Petition for Writ of Certiorari — George R. Cooke Co. v. Maki

SUBJECT INDEX

Page

Petition for a Writ of Certiorari. .....<.0ccceseees 1-10

I. Summary Statement of Matter Involved.... 2-5

If. Basis of Jurisdiction to Review............ 5

TEE, CRON S ROMUNNON oo u's is w bak aap weeds 5-7

IV. Reasons Relied Upon for the Allowance of

SE SEU Ai cobb ee tech She eee oP ee res tas 7-10

Brief in Support of Petition for Writ of Certiorari.. 11-27

eh ON Ns. oko oe bees hee tiled 11

CPUOUIE OT PUTIMIOIOR, oo ce rehab ieswctet ess 12

Concise Statement of Case................506- 12-13

ee ee ere rer ey pe rr 13

PO RC ere Tr ey ree ee me 14-26

Bummary of Arqamett. .3 6.5 066056080055% 14

Point I1—In the absence of a controlling Fed-

eral statute, a Federal District Court

should apply the law of the state where

such court is sitting in so far as limita-

tions of actions are concerned........... 15

Point II—The Minnesota Statute of Limita-

tions relied upon by the respondent is a

general statute of limitations and not a

special statute dealing with the existence

of a cause of action and the decision of the

Cireuit Court of Appeals to the contrary

is in conflict with the applicable loeal de-

cisions of the Supreme Court of Minnesota

and the Supreme Court of Michigan..... 16-19

Point I11I—Even if the Minnesota Statute of

Limitations relied upon by the respondent

were such a special statute affecting sub-

Le STR ERLE SERRE aT

Nn PE alah SL ABA OL eS RRR TE NRT RSS RNS

stantive rights as held by the Circuit

Court of Appeals, still suit could not be

brought in Michigan after the expiration

of the time provided for in the applicable

section of the general Michigan Statute of

Limitations and the holding of the Cireuit

Court of Appeals to the contrary is in con-

flict with the applicable decisions of the

Supreme Court of the State of Michigan. .

Point I[V—The decision of the Cireuit Court

of Appeals in this case in respect to the

applicability of the Michigan Limitations

Statute is in conflict with the decision of

other Circuit Courts of Appeal..........

OER RSENE ARNE MARE or atten At Ne

Appendix 1—Mason’s Minnesota Statutes of 1927,

Ne be a habeascunnd chase suns viernes’

Appendix 2—Compiled Laws of Michigan 1929, See-

tion 13976, as amended by Public Acts No. 21—

SEES EE EE En PPO A ae ERE

Appendix 3—Mason’s Minnesota Statutes of 1927,

So. Se a Aeneas whwin shun cee’ waele's

INDEX TO CASES CITED

Bement v. Railway Co., 194 Mich. 64; 160 N. W. 424..

8, 9, 18, 23

Blackburn v. Blackburn, 124 Mich. 190; 82 N. W. 835

Brunswick Terminal Co. v. National Bank of Balti-

more, Se Ped. Gio. (C. ©. A. 4)... ccc ccccces

Buzzn v. Muncey Cartage Co., 248 Mich. 64; 226 N.

Se aid eels e ek ohne koe CA Cu did sd W cewek

Campbell v. Haverhill, 155 U. S. 610, 39 L. Ed. 280. .

Continental Illinois Bank & Trust Co. v. Best, 20 Fed.

wupe. G0 (1. ©. SD. N. ¥. 1997)... ...........

Page

19-23

23-26

27

29

30-31

yx

8, 22

SETI TETRIS POM LR IOS TE

Beato RAS

iii

Page

Davis v. Mills, 194 U.S. 451, 48 L. Ed. 1067......... 26

Dexter v. Edmands, 89 F. 467 (C. C., D. Mass. 1898) 8,19

Gorman v. Circuit Judge, 27 Mich. 138.............. 8, 21

Griffin v. MeCoach, 313 U. S. 498, 85 L. Ed. 1481..... 12, 15

1893), certiorari denied 189 U.S. 514.......... 9, 23

In re Daniel’s Estate, 208 Minn. 420; 294 N. W. 465..

