Alexander Ramsay, Jr. v. The Boeing Company

COLEMAN, Before GOLDBERG Judges. MORGAN, Circuit Judge: MORGAN, Circuit R. LEWIS wrongful death action aris- This is jet a commercial out of the crash of Belgium, on Brussels, Feb- airliner near ruary Liability 15,1961. predicated suing Ramsay, and Jean for the death B. Boeing airliner, son, law.1 of their are resident citizens 707-329, operated by Michigan. was Sabena Bel- State of Genevieve Swal- gium Airlines, lender, World was manufac- whose husband killed in the was Boeing. crash, tured appointed the defendant At the the administratrix crash, airliner, Michigan time of the fatal serv- his estate in and is a resi- Flight originat- as Sabena which dent citizen of Minnesota. Martha making ed in York, Offergelt, suing New Sauren was its final for the death of approach airport, husband, her to the Brussels is a resident citizen of apparently experienced Germany. Balteau, more West one or Helene Marie suing serious husband, mechanical also malfunctions and for the death of her ground. crashed Belgium. This action resident was citizen of Boeing commenced in Company the United Dis- corpora- States is a Delaware trict Court for principal place the Southern with District of its of business Mississippi February 1967,2 Washington. on in some the State of Each of the days six-year plaintiffs thirteen precluded before the was bringing Mis- sissippi statute limitations would have jur- suit under the laws of their resident expired.3 York, isdictions, where of New the laws flight originated, as well the ill-fated plaintiffs, their dece- None of the nor prin- Boeing’s place incorporation and dents, are or were residents the State Jr., Furthermore, Ramsay, Mississippi. place Alexander cipal of business.4 following predicated foreign country Liability on the in accrues another state or articles of the Civil Code: there because cannot be maintained Any lapse act, which in Article 1382. human be maintained of Minnesota, except by of time cannot per- injury another, obliges causes Minnesota citizen damage to son whose fault caused the claim from the time it who owned the Minn.Statutes, redress it. 573.02 §§ accrued. Everyone ap- (1967) for the Article 1383. injury is liable amended and 541.14. As will only by pear below, caused not his action but in more a death action detail brought imprudence. negligence must be also his or his under the law of years responsible 1384(1). Article only One is five of the date of death. within injury period wrongful for death caused one’s own The limitation acts, equivalent, actions, Ger- but for that is caused their in West also which or persons many whom is not available to us. the act for one responsible, things for which are in New York an action or of Under brought custody. wrongful one’s death must be within years two of the death. Estate Powers & plaintiffs previously Law, Furthermore, 2. The had settled their 5-4.1. ac- § Trusts against $8,300 each, arising of New York are claims Sabena for un- tions outside expiration brought der if after the the Warsaw Convention. barred period applicable limitation under the (1956). See of either New York or the state § Miss.Code Smith laws except Infirmary country arose, Association, Miss., where action McComb originally in accrued 196 So.2d 91. where the action York, New favor of a resident of New Michigan, applies. 4. In Practice an action for death York limitation Civil must years brought Rules, within Law & 202. Delaware has § three from the date wrong- death, period ap- two-year of limitations for of limitation statute plicable borrowing accruing which to a claim ful death and a provides statute outside of Michigan prescribed in is that the law of place nation, the by where the the short- claim accrued or laws of another state except Michigan, applies, the law of bars that the Dela- whichever er limitation applies plaintiff the claim. if was Revised Judicature Act of ware limitation 5805 and a Delaware when the cause §§ [M.C.L.A. §§ 600.- resident Minnesota, 600.5861]. an action accrued. 