FINNELL 11. SOUTHERN KAN., RY. CO.
And now, November 28, 1887, the court finds in favor of the defendants, and iUs ordered that judgment upon the finding of the court be entered in favor of the defendants, with costs.
((Jitrcuit Court, If. D. MiBBouri, W. D.
LnnTATIONOF ACTIONS-REMOVAL OF PLAINTIFF TO ANOTHER STATE-STATUTE OF SISTER STATE.
Under Gen. St. Kan. 1868, c. 80, art. 3, 18, an action for personal injuries must beoronght within two years after the canse of action accrues, and section 25 extinguishes the cause of action after that time. The vlaintifi sustained personal injury in Kansas, and immediately w,entto Missouri, of which state he was a resident, and there resided until trial, and did not bring action until more than two years had elapsed. Held. that the statutes of Kansas would not bar an action given by the common law, uJiless both parties resided in that state during the full period of limitatiop.
On Exceptions to the Evidence. Action by J ahn K. Finnell against the Southern Kansas Railway ComThe defendant offered in evidence pany for. personal injuries the Kansas statute of limitations. The plaintiff objected thereto. Plaintiff sued the defendant for personal injuries sustained in the state of Kansas, .May 16, 1884, by falling off of the platform connected with one of defendant's station-houses on the line of its .road.At the time of the accident plaintiff was a .citizen of Missouri, and returned tahis home in Missouri immediately fj,fter the accident, where he continued to reside. until the day of trial. Defendant isa Kansas corporation, and operates a line of road extending from Kansas City, Missouri, to Harper, Do.der the laws of Kansas, an action for personal injuries is barred. after the lapse of two years. Vtde chapter 80, art. 3, § 18, subd. 3, Gen. St. Kan. 1868. Section 25 of the same article reads as follows: "When the right of action is barred by the provisions of any statute it shall be unavailable either as. a cause of action or ground of defense.» This suit was brought in the circuit court of the United States for the Western division of the Western district of Missouri, more than two years after plaintiff sustained th.e injury in qqestion. On the trial defendant's counsel pleaded and· offered in evidence the various sections of the Kansas statutes above stated, as a bar to the action. Gates,&; ,Wallace, for plaintiff. Gardiner ,Lathrop and Geo.W. McCrary, for defendant.
THAYER, J., (orally, after stating thefacts.) Referring to the objection made last..evening to theintroduc'tion of the Kansas statute of limitations, I will say that in my judgment section 25, art. 3; c. 80, was intended to cause of action after the lapse of the statutory period oflim-
itation, and not mere!y to bar the remedy. I can conceive of no other purpose to be subserved by the ltdoption of the section in question, unless it was to extinguish the cause of action as well as to bar the remedy. Judge Story, in his treatise on the Conflict of Laws, appears to have been the first text-writer who noted the distinction between statutes of limitation that bar the remedy and those that extingush the cause of action. At page 487 the author says, in substance, that when a s'tatute of limitations extinguwhes the debt or cause of action after the lapse of a certain period, such a statute may be pleaded in a foreign jurisdiction as a bar to the cause of action or debt when there sued on, provided the parties continue to reside in the state where the law extinguishing the cause of action prevails-during the full period of limitation , so that it has actually operated on the parties and on the case. The rule stated by Judge Story, as restricted by the proviso, was approved by TINDAL, C. J., as a reasonable rule, especially in view of the proviso, in the case of Huber v. Steiner, 2 Bing. N. C. 202. The same rule, with the limitation that both parties have resided in the state where the law prevails for the full statutory period, and have been operated upon by the statute, is also stated as the correct rule in Wood, Lim. 22. So far as I can find, from the limited examination I have made, there is no warrant in the authorities for the remark made by Judge HOLMES in Bakerv. Stonebrak£rr, 36 Mo. 349, that the qualification requiring residence of both parties within the jurisdicti9n for the full statutory period, as stated by Judge Story, and approved by TINDAL, C. J., only applies where the statute invoked expressly