1, 17,33

Keep v. National Tube 0, 154 Ped, 10-0 25

Klaxon Co. v. Stentor Electric Mfg. Co., 313 U. 8.

sete doa acon Eos, PTE Ee 12

Kozisek v. Brigham, 169 Minn. 07; 210 N. W. 622 8, 16

Negaubauer v. Great Northern R. R. Co., 92 Minn.

gus Eth oe Rei fans PTO EOE ee 25

Platt v. Wilmot, 118 Fed. 1019 (C. C. A. 2nd C. 1902,

memo. dee.), affirmed 193 U. S. 602 (1904)...... 9, 23

sinsaihtaed heceog OEE Tee ETE EEA 8, 21

Ten Eyek v. Wing, 1 Mich. 40..................... 8, 21

Theroux v. Northern Pacific Railway Co., 64 Fed. 84

siaine eaten CECT OO pean See 25

Wilson v. Massengill, 124 F, Cae) Mi nce icaeine: 26

INDEX TO STATUTES AND AUTHORITIES

CITED

Compiled Laws of Michigan, 1929, Section 13976.... 3,19

Judicial Code, Section I Nerecietie otk 5, 12

Mason’s Minnesota Statutes of 1927, Section 4174. . 2

Mason’s Minnesota Statutes of 1927, Section 9191... .4, 6,16

Restatement of Laws, Conflicts of Laws, See. 603... 21, 23

ity A ee een See Mbe i ekae had

DUZBISTAL RT Ge IR MA Sle ne Gi Chee EE LTS

IN THE

Supreme Court of the United States

| OCTOBER TERM, 1941

GEORGE R. COOKE COMPANY,

Petitioner,

vs.

NICK MAKI,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE SIXTH CIRCUIT.

To the Honorable, the Chief Justice and the

Associate Justices of the Supreme Court

of the United States:

Your petitioner, George R. Cooke Company, defendant

in the above entitled matter, respectfully shows:

I.

SUMMARY STATEMENT OF MATTER

INVOLVED

This is a civil action instituted in the United States

District Court for the Eastern District of Michigan, by

Nick Maki, respondent herein, as plaintiff, against George

R. Cooke Company, a Michigan corporation, petitioner

herein, as defendant, to recover for injuries to the person

of the plaintiff.

The jurisdiction of the District Court was based solely

upon diversity of citizenship and the questions involved

arise solely upon the pleadings, to-wit, the Complaints

(R. 4-7, 10-13), the Motion to Dismiss (R. 8) and Objection

to motion to File Amended Amended Complaint (R. 13).

Respondent in his ecoiuplaints alleged that he had been

employed by the petitioner in Minnesota for the period

from August 1934 to May 13, 1935 (R. 4, 10); that the

petitioner owed a duty to the respondent to provide

machinery of a kind and nature to eliminate all foreign

materials from the air in the tunnel where respondent

worked and a duty to keep the said place in condition so

that the air would be free from all foreign substances

(R. 5, 11); that the petitioner was negligent in failing to

provide such machinery and in failing to keep the tunnel

in such condition as to have the air in the tunnel free from

all foreign substances (R. 6, 12); that the petitioner, in

addition to a violation of such duty, had violated Section

4174 of Mason’s Minnesota Statutes of 1927, requiring an

employer to provide in each work room proper and suf-

ficient means of ventilation and to maintain proper and

sufficient ventilation (R. 5, 11), and that ‘‘as a consequence

and proximate result of the defendant’s neglect as afore-

3

said * * *’’ respondent was caused to breathe foreign

materials, causing respondent, on or about December 15,

1936, to become affected with pneumoconiosis and tubercu-

losis and claimed damages therefor in the sum of Twenty-

five Thousand Dollars ($25,000.00) (R. 6, 12).

The suit was instituted in the District Court for the

Kastern District of Michigan, Southern Division, on July

21, 1939 (R. 1), more than three (3) but less than six (6)

years after the last date of respondent’s employment and

less than three (3) years from the date on which respond-

ent alleged he became ‘‘affected with pneumoconiosis and’

tuberculosis.’’

Petitioner moved to dismiss (R. 8) and objected (R. 13)

to the complaints on the ground that the court lacked

jurisdiction over the subject matter and that the com-

plaints failed to state a claim against the petitioner upon

which relief could be granted. The basis of the motion

and objection was, in brief, that the respondent’s cause of

action, if any, accrued on or before May 18, 1935 (the

last date upon which respondent was in the employ of the

petitioner) and not within three (3) years immediately

prior to the commencement of the action and that the

maintenance of such action was barred by the provisions

of Section 13976 of the Compiled Laws of Michigan of

1929, which section provided, among other things, that

actions to recover damages for injuries to person or prop-

erty shall be brought within three (3) years from the time

said action accrued and not afterwards (R. 8-9, 13, 14).

The District Court held that respondent’s claimed cause

of action accrued not later than May 13, 1935 (the last

date upon which respondent was employed by petitioner)

and that more than three (3) years having elapsed from

such date prior to the institution of the suit its mainte-

POSTE

4

nance in a United States District Court, sitting in Michi-

gan, was barred by the Michigan Statute of Limitations

and dismissed the action (R. 3, 15).

Respondent appealed to the Circuit Court of Appeals

for the Sixth Circuit, from the Order dismissing the action,

relying upon two grounds—(R. 16)

(1) That the time within which the cause of action

should be commenced was governed by the laws of

the State of Minnesota, relying particularly upon

Section 9191 of Mason’s Minnesota Statutes of

1927, providing a 6-year limitation period;

and

(2) That the respondent’s cause of action did not ac-

erue until December 15, 1936 and hence was not

barred by Section 13976 of the Compiled Laws of

Michigan of 1929, providing a 3-year period.

The Circuit Court of Appeals reversed the Order of the

District Court and remanded the case for trial upon its

merits (R. 19), holding that the statute of limitations

applicable in this proceeding was Section 9191, Mason’s

Minnesota Statutes of 1927, that being the statute of the

state in which the cause of action arose, and that prosecu-

tion of the claim was not barred by the applicable Michi-

gan statute (R. 20-24). In view of this holding, the Circuit

Court of Appeals did not pass upon the question of whether

the cause of action accrued on or before the last day of

respondent’s employment by the petitioner or upon the

date upon which respondent alleged the pneumoconiosis

and tuberculosis developed (R. 24) and this question is not

involved in this petition.

The Opinion of the Cireuit Court of Appeals below, filed

on January 9, 1942, is reported in 124 F. (2d) 663 and will

be found at pages 20-24 of the Transcript of Record filed

5

herewith. The District Court filed no Opinion. The stat-

utes involved, to-wit, the Section of the Minnesota ventila-

tion statute, violation of which is claimed by respondent

(Mason’s Minnesota Statutes of 1927, Section 4174), the

Michigan Statute of Limitations (Compiled Laws of Michi-

gan, 1929, Section 13976) and the Minnesota Statute of

Limitations relied on by respondent (Mason’s Minnesota

Statutes of 1927, Section 9191) are set forth as appendices

1, 2 and 3, respectively, to the brief in support hereof and

filed herewith and will be found on pages 29 to 32.

II.

BASIS OF JURISDICTION TO REVIEW

Jurisdiction is invoked under Section 240(a) of the

Judicial Code, as amended by the Act of February 13,

1925, 43 Stat. 938, 28 U. S. C. 347(a).

