Philpott v. Vesta Coal Co.
| Decision Date | 28 October 1937 |
| Docket Number | No. 8528.,8528. |
| Citation | 21 F. Supp. 37 |
| Parties | PHILPOTT v. VESTA COAL CO. |
| Court | U.S. District Court — Western District of Pennsylvania |
Rhea, Grubbs, Ewing & Hay and Malcolm Hay, all of Pittsburgh, Pa., for Mary Philpott.
William A. Challener and William A. Challener, Jr., both of Pittsburgh, Pa., for Vesta Coal Co.
The above-entitled action has been brought by Mary Philpott, administratrix of the estate of Stephen Philpott, for the benefit of the parents and next of kin of the deceased.
The statement of claim alleges that Stephen Philpott was employed as a deckhand on the defendant's steamboat Aliquippa, and that on November 7, 1927, he was thrown overboard and drowned by reason of the negligent operation of the boat by defendant's employees. The present action was brought on July 3, 1936, almost nine years after the date of Stephen Philpott's death, as set forth in the statement of claim.
The statement asserts that Stephen Philpott "was declared a presumed decedent by the Probate Court of Jefferson County, Kentucky," on October 25, 1935, and that the plaintiff was appointed administratrix upon the same day.
The defendant has moved for judgment of non pros. against the plaