Johansson v. Towson

• Decision Date: 17 February 1959
• Docket Number: 487.,Civ. A. No. 486
• Parties: Karl G. JOHANSSON, Plaintiff, v. E. D. TOWSON, Defendant. Roslyn H. JOHANSSON, Plaintiff, v. E. D. TOWSON, Defendant.
• Court: U.S. District Court — Middle District of Georgia

177 F. Supp. 729

Karl G. JOHANSSON, Plaintiff, v. E. D. TOWSON, Defendant.

Roslyn H. JOHANSSON, Plaintiff, v. E. D. TOWSON, Defendant.

Civ. A. Nos. 486, 487.

United States District Court Middle District Georgia, Valdosta Division.

February 17, 1959.

Warren C. Fortson, Hawkinsville, Ga., for plaintiffs.

O. W. Franklin, Jr., Valdosta, Ga., for defendant.

BOOTLE, District Judge.

Each of the above cases seeks damages with respect to a vehicular collision which occurred August 25, 1956. In Civil Action No. 486 Count 1 seeks recovery for personal injuries allegedly sustained by the plaintiff, Karl G. Johansson, and Count 2 seeks recovery on behalf of the same plaintiff for his loss of companionship, care and services of his wife and for medical expenses incurred by him on her behalf. In Civil Action No. 487 the wife, Roslyn H. Johansson, seeks recovery for her personal injuries. Each complaint is met by a motion to dismiss based upon the ground that it affirmatively appears that the cause of action is barred by the statute of limitations.

By affidavits tendered and received in evidence at the hearing of these motions it is made to appear that these two complaints were mailed by plaintiffs' counsel at Hawkinsville, Georgia, at approximately 6:30 p. m., August 21, 1958, properly addressed to the Deputy Clerk of the United States District Court at Valdosta, Georgia; that in due course of mail they should have arrived at the Post Office in Valdosta, Georgia, at 5:10 p. m. Friday, August 22, or at 1:15 a. m. Saturday, August 23, 1958, depending upon which of two available schedules of travel was used; that the Deputy Clerk of the United States District Court at Valdosta, Georgia, rents Post Office Box No. 42, located in the United States Post Office Building at Valdosta, Georgia, for the purpose of receiving mail addressed to the Valdosta division of said court; that mail directed to said Deputy Clerk at said Post Office should be placed in said box within one and one-half hours after its arrival in Valdosta; that when said Deputy Clerk closed his office at 5:00 p. m., Friday, August 22, he inspected said box and these complaints were not therein, and that on Monday morning, August 25, 1958, at 8:30 a. m. when he next inspected said box, his office having been closed all day Saturday and Sunday in accordance with the custom, these two complaints were therein, at which time he received them, took them to his office and marked them "filed August 25, 1958, 8:30 a. m.", and that the Deputy Clerk does not know exactly when these complaints and the envelope containing them were placed in said Post Office Box by the postal authorities but that this was done sometime after 5:00 p.m. Friday, August 22, 1958 and prior to 8:30 a.m. Monday, August 25, 1958. The Clerk's file in this case shows that said complaints were accompanied by a letter from plaintiffs' counsel to the Deputy Clerk containing the statement: "Kindly note that these must be filed not later than the 25th day of August so as not to be barred by the statute of limitations" and advising that check for $30 covering costs was enclosed; that on August 25, 1958, the Deputy Clerk wrote plaintiffs' counsel, and plaintiffs' counsel wrote the Deputy Clerk, the former letter advising that the complaints had been received and marked filed that date at 8:30 a. m. and calling attention to the fact that, by oversight, the check covering filing fees had not been enclosed, the latter letter advising that said check was then being enclosed.

