Nolan v. Transocean Air Lines

PETITIONER:Nolan
RESPONDENT:Transocean Air Lines
LOCATION:Annette Islands, Alaska

DOCKET NO.: 107
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 365 US 293 (1961)
ARGUED: Jan 12, 1961 / Jan 16, 1961
DECIDED: Feb 20, 1961

Facts of the case

Question

  • Oral Argument – January 16, 1961
  • Audio Transcription for Oral Argument – January 16, 1961 in Nolan v. Transocean Air Lines

    Audio Transcription for Oral Argument – January 12, 1961 in Nolan v. Transocean Air Lines

    Earl Warren:

    Number 107, Robert F. Nolan, Administrator, et al., versus Transocean Air Lines.

    Mr. Dwyer.

    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.

    Robert A. Dwyer:

    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.

    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?

    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.

    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?

    Robert A. Dwyer:

    That is true, Your Honor.

    Felix Frankfurter:

    And they’ve said it in that specific situation.

    Robert A. Dwyer:

    Yes, Your Honor and I would —

    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 —

    Robert A. Dwyer:

    I — I would say that — that a couple with the Deason case.

    Felix Frankfurter:

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

    Robert A. Dwyer:

    Well, we disagree with that conclusion.

    Felix Frankfurter:

    Or won’t have here to be the case.

    Robert A. Dwyer:

    Your Honor —

    Hugo L. Black:

    (Voice Overlap) was not that — that rather goes with the other words.

    I probably would have to spend.

    Felix Frankfurter:

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

    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.

    Felix Frankfurter:

    (Voice Overlap) I don’t think so.

    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 —

    Charles E. Whittaker:

    A little orientation here, I understand that this death occurred in California.

    Robert A. Dwyer:

    Yes, sir.

    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.

    Robert A. Dwyer:

    That’s correct, Your Honor.

    Charles E. Whittaker:

    This man left a wife and a child?

    Robert A. Dwyer:

    That is true.

    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.

    Robert A. Dwyer:

    That — that is correct, Your Honor.

    Charles E. Whittaker:

    Several years after?

    Robert A. Dwyer:

    Yes, Your Honor.

    Charles E. Whittaker:

    Now, under the California law is the widow and heir?

    Robert A. Dwyer:

    Yes, Your Honor.

    Charles E. Whittaker:

    She then may sue as an heir.

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

    Robert A. Dwyer:

    They — they have a choice after, Your Honor.

    It can be brought by the heirs.

    Robert A. Dwyer:

    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 —

    Charles E. Whittaker:

    In my State, a widow is not an heir.

    And — but you say she is in California?

    Robert A. Dwyer:

    Yes, but the — the California courts have construed this to — to in effect, to cover widows and —

    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?

    Robert A. Dwyer:

    That is true, Your Honor.

    Charles E. Whittaker:

    And it’s barred as to one of the beneficiaries, it’s barred as to all.

    Is that what they hold?

    Robert A. Dwyer:

    No, they don’t entirely hold that, Your Honor.

    Charles E. Whittaker:

    No.

    Robert A. Dwyer:

    We — there is a question on that that I will get to.

    Charles E. Whittaker:

    I’m oriented now.

    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.

    Robert A. Dwyer:

    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.

    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 —

    Robert A. Dwyer:

    I would say no, Your —

    Charles E. Whittaker:

    — on the law of California?

    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.

    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.

    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.

    Robert A. Dwyer:

    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 —

    Felix Frankfurter:

    The — the infant doesn’t protect itself, but the guardian ad litem protects whatever the infant have.

    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 —

    Felix Frankfurter:

    You said that the (Inaudible) of a guardian ad litem here, it still doesn’t take care of the infancy?

    Robert A. Dwyer:

    I — I beg your —

    Felix Frankfurter:

    Isn’t that right?

    Robert A. Dwyer:

    I — I said, Your Honor —

    Felix Frankfurter:

    Even — even will if the guardian ad litem, you said, that doesn’t take care of the infancy?

    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.

    Felix Frankfurter:

    That’s (Voice Overlap) —

    Robert A. Dwyer:

    That they not get to the guardian in the first place.

    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 —

    Robert A. Dwyer:

    On behalf —

    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.

    Robert A. Dwyer:

    That is true in New York.

