NOLAN v. TRANSOCEAN AIR LINES

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Argument of Robert A. Dwyer

Chief Justice Earl Warren: Number 107, Robert F. Nolan, Administrator, et al., versus Transocean Air Lines.

Mr. Dwyer.

Mr. Robert A. Dwyer: Mr. Chief Justice, may it please the Court.

Petitioners brought this case to this Court because -- although they never reached majority, the federal court of New York held that they were barred by the Statute of Limitations.

This action is a wrongful death action.

It's brought for the wrongful death of Lucia who was killed in a crash of an aircraft in California.

The defendant, Transocean, owned and operated the aircraft.

Jurisdiction is based upon diversity of citizenship.

The action was brought in the U.S. District Court, Southern District of New York.

The defendant moved to dismiss from the ground that the action that was barred by the Statute of Limitations.

The District Court granted judgment dismissing and the Circuit Court of Appeals affirmed.

The defendant's contentions on the Statute of Limitations are roughly as -- briefly as -- as follows, "Section 13 of the New York Civil Practice Act, provides in effect of that a nonresident who brings a cause of -- brings an action based on a cause of action that arises outside of New York, is barred if they would be barred in the State where the cause of action arose."

Section 13 expressly accepts from that provision residents of New York.

The courts of New York have consistently held that in effect, the purpose of Section 13 was to prevent nonresidents coming into New York, suing in New York, if at the time they sued in New York, they could not have brought the action in the State or the cause of action arose.

In other words, New York courts do not merely adopt the time limit of the State where the cause of action arose.

It's a mere yardstick that they apply all of the law of the other State to determine in -- in effect could this plaintiff have brought her action in the State where the cause of action arose, if they couldn't, they cannot come in here.

Applying this reasoning, the District Court and the Circuit Court looked to California, the State where the cause of action arose, here.

They first referred to Section 340 of the California Code of Civil Procedure which provides that an action for wrongful death must be brought within one year.

The Court then looked to the tolling provision in California which is Section 352 of the California Code of Civil Procedure, which provides that the Statute of Limitations shall be tolled during minority or during the time of disability.

Reasoning of that -- or the defendant then urged rather that Section 25 of the Civil Code of California, applied in this case.

They argued vastly that Section 25, which I would describe as a --a capacity statute as it existed at the time of -- of the death or the -- the time of cause of action arose here, provided that a female who was married at age 18 should be deemed an adult and should be deemed an adult person for the purpose of engaging in transactions respecting property.

Now, the respondent cited two cases to the court below.

Two California cases that are cited in both of our briefs, the Haro case and the Caraway case, which construed Section 25 to mean that -- that this phrase engaged in transactions respecting property, gave a married female, age 18, a capacity to sue.

And therefore, at 18, the disability of infancy seized and therefore, the Statute of Limitation should commence to run.

And in both cases, the Haro case and the Caraway case, which involved residents of California, the Court did dismiss because the -- in both cases, the -- the female had brought the action after she reached the age 19.

We argued -- we argued here, Your Honor, that there was two cases in California which indicated that California would not apply these cases to a nonresident, a noncitizen of California.

The cases are cited Deason against Jones and Emery against Emery.

In both of these cases, the California Court, in the Emery case, the California Supreme Court applied the rule of the domicile to determine whether or not, plaintiffs had a capacity to sue.

Correction, in the Emery case, that was the specific (Inaudible)

The Deason case, the problem was a little different, but was related.

In the Deason case, the defendant, an infant, while living I believe in -- it was in Wyoming, obtained a court order empowering him to transact a business and to make contracts concerning that business.

He at the time was -- was 18.

Thereafter, he moved to California and prior to reaching age 21, entered into a contract in California, a real estate contract, a dispute rose over the contract and the other party of the contract brought a suit against the infant.

And the infant raised as a defense his infancy that he was under age 21 when he entered into the contract.

The plaintiff's reply to that case, "Yes, but you were emancipated and you, in effect, are deemed an adult when you reached 18 under the order of the court of the neighboring State."

However, the California court refused to accept plaintiff's argument and held that matters of capacity to sue concerning infants was primarily a concern of the State wherein the infant resided.

Later, the California Supreme Court had before it, the Emery against Emery case.

In that case, plaintiffs were a wife and two daughters for bringing action against the husband's father and a son for personal injuries sustained in an automobile accident in a neighboring State of California, as I recall, I believe it was Arizona.

But in any event, the problem -- the conflict arose in the neighboring state where the accident occurred and the injuries were sustained forbade suits among members of a family, between spouses and offspring.

However in California, the rule was that such suits were permitted for gross negligence.

The matter came up before the Supreme Court on motion.

The defendant's motion had been granted in the court below.

The Supreme Court reversed fully that there again, that the question of capacity to sue was a primary concern to the state of domicile.

And that California should apply the rule of the domiciliary state which in the Emery case was the California -- was California and they permitted the suit.

Of course, there were -- they send it back for trial as to whether or not there was gross negligence.

We urge these cases and we urge them now, as clearly showing that California, if we had literally sued, brought this action in California, California courts would have permitted this suit, since California would have applied the rule of the domicile, which in this case is South Carolina.

South Carolina, I don't believe there's any dispute about it, minority continues into age 21 -- until age 21.

And we -- we urge that the courts of California would have reasoned that their Statute of Limitations then begin to run until this widow and her infant child had reached age 21.

Justice Felix Frankfurter: Well, there's -- does the lower court pointed out in the Emery case, didn't California, metaphysically and clearly apply for the rule in that case because of the special class of -- where family relationship were involved?

Mr. Robert A. Dwyer: Yes, they did, Your Honor.

We quoted and cited in our brief.

We say -- we say to that and that was raised in the court below.

We say this, "That here, California has -- you might say granted adulthood to a female woman at age 18 because she has married."

And we say that that too is a very important family relationship.

Justice Felix Frankfurter: But I know but, of course it takes the wife in marrying, but that particular, the Emery case is a particular situation that California said, when a husband sues his wife or a wife sues her husband, let's look to the place where they belong, isn't that right?

Mr. Robert A. Dwyer: That is true, Your Honor.

Justice Felix Frankfurter: And they've said it in that specific situation.

Mr. Robert A. Dwyer: Yes, Your Honor and I would --

Justice Felix Frankfurter: (Voice Overlap) and that this Court to do is to draw from that, to have whether it was to ask, is to have -- had the courts below draw a general California principle out of that.

And I think --

Mr. Robert A. Dwyer: I -- I would say that -- that a couple with the Deason case.

Justice Felix Frankfurter: Of the Deason cases, as I think the court below said much more on the other side than on your side.

Mr. Robert A. Dwyer: Well, we disagree with that conclusion.

Justice Felix Frankfurter: Or won't have here to be the case.

Mr. Robert A. Dwyer: Your Honor --

Justice Hugo L. Black: (Voice Overlap) was not that -- that rather goes with the other words.

I probably would have to spend.

Justice Felix Frankfurter: Well, maybe both of them are very competent to pass on what is California law.

Mr. Robert A. Dwyer: Your Honor that presents -- again, I know -- the problem that's always being faced by the federal courts.

And on this case, you have a federal court seating in New York, asked to apply not only the New York law but referring to the New York law, then being asked to apply the California law.

Justice Felix Frankfurter: (Voice Overlap) I don't think so.

Mr. Robert A. Dwyer: I don't say that this was a simple problem or that the -- the court below was foolish or -- or silly or incompetent.

We -- we strongly disagree with their --

Justice Charles E. Whittaker: A little orientation here, I understand that this death occurred in California.

Mr. Robert A. Dwyer: Yes, sir.

Justice Charles E. Whittaker: That California has a Wrongful Death Statute that used the cause of action to the heirs or personal representatives of the misleading heir.

Mr. Robert A. Dwyer: That's correct, Your Honor.

Justice Charles E. Whittaker: This man left a wife and a child?

Mr. Robert A. Dwyer: That is true.

Justice Charles E. Whittaker: The wife at the time was 17 years old.

