Hetman v. Fruit Growers Express Company

• Decision Date: 13 December 1961
• Docket Number: Civ. A. No. 324-61.
• Citation: 200 F. Supp. 234
• Parties: Margaret HETMAN, Admx. ad Pros. and General Administratrix of Stephen Hetman, deceased, Plaintiff, v. FRUIT GROWERS EXPRESS COMPANY, Defendant.
• Court: U.S. District Court — District of New Jersey

200 F. Supp. 234

Margaret HETMAN, Admx. ad Pros. and General Administratrix of Stephen Hetman, deceased, Plaintiff, v. FRUIT GROWERS EXPRESS COMPANY, Defendant.

Civ. A. No. 324-61.

United States District Court D. New Jersey.

December 13, 1961.

Samuel M. Cole, Jersey City, N. J., by Theodore H. Friedman, New York City, for plaintiff.

Stryker, Tams & Dill, by William L. Dill, Jr., Newark, N. J., for defendant.

WORTENDYKE, District Judge.

In this action the defendant, before filing answer, has attacked, by motion, each of the four counts constituting the complaint, as presently amended.

Plaintiff sues in the respective capacities of administratrix ad prosequendum and general administratrix for damages sustained by her intestate and for pecuniary loss suffered by his widow and next of kin allegedly resulting from negligence imputable to the defendant, intestate's employer. The occurrence in which decedent suffered injury took place on April 22, 1958, during the course of his employment. He died on February 22, 1960. The original complaint in this action was marked filed by the Clerk of this Court on April 24, 1961.

The first count of the amended complaint is ostensibly based upon the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. In this count, the general administratrix seeks damages for "the conscious pain and suffering, expenses, loss of earnings and other damages sustained by the decedent" from the date upon which the injuries were inflicted (April 22, 1958) until the date of intestate's death (February 22, 1960). Section 6 of the Act upon which the first count depends, 45 U.S.C.A. § 56, provides: "No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued." The cause of action stated in the first count accrued on April 22, 1958, when the decedent was injured. Reading Company v. Koons, 1926, 271 U.S. 58, 46 S.Ct. 405, 70 L.Ed. 835; see also Brassard v. Boston & Maine Railroad Co., 1 Cir., 1957, 240 F.2d 138; Rodzik v. New York Central Railroad Co., D.C.Mich.1959, 169 F.Supp. 803. The time prescribed for bringing the action under the Act is a condition precedent to the right of action. Dixon v. Martin, 5 Cir., 1958, 260 F.2d 809; Carpenter v. Erie Railroad Co., 3 Cir., 1942, 132 F.2d 362. A civil action is commenced by filing a complaint with this Court. F.R.Civ.P. 3, 28 U.S.C.A. The original complaint in this action was marked filed by the Clerk of this Court on April 24, 1961, which was more than three years after the cause of action alleged in the first count of the amended complaint accrued.¹ Plaintiff general administratrix, however, presents evidence, in the form of affidavit, that the complaint was mailed to the Clerk at 5:00 p. m. on Friday, April 21, 1961, in Jersey City, New Jersey, with postage thereon prepaid, addressed to the Newark branch office of the Clerk, located in the United States Post Office building in that City. It is represented in the affidavit that the secretary of plaintiff's attorney was informed by a representative of the United States Post Office Department, at the Post Office in Jersey City, that, in the due course of mail, the envelope enclosing the complaint would be picked up from the mail box in which she had deposited it, at 6:15 p. m. on the date of mailing, would be received at the main Jersey City Post Office at 6:55 p. m. on the same day, and would have arrived at the United States Post Office Building in the City of Newark before midnight of the same night. The same affiant states that she was informed by a representative of the United States Post Office Department at the Newark City Post Office, that mail addressed to the Clerk of this Court, received at the Post Office when the Newark office of the Clerk is closed, is deposited by the postal authorities in Post Office Box 419, which is assigned to the Clerk for the reception of mail addressed to him. The Newark branch office of the Clerk of this Court was not open for business on Saturday April 22, 1961, but the main office of the Court Clerk, located in the City of Trenton, New Jersey, is open until 1:00 p. m. every Saturday that is not a legal holiday. Both offices are closed on Sundays. The fact, time and place of mailing of the original complaint in this case is adequately proved by the affidavit of the employee of plaintiff's attorney. The other information therein contained, however, is hearsay. Rule 77(a) of the Federal Rules of Civil Procedure provides: "The district court shall be deemed always open for the purpose of filing any pleading"; and subdivision (c) of that Rule directs that the "office with the clerk or a deputy in attendance shall be open during business hours on all days except Sundays and legal holidays." It is provided by F.R.Civ.P. 6(a) that in computing any period of time prescribed by the Rules, by order of Court, or by any applicable statute, the day of the event after which the designated period of time begins to run is not to be included, but the last day of the period so computed is to be included, unless it is a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Sunday or a holiday. A half-holiday is considered as other days, not as a holiday. The rule further provides that upon motion made after the expiration of the specified period a Court, for cause shown, may in its discretion "permit the act to be done where the failure to act was the result of excusable neglect."

In this case the cause of action if any, which accrued to decedent for the recovery of damages on April 22, 1958 expired on April 22, 1961. Assuming that the complaint was placed in the Clerk's post office box at the Newark, New Jersey, Post Office, in which building the Clerk's office is located, on the latter date, was this action commenced within three years after the cause of action accrued? F.R.Civ.P. 5(e) defines "filing of pleadings * * * with the court * * * by filing them with the clerk of the court." I take judicial notice that Jersey City and Newark which are both situate in this District, are less than ten miles apart, and that a letter mailed in one of these cities should reach the Post Office in the other, in due course of mail, within 24 hours. Had the branch office of the Clerk in Newark been open for business on Saturday, April 22, 1961, which was not a legal holiday, the document would have been filed and the suit commenced within time. In maintaining the branch office at Newark, the Clerk of this Court held out to litigants the availability thereof for the filing of pleadings. This Court takes judicial notice of the further fact that complaints in actions instituted in this Court by litigants residing in the northern half of the District of New Jersey are permitted and expected to be filed in the Newark branch office. Upon the evidence presented to me on this motion, as supplemented by my judicial notice, I find that the plaintiff in this action did all that was necessary, short of personal delivery to the main office of the Clerk of this Court at Trenton, to effect a timely institution of her action against the defendant. The strong presumption that the complaint which was mailed was received by the addressee of the envelope in the ordinary course of the mails has not been refuted. Crude Oil Corp. of America v. Commissioner, 10 Cir., 1947, 161 F.2d 809, 810, and cases cited. I find that the original complaint in this action was in the Post Office box assigned to the Clerk of this Court in the United States Post Office in the City of Newark on Saturday, April 22, 1961, and that therefore the action was commenced within the time required by the provisions of 45 U.S.C.A. § 56. See Johansson v. Towson, D.C.Ga.1959, 177 F.Supp. 729; Johnson v. Esso Standard Oil Co., D.C.Pa.1960, 181 F.Supp. 431. Pursuant to the authority accorded to me by F.R.Civ.P. 5(b), I direct that the Clerk modify his record in this case to indicate the filing of the complaint therein on April 22, 1961. Cf. Williams v. Blitz, 4 Cir., 1955, 226 F.2d 463. The motion to dismiss the first count of the amended complaint is denied.

To the second count of the amended complaint, defendant addresses motions (1) for judgment on the pleadings pursuant to F.R.Civ.P. rule 12(c); (2) to dismiss for failure to state a cause of action upon...