Burnett v. NEW YORK CENTRAL RAILROAD COMPANY, Civ. A. No. 5365.

• Decision Date: 04 October 1963
• Docket Number: Civ. A. No. 5365.
• Citation: 230 F. Supp. 767
• Parties: Otto V. BURNETT, Plaintiff, v. The NEW YORK CENTRAL RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Ohio

230 F. Supp. 767

Otto V. BURNETT, Plaintiff, v. The NEW YORK CENTRAL RAILROAD COMPANY, Defendant.

Civ. A. No. 5365.

United States District Court S. D. Ohio, W. D.

October 4, 1963.

Otto Putnick, Cincinnati, Ohio, for plaintiff.

John J. Farley, Cincinnati, Ohio, for defendant.

PECK, District Judge.

The question presented by defendant's motion for dismissal is whether the saving clause of a state statute can be applied so as to extend the period within which an action must be commenced under the Federal Employers' Liability Act (45 U.S.C. §§ 51 et seq.). Alleging facts describing a situation covered by the Act, plaintiff filed his petition in the state court within three days of the expiration of the 3-year limitation period provided in 45 U.S.C. § 56. After being non-suited by ruling on defendant's motion directed to venue, plaintiff, within one year brought action in this court. He resists the present motion on the ground that the savings clause in Section 2305.19, Ohio Revised Code, has application since the state court action failed otherwise than upon the merits and he refiled within the year.

Except for a state court decision hereinafter mentioned, counsel agree that there is no decision directly in point. It is, however, plaintiff's contention that the "trend" of the federal court decisions points to the allowance of commencement of action within the savings clause provision. The "trend" is said to have originated in Osbourne v. United States, 164 F.2d 767 (2d Cir. 1947), where the period of limitation was extended because plaintiff was a prisoner of war, and carried further in Frabutt v. New York, Chicago & St. Louis R. Co., 84 F.Supp. 460 (W.D. Pa.1949), where an injured party was a non-resident alien residing in a country with which the United States was at war. Scarborough v. Atlantic Coast Line R. Co., 178 F.2d 253 (4th Cir. 1949), cert. den. 339 U.S. 919, 70 S.Ct. 621, 94 L.Ed. 1343 (1950), went a short step further and held that the defendant was estopped from asserting the limitation defense because of fraud. Of similar effect is Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959). It will be noted that in these cases delay was occasioned either by factors beyond the control of the parties (prisoner of war, existence of state of war), or by the conduct of the defendant (fraud). An entirely different situation presently prevails, since the choice of time and place of filing was in the exclusive control of the plaintiff.

Whether plaintiff could have maintained a tort action under the law of Ohio does not...