Now, I would like to know -- the action was not brought within a year or date of death, I'd still like it.

Mr. Robert A. Dwyer: That -- that is correct, Your Honor.

Justice Charles E. Whittaker: Several years after?

Mr. Robert A. Dwyer: Yes, Your Honor.

Justice Charles E. Whittaker: Now, under the California law is the widow and heir?

Mr. Robert A. Dwyer: Yes, Your Honor.

Justice Charles E. Whittaker: She then may sue as an heir.

She doesn't give cover through a legal representative and does a trust recovery.

Mr. Robert A. Dwyer: They -- they have a choice after, Your Honor.

It can be brought by the heirs.

Here, the -- the widow and child or it could have been brought by the legal representative.

As a matter of fact, we commence the action.

We -- we also brought in the administrator.

And in fact, we were in some doubt at that time as to just --

Justice Charles E. Whittaker: In my State, a widow is not an heir.

And -- but you say she is in California?

Mr. Robert A. Dwyer: Yes, but the -- the California courts have construed this to -- to in effect, to cover widows and --

Justice Charles E. Whittaker: Not in California has also said that the cause of action -- it's that statute creates as a joint one, is that it?

Mr. Robert A. Dwyer: That is true, Your Honor.

Justice Charles E. Whittaker: And it's barred as to one of the beneficiaries, it's barred as to all.

Is that what they hold?

Mr. Robert A. Dwyer: No, they don't entirely hold that, Your Honor.

Justice Charles E. Whittaker: No.

Mr. Robert A. Dwyer: We -- there is a question on that that I will get to.

Justice Charles E. Whittaker: I'm oriented now.

Mr. Robert A. Dwyer: In addition to the Emery case and the Deason case, we also urge that Rule 17 (b) of the Rules of Civil Procedure had a bearing on this case, this question.

17 (b), the part that we -- that is relevant here, provides that the capacity of an individual to sue or be sued shall be determined by the law of his domicile.

Now, we argue, Your Honor that basically, California considered the Statute of Limitations to become operative when the plaintiff in -- obtain or attain a capacity to sue.

That was the reasoning in the Caraway case and in the Haro case.

We feel that the Court should have considered this rule also as a -- as a guide.

We feel that -- that there was no necessity to -- to claim that there was a direct conflict.

In fact, we -- our argument is that the California rule as to the applying the law of the domicile and the Rule 17 (b), are consistent.

And in fact that the -- the court below should have avoided a conflict between the -- the local state law and the federal rule, if there was a doubt about it.

And we say that at least, there was a doubt about what the law of California was on this question.

And as I say, we -- we urge that the Deason case and Emery case clearly indicate that California would've applied the law of South Carolina to determine when the petitioners attained capacity to sue.

The question that was asked as to the joint -- joint nature of the action has also brought an issue here.

The respondent presented to the court below two cases that are cited in both briefs, Sears against Majors and Haro against Southern Pacific, both California cases.

Involving California infants in those cases, the will brought action for wrongful death after obtaining the age of 19.

And if -- as in the -- our situation, there was also a -- an infant child surviving and in both cases, the -- the intermediate courts of California held that the action was a joint action.

And therefore if one is barred, all are barred as was pointed out and therefore, the infant child was also barred.

Now, the court below on our case followed these two cases.

Now, we argued that other cases in California including a -- a case in the Supreme Court of California had applied in more recent times what appeared to us and what we urged strongly, was a different rule.

The question that brought this -- the -- the nature of the -- the jointness of this action before the Court involved the question of contributory negligence in the cases that we cite, Bowler, Bowen, Flores and Perkins, the most recent case being Perkins against Robertson, Robertson out in California in 1956.

And in those cases, it so happened that one of the heirs was barred by -- by reason of contributory negligence.

And the defendant raised the same issue that well, since the action is joint, if one is barred, all are barred.

And the courts in those cases, without reference to -- to Sears or Haro or the older cases, the reason that the action was joint only in the sense that all should join in the action, all heirs, the -- it was a single action, only in that a single action should be right and that the defendant should not be harassed by a series of actions by each heir.

Only in that sense was the -- was the action, a joint action.

Justice Charles E. Whittaker: What would be the situation?

I'm curious.

I have not on experience in my background.

It leads me to ask this question.

What would be the situation if the legal representative brought the suit within the year on behalf of the heirs and the heirs including both the widow and the child?

Then, it appeared later that a release had been given by the widow, would that defeat the right of child order of the administrator to continue that action for the benefit of the child --

Mr. Robert A. Dwyer: I would say no, Your --

Justice Charles E. Whittaker: -- on the law of California?

Mr. Robert A. Dwyer: I don't -- I don't pretend to -- to know the answer to that one, as under California law, Your Honor, in my search of this question under the -- in the California cases.

I did not run into that precise question.

I would -- I would reason that if -- if the respondent's case is Haro and Sears would apply that the action would regard as against the infant too.

On the -- on the -- again, that the simple logic which apparently the Court used in -- in the older cases that if one is barred, all are barred.

Justice Charles E. Whittaker: Well, the only difference between my hypothesis and yours is that yours -- the one you're using is that contributory negligence barred to recovery of one.

And in my hypothesis, it's a release that does so.

Mr. Robert A. Dwyer: I would say, Your Honor that under the -- under the reasoning of the cases that we urge is controlling, the infant would not be barred.

That only -- that only the mother would be barred.

Since the -- the purpose of the joint requirement is -- is to prevent a multiplicity of suits, a harassment of the defendant.

We also urged in the court below that in effect, the dismissal of these actions has resulted in an abridgement of the petitioner's right -- the privileges and immunities right under the Federal Constitution Article 4, Section 2.

The -- this Court had occasion to consider a case of a borrowing statute very similar to north -- to New York's in 1920, the Canadian Northern against Eggen.

It did not involve an infant, at least as far as appears from the record in that case and certainly no issue was made of it.

It so happened in that case that under the borrowing statute, the plaintiff in that case still had a year to come into the forum court.

And this Court held in -- in effect that -- that Article 4 merely requires the State to -- to offer reasonable access as far as access to courts are concerned.

And they -- there -- that this Court there held that one year to come into the Court, was reasonable access.

Our contention here is that these -- the petitioners, the widow and the child, did not have that reasonable access.

The courts below held that our petitioner, the widow, was barred which she reached the age 19 and as I say, by reasoning that the child was also barred because it was a joint action that I think the infant child was under seven, six, five, somewhere in that neighborhood at that time.

And we contend that, that was not reasonable access, that access to a court should be under conditions offering the party reasonable opportunity to -- to present his case and -- and protect itself, that the basic purpose of -- well of tolling statutes of -- and of the special protection that the courts do offer infants, they are all based on the basic idea that -- that infants are not capable of protecting themselves and looking out after their injuries.

The respondent has -- has answered that by saying that, well, in New York, these petitioners could have come in at that time through a guardian ad litem.

We say that that's still does not answer the problem there.

That -- how - how do we know that the infants know enough to go about getting a guardian ad litem?

And in New York, the mere fact that an infant can come in through a guardian ad litem, does not change the tolling provisions in New York.

The infant can still -- the infant still -- infancy still tolls the statute in New York, even though during that period, the infant could come in through a guardian ad litem.

In essence --

Justice Felix Frankfurter: The -- the infant doesn't protect itself, but the guardian ad litem protects whatever the infant have.

Mr. Robert A. Dwyer: That is true Your Honor, but how -- how does that infant, first at least, bring this matter to the attention of adults, if they may or they may not, Your Honor?

We feel that there's a great -- a great danger here in --

Justice Felix Frankfurter: You said that the (Inaudible) of a guardian ad litem here, it still doesn't take care of the infancy?

Mr. Robert A. Dwyer: I -- I beg your --

Justice Felix Frankfurter: Isn't that right?

Mr. Robert A. Dwyer: I -- I said, Your Honor --

Justice Felix Frankfurter: Even -- even will if the guardian ad litem, you said, that doesn't take care of the infancy?

Mr. Robert A. Dwyer: I -- I would not dispute that claim with.

