Macri v. Flaherty

• Decision Date: 16 October 1953
• Docket Number: Civ. A. No. 3489.
• Court: U.S. District Court — District of South Carolina
• Parties: MACRI v. FLAHERTY et al.

115 F. Supp. 739

MACRI v. FLAHERTY et al.

Civ. A. No. 3489.

United States District Court E. D. South Carolina, Columbia Division.

October 16, 1953.

H. H. Edens and Henry Hammer, Columbia, S. C., for plaintiff.

Nelson, Mullins & Grier, Columbia, S. C., for defendants.

WYCHE, Chief Judge.

This case is before me on motion of the plaintiff to strike from the answer of the defendants the defense of the statute of limitations set up as a bar to plaintiff's cause of action.

This action was instituted by the plaintiff against the defendants to recover damages for personal injuries alleged to have been received in an automobile collision which occurred on December 23, 1946, in the town of Summerton, South Carolina. Jurisdiction of this court is founded upon diversity of citizenship.

The complaint was filed with the Deputy Clerk of this Court in his office at Columbia, South Carolina, on December 19, 1952, and mailed by him to the Clerk of Court in Charleston, South Carolina, on December 22, 1952. There is some conflict as to when the complaint was delivered by the Clerk to the Marshal for service.

Gaines Smith, who was then Deputy Clerk of Court in Charleston, says that the docket entries were personally made by him in his own handwriting; that he never made any docket entries showing that any papers were filed or acts done unless such transactions had actually taken place; that while he had no independent recollection in this matter, he was sure that from an examination of the docket entries in this matter that he personally lodged five copies of the summons and complaint with the Marshal for service on December 23, 1952; that if for any reason the delivery of the summons and complaint could not have been made on December 23, 1952, he would not have made a docket entry showing that the papers were lodged with the Marshal for service on that date; it had always been his practice to make entries in the docket to reflect exactly what happened on the day that it had happened, and, accordingly, he had no doubt that the copies of the summons and complaint in the above matter were lodged with the Marshal for service on December 23, 1952.

Ernest L. Allen, Clerk of Court, says that the following are the docket entries in the above matter:

"Docket Entries "In re: Civil Action No. 3489 Beatrice M. Macri v. J. Preston Flaherty, et al. etc. et al "1. Summons and Complaint with Demand for Jury Trial, filed December 19, 1952. "2. Five (5) Copies to Marshal for Service, December 23, 1952. "3. Four (4) Marshal's Returns, filed January 5 1953. "4. Answer, filed January 20, 1953. "5. Notice of Motion to Strike Portions from Defendants' Answer, filed February 2, 1953. "6. Interrogatories Propounded by Defendants to Plaintiff and Acknowledgment of Service, filed May 19, 1953."

It was his instructions to all personnel of the Clerk's office to promptly lodge copies of summons and complaints with the Marshal for service as soon as they were received in his office; that Gaines Smith, who was a Deputy Clerk on December 23, 1952, informed him that he did lodge the copies of the summons and complaint in the above matter with the Marshal for service on December 23, 1952, as appears on the docket.

Raymond A. Kessler, Chief Deputy United States Marshal for the Eastern District of South Carolina, says that he was on duty at the office in Charleston on December 23, 1952, and until noon on December 24, 1952, Christmas Eve, when the office closed for the holidays; that he had checked his records in regard to the above case and found from the written records in his office that the summons and complaint were received on the morning of December 24, 1952; that since so many papers are received in his office he, nor any of the clerks in his office, had any independent recollection of the particular papers in question, but that it was a universal practice of the Marshal's office to, immediately upon receipt of a summons and complaint from the Clerk, note when it was received, and the written record in his office showed that the summons and complaint in this case had not been received until December 24, 1952; that his office receives mail from Columbia around noon on the following day after it is mailed in Columbia, but naturally during the holidays the mail is sometimes delayed and is not received until later.

The pertinent part of the record referred to by the Chief Deputy Marshal is as follows:

                "Date Received        Nature of       Upon whom to be
                12-24-52               Process             Served
                                    Sum. & Comp.      Director of Mtr
                                                          Vehicles
                Issued
                Date        By Whom      Date Returnable
                12-19        C.D.C.          20 days"
                

Upon consideration of this testimony and the record in the Clerk's office and the record in the Marshal's office, it is possible that the summons and complaint could have been delivered to the Marshal's office late in the afternoon of December 23, 1952, and a record of receipt written on the Marshal's docket on the morning of December 24, 1952.

Since the Statute of Limitations is an affirmative defense and the burden is upon the defendants to establish such defense by the greater weight of the evidence, rule 8(c), Rules of Civil Procedure, 28 U.S.C.A., and since forfeitures are not favored in considering matters of this kind, I conclude that Gaines Smith, the then Deputy Clerk of Court, delivered the summons and complaint to the Marshal's office for service on December 23, 1952.

Section 10-102, Code of Laws of South Carolina 1952, provides: "Civil actions can only be commenced within the periods prescribed in this Title after the cause of action shall have accrued, except when, in special cases, a different limitation is prescribed by statute."

The applicable South Carolina Statute of Limitations is six years, Code 1952, § 10-143.

The Supreme Court of South Carolina has held that the statute of limitations begins to run when the cause of action accrues and whenever there is a plaintiff who can sue, and a defendant who can be sued. Livingston v. Sims, 197 S.C. 458, 15 S.E.2d 770; Suber v. Chandler, 18 S.C. 526; Bugg v. Summer, 1 McMul. 333; Lyles v. Roach, 30 S.C. 291, 9 S.E. 334.

These decisions, however, do not consider or construe Section 10-2, Code of Laws of South Carolina, 1952,¹ providing that the time within which an act shall be done shall be computed by excluding the first day and including the last.

The South Carolina Supreme Court said in Williamson v. Farrow, 1 Bailey 611, that: "the rule may be deduced, that whenever a forfeiture would be incurred by considering `the day of the date,' or `an act done,' as inclusive, then it shall be considered exclusive." In this case the sheriff was directed by an order made in proceedings to foreclose a mortgage of lands, to sell the mortgaged premises, on a credit of six months, and, if the purchase money were not paid when due, to re-sell, on account of the former purchaser. It was held that the purchaser was entitled to a credit of six calendar months, exclusive of the day of sale, that he was entitled to the whole of the last day of that period to pay the purchase money, and that a re-sale by the sheriff on any part of that day was unauthorized, and void, and passed no interest to the second purchaser.

In State ex rel. Stock v. Schnierle, 5 Rich. 299, the South Carolina Supreme Court held, that in the computation of time, the day from which the reckoning commences, and that on which it terminates, may both be included, or excluded, as will best preserve a right, or prevent a forfeiture.

In Corwin v. Comptroller General, 6 S.C. 390, the same Court decided that the three days, Sundays excepted, within which the Governor is to return a bill, are to be computed by excluding the day on which it was presented to him. See also, State v. Platt, 154 S.C. 1, 151 S.E. 206.

The Supreme Court of South Carolina quoted with approval in the case of Williamson v. Farrow, supra, the following from Dowling v. Foxall, 1 Ball & Beatty, 193, in which Lord Chancellor Manners said: "I apprehend that I am acting upon a principle well recognized by this Court, by rejecting that construction, in a doubtful case, which would divest a right, or work a forfeiture."

So, I am confronted with the decisions of the South Carolina Supreme Court leading to one conclusion, and decisions of the South Carolina Supreme Court and a statute passed by the Legislature of South Carolina, leading to another conclusion.

Because of this conflict, and since I can find no South Carolina Supreme Court decision, and none has been cited to me, construing or considering Section 10-2, Code of Laws of South Carolina 1952, in connection with the South Carolina Statute of Limitations, and no decision of the South Carolina Supreme Court overruling or modifying any...