Court of the Mnited States

: .%

’ - 2 Term, 1960

PANE aigeegsnnstindoes 7

Rosrerr I. NoLAN, as Administrator of the Jostate of Jasper

: Wallace Lith, Deceased, Mansorny M. Pbapp, individually, |

. ; i

and Marnsory M. tani. as Guardian ad Litem of Jepiti

— Mane Hans, an thfant,

bipve : iP fitioners,

ype j ‘“

nih —-against—

ee ;

TRANSOCEAN AIR LiNES,

ts bons Re spond: nt,

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

. FOR THE SECOND CIRCUIT

. Harnny’S. Winter.

Counsel tor Petitioners

’ YOLG lve Street NW,

Washington 6, D. €.

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Pp eee

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ah ee

Se

ersesion ae

INDEX <u E

Appenpix®

° PAGE

Basis of Jurisdiction 00.00.0000. ?

RUNNIN: SRIUT oases csncinec coc Besa cecencaseacepivecegindcpecrspeecian c ?

SI os sia door cvs onyseiseueiasasbsnascabeccanssscucaeenaon .

I ooo Ss sae sisaahaoencannrsasscecsvonacnents Sr Rey ee

Questions Involved ii ieaia saddens tecesiocsonudecatranecedevumpmmere as ‘

I wenn cvecal castes Ras ansenerincooden tcknsansasesmnne veavunnio :

Question 2 oon. eececseseseccsescneerensesngessesecnssssenserenenneseee .

IN oar cts casa ance ve: Be gcd suapenrditeucanesh

Statutes Invelved | oo... a SN gS CRN oe ORI Fo ee E ee

IE I ia shies cece Sakae vd ccnencdennssnasinpnginntontinsss (

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Oe I I ino sciesestentevseencivstsnsnntcersupenisevanserniratonrs®

Reasons for Granting the Writ SO, Tee PP EW et PED

ee RRMA Spe en sues nassSu cee apeeRDA ure tecomes tiaaiaieneoas

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Reason 2 ........... Ts Tent saalbeandmavacuni ook siaktnedecees totes weplonttg Pe

Reason 3. ......... "PARE, SPR Aaa ht 7 ESOC OE EID Dee aca 1

RMIT arcs civesi an cssasearcrpedinnns Scdseunarntainnsssoutisnssonsesqerstabcasyaivbrataivern 1

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Opinion of Court of Appeals 0.0... hiceioiine Fens 1

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ll

TABLE oF Cases Crrep:

PAGE

*.

) : Bernhardt v. Polygraphie Co., 350 U.S. 198 (1956) 11

9

Canadian Northern R. Co. v. Eggen, 252 “y S. 303

0 EEE a LAE RO BR GHENT AE de ct ae ERIN 12

Deason v. Jones, 7 C. A. 2 482, 45 PP2d 1025 oc 20

Emery v. Emery, 45 (@ 2d 421, 289 P. 2deQ218 200... 10

Flores v. Brown, 248 P, 2d 922 (1952)... Dots SER 10

: diy

Haro vgSouthern Pac. R. Co., 17 C. A. 2d 594, 62 P. 2d :

ae ep alee hicucecaieaes 10, 11

Hartigan v. Southern Pac. R. Co., 86Cal. 142, 24 Pac.

GS nner mee Vanessd bite iicsddsssotobeeanaeieeceaenes .. 10

Kinnier v. Kinmiers45 N.Y. 585 oo.cccccssssssstssssssssesseeeessman 10

McKnett v. St. Louis & F. R. Co., 292 U. S. 230 (1934) 12

« Merideth v. Winter Hav en, 320 U. S. 228 ( (1943) atom 11

Perkins v. SERS 140 C. : 2d 536, 295 P. 2d 972

ND Sats eee ee

Sears v, Majors, 104°C. A.'60, 285 P. 321 (1930) ............ 10, 11

Secrest v. Pacific Electric Ry. Co., 141 P. 2d 747 00... 10

Sun Oil Co. v. Guidry (La.), 99 So. 2d 424 oe 10

West v. American Telephone & Telegraph Co., 311 U.S.

Og aR ae Sat iia Be eR ic aap es SINS scr et eA TRC oo 11,

Wohlgemuth v. Meyer, 139 C. A. 2d 326, 293 P: 2d 816 -

IO NNR ETS IS Yd AD Sea a 11

; ; j iil

CONSTITUTION :

Ps tites STATUTES:

ow

California Code of Civil Procedure, (377

PAGE

United States Constitution, Article IV. [20020004 12

Sesbatasasevn tetey Oy 65 10

California Code of Civil Procedure, (340(3) . 0... a, 7

California Code ef Civil Procedure, 352 eee oS |

California Civil Code, §25° ........cscicesscsstoseseeseee Sale. 6,7

New York Civil Practices Be Ae ots os cenas 4,5, 7, 8, 12

a TOR DP LYS 12,

mee rae

RvuLeEs :

Rule 17(b), Federal Rules of Civil Procedure....3, 6, 8, 9,12

; , $

AUTHORITIES

15 C.I.S1, Conflict of Law, $14b, pp. 907-908 oo... 9-10 6

c ; - ; a

IN THE \

9

Supreme Court of ie Muited States

ne eT Term, 1960 7

Ropert F, Novan, as Administrator 6f the Estate of Jagper

Wallace Hall, Deceased, Marsory M. Hatt, individually,

and M&rgory M. Hauz, as Guardian ad Litem of Jupitu

Marie Hatt, an infant,

—_

: Petitioners,

| —Aagairnst—

« beverery rf 9

4 Transocean Ain Lings,. . — .’

~ ws Respondent. :