I would say that presumably, a guardian ad litem would take proper care of an infant, but I say that the problem goes back beyond that.

Justice Felix Frankfurter: That's (Voice Overlap) --

Mr. Robert A. Dwyer: That they not get to the guardian in the first place.

Justice Potter Stewart: Because I understood your point was this that, although New York provides that during infancy, the infant may sues who a guardian ad litem or more tentatively corrected -- a guardian ad litem may sue --

Mr. Robert A. Dwyer: On behalf --

Justice Potter Stewart: -- on his behalf still, that during the -- that the entire period of infancy tolls the Statute of Limitations for residents in New York.

Mr. Robert A. Dwyer: That is true in New York.

Justice Felix Frankfurter: Well, I was suggesting that during that tolling period, guardian ad litem is there.

Mr. Robert A. Dwyer: Your Honor, I think where we disagree is I would say that the -- the guardian ad litem may not be there.

Justice Felix Frankfurter: I understand that, but you said even if it's tolled nevertheless the period is -- is (Inaudible)

Mr. Robert A. Dwyer: The -- the period is -- is tolled even though that guardian ad litem is there.

In effect, it gives the -- the infant in New York a choice.

He can't -- or a guardian ad litem can't sue on behalf of the infant during that infancy period, but he can also wait until reaching majority and then assert period (Inaudible).

Justice Felix Frankfurter: To be protected I mean (Voice Overlap) --

Mr. Robert A. Dwyer: He's protected ordinarily, but I -- I say that in conclusion that the -- that the lower courts have not looked closely at the California law.

That they have adopted a -- this complex rule which they felt was the better rule.

And the fact, I think, the Circuit Court characterized the -- the forum rule that they did adopt here as the better rule.

Justice Felix Frankfurter: But your objection is not that they didn't look closely, but they misinterpreted it.

Mr. Robert A. Dwyer: I --

Justice Felix Frankfurter: Have you cited any cases that they haven't cited in California, on any other confessed (Inaudible)

Mr. Robert A. Dwyer: I believe all the cases we cited were before the Court.

Justice Felix Frankfurter: That's for the Court -- it shouldn't fail to consider them with the different view of -- of what California law is.

Mr. Robert A. Dwyer: It did, Your Honor.

It did in most -- very definitely did.

We -- we do say that under the Erie doctrine that the cases, for instance, of Deason and Emery represented strong clear dicta or data indicating what the California courts would do, the Circuit Court disagreed with us.

They -- in effects of the -- they have no relevant -- relevance here.

On the --

Justice Felix Frankfurter: Well --

Mr. Robert A. Dwyer: -- question of -- of the infant --

Justice Felix Frankfurter: -- when you -- when can you say -- what are we reviewing here, are we reviewing California law or are we reviewing the New York court prescribing what California law is?

What are we reviewing here?

Mr. Robert A. Dwyer: We're reviewing --

Justice Felix Frankfurter: Are we sitting here as an independent judge of California law or are we reviewing whether New York court would be entitled to trying a California law?

Mr. Robert A. Dwyer: I would say --

Justice Felix Frankfurter: Because you are very different.

Mr. Robert A. Dwyer: I -- I know they are Your Honor and I would say, the latter.

Justice Felix Frankfurter: Yes, that's why.

Mr. Robert A. Dwyer: The --

Justice Felix Frankfurter: You're sitting here at the New York court trying to find out what California law is.

Is that right?

Mr. Robert A. Dwyer: Yes, Your Honor.

Justice Felix Frankfurter: Alright.

Justice Charles E. Whittaker: Well or perhaps, maybe if you're sitting here in review of the (Inaudible) is whether or not, they reached with (Inaudible) the New York law reached, but the California law (Inaudible)

Mr. Robert A. Dwyer: That -- that is true Your Honor that -- or put it -- as I -- as I would put it that this Court is reviewing the decision of the court below, sitting in New York, applying New York law, which by reference that through as borrowing statute, incorporates the law of California.

I would say this, that if these were before a state court in New York that the state court would be in -- in exactly the same position that a federal court is, in trying to find what New York State Law is that -- that the New York State Court would look to California and look to all the cases and try not to -- in effect, predict if there isn't a case employed.

Predict what the highest court of California would do with this situation here.

Justice Felix Frankfurter: Let's -- let's see if we agree.

The New York District Court and the New York Court of Appeals in this case, fit to ascertain what the Court of Appeals in Albany would find to be the California law?

Mr. Robert A. Dwyer: Yes, sir.

That's --

Justice Felix Frankfurter: And we are reviewing here whether on the materials available, the New York -- the federal courts were allowedly describing that the New York Court of Appeals would -- would say that California law is that which they found.

Mr. Robert A. Dwyer: That is --

Justice Felix Frankfurter: Do you agree on that?

Mr. Robert A. Dwyer: I would agree with that, Your Honor.

Justice Felix Frankfurter: Alright.

Justice Potter Stewart: There's no -- there's no differences between you and your opponent as to what the issue is, is there?

Mr. Robert A. Dwyer: I -- I --

Justice Potter Stewart: In that respect -- in that respect?

Mr. Robert A. Dwyer: No, Your Honor.

I -- I think that we -- we --

Justice Potter Stewart: You both agree?

Mr. Robert A. Dwyer: -- all three, basically --

Justice Potter Stewart: You both agree that it was up to the -- that under the --

Mr. Robert A. Dwyer: Under theory, was up to --

Justice Potter Stewart: On the -- that the upshot of the conflicts in law's rules was that the -- that it was up to the District Court to apply the law as a California State Court would've applied it under these facts, isn't that it?

Mr. Robert A. Dwyer: Once removed, Your Honor.

Justice Potter Stewart: Once removed --

Mr. Robert A. Dwyer: I wouldn't say that -- that the District Court in New York -- the problem there before it was, what would the Court of Appeals of the State of New York find that the Supreme Court of California would find if this question were before the Supreme Court of California?

Justice Felix Frankfurter: And then bearing on that, we'd go on step further -- as bearing on that, the way the New York of Appeals -- New York Court for about ascertaining foreign law entered into the way New York looks upon foreign law.

Mr. Robert A. Dwyer: Well, that's very true, Your Honor.

And I -- and I say on that Your Honor that they -- their position, their -- their treatment of foreign law is -- at least there is no difference, I don't believe in this case, between what the District Court, Federal District Court would do in looking to the foreign law and then the New York Court of Appeals would do in looking to foreign law.

It too, would look to all relevant cases, all relevant type.

Justice Felix Frankfurter: I know but to be specific, if these are all New York judges.

Were they all?

Yes, they are all New York judges and they known what respect the New York Court of Appeals gives to what is concededly a dictum.

I'm not talking about this particular case.

I'm talking about the method by which courts go about, reaching a result as to what the law is.

Some state courts have had deference to deliver dictum.

Some state courts pay no attention.

Mr. Robert A. Dwyer: Alright.

Justice Felix Frankfurter: Some state courts take account as to the -- of the time and its relevant decision would've decided.

And take it into account the effects that general laws so to speak.

The law of most States would have upon being able -- in bringing about an erosion of time, etcetera.

All those are considerations in ascertaining what law is, because law isn't something you get by adopting an (Inaudible) of slot issues.

The law is what you get as a result of a process of thinking and reasoning in ways.

I don't think we disagree to it, isn't it?

Mr. Robert A. Dwyer: No sir --

Justice Felix Frankfurter: Alright.

Mr. Robert A. Dwyer: -- we do not.

I'd like to refer again to -- to 17 (b), the Rule 17 (b) of the Federal Rules of Procedure.

I don't believe I -- I have made my point clear or our point clear, as to how that applies to our question here.

Our reasoning is this, there is --

Justice Potter Stewart: You're referring now to Rule 17 (c) (Voice Overlap) --

Mr. Robert A. Dwyer: Rule 17 (b) --

Justice Potter Stewart: -- (b) rather.

Mr. Robert A. Dwyer: -- that provides, in substance, the capacity of an individual to sue shall be determined by the law of his domicile.