10 Delaware §§ Code wrongful brought Washington, death the lim- must be with- and 8120. In 8106A wrong- in three after the act or omission itation for an action causing death, years, Min- if the cause and under ful death is three but Borrowing territory state, Statute, which nesota an action of action is barred in the by Boeing containing er sole documents issued plaintiffs “[t]he concede that concerning started conclusions and admissions was reason post-acci- take advan- accident and evidence of towas [sie] the tage changes Boeing design Mississippi’s six-year of dent made statute acci- resulted from the death. Other limitations theory that, plaintiffs’ dent defend- that the confirmed and the than fact error; (3) accident, Mississippi, Missis- cause of the ant does business litiga- was error for the district court sippi no with this contacts to dismiss claims based tion”.5 warranty breach of of limita- brought plaintiffs ac- an identical grounds; (4) tions error that it was of New tion in Eastern District deny the transfer of to New this case shortly they commencedthis York before York. of Missis- suit the Southern District urging Mississip- In sippi then that the that the district court be and moved pi Boeing grounds affirmed, the New the action be transferred to York reasserts 1404(a) upon a which it its for District Court under of based motion Section 28, directed ance, Title United States mo- verdict as a for affirm- Code. This basis meeting as denied. well as main con- was plaintiffs. tentions of the jury went a The case to trial on before January carefully 7, considering ap- After 1969. At the close of all evidence, Boeing plicable Belgian Mississippi moved for directed and 50(b), authorities, verdict under Federal well as Rule Rules other that we hold grounds: Procedure, (1) Mississippi of Civil court would the sub- Belgium plaintiffs prove prima that the stantive failed to law of in this situation case; (2) Belgium’s five-year prescription and that facie their that claim was by prescription Belgium applicable barred under recover actions to law; (3) they wrongful death, by for capacity and that lacked construed personal representatives nation, to sue as Mississippi courts of that is substantive. Consequently, present law. The district de- bar- court action is grounds unnecessary nied the motion on red all and and it sub- jury. jury mitted the case reach the other this issues raised general appeal. Goldberg’s Boeing. generally Judge returned a verdict for See Inc., timely Walker, Plaintiffs made motion decision in new v. for a Gaston B. F. trial, Cir., 1968, which was 5 400 F.2d denied. 671. plaintiffs it was error contend that deny the motion for the district court I. judgment for a new trial and that action, diversity is a this Since ought to be reversed of the district court the substantive this court is bound new and the matter remanded Mississip Mississippi, includes which support position, trial. Railroad pi’s Erie rules. conflict laws presence plaintiffs (1) contend that 64, Tompkins, 58 S.Ct. U.S. Co. v. 304 jury room Govern- 1188, 1487 817, 114 82 L.Ed. A.L.R. Report, ment Accident which had (1938); Electric v. Stentor Klaxon Co. admitted been into evidence 1020, Mfg. Co., 487, 85 61 S.Ct. 313 U.S. impossible to concluded that it was deter- (1941). L.Ed. 1477 accident and mine the cause of the wrongful rejected action, the Su- In a death specifically the- recently error; preme Mississippi ory, (2) the district was gravity” adopted reports “center court’s refusal to admit and oth- p. Plaintiffs-Appellants, country arose, 5. Brief where it is barred provided Washington, the action be- Rev.Code Wash- tween non-residents. ington 4.16.080 and 4.16.290. §§ 596 Furthermore, airplane. boarded the rule as artic- “most substantial contracts” analyzing policies (Second) of inter- the relevant ulated Restatement nations, (Proposed Official ested states and seems Conflict Laws Belgium’s 24,1968).6 Draft, May predominate Adopted Mitchell since the Miss.1968, airplane operated Craft, owned its 211 So.2d 509. See Craig Compress & national airlines since the crash oc- also v. Columbus Miss.1968, Company, curred on Cf. Tramontana v. 210 its soil.

