Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.
The sole question presented is whether the cause of action was barred by § 8324 of the Connecticut Statutes (Revision 1949) which provides, in pertinent part, as follows:
"Limitation of action for injury to person or property. No action to recover damages for injury to the person, * * * caused by negligence, * * * shall be brought but within one year from the date of the act or omission complained of, * * *."
The plaintiff, a citizen of Pennsylvania, invoked the diversity jurisdiction of the court to bring this suit on April 19, 1951 against a Connecticut corporation whose principal place of business is in New Haven in that state. The complaint alleged that, on July 8, 1949, a cousin of the plaintiff purchased a rifle, which had been manufactured by the defendant, from a sporting goods dealer known as Raemore Sporting Goods, in Williamsport, Penn. On July 3, 1950, he loaned the rifle to the plaintiff who, while shooting at a mark with it on the same day, lost his left eye when the rifle back-fired. The cause of this injury was alleged to have been the negligence of the defendant in manufacturing the rifle with too much headspace between the face of the bolt and the rear space of the barrel to make it safe for shooting. In more detail it was alleged that "the excessive headspace caused the cartridge to move to such an extent that the sides of the cartridge were not supported by the walls of the chamber, and resulted in a rupture in the case which caused the release of high pressure gases into the breach mechanism and the rejection of metal particles and powder residue from the rifle into the plaintiff's left eye."
The defendant pleaded the statute of limitations and moved for summary judgment. The motion was granted and the plaintiff has appealed. The only additional facts appear by affidavit and are that the defendant had manufactured the rifle and had sold it to the Harder Sporting Goods Company of Williamsport, Penn. It shipped it on May 28, 1946 to that purchaser who paid for it on June 6, 1946. So far as appears, the defendant had nothing further to do with it.
In diversity actions the law of limitations of the state is applicable in a federal court sitting in a district therein. Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 2079; Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S. Ct. 1233, 93 L. Ed. 1520. The plaintiff does not, of course, question that but insists that if § 8324 is applicable it should be construed to mean that the one year period did not begin to run until the plaintiff was injured. Its alternative position is that not this section but § 8315, which limits the bringing of actions on simple or implied contracts to "within six years next after the right of action shall accrue", is applicable.
The alternative contention cannot be sustained in view of the decisions of the state court. They show that actions for breach of implied warranties, to which § 8315 is applicable, may be brought only by persons who are parties to the contract alleged to have been breached or in privity with them. Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224; Burkhardt v. Armour & Co., 115 Conn. 249, 161 A. 385, 90 A.L.R. 1260.Since there is nothing to show that the plaintiff was in such relationship to the defendant, no cause of action in Connecticut for breach of any contract, express or implied, can be spelled out on the facts now of record. Borucki v. MacKenzie Bros. Co., supra.
Turning now to § 8324, it should be noticed that its forerunner, § 6015, Connecticut General Statutes (Revision 1930), limited the time within which actions could be brought to recover damages for injury to the person caused by negligence to one year "from the date of the injury or neglect complained of" and that, effective July 1, 1935, the above quoted words were replaced with those of the present statute, "from the date of the act or omission complained of." This change is significant and undermines the plaintiff's argument that the period of limitations is still to be measured from "the date of the injury" i.e., from the time the cause of action accrues. Kennedy v. Johns-Manville Sales Corp., 135 Conn. 176, 62 A.2d 771. Cf. Giambozi v. Peters, 127 Conn. 380, 16 A.2d 833. It may also be noted by way of contrast that in other sections of the Connecticut limitations statute the words, "after the right of action shall accrue" are used to fix the point of time from which the prescribed period of limitation is measured. Cf. Connecticut General Statutes, §§ 8315, 8317, 8320, 8323, 8326 (Revision 1949).
Of course, the act or omission complained of took place, at the latest, when the sale of the defective gun was complete, on June 6, 1946, to put the gun on the market without using reasonable care to make sure that it would not cause harm to one who used it as it was to be expected that it would be used. As this act or omission occurred more than one year before the commencement of this suit, § 8324 bars the action.
FRANK, Circuit Judge (dissenting).
1. Except in topsy-turvy land, you can't die before you are conceived,*fn1 or be divorced before ever you marry,*fn2 or harvest a crop never planted, or burn down a house never built, or miss a train running on a non-existent railroad. For substantially similar reasons, it has always heretofore been accepted, as a sort of legal "axiom," that a statute of limitations does not begin to run against a cause of action before that cause of action exists, i.e., before a judicial remedy is available to the plaintiff. For a limitations statute, by its inherent nature, bars a cause of action solely because suit was not brought to assert it during a period when the suit, if begun in that period, could have been successfully maintained; the plaintiff, in such a case, loses for the sole reason that he delayed - beyond the time fixed by the statute - commencing his suit which, but for the delay, he would have won.*fn3
As the Connecticut Supreme Court has said, the policy behind a limitations statute is that of penalizing one who "'[sleeps] upon his rights'".*fn4 But no student of such legal somnolence has ever explained how a man can sleep on a right he does not have. The Connecticut courts have often acknowledged the good sense of the "axiom" described above. In tort cases, they have set as the critical date - i.e., the date at which the statute of limitations begins to operate - the time when (to quote a recent Connecticut case interpreting the very statutory section involved here) "the legal wrong was done" to a plaintiff, i.e., when "legal damage" occurred; until then, said the court, there was no actionable "injury."*fn5 As the Connecticut Supreme Court had earlier stated, "It is because of the laches of the creditor in failing to pursue his remedy that the statute deprives him of the right to pursue it after a prescribed time. But there can be no laches where there is no right of action."*fn6 "And," that court declared in another case, "the statute of limitations does not begin to run in favor of any person until there is a cause of action."*fn7 "The statute of limitations", it said in still another opinion, "assumes the existence of a cause of ...