That rule appears to me to be relevant.

And the question again as to when Statute of Limitations run on this case -- when it started to run, because referring again out to California, California -- there is no -- the -- the statute in California does not expressly say that the -- that the tolling provisions shall seize at age 18.

That has been concluded by the California courts from the wording of the statute.

Now, their -- their reasoning on that is that --

Justice William J. Brennan: Was the same thing as that would've been written into the California statutes?

Mr. Robert A. Dwyer: It does, Your Honor.

It does have that effect, but I -- I urge that the reasoning there is based on -- primarily on capacity to sue.

That to get down to the heart of this matter of why -- why should they look to South Carolina and why should the law of the domicile, they all, rather than the law of the forum, gets down to this question of capacity to sue.

That -- that is something that the state of domicile should control.

And I believe in the Deason case and in -- and in the -- the Emery case that that was exactly what the Court really was driving at.

The capacity to sue should be a matter controlled by the -- by the -- the domicile state.

Justice Felix Frankfurter: But there's no question here about the capacity to sue, the question -- nobody doubts capacity, the question is whether the Statute of Limitations is run.

Mr. Robert A. Dwyer: Yes, Your Honor, but that also -- but that depends on when the capacity to sue took effect here.

We say that she had --

Justice Felix Frankfurter: But that's not a controversy here.

Justice Potter Stewart: Your point is that the -- that the California decision that held that this statute having to do with women who get married before they're 18 --

Mr. Robert A. Dwyer: Six -- Section 25 of this --

Justice Potter Stewart: -- govern the capacity to bring suit -- govern -- govern this problem was reasoned along capacity to sue lies?

Mr. Robert A. Dwyer: That's -- I -- I would characterize that statute (Voice Overlap) --

Justice Potter Stewart: The California law that made this statute that at least on its face doesn't govern (Voice Overlap) --

Mr. Robert A. Dwyer: By judicial construction that it has been applied to the Statute of Limitations situation, the -- the Court referred from the statute, from the wording of the statute -- from the -- the capacity to engage in transactions respecting property, they concluded from there that that statute included within the powers to transact --

Justice Felix Frankfurter: I guess --

Mr. Robert A. Dwyer: -- engage in process.

Justice Felix Frankfurter: -- this is the real question whether -- whether New York had a right to ensue that if California deemed 18-year old wives controverts would sue, he wouldn't -- would have civil standard upon why there's domicile elsewhere.

That's the real question.

How you construe the quality of that -- not how you arrive or --

Mr. Robert A. Dwyer: True.

Justice Felix Frankfurter: -- how the New York -- how those New York federal judges?

What they attributed, what they had a right to attribute, that to attribute something to the New York Court of Appeals.

The New York Court of Appeals had to attribute something to California because there's no explicit decision on the point, is that right?

Mr. Robert A. Dwyer: That's -- that's true.

Justice Felix Frankfurter: Another question is whether these New York federal judges had a right to impugn to the state judges of New York that they would construe the statute of California which said at 18 should become mature.

Differently, if it's out of statewide, that's the real question, isn't it?

Mr. Robert A. Dwyer: The question there is, would -- would California have referred to its own forum law to determine when the infants in this case --

Justice Felix Frankfurter: Not with California but with the New York law -- New York judges attribute that to California because California hasn't spoke explicitly.

Mr. Robert A. Dwyer: That -- that is true, Your Honor.

That -- you get up to California and that --

Chief Justice Earl Warren: We'll recess now, Mr --

Print this transcript Transcript: 

Argument of Robert A. Dwyer

Chief Justice Earl Warren: Robert F. Nolan, Administrator, et al., Petitioners, versus Transocean Air Lines.

Mr. Dwyer, you may continue your argument.

Mr. Robert A. Dwyer: Mr. Chief Justice, may it please the Court.

I'd like to conclude my argument with a brief summary of the facts which I feel presents a very harsh result, a result that has left a three months old child without her day in Court.

I'd like to summarize briefly the salient facts as we see them.

The father of this child died March 20, 1953.

At that time, this child was three months of age.

The wife was slightly over 16 years of age.

The court below in dismissing this cause of action, both -- I feel both causes of action when the wife reached -- reached the age 19.

At that time, this child was three years of age.

In fact at the present time, the child is just little over eight years of age.

Now, California gave that child a cause of action with the death of the father.

That cause of action did not belong to the mother, it belonged to the child.

True, California considered it a joint cause of action but only in the sense that one cause of action should be brought by all heirs.

But that child nevertheless had a cause of action which has been barred.

And it has been barred, I say, because that child was a citizen of South Carolina.

I say that the result in this case is a clear violation of Article 4 Section 2 of the Constitution.

If this child had been a resident of New York, there can be no question that she's still be in court today, and she would've been heard.

But because she was a resident of South Carolina, she is out of court.

Justice Hugo L. Black: Why do you say there'd be no question?

Mr. Robert A. Dwyer: Sir, under -- under the laws of New York, if she had been a resident of New York, and had sued on the California Wrongful Death Statute, she would have had until at least age 21 to bring the action and beyond.

And in fact, New York has a statute for its own Wrongful Death Statute as of two-year Statute of Limitations but that only applies to the New York Wrongful Death Statute.

A cause of action on a Wrongful Death Statute in another State -- well, I cite a case in one of my footnotes, James against Sackman in which the federal court in New York reasoned that -- that New York would probably apply at least their six-year Statute of Limitations for causes of action based on a statute.

They -- they looked at the New York law.

They saw that the limitation period of two years on the New York Wrongful Death Statute only applied to the New York statute, and that, they looked elsewhere in the Statute of Limitations for applicable law and they held that it would be as -- at least a six-year Statute of Limitations in New York.

There has been no serious dispute in the courts below as -- as to that factors, that facet of a case.

Chief Justice Earl Warren: Mr. Nolan, would it be that clear if the child was a citizen of California?

Mr. Robert A. Dwyer: If the child was a citizen of California, our argument is based on this reasoning that the Court should've applied the rule of the domicile.

If you mean the child had been a resident of California, I would say that no doubt, the California court would apply its own -- own law, Section 25.

As to the spouse, we still quarrel with the lower court's determination that the infant would be barred even in California.

We say even -- even as to one of its own residents in California, that under the more recent cases, including two in the Supreme Court of California, that the courts would no longer consider the infant barred when the mother was barred, certainly, if -- if a mother -- resident's -- if the mother in this case had been contributory negligent and have been barred.

Now, clearly under the California statute -- decisions, including two in the Supreme Court of California, that still would not have barred the child.And we say that by the same reason, the bar of the Statute of Limitations, assuming that it applied to the mother, certainly, should not have been applied to the infant.

Chief Justice Earl Warren: Are you referring to the Emery case?

Mr. Robert A. Dwyer: The Emery and Deason cases --

Chief Justice Earl Warren: Isn't that a little --

Mr. Robert A. Dwyer: Port --

Chief Justice Earl Warren: Isn't that a little different?

Mr. Robert A. Dwyer: I beg your pardon.

Your Honor, I was not referring to the Emery and Deason cases on that point.

I should have referred to Bowler against Roos and Flores against Brown.

Chief Justice Earl Warren: Those are in your brief?

Mr. Robert A. Dwyer: Those are in our brief.

And those concern the contributory negligence rule in California, and they are the cases we say more recent cases that indicate -- even in California, even a local matter including, you know -- that would involved merely a local accident, a local residence and so forth that they would not follow those old cases that were applied in this case.

And we say that -- I'd like to stress again that I will feel strongly that -- that the cases and the statute -- statutes, and Rule 17 (b) have been construed in such a way as to clearly violate the Constitution.

Justice Felix Frankfurter: What -- what would -- what prevail you the Constitution?

Mr. Robert A. Dwyer: I say, Your Honor Article 4 Section 2, privileges and immunities.

Justice Felix Frankfurter: Of whom?

Mr. Robert A. Dwyer: Of -- of the --

Justice Felix Frankfurter: What's --

Mr. Robert A. Dwyer: -- mother and her child.