PETITION FOR WRIT OF CERTIORARI TO THE " tips

" ‘UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

To the Honorable, the Chief Justice and Associated Justices

« of the Supreme Court of the United Staces:

Robert F. Nolan, as Administrator of..the Estate of

Ja&per Wallace Hall, deceased, and Marjory M. Hall,

* individually and as Guardian ad Litem of Judith Marie

Hall, an infant; respectfully pray for the issuance of a

writ of certiorari to review the judgment of the United

States Court of Appeals, entered herein March 2, 1960,

affirming the judgment of the United States District Court

for the Southern District of New York granting defendant’s

motion. for summary judgment based on the statute of

- linitations. .~7

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a F ,

Basis of ee : “4

The jurisdiction of this C curt: is inveked under 28 U. S.°@.

“91254.

: ‘Opinions Below .

» The opinion of the District Court granting summary

. judgment is reported in 173 F. Supp. 114. The opinion of |

the Court of Appeals affirming the judgment of the District

‘Court is not officially reported as yet.

J g

Statement

od

9°

This action was brought in the Southern District of

New York for the wrongful death of Jasper W. Hall, 4 resi-

dent of South’ Catolina, who was killed in California in the

” erash of an airplané owned and operated by the defendant.

The plaintiffs ‘were an administrator appointed in South §

Carolina, the widow in her own right, and the widow as

Guardian ad Litem of her minor child. Jurisdiction of the.

District Court was preditated on diversity of citizenship,

the administrator being a resident of New York, the widow

and her minor child being residents of South Carolina and

the defendant being a California Corporation. The action

_ was predicatéd upon the Wrongful Death Statute-of Cali- —

fornia,’ California Code of Civil Procedure, §377.

~

he defendant moved for summary judgment on the

ground that the actior was barred_as a result of incorpora-

tion of the California period of limitations by the “borrow-

ing” provision of the NewYork statute of limitation’. The

District Court granted the motion. Upon appeal, the Court

of Appeals unanimously affirmed. |

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——

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38

The Pertinent Facts \

The undisputed facts An, this case may be summarized as

follows:

1. The widow, Marjory M,: Hall, was born November

4 17, 1936. | a Sat

to

. The marriage of dee eglent to the widow took place |

on December. 26, 1951.

3. “Judith Marie Hall, the child of the couple, was born

Decembér: 2, 1952. ,

oe :

. 4. The death of decedent took place on March 20, 1953.

5. The widow reached the age of 18 on November 17,

_ 1954, and the age of 21/on November @7, 1957.

6. The adininistrator was appointed on neneere 18,

1958. Pia .

/

‘947. The action was commenced i in the District Cuurt.on

Tolar el a eee eT eT at

‘ November 7;' 1958.

, 8 The widow was and is a resident of South Carolina.

be > ‘ ro * = . f .

. Pe was and is a resident of New

k: . ; ;

10. The defendant vas and is a California corpora- —

tion. r

The Questions Involved

- Question 1

Does the provision in Rule 17(b) of the Federal. Rules of

Civil Procedure that “The capacity of an individual, othé@

than one acting in’a representative, capacity, to sue or be

sued shall be determined by the law of his domicile” re

2 o

quire the Federal District Court sitting in New York to

apply the law: of the widow’s domicile herein in determining

the age of majority, of the widow for purposes’ of tolling:

- the statute of’ limitations of California as incorporated by

the ‘laws of New York?

Question 2 :' oo

Should not the Court of Appeals and the District Court

have refused to follow two old dec#tions of the California

Court holding that: if the, widow i$ barred from bringing

a wrongful death action by reason of the statute of limita-

tions then the infant child is also barred, since the action is

deemed joint, where .three: recent ssaiice of the same

Court have permitted the remaining hejys ‘to bring the ac-

tion although one of the heirs is barred hy reason of eon-

‘tributory negligence, on the ground that the action is

joint only in the sense that there cannot be a series 8f suits

sei each heir? ;

Question 3.

> ¢ ¢@°

~ Does not the construction of Section 13 of the New York —

Civil Practice Act by" the’ District Court ‘and Court of Ap-

peals herein abridgé the widow’s privileges and finmunities

°as a citizen of the United States. in viogation of Article IV,

§2, of the Federal Constitution, since, as so construed, the

widow,, because of her nonresidence, has been given no

- access i” the courts of New York in her ownname, where-

as a resident of New York under similar cireumstances

would have ‘had such access? ,

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Statutes Involved

; %

Section 377 of the California’ Code of Civil Procedure — >

provides in pertinent part, as.follows :

“When the death of a person .-... ts caused by the.

wrongful act or neglect of another, his heirs or per.

sonal representatives may maintain an action for dam-

ages against the person causing thre death. ... In every

action under this section, such damages pay be given

as,.under all the circumstances of the case, may be

Ls)

jest...» The respective rights of the — in ary ou

award shall be determined by the court... ; se

a eX F

Section 13 of the Néw York Civil Practice” Act provi des,

so far as here nr

“Where a cause of action arises outsidg, of this state,

_ an action cannot be brought in a court of this state

to.enforee such cause of action after the expiration. of

the time limited by the laws either of thig state or. of

the state or country where the cause of action arose,

for bringing an‘ action ypon the cause of action, ati

that where the cause of action originally’ accrued i

favor of a resident of this state, me time limited be

the haw " tltis state sifall apply, dee % 63

iiadiviaien: 3 of Section 340 of the ‘California ‘Codeof

Civil Procedure prov ‘ides in pertinent part: .