Warehouse So. Empresa approach Rio S. A. Grandense, De Aerea 2d It under this Viacao is clear U.S.App.D.C. Belgium the law of would deter- rights F.2d den. 383 U.S. mine parties. cert. and liabilities of (1965). concede, plaintiffs S.Ct. 16 L.Ed.2d 206 As the only Mississippi contact that has with instances, Mississippi In most follows Boeing litigation presence the traditional rule a statute process state for the service procedural purposes limitation is availability hoped-for and the of a six- of choice of law and year statute of limitation statute of limitation of the forum state injuries death. The occurred generally applies to a cause of action causing the conduct juris- laws of another injury allegedly place took the Boe- diction. Guthrie Merchants National Washington. plant in None of Mobile, Bank of 254 Miss. 180 So. plaintiffs Mississippi are residents (1965). However, 2d nothing and there is indicate that Boe- long recognized exceptions to this ing’s in activities within the state were early 1832, Supreme rule. As the any way related to the re- crash. The Mississippi Court of held in Hamilton lationship parties, the between it would Cooper, v. 1 Miss. an action in det- seem, in was most centered of the State possession inue to recover the of certain Negro slaves, New York where decedents action commenced 6. proval statement In Mitchell v. state to determine count curred parties are determined most issue include: currence and the to the which event bilities of the curred local spect § 145. The General state ciples stated in state § 175. In an action (a) (2) (1) (b) at the 515-516, has more will the law of significant which, to the the the ; Contracts injury occurred, with Right determines occurrence : applying following place be place rights particular applied. the local Craft, respect the as to that the of the parties unless, § where the conduct caus- Action for relationship parties significant where the state where to be court and liabilities the the local Miss.1968, and the the wrongful death, sections to an issue Principle. principles issue, quoted rights taken into ac- under the issue, Death. of the other relationship law of the parties, some other injury injury 211 So.2d with re- with and lia- has the the in of of to an prin- tort 6§ Re- the the ap- oc- oc- oc- in plication formity of those international terested states and particular restrictions, the factors tions, ity, place applicable respect rective of § of business of the if the cording These contacts $ (g) (a) (f) certainty, 6. Choice of (e) (2) (b) (c) (d) (1) (d) (c) any, particular the ease in the determination and the the basic the relevant A When there the the the to the between the to their relative court, states protection its own relevant # place field of domicile, rule of needs result, of relevant will systems, particular issue, incorporation subject Law in the determination law to be predictability policies underlying where the are to follow a of state on law include law, policies policies is the of parties, residence, parties the interstate Principles. no such justified expecta- relative interests the choice of to constitutional importance be issue. choice of applied. # statutory evaluated of other relationship, is centered. and and and uni- directive, national- forum, place v with law. ap- the the ac- in- di- of foreign arising Mississippi laws the time under under the allowed but may brought statute, applica- no suit be another state is barred forum, though the time the other even of limitations ble statute longer. only may be At 916. bars there statute not state where that legal extinguishes remedy but also quoted its court also deci- right held court further of action. The Dixon, sion Louisville N.R. & Co. was bound construction (1933): 14, 20, 150 168 Miss. So. foreign placed limita- statute applica- introduced, as Thus there jurisdiction. of that courts given rights action to the ble Guy, In 177-178 Perkins v. 55 Miss. statutes, the rule compensation arising assumpsit (1877), an action right of a statute creates where Tennessee, laws court did not exist action give effect said that fixes and the same statute common law extinguishing statute another state pro- the time within which right held, action, after ex- but may ceedings enforce same amining the Tennes- Tennessee a mere begun, not time fixed is so operated on the see statute limitation limitations, an inte- but right. remedy extinguish did not right gral part created, thus & R. Transfer Louisiana that, condition, after so a substantive Long, 84, 88 Co. 159 Miss. 131 So. statute, fixed in time ap- (1930), the court refused to thereunder be- an action to institute plicable of limitation Louisiana statute only extinct, in the state not comes in an under Louisiana law every- right, but which created remedy “merely because it bars the At where else. action”. Narrowly construed, deci these recently, Mississippi Supreme More proposition that Mis stand for the sions Company v. in Bethlehem Steel foreign prescriptive sissippi follow a will Payne, Miss.1966, held 183 So.2d period imposed of action aris on a