Justice Felix Frankfurter: What's the constitutional provision?

Mr. Robert A. Dwyer: That -- the constitutional provision on -- on the privileges and immunities.

Justice Felix Frankfurter: Of whom?

Privileges and immunities, whose privileges and Immunities?

Mr. Robert A. Dwyer: I'd say of the wife and child, Your Honor.

Justice Felix Frankfurter: Yes but what -- the Constitution doesn't says the wife and child.

The Constitution -- give you some class.

Well, what is the class?

Mr. Robert A. Dwyer: Citizen, Your Honor.

Justice Felix Frankfurter: Well, but the New York statute doesn't differentiate between citizens and non-citizens.

Mr. Robert A. Dwyer: I would say --

Justice Felix Frankfurter: It differentiates between residents and non-residents.

Mr. Robert A. Dwyer: I -- I acknowledge the distinction that has been made in the cases, Your Honor.

I say to that, that that distinction as a practical matter, as between resident and -- residents and citizenship applied in -- to this statute from the circumstances of this case, is a distinction without a difference, that it's a practical matter.

I -- I can't see New York, in other words, applying this rule to a citizen of its State who happens to be a non-resident at the time of the accident.

Justice Felix Frankfurter: Well, why not?

But that's exactly what the statute says and that put lots of statute differentiate between residents and citizens so that a citizen of New York, not a resident is not within this New York Statute of Limitations.

We have no rules of any case, wouldn't it?

Mr. Robert A. Dwyer: We would have, yes, Your Honor.

I -- I believe it should be applied in -- in many cases.

It hasn't been.

Justice Felix Frankfurter: Well, but we would have to overrule a lot of case -- not a lot, several cases which -- which point out the distinction that a State makes between applying a Statute of Limitations or other right as to resident, whether it's old resident, whether it's own citizens or not and as to residents whether the citizenship from another State or not.

So, how did it come within the privileges and immunities for citizenship cause?

Mr. Robert A. Dwyer: Well, I say Your Honor that as a practical matter, this case would be applied 999 times out of a thousand to a non-citizen of the State of New York.

Justice Felix Frankfurter: And then we should delete the word "citizen" from the constitution, is that --

Mr. Robert A. Dwyer: I -- I propose Your Honor respectfully that -- that we should look beyond the use of its terminology.

Justice Felix Frankfurter: Well, but the Constitution says citizens, and the citizen is a definite legal conception and a resident maybe a resident and citizen, or a resident and a non-citizen.

Mr. Robert A. Dwyer: Yes, that's true.

It may be that.

But I say -- I would go back to my original proposition Your Honor that in this -- as applied to this statute that -- well as far as I'd looked to see if New York had ever applied the statute in this -- in the circumstances of a citizen of a State will have to be (Inaudible) at the time and I found none.

Justice Felix Frankfurter: Well, how can you say you didn't find any?

There are thousands of cases that are tried in the trial court in the City of New York and the so-called Supreme Court of that State, it never get beyond the Supreme Court.

They're on trial there.

How -- how can anybody tell what happens in those courts when they don't reach the Appellant Division, get along to Court of Appeals?

Mr. Robert A. Dwyer: Well, I say to that Your Honor that -- that certainly, I have to be guided by the recorded opinions.

Justice Felix Frankfurter: And the Constitution which makes the distinction between citizens and residents.

Mr. Robert A. Dwyer: Your Honor, I believe there has been some -- have been some cases in this Court.

They have ignored that distinction.

Justice Felix Frankfurter: Alright.

Mr. Robert A. Dwyer: I submit -- submit a --

Justice Felix Frankfurter: But you're asking us to ignore the very basic distinction which the Constitution made as in equality of treatment of citizens but not equality of treatment of residents and non-residents.

Mr. Robert A. Dwyer: I would say I'm asking this Court to look behind the wording -- to -- to the actuality to the situation.

And I believe it's important not only in this case but many, many states have a borrowing type of statute.

And I believe that when an infant gets caught in some very harsh -- very, very hard legalistic reasoning based on this borrowing statute.

I respectfully submit that the Court should look very closely into this -- this situation and as it had been applied in this case.

Chief Justice Earl Warren: Mr. Junkerman.

Argument of William J. Junkerman

Mr. William J. Junkerman: Mr. Chief Justice, may it please the Court.

Petitioners and respondent are in basic agreement that the lower courts were required to apply the New York law including its conflict of law's rule and its Statute of Limitations.

Under the New York conflict of law's rule, any substantive right which the petitioners may have for the alleged wrongful death or their decedent, is governed the law of California.

Under borrowing provisions of the New York Statute of Limitations, this action cannot be enforced in the courts of New York if it is barred by the statutes of California.

The basic question presented to the lower courts therefore, as petitioners point out at page 11 of their brief was whether petitioners would have been barred in California if their suit had been brought there instead of in New York.

Now, under Section 25, the California Civil Code, "Any female who has contracted a lawful marriage and thereafter reaches the age of 18 years shall upon reaching the age of 18 years, be of the age of majority and be deemed an adult person for the purpose of entering into any transaction, respecting property, the same as if she were 21 years of age."

That particular statute has been before the California courts a number of times and we respectfully submit that there were four cases directly in point, four California cases directly in point.

They are District Court of Appeal cases.

They are not of this Supreme Court of California.

The question never got to the Supreme Court of California.

The first of the cases that we referred to is Sears against Major -- Majors that's 104 Cal.App. 60.

It was a 1930 decision decided in our brief.

It involved a decedent who let him surviving a wife of full age and a son 15 years of age.

The Court held that since the action was barred to the mother, it was also barred to the son.

Now, in Haro against Southern Pacific, 17 CA 2d 594, that was in 1936 case.

This is a case are all force.

There, the widow was 19 at the time of her husband's death.

She left one child, who was one year old and another who was less than three months old at the time of his death.

The action was started one -- more than one year after Haro's death but before the widow reached the age of 21.

The Court ruled that the action was barred as to the widow.

And since it was a joint action, the bar of the statute as to the widow plaintiff was also a barred to the action by the infant children.

I respectfully submit that is -- that is directly in point.

But what the petitioners say to that?

They say, "Oh, we recognize those decisions."

But they're asking this Court to disregard and they say they're old cases.

Well, I don't think that 1930 or 1936 are necessarily old but if they'd be old, California has answered that too and said in two other cases.

And the first to those is Gates against Wendling Nathan Co. 27 CA 2d 307.

That was decided in 1938.

And in that case, I'm reading from page 20 of our brief, is what the Court said, "The further contention that the statute has not run because one of the plaintiffs is a minor.

It's squarely answered by the opinion of the Court in Haro v. Southern Pacific Railroad following Sears v. Majors 104 Cal.App. 60."

Those are the two cases I've just referred to.

Here in 1938, same California Appellate Court is risk -- is -- is making -- it's basing its decision on exactly those two cases which petitioners say are -- are old cases.

Then again, we have another, if that's -- 1938 is too late, we have another case in 1956, the case of Caraway against Burns 143 CA 2d 328.

Now, this was an action by a -- by a married woman for personal injuries.

The Court ruled that her action was barred before she became 21 because as a married woman, she was of the age of majority when she reached the age of 18 years, and that her action was barred by the one-year Statute of Limitations.

The Court's rule was specifically based upon the Haro case which the petitioner said it's an old case.

Here, it is again, reinstated in 1956.

Now, in that particular Caraway against Burns case, again the Court said and it referred to an earlier case.

It said that, "A woman of 18 years of age and being married is an adult."

So that, we have the situation clearly that the woman 18 is an adult and in California.

Now, as to --

Chief Justice Earl Warren: Was the application for a hearing in the Supreme Court in any of those cases?

Mr. William J. Junkerman: Yes, Your Honor.

There were in two of them and in the Sears case, that Sears against Majors and on the Haro case.

Petitions of the appellants to have their cases heard and the Supreme Court of California were denied.

In the -- in their official report in Sears -- Sears against Majors, there's a footnote showing as the -- the addendum rather showing if that happened.

