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CARNEY v. BARNETT

December 21, 1967

Edna CARNEY, Administratrix and Administratrix Ad Prosequendum of the Estate of John Carney, deceased
v.
Charles N. BARNETT, t/a C.N. Barnett Co.



The opinion of the court was delivered by: LORD, III

 Plaintiff, as administratrix ad prosequendum and as administratrix of the estate of her deceased husband, instituted a Wrongful Death action and a Survival action on June 6, 1963 to recover damages for the death of her husband from thallium poisoning. At trial the court directed a verdict for the defendant *fn1" ruling that the suit was barred by the Statute of Limitations. Plaintiff seeks a new trial, assigning as reasons the directed verdict, and also the court's denial of plaintiff's motion for leave to amend her complaint to plead breach of warranty.

 Decedent, a New Jersey resident, was employed as a route serviceman by the D. M. Fleming Co., a New Jersey corporation [hereinafter "Fleming of N.J."]. Fleming of N.J. provided "pest control" services for residents of New Jersey and it was decedent's job, as one of several route servicemen, to provide the company's service at regular intervals to a certain group of customers.

 Fleming Corp. of Penna. [hereinafter "Fleming of Pa."], although managed by and having as its shareholders the same family as Fleming of N.J., is nevertheless operated as a separate entity. For the most part the two companies are engaged in the same business, the principal difference being that only Fleming of Pa. employs, in addition to the route servicemen, special servicemen. These men handle the difficult pest control problems for both the Pennsylvania and New Jersey companies.

 In the performance of their duties the special servicemen have occasion to use thallium sulphate, a particularly effective weapon for combating difficult pest control problems. For this reason Fleming of Pa. made periodic purchases of thallium sulphate from the defendant who imported it from Belgium.

 Thallium has extremely dangerous propensities if ingested into the human body. Therefore, when handling thallium one must be extremely careful. Since the special servicemen were trained in the use of thallium, it was the normal practice that they would be sent to those jobs that needed thallium to provide effective pest control. Thus, whenever Fleming of N.J. had a customer whose situation was such that thallium was required, it used one of the special servicemen from Fleming of Pa. Occasionally, however, it would deviate from this practice and one of the route servicemen from Fleming of N.J. would go to Fleming of Pa. to obtain thallium for use on their jobs.

 In the latter part of May, 1961, decedent used thallium to deal with a rat problem for one of his regular customers. On Sunday, May 29, 1961, he also used the chemical in the cellar of his home. Around this time he started to complain to his wife of aches and pains. On Monday, May 30 his condition had worsened to the point where he was unable to stay at work. On Monday evening the pains had become so bad that he was taken to the hospital where he remained until his death from thallium poisoning one week later.

 At trial plaintiff sought recovery based on the negligence of the defendant in its failure adequately to warn of the dangerous propensities of the thallium and also on the theory of strict liability.

 The plaintiff first claims that the court erred in directing a verdict for the defendant on the ground that the statute of limitations had barred her survival action. *fn2" We conclude that our action was proper. Since jurisdiction is based on diversity of citizenship, we must follow the law of Pennsylvania in determining what statute of limitation applies. Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 2079 (1945). Pennsylvania holds that the statute of limitations of the state of the forum controls the action. Rosenzweig v. Heller, 302 Pa. 279, 153 A. 346 (1931). Pennsylvania follows this rule even in situations where it has no substantive concern with the controversy. And just as we must follow Pennsylvania law in determining what statute applies, so also must we apply the Pennsylvania case law in determining when the statute begins to run.

 The applicable Pennsylvania statute of limitations for survival actions is Pa.Stat.Ann. Tit. 12, Sec. 34, Stegner v. Fenton, 351 Pa. 292, 40 A.2d 473 (1945), which provides that an action "[must] be brought within two years from the time when the injury was done and not afterwards." The Pennsylvania courts in interpreting that act have said that "this statute, as all statutes, of course, must be read in the light of reason and common sense." Ayers v. Morgan, 397 Pa. 282, 284, 154 A.2d 788, 789 (1959).

 Thus, in Smith v. Bell Tel. Co., 397 Pa. 134, at page 141, 153 A.2d 477, at page 481 (1959), a case involving sub-surface injury to the plaintiff's residence, the court said:

 
"As for the statute of limitations, there seems to be no dispute here that the statute runs, on causes arising from subsurface injury, from the time of discovery of the cause of the harm or the time when the cause of the harm reasonably should have been discovered, whichever is earlier. * * *."

 Nor has this result been limited to cases of sub-surface injury, for the same court in Ayers v. Morgan, supra, a so-called "sponge" case, applied the "time of discovery" rule. In Daniels v. Beryllium Corp. 227 F. Supp. 591 (E.D.Pa., 1964) the wife-plaintiff became ill in 1949. In March, 1953 the illness was diagnosed as beryllium poisoning, However, plaintiffs did not know until the time of filing suit on July 1, 1958 that the illness was caused by defendant's operations. After a thorough review of the Pennsylvania authorities, Judge Freedman said, at page 595:

 
"* * * I am satisfied that at the very least the traditional separation of cases of subterranean property damage from personal injury cases in ...

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