Petition for Writ of Certiorari — Hudson Motor Car Co. v. Hertz

IN THE CUATLES ELMORE cuonier

Supreme Court of the Unite se

i ccnniliemeedicemend

OCTOBER ae ae

no..246 Bits

THE HUDSON MOTOR CAR COMPANY,

a Michigan Corporation,

Petitioner,

vs.

GUSTAV C. HERTZ, Administrator c. t. a. of the

Estate of Lois Crane

Respondent.

— pment comma

No. 4 Yd See Oe

MOTOR WHEEL CORPORATION,

a Michigan Corporation,

Petitioner,

vs.

GUSTAV C. HERTZ, Administrator c. t. a. of the

Estate of Lois Crane Hertz,

Respondent.

— a see

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE SIXTH CIRCUIT AND

BRIEF IN SUPPORT THEREOF.

Interstate Brief & Record Co., Cass Bldg., 457 Fort St. W., Detroit

SUBJECT INDEX

Page

Petition for Writ of Certiorari.................. 1

Summary Statement of Matter Involved..... 2

Reasons Relied on for Allowance of Writ.... 9

UO I iia vac kk oak oe ee 10

Brief in Support of Petition for Writ of Certiorari 11

npinbon of Court Melow..:. 53. sc ss 11

UII abe ess o's osx uss Comrie. 12

peumboment Of the Case... oi. occk ic cccecccccsce 13

Specification of Errors......,.............. 13

By RR ee EER APTA Sn EEE ANE iy Par 14

Summary of Argument................. 14

FOUR RAS Gavin heehee ese es 15

PUNE Wis Scop va iciecse re ucceutactoe. 33

naps a, ae ORT ea ENED 41

TABLE OF CASES CITED

Anderson y. Hygeia Hotel Co., 92 Va. 687........ 15

Anthony v. St. Louis I. M. & S. R. Co., 108 Ark.

WO Ss naa pee addaion hop uncg yuan es yee. 39

Barley v. Duncan, ... Va. ..., 13S. E. (2nd) 294. 32,36

Beavers’ Administratrix v. Putnam’s Curator, 110

je SEPT Kole Salton pee ana nga Tan EE 17,18

Bickford v. Furber, 271 Mass. 94............. 9, 36, 37, 38

Bowles v. Elmore, 7 Gratton (Va.) 385........... 34

City of Clifton Forge v. McDaniel, 143 Va. 325... 9, 30

mar ¥. Com, 108 Ve Mie oe 9, 32, 38

Erie Rd. Co. v. Tompkins, 304 U. S. 64.......... 12

™ oe i Ee AS

ii

Page

Faulkner’s Administrator v. Louisville & Nashville

R. Co., 184 Ky. 533.......-...e cee e eee eceees 9, 36

Federal Trade Commission v. Pacific States Paper

Trade Association, 273 U. S. 52............--- 12

Forbes & Co. v. Southern Cotton Oil Co., 130 Va.

TN ee a Sie Eh a awsis eae ce bance 9, 30

Foster v. Yazoo & Mississippi Valley R. Co., 72

Fp eee dee ak td sess 39

Hanna Administrator v. Jeffersonville R. Co., 32

occ c Wi aay wens h dens eae oe 10, 36

Hansford v. Eliott, 9 Leigh (Va.) 79............- 34

Lambert v. Ensign Manufacturing Co., 42 W. Va.

| SPEER SE cones eng ee een penn eT mre te 39-40

Leesburg v. Loudoun National Bank, 141 Va. 244.. 38

Lyons v. Magagnos, 7 Gratton (Va.) 377......... 34

Manuel, Administrator v. Norfolk & Western R.

Co., 99 Va. 188... 2... ccc cceccccecenees 9, 31, 36, 37

Piedmont Finance Corp. v. Commonwealth, 146

. | Oa Oto ere ee ets 9, 30

Radezky v. Sargent & Co., 77 Conn. 110.........-. 39

Reading Co. v. Koons, Administrator, 271 U. S. 59 9,36

Richmond v. Sutherland, 114 Va. 688............- 9, 28, 29

Rodman v. Missouri Pacifie R. Co., 65 Kan. 645... 38

Rugland v. Anderson, 30 Minn. 386.........----. 40

Ruhlin v. New York Life Insurance Co., 304 U. S.