In the Haro case, we find that in the reference of Caraway -- Caraway against Burns which we quoted in -- in our brief on page 12.

Yes, that's right.

See here in Caraway against Burns that the Court is saying, "The point was decided against plaintiff's contention in Haro v. Southern Pacific.

A wrongful death action by a widow 19 years old when her husband died, instituted more than one year after his death but before she reached the age of 21."

The Court held that the phrase, "transaction respecting property" in Civil Code Section 25 includes the bringing of an action for wrongful death.

That she, therefore, was under no disability preventing her to bring the action at anytime during the year following his death and that at the end of that year, the action was barred by the statute.

The Supreme Court denied a hearing.

Appellant's attacks on this decision and her contention that has lost authority because of an amendment made in 1953 in Section 25 supra are without merit.

So, to that California court obviously would've said petitioner's argument here that they were out of date which without marriage.

Now, as to whether an intermediate court's opinion, rather the Supreme Court should be recognized in the case of this kind.

Well, this Court has said that it should in -- in Fidelity Union Trust Company against Field, 311 U.S. 169.

Mr. Justice Hughes in delivering the opinion of the Court said, "An intermediate state court in declaring and applying the state law, is acting as an organ of the state, and its determination in the absence of more convincing evidence of what the state law is, should be followed by a federal court in deciding a state question."

I haven't cited that case in our brief but I had just made a note of it.

Now, as to --

Justice Hugo L. Black: What was that case?

Mr. William J. Junkerman: That case is Fidelity Union Trust Company v. Field 311 U.S. 169, at pages 177-178.

Now, petitioners placed great reliance on the case of Emery against Emery and Deason against Jones are in the first place.

I -- I would like to respectfully point out that in both of those cases, the reason California -- the reason California by the law of its -- the domicile was that the domicile in that case was California and they did it for a very special reason.

In the first place, the Emery case was a suit by a mother and two daughters brought against the father and his son, arising out of an automobile accident in Idaho.

The father was the owner of the car.

The son was the driver of the car.

Now, the question arose as to whether or not situation like that -- that involved a family relationship, there was the key to the whole question.

That involved a family relationship whether or not California was going to apply Idaho law or its own law.

Justice Hugo L. Black: How did it involve to family relationship?

Mr. William J. Junkerman: The fact that of -- the fact of a mother and two children was suing the father and a daughter -- and a son whether or not --

Justice Hugo L. Black: What was --

Mr. William J. Junkerman: -- that was against --

Justice Hugo L. Black: What was the --

Mr. William J. Junkerman: -- public policy.

Justice Hugo L. Black: What was Idaho law (Inaudible)?

Mr. William J. Junkerman: Well the -- the Idaho law would not have let them do it.

Whereas in --

Justice Hugo L. Black: What did it provide?

Do they should not have the capacity to bring the suit against him (Inaudible)?

Mr. William J. Junkerman: I believe that's what it was.

I -- I believe it was entirely questioned advice.

And -- and California said, "This whole family domiciled in California."

They said, "Therefore, because of the -- and that this is -- this is taken right from the decision.

They said, "We think that disabilities to sue and immunities from suit because of a family relationship are more properly determined by reference to the law of the state of the family domicile."

And I'm quoting from page 13 of petitioners' brief.

They quoted that length.

I -- I think that that's the key to the whole decision on Emery against Emery.

And they also pointed out that if you -- if you didn't consider capacity from a -- from a family relationship in that sense, if every time -- every time that a family were driving from state to state, the question of family relationship so forth might be changed.

Now, that was the -- a sense about Emery decision and I don't think it has anything to do with what were faced with here.

Justice Felix Frankfurter: What was the state of the Emery decision in relation to the decision that you're relying?

Mr. William J. Junkerman: State of the Emery decision?

Justice Felix Frankfurter: Is it early or later?

Mr. William J. Junkerman: I believe it's later Your Honor.

No ever, it's -- it's 1955 so that it's -- it's earlier than the Caraway case because Caraway was 1956.

Justice Felix Frankfurter: Whichever -- whichever decision or accept that decision.

It's earlier or later than the other decisions.

It's either one or the other forced to choose.

But the earlier decision referred to --

Mr. William J. Junkerman: No, that's in --

Justice Felix Frankfurter: -- either in the family relation decision --

Mr. William J. Junkerman: No --

Justice Felix Frankfurter: -- it's an earlier decision?

Mr. William J. Junkerman: No, they were not --

Justice Felix Frankfurter: (Voice Overlap)

Mr. William J. Junkerman: They were not Your Honor.

In this Emery case, they didn't refer to any of those cases that I referred to.

It was Court of Appeals cases and the later case that they refer to the Emery case.

Justice Felix Frankfurter: They couldn't have referred to them unless you tell me that they're earlier.

Mr. William J. Junkerman: Well, two of our cases were earlier --

Justice Felix Frankfurter: Alright.

Mr. William J. Junkerman: -- Your Honor and -- and three of our cases were early and one was later.

Justice Felix Frankfurter: Alright.

Mr. William J. Junkerman: That's what I mean.

Justice Felix Frankfurter: They could've referred to the earlier ones, did they?

Mr. William J. Junkerman: They did not.

Justice Felix Frankfurter: Is the later case referred to the Emery case?

Mr. William J. Junkerman: No, it did not Your Honor.

Justice Felix Frankfurter: So they believed that in the different case of each one has separate ways in California?

Mr. William J. Junkerman: That's right.

That's right.

They didn't consider -- I don't think that -- I don't think that thought the Emery case related to this particular statute with the --

Justice Hugo L. Black: (Voice Overlap) --

Justice Felix Frankfurter: Well, I thought --

Justice Hugo L. Black: What court decided the Emery case?

Mr. William J. Junkerman: Pardon?

Justice Hugo L. Black: What court decided the Emery case?

Mr. William J. Junkerman: Well, that was the California Supreme Court.

Justice Hugo L. Black: What court decided your case?

Mr. William J. Junkerman: The California Court of Appeals, all -- all four.

Justice Hugo L. Black: One of them decided that the law of the domicile would govern as to the right of the children to sue (Inaudible), law of the domicile which -- would govern, isn't it?

Mr. William J. Junkerman: I don't think that --

Justice Hugo L. Black: Oh while suit was brought (Inaudible).

Mr. William J. Junkerman: No, I -- I think Your Honor this Emery case -- the -- the question I -- I think it was more or less a question of capacity to sue based on a family relationship --

Justice Hugo L. Black: I understand it was a capacity to sue based on one point.

Mr. William J. Junkerman: Yes.

Justice Hugo L. Black: A capacity to sue here is based on another point, another ground --

Mr. William J. Junkerman: Well, I think the --

Justice Hugo L. Black: -- (Voice Overlap) I believe the capacity to sue, isn't it?

Mr. William J. Junkerman: I think these other four cases was not a question of capacity to sue.

It was a whether a cause of action existed.

Justice Hugo L. Black: That's right.

Where -- where the --

Mr. William J. Junkerman: And whether the cause of action was barred.

And I think that's somewhat different.

Justice Hugo L. Black: In connection with the different situation.

Mr. William J. Junkerman: For instancy, I -- I mean like, take this case of Deason against Jones, the second case which they referred to.

The -- in that case -- in that case, Oklahoma, originally, this infant had been domiciled and was a resident of Oklahoma.

And while he was there, he was authorized and empowered to transact business as though he was over the age of majority.

Then he moved to California and before he was 21, he and California made a contract to purchase him property.

And apparently, this didn't turn out so well.

So when he was sued respect to it, he disaffirmed the contract.

He was still an infant.

And the California Court said, "Here now, he's a resident, the citizen domiciled in California.

He's no longer in Oklahoma."

They said, "In that case, we will apply our own law because he's domiciled here, because the contract is made here and everything pertained to it."

Justice Hugo L. Black: They applied the law of the domicile in both of those cases, did they not?

Mr. William J. Junkerman: Yes, they -- they did.

