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04/14/67 Luna Dale Roscoe, v. Joseph A. Roscoe

April 14, 1967

LUNA DALE ROSCOE, APPELLANT

v.

JOSEPH A. ROSCOE, APPELLEE 1967.CDC.74 DATE DECIDED: APRIL 14, 1967

OUR QUESTIONS HEREINAFTER DISCUSSED INVOLVE THE TIMELINESS OF THE APPEAL, THE APPELLANT'S RIGHT TO MAINTAIN HER ACTION, AND THE APPLICABILITY OF FED.R.CI

v.

P. 25(A)(1) WHEN READ WITH RULE 6(B). I



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petition for Rehearing En Banc Denied June 19, 1967.

APPELLATE PANEL:

Danaher, Circuit Judge, and Edwards,* Circuit Judge of the United States Court of Appeals for the Sixth Circuit, and Tamm, Circuit Judge.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DANAHER

This appellant on August 31, 1963 was injured in a North Carolina automobile accident, allegedly caused by her husband's negligence. On June 15, 1965, she brought suit against her husband in the District Court of the District of Columbia. The record shows that on September 13, 1965, the parties stipulated their marriage in 1961 since which date both had been domiciled in the District of Columbia as husband and wife. Thereupon, the defense moved for summary judgment, specifically asserting that this appellant's claim was barred by reason of inter-spousal immunity. On September 21, 1965, the husband died, and a suggestion of his death was noted of record on October 27, 1965. By consent, the appellant's time to respond to the motion for summary judgment was extended to January 1, 1966. Although no substitution of a representative of the decedent had yet been made, the District Court presently granted the motion for summary judgment.** The appellant thereupon moved immediately for reconsideration. An order of denial was thereupon entered, and this appeal followed.

Initially we reject the appellee's contention that the notice of appeal was not timely. Summary judgment had been entered on January 10, 1966, and appellant that same day filed her motion for reconsideration.*fn1 The order denying that motion was entered on February 3, 1966, and the notice of appeal from that order was filed February 24, 1966. The timely filing of the motion for reconsideration terminated the running of the time within which the appeal might have been taken from the January 10th order granting summary judgment. Thus the appellant had thirty days within which to appeal from the February 3, 1966 order. Yates v. Behrend, 108 U.S.App.D.C. 56, 280 F.2d 64 (1960); Calvin v. Calvin, 94 U.S.App.D.C. 42, 44, 214 F.2d 226, 228 (1954). II The Supreme Court observed in Richards v. United States: *fn2

"The general conflict-of-laws rule, followed by a vast majority of the States, is to apply the law of the place of injury to the substantive rights of the parties." (Footnote 24 omitted.)

At the same time the Court observed that recently there had been "a tendency on the part of some States to depart from the general conflicts rule in order to take into account the interests of the State having significant contact with the parties to the litigation." *fn3 The Court deemed it desirable that flexibility be preserved since there may be situations where the application of the older rule "might appear inappropriate or inequitable." *fn4

The problem here becomes acute because of the appellee's reliance upon the doctrine of inter-spousal immunity. The appellee contends that if the deceased husband had lived, the appellant wife could not in this jurisdiction successfully maintain an action against him, and additionally, that following his death, we should not here be concerned with revival of the action for the simple reason that there "never was a cause of action at common law." *fn5

On the other hand, General Statutes of North Carolina (1966), section 52-5 provides:

"A husband and wife have a cause of action against each other to recover damages sustained to their person or property as if they were unmarried." *fn6

Obviously, this appellant could have instituted action against her husband in North Carolina. Since her claim was transitory, she was entitled unless barred by our law to pursue vindication of her right in the courts of the District of Columbia. Ormsby v. Chase, 290 U.S. 387, 54 S. Ct. 211, 78 L. Ed. 378, 92 A.L.R. 1499 (1933); Baltimore & Ohio Railroad Co. v. Joy, 173 U.S. 226, 231, 19 S. Ct. 387, 43 L. Ed. 677 (1899).

Moreover, North Carolina has provided that except for certain categories specifically enumerated in G.S. section 28-175, all causes of action survive the death of the person against whom they have accrued. McIntyre v. Josey, 239 N.C. 109, 79 S.E.2d 202 (1953). *fn7

Measured in terms simply of "significant relationships" as bearing upon the choice of law here to be applied, North Carolina would seem to have no interest in this litigation beyond its entitlement to our respectful deference to its law, as we conceive it to be. But under the usual rule of comity we would normally accord recognition to such rights as had there accrued ...


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