“Tite OF ComMEXc ING CrvIL ACTIONS’

“$340. Within one year: sn a

\ °° « * eo

3. @n-action for libel, slander, assatlt, battery, false

imprisonment, seduction of a person below the yee of

legal consent, or for injury tp or for the death of ‘one 9

caused by the wrongful act aQ negléct of another... .”

6: .

Section 352 of the Califormia Code of .Civil Procedure

provides in so far as relevant to this case:

“Pf a person entitled to bring an action... be, at the

time the cause of action accrued/either ;

a

1. Within the age of majority ; Pee

a

_—The time of such disability is not part of the time

limited for the commencement of the action:”

‘Section 25 of the California Civil Code provides in per-

tinent part as follows: ;

“Minors are all persons under 21 years of age; . .s.

provided further, that any person who has reached

the age of 18 years and thereafter contracts a lawful

marriage, or who has contrdceted a lawful marriage and

thereafter reaches the age of 18 years, shall in the first

instance upon contracting such marriage, and in the

second instance upon reaching the age of 18 years, be

of the age of majority and be deemed an adult person

for the purpose of entering into any engagement or

transaction respecting property or his estate, or for

the purpose of entering into any contract... .”

Court Rule Involved

Rule 17 (b) of the Federal Rules of Civil Procedure pro-

vides in pertinent part: ie a

“The capacity of an individual, other than one acting

ina representative capacity, to sue or be sued shall

”

be determined by the law of his domicile,..." . «

_

The Opinions Below —

The reasoning of the District Court may be summarized

te asfollows:.

. ’ &

1 The California Wrongful Death Statute, upon which

this action, is. predicated, allows’ sujt by the heirs or per-

sonal representatives (California Code of Civil Procedure,

soll),

2. Section 13 of the New York Civil Practice Act. re-

quires the Distriet Court. to apply the California Statute of

Limitations and “all its accouternients” including the pro-

vision tolling the statute during minority.

). Under California lawe a wrongful death action must

be commenced within one year from decedent's death (Cali-

fornia Code of Civil Procedure, $3840(38) ). ;

‘ |

4, The statute of limitations is tolled during the minority

of the person entitled to sue (¢ ‘alifornia, Code of Civil Pro-

cedure, $352), pus

: ; -*

5. Towever, a woman who lawfully marries prior to the,

age of 18 attains her majority upon. reaching that ate

(California Civil Code, $25). ; ¢

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o . . ’ ’ ‘ , ’

6. An action on behalf of a widow for the wrongful death

i of her husband must be commence ‘ed Within one year after

~ her attaining majorify. /

4

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4

» 7. An action which is time-barred. as to the widow is

uso time-barred:as to infant offspring of the gloce ‘dent,

: 8. For simijar reasons, the causes of action of the ad-

ministrator herein would also appear to be barred, q

8

The District Court contlided from the foregoing that’

under California law, which was incorporated herein by

virtue of Section 13 of the New York Civil Practice Act,

all the causes of action herein were titne-barred on Novem:

ber 17, 1955, since tle widow attained her majority on No-

vember 17, 1954, when she became IS’ years of aye.

Upon appeal to the Court of Appeals, the petitioners

herein argued that the ‘District Court was in error in the

following respects: (1) Under the conflict of laws rule of

both New York and California, and also under Rule 17 (b)

of the Federal Rules of Civil Procedure, the Distriet Court

should have determined the minority status of thes widow

by the law of her domicile, South Carolina, which extends

her minority to age 21; (2) That in view of recent deei-

sions of the California Court, California would no longer

bar the action on behalf of the minor infant simply because

~ the parent was barred, ard (3) That the Court's construe-

ton of Section 13 of the New York Civil Practice Act, in

effect, abridged the widow's privilegcs and immunities as

a citizen of the United States in violation of Article TV, $2

of the Federal Constitution, in that she never had an op-

portunity to sue in the Npw York Courts in her own name

by reason of her non-resifnce

The Court of Appeals, in affirming, held that since there

was no controlling’ decision in point, it felt that the better

rule would be to apply the law of the forum, California, not

the law of the domicile, South Carolina, as to the minority

status of the widow; that the widow's privileges and im-

* munities were not abridged since she could have sued gn

New York by a Guardian ad Litem; and that in barrie

the infant child the Distriet Court “was surely right in

thinking the New York courts would not refuse to follow

California decisions that are directly in’ point simply be-

cause of other decisions of courts of the same level that

9

°

. . . . 6

ure alleged to be inconsistent with but in no way reflect

onthe pertinent authorities.”