Justice Hugo L. Black: On the basis that the law of the domicile determined in those two cases, in reference to those two things the capacity to sue?

Mr. William J. Junkerman: In those two -- yes, Your Honor, that's correct.

Now, there was also and -- and seeing the way California, I suppose it's a community property state California or is a pioneer in that -- in that -- with that court, and they have slightly different conceptions of thing.

For instance, in (Inaudible) case that cited by petitioners.

This is a California Appellate Court decision.

Now, that -- that brought up this question, there -- the husband -- there was a husband and wife who were domiciled in Ontario, and they were driving an automobile in California and there was an accident.

And the question that came up was whether California incidentally had a -- a rule that if one other parties was guilty of contributory negligence the -- that negligence would be imputed to the spouse.

And therefore, they wouldn't -- and the reason for was that in California, a husband would have an interest in the wife's recovery, and the wife would have an interest in a -- in a husband's recovery.

But there the California court looked to see what the law was in the domicile, in Ontario, and they found that Ontario didn't have any such rule.

And so, they said that therefore, they would not apply California's rule and impute to negligence of the one to the other.

But the Court conceded that had they been domiciled in California, the result would be different.

Now, that's what that case stands for.

And again, I -- I submit that it does not touch upon -- not one of those three cases touch upon the problem of which -- which we are concerned here.

Justice Felix Frankfurter: What's the latest case that you have found in the Supreme Court of California that may fairly be said to deal with this problem, in which the Supreme Court of California gave some -- some substantial manifestation of its mind on this problem?

Mr. William J. Junkerman: We have not found any case.

We have not cited any nor have petition.

There isn't a single case.

The only one -- the only cases that -- that have been decided in California on a subject are those four Court of Appeals cases and the fact that the Supreme Court of California twice denied appeals on the questions.

Justice Felix Frankfurter: Does that -- does that imply that both counsels had -- (Inaudible) so that implied of both counsel have resorted with the conventional way of finding out what opinions has been written by Supreme Court of a state in a case which is essentially a problem of state law?

Mr. William J. Junkerman: Yes Your Honor.

I would say so.

Now, contrast with the California cases relied on by petitioners that were just referred to.

There are cases, Smith versus Shepler which is a Court of Appeals case and Biewend versus Biewend, that's 17 CA 2d 108.

In the Smith case, the appellate court said, "It is true as to procedure and pleading the foreign plaintiff appearing in our courts must follow the California law.

He is subject to the period of our Statute of Limitations regardless of the period of similar statutes in his jurisdiction."

And in the Biewend case, the California Supreme Court said, "It is a principle of conflict of laws recognized in California that the barring of a claim by the Statute of Limitations is a procedural matter governed by the law before them, regardless of where the cause of action arose."

Now, as to Rule 17 (b), which petitioners have relied upon, it seems to me that the argument made there and of course that part of their argument is that 17 (b) first sentence, "The capacity of an in -- individual, other than one acting in a representative capacity to sue or be sued shall be deter -- determined by the law of his domicile."

Well, you see that question and a diversity of cases has been before this Court on several occasions.

And I think that was the answer to -- in Guaranty Trust Company v. York.

And in -- not only in Guaranty Trust Company against York but there was a -- a much closer analogy to the rule question here in Ragan v. Merchant's Transfer Co., 337 U.S. 530.

Now, that was a -- a case that particularly brought up the --- the question of whether in a diversity case, Federal Rule of Civil Procedure Number 4 was to govern or whether the -- whether a Kansas statute was to govern as to when an action was commenced.

Under Rule 4, an action has commenced in a District Court by the filing of a complaint.

And under the Kansas statute, it's commenced by the service of the summons.

And in this particular Ragan case, the summons was served -- the complaint was filed before the Statute of Limitations had expired, but the summons was served after the statute had expired.

And this Court, in an opinion by Mr. Justice Douglas ruled that the state statute was controlling, and it also ruled that filing a complaint did not toll the statute.

And let me just quote briefly from the opinion there, at page 534, Justice Douglas said, "It is argued that the Kansas statute and question is not an edictal part of the Kansas Statute of Limitations.

But the Court of Appeals, on a careful Kansas -- of Kansas law has held to the contrary.

We ordinarily accept the determination of local law by the Court of Appeals, and we will not disturb it here."

Now, I respectfully submit that you could really substitute the Court of Appeals for the Second Circuit, and what they did in this Nolan case into that last paragraph, and it would apply completely and answer completely the question with respect to where the 17 (b) applies.

Now, as to last the point that petitioners raised as to the question of the constitutionality of -- of Section 13 of the New York Civil Practice Act, I just like to say that the New York Court of Appeals consider that question I think back at 1917, and rule that it was not a discrimination against non-resident.

And furthermore, in a somewhat analogous case, I'll admit there was an infancy involved but somewhat analogous case would be the Canadian Northern Railway against Eggen 252 U.S. 553, where this Court upheld that -- a constitutionality of a similar statute, similar Minnesota statute.

So, I respectfully submit that the authorities seem to be clearly against petitioners here and the Second Circuit, the District Court and the Second Circuit certainly carefully looked into New York law, carefully looked into California law before they arrived at the decision.

And I submit Your Honor that is correct.

Justice Hugo L. Black: From this point, may I ask you one or two questions of that to get clearly if I can the law you've given?

Suppose this lady and her little child had lived in New York, from residence from New York, her father and husband has been in killed in California as he was.

And a suit had been brought in New York under those circumstances.

What would have happened?

Mr. William J. Junkerman: I would -- it will bar to the mother.

It would be barred to the child.

The Statute -- the Statute of Limitations apply to the mother, it will be considered joint --

Justice Hugo L. Black: Well, what about the --

Mr. William J. Junkerman: -- a joint action.

Justice Hugo L. Black: What about the New York law, if she had been a resident of New York at the time of the accident, the time of the suit was filed?

Mr. William J. Junkerman: Well, if -- if the Statute of Limitations in New York -- if she brought her action after the statute, New York ran against her --

Justice Hugo L. Black: I'm not talking -- when would the statute have right against her as a -- she was a resident now.

She didn't live in South Carolina but lived in New York now.

Mr. William J. Junkerman: You mean ordinarily they're normal New York stat (Voice Overlap) --

Justice Hugo L. Black: If this suit and she filed this particular suit in the State of New York or this particular death, what would have been the Statute of Limitation?

Mr. William J. Junkerman: And if she had been a resident of New York?

Justice Hugo L. Black: That's right.

Mr. William J. Junkerman: Well, they would have applied I believe the -- instead of the one-year statute, they would have applied the two-year Statute of Limitations, Your Honor.

Pardon?

Chief Justice Earl Warren: Beginning at what time?

18 or 21?

Mr. William J. Junkerman: Well, it wouldn't -- it would be -- as far as -- I mean, as far as the mother is concern, as far as the mother is concern if she were -- if she were a resident of New York, it would be start to run when became 21.

Justice Hugo L. Black: When she became 21.

Mr. William J. Junkerman: Yes, Your Honor.

Justice Hugo L. Black: Would been filed in time.

Mr. William J. Junkerman: Oh yes, it would have been filed, yes indeed.

Justice Hugo L. Black: Yes.

Suppose instead of that, she had lived in New York and had appointed -- an administrator had been appointed, (Inaudible) or whatever you call it, in your state in South Carolina, and he had filed decisions.

What would have been the Statute of Limitations?

Mr. William J. Junkerman: If she were a resident of New York, the accident happened in California --

Justice Hugo L. Black: That's right.

Mr. William J. Junkerman: And to summary, Your Honor, she --

Justice Hugo L. Black: -- an administrator who lives in South Carolina, her father (Inaudible).

What would have been the Statute of Limitation?

Mr. William J. Junkerman: I don't think that the -- I don't know Your Honor but I don't think that the appointment of this administrator down there would make any difference.

Justice Hugo L. Black: In other words, if this lady lived in New York the time their suit was drawn.

The laws of New York would have permitted her to file this action and would not have been barred with the Statute of Limitations.

