Brief for the Respondent in Opposition — Massengill v. Wilson

Supreme Court brief1942

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INDEX.

TABLE OF CONTENTS.

PAGE

Ase) OF THE CASE ...................:................. 1

BERaU Peek LOVE VED ................. i es ata cases 3

SUUPRIAE ER MRPEMGD: SWRREURCIN A TORD ccc coi cencs Sicccescdosoececmesescsivccn 7

pummnns OF ANGUMENT ...... 8

| RSE SAAB, Cr RE eee ET 9

RAE Ree eee) ena IA OO IC g

a BREE ee BE OI a gol) WY, 14

oe, YET RCI RT RU eM eet Shara FON Gee eae, 14

Eee Ee acca Ae ee MIC wees aL 18

SAE LEI Eee tt PEN ae ERT Ae Poe NE ae Bate Ms 18

EPR R a RAG NERO ONT, Se PL GMO an aS 24

eet cet ce 4 ETRE CRY DMNA, RO ELEM TR te 26

TABLE OF CASES.

Allan-Bradley—Local y. Wisconsin EmpI’t Rel. Bd.,

Vol. 86——No, 11 U. S. Supreme Court Law Ed. Ad-

vance Opinions (1942) 802, 806 00.2.........cccccccccccceeeeee. 17

Barnes v. Barnes,—157 Tenn. 3932. ...................................... 24

Brunswick Terminal Co. v. National Bank of Baltimore

99 Fed. 635 (Certiorari denied, 178 U. S. 611, 44 L.

SUIS itm ache shinai ilebiipiigeicatiatinkepeateapbisee at, 32

pernoer ¥. Prwin, 82 Tenn: 7ai 12

Bennett v. Spartanburg Ry. ete. 97 S. C. 27, 81S. E. 189... 20

Sn ec, 06, Oe 14

Claussen v. Brothers, 148 S. C. 1, 145 S. E. 539, 61 A. L. R.

spe TE ot OE a Rl OE TER ES 19

Coffman v. Wood, 5 Fed. Supp. 706 20 14, 15

Cristilly v. Warner, 87 Conn. 461, 88 Atl. 711. 15

pexter v. Edmonds, 8) Fed. 467... 11

Davis v. Mills, 48 L. Ed. 1067, 194 U. S. 451. 0 11

Davidson Benedict Co. v. Severson, 109 Tenn. (1 Cates)

Se EE EELS LEEPER cod ERNE RENE ME IE 21

Dennis v. Atlantic Coast Line R. Co. 70 S. ¢. 254, 49

S. E. 869, 106 Am. State Rep. 746 0000000 18

Il.

PAGE

Eggens v. Canadian Northern Ry. Co. 255 Fed. 397, (cer-

tiorari granted 249 U. S. 594, 63 L. Ed. 793), (re-

versed 252 U. S. 551, 64 L. Ed. 713). .......................... 9

BESEOOEE We PMO RW ROG, TI crsiccssisvcnencensesicninaccsoavernsecanese 21

Fitzsimmons v. Johnson, 90 Tenn. 443 _20002202202222.22....... 12

Fowlkes, H. P., Admr. v. N. & D. R. R. Co. 65 -Tenn. (9

Heisk) 829, (5 Baxter) 663 ..........5, 6, 16, 17, 21, 22, 23

Federal Reserve Bank v. Atlanta Trust Co., 91 Fed. (2d)

ne Pe a i I a ls ccs coni and hiren coninomnnoewe 22

Gassaway v. Hopkins, 38 Tenn. 583. -.......0..0.0.202220..2..--- 12

Grainger v. Greeneville S. & A. Ry., 101 S. C. 399. 0... 20

pe Gat Me a). | ee 12, 17

Hutchins v. Lamson, 96 Fed. 720 (certiorari denied 189

ee i, TON WN sapere niietnnretetncneenennnsotnnedanisins 10

Kansas City Southern Ry. Co. v. Maynor, 209 Fed. 611 ....11, 14

Keep v. National Tube Co., 154 Fed. 121 ~.200202202........ 11, 15

Love v. Southern Ry., 108 Tenn. 104. ............................. 21

Louisville & N. R. R. Co. v. Burkhart, 154 Ky. 92, 157

i ae UU Nn Ms Re EID WIDE s pecedacctncacnyatnenenccchastedsennsn 15

In Re: Mayo’s Estate, 60 S. C. 401, 38 S. E., 634, 54 A. L.