;

¢

e

5

:

sat

om

7

Reasons for Granting the Writ |

oe

) ae ‘ . H : ° H

1. The Court below has decided an important question

of Federalslaw whieh has not been, but should ‘be,

decided by this Court.

y The precise issue in this case is one of first impression,

The question before the court below wae: What law should

be appled to determine when the widow herein reached

the age of majority, the law of the place of the accident as

“borrowed” by the Jaw of the forum, or the law of the

widow's domicile? ,

It is submitted that Rule 17 (b) of the Federal Rules of

Civil Procedure should be determinative of this issue, Rule

\7 (b) provides in pertinent part that "The capacity of an.

individual... to sue or be sued shall be determined by

the law of his domicile.” One of the factors most frequently

involyed in this question of capacity to sue is the status of

minority-majority. Thus, either by statute or decisional

law it is universally held in this country that a minor does

not have capacity to sue, This is premised upon the self-

evident fact that a minor has not reached sufficient physical

and mental capacity to be capable of intelligently prosecut- a3

ing an action on his own behalf, And gencrally the states —

provide for a tolling of the statutes of limigations during ‘

» this period.

_—=

:

:

:

It is most appropriate that the state of domicile deter. ,

| mine when persons within that state have reached an age

when they should be considered adults and therefore hav-

ing a capacity to sue, Rule 17 (b) is merely a recognition

of this fundamental principle. This is in accord with the

generally accepted common law rule. 15 C. J. S. Conflict

f

10

of Laws, $14b, pp. 907-08; Deason v. Jones, 7 C. A. 2d 482,

45° P. 2d 1025; Emery v. Emery, 45: C. 2d 421, 289 PB. 2d 218;

Kinnier v. Kinnicr, 40 N.Y, 535; Sun Oil Co, v. Guid,

99 So. 2d 424. ra

2. The Court below has decided an important question

of local law in a way probably in conflict with ap-

plicable local decisions and decisions of this Court.

In 1890, the California Supreme Court held that Section

377 of the California Code of Civil Procedare gave to the

heirs a single, joint, indivisible action and, therefore, all the

heirs inffst be joined in the action. J//artigan vy. Southern

Pac. R. Co., 86 Cal, 142, 24 Pac, 851, a,

However, the precise issue involved herein did not @ome

before a California Court until 1930; in Sears v.. Majors,

104 C. A. GO, 285 #. 321. In that case, the California Ap-

pellate Court, taking a very literal and mechanistic view,

held that if thle widow was time-barred, then the children

were also barred, since it was a joint cause of action and

if one could not bring the action then none’ could. This

rationale was followed in Haru vy. Soutl ‘rn Pac. R. Co.,

17 C. A, 2d 594, 62 P. 2d 441 (1986). The two cases cer-

tuinly represented a gery harsh result arrived at by highly

legalistic reasoning. Indeed, research fails to disclose any

other state having a similarly worded: statute where this

result hasbeen reached.

Nevertheiess, if these two cases still represent the law

of California today, then petitioners could not quarrel with

the Court below in following them. But, it is submitted,

recent decisions of the California Appellate Court clearly

show that these é¢ases no longer would be followed in Cali-

fornia. Perkins v. Robertson, 140 C. A, 2d 5386, 295 P. 2d

972 (1956); Flores v. Brown, 248 P. 2d 922 (1952); Secrest

v. Pacific Electric Ry. Co. 41 P. 2-747 (1943).

11 ;

In Perkins v. Robertson, supra, the question before the

court was Whether, since one of the heirs was barged by

reason of his contributory negligence, were not all the heirs

barred, Certainly, if the earlier conception of a joint eause

of action as exemplified in the Maro and Searsceauses still

prevailed, then the question should have been answered in

the affirmative. However, the Coutt refused to follow this

reasoning and allowed the remaining heirs to continue the

action for their damage, The Court held that the action

was a single, joint, indivisible action only an the sense that

there could pot be a series of suits by each of the heirs,

Certainly, if contribuioery negligence, whieh goes to the |

right of action itself, does not bar the other heirs, then a

time bar, which merely goes to the remedy, should not bar

the other heirs, Woh/qgemuth vo Meyer, 139, Ay 2d 326,

293 P. 2d S16 (1956),

Despite this development, the Court below refused to

even consider the question, stating:

"2. It is not for us to say whether the two lites of

cases are logically reconeilable, For Judge Levet was

surely right in thinking the New York courts would not

refuse to fellow California decisions that are directly

in point simply because of other decisions of courts of

the same level that are-alleged to be inconsistent with

but in no way reflect on the pertinent authorities.”

~

It is respectfully submitted that this is directly in corr

fliet with the decisions of this Court. Bernhardt y. Poly-

araphic Co, 350 U.S. 19S (1956); Mertdeth vo Winter:

Haren, B20. So 228 (1943): Westy. American Telephone

& Telegraph Co,, 311 U.S, 228 (1940),

12

3. The Court below has decided an important question

of federal constitutional kaw in a way probably. in

conflict with applicable decisions of this Court,

*The Court below has applied Section 13 of the New York

Civil Practice Act in such a way as to deprive the widow

and infant ef access to 7 courts of New York, Under the

law of New York, Section 236 of the New York Civil Prae.

tive Act, a person under the age of twenty-one nay not

prosecute a civil actign in the courts of New! York. Under

Rule 17 (b) of the FMderal Rules of Civil Procedure, the

widow and "child did not have capacity to sue until’ they

reached twenty-one, the age of majority in the state of

their domicile. Nevertheless, the Court below has ruled

that they. were barred long before they reached that age.

