Hubbard v. Baltimore and Ohio Railroad Company, 13224.

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: PER CURIAM
• Citation: Hubbard v. Baltimore and Ohio Railroad Company, 249 F.2d 886 (6th Cir. 1957)
• Decision Date: 16 December 1957
• Docket Number: No. 13224.,13224.
• Parties: Keith L. HUBBARD, Appellant, v. The BALTIMORE AND OHIO RAILROAD COMPANY, Appellee.

249 F.2d 886 (1957)

Keith L. HUBBARD, Appellant, v. The BALTIMORE AND OHIO RAILROAD COMPANY, Appellee.

No. 13224.

United States Court of Appeals Sixth Circuit.

December 16, 1957.

Frank Leonetti, Cleveland, Ohio, for appellant.

Alexander H. Hadden, Cleveland, Ohio (Baker, Hostetler & Patterson, Cleveland, Ohio, on the brief), for appellee.

Before ALLEN and STEWART, Circuit Judges, and BOYD, District Judge.

PER CURIAM.

The Court has this day, 249 F.2d 885, sustained the District Judge's action in refusing to reinstate the original suit filed in this cause which had been dismissed with prejudice some six months earlier.

The appeal here results from the trial court's action in sustaining a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., following a refiling of the identical case in the trial court.

We approve the trial judge's action in sustaining the motion for summary judgment on the ground that this suit by appellant was barred by the three year statute of limitations provided for in the Federal Employers' Liability Act, 45 U.S.C.A. § 56. Bell v. Wabash Rwy. Co., 8 Cir., 58 F.2d 569.

Under the circumstances, though the trial judge did not pass upon the question, appellant's personal injury claim is now res judicata and this case is also barred on this ground. This court has recently ruled in two cases very similar on the facts, that where plaintiff's original suit is dismissed for failure to attend the taking of his deposition, such dismissal constitutes a judgment upon the merits, is res...