pe ENTREES See TS AE se ee ee 19, 21

Negaubauer v. Great Northern Ry. Co., 95 Minn. 184,

SN, CI TP ccc cee nncctnes 14

Osteen v. Southern Ry. 76 S. C. 368, 57 S. E. 196. 0... 19

Parsons v. American Trust & Banking Co., 168 Tenn.

AEM Me, ME I cosine scart brescnceniireeedaccenpsininamneial 6, 12, 13

Platt v. Wilmot, 118 Fed. 1019, 193 U. S. 602, 48 L. Ed.

SEA INET EERIE FoR SB ose oe ee 10, 12

Ramsden v. Knowler, 151 Fed. 721. ...............................0.-. 10

Sharp v. Cincinnati ete., Railroad Co., 133 Tenn. 1. _...... 17

Thereaux v. Northern Pac. Ry. Co. 64 Fed. 84 ....11, 12, 14, 15

The Harrisburg, 119 U. S. 199, 30 L. Ed. 358. 000002... 12, 14

eT | See ene 14

Tieffenbrun v. Flannery, 198 N. C. 397, 151 S. E. 857,

I ict Si hh ca heli hichccckis tase ecbghindianah 15

Weaver v. Baltimore & Ohio R. R., 21 D. C. 499 _....... 14, 15, 18

Whaley v. Catlett, 103 Tenn. 347, 53S. W. 131 _....... 21, 22, 23

Wellman v. Bethea, 243 Fed. 222. 20... ccc cccescecsseee 19

Whitlow v. Nashville ete., Railroad Co. 114 Tenn. (6

Cates) 344. ... 17

AMES SE ee A

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1941.

SAMUEL Evans MASSENGILL,

Petitioner,

Vs.

J. T. Witson, Administrator of the Estate of Pearl Locklair,

deceased,

Respondent.

BRIEF ON BEHALF OF RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI.

STATEMENT OF THE CASE.

This action was originally brought by Respondent in the

District Court of the United States for the Eastern District

of Tennessee, for wrongful death occurring in South Caro-

lina, caused by Petitioner’s gross negligence in manufactur-

ing and widely distributing for sale to the public without

adequate preliminary tests, and without proper warning

labels, a deadly poison known as Elixir Sulfanilamide. Jur-

isdiction was obtained under diversity of citizenship, Peti-

tioner being a citizen and resident of Bristol, Tennessee,

Respondent a resident of South Carolina, and the amount

involved being more than $3,000.00.

As alleged in the declaration, Pearl Locklair, a resident

of Charleston, South Carolina, whose death is the subject of

ee ee

this action, contracted a sore throat and under a doctor's

prescription began taking this Elixir Sulfanilamide on Sep-

tember 24, 1937, and on October 4, 1937, as a result thereof,

died in a hospital in Charleston, South Carolina. The Re-

spondent, J. T. Wilson, also a resident of Charieston, South

Carolina, after qualifying as Administrator of her estate in

South Carolina, and as Ancillary Administrator in Tennes-

see, brought this suit on March 9, 1940, under the South

Carolina death statutes, Sections 411, 412 and 413 of Title 5,

Chapter 15, Code of Laws for the State of South Carolina for

the year 1932. These statutes were enacted into law at the

same time and in the same act, and were in effect at the

time this cause of action arose. (Record page 8, Section

3). The Petitioner filed a plea reiying upon Section 8595 of

Williams Tennessee Code Annotated which provides a one

year limitation from the date of the injury for personal in-

jury actions. Respondent filed a motion to strike this plea,

contending that Section 413 of the South Carolina Code of

1932 (which provides a six year limitation from the date of

death for actions arising under said Section 411 of the South

Carolina Code) controls, rather than said Tennessee Code

Section 8595. (Record page 8).

