Before LUMBARD, Chief Judge, MOORE and FRIENDLY, Circuit Judges.
FRIENDLY, C. J.: Our principal task, in this diversity of citizenship case, is to determine what the New York courts would think the California courts would think on an issue about which neither has thought. They have had no occasion to do so. But life, here coupled with death, casts up new problems, and the court seised of the case is obliged, as best it can, itself to blaze the trail of the foreign law that it has been directed to follow.
The action was brought in the Southern District of New York for the wrongful death of Jasper W. Hall, a resident of South Carolina, who was killed in California in the crash of an airplane operated by defendant. The plaintiffs were an administrator appointed in South Carolina, the widow in her own right, and the widow appointed by the District Court as guardian ad litem of her minor child. The administrator alleged two causes of action; the widow alleged one on her own behalf and another as guardian ad litem. The jurisdiction of the District Court was predicated on diversity of citizenship, the administrator being a resident of New York and the widow and infant residents of South Carolina and the defendant a corporation organized and maintaining its principal place of business in California. The administrator, although appointed in another state, was a proper party plaintiff, Fed. R. Civ. Proc. 17(b); N.Y. Decedent Estate Law § 160.
Defendant moved for summary judgment on the ground that the action was barred as a result of incorporation of the California period of limitations by the "borrowing" provision of the New York statute of limitations, New York Civil Practice Act, § 13. Judge Levet granted the motion (173 F.Supp. 114), and plaintiffs appeal from the judgment of dismissal. We affirm.
Section 13 of the New York Civil Practice Act provides, so far as here pertinent:
"Where a cause of action arises outside of this state, an action cannot be brought in a court of this state to enforce such cause of action after the expiration of the time limited by the laws either of this state or of the state or country where the cause of action arose, for bringing an action upon the cause of action, except that where the cause of action originally accrued in favor of a resident of this state, the time limited by the laws of this state shall apply. * * *"
The causes of action here asserted arose in California, by virtue of Section 377 of the Code of Civil Procedure of that state, providing that when the death of a person "is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death." Paragraph 3 of § 340 of the Code of Civil Procedure requires that numerous categories of actions, including actions for wrongful death, be brought within one year.*fn1 Section 352 of the Code of Civil Procedure provides that if a person entitled to bring an action be a minor when the cause of action accrued, "The time of such disability is not a part of the time limited for the commencement of the action."
California's provisions as to what constitutes minority are found in § 25 of its Civil Code. This reads in part as follows:
"Minors are all persons under 21 years of age; * * * provided further, that any person who has reached the age of 18 years and thereafter contracts a lawful marriage, or who has contracted a lawful marriage and thereafter reaches the age of 18 years, shall in the first instance upon contracting such marriage, and in the second instance upon reaching the age of 18 years, be of the age of majority and be deemed an adult person for the purpose of entering into any engagement or transaction respecting property or his estate, or for the purpose of entering into any contract, or for the purpose of maintaining or defending an action affecting his marital status, including therein any action or proceeding involving his support or the support or custody of children of the marriage, or determination of property rights, the same as if he were 21 years of age.* * *"
In contrast, under the law of South Carolina, where the Halls resided, all persons remain minors until they attain the age of 21. South Carolina Code, Volume 1, § 10-104(1).
The death occurred on March 20, 1953. Mrs. Hall, who had been married in South Carolina shortly after becoming 15, reached the age of 18 on November 17, 1954, and the age of 21 on November 17, 1957. The action was begun on November 7, 1958.
(1) Despite the New York residence of the administrator, appellants argued the case, both in the District Court and before us, on the assumption that it fell within the general rule of § 13 of the New York Civil Practice Act and not within the exception "that where the cause of action originally accrued in favor of a resident of this state, the time limited by the laws of this state shall apply."*fn2 Nevertheless, because of the serious consequences of affirmance, we have considered whether the case comes within the exception, in which event the administrator might prevail unless the California rule, stated below in our discussion of the child's cause of action, is a part of the cause of action rather than of California's statute of limitations. We conclude it does not. While we have found no authority on the point, we do not believe the courts of New York would permit the policy embodied in § 13 of the Civil Practice Act against opening the courts of that state to suits by nonresidents on foreign causes of action that were time-barred in the state creating them, to be overcome by the appointment of a resident of New York as administrator of a non-resident's estate.*fn3 Since the administrator is thus subject to the California statute of limitations as the widow and child clearly are, his cause of action would seem barred by the rule referred to, even if California would compute the one year for his bringing suit as running only from his appointment rather than from Hall's death.
(2) We turn therefore to the cause of action asserted by the widow.
In applying § 13 of the Civil Practice Act, the New York courts would take into account not only the one-year limitation of California applicable to actions for wrongful death but "all its accouterments" including the provision tolling the statute during minority. American Surety Company of New York v. Gainfort, 219 F.2d 111 (2d Cir. 1955). The disputed question is how the New York courts would think the California courts would determine the duration of Mrs. Hall's minority. Defendant contends and the District Court held that California would apply Section 25 of its Civil Code despite Mrs. Hall's South Carolina residence and that accordingly her time to bring the action in California ceased on November 17, 1955, when she became 19.*fn4 Appellants ...