The Opinion of the Cireuit Court of Appeals for the

Sixth Cireuit was filed on January 9, 1942 (R. 20) and

the Judgment of the Circuit Court of Appeals reversing

the Order of the District Court and remanding the cause

of trial upon its merits was entered on the same day

(R. 19). Petition for Rehearing was filed on February 6,

1942 (R. 25) and denied by the Cireuit Court of Appeals

on February 12, 1942 (R. 37).

Ill.

QUESTIONS PRESENTED

Two fundamental questions are presented—

(1) In a suit instituted for the recovery of damages

for injuries to the person of the plaintiff, claimed to have

resulted from the failure of the defendant to comply with

a statute of the state where plaintiff was employed, requir-

ing proper and sufficient ventilation, is another separate

eR mar AN rae > , f 5 a 0 LT PN: PGS OE AND DOLE YAR LAA DONT At Ai DONG LA RRA NO

6

and distinct statute of the same state providing that a

large number of different types of actions, including actions

‘‘upon liability created by statute,’’ shall be commenced

within six (6) years, a limitation statute affecting only

actions commenced in such state or does such limitation

statute have extra territorial effect and control the time

within which such suit must be brought in every jurisdic-

tion?

In the instant case respondent relied upon a violation of

the Minnesota ventilation statute (R. 5, 11) and the Circuit

Court of Appeals held that an entirely separate and dis-

tinct statute (sub-section 2 of Section 9191 of Mason’s

Minnesota Statutes of 1927) was not solely remedial in

character but was a substantive part of a newly created

right and controlled the time within which the right might

be enforced wherever brought.

Petitioner contends that the Circuit Court of Appeals

erred in this respect and that the above-mentioned Minne-

sota limitations statute is but a general statute of limita-

tions controlling the remedy in Minnesota but having no

effect outside of Minnesota.

(2) Where such an action is brought in a District Court

sitting in a state other than the state where the cause of

action accrued, the general statute of limitations of which

provides that actions to recover damages for injuries to

persons shall be brought three (3) years from the time

such action accrues and not afterwards, may such action

be maintained if not instituted within three (3) years from

its accrual?

The Cireuit Court of Appeals not only held that the

Minnesota statute was more than a remedial statute and

conditioned the right created, but that it operated in a suit

instituted in the District Court sitting in Michigan to the

exclusion of the applicable Michigan Statute of Limitations.

MES, SRG ELIE, OSI ES RAIL OR

7

Petitioner contends that the Circuit Court of Appeals

erred in this respect—that even though the Minnesota

statute be considered as one *‘conditioning’’ a newly created

right and preventing its enforcement anywhere after the

expiration of the time there mentioned, it does not operate

to the exclusion of the general remedial statute of the

forum and permit an action after the expiration of the

period established in an applicable statute of the forum.

In addition to the two foregoing fundamental questions

one further matter is involved—respondent’s complaints

counted not only on violation of the Minnesota ventilation

statute but also on common law negligence. Even under

the holding of the Cireuit Court of Appeals such an action

was barred and the Order of the District Court should

have been sustained to the extent that it dismisses that

portion of the cause of action based on common law negli-

gence.

IV.

REASONS RELIED UPON FOR THE ALLOWANCE

OF THE WRIT

1, The Circuit Court of Appeals in holding that the

Minnesota Statute of Limitations relied upon by the re-

spondent was more than a general statute of limitations

controlling the remedy and had extra territorial effect has

decided an important question of local law in a way in con-

flict with the applicable local decisions.

Such holding appears to be contrary to the law of

Minnesota as indicated in the following decisions of the

Minnesota Supreme Court:

In re Daniel’s Estate, 208 Minn. 420; 294 N. W.

PAG NCL ABR Rb AC HAE yh es CS PEO eI Kite ‘ ‘ oR NaH WIENER MAE IND a NO TA 5 Di PR NN CO a

8

Kozisek v. Brigham, 169 Minn. 57; 210 N. W.

622.