It is well Vottled that the privileges and immunities

clause, Article IV, (2 of the Federal Constitution requires

the courts to accord to citizens of other states substantially

the same right of access to its courts as it accords to citi

zens of its own state. WVeAnell vo S/. Lows & FOR. Co.,

292 U.S. 230 (1984). :

Although a reasonable discrimination hy the courts of

a state against nonresidents does not violate the privikeges

and immunities clause, the court must at least give the

nonsesident reasonable and adequate aecvess to its court for

the enforggg of any rights he may have. Canadian North-

ern R,Co.v. Eggen, 252 UL. 5N3 (1920),

In the instant case, the petitioners by reasey of gheir

nonresidence have been given no reasonable and adequate

access to ee eourts of New York, And the inere fact that

until her nineteenth birthday the widow could have brought

the action through a Guardian ad Lifem does not constitute

reasonable and adequate access, Such a tinding defeats the

“primary purpose of the tolling provisions of the statute of

iis taie=

13 » A

limitations, to prevent injustice to infants. In -fact, the

result in this case eloquently illystrates this point. Here,

the infants have been found to have lost their day in court

even before they became aware of their rights and obtaine ‘d

‘the appointment af either a representative of the estate

or a Guardian ad Lite om.

PRAYER *

« ” 9

‘For the foregoing reasons petitioners pray that this peti

tion be granted to. the end that this case may be reviewed

and determined by this Court; that the judgment of the

Court of Appeals ‘be reversed, and that the petitioners be.

granted such other and further relief as may be proper.

> "Respectfully submitted,

Robert F. Nouax and Marvory M. Haus.

By Harry’S. Wenper ;

Counsel jdeVetitioners

oe: 2026 Eye Street N.W.

Washington 6, D.C.

APPENDIX

isiation of Court of Appeals |

* UNITED STATES COURT OF -APPEALS

_For tHE Seconp Cikecvir

7 Aa

No. 105-—October Térm, 1959.

(Argued January 5, 1960 Decided March 2, 1960.)

Docket No. 25779

_Ropert F, Nogay, as Administrator of the Estate of Jasper,

Wallace Hall, Deceased, Marsory M. Hau, individually,

and Mansony M. Hau as * Guardian ad Litem of Jv 'DITH

Manieé Hans, an infant,

Pininttife-dppetiinite,

—

TRANSOCEAN AR LINEs,

0 Defendant-A ppellee.

A>.

ww

Before:

’ Lumparp, Chief Judge,

Moore and Frienpviy, Circuit Judges.

a>.

ww

Appeal from judgment of the Distriet Court for the

Southern Distriet of N@w York, Richard H. Levet, Judge,

173 fF. Supp. 114, granting defendant’s motion for summary

judgment based on the statute of limitations. Affirmed,

&

Ronert A. Dwyer, New York, N.’Y. (Stuart }

: Speiser and Speiser, Quinn & O’Brien, New

- : York, N. Y. on the brief), for Appellants.

16 fo.

WituuaM J. JunkKeRMAN, New York, N. Y. (Mau-

ri@ T.. Noyer and Haight, Gardner, Poor

& Havens, New York, N. Y. on the brief),

for Defendant-A ppellee. ;

——— ee

\/ Frienpty, Circuit Judge: « o- ‘

Our principal task, in this diversity af citizenship case,

is to determine what the New York courts would think

‘the California courts would think on an issue about which

neither has theught. They have had, no occasion to do so.

But life, here.coupled with death, chsts up new problems,

and the court seised of the case is obliged, as best it ean,

itself to blaze the trial of the foreign law that it has been

directed to follow. ae ;

The action -was brought in the Southern District’ of

oNew York for the wrongful death of Jasper W. Hall, a

resident of South Carolina, who was killed in California

in the crash of’an airplane operated by defendant. The

plaintiffs were an administrator appointed in South Caro-

lina, the widow in her own right, and the widow appointed

by the District Court as guardian ad litem of her minor

child. The administrator alleged two causes of action;

the widow alleged one on her own behalf and another as‘

guardian ad litem. The jurisdiction of the Distr:et Court

was predicated on diversity ,of citizenship, the .adminis-

trator being a resident of New York and the widow and

infant residents of South Carolina and the defendant a

corporatign organized and maintaining its principal place

of business in California. The administrator, although

appointed in another state, was a proper party plaintiff,

Fed. R, Civ. Proce. 17 (b); N. Y. Decedent Estate Law

$160. |

Defendant moved for summaey judgment on the ground

that the action was barred as a result of incorporation of

|

; é _ ¢

ad

the. California period of limitations by he “borrowing”

“provision of the New York statute of ‘limitations, New

York Civil Practice Act, §138. Judge Levet granted the

motion (173 F. Supp. 114), and plaggtiffs appeal from

~ the judgment of dismissal. We affirm.