cause that a claim under the Louisiana Com- foreign ing pre if the under a statute pensation by limita- Act barred the scription contained in the creat is statute provision tions the Act contained within ing in right the of action.7 Considered doing so, In itself. the court said: however, sense, rationale the a broader recog- There are number well a clearly indicates on in these cases relied general exceptions rule nized to the Mississippi itself consider would statutory upon limitations the time by foreign prescription statute bound a brought within must are which suit be applicable a of action cause procedural. following exception foreign jurisdiction laws of a the Stumberg, is the rule noted Con- prescription statute condi whenever the Laws, (3rd ed., 1963): p. flict of right the of ac the existence of tions merely tion, pursuit of rather than the exception frequent- Another which is remedy, way the in such a ex ly made the decisions exists where tinguish right after the the of action right, a statute which creates the regardless specified elapsed, period has provides the same enactment in” of whether the is “built time within which suit is to be creating right action. to a statute brought. majority In such a cases position Mississippi of the A courts have taken further indication that right qualifies that the limitation would follow this formulation of broader brought exception so that is found in Bethlehem unless suit is within exception 7. This formulation law of the is most where arises under the action frequently jurisdiction. applying generally foreign used in the limitation See foreign 1162, 1164, contained in creat- § statutes Annot. 95 A.L.R.2d wrongful death, cause action for Company Payne, supra, Steel Mills, where the Davis v. U.S. S.Ct. Mississippi noted (1904), court that “[t]here 48 L.Ed. 1067 which held recognized excep- are a well number of the Montana statute of limitations ” * ** general against tions to the rule corporate for actions directors quoted Stumberg, supra. In the was available as a defense to an action immediately paragraph preceding brought in federal court in New York passages by quoted Steel, liability prior Bethlehem on a incurred to the en Stumberg doing states: actment so, statute. court said: exceptions gen- A number of to the by eral been rule have made theory various general on which an ac- courts. It often been said that upon cause which tion is maintained foreign prescribes where the jurisdiction is accrued in another right merely limiting which, instead liability obligatio, time within which having suit must person to the been attached brought, becomes matter having of sub- person within the law then theory stance. The here power, is that treated other its will be prescriptive destroys accompanying person countries as upon lapse claimant brought their courts. before * * * designated period Stumberg, obligation But, as the source supra, 147-148. foreign the defendant is the generally speaking, to the is entitled Likewise, Proposed Official Draft conditions and benefit of whatever (Second) of Con- the Restatement foreign law creates. limitations heavily Laws, flicts of relied on so ** general It is true that Craft, supra, recent case of Mitchell proposition qualified the fact that provides: ordinary are limitations of actions Foreign Limitations Statute of § procedure, treated as and as laws Barring Right. affecting belonging fori, lex An action will be entertained remedy right. only, and not the another if it state is barred in the possible inBut it has been cases where state of the otherwise escape qualification from that by a statute of limitations which bars distinction, reasonable courts have been merely remedy. and not willing to treat limitations of time as standing limitations, Our conclusion that other like cutting liability exception broadly down the defendant’s buttressed cases,8 particularly a wealth wherever he The common case those is sued. dealing application by with the is where a creates a new lia- American prescription bility, courts and in the same section or statutes foreign same nations to under act limits the time within which leading using enforced, their laws.9 The federal is it can whether words ease be generally, (construing Mississippi law). 8. See the cases and 64 F.2d 800 discussion. Reporter’s Law, (4th Ed.) Notes, 143, Goodrich, § Restatement See Conflicts (Second) Laws, supra. 86, pp. of Conflicts of § 153-155. recognized exception This Circuit has general Cir., Co., in rule 2 Gaston v. F. 9. Bournias v. Maritime B. Atlantic Walker, supra Inc., (construing (arising 1955, under Texas 220 Pana- F.2d 152 law) ; Company, law) Townsend, ; Gulf Pulliam Lumber v. 3 v. manian Goodwin Cir., 1963, (construing (arising Cir., 1952, 5 312 F.2d 505 F.2d 970 197 law) ; Comstock, law) ; Kozan v. & Selick Com- 5 Ontario Wood v. Cir., 1959, Cir., (construing pagnie Transatlantique, F.2d 839 2 270 Lou- Generate law) ; Page 1930, (arising isiana v. Cameron Iron F.2d under French 43 941 Inc., Cir., 1958, 420, law). Works, Buckley, Cir., v. 5 259 F.2d 2 Cf. Hausman rev’g. S.D.Tex., 1957, F.Supp. 1962, 696, 340, 155 F.2d A.L.R.2d cert. 283 299 93 (construing ; law) Ford, 885, 1157, Louisiana S.Ct. 8 L.Ed. den. 369 U.S. 82 Volentine, law). Cir., 1933, (arising Bacon & Davis v. 5 2d Venezuelan 286