It is also in conflict with the law of Michigan as indi-

cated in—

Bement v. Railway Co., 194 Mich. 64; 160 N. W.

424.

The decision of the Circuit Court of Appeals that the

Minnesota statute of limitations was something more than

a remedial statute is also contrary to the holding of the

Circuit Court for the District of Massachusetts.

Dexter v. Edmands, 89 F. 467 (C. C., D. Mass.

1898).

2. The Cireuit Court of Appeals in this case in not

giving effect to the controlling statute of limitations of

the forum has decided an important question of local law

in a way in conflict with applicable local law and decisions.

While no Michigan case has been found in which the

facts were precisely the same as the case at bar, it is

respectfully submitted that the holding of the Circuit

Court of Appeals that the applicable Michigan Statute

of Limitations is not controlling is in conflict with the law

of Michigan as indicated by the following decisions of the

Supreme Court of Michigan:

Ten Eyck v. Wing, 1 Mich. 40;

Gorman v. Circuit Judge, 27 Mich. 138;

Shadock v. The Alpine Plank Road Co., 79 Mich.

7; 44. N. W. 158;

Home Life Co. v. Elwell, 111 Mich. 689; 70 N. W.

334;

Blackburn v. Blackburn, 124 Mich. 190; 82 N. W.

835;

9

Bement v. Railway Co., 194 Mich. 64; 160 N. W.

424;

Buzzn v. Muncey Cartage Co., 248 Mich. 64; 226

N. W. 836.

3. The decision of the Circuit Court of Appeals in this

case that the action might be maintained within the time

limited by the law of the state where the cause of action

accrued, even though after the time established by the

limitation statute of the forum is in conflict with the

decisions of other Circuit Courts of Appeal.

In the Second and Seventh Circuits it has been held that,

although a foreign statute of limitations, part of a statu-

tory cause of action, might have the effect of destroying

the cause of action so that the suit thereon might not be

maintained anywhere, such statute does not operate to

extend the time prescribed in an applicable limitation

statute of the forum.

Hutchings v. Lamson, 96 Fed. 720 (C. C. A. 7th C.

1893), certiorari denied 189 U. S. 514;

Platt v. Wilmot, 118 Fed. 1019 (C. C. A. 2nd C.

1902, memo dec.), affirmed 193 U.S. 602 (1904) ;

See also Continental Illinois Bank & Trust Co. v.

Best, 20 Fed. Supp. 80 (D. C., S. D., N. Y.

1937).

It is respectfully submitted that the question of the

extra territorial effect of a statute of limitation of the

state in which a cause of action accrues, when different

than a statute of limitations of the state in which the suit

is brought, presents a matter of great general importance

which should be passed upon by this Court and that this

Court should invoke its supervisory jurisdiction in this

respect in view of the conflict between the decision of the

Circuit Court of Appeals in this case and the applicable

10

local decisions of the states of Michigan and Minnesota,

especially in view of the conflict of the decision herein and

that of other Circuit Courts of Appeal.

Wherefore your petitioner prays that a Writ of Cer-

tiorari be issued out of and under the seal of this Court,

directed to the Cireuit Court of Appeals for the Sixth

Circuit, commanding said Court to certify and send to

this Court a full and complete transcript of the record

and of the proceedings in the said Cireuit Court of Appeals

had in the case numbered and entitled on its docket No.

8774—Nick Maki, appellant, v. George R. Cook Company,

a Michigan corporation, appellee, to the end that this

cause may be reviewed and determined by this Court as

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

the Judgment herein of the said Circuit Court of Appeals

be reversed by this Honorable Court, and that your peti-

tioner may have such other and further relief as to this

Court may seem proper.

GEORGE R. COOKE COMPANY, Petitioner,

By Thomas H. Adams,

Counsel for Petitioner.

CHARLES E. LEWIS,

HILL, HAMBLEN, ESSERY & LEWIS,

Detroit, Michigan,

Of Counsel for Petitioner.