Callahan v. Chesapeake & O. Ry. Co.
| Decision Date | 06 September 1941 |
| Docket Number | No. 46.,46. |
| Citation | 40 F. Supp. 353 |
| Parties | CALLAHAN v. CHESAPEAKE & O. RY. CO. |
| Court | U.S. District Court — Eastern District of Kentucky |
Sawyer A. Smith, of Covington, Ky., for plaintiff.
Galvin & Tracy, of Cincinnati, Ohio, for defendant.
The case is before me on the defendant's motion to dismiss the complaint. The action is brought under and pursuant to the provisions of the Federal Employer's Liability Act, Title 45 U.S.C.A. Sections 51 to 59 inclusive.
The alleged injury occurred on October 8, 1937. At that time the Act in question provided: "No action shall be maintained under this chapter unless commenced within two years from the day the cause of action accrued." Section 56.
On August 11, 1939, an amendment to the Act became effective which provided: "No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued."
This action was commenced October 5, 1940. It will thus be seen that the statute was changed from two years' limitation to three years' limitation before the two years had expired and that plaintiff commenced his action after the two years had expired but within three years from the time the action accrued.
This question of limitation embodied in the Act giving the remedy is a jurisdictional fact which must appear from the face of the complaint.
The plaintiff's remedy arose under the Act that was in effect at the time the alleged injury occurred and not the Act of August 11, 1939. That became the law after the right to seek the remedy which he seeks here had accrued. Had there been no Employer's Liability Act he would have had no cause of action based on the allegations of his complaint. Since he adopts a remedy prescribed by this particular statutory enactment he is bound to assert the prescribed conditions in their entirety. The Act with its accompanying conditions, which was in existence at the time of the accident, not some later Act with different conditions. The limitation provisions of the Act are an integral part of the remedy which he seeks to assert and must be alleged and proved. Any other construction would present an intolerable condition which would substitute judicial legislation for the constitutional authority of the legislative body through which and only through which this plaintiff ever had the particular remedy. One relying for redress upon a statute must bring the facts alleged within the statutory conditions.
The rule is stated in the syllabus from Morrison v....
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Jackson v. Airways Parking Company
...the period of limitation a qualification of the right itself, not simply a limit on the remedy. See, e. g., Callahan v. Chesapeake & O. Ry. Co., 40 F.Supp. 353 (E.D.Ky., 1941); Snyder v. Yoder, 176 F.Supp. 617 (N.D. Ohio, 1959). In such a case the new and enlarged statute cannot be used eve......
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Urie v. Thompson
...well as the remedy and hence is not retroactive. Morrison v. B. & O.R. Co., 40 App. D.C. 391, Ann. Cas. 1914C, 1026; Callahan v. Chesapeake & O. Ry. Co., 40 F.Supp. 353. (13) The right to recover for injuries caused by each of dust accrued as that breath of dust was inhaled whether plaintif......
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Sarfati v. Wood Holly Associates
...and Sohn v. Waterson, 84 U.S. (17 Wall.) 596, 599, 21 L.Ed. 737 (1873)); see also Orpheus, 447 So.2d at 260; Callahan v. Chesapeake & O. Ry. Co., 40 F.Supp. 353, 354 (E.D.Ky.1941). All limitations periods that govern rights created by statute, however, are not necessarily substantive limits......
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Zitomer v. Slate
...As in Dixon and Blocher, so generally, it is the intent of the Legislature that is deemed controlling. Callahan v. Chesapeake & O. Ry. Co., 40 F.Supp. 353 (D.C.E.D.Ky. 1941); Wall v. Gillet, 61 N.M. 256, 298 P.2d 939 (1956); Hibler v. Globe American Corp., 128 Ind.App. 156, 147 N.E.2d 19 (1......