Frabutt v. New York, Chicago & St. Louis R. Co.

• Decision Date: 25 May 1949
• Docket Number: Civ. A. No. 114.
• Citation: 84 F. Supp. 460
• Parties: FRABUTT v. NEW YORK, CHICAGO & ST. LOUIS R. CO.
• Court: U.S. District Court — Eastern District of Pennsylvania

84 F. Supp. 460

FRABUTT v. NEW YORK, CHICAGO & ST. LOUIS R. CO.

Civ. A. No. 114.

United States District Court W. D. Pennsylvania.

May 25, 1949.

COPYRIGHT MATERIAL OMITTED

Edward E. Petrillo, Erie, Pa., for plaintiff.

Frank B. Quinn, of English, Quinn, Leemhuis & Plate, Erie, Pa., for defendant.

GOURLEY, District Judge.

This is a proceeding under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for the death of Berardino Campagna who was an employee of The New York, Chicago & St. Louis Railroad Company, a corporation, the defendant.

Berardino Campagna met his death on the 31st day of December, 1942. His wife and four children were non-resident aliens, residing in the Kingdom of Italy.

Pasquale Frabotto was appointed Administrator of said estate on January 4, 1943, and on February 11, 1946 Ernest Frabutt was appointed Administrator d. b. n., or substitute representative of said estate. Ernest Frabutt, Administrator d. b. n. of the Estate of Berardino Campagna, deceased, brought this action in behalf of the widow and four children, as well as in behalf of the estate, on July 12, 1948.

This matter comes before the Court on motion of defendant for summary judgment filed under the provisions of Rule 56(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., in which it is alleged:

"1. That the Complaint fails to state a claim against defendant upon which relief can be granted.

"2. There is no allegation in the pleadings that this action was commenced within three years from the date the cause of action accrued."

The defendant contends:

1. That since the cause of action arose on December 31, 1942, and suit was not filed until July 12, 1948, the proceeding is barred by the three year statute of limitations in the Federal Employers' Liability Act. 45 U.S.C.A. § 56.

(a) That because a state of war existed between the United States of America and the Kingdom of Italy for the period from December 11, 1941 until September 6, 1947 has no materiality in the consideration of the question which exists.

(b) That the non-resident aliens could have instituted an action during the war between the two countries but if in the interest of the security of this democracy it was believed that the action should be suspended, such action would have been proper.

The plaintiff contends:

1. That under the provisions of Section 2(b) of the Trading with the Enemy Act, 40 Stat. 411, 50 U.S.C.A.Appendix, § 2(b), an enemy is defined to include the government of any nation with which the United States is at war.

2. That under the provisions of Section 7(b) of the Trading with the Enemy Act, it is provided, inter alia, "Nothing in this Act shall be deemed to authorize the prosecution of any suit or action at law or in equity in any court within the United States by an enemy or ally of an enemy prior to the end of the war, * * *."

3. That under the provisions of the Trading with the Enemy Act a non-resident enemy alien may not institute a cause of action in any court of the United States during the period that this country is at war with any other nation.

4. That the administrator who brings the action on behalf of the widow and children of the deceased is only a nominal party plaintiff; he acts solely in a fiduciary capacity in behalf of the dependents of the deceased and, as a result thereof, the administrator could not have instituted an action during the period from December 11, 1941 until September 6, 1947.

5. That since the deceased met his death on December 31, 1942, while this country was at war with the Kingdom of Italy, the statute of limitations of three years could not commence to run until subsequent to September 6, 1947 and, as a result thereof, since the cause of action was filed on July 12, 1948, it was within the period of three years provided by the Federal Employers' Liability Act.

Correctness of Procedure

Prior to the filing of motion for summary judgment, the defendant filed its answer in which it was set forth, inter alia, "This action cannot be maintained for the reason that it was not commenced within three years from the date the cause of action accrued."