599 * * * jurisdiction law But or not seldom finds it neces- of condition sary in is contained to the limitation construe its statutes fact way easily in a apparent same statute such to the same section make it only bearing on construc- to common as law court is material whether the stat- saying ground merely proce- ute It is considered is substantive tion. for. goes to in dural the common the limitation law conflicts accompanies obliga- adopted by law sense. The created, and test Davis Mills, everywhere. usually v. supra, The same conclusion to said be applied test, Reporter’s Notes, was reached the limitation would be Comment if c, 143, statute, provided (Second) it was Restatement § of Con- different newly Law, liability supra, flicts of directed to the created is whether specifically saying newly to it statute is so as warrant “directed to the created liability qualified right. (Emphasis specifically say- add- so as to warrant ed). 453-454, qualified right”. test, it 24 at 693-694. At S.Ct. This however, clarity necessary lacks the application. Compare facile v. Bournias II. Co., supra 9, Atlantic Maritime n. with George Maki Co., Cir., v. R. 6 resolved, Cooke question to be next 124 F.2d den. A.L.R. cert. Belgian statute then, is whether 316 U.S. 62 S.Ct. 86 L.Ed. period for establishing satisfactory A approach more quali death so civil actions this situation tois determine whether of action and conditions fies Belgian prescription statute has attri- lapse extinguish it to after Belgian butes under law which Missis- clear It time. applicable sippi would characterize as substantive. resolving question, Missis this See Compagnie Wood & Selick v. Gener- by the sippi itself bound consider Transatlantique, supra ale 9.10 n. by the placed on the statute construction Thus, at- determine the Meridian & Davis remains courts. Belgian pre- Company, Bigbee 248 Miss. Railroad tributes Guy, Generally, ac- (1964); scription a civil Perkins statute.11 So.2d 171 lapse of only supra. prescribed after a Cooper, Ac supra; tion is Hamilton v. Bel- Company, cord, under Article Lumber Pulliam v. Gulf causing Townsend, gian 8; since the supra su But n. Civil Code. Goodwin v. negli- through undertaking of another pra is made dif of the death n. 9. This gence Penal however, ficult, is a violation a civil fact in order to Compagnie a defense Generale to be'asserted Selick v. had Wood & Transatlantique, supra, bar. an effective be consign- admiralty damages to certain appropriate pro- point, goods. lading note 11. At The bill of ments foreign disputes the determination settled vided that all were question Fed of law as a a French statute treated under French Rule 44.1 prescription” Rules of Civil Procedure. such claims eral provides: all “barred pe- year ship’s one after the arrival party already expired. an issue intends raise A who French Under riod had country foreign concerning may prescription of a the law not “The of pleadings give ; prescription or other in his notice which shall be waived beforehand court, already may waived,” acquired The written notice. be reasonable has been law, may determining foreign may con- “Judges motion of their own and source, any upon grounds material or relevant which sider base their decisions testimony, basis, including depend sub- upon prescription”. whether or not On this by party prescription or admissible a went mitted the court held that remedy, right, court’s determination The than find- Rule 43. rather ruling ques- ing great significance a a on be treated as the fact shall prescrip- of be after the law. action could revived prescription run tion had 600 Code,13 Code12 as well interrupted as the by Civil public investigation a or civil action to public proceedings recover for death a commenced with- subject prescription the shortened in three after the infraction was period Preliminary of Article 26 of the Applying committed. Article 26 to the Title Procedure, of the Code of light Penal case at hand in the 21 of Articles provides: which Dassesse, Boeing’s expert and Mr. on Belgian law, following testified “that resulting in- A civil action February 15th, accident of prescribed five after fraction will be the Public Prosecutor ordered an investi- day years elapsed when from the gation inquiry led to an and which committed, but the civil infraction was by was terminated binding, an ordi- prescribed action cannot be before ** * [ejquivalent nance— dis- public action.14 missal of September no true bill dated conjunction read in Article 26 must be ” * * * 26th, that, 1963 be- Title, Preliminary

