Gloria E. Myers, Administratrix of the Estate of Fred Myers, Deceased, Plaintiff-appellant, v. Alvey-ferguson Company, Werner Associates and Oliver E. Werner, Defendants-appellees, 326 F.2d 590 (6th Cir. 1964)

This is an appeal from a judgment dismissing the complaint herein on the ground that the cause of action was barred by the statute of limitations. Appellant's decedent was fatally injured in an accident occurring in Washington, D. C., on September 15, 1960. As a result of her husband's death, appellant filed suit within one year of the accident in the United States District Court for the District of Columbia. The complaint in that suit was dismissed by the court on jurisdictional grounds. Subsequently and within two years of the accident (September 14, 1962) the same suit was commenced in the District Court for the Southern District of Ohio. The appellees in this latter proceeding filed motions to dismiss, contending the cause of action in the State of Ohio was barred by the applicable statute of limitations of the District of Columbia. The appellant thereupon, on leave of court, amended her complaint by mere reference to the earlier District of Columbia suit. Her amended complaint did not materially alter the basic allegations of the original complaint before the Ohio District Court. Following the aforesaid amendment, appellees renewed their motions to dismiss which were sustained. It is from this judgment that the within appeal is taken.

In the hearing below, the parties and the trial judge treated the District of Columbia statute of limitations for wrongful death actions¹  as controlling. The applicability of the District of Columbia statute is not challenged on this appeal. Appellant's primary contention here seems to be that the amended complaint embraces not only a wrongful death action, but is broad enough to cover an action under the survival statute²  of the District of Columbia, which includes a three-year statute of limitations.³  In her prayer for relief before this appellate court, appellant seeks to have the District Judge's action in dismissing the complaint set aside in order that she might be "permitted to amend her complaint to set forth clearly her cause of action under the survivorship section." Nowhere has appellant contended she was denied opportunity to amend her complaint in the District Court. In fact, the District Judge expressly granted her time within which to file an amended complaint. Appellant did so amend, but, as stated, in no way indicated her intent to rely on the aforementioned survival statute. Inasmuch as the appellant did not raise the contention in the trial court that this was a survival action, the District Judge will not now be charged with error in dismissing her complaint. Such an issue cannot be raised for the first time on appeal. Meyer v. W. R. Grace & Co., 290 F. 785 (C.C.A.7, 1923); Weiss v. Duro Chrome Corporation, 207 F.2d 298 (C.A.8, 1953); Walker v. Felmont Oil Corporation, 262 F.2d 163 (C.A.6, 1958), cert. denied 361 U.S. 840, 80 S. Ct. 61, 4 L. Ed. 2d 78. It follows that the District Judge, having committed no reversible error, is in all things affirmed.