Mr. William J. Junkerman: Yes, if you'll look at Section 13 of the New York Civil Practice Act, that is exactly what it says.

It gives -- in other words, it says that --

Justice Hugo L. Black: Well, that's why I asking that (Voice Overlap) --

Mr. William J. Junkerman: -- which -- whichever is the long -- yes, the statute says that, whichever is the longer and I think the -- I think that Minnesota borrowing statute had somewhat analogous provisions.

Justice Hugo L. Black: What has the Supreme Court of New York held or the Highest Court of New York held when a -- a resident of New York is the administrator of an estate of a person like this and filed suit?

What Statute of Limitations applied?

Mr. William J. Junkerman: You mean where the person is arrested in South Carolina now?

Justice Hugo L. Black: That's right.

Mr. William J. Junkerman: Well, in this --

Justice Hugo L. Black: Accident is happened in California.

Mr. William J. Junkerman: Yes, in this particular case, there was the administrator point.

It was a New York resident who was appointed administrator in South Carolina?

Justice Hugo L. Black: What has the Supreme Court or your highest court of your State held with reference to that type of suit under the Statute of Limitations?

Mr. William J. Junkerman: I don't know Your Honor that I commence that offhand.

It didn't come up in this case thus far.

Justice Hugo L. Black: Well, I notice -- I thought it did come and that -- that was raised and -- that the court below said that the Supreme -- the Courts of New York had never passed on that question.

Mr. William J. Junkerman: Yes, I've -- and Judge Friendly in his opinion below, I think he's pointed out that neither side, I mean, there was no point raised by petitioners on that subject in the court below.I think that --

Justice Hugo L. Black: (Voice Overlap)

Mr. William J. Junkerman: -- in his opinion raised it himself.

He raised it himself I believe in his opinion.

Justice Hugo L. Black: And he said there had been no decisions on it, did he not?

Mr. William J. Junkerman: I don't recall whether he said that there had no decision in that but he -- he did decide on the merits of the question that it wouldn't have made any difference.

Justice Hugo L. Black: Have you read the case of Clay against the Sun Life Assurance Company?

Mr. William J. Junkerman: I don't know at all apparent, Your Honor.

Justice Hugo L. Black: Have you in your way of telling us of any opinion of the Supreme Court in the State of New York or any opinion of any lower court of the trial of any lawsuit in the lowest court?

Mr. William J. Junkerman: Well, the --

Justice Hugo L. Black: The law of New York bars under the statute, under which you claim now, bars the suit filed by a non-resident administrator or non-resident plaintiff?

Mr. William J. Junkerman: I can't think of one offense Your Honor.

And unfortunately, since that hadn't been raised by the other side, I didn't prepare myself on that particular quote -- point.

Justice Hugo L. Black: Well, that was the part of the opinion of the court, of that point were.

Mr. William J. Junkerman: Yes, I -- I mean petitioners made no point of it here.

And so I didn't expect to be confronted with that.

Justice Hugo L. Black: Have you any New York cases that -- that show what New York would decide on this particular case or kinds of case, if it found the law of California in doubt?

Mr. William J. Junkerman: If it found that the law of California in doubt, what would New York do?

Justice Hugo L. Black: Yes, what would it do with reference to apply to the Statute of Limitations?

Mr. William J. Junkerman: It's very difficult.

Justice Hugo L. Black: Do you know?

Mr. William J. Junkerman: It would be difficult to me to say that Your Honor but I don't think that -- I don't think that California law is in doubt.

Justice Hugo L. Black: Well, there seems to be quite an argument here what it is.

Mr. William J. Junkerman: Well, I -- I just rely in the California cases that are right directly in point on the Statute of Limitations.

Justice Hugo L. Black: Do you know whether or not the courts would attempt to apply the policy that the state recognizes there from the residents under 18, under 21?

Mr. William J. Junkerman: I can -- I can say this, Your Honor.

I just thought of it.

I had a case in New York, since you're asking for a case.

It involved the Warsaw Convention where the Warsaw Convention had a limitation an action had to be brought within two years.

It was an accident in Brazil, and the mother was suing in New York on behalf of herself and on behalf of her infant child.

I was -- I representing Pan American Airways moved for summary judgment, came on before Judge Stoyer (ph) and he granted summary judgment.

He said the action was barred to be -- the widow was to be barred to the infant child.

An appeal was taken to the Appellate Division First Department and they unanimously affirmed.

The title of that action is Bochory, B-O-C-H-O-R-Y.

Justice Hugo L. Black: How do you spell it?

Mr. William J. Junkerman: B-O-C-H-O-R-Y against Pan American World Airways.

I don't remember the citation but I can get it and leave it with the clerk of the Court --

Justice Hugo L. Black: I appreciate that (Voice Overlap) --

Mr. William J. Junkerman: -- before I leave here today.

It was my -- yes, I -- I remember that very distinctly because that argument was a -- but there again, it shows the -- and -- and Judge Stoyer (ph) as I remember the opinion of the lower court.

He referred to the law of New York on that subject, so that in that sense, as far as the action being joint, the divisible is the same in New York as it would be in -- as what in California, as expressed in the Haro case.

Chief Justice Earl Warren: Mr. Dwyer.

Rebuttal of Robert A. Dwyer

Mr. Robert A. Dwyer: Your Honor, I -- I believe there's been some confusion in the Flores case.

The Flores case merely borrowed -- barred the spouse.

It did not -- or -- or the Caraway case, merely -- well, the question of barring -- barring a spouse, it did not involve an infant child.

I believe that the side of this -- and it rather confused matter here that may confuse the problem.

On the question of the barring of the child, only the Sears, Haro and Gates cases relate to that question.

So that the Caraway case involved, we say, a domicile of California.

We don't question the fact that in California, the law is fairly well settled that a domicile -- quite domiciled in that State would be barred at A -- AJP.

But it didn't pertain to the question as to whether or not a non -- of course not domiciled in California would have Section 25 applied to her or not.

And that's where we say the Emery -- Emery case is burden, Emery and Deason cases.I believe the question has been raised as to the administrator and we did not raise that in the District Court, we did not raise it in the Circuit Court of Appeals.

The reason we did -- as you note, we did commence the action, originally with an administrator.

Justice John M. Harlan: (Inaudible)

Mr. Robert A. Dwyer: We were in doubt about that.

The New York statute Section 13 uses the phrase, "originally approved to a resident".

We construe that to mean that under California law, this cause of action originally accrued to the wife and her child, widow and her child.

And that under the New York law, the expressions originally accruing would've applied strictly as of the time the accident accrued to the -- the widow and child, so that the appointment of an administrator would not have made any difference.

But I must be frank to say that -- that we looked into the case to some extent.

I don't recall offhand.

I don't have them with me.

Recalling from memory, there were some lower court decisions indicating that they would look back the appointment of administrator in this type of a situation.

Justice Hugo L. Black: Could -- could you leave those to the clerk?

Mr. Robert A. Dwyer: I -- if I have them Your Honor I will.

Is there any way I could arrange to -- to get them to the Court, if I don't them today?

Chief Justice Earl Warren: You may get them to the clerk, just as -- as soon as you can, if you don't have them here.

Mr. Robert A. Dwyer: Thank you.

Justice Hugo L. Black: The California Death Statute, is it cited in either one of your briefs?

Mr. Robert A. Dwyer: Yes, Your Honor it's --

Justice Hugo L. Black: I -- I mean is it quoted?

Mr. Robert A. Dwyer: Yes, yes, Your Honor.

Justice Hugo L. Black: Which one is quoted?

Mr. Robert A. Dwyer: We'll see.

It's page 3 of respondent's brief and it's page 2 of petitioners' brief, pertinent parts of it.

Justice Hugo L. Black: Yes, I see it.

Thank you.

Chief Justice Earl Warren: Mr. Dwyer, you would of course serve -- served those cases on.

Mr. Junkerman, if -- if you submit it to the Court and if you wish to make it short memo in reply, you may do so, Mr. Junkerman.

Rebuttal of William J. Junkerman

Mr. William J. Junkerman: Thank you very much.