The answer of appellant denies the applicability of the Indiana Statute of two years, and, in the third paragraph, pleads the Kentucky Statute of one year, therefore, the question of limitation was one upon which the evidence threw no light, but a question of law to be determined from the admitted facts presented by the pleadings.

Waiving the question whether the Indiana Statute of Limitations was sufficiently pleaded by appellee, it can have no effect in this state. It is a well recognized rule that statutes of limitation are of state regulation and founded on state policy. Such statutes, therefore, have no ex-territorial force or operation, for which reason foreign jurisdictions are not bound by them; hence the doctrine in respect to limitations of actions is, that the law of the forum governs; and this is true whether the action is ex contractu or ex delicto. Minor's Conflict of Laws, section 210; 25 Cyc., 1018.

The doctrine is thus stated in Lewis' Sutherland's Statutory Construction, section 668:

"And ordinarily courts disregard the limitation fixed in the contract or tort and enforce only the lex fori."

Necessarily statutes of limitation affect the remedy and not the right; and, as argued by counsel for appellant, they are as much a part of the remedy as are our forms of pleading, our rules of evidence and our manner of conducting trials, hence the Indiana Statute of Limitations can have no more operation in this state upon the one than upon the other.

The rule to which we refer has always been the law in Kentucky and, among the earlier cases approving it, is that of Graves v. Graves, 2 Bibb., 209, in the opinion of which it is said:

"The statute of limitations does not affect the validity of the contract, but the time of enforcing it; or, in other words, it does not destroy the right but withholds the remedy. It would seem to follow, therefore, that the lex fori, and not the lex loci was to prevail with respect to the time when the action should be commenced."

The later cases show no departure from this rule, among these are the following: Bennett v. Delaim, 17 B. Mon., 358; Farmers, &c., .Bank v. Lovel, 8 R., 261; Templeton v. Sharp, 10 R., 499; Shilleto v. Richardson, 102 Ky., 52; Lobatt v. Smith & Whitney, 82 Ky., 599; in each of which it was held that the statutory bar of the state where the remedy is sought to be enforced by action, and

not that of the state where the contract was made, governs. In a more recent case, L. & N. R. R. Co. v. Whitlow's Admr., 114 Ky., 470, quoting with approval from Herrick v. Railway, 31 Minn., 16, we said:

"The statute of another state has, of course, no extraterritorial force, but a right acquired under it will always, in comity, be enforced, if not against the public policy of the laws of the former. In such cases the law of the place where the right was acquired or the liability was incurred will govern as to the right of action, while all that pertains merely to the remedy will be controlled by the law of the state where the action is brought; and we think the principle is the same whether the right of action be ex contractu or ex delicto."

In the still more recent case of Adams Express Co. v. Walker, 119 Ky., 126, we find this expression of the same conclusion:

"It is insisted for appellant that the contract here having been made in Wooster, Ohio, it must be governed by the laws of Ohio, and that by the laws of Ohio such a limitation is valid. Limitation is governed by the law of the forum in which the suit is brought, and the courts of this state will not as a matter of comity, enforce a contract made in Ohio as to the time when the suit shall be brought, for this matter is regulated by our statutes.

Section 2516, Kentucky Statutes, fixes the limitation in such a case as the one at bar and is quite emphatic in its declaration that:

"An action for an injury to the person of the plaintiff * shall be commenced within one year next after the cause of action accrued, and not thereafter."

It is true as argued by appellee's counsel, there are some exceptions to the limitation it declares, but they have no application to this case, the exceptions are found, however, in section 2541 (misnumbered 2451) and section 2542.

Section 2541 provides:

"When, by the laws of any other state or country, an action upon a judgment or decree rendered in such state or country cannot be maintained there by reason of the lapse of time, and such judgment or decree is incapable of being otherwise enforced there, an action upon the same cannot be maintained in this state, except in favor of a resident thereof, who has had the cause of action from the time it accrued."

Obviously, this section has no application to the case in hand, for it is not an action upon a judgment or decree. Section 2542 provides:

"When a cause of action has arisen in another state or country between the residents of such state or country or between them and a resident of another state or country, and by the laws of the state or country where the cause of action accrued, an action cannot be maintained thereon by reason of the lapse of time, no action can be maintained thereon in this state."

It is equally obvious that this section can afford appellee no relief for it only applies to a case where the action is barred by the law of the state where it arose; as held in Lobatt v. Smith & Whitney, 83 Ky., 599, it has no reference to residents of this state but to those who are non-residents of the state and come into it in order to enforce their rights; the object of the statute being to prevent one of them from having an advantage over the other.