The District Court overruled this motion to strike, sus-

tained Petitioner’s plea of the statute of limitations, and dis-

missed the case, on the ground that the causes of action

created by Section 411 of the South Carolina Code and Sec-

tion 8236 of Williams Tennessee Code Anno. were the same,

and that Section 8595 of Williams Tennessee Code Anno.

was a specific limitation on causes of action for death in

Tennessee, and was therefore applicable to causes of action

arising in South Carolina under Section 411 of the South

Carolina Code. (See Opinion Record pages 9 and 10).

On appeal from this decision to the United States Circuit

Court of Appeals for the Sixth Circuit, the Circuit Court re-

versed the holding of the District Court and remanded the

case for trial on its merits, holding (1) that the causes of

action created by Section 411 of the South Carolina Code

and Section 8236 of Williams Tennessee Code Anno. were

entirely different, the former being a new and separate

cause of action for death in the deceased’s beneficiaries, the

latter being a cause of action for personal injuries in the

deceased which survives his death for the benefit of desig-

nated beneficiaries: (2) “Where, by statute, a state creates

a cause of action for death by wrongful acts and prescribes

in the same statute a limitation period for action, such limi-

tation will be applied in the forum of a sister state, even

though the period of limitation for like actions in the latter

state is shorter”; and (3) that the Tennessee Supreme

Court has never passed upon the question of whether the

limitation statute Section 8595 of Williams Tennessee Code

Anno. applies to a foreign death statute. (See Record page

14 et seq.).

From the action of the Circuit Court of Appeals Petitioner

has made application to this Court for Writ of Certiorari.

STATUTES INVOLVED.

a. South Carolina Statutes.

Section 411. “Whenever the death of a person shall be

caused by the wrongful act, neglect, or default of another,

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 recover damages in respect thereof, then, and in

every such case, the person or corporation who would have

been liable, if death had not ensued, shall be liable to an

action for damages, notwithstanding the death of the per-

son injured, although the death shall have been caused

under such circumstances as make the killing in law a

felony.”

Section 412.) “Every such action shall be for the benefit

of the wife or husband and child, or children, of the person

whose death shall have been so caused; and if there be no

such wife, or husband, or child, or children, then for the

benetit of the parent or parents; and if there be none such,

then for the benefit of the heirs at law of the distributees of

the person whose death shall have been caused, and shall be

brought by or in the name of the executor or administrator

of such person; and in every such action the jury may give

such damages, including exemplary damages where such

wrongful act, neglect or default was the result of reckless-

ness, wilfulness, or malice, as they may think proportioned

to the injury resulting from such death to the parties re-

spectively, for whom and for whose benefit such action

shall be brought. And the amount so recovered shall be di-

vided among the before mentioned parties, in such shares as

they would have been entitled to if the deceased had died

intestate and the amount recovered had been personal

assets of his or her estate.”

Section 413. “All such actions must be brought within

six vears from the death of such person, and the executor or

administrator, plaintiff in the action, shall be liable to costs

in case there be a verdict for the defendant, or non-suit or

discontinuance, out of the goods, chattels, and lands of the

testator or intestate, if any.”

b. Tennessee Statutes.

Section 8236 of William’s Tennessee Code Anno. (1954),

does not create a new cause of action in the beneficiaries

based upon the death of their deceased, but simply preserves

the injured party’s right of action for personal injuries

which would otherwise be extinguished by his death. Sec-

tion 8236 is as follows:

“Right of action for wrongful injuries resulting in

death or for wrongful killing does not abate, but

passes to whom.—The right of action which a per-

son, Who dies from injuries received from another,

or Whose death is caused by the wrongful act, omis-

sion or killing by another, would have had against

the wrongdoer, in case death had not ensued,

shall not abate or be extinguished by his death,

bul shall pass to his widow, and, in case there is no

widow, to his children or to his next of kin; or to

his personal representative, for the benefit of his

widow or next of kin, in either case free from the

claims of creditors. (1849-50, ch. 58, see. 1; 1851-52,

ch. 17; 1871, ch. 78 see. 1.)”

