92 F. 868 | 8th Cir. | 1899
(after stating the facts). At the threshold of this case we are confronted with a question of jurisdiction. It is said this is a case that involves the construction of the constitution of the United States, for the reason that the case pre
The suit was begun on August 25, 1892, more than 17 years after the first, and more than five years after the last, shipment had been made by' the plaintiff. A demurrer was filed to the petition setting up several causes, but as the court below only sustained the plea of the statute of limitations of five years, and rendered judgment on that ground, it is unnecessary to notice the other grounds.
Is the action barred? The statute of Iowa applicable is section 2529, Iowa Code, which reads:
*871 “Tlie .following actions may be brought within the times herein limited respectively alter their causes accrue and not afterwards except when otherwise specially declared: * * * (4) Those founded on unwritten contracts, those brought for injuries to property, or for relief on the ground of fraud in causes heretofore solely cognizable in a court of chancery, and all other actions not otherwise provided for in this respect, within five years.”
The statute makes no exception of causes of action founded in a fraud which is undiscovered, but the supreme court of that state in several cases has held that, according to the rules of the common law, a case in which the cause of action is concealed is excepted from all statutes of limitations until the cause is, or by due diligence could have been, discovered. Boomer Tp. v. French, 40 Iowa, 601; Carrier v. Railroad Co., 79 Iowa, 80, 44 N. W. 203; Cook v. Railway Co., 81 Iowa, 551, 46 N. W. 1080.
As these decisions do not attempt to construe state statutes, but are expressly based on the supposed rules of the common law, they are not: binding on the courts of the United States. As early as 1842 (he supreme court in Swift v. Tyson, 16 Pet. 1, held “that the thirty-fourth section of the judiciary act of 1789 is limited in its application to state laws strictly local, and does not extend to contracts or other instruments of a local nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence.” In Chicago City v. Robbins, 2 Black, 418, which was an action for injuries caused by the negligence of Bobbins in permitting an excavation in the sidewalk to remain uncovered and unguarded, so that a person passing by there was injured and had recovered a judgment against the city for the injury suffered, it was urged that in such cases it was the duty of the United States courts to follow the decisions of the state courts, but the supreme court said: “Where private rights are to be determined by the application of common-law rules alone, this court, although entertaining for state tribunals the highest respect, does not feel bound by their decisions.” In Levy v. Stewart, 11 Wall. 244, on error from the circuit court for the district: of Louisiana, it was claimed that, the supreme court of that state having held in several cases that the Civil War did not interrupt the running of the statute, the federal courts are bound by thosé decisions, but the court said: “None of these decisions are founded upon any express enactment, and the reasons assigned for the conclusions are not satisfactory. * * * Authorities of the kind, though entitled to great respect, are not obligatory, and the court is of the opinion that tlie rule adopted in the case of Hanger v. Abbott, C Wall. 534, is more in accordance with tlie analogies of our law.” The supreme court of the state of Arkansas held that the statute of limitations of that state was not suspended by the Civil War, although that was one of the states in insurrection (Bennett v. Worthington, 24 Ark. 487); but in the case of Hanger v. Abbott, supra, the supreme court of the United ¡States held the statute of limitations of that state was suspended during the Civil War. Subsequently the supreme court of that state adopted and followed the ruling in Hanger v. Abbott. In Railway Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, the question before the court was the effect to he given to the decisions
The Iowa statute makes no exceptions, and the exception we are asked to ingraft upon it is not one. that can be made by the court. The plaintiff’s cause of action is not founded on fraud; for, if the allegations as set out in the petition are true, he has a good cause of action, independently of any fraud or concealment. The unjust dis-criminations, and their payment by plaintiff, constitute the cause of action, regardless of the fraud and deceit, and, independent of any statute, the common law gives him the right to recover in such a case. State v. Railway Co., 47 Ohio St. 130, 23 N. E. 928; Railway Co. v. Wilson, 132 Ind. 517, 32 N. E. 311; Fitzgerald v. Railway Co., 63 Vt. 169, 22 Atl. 76; Cook v. Railway Co., 81 Iowa, 551, 46 N. W. 1080.
But suppose the holding in the Iowa cases to be obligatory upon this court, the plaintiff’s action is still barred, because no sufficient reason is shown why the alleged fraud was not sooner discovered, or that any effort was ever made to discover it. In cases where concealment and ignorance of the facts suspend the statute, there must have been such concealment' as would prevent a person exercising due diligence from discovering the facts, and what diligence was used is a question of law, to be determined by the court from the petition, and not a mere statement of a conclusion of .law. The allegation of the petition is that “the plaintiff had no reason to believe or suspect that said statements, made to him as aforesaid, were untrue, or that he had been discriminated against, and deceived as aforesaid, until within the eighteen months last past, when for the first time he learned of such facts.” Just such a general allegation as this was held bad in Wood v. Carpenter, 101 U. S. 135, where the rule on this subject is succinctly and clearly stated. “Statutes of limitations,” say the court, “are vital to the welfare of society and are favored in the law. They promote repose, by giving security and stability to human affairs. While time is constantly destroying the evidence of rights, they supply its place by presumption, which renders proof unnecessary. * * * A general allegation of ignorance at one time, and of knowledge'at another, are of no effect. If the plain