Oo ein NR sas ok ee OR GA aw ey eA ater aap 12

Seott v. Lichford, 164 Va. 419............---++:- 9, 30

Seaboard Air Line Ry. v. Brooks, 151 Ga. 625.... 9, 36

Steffey v. King, 126 Va. 120.......-..---+++++++- 9, 32, 36

Stringfellow v. Atlantic Coast Line R. Co., 290

= SF Ree Seer rr Terr reer Tse 12

Terbush v. Boyle, 217 Wis. 636...........-+++++- 10, 36

United States Fidelity Co. v. Blue Diamond Cab

Co., 161 Va. 378... . 2... cece cee cece cceeeeees 38

iii

Page

Virginia Electric & Power Co. v. Decatur, 172 Va.

UN ARCS Le Suc Fix chested eae eeenuns 15

Wingert v. William L. Carpenter, Circuit Judge,

SN I GA ee ebn paw is eadees ned Chi So 15

TABLE OF STATUTES CITED

Title 28, U.S. Code, Section 347 (a) ; Judicial Code,

RE, iS eae buch ewes bur 12

Code of Virginia of 1936

icine ihc Useceb vk kvaceeaeeawn 3, 15, 33

oe a rie iui ss eoaeaw Rue 3, 15, 25, 31

DE ec LG ek basyacockbwekiawee tues 4517, 22

RRR REE eer aah eee el aie ean prem 7, 9, 34, 35

PE iain dhe On veulb wet ae anne cee 7, 24

Acts of Assembly of Virginia, 1926, Chap. 507, p.

DOE heac keith wea eaaek bkA oo) Ue beens dks wey ee eee

TEXT BOOKS AND ENCYCLOPEDIAS CITED

Fe a OS ed hada tees ed VERON 34

Burks on Pleading and Practice (3rd Ed., 1934)

iy GEER REpamenirer gree mips hero sme cp ice ar ireian Rr me 18

i Be ES vb hae mwhadoon ddue ren cheer we bes 32

Re AP IER TRLOITE

MARR HOE IEE : —

IN THE

Supreme Court of the United States

—_~—

OCTOBER TERM, 1941

iis ukibibiccsiiitataite

THE HUDSON MOTOR CAR COMPANY,

a Michigan Corporation,

Petitioner,

vs.

GUSTAV C. HERTZ, Administrator c. t. a. of the

Estate of Lois Crane Hertz,

Respondent.

etendieent

MOTOR WHEEL CORPORATION,

a Michigan Corporation,

Petitioner,

vs.

GUSTAV C. HERTZ, Administrator c. t. a. of the

Estate of Lois Crane Hertz,

Respondent.

tee

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE SIXTH CIRCUIT.

onesie

To The Honorable Harlan Fiske Stone, Chief Justice

of the United States, and the Associate Justices

of the Supreme Court of the United States:

Your Petitioner respectfully shows:

I.

SUMMARY STATEMENT OF THE MATTER

INVOLVED

This is a civil action in the nature of an action at law

brought in the United States District Court for the Eastern

District of Michigan, by Gustav C. Hertz, Administrator

e.t.a. of the Estate of Lois Crane Hertz, respondent herein,

against the Hudson Motor Car Company and the Motor

Wheel Corporation, Michigan corporations, petitioners

herein, to recover damages in excess of $3,000 arising out

of the death of respondent’s wife as the result of an acci-

dent which occurred in Virginia (R. 6). The trial was by

jury in the District Court and a verdict and judgment

were rendered in favor of respondent against petitioners

for $9,522.55 (R. 62, 63). Appeals from that judgment

were taken by petitioners to the United States Circuit

Court of Appeals for the Sixth Circuit, which affirmed the

judgment of the District Court (R. 87, 88, 105, 106). The

principal question involved in that appeal was whether

this action is barred by the limitation contained in the

Virginia statute creating a cause of action for wrongful

death. The Circuit Court of Appeals decided that this

action is not barred by that limitation (R. 106).