Tennessee, however, has no specific statute of limitations

under legislative enactment which applies directly to death

cases arising either in Tennessee under Section 8236, or in

a foreign state. In the absence of such a statute the Supreme

Court of the State of ‘Tennessee, in the case of H. P. Fowlkes

vo NL & D. RR. Co. (1872) 65 Tenn. (9 Heisk.) 829, has held

that Section 8595 of William’s Tennessee Code Anno. (1934),

which set a limitation of one year on causes of action for

personal injuries, is also applicable to the Tennessee Code

Section 8236 under which the cause of action of the deceased

for personal injuries survives his death. Section 8595 is

as follows:

“One year for libel, personal injuries, ete.—Actions

for libel, for injuries to the person, false imprison-

ments, malicious prosecution, criminal conversa-

tion, seduction, breach of marriage promise, and

statutory penalties, within one year after cause of

action accrued.”

The limitation of one year for personal injuries is made

applicable to Section 8236 of the ‘Tennessee Code under the

case of H. P. Fowlkes, Admr. v. N. & D. BR. R. Co... supra, be-

cause the cause of action which accrues is one for personal

injury in the deceased, and is simply preserved by Section

$236 for certain designated beneficiaries upon his death. Con-

sequently the limitation of one year runs from the date the

‘ause of action accrues in favor of the deceased, namely,

the date he was injured.

The Supreme Court of Tennessee has never passed upon

the question of whether this personal injury limitation in

Tennessee would apply to a cause of action for wrongful

death arising in a foreign state under a statute which

creates a new cause of action in the beneficiaries of the de-

ceased, and that comes into existence and accrues to them

only upon the death of the deceased, rather than a statute

like the Tennessee Code Section 8236, which preserves the

right of action the deceased had for personal injuries for

the benefit of certain beneficiaries. See the case of Parsons

Vv. Amertean Trust and Banking Company, 168 Tenn. 49, 73

S. W. (2d) 698. (See Opinion Circuit Court of Appeals

Reeord p. 19). Nor has the Supreme Court passed upon

the question of whether the Tennessee Code Section 8595

applies to a foreign death statute of any nature. Neither

have counsel for Petitioner in their brief pointed out any

case Where the Supreme Court of ‘Tennessee has directly

passed upon this question.

Tennessee also has a general statute of limitation govern-

ing all cases not expressly provided for, namely, Section

8601, which is as follows:

“Actions against guardians, executors, administra-

tors, sheriffs, clerks, and other public oflicers on

their bonds, actions on judgments and deerees of

courts of record of this or any other state or gov-

ernment, and all other cases not expressly pro-

vided for, shall be commenced within ten years

after the cause of action accrued.” (Italics ours).

QUESTIONS PRESENTED.

Does the petition for writ of certiorari set forth any proper

reason for granting the writ as required by Rule 38 (5)

(b) of this Court?

Il.

Does the Tennessee limitation of one year for personal

injury actions (Sec. 8595) control the time within which

action for death caused by wrongful act in South Carolina

must be brought in Tennessee under the applicable South

Carolina statutes, Sections 411, 412 and 413 of Title 5, Chap-

ter Lo, Code of 1982?

More particularly this main question is composed of two

parts, decision upon either one of which would determine

whether Section 8595 of Wiiliam’s Tennessee Code Anno.

(1934) controls the bringing of this action in Tennessee.

These questions are as follows:

1. Whether the South Carolina specific limitation (Sec.

413) of six years for death action arising in South Carolina

under Section 411 of the South Carolina Code controls as a

matter of right the time within which action can be brought

in Tennessee under South Carolina Code Section 411.

2. If some Tennessee statute of limitation must control

the action at bar prosecuted under South Carolina Code

Section 411, which Tennessee limitation is applicable to the

cause of action created in Section 411 of South Carolina

Code, Seetion 8595 or Section 8601 of William's Tennessee

Code Anno. (1934)?

SUMMARY OF ARGUMENT

The petition for writ of certiorari is insuflicient because

it does not set forth any proper reason for the allowance of

the writ as required by Rule 38 (5) (b) of this Court.

Il.