with Article 21 of the this, public cause of both the and civil provides: which for the deaths of the public prescribed The action will be finally prescribed decedents were years, years or six after ten three Belgian September 26, law 1966.15 day counting months, from the prescription period 26 of Article depend- committed, the infraction was Belgian apparently applied ing on con- whether infraction public order or courts as a matter crime, stitutes a delict or a contra- policy. In Societe Marcin- Hubaut v. de vention. I, Pasicrisie, Couillet, elle et 1877 Vol. prescription Article ^[*] 22 which ^[*] public -i:- provides ^[*] may ^[*] be that the p. imposed predecessor Belgian Court Cassation to Article on the which civil held Belgian 12. Article 418 Penal Code Belgian Article 2262 of the Civil Code provides: personal provides actions are which guilty involuntary One is homicide years, prescribed by the term bodily or harm who has caused the harm action, personal we must understand foresight precaution lack of or but particularly for re- the actions tort person without intent to assault damages covery based on Article another. of the ing Code: 1382 and Civil follow- We codes Civil Code. 1384(1), 13. See Articles 1383 and particular disposi- another also have supra, n. 1. disposition tion, and we also have the affidavit, Boeing’s Dassesse, 14. In an Jean April the law of the Article 26 of expert Belgian law and one of four- 17th, 1878, the law of as modified teen members of the bar of the Court of pre- May 30th, 1961, which forms the Cassation, court, supreme liminary regarding penal criminal stated: procedure. This text au- decides person, To cause death of a with- thority proposition that a civil intent, through foresight out lack of resulting from an infraction is precaution, punishable penal is a act: years except prescribed [unless] * * Articles 418 and the Penal Code *, that the criminal action punishing involuntary the delict of homi- years. (Testimony longer than five five-year cide. The statute of limitation Dassesse, Appendix Appel- of Jean applies alleged where the facts as the Brief, 46b, 50b.) lee’s damages upon compensa- cause of Joseph Sweeney, plaintiffs’ expert, N. sought tion is constitute an infraction. School, con- of Tulane Law did not Dean (Defendant’s D-2, Appendix Exhibit position that under Bel- tradict Dassesse’s Appellee’s Brief, 8b, 10b.) peri- gium And testified that (Excerpts years. from Testi- od was five Belgian law, disposi- we have two mony Sweeney, Appellants’ Joseph N. tions of law which limit the time with- 3aa.) Supplementary Appendix, may in which an action be taken to damages. general Testimony Dassesse, recover supra, We have a of Jean 60b- disposition inof Civil Law. We have 61b. public action identical cover husband tion of articles whatever nature which have as same therefore be Articles 9 and 10 of the Code of already a delict are both the civil action on the same civil action it follows minors in the Article 2252 above cited scription rectional object contrary provisions “public siderations of of civil law written for the benefit of general Brumaire, [providing Considering Considering [sic] an infraction action, applied legislature prescriptions, and common order”] -X- stated penalty. recovery that father, and Year deriving and 638 of the applied in to that ^[*] public policy that which render the rule based itself on con- public punishable IV, extinguished by the * death of section suspension absolute terms to an from the combina- public -X to all actions * from a crime that is a matter placing imposed damages said: the absence action and of * action ^[*] action said [literally: 3 section it should in favor caused a cor- -X- basis, Code, their rule, pre- re- own A. Waive q A. Yes. BY THE BY MR. HALLER: Q. A. Q. From which is derived. shortened -X- motion. ** which the waive If, ject the claim for that reason? prescribed by because cedure, Judge on his were to come to the attention of would it be the scribed as a matter of the Code of Penal icy. fact is derived from the— Criminal Procedure or Penal Pro- damages arising from a delict (Interpreter) before a ^[*] obligation Judge WITNESS: parties * prescription (French). provisions prescription When a civil action is parties may ^[*] that a claim for civil reasons that cannot Yes, own motion to ^[*] obligation verifying via of the Code of provisions provided renounce Interpreter: waive ? prescription ^[*] public public pol- Procedure, Judge of the if the X- order if it pre- his re- (Interpreter) general A. prescription If fact from minors period applicable action in- is derived to civil actions] * * * and if infraction he to this matter determines delay the same time Belgian State, In Van-Acker v. The public prescribed, action has Beige, I, p. 723, Pasicrisie the court Vol. oppose he must on his own motion prescription provided held the prescription. applied Penal Code to an to re- Q. By oppose prescription in that person cover for the death of a killed as you sense do mean that he must military exercises, a result of even where to that complained the act of was done an in- claim ? strumentality person aof fictitious [the (Interpreter) A. Yes. He must re- which could not be Government] ject having subjected penal prosecution. civil been having prescribed, prescribed. Furthermore, appears Mr. Q. Does the of a civil testimony prescrip- Dassesse’s upon go action based delict tion of Article 