The Georgia statute of limitations applies. Metcalf v. City of Watertown, 1894, 153 U.S. 671, 14 S.Ct. 947, 38 L.Ed. 861; Ragan v. Merchants Transfer & Warehouse Co., 1949, 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520. As to Count 1 of Civil Action No. 486 and as to Civil Action No. 487 this statute of limitations provides two years, 3 Ga. Code Ann. sec. 1004, and as to Count 2 of Civil Action No. 486, provides four years, 3 Ga. Code Ann. sec. 1003. It appears, therefore, that while Count 2 of Civil Action 486 is clearly timely the time element with respect to Count 1 of the first case and with respect to the sole count of the second case is extremely close. I find as a fact from the evidence above referred to that these complaints were by the postal authorities duly and regularly placed in the Deputy Clerk's Post Office Box not later than one and one-half hours after 1:15 a. m. on Saturday, August 23, 1958. Under the law of Georgia these complaints could be filed any time before midnight of Sunday, August 24, 1958. Plaintiffs' counsel's recital in his letter to the Clerk that they could be filed not later than August 25 was erroneous as a matter of law because, as just stated, they had to be filed not later than midnight of August 24. Gibson v. Kelley, 1953, 88 Ga.App. 817, 78 S.E.2d 76; Dowling v. Lester, 1946, 74 Ga.App. 290(1), 39 S.E.2d 576; Brown v. Emerson Brick Co., 1914, 15 Ga.App. 332, 333(2), 83 S.E. 160; Peterson v. Georgia Railroad & Banking Co., 1895, 97 Ga. 798, 25 S.E. 370; and Irwin v. State, 1903, 117 Ga. 722, 728, 45 S.E. 59. The fact that the 24th fell on Sunday did not allow an extra day. Brown v. Emerson Brick Co., supra.

Thus, the question is whether the receipt by the Deputy Clerk of these complaints in his Post Office Box in the early morning hours of Saturday, August 23, constituted a sufficient filing of these suits prior to midnight of the following day, notwithstanding the fact that the Clerk did not open the box until 8:30 a. m. on Monday, August 25.

After reading many decisions on this question, some of which look one way and some another, it is my judgment that this filing is sufficient. As was said in Arkansas Motor Coaches v. Commissioner of Internal Revenue, 8 Cir., 1952, 198 F.2d 189, 194:

"Where the right to a day in court is at stake, the judicial approach should be one of attempt to accord the right, if this can legitimately and reasonably be done, and not one of attempt to deny it through unnecessary resolution, unless such a denial is either legally or equitably compelled."

The Federal Rules of Civil Procedure provide that "The district courts shall be deemed always open for the purpose of filing any pleading * * *" Rule 77(a); that "The clerk's office with the clerk or a deputy clerk in attendance shall be open during business hours on all days except Sundays and legal holidays * * *", Rule 77(c); that "A civil action is commenced by filing a complaint with the court", Rule 3 and that "The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk." Rule 5 (e), 28 U.S.C.A.

The tracing of our word "file" to the Latin word "filum" and its reference to the ancient practice of placing papers on a thread or wire for safekeeping and later reference is done in many cases, notably in United States v. Lombardo, 1916, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897 and more recently in Milton v. United States, 5 Cir., 1939, 105 F.2d 253, 255. The latter case points out that all that is required on the part of a person filing a paper with an official is "merely the depositing of the instrument with the custodian for the purpose of being filed".

In the case of Palcar Real Estate Co. v. Commissioner of Internal Revenue, 8 Cir., 1942, 131 F.2d 210, it was adjudicated that a petition to the Board of Tax Appeals was timely filed when it had been delivered to the desk of the mail room of the Board during regular business hours, even though no official of the Board was then present to receive the document. Similarly, in Schultz v. United States, Ct.Cl.1955, 132 F.Supp. 953, 955, the Court of Claims held that a petition to it was timely filed when the airmail special delivery letter containing it "was delivered to the courthouse" before midnight on Sunday, the last day.

The facts in the case of McCord v. Commissioner of Internal Revenue, 1941, 74 App.D.C. 369, 123 F.2d 164, 165, are briefly these: the Board of Tax Appeals had instructed Western Union to deliver its incoming messages to the government telegraph wire. Western Union tendered a telegraphic petition to the government operator at 4:24 p. m., but because of the government wire's preoccupation with outgoing governmental messages it could not accept the incoming petition until 4:53 p. m. after the office of the Clerk of the Board had closed. The court held that such...