There is no error in the action of the Circuit Court of Ap-

peals in setting aside the judgment of the District Court

and remanding the case for trial on its merits, because,

A. Section 413 of the South Carolina Code of 1982, pro-

viding a limitation of six years for actions brought under

Section 411 of the South Carolina Code, is a specific limita-

tion set up at the time the new cause of action was created;

is a matter of right and not a matter of remedy, and, there-

fore, goes with the cause of action created by Section 411

as a matter of right wherever it is sued upon, and is con-

trolling when sued upon in Tennessee,

B. 1. Section 8595 of William’s Tennessee Code Anno. is

not applicable to the cause of action for death created in

Section 411 of the South Carolina Code.

2. If some Tennessee limitation must apply to Section

411 of the South Carolina Code, Section 8601 of William's

Tennessee Code Anno. is the applicable statute.

ARGUMENT.

The Petition for Writ of Certiorari is Insufficient Because it

Does Not Set Forth Any Proper Reason For Allowance of The

Writ as Required by Rule 38 (5) (b) of This Court.

A. The Circuit Court of Appeals for the Sixth Circuit

has not rendered a decision in conflict with another Circuit

Court of Appeals.

Of the six Circuit Court of Appeals decisions cited by Pe-

tilioner as conflicting with the decision of the Circut Court

of Appeals in the case at bar, we submit none is even in

point, much less conflicting.

1. Egyens vy. Canadian Northern Ry. Co., 255 Fed. 397,

certiorari granted 249 U.S. 594, 63 L. Ed. 793, reversed, 252

U. S. 551, 64 L. Ed. 713.—

This case was based upon personal injury and not death,

the main question being, whether the Minnesota statute,

providing that a cause of action arising in a foreign state

and barred by the limitation of the foreign state cannot be

sued upon in Minnesota, is repugnant to Article 4 Sec. 2 of

the Constitution of the United States.

Tennessee has a similar statute preventing prosecution

of actions in Tennessee which are barred in the state where

they arose, and the United States Supreme Court settled

the constitutionality of such statutes in the case of Eggens

vy. Canadian Northern Ry. Co., supra. We submit, however,

that this question is not at issue in the case at bar.

Four of the other five Circuit Court of Appeals cases cited

by the Petitioner are cases arising out of a statute of the

State of Kansas imposing certain liabilities upon stock hold-

ers under specified conditions, but no specific limitation

upon the time for asserting such rights under the statute

was set up in Kansas, the applicable Kansas limitation be-

ing a general one:

2. Hutchins vy. Lamson (1899) 37 C. C. A. 564, 96 Fed. 720

(certiorari denied in 1903) 189 U.S. 514, 47 L. Ed. 924, 2:

Sup. Ct. Ry. 853.—The direct holding of the court in this

‘ase was based on procedural grounds. However, the dicta

upon which Petitioner relies has no bearing upon the case

at bar, for the reason that the Kansas limitation in question

was a general one and not one specifically relative to the

substantive right sued on.

3. Platt v. Wilmot—118 Fed. 1019, 193 U. S. 602, 48 L.

Ed. 809.—No question was raised in this case as to which

limitation should apply, since the Kansas and New York

limitations were both for three years.—

However, see note to this case p. 809 L. Ed. Vol. 48, in

which it appears that the Kansas limitation applicable to

the right sued upon was a general one applicable to all con-

tracts not in writing, and to all liabilities created by statute

other than a forfeiture or penalty.

4. Ramsden y. Knowler—(1907)—151 Fed. 721.—The

court in this case held,

“The exceptional rule that, where a statutory right is

given subject to a special limitation, such limitation inheres

in the right and follows it into another jurisdiction where

it is sought to be enforced to the exclusion of the statute of

limitations of the forum, cannot be extended to make the

general statute of limitations of the state where the liability

arose operate extraterritorially.”

We fail to see in what manner this holding is in conflict

with the decision of the Circuit Court of Appeals in the case

at bar, since the South Carolina limitation was a specific one.

5. Dexter v. Edmonds—(1898)—89 Fed. 467—see top of

page 473, where the court points out that the Kansas limita-

tion involved is a general one and therefore not operative

in a foreign state.

~ 6. Kansas City Southern Ry. Co. v. Maynor (1913) (C. C.