Respondent’s wife was injured in an automobile accident

which occurred on April 13th, 1938, while she was riding

in a Hudson automobile which was being driven along a

Virginia highway (R. 7). No other vehicles were involved

in the accident. This car turned suddenly to the left and

rolled over on the shoulder of the highway. Mrs. Hertz

died on April 18th, 1938 (R. 7). Respondent, a resident

of Virginia, was appointed administrator of his wife’s

estate on November 23rd, 1938 (R. 6, 10). This action was

commenced on April 26th, 1939, more than one year after

3

the death of Mrs. Hertz, the jurisdiction of the District

Court being invoked on the ground of diversity of citizen-

ship (R. 6).

It was alleged in respondent’s complaint that the acci-

dent resulting in the death of Mrs. Hertz was caused by

the collapse of one of the wheels of the Hudson car in

which she was riding. It was further alleged that the

Motor Wheel Corporation, petitioner herein, was negligent

in the manufacture, assembly and inspection of the wheel

which collapsed and that the Hudson Motor Car Company,

petitioner herein, was negligent in its inspection of that

wheel (R. 6).

Motions to dismiss this cause were filed on behalf of

both petitioners by separate counsel, on the ground that

this action is barred by the limitation contained in Section

5786 of the Code of Virginia of 1936, which constitutes a

portion of the Virginia statute creating a cause of action

for wrongful death (R. 11, 16, 20).

The pertinent portions of the two principal sections of

that statute are as follows:

**Section 5786.

‘“Whenever the death of a person shall be caused

by wrongful act, neglect or default of any person or

corporation * * *, and the act, neglect or default is

such as would (if death had not ensued) have

entitled the party injured to maintain an action

* * * and to recover damages in respect thereof,

then, and in every such case, the person or corpo-

ration * * * which, would have been liable, if

death had not ensued, shall be liable to an action

for damages, * * * notwithstanding the death of

the person injured, and although the death shall

have been caused under such circumstances, as

ae Be eK EARS POR IDP AN T RPNEREDOEI GN EPR, GSN PETER

ete oS Ms Ss Teen CF re es ~. — ” “ -

4

amount in law to a felony. And any right of action

which may hereafter accrue by reason of such

injury done to the person of another shall survive

the death of the wrongdoer, and may be enforced

against his executor or administrator, either by

reviving against such personal representative suit

which may have been brought against the wrong-

doer himself in his lifetime, or by bringing an

original suit against his personal representative

after his death whether or not the death of the

wrongdoer occurred before or after the death of

the injured party.

‘‘Kvery action under this section shall be brought

within one year next after the right to bring same

shall have accrued, notwithstanding the provisions

of Section 5818.’’

**Section 5787.

‘*Every such action shall be brought by and in

the name of the personal representative of such

deceased person and within one year after his or

her death, but if any such action is brought within

said period of one year after said person’s death,

and for any cause abates or is dismissed without

determining the merits of said action, the time said

action is pending shall not be counted as any part

of such period of one year, and another suit may

be brought within the remaining period of said one

year as if such former suit had not been instituted.

* * * The jury in any such action may award such

damages as to it may seem fair and just, not

exceeding $10,000.00, and may direct in what pro-

portion that shall be distributed to the surviving

widow or husband and children and grandchildren

of the deceased, or if there be none such, then to the

parents, brothers and sisters of the deceased. * * *

But nothing in this section shall be construed to

deprive the Court of the power to grant any trials

as in other cases.’’

9)

The first sentence of Section 5786 and all of Section 5787

which is quoted herein, constituted the major portion of

the statute as it was originally enacted in 1871. Until 1926

there was only one limitation in the statute, that found in

the first sentence of Section 5787, which provides that

every such action shall be brought within one year after

the death of the deceased person. In 1926, the Legislature

of Virginia amended Section 5786 by adding to it the

second sentence of the first paragraph and the second para-

graph, without expressly repealing any portion of Section

9787. Acts of Assembly of Virginia, 1926, Chap. 507, p.

858. The limitation created by the amendment of 1926

differs from the limitation in Section 5787 in that it re-

quires every action ‘‘under this section’’ to be brought

within one year after ‘‘the right to bring same shall have

accrued.”’