Nor do we think the case of Shillito v. Richardson, 102 Ky., 51, relied on by appellee, has any application. The parties were both non-residents of Kentucky, the plaintiff residing in Ohio and the defendant in New York, to which state he had removed from Ohio. The action was brought in Kentucky, but the cause of action arose in Ohio. The defendant answered pleading the statute of limitations of Kentucky, but by reply the plaintiff pleaded the Ohio Statute of Limitations which had not barred the cause of action when the defendant removed from Ohio to New York, and, under the laws of Ohio, did not run while he remained in New York. So, as the case was one between citizens of other states, upon a cause of action which arose in Ohio and had not been barred by the statute of limitations of that state, and the statute would have interposed no bar if the action had been brought in Ohio, it was properly held that the action could be maintained in Kentucky. In other words, the case was one to which section 2542, Kentucky Statutes, was clearly applicable.

The case at bar, however, is wholly different, for both appellant and appellee were, when the cause of action arose and have since remained, residents of this state, hence, although the cause of action arose in Indiana, section 2542, does not apply, but the case must be controlled by section 2516, Kentucky Statutes, which requires such

vol. 154-4.

an action to be brought within a year next after the cause of action arose.

If the statute of Indiana, which gives the right of action attempted to be asserted by appellee, had prescribed the time within which the action to enforce the right must be brought, quite a different question from the one we have would have been presented, for, in that case, the limitation as to time would have to be treated as a part of the right and be governed by the same law that creates the right.

But the Indiana Statute in question does not prescribe the period of limitation, it is instead found in another and general statute of that state, therefore, it has no force outside of that state, and such limitation cannot be applied in Kentucky.

As said by Mr. Minor in his Conflict of Laws, section 10:

"But if the period of limitation is not prescribed by the same statute which confers the right, but is found in a general statute, the general principle applies, and it becomes a law relating to the remedy, which will have no ex-territorial force. In such case the law of the situs of the remedy (lex fori) again becomes the proper law." Cooley Con. Lim., 3 Ed., 361; "The Harrisburg," 119 U. S., 126; McArthur v. Goddin, 12 Bush, 274.

This question was considered and elaborately discussed in O'Shields v. Georgia Pac. R. Co., 6 L. R. A. (Old Ed.), 152, 85 Ga., 621, and by the Georgia Supreme Court held, that where a right of action is given by a statute of another state and no period of limitation is prescribed otherwise than by the general law of limitation prevailing in that state, the lex fori not the lex loci applies on the subject of limitation.

Here the appellee's petition shows a common law right of recovery; the fact that he needlessly set forth a statute of Indiana, which does not prescribe the period of limitation, will not enable him to evade the Kentucky law as to the limitation, which necessarily controls; therefore, the peremptory instruction asked by the appellant should have been given.

For the reasons indicated the judgment is reversed and cause remanded for a new trial consistent with the opinion.

Green v. Burns.

(Decided May 28, 1913.)

Appeal from Jefferson Circuit Court
(Common Pleas Branch, First Division).

Master and Servant-Action for Damages-Former Opinion-Evidence Supplied-Negligence. In an action by a servant for dam. ages the judgment awarding damages was reversed upon a for mer appeal for failure of evidence, but upon the present appeal the evidence pointed out was supplied, there is no error in the instructions and the judgment complained of was properly rendered.

JACOB SOLINGER for appellant.

EDWARDS, OGDEN & PEAK for appellee.

OPINION OF THE COURT BY JUDGE TURNER-Affirming. This is the second appeal of this case, and the opinion on the former appeal will be found in 142 Ky., 710. It is an action by appellee seeking a recovery of damages against appellant for the alleged negligence of one of appellant's employees in closing an extension table so as to mash and crush appellee's thumb.

The former opinion reversed the judgment of the circuit court, and said that a peremptory instruction should have been given because the evidence did not show that the employee knew when he closed the table that her thumb was between the leaves of the table, and did not show any fact from which that might be reasonably inferred, or that by the exercise of ordinary care he could have known her thumb was in position to be injured, and that it was absolutely necessary for plaintiff to show this before she could recover.

On the last trial the failure in the evidence pointed out in the former opinion was duly supplied, the appellee testifying that appellant's servants saw her hand in position to be mashed when he closed the table.

There is no complaint of the instructions, and in view of this testimony the court properly overruled the motion for a peremptory instruction.

Judgment affirmed.