A. Sth Cir.) 209 Fed. 611.

This case involved an action for personal injury which

arose in Louisiana and was sued upon in Texas. The Court

held that the Louisiana limitation of one year was not ap-

plicable in Texas, “to which state the injured party had law-

fully removed while the right of action in Louisiana sub-

sisted.”

We submit that this decision of the United State Circuit

Court of Appeals for the Fifth Circuit is not in conflict with

the Circuit Court-of Appeals’ decision in the case at bar, for

the reason that the decision of the Fifth Circuit involved a

common law action for personal injury.

On the other hand all of the United States Circuit Courts

of Appeals which have passed upon this question are in

agreement that where, by statute, a state creates a new cause

of action either in tort or contract which did not exist at

common law and prescribes a specific limitation period for

the action either in the same act, or in a different act speci-

fically relative thereto, such limitation will be applied in the

forum of a sister state, even though the period of limitation

for like actions in the forum state is shorter.

Thereaux v. Northern Pacific Ry. Co. 64 Fed. 84

Keep vy. National Tube Co. 154 Fed. 121

Brunswick Terminal Co. y. National Bank of Bal-

timore 99 Fed. 635.

See also: Davis y. Mills 194 U. S. 451, 48 L. Ed. 1067.

B. The Circuit Court of Appeals has not decided an im-

portant question of local law in conflict with applicable local

decisions.—

We submit that the Supreme Court of Tennessee has not

passed upon the question at issue here, as will be seen by a

reading of Parsons vy. American Trust and Banking Co., 168

Tenn. 49, 58, S. W. (2d) 698. (See Record p. 19, Opinion

Circuit Court of Appeals).

Three of the four Tennessee cases which Petitioner cites

as being in conflict with the holding of the Circuit Court in

the case at bar, namely Gassaway v. Hopkins, 38 Tenn. 583,

Barbour vy. Erwin, 82 Tenn. 721, and Fitzsimmons vy. Johnson,

$0 Tenn. 443 are not death cases, and involve the application

of forum limitations to common law actions.

The Fourth case, Hartman vy. Duke, 160 Tenn. 137, is a

death case, but the main question at issue there was what

law should govern the distribution of recoverable damages

in a death ease, the law of the state where the accident oc-

curred or the law of the forum. The question of what limi-

tation should apply was not at issue.—

C. The Circuit Court of Appeals, in this case, has not

rendered a decision in conflict with applicable decisions of

the United States Supreme Court.—

The one United Siates Supreme Court case cited by peti-

tioner, Plait v. Wilmot, supra, is, we submit, not in conflict

with the decision of the Circuit Court of Appeals, as we

have heretofore pointed out, and we have been unable to

find any reported decisions of the Supreme Court of the

United States in conflict with the holding of the United

States Circuit Court of Appeals in the case at bar.

On the other hand, at least one Supreme Court decision

has been responsible for the formulation of the rule set out

in the case of Thereaux vy. Northern Pacific Railway Co.,

supra, namely, The Harrisburg, 119, U. S. 199, 30 L. Ed. 358.

And in the case of Brunswick Terminal Co. v. National

Bank of Baltimore (1900), 48 L. R. A. 625, 40 C. C. A. (4th

Cir.), 22, 99 Fed. 685, (certiorari denied in (1900) 178 U. S.

EE ate ee Se a Te

611. 44 L. Ed. 1215, 20 Sup. Ct. Rep. 1029), this Court refused

to review a decision of the United States Circuit Court of

Appeals for the Fourth Circuit, holding that a Georgia limi-

tation of twenty years specifically appli ‘able to a Georgia

statute imposing certain liabililies upon stockholders should

govern the time within which a suit based upon such statu-

tory liability could be brought in Maryland, the limitation

period in Maryland for like actions being three years, on

the ground that “where a statutory liability is sought to be

enforced, and the statute prescribes the period of limitation,

ithe law of the forum, where contrary thereto, does not gov-

ern.”

We submit that the reasoning which motivated the Court

to deny the writ of certiorari in the Brunswick case alone

would amply warrant a denial of the writ in the case at bar.

D. We agree with Petitioner that the questions here in-

volved are certainly important, but we submit that they are

not grave questions of public importance involving conflict-

ing decisions between the highest court of the State and the

Federal Court sitting in that State.