requires such residence within the jurisdiction, or excepts parties from its operation in case of absence from the jurisdiction where the law prevails. That remark, as it seems to me, was also unnecessary to the decision in that case. The suit was on a Maryland judgment, which could have no greater force and effect in Missouri than in Maryland, where it was rendered; and as in Maryland, after the lapse of 12 years, there was "a conclusive presumption of payment, regardless of the residence of the judgment debtor in the mean time, it was held that no effect could be given to it in Missouri other than as a paid judgment. As I understand, that, in the end, is all that that case decides. Some cases have been cited by counsel to the effect that where title to personal property has been acquired under the limitation act of a state which has the effect in such state of creating a title-as some limitation acts do, that a title so acquired must be respected everywhere. Such was the case of Shelby v. Guy,l1 Wheat.361. That class of cases turn upon a: different principle than is involved in this case. Title to personal property may, of course, be transferred by operation of the laws of the place where it is situated and when the title is once acquired under such laws it must be recognized in all other jurisdictions to which the property is subsequently taken. Jones v. Jones, 18 Ala. 248. There is a]so another class of cases in which a cause of action, which does not exist at common law, is created by the laws of a state. Causes of action of that character only exist in the manner and form and for the length of time prescribed by the statutes of the state which created them,
NONCE' tl.· RICHMOND & D. R. CO.
and if suit is brought on such causes of action in a 'foreign jurisdiction the limitation act of the state which created the cause of action may, of course, be pleaded. Boyd'8 Adm'r v. Clark. 8 Fed.Rep. 849. ' The rule is different, however, with respect to actions given by the common law. As suits may be brought upon causes Of action arising under the common law wherever service can be obtained, it difficult how a statute of limitation of one state, even though it exto tinguishes a cause of action after the lapse of a certain period, can have any extraterritorial effect unless both parties to be Il-fI'ec,ted by the reside within the state where the law prevails for the full statutory ,period. In that event, if they remove to a jurisdiction and suit is brought upcm the cause of action, it is reasonable to hold them bound by w1).ich they both lived and which the laws of the state the cause of action before they removed therefrom. As soon as the tiff in the suit at bar sustained the injury of which he turned to .the s.tate of Missouri, of which state he was lj.resident... He had a cause of action for the wrong done. him under the laws of this state, and. under the laws of every other state where the common law moment theinjurywa88u.stained, although was sustained in the statute of Kansas did not, in my opin,ion, extinguish, of action in Missouri because he did not remain for ;the period of two, years . , ., . subject to the operation of that statute. The result is that the objecti9n to the admission of the will be sustained.
NONCE ". RICHMOND
w: D. North
Oarolina. October Term, 1887.)
LIMITATION OF ACTIONS-LEX FORI-ACTION FOR PERElONAL INJURIES.'
In an action against a railway company to recover damages for personal injuries sustained. the right to relief is governed by the laws of the, state in which action is brought, although it may be barred under a statute of limitation of the state in which the cause of action accrued. 1
NEW TRIAL-OBJECTIONS TO VERDICT-WEIGHT OR. EVIDENCE.
. When evidence is conflicting. and the witnesses are of good character, the verdict of the jury, if not or improperly obtained, onght not to be set aSIde by grantmg a new trIal. .
At Law. Action for personal injuries. This was an action brought by W. H. Nonce against the Richmond & Danville Railroad Company to recover compensation for persolllil Injuries sustained while performing his duties as an eD;1ploye of the defendant. Judgment for plaintiff. 'Defendant moved for a new trial.
1 A statute of one state, by which 8 right of action for persolial injuries n.ot be eIlforced by the courts of another state, where the common law, by·whicb 8lIch cruse of action dies with the person, is unchanged. Railw&y.Co. v. ,(Tex.) 40 S. W. Rep. 627. . ·.