The right of the Court to pass upon the question has generally been presented on a motion to dismiss rather than a motion for summary judgment, and in the majority the law seems to be that under the provisions of Rules 8(c) and 12(b) the defense of the statutes of limitations can be raised by a motion to dismiss. Latta et al. v. Western Inv. Co. et al., 9 Cir., 173 F.2d 99; Berry et al. v. Chrysler Corp., 6 Cir., 150 F.2d 1002; Drabkin v. Gibbs & Hill, D.C., 74 F.Supp. 758; Continental Colliers v. Shober, 3 Cir., 130 F.2d 631; Di Sabatino et al. v. Mertz, D.C., 82 F.Supp. 248; Hartford-Empire Co. v. Glenshaw Glass Co., D.C., 47 F.Supp. 711, 714; A. G. Reeves Steel Const. Co. v. Weiss, 6 Cir., 119 F.2d 472, 476; Pearson v. O'Connor, D. C., 2 F.R.D. 521; Gossard v. Gossard, 10 Cir., 149 F.2d 111; Cramer v. Aluminum Cooking Utensil Co., D.C., 1 F.R.D. 741; Barnhart v. Western Maryland Ry. Co., D.C., 41 F.Supp. 898, 904. The following cases hold to the contrary: Carlisle v. Kelly Pile & Foundation Corp., D.C., 72 F.Supp. 326; Weber v. United States, D.C., 8 F.R.D. 161; Massachusetts Bond & Ins. Co. v. Darby, D.C., 59 F.Supp. 175; Lockwood v. Hercules Powder Co., D.C., 7 F.R.D. 24.

The only difference between a motion to dismiss filed under the provisions of Rule 12(b) and a motion for summary judgment filed by a defendant under the provisions of Rule 56(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. is, that a motion to dismiss may be filed prior to the time that a responsive pleading is required while a motion for judgment on the pleading may be filed at any time after the pleadings have been closed.

The Federal Rules of Civil Procedure are modeled on the principle of simplicity with the main objective to save time. I believe, therefore, the question of the statute of limitations, barring a right to recover, can be adjudicated on a motion for summary judgment where the statute has been plead as an affirmative defense in the answer.

Discussion of Question

It is provided by the Federal Employers' Liability Act, 45 U.S.C.A. § 59, that any rights of action given by the Act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow and husband and children of such employee, but in such cases there shall be only one recovery for the same injury. Where an employee dies, the action must be prosecuted by the personal representative of the deceased and not the beneficiary. Jenkins et al. v. Pullman Co., 9 Cir., 96 F.2d 405, affirmed 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334; Lindgren v. United States, 281 U.S. 38, 41, 50 S.Ct. 207, 74 L.Ed. 686; Friedman v. McHugh, 1 Cir., 168 F.2d 350; McGlothan v. Pennsylvania R. Co., D.C., 72 F.Supp. 176.

Any amount recovered for death under the Act does not become part of the general assets of the decedent's estate and is not subject to decedent's debts, and is not to be distributed under any statute of descent and distribution. Friedman v. McHugh, supra.

The provisions of the Federal Employers' Liability Act which require an action to be commenced within three years cannot be tolled, after the manner of statutes of limitation, even for fraud or concealment by the employer preventing the employee from bringing the action within the required time. Damiano v. Pennsylvania R. Co., 3 Cir., 161 F.2d 534; Atlantic Coast Line R. Co. v. Burnette, 239 U.S. 199, 36 S.Ct. 75, 60 L.Ed. 226; Carpenter v. Erie R. Co., 3 Cir., 132 F.2d 362.

There is no question that the Federal Employers' Liability Act created a cause of action unknown to the common law. The statute of limitations of three years in the Act is a matter of substance which limits the rights given as well as the remedy. That such a limitation, if not complied with, not only bars the remedy but destroys the liability. Damiano v. Pennsylvania R. Co., supra; Osbourne v. United States, 2 Cir., 164 F.2d 767.

Should this rule apply in cases where the real parties in interest are non-resident aliens residing in a country with whom the United States is at war when the cause of action arose?

It appears by a firmly established principle of international law that the existence of a state of war between two countries or powers is effective to suspend the running of statutes of limitations as between the citizens of such countries or powers at war, or, as it has been otherwise stated, war suspends the statute of limitations against alien enemies resident in enemy territory. On the restoration of peace all rights suspended during hostilities, or which remain dormant, are revived, and the statute of limitations again becomes operative. The rule suspending the running of limitations during war is one of international law which the courts attach to, or read into, statutes of limitations, though it is not expressed in them; and it is applicable irrespective of whether the limitation in the particular statute of limitations is considered to be a limitation of the right or liability, or of the remedy. 137 A.L.R. page 1454 et seq., and 148 A.L.R. page 1423 et seq.; Ex parte Colonna, 314 U.S. 510, 62 S.Ct. 373, 86 L.Ed. 379; Speidel v. N. Barstow Co., D.C., 243 F. 621.

The reason for this modern rule lies in the fact that during the war the courts of either belligerent country are necessarily closed to the citizens of the other, since the law of nations forbids any intercourse between citizens of belligerent powers. Accordingly taking into consideration that statutes of limitations, in fixing a definite period for the bringing of suits, proceed upon the principle that the courts where the person to be prosecuted resides, or the property to be reached is situated, are open during the prescribed period to the suitor, and in view of the fact that the law of nations which closed the...