As pointed out heretofore, the Tennessee Supreme Court

has never directly passed upon the question here at issue.

See case of Parsons v. American Trust and Banking Co.,

supra.

E. We submit that the Circuit Court of Appeals has not

so far departed from the accepted and usual course of ju-

dicial proceedings, or so far sustained such a departure

from a lower court as to call for an exercise of this Court’s

power of supervision.

F. The Circuit Court of Appeals has not decided an im-

portant question of federal law which has not been, but

should be settled by this Court.

Il.

There is no Error in The Action of The Circuit Court of Ap-

peals in Setting Aside The Judgment of The District Court And

Remanding The Case For Trial on Its Merits, Because:

SecTION 413 OF THE SouTH CAROLINA Cope OF 1932, PROVID-

ING A LIMITATION OF SIX YEARS FOR ACTIONS BROUGHT UNDER

Secrion 411 oF THE SouTH CAROLINA CODE IS A SPECIFIC LIMI-

TATION SET UP AT THE TIME THE NEW CAUSE OF ACTION WAS

CREATED, IS A MATTER OF RIGHT AND NOT A MATTER OF REMEDY,

AND, THEREFORE, GOES WITH THE CAUSE OF ACTION CREATED BY

SeEcTION 411 AS A MATTER OF RIGHT WHEREVER IT IS SUED UPON,

AND IS CONTROLLING WHEN SUED UPON IN TENNESSEE.

There is no conflict in the decisions as to whether a speci-

fic limitation set up with a new statutory cause of action for

death is a matter of right and limits the life of the new statu-

tory cause of action. See the following cases:

1. Boyd vy. Clark, 8 Fed. 849

2. Thereaux vy. Northern Pacific Railway Co., supra

3. The Harrisburg, 119 U. S. 199, 30 L. Ed. 358

4. Keep vy. National Tube Co., supra

5. Coffman vy. Wood, 5 Fed. Supp. 706

6. The Vestris, 53 Fed. (2d) 847

7. Negaubauer vy. Great Northern Ry. Co., 95 Minn. 184,

104 Am. St. Rep. 674.

8. Weaver vy. Baltimore & Ohio R. R., 21 D. C. 499.

There is a conflict of authority among several state courts

over whether a foreign specific limitation longer than a

specific limitation for death actions in the forum state shall

control over a shorter forum limitation. (For allowing the

foreign specific limitation to control: Negaubauer v. Great

salen iiadeieeieiiieteesipiteenianiememmnneintenieeetillal

Northern Ry. Co. (Minn.) supra, Cristilly vy. Warner (Conn.)

87 Conn. 461, 88 Atl. 711, Louisville & N. R. R. v. Burkhart,

154 Ky. 92, 157 S. W. 18; Against allowing the foreign specific

limitation to control: Tieffenbrun vy. Flannery (N.C.) 198

N. C. 397, 151 S. E. 857. But we assume that the Court is

not at this time particularly interested in any state decisions

other than those of South Carolina and Tennessee. On the

other hand, the Federal Courts have been in complete ac-

cord in developing the rule allowing the longer foreign

specific limitation in death actions to govern the time in

which the action must be commenced in the forum state

as a matter of right, regardless of the fact that forum

specific limitation is shorter than the foreign limitation

and has expired when the action coming from the foreign

state is brought in the forum state. See the following cases:

1. Thereaux vy. Northern Pacific R. R. Co., supra

2. Keep v. National Tube Co., supra

3. Coffman vy. Wood, supra

4. Weaver vy. Baltimore & Ohio R. R., supra.

The basic reasoning for these decisions is succinctly stated

in the case of Thereaur v. Northern Pacific Railway Co.,

supra. In the Thereaux case action was brought for wrong-

ful death in Minnesota on a cause of action arising in Mon-

tana. Montana had a specific limitation on death actions

arising in Montana of three years, Minnesota a_ specific

limitation on death actions arising in Minnesota of two years.

