The opinion of the court was delivered by: MORGAN
This action arises out of an automobile accident, which occurred on March 8, 1953, while the plaintiff was a passenger in an automobile owned and operated by the defendant, eastwardly on U.S. Highway #42, one (1) mile west of Florence, Kentucky, which ran off the road into a ditch, killing the driver (defendant testator) immediately and seriously injuring the plaintiff passenger.
A chronological statement of events is helpful. The accident happened March 8, 1953 in Kentucky. On March 16, 1953 in Erie County, New York, Surrogate's Court, Robert M. Boyle was duly appointed Administrator of the decedent, Charles H. Boyle.
It is important to note that as a part of his petition, decedent-defendant's Administrator verified a statement designating the Clerk of the Surrogate's Court of Erie County, New York, for service of process, if he was not available.
On March 6, 1954, the plaintiff, represented by a Kentucky attorney through local counsel, filed in the office of the Clerk of this Court an action in negligence, and claimed, by reason of the result of the accident, the sum of $ 50,000 on behalf of the plaintiff.
Under the Kentucky law, Kentucky Revised Statute Annotated, Baldwin 1943 Revision, now in full force and effect, as evidenced by the affidavit of the plaintiff's original attorney, H. Solomon Horen, verified the 12th day of June, 1957, Section 413.140 so far as relevant reads as follows:
'Action to be brought within one year.'
'(1) The following actions shall be commenced within one year after the cause of action accrued.'
Section 413.250 in its entirety reads:
'An action shall be deemed to commence on the date of the first summons or process issued in good faith from the court having jurisdiction of the cause of action.'
Further quote from section 413.190 as to the result of absence from the state (of Kentucky) or obstruction of action is not apposite as it limits to actions against a resident of the State of Kentucky.
Under New York law, section 49 of the Civil Practice Act reads so far as pertinent, 'The following actions must be commenced within three years after the cause of action has accrued: * * * 6. An action to recover damages for an injury to property, or a personal injury, resulting from negligence.' An action accrues at the time of the happening of the event, in this case, March 8, 1953. The defendant moves, under Rule 12(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A., for judgment on the pleadings, on the ground that the cause of action alleged in the complaint accrued more than one year prior to the date upon which this action was commenced and is therefore barred from the one year Statute of Limitations of the State of Kentucky. The plaintiff filed a cross-motion for an order striking out the first affirmative and second affirmative defenses to plaintiff's complaint as alleged in defendant's answer on the ground that said defenses are redundant, insufficient and sham. Such defenses are that the cause of action alleged in the complaint herein arose in the State of Kentucky and accrued more than one year prior to the date on which this action was commenced, and secondly, that the cause of action alleged in the complaint accrued more than three years prior to the date upon which this action was commenced and is barred by the New York Statute of Limitations.
The complaint was filed in the office of the Clerk of this Court on March 6, 1954, at which time the Clerk of this Court, pursuant to the provisions of subdivision (a) of Rule 4, forthwith issued a summons and delivered it for service to the Marshal. However, at that time, as evidenced by a note of the then Clerk, or one of her deputies, and as admitted by each party upon the argument of the cross-motions, when the plaintiff filed the complaint and paid the filing fee therefor through local counsel, the Clerk's Office was asked to retain the complaint and not issue a summons for service since the whereabouts of the defendant-administrator, Robert M. Boyle, was unknown. This is further evidenced by a written note of the Clerk of Court of the Western District of New York, 'Please issue summons as of March 6, 1954 and ask Marshal to hold service until deft. returns to N.Y. State or permission to serve his attorney is obtained.' It also contains this quote, 'Hold -- March 8, 1954', and further shows a call on April 22, 1954 with the word 'Hold'. The case was on the November 1955 calendar for dismissal for want of prosecution. At that time, Honorable Harold P. Burke, Chief Judge of this Court, stated 'Plaintiff's attorney knew on receipt of Flynn's letter November 11, 1955 that defendant could not be found. (attached) Apparently has done nothing since.'
Thereafter, three separate and distinct attorneys have had motions before this court to save the case from ...