The motions to dismiss were denied (R. 27) and sepa-

rate answers were filed (R. 28, 35, 36). Both petitioners

denied that they had been guilty of any negligence which

contributed to the death of Mrs. Hertz. The Hudson

Motor Car Company alleged that this action is barred by

the limitation in Section 5786 (R. 28, 33). The Motor

Wheel Corporation alleged, by incorporation of the

grounds set forth in its motion, that this action is barred

by the same limitation (R. 36, 37).

At the commencement of the trial, counsel for petitioners

orally moved for a judgment in their favor for the reason

that respondent’s complaint did not set forth the Wrong-

ful Death Act (R. 48). By leave of Court, respondent

then filed two supplements to his complaint setting forth

Sections 5786, 5787, 5788 and 5809 of the Virginia Code

(R. 42, 50, 57). The Motor Wheel Corporation subse-

quently filed an answer to the supplements, asserting that

this action is barred by the limitation in Sections 5786 and

LEAT LILES LILI

i

5787 (R. 45). Counsel for petitioners also moved that this

action be dismissed for the reason that it is barred by the

limitation in both of those sections (R. 53, 54, 57, 58).

At the conclusion of respondent’s case, a motion for a

directed verdict was made on behalf of both petitioners on

the ground that the action is barred by both of these

sections (R. 59). At the conclusion of all the testimony

the motion for directed verdict was renewed (R. 61).

On appeal to the Circuit Court of Appeals, petitioners

contended that the action is barred by the limitation in

both sections. The heading above the principal portion

of the argument in petitioner’s brief filed in that Court

is as follows:

‘‘The Court erred in failing and refusing to rule

as a matter of law that this action is barred by the

limitation contained in Sections 5786 and 5787 of

the Code of Virginia of 1936.’’

On application for rehearing, petitioners contended that

the only limitation applicable to this action is that in

Section 5787. The following portion of the brief filed by

petitioners on rehearing states the contention made by

petitioners at that time (R. 128):

‘‘We contend now that the limitation in Section

5787 relates only to actions for wrongful death,

whereas the limitation in Section 5786 relates only

to actions brought against the estates of wrong-

doers. It follows that the only limitation applicable

to actions for wrongful death against living wrong-

doers, is that found in Section 5787.”

In affirming the judgment entered by the District Court,

the Circuit Court of Appeals held that this action is not

barred by reason of the fact that it was not commenced

within one year after the death of Mrs. Hertz, inasmuch

as it was started within one year after the appointment of

7

respondent as administrator of his wife’s estate (R. 106,

110). The Court based its decision on these two conclu-

sions: First, the limitation in Section 5787 was repealed

by implication by the subsequent enactment of the limita-

tion in Section 5786 (R. 113). Second, Section 5786 should

be construed to mean that a cause of action for wrongful

death does not accrue until the appointment of an adminis-

trator for the decedent, and the limitation in that section

does not commence to run until that time (R. 114).

Consideration of three other sections of the Virginia

Code is necessary to an understanding of this case. The

applicable portions of those sections are as follows:

**Section 5809.

‘‘The period of one year from the death of any

party shall be excluded from the computation of

time within which, by the operation of any statute

or rule of law, it may be necessary to commence

any proceeding to preserve or prevent the loss of

any right or remedy.”’

**Section 5818.

‘*Eivery personal action, for which no limitation

is otherwise prescribed, shall be brought within five

years next after the right to bring the same shall

have accrued, if it be for a matter of such nature

that if a party die, it can be brought by or against

his representative; and, if it be for a matter not

of such nature, shall be brought within one year

next after the right to bring same shall have

accrued.’