Action was brought in Minnesota within three years but

after the expiration of two years. In holding the specific

limitation of the state where the cause of action arose con-

trolled, the Court made the following statement at page 87:

“To refuse to entertain such a suit within three

years would be to subtract from the liability, and

to impair the right intended to be conferred by the

laws of Montana; for the period allowed in which

to enforce the liability, as we have before shown,

is a substantial part of the liability imposed and of

the right intended to be created. Moreover, it can-

not be said that, by entertaining the suit after the

lapse of two years, the laws of Minnesota would be

set at naught, or any well-defined public policy of

that state violated; for, in contemplation of law, the

two-year limitation prescribed by the statute of that

state (chapter 77, Section 2, supra) was only intend-

ed to apply, and can only apply, to causes of action,

which originate in that state, and not to causes of

action that originate elsewhere. (Italics ours). We

are of the opinion, therefore, that the circuit court

erred in sustaining the motion for judgment on the

pleading.”

It is true that the case at bar on the facts does not at first

glance fall entirely within the operation of this rule, for

the reason that Tennessee, the forum state, has no specific

limitation controlling actions for wrongful death arising

either in Tennessee, or in a foreign state. However, your

Respondent submits that the case of H. P. Fowlkes, Admr.,, v.

N. & D. R. R. Co., supra, so confines the application of the

Tennessee one year limitation for personal injuries (Sec-

tion 8595) to survival death statutes in general (that is,

death statutes in which the basic cause of action is one for

personal injury and not one for death), and in particular,

to causes of action for death arising in Tennessee under

Section 8236 (which is a survival statute), that the case at

bar falls within the reasoning of the cases above ciled, par-

ticularly the case of Thereaux v. Northern Pacific Railway

Co., supra.

This was apparently the holding of the Circuit Court of

Appeals in the instant case of J. T. Wilson, Admr., v. Mas-

sengill ete., 124 F. (2d) 666, for in that decision the Circuit

See eee _—

Court recognized the fact that the Tennessee Code Section

8236 and the South Carolina Code Section 411, created en-

tirely different causes of action, that Tennessee Code 8595

was a personal injury limitation made applicable only to

Tennessee Code Section 8236 by the Tennessee Supreme

Court’s decision of H. P. Fowlkes Admr., v. N. & D. R. R. Co.,

supra, because it was a survival statute, so that the South

Carolina limitation of six years (Section 413), being a part

of the right created in South Carolina, could control in Ten-

nessee without violation of any basic public policy of the

state of Tennessee, under the rule and reasoning of the

case of Thereaux v. Northern Pacifiv Railway Co., supra.

It is, therefore, Respondent’s contention that, upon the

authority of Whitlow v. Nashville ete., Railroad Co., 114

Tenn. (6 Cates) 344, Sharp vy. Cincinnati etc., Railroad Co.,

133 Tenn. 1, at p. 16, and Hartman y. Duke, 160 Tenn. 134,

Tennessee is, under the rules of comity existing between

the states, bound to give effect to the foreign rights created

by the South Carolina statutes, one of which rights is the

six year limitation set out in Section 413 of the South Caro-

lina Code, unless Tennessee has some broad public policy

which will be infringed by thus giving effect to the foreign

right; and that the Federal Courts will enforce this Tennessee

principle of conflicts of laws, allowing the South Carolina

limitation to control as a matter of right in the case at bar,

in view of the fact that no public policy of the State of

Tennessee could be enfringed thereby.

See Allen-Bradley, Local v. Wisconsin Empl! t. Rel.

Bd. Vol. 86 No. 11 U. S. Supreme Court Law Ed.,

Advance Opinion (1942), pp. 802, 806.

In regard to the question raised by Petitioner at page 14

et seq of its brief as to whether the South Carolina Code

Section 413 is so worded as to constitute a mere limitation

rather than a matter of right: The Supreme Court of South

Carolina has not directly interpreted Section 413 in this con-

nection, but its holding in the case of Dennis v. Atlantic

Coast Line R. Co., 70S. C. 254, 49: S. E. 869, 106 Am. State

Rep. 746, interpreting a North Carolina limitation statute

ina death ease arising in North Carolina and sued upon in

South Carolina is indicative of the manner in which the

South Carolina Supreme Court would interpret Section 413

of the South Carolina Code of 1932.