
    TEPLITZKY v. PENNSYLVANIA R. CO.
    No. 2169.
    District Court, N. D. Illinois, E. D.
    Feb. 13, 1941.
    
      D. J. Wayne, of Chicago, 111., for plain-* tiff.
    E. M. Burke, Clement L. Harrell, and Loesch, Scofield, Loesch & Burke, all of Chicago, 111., for defendant.
   HOLLY, District Judge.

Defendant as a first defense has alleged that the complaint fails to state a claim against defendant. In their brief on plaintiff’s motion to strike this defense counsel for defendant state as a basis for the motion that the plaintiff charges defendant with having violated certain statutes of the State of Ohio and ordinances of the City of Lima in that state, but has failed to set forth the statute and the ordinance. Failure to observe the provisions of the statute, whether or not there was a violation of the ordinance, states a case of negligence and the Federal Courts take judicial notice of the statutes of the various states of the Union. Gormley v. Bunyan, 138 U.S. 623, 635, 11 S.Ct. 453, 34 L.Ed. 1086.

As to the second defense, the Ohio statute provides that the action may be brought at any time within two years. That statute applies in this case, and as stated above, the court takes judicial notice of that statute.

As to the third defense that plaintiff is without capacity to bring suit in this court, counsel for defendant, in their brief, have failed to give any reason for this statement. If defendant intends to stand upon this defense it would be well for counsel to say to the court upon what'facts or principle of law it bases this contention. Counsel for plaintiff stated in his brief that this question was raised and passed upon by the court in • defendant’s brief in its motion to dismiss the action. Defend-* ant in its brief says that this question was not raised on the hearing of the former motion. With this statement we are inclined to agree. Consequently, as we have said above, if counsel for defendant consider this point well taken, we would be pleased to have them give their reasons.

Unless defendant wishes to file a brief on this last point an order sustaining the motion to strike defendant’s first, second and third defenses will be entered February 13, 1941.

A like order will be entered in No. 2170 at the same time. '  