# Petition for Writ of Certiorari — Nolan v. Transocean Air Lines > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0057%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1961 - **Citation:** 365 U.S. 293 ## Text a “ t 8 : a ILE COPY be Oftice-Supreme Com, U.S. *. Pbce gb Che | : ie MAY 27 19°. ae JAMES R. BROWNING, Clerk I~ ied os Fc - 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. €. ; i t ; ~~. Pp eee a | ee owe ah ee Se ersesion ae INDEX ‘ 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? , ; @., . J ¢ * . & oS ve 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). ; ¢ ’ . ; +. 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 ‘ - ¢ 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 - © --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0057%3A2. Public record. Not legal advice.