**Section 5790.

‘“‘The right of action under Sections 5786 and

5787, shall not determine, nor the action, when

brought, abate by the death of the defendant, or

the dissolution of the corporation when a corpo-

a MAREE LIL TILL AL SOLE ELTON ERIE NS LOE IT OS ASAIN

8

ration is the defendant; and where an action is

brought by a person injured for damage caused by

the wrongful act, neglect or default of any person

or corporation, and the person injured died pending

the action, the action shall not abate by reason of

his death, but, his death being suggested, it may be

revived in the name of his personal representative.

If the death resulted from the injury, the declar-

ation and other pleadings shall be amended so as

to conform to an action under Sections 5786 and

5787, and the case proceeded with as if the action

had been brought under the said sections. But in

such cases there shall be but one recovery for the

same injury. And any right of action which may

hereafter accrue by reason of any injury done to

the person of another, and not resulting in death,

by the wrongful act, neglect, or default of any

person, shall survive the death of the wrongdoer,

and may be enforced against his executor or ad-

ministrator, either by reviving against such per-

sonal representative a suit which may have been

brought against the wrongdoer himself in his life-

time or by bringing an original suit against his

personal representative after his death whether or

not the death of the wrongdoer occurred before or

after the death of the injured party. * * *”’

Il.

REASONS RELIED ON FOR THE ALLOWANCE

OF THE WRIT

1. The decision of the Circuit Court of Appeals that the

enactment of the limitation now found in Section 5786 re-

pealed the limitation in Section 5787 by implication and

that this action is not barred by the latter, is probably in

conflict with the following applicable decisions:

Richmond v. Sutherland, 114 Va. 688,

Forbes & Co. v. Southern Cotton Oil Co., 130 Va.

245,

Scott v. Lichford, 164 Va. 419.

Piedmont Finance Corp. v. Commonwealth, 146

Va. 287,

City of Clifton Forge v. McDaniel, 143 Va. 325.

Manuel, Administrator v. Norfolk & Western R.

Co., 99 Va. 188.

Dowell v. Cox, 108 Va. 460.

Steffey v. King, 126 Va. 120.

2. The decision of the Circuit Court of Appeals that

Section 5786 should be construed to mean that the limita-

tion therein does not commence to run until the appoint-

ment of an administrator for the decedent, is probably con-

trary to the following Virginia statute and the unanimous

decisions of all other courts which have ruled on this

question:

Section 5809 of the Code of Virginia.

Reading Co. v. Koons, Administrator, 271 U. 8. 58.

Bickford v. Furber, 271 Mass. 94.

Seaboard Air Line Ry. v. Brooks, 151 Ga. 625.

Faulkner’s Administrator v. Louisville & Nash-

ville R. Co., 184 Ky. 533.

EGE LEME EEE FS ORE IU BLE

Shee TARO Rep

10

Terbush v. Boyle, 217 Wis. 636.

Hanna Administrator v. Jeffersonville R. Co., 32

Ind. 113.

Wherefore, your petitioners pray that a writ of certio-

rari issue under the seal of this Court, directed to the

United States Circuit Court of Appeals for the Sixth Cir-

cuit commanding said Court to certify and send to this

Court a full and complete transcript of the Record and of

the proceedings of the said United States Circuit Court of

Appeals had in the case numbered and entitled on its

Docket, No. 8193, the Hudson Motor Car Company, a Michi-

gan Corporation, Appellant, v. Gustav C. Hertz, Adminis-

trator ¢. t. a. of the Estate of Lois Crane Hertz, Appellee,

and in the case numbered and entitled on its Docket, No.

8914, Motor Wheel Corporation, a Michigan Corporation,

Appellant, v. Gustav C. Hertz, Administrator e. t. a. of the

Estate of Lois Crane Hertz, Appellee, to the end that these

causes may be reviewed and determined by this Court as

provided for by the statutes of the United States; and that

the judgments herein of the said United States Circuit

Court of Appeals be reversed by this Court, and for such

other further relief as to this Court may seem proper.

Dated: November 12, 1941.

THE HUDSON MOTOR CAR COM-

PANY, a Michigan Corporation.

MOTOR WHEEL CORPORATION,

a Michigan Corporation.

By: IVIN E. KERR,

KERR, LACEY & SCROGGIE,

Counsel for Petitioners.

POD

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