Section 13 of the New York Civil Practice Act provides,

so far as here pertinent:

‘ °

“Where a cause W action arises outside of this

tate, an action cannot be brought in a court of this

‘state to enforce such cause of action after the expira-

tion of the time limited by the laws either of this

state or of the state or country where the cause of

action arose, for bringing an action upon the cause

. of action, except that where the ‘cause of action origi-

_ nally aeerued in favor of a resident of this state,

the time Agnited by the laws, of ‘this state shall ap-

** #9!

ply. re ‘

The causes: of action here asserted arose in California,

by virtue of Section 377 of. the Code of Civil Procedure

of that,state, providing that whem the death of a person

“is caused by the wrongful act or neglect of another, his

l\eirs or personal répresentatives may maintain an action

for damages against the person causing the death.” Para-

wraph 3 of §340 of the Code of Civil Procedure requires

that numérous categories of actions, including actions for

. wrongful death, be brought within one year.’ Section 352

Ned cbia . :

'The District Judge held and the parties do not dispute that

$340(3) of the California Code of Civil Procedure is 4 true statute

of limitations going only to the remedy,.rather than, as is more

_ often the case with death statutes, American Law Institute, Re-

statement of Conflict of Laws $397, a, substdntive provision af-

fecting the right. Such authority as exists supports this. See

Gregory Vv. Southern Pacifte Co., 157 Fed. 113 (C. C. 2. Ore. 1907) ;

cf, Zeller v. Aeme oii Co., 184 F. 2d 940 (9th Cir. 1950); +

Wohlqgemuth v. Meyer, 139 Cal. App. 2d 326, 999 P. 2d 816, 818

(1406). This result would also follow under thé test of “specificity”

adopted: in Bournias v. Atlantic Maritime Co., 220 F. 2d 152 (2d

Cir. 1965). eh : : :

8

ts)

18

of the Code of Civil Procedure provides. that if a person

entitled to bring an action be a minor When the cause of

action accrued, “The time of sue th disability is not a part

of the. time limited for the commencenient of, the action.”

California's provisions as to’ what constitutes minority

are-found-in—G2a- of its Civil Code. This reads in part as

follows: “Pt

“Minors are all person under 21 years of age; * * °

_frovided further, that any person who has reached

‘the age of 18 years and thereafter contracts a lawful

marriage, or who has contracted a lawful marriage

and thereafter reaches the age ‘of 18 years, shall in

the first instance upon contracting such marriage, and *

in the second instance upon reaching the age of 18

years, be of the age of majority and be deemed an

adult person for the purpose of entering into any

engagement or transaction respecting property or

his estate, or for the purpose of entering into any

contract, or for the purpose of maintaining or ¢de-

fending an action affecting his marital status, in-

cluding therein any action or proceeding involving

his support or the support or custody of children of

‘the marriage, or determination of property rights,

the same as if he were 21 years of age. * * * ”

In contrast, under the law of South Carolina, where the

Halls resided, all persons remain minors until they attain

the age of 21. South Carolina Code, Volume 1, §10-104 (1):

The death o¢curred on March 20, 1958. Mrs. Hall, who

had been married in South Carolina shortly after becoming

15. reached the age of 18°0n November 17, 1954, and the

age of 21 on November 1%, 1957. The action was begun

on November 7, 1958.

(1) Despite the New York residence of the adminis-

tratur, appellants argued the case, both in the District

x.

rer 2

— =

6 | 19

Court and before us, on’the assumption that it fell within

the general rule of $13 of the New York Civil Practice

Act and not within the exception “that where the cause

of action originally accrued in favor of a resident of this

state, the time limited by the laws ofthis state shall

apply.” * Nevertheletsbecatise of the serious consequences

of affirmance, we have considered whetner the case comes

within the exception, in which event the administrator

might prevail unless the California rule, stated below in

our discussion of the child’s cause of action, is a part of

the cause of action rather than of California’s statute of

limitations. We conclude it does not. While Wehave found

no authority on the point, we do not believe the courts

of New York would permit the policy embodied in §13 of. °

the Civil Practice Act against opening the courts of that ‘

state to suits by non-residents gn foreign causes of action

that were time-barred in the state creating them,-to be

overcome by the appointment of a resident of New York

us administrator of a non-resKlent’s estate.’ Sinre the

administrator is thus subject to the California statute

of limitations as the widow and child clearly are, his

cause of action would seein barred by the rule referred

to, even if California would compute the one year for his

v

a

* We have held that “the time limited by the laiws of’ New York

for a foreign wrongful death, where the limitation of the foreign

state is procedural and not substantive, is.the six years provided

by COP. A. §48(2) for actions on a statute. Janes v. Sackman Bras.

Co., 177 F. 2d 928 (2d Cir. 1949).

‘In holding this we Nave not overlooked the rule, established -in

Chappedelaine v. Dechenaur, 8 U.S. (4 Cranch) 306, 308 (1808),

“that the federal courts have jurisdiction of suits: by and against

executors and administrators if their citizenship be diverse from

that of the opposing party, although their testators or intestates

might not have been entitled to sue or been liable to suit in those

courts for want of div ersity of "aan: Mecom vy. Fitzsimmons

Drilling Co,, 284 U.S. 183, 186 (1931). :

. 20

bringing suit as running only from his appointinent rather

than from Hall’sdeath, + . | pam

(2) We tutn therefore to the cause of action asserted

by the widow.

In applying §13 af the Civil Practice ‘Act, the New York

courts would take into decount not oniy the one-year

limitation of California applicable -to actions for wrong:

ful death but “all its accouterments” including. the pro-

vision tolling the statute during minority. American Surety

Company of New York v. Gainfort, 219 F. 24 111 (2d Cir.

