Rohner v. Union Pacific Railroad Company

• Citation: 225 F.2d 272
• Decision Date: 07 July 1955
• Docket Number: No. 5063.,5063.
• Parties: Gideon J. ROHNER, Jr., Appellant, v. UNION PACIFIC RAILROAD COMPANY, a Utah Corporation, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

225 F.2d 272 (1955)

Gideon J. ROHNER, Jr., Appellant, v. UNION PACIFIC RAILROAD COMPANY, a Utah Corporation, Appellee.

No. 5063.

United States Court of Appeals Tenth Circuit.

July 7, 1955.

Robert McLean, Denver, Colo. (Kenneth N. Kripke, Denver, Colo., was with him on the brief), for appellant.

Ed Knowles, Denver, Colo. (Clayton D. Knowles, Kenneth A. Selby, Denver, Colo., W. R. Rouse and F. J. Melia, Omaha, Neb., were with him on the brief), for appellee.

Before BRATTON and MURRAH, Circuit Judges, and WALLACE, District Judge.

WALLACE, District Judge.

Appellant, G. J. Rohner, Jr. (herein referred to as plaintiff) filed this action in the Colorado District Court on July 6, 1954, under the Federal Employers' Liability Act,¹ to recover for personal injuries he allegedly received "On or about February 17, 1946" while working as a switchman for the appellee, Union Pacific Railroad Company (herein referred to as defendant). The defendant moved to dismiss the action with prejudice and asked for summary judgment inasmuch as it appeared from the face of the complaint that the action had not been commenced "within three years from the day the cause of action accrued" as required by the Act.² After argument of counsel the trial court entered judgment in favor of the defendant; and, from such judgment plaintiff appeals.

Plaintiff urges that the defendant's attempt to raise the question of statute of limitations in a motion to dismiss was premature, and that the trial court erred in not overruling such motion and requiring the defendant to answer, therein setting forth such issue as an affirmative defense.

Although there is considerable authority that the defense of statute of limitations may not be raised upon a motion to dismiss for the reason it is an affirmative defense, which can be waived, and thus must be expressly raised by answer,³ the leading authorities recognize that where (as in the instant case) the complaint shows on its face that the action has not been instituted within the statutory period, such issue may be resolved upon a motion to dismiss where it is apparent there is no genuine factual controversy as to the availability of such affirmative defense.⁴

In addition, defendant's pleading, although entitled "Motion To Dismiss and For Summary Judgment", clearly was treated by the trial court as a request for summary judgment.⁵ The intended purpose of the summary judgment provision is to enable the trial court to readily dispose of cases on matters of law where it becomes evident no material controversy of fact remains.⁶ The complaint in question disclosed that the asserted cause of action had its inception more than eight years prior to the time the case was filed; and, when the defendant, by motion, admitted all facts well-pleaded, it then became incumbent upon plaintiff to demonstrate to the trial court that, although not shown by the present state of the pleadings, a material issue of fact existed.⁷ Plaintiff's failure left the facts undisputed, and the court had no alternative as a matter of law but to render summary judgment for the defendant.

Accordingly, the judgment is affirmed.

1 45 U.S.C.A. § 51 et seq.

2 "No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued. * * *" 45 U.S.C.A. § 56.

3 Cope v. Freyn Engineering Co., D.C.Pa. 1949, 8 F.R.D. 620; Weber v. United States, D.C.N.Y.1948, 8 F.R.D. 161; Curtis v. George J. Meyer Malt & Grain Corporation, D.C.N.Y.1947, 6 F.R.D. 444; Dirk Ter Haar v. Seaboard Oil Co. of Delaware, D.C.Cal.1940, 1 F.R.D. 598. The rationale of these decisions is that the defense of statute of limitations is not included in the specifically enumerated defenses listed in Fed.Rules Civ.Proc. rule 12(b), 28 U.S.C.A., which at option of pleader may be urged by motion; and consequently a responsive pleading is required. See, also, F.R. 8 (c) which lists statute of limitations as an affirmative defense.

4 Berry v. Chrysler Corporation, 6 Cir., 1954, 150 F.2d 1002; Taylor v. Houston, 1954, 93 U.S.App.D.C. 391, 211 F.2d 427, 41 A.L.R.2d 724. See 2 Moore's Fed. Prac. (2d Ed.) § 12.10. Cf. Colonial Airlines, Inc., v. Janas, 2 Cir., 1953, 202 F. 2d 914, 918, wherein it is observed: "The fact that accord and satisfaction is an affirmative defense under F. R. 8(c) does not prevent adjudication on summary judgment where the essential facts are made clear of record"; and, Kam Koon Wan v. E. E. Black, Ltd., 9 Cir., 1951, 188 F.2d 558, wherein summary judgment was granted on an affirmative defense urged under Portal-to-Portal Act, 29 U.S.C.A. § 258. Distinguish Headrick v. Atchison, T. & S. F. Ry. Co., 10 Cir., 1950, 182 F.2d 305, wherein this Court reversed the New Mexico District Court for dismissing the action upon alternative motions to dismiss or transfer to a more convenient forum wherein basis of trial court's dismissal was that state of limitations in the convenient forum (California) had run; but, where affidavits...