UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
February 9, 1971
MAGGIE P. SPEIGHT, PLAINTIFF-APPELLANT,
ROSE LOWE MILLER, DEFENDANT-APPELLEE
Castle, Senior Circuit Judge, and Cummings and Stevens, Circuit Judges.
STEVENS, Circuit Judge.
Plaintiff asserts a personal injury claim arising out of an accident in Nashville, Tennessee, on November 4, 1967. Her complaint, filed in the District Court on March 17, 1969, was dismissed as barred by Tennessee's one-year statute of limitations.*fn1 She contends that her claim was preserved by the filing of an earlier action in the Tennessee courts on October 16, 1968, less than a year after the accident. She was not able to pursue her personal injury claim in the Tennessee courts because defendant had moved to Chicago, and plaintiff was unable to effect service of process.*fn2 We believe plaintiff correctly construes the applicable state statutes.
As federal jurisdiction is supported by the diverse citizenship of the parties, we first consider the law of Illinois. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477; see Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 532, 69 S. Ct. 1233, 93 L. Ed. 1520. The complaint was filed within the two year period allowed by Illinois for claims of this kind. Ill.Rev.Stat. Ch. 83, § 15 (1969). The question, however, is whether the claim is barred by the Illinois "borrowing statute."*fn3 It provides:
"When a cause of action has arisen in a state or territory out of this state, or in a foreign country, and, by the laws thereof, an action thereon cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained * * * in this state." Ill.Rev.Stat. Ch. 83, § 21 (1969).
Under the plain language of this statute the question to be decided is whether "by reason of the lapse of time" between the accident and March 17, 1969, plaintiff would have been barred from maintaining her action in Tennessee "by the laws thereof." Both of the quoted phrases support plaintiff's interpretation of the statute. Her action was barred in Tennessee not simply "by reason of the lapse of time," but more precisely by her inability to obtain personal jurisdiction over the defendant. Reference to "the laws" in the plural persuades us that provisions in the Tennessee Code which toll its statute of limitations, as well as the limitations period, are borrowed by Illinois.*fn4
Plaintiff was unable to pursue her personal injury claim in the Tennessee courts because she could not effect service on the defendant.*fn5 If defendant had been amenable to process in Tennessee on March 17, 1969, under the laws of Tennessee the action could have been maintained in the courts of that state. Section 28-105 of the Tennessee Code provides:
" Summons as commencement of action. -- The suing out of a summons is the commencement of an action, within the meaning of this title, whether it be executed or not, if the action is duly prosecuted and continued by the issuance of alias process from term to term, or recommenced within one (1) year after the failure to execute." Tenn.Code Ann. § 28-105 (1955).
The term "suing out of a summons" refers to the issuance of process, with instructions to effect service, rather than the completion of successful service. Robertson v. Giant Food Market, Inc., 210 Tenn. 356, 358 S.W.2d 338 (1962). Summons issued and the Tennessee action was commenced within a year after the accident. March 17, 1969, was, therefore, well within the additional one year period in which the Tennessee action could have been recommenced. It was defendant's absence from Tennessee rather than the mere lapse of time which prevented plaintiff from maintaining her action in the Tennessee courts. Fowler v. Herman, 200 Tenn. 201, 292 S.W.2d 11 (1956).*fn6 The claim, therefore is not barred by the Illinois borrowing statute.
Defendant argues that an action filed in the federal court in Chicago is not a "recommencement" of Tennessee litigation within the meaning of § 28-105 of the Tennessee Code. Assuming that proposition to be correct, the more relevant inquiry is whether the action could have been "recommenced" in Tennessee on March 17, 1969. Defendant answers in the negative on the authority of the trial court ruling referred to in Seymour v. Southern Ry. Co., 117 Tenn. 98, 98 S.W. 174 (1906), since plaintiff's property damage claim is still pending in the state court. Again, however, even if we make the doubtful assumption that the personal injury suit could not have been recommenced by reason of the pendency of the property damage claim,*fn7 it is not barred by the Illinois borrowing statute unless the recommencement is foreclosed "by reason of the lapse of time."
Finally, defendant relies on Oliver v. Altsheler, 198 Tenn. 155, 278 S.W.2d 675 (1955) which holds that out of state service cannot be effected more than a year after the accident even if an action is originally commenced within the year. Particular reliance is placed on the following statement:
"We hold that the second suit having been filed more than one year from the date of the collision is barred by the one year statute of limitations." 278 S.W.2d at 676.
As we read the court's opinion in that case, however, the "statute of limitation" referred to in the quoted excerpt is the statute limiting the duration of the Secretary of State's agency to accept service on behalf of an out of state resident,*fn8 rather than the basic statute limiting the time in which the action may be maintained.*fn9 Support for this interpretation is found in the comment of the court earlier on the same page that the suit had not been determined "on its merits and the cause of action survives under the provision of § 8572 of the Code."*fn10 The fact that Tennessee had not effectively provided for out of state service more than one year after the accident did not prevent the cause of action from surviving in Tennessee; consequently, the claim is not foreclosed by the Illinois borrowing statute.
The judgment is reversed.
The judgment is reversed.