- 1955). The disputed question is how the New York courts

would think the California courts would determine the

duration of Mrs. Hall’s minority. Defendant contends

and the District’ Court held that California would apply |

Section 25 of its Civil Code despite Mrs. Hall’s South |

Carolina residence and that accordingly her time to bring

the action in California ceased on November 17, 1955,

When she became 19.4 Appellant assert ‘the California

_ conflict of laws rule would require the’ California courts

to look to the law of South Carolina, where Mrs. Hall

had. always resided, to ascertain&the duration of her

minority.

The’ parties have cited no authorities determinative of

this. question and we have found none. Appellants rely

‘on Deason v. Jones, 7 Cal. App. 2d 482, 45 Pac. 2d 1026 |

(1935), ‘and Eme ry Vek mery, 45 Cal. od 421, 289 Pae, 2d

“* We note in ree that §25 of the California Civil Code makes

the attaining of adulthood by a female at 18 dependent upon

her having, contracted “a lawful marriage.”’ Mrs, Hall was 15

and her husband 17 at’ the date of their marriage in South Carolina.

However, South Carolina, to whose law California would look to

determine the. validity of the marriage, follows the common law

rule permitting males to marry at 14 and females at 12; the ages

for licensed marriages with parental consent are 18 for males

and 14 for females but absence of a license does not ae the

marriage illegal, State v. Ward, 204 8. C, 210, 28 S, E. 2d 785

(1944). 7 ea

é

21

« 218 (1955). In: Deason v. Jones, the defendant, originally -;

domiciled in) Oklahoma, had eobtained a decree in, that,

state authorizing him to transact business with the same

effect aseif he had attained majority. He subsequently

. came to California and, bore attaining 21, entered .into

a contract that he then sought to disaffirm. The Court

held he might do’ so despite the Oklahoma decree, Appel-

lants rely ona’ statement that “the status of all persons

Within a state is exclusively a matter for that state to

‘, determine for itéelf’ However, the Court followed this

by saying that “in the eXercise of a well-established right

the legislature of this state has made its own provisions:

regpecting the contractual rights and obligations of minors.

Those provisions were controlling with respect to the con-

‘tract Which’ was made in this state, and the respondent

had acquired no status whith exempted him therefrom.”

Since the Court gave effect to the California statute on

* niinority, even as to one who had previously acquired

majority for contracting purposes under the law of his

dowhicile, the case seems more favorable to appellee than

to appellants. In Emery v. Emeru, Mrs. Emery and two

daughters, residents of California, sued Mr. Emery in

‘ that state for injuries they had suffered in Idahu in a

car driven by the Emery son. The Court held “that dis-

r abilities to sue and immunities from suit because of a

family relationship are more properly determined py vref-

erence to the law of the state of the family domicile” and

consequently applied California law. While this is ap-

parently a departure from the ruje followed in most states,

and one urged by eminent authors, Cheatham and Reese,

Choice of tye Applicable Law, 52° Calum. L: Rev. 959,

974-75 (1952), it has little hearing on what law California

would choose to determine the ending of minority for the

. purpose 6f bringing suit in its courts. The provision in

Med, R. Civ.;Proe. 17 (b) that “The capacity of an in

*

“

‘

22

dividual, other than one acting in a representative capacity,

to sue or be sued shall be determined by the law of his

domicile,” alsg relied on by appellants, likewise does not

assist in determining to what law the California courts

would look in deciding when Mrs, Hall first became en-

titled to sue in California in her own right.

‘s Despite general statements that matters of status are

regulated by the law of the domicile, the courts seem rather

to determine capacity to act by applying the law of the

state deemed to have the most significant connection with

ethe act. Thus capacity to transfer title to property is

governed by the law of the situs, and this whether the

property be real or personal. Aanerican Law _ Institute,

Restatement of the Conflict of Laws, §$216, 255.° The

much discussed case of Milliken v. Pratt, 125 Mass. 374

(1878), held the capacity of a married woman to contract:

was to bé“determined by the law of Maine, where the con-

tract was made rather than by the law of Massachusetts

where she was domiciled. This rule was adopted in the

Restatement, §333.° Indeed, the Restatenient applies the

law of the place of making to determine capacity to enter

into the most “status” forming of all contracts—marriage,

§121 (e) 5 and ‘illustration 8, although Dean Griswold

thinks this may be only a short-hand way of subsuming

a reference to the “wholé law” of the domicile including

* Restatement of the Conflict of Laws Second, Tentative Draft

No, 5, is sti to this effeet, although the comménts (§216 and

.§254a) have been altered so that the reference to the law of the

situs includes its-conflict of laws,

“A perceptive critic, who regards the rule of the Restatement

as an oversimplification, agrees .that “a return to the rule, re-

jected by Mr. Justice Gray, that the contractual capacity of a

person is governed by the law of the domicile, is not a satisfactory

solution.” Currie, Marricd Women's Contracts; A Study in Con .

flict-of-Laws Methods, 25 U. Chi. L. Rey. 227, 248 (1958),

‘ ‘

23

its conflict of laws and a further reference by the law of

the domicile in most eases to the law of the place of eén-

tracting. Griswold, Renvot Revisited, 51 Harv. L. Rev.