    Felix Frankfurter:

    Well, I was suggesting that during that tolling period, guardian ad litem is there.

    Robert A. Dwyer:

    Your Honor, I think where we disagree is I would say that the — the guardian ad litem may not be there.

    Felix Frankfurter:

    I understand that, but you said even if it’s tolled nevertheless the period is — is (Inaudible)

    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.

    Robert A. Dwyer:

    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).

    Felix Frankfurter:

    To be protected I mean (Voice Overlap) —

    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.

    Felix Frankfurter:

    But your objection is not that they didn’t look closely, but they misinterpreted it.

    Robert A. Dwyer:

    I —

    Felix Frankfurter:

    Have you cited any cases that they haven’t cited in California, on any other confessed (Inaudible)

    Robert A. Dwyer:

    I believe all the cases we cited were before the Court.

    Felix Frankfurter:

    That’s for the Court — it shouldn’t fail to consider them with the different view of — of what California law is.

    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 —

    Felix Frankfurter:

    Well —

    Robert A. Dwyer:

    — question of — of the infant —

    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?

    Robert A. Dwyer:

    We’re reviewing —

    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?

    Robert A. Dwyer:

    I would say —

    Felix Frankfurter:

    Because you are very different.

    Robert A. Dwyer:

    I — I know they are Your Honor and I would say, the latter.

    Felix Frankfurter:

    Yes, that’s why.

    Robert A. Dwyer:

    The —

    Felix Frankfurter:

    You’re sitting here at the New York court trying to find out what California law is.

    Is that right?

    Robert A. Dwyer:

    Yes, Your Honor.

    Felix Frankfurter:

    Alright.

    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)

    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.

    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?

    Robert A. Dwyer:

    Yes, sir.

    That’s —

    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.

    Robert A. Dwyer:

    That is —

    Felix Frankfurter:

    Do you agree on that?

    Robert A. Dwyer:

    I would agree with that, Your Honor.

    Felix Frankfurter:

    Alright.

    Potter Stewart:

    There’s no — there’s no differences between you and your opponent as to what the issue is, is there?

    Robert A. Dwyer:

    I — I —

    Potter Stewart:

    In that respect — in that respect?

    Robert A. Dwyer:

    No, Your Honor.

    I — I think that we — we —

    Potter Stewart:

    You both agree?

    Robert A. Dwyer:

    — all three, basically —

    Potter Stewart:

    You both agree that it was up to the — that under the —

    Robert A. Dwyer:

    Under theory, was up to —

    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?

    Robert A. Dwyer:

    Once removed, Your Honor.

    Potter Stewart:

    Once removed —

    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?

    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.

    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.

    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.

    Robert A. Dwyer:

    Alright.

    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?

    Robert A. Dwyer:

    No sir —

    Felix Frankfurter:

    Alright.

    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 —

    Potter Stewart:

    You’re referring now to Rule 17 (c) (Voice Overlap) —

    Robert A. Dwyer:

    Rule 17 (b) —

    Potter Stewart:

    — (b) rather.

    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 —

    William J. Brennan, Jr.:

    Was the same thing as that would’ve been written into the California statutes?

    Robert A. Dwyer:

    It does, Your Honor.

    Robert A. Dwyer:

    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.

    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.

    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 —

    Felix Frankfurter:

    But that’s not a controversy here.

    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 —

    Robert A. Dwyer:

    Six — Section 25 of this —

    Potter Stewart:

    — govern the capacity to bring suit — govern — govern this problem was reasoned along capacity to sue lies?

    Robert A. Dwyer:

    That’s — I — I would characterize that statute (Voice Overlap) —

    Potter Stewart:

    The California law that made this statute that at least on its face doesn’t govern (Voice Overlap) —

    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 —

    Felix Frankfurter:

    I guess —

    Robert A. Dwyer:

    — engage in process.

    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 —

    Robert A. Dwyer:

    True.

    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?

    Robert A. Dwyer:

    That’s — that’s true.

    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?

    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 —

    Felix Frankfurter:

    Not with California but with the New York law — New York judges attribute that to California because California hasn’t spoke explicitly.

    Robert A. Dwyer:

    That — that is true, Your Honor.

    Robert A. Dwyer:

    That — you get up to California and that —

    Earl Warren:

    We’ll recess now, Mr —