26 cannot be waived or basis recover party renounced to the action and damages ? judge before whom the civil A. Yes. pending action is must determine if the complained act (Interpreter) Yes, of also pre- constitutes a viola- A. Yes. and, Code, so, apply public signifies if scription policy Penal delay expiration apply of after the the the Code of will Penal Procedure omitted). public (citations or at same of the action the the civil to right, extinguish the time the escape the does Civil Action not society apply, apply to of to prescription the civil short Judge unless wrong-doer penalty to the justify judgment can his with- (cita- the author of the infraction finding penal out infraction law, private same time which omitted). tions * * the same time that [a]t prescription As the civil ac- of the rights private of victim period tion fixed of in the law damages to reclaim were May modifying 30, 1961, Prelimi- result suffered as a infrac- nary Title of the code of Penal Pro- tion.16 cedure, public policy, is a matter Judge, civil he of an is seised interpretation Dassesse’s Mr. damages, obligation action for has the concerning Belgium of the law analyse constituting to the facts fault involving in prescription of civil and to ascertain whether these facts supported of the Code is fractions by Dalcq, Penal fall under the condemnation Responsibili Civil Treatise on Penal Law. II, ty (Brussels, 1962), Yol. ¶ Belgium authoritative treatise And at 3928: ¶ part: which states ap- prescription of five plies to the civil wherever application Conditions for infraction, fact even if constitutes an Action. short Civil penally it cannot rea- restrained year prescription applies to The five relating sons to character giv- every time the act the civil action ing actor. damages in- rise to constitutes an inter- fraction. The rule must be so notably Such is in- the case preted impossible that whenever it is per- fractions committed fictitious Judge litigation to decide the sons. by finding except of a existence **(cid:127)»*** causing damage, imputed fact to the constituting defendant and an infrac- suspension prescrip- Does not the tion, the short fixed contemplated by tion article 2252 of Preliminary article 26 Title of ap- the Civil Code in favor of minors Testimony Dassesse, supra, Yes, of Jean 68b- A. I it think does. expert you explain 69b. While the Dean why Q. Will how pre- Sweeney position took the does? scription of 26 was Article not substan- InA. a ease in which the limitation tive, following colloquy signifi- goes is of time aas condition the ex- cant right, : option istence there is no testimony, part private Q. Now in Mr. he parties. Dassesse’s on the It is made mention of case referred rule of law which would be im- called whereby public policy perative element to an up in the sense that is Judge parties himself raise a limita- anything to do about it, they death. Assum- have no control it. The over question any- purposes ing, applied. of this rule has to be And I it it take way, principle correct, that his testimony basic is in that sense that complete merger being given, there is a pub- that a rule which is a policy Civil Action into the Criminal Action. escapes lic is one which the con- My question you, Sweeney, parties and, Dean therefore, trol of the public policy whether this reference to the hands of the Court itself any (sic) question dramatically affects notice, of its own on its period qualifies whether the limitation own notice. merely qualifies remedy Excerpts Joseph Testimony N. Sweeney, supra, Law? 10aa-llaa. arising 8, 1967, February until ply it the civil action is barred Boeing’s Although pre- a short motion delict? grant- scription that article directed verdict should have does not seem been judgment applies. old ed. The Nevertheless of the district court Supreme on the does verdict defendant is af- decree of the apply grounds, firmed on 2252 in case. Cass. different as herein article this (Hubaut Pas, I, February set forth. Societe, supra.). Affirmed. Thus, consideration, we hold after careful five-year prescription of Article ON PETITION FOR REHEARING Belgium courts, applied AND so PETITION FOR REHEAR- right

qualifies and conditions the civil EN ING BANC wrongful action for death under Bel- COLEMAN, Before GOLDBERG gium extinguish law as MORGAN, Judges. Circuit bring lapse of five the action after Mississippi court, look- that a PER CURIAM: ing Belgium, conclude Rehearing The Petition for is Denied is a matter sub- Judge panel and no going member nor stantive law to the essence action, regular rather than a matter active service on Court hav- procedure, requested polled it in an action thus Court be Belgian rehearing banc, (Rule death en 35 Federal prescribed Appellate Procedure; law. Since this Rules of Local September 12) Fifth Circuit Rule the Petition Rehearing but not in the district court filed En Bane is denied.

Case Details

Case Name: Alexander Ramsay, Jr. v. The Boeing Company

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 29, 1970

Citation: 432 F.2d 592

Docket Number: 28266

Court Abbreviation: 5th Cir.