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WILLIS v. WEIL PUMP CO.

November 26, 1954

Gertrude D. WILLIS, Plaintiff,
v.
WEIL PUMP COMPANY, Defendant



The opinion of the court was delivered by: DAWSON

This is a motion by the defendant, appearing specially, to dismiss the complaint on an issue of jurisdiction and on a state statute limiting the time within which an action may be brought.

The action is brought by an administratrix for the death of the decedent. The complaint alleges, in substance, that the decedent, while working for the Tennessee Copper Company at its plant in Tennessee, was killed when a certain pump exploded. It alleges that the pump was bought from the Weil Pump Company, an Illinois corporation, and that the defendant was negligent in that the pump which it had furnished to the employer of decedent was of such construction that it could not withstand the pressures expected to be placed upon it.

 Defendant has by this motion presented, in substance, two issues for determination:

 (1) Does a New York Federal Court have jurisdiction, or should it refuse jurisdiction, over this action, since the action is brought by a non-resident against a non-resident corporation for injuries occurring outside the State?

 (2) If the Court has jurisdiction over the action, is the action barred by the provisions of a Tennessee statute which provides that third party actions by injured employees, against one other then the employer, must be brought within one year from the date of the injury?

 The Issue of Jurisdiction

 Defendant urges that the New York Courts have generally refused to take jurisdiction over an action arising out of a tort committed in a foreign state where both plaintiff and defendant were non-residents. Murnan v. Wabash R. Co., 1927, 246 N.Y. 244, 158 N.E. 508, 54 A.L.R. 1522; Douglas v. New York, New Haven & Hartford R. Co., 248 N.Y. 580, 162 N.E. 532, affirmed, 1929, 279 U.S. 377, 49 S. Ct. 355, 73 L. Ed. 747. It urges that the same rule should be applied in the Federal Court. This, however, is not a matter of jurisdiction, but a matter of discretion. See Section 1404, Tit. 28 U.S.C. Defendant admits that it is licensed to do business in the State of New York. Under the provisions of Section 1391, Tit. 28 U.S.C., service having been properly made upon the Secretary of State of the State of New York pursuant to Section 217 of the New York General Corporation Law, McKinney's Consol.Laws, c. 23, this Court has jurisdiction over the defendant. Skelly Oil Co. v. Phillips Petroleum Co., 1949, 339 U.S. 667, 70 S. Ct. 876, 94 L. Ed. 1194; Neirbo Co. v. Bethlehem Shipbuilding Corp., 1939, 308 U.S. 165, 175, 60 S. Ct. 153, 128 A.L.R. 1437.

 Since the Court has jurisdiction over the defendant, so much of the motion as seeks to dismiss the complaint on the ground of jurisdiction is denied.

 The Issue of Limitations

 The defendant has brought the present motion under Rule 12(b) of the Rules of Civil Procedure, 28 U.S.C. The defendant asserts that there is a failure to state a claim upon which relief can be granted. It alleges that the injuries received by decedent were received by him in the course of his employment, that he accepted Workmen's Compensation benefits from his employer, and that under the applicable statutes of Tennessee, this action has not been brought within the period of time limited by law. The complaint alleges that the accident occurred on or about November 10, 1952. This action was started on July 19, 1954.

 Three statutes are involved:

 Section 8595 of the Tennessee Code provides that a death action must be brought within one year from the date of the accident on which the action is predicated.

 Section 8581 of the Tennessee Code tolls the running of the Statute of Limitations where a defendant is outside the state and ...


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