1165, 1199 (1988). See Jn re May’s Estate, 305 N. Y, 486,

114 N. FE. 2d 4 (1953). =

Inherent in the conflict of laws rules just reviewed is a

desire that all acts with consequences in a ‘state shall have

the same consequences regardless of the identity of the

actors. This policy. would seem peculiarly applicable to

a determination of majority incident to the application of a

statute of limitations,.a matter’that has long been recog-

nized as one for the forum. The question here, like so

many conflicts questions today, is one of statutory con-

struction—did the California legislature intend §25 of

the Ctvil Code to apply only to Californians or to persons

acting with respect to-California whether Califofnians or

‘not? We.think the latter, at least so far as concerns the

age at which a person.is deemed sufficiently mature to

control litigation in California courts. When the California

legislature considered that its own brides of 18 had suf-

ficient responsibility to conduct suits in’ California on

their own account, it would hardly demand a greater age of

a South Carolina bride to do the same—just as it would

scarcely have wished to permit a South Carolina bride of

l4 to sue in California’s courts in her own name if South

Carolina should have thought its. females as precocious for

suing as for marrying, This is preeminently a case where

California Would desire to apply to all suitors the-law “of

the formm, with which the lawyers and judges are more fa-

miliar and which can be administered more conveniently,”

-Bournias v. Atlantic Maritime Co., supra, at 154.

Appellants argue that, under this holding, $13 of the

Civil Practice Act abridges Mrs. Hall’s privileges and im-

Inunities as a citizen of the United States in violation

of Article IV, §2, of the Federal Constitution, MceKenett v.

La

24

St. Louis-San Francisco Ry., 292 U.S. 2380 (19384). Reeog-

nizing that Canadian Northgrn Ry. v. Eqgen, 252 U.S, 5538

(1920) forecloses constitutional attack on $13 on the gen-

eral basis that the statute limits non-residents to a ree

period than residents for bringing Suit, they say that,

‘contrast to the complainant in the Canadian ans

case, Mrs. Hall never had an opportunity to sue in New

York, because $236 of the Civil Practice Act prevented her

from suing in her own name until she became 21 and by

that time §13, as the District Judye applied it, had closed

the doors. However, Mrs, Hall could have maintained an

action in New York at any time by a guardian ad litem,

Civil Practice Act §§201-06, and $20! states expressly that

the rights of an infant to maintain an action “shall not be

deferred or delayed on account of his infaney.” It is of

no moment from a constitutional standpoint that a New

York widow of the same age would have had the added

privilege of awaiting majority and bringing suit in her

own name within the period provided by C. P. A. §60.

For, as said in Canadian Northerm Ry. v. Eqgen, supra,

at 562, the constitutional requirement is satisfied “if the

nonresident is given access to the courts of the state upon

terms which, in themselves, are reasonable and adequate

for the enforcing of any rights he may have, even though

they may not be technically and precisely the same in

extent as those accorded to resident citizens.”

(3) We come finally to the cause of action asserted on

behalf of the minor daughter. If this stood alone, neither

the California nor the New York statute of limitations

would be an obstacle, since both ye: tolled by infancy.

The barrier lies in another CalifoPhia rule, namely the

holding that (377 of its Code of Civil Procedure creates

a single joint cause of action for wrongful death and that

if limitation has barred the action as to an adult parent,

@

& |

| 25 ;

the action is also/barred as to a minor infant, Saars vy,

Major, 104 Cal. App. 60, 285 P. 321 (1980); aro v, South-

ern Pacific R. Co,, 17 Cal. App. 2d 994, 62 P. 2d 441 (1936).

Appellants claim these cases to be inconsistent in theory

with more recent decisions, Secrest v. Pacific Electric Ry.,

60 Cal. App. 2d 746, 141 P. 2d 747 (1943) ; Flores v. Brown,

39 Cal. App. 2d 622, 248 P. 2d 922 (1952) and Perkins v.

Robertson, 140 Cal. App. 2d 536, 295 P. 2d 972 (1956), that —

a bar against recovery by one heir because of contributory

negligence does not preclude recovery by othens. It ‘is not

for us to say whether the two lines of cases are logically

reconcilable. For Judge Levet was surely right in thinking

the New York courts would not refuse to follow California

decisions that are directly in point simply because of

other decisions of courts of the same level that,are alleged

to be-ingonsistent with but in no way reflect on the per-

tinent authorities.

Judgment affirmed.

<>

‘

, 26 °

Judgment

Ungrep Srares Court or APPEALS

For THE SECOND Cirevit

Ata Stated Term of the United States Court of Appeals,

in and for the Seeond Cireuit, held at the United States

Courthouse in the City of New York, on the second day ot

March ore thou! nine hundred and sixty.

Present:

Hon. J. Epwarp Lumsarp,

“Chief Judge,

Hon. Lronarp DP. Moore,

Hon. Henry J. FrieNpzy,

Circuit Judges.

‘ :

dalieseicanity

Ropert I’, Notan, as Administrator of the Estate of Jasper

- Wallace Hall, deceased, Maksory M. Hau. individually,

and Marvory M. Haun as Guardian ad Litem of Jeprrn

Marie Haus, an infant,

' Plantiffs-Appellants,

wv

TrRANSOCEAN AIR LINEs,

Defendant-Appellee,

>

Appeal from the United States Distriet Court for the

Southern Distriet’of New York. ;

a

he 27 ;

This cause came on to be heard on the transeript of reeord

from the United States Distriet Court for the Southern

District of New York, and was argued by counsel,

On Consipenation Withinor, it is now hereby ordered,

adjudged, and deereed that the judgment of said) District

Court be and it hereby is affirmed, 5

; : . -A. Dasten Fusane

a

lerk

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