West v. American Tel. & Tel. Co., 311 U.S. 223 (1940)

MR. JUSTICE ROBERTS.

I concur in the opinion of the court insofar as it holds that the Circuit Court of Appeals should have treated the decision of the Cuyahoga County Court of Appeals, under the circumstances of this case, as expressing the law of Ohio with respect to the necessity of a demand prior to institution of suit. I do not, however, agree that the judgment should be reversed.

I am unable to say that the court below erred in holding that, under Ohio law, the four-year period of limitations applied to petitioners’ cause of action, and that delay of demand for more than four years after the cause of action accrued barred the suit. Both holdings seem to me to be supported by decisions of the Ohio courts; Keithler v. Foster, 22 Ohio St. 27; Douglas v. Corry, 46 Ohio St. 349, 21 N.E. 440; Townsend v. Eichelberger, 51 Ohio St. 213, 38 N.E. 207; Stearns v. Hibben Dry Goods Co., 11 Ohio C.C. (N.S.) 553, 31 Ohio C.C. 270, aff’d, 84 Ohio St. 470, 95 N.E. 1157. There is here no place for any presumption of demand, as in Keithler v. Foster, for here the suit in the state court was dismissed on the express ground that no demand had in fact been made, and, in the present suit in the United States District Court, the averment of the complaint is that demand was made June 18, 1937, at least eight years after the cause of action accrued. In such circumstances, as the other cited cases show, a demand made at a date beyond the period of limitations does not toll the statute. In the Douglas case, the averment was that demand was made nine years after the cause of action accrued and suit was brought within four years thereafter. In the Stearns case, it was alleged demand was made four years and nine months after accrual of cause of action, and suit begun within four years thereafter. The statute of limitations was held a bar in both.

Though the action was in equity, an action at law might have been maintained (Stearns v. Hibben Dry Goods Co., supra; Russell v. Todd, 309 U.S. 280, 289), and the statute governing such an action is applicable.

Not only have petitioners failed to show "special circumstances" justifying their delay in making demand (Keithler v. Foster, supra), but the court below has held they were guilty of laches, an independent ground of decision, which, though the question be a close one, we ought not, under our settled practice, to reexamine.

For these reasons I think that, despite the erroneous view of the Circuit Court of Appeals as to the law of Ohio on the point decided by the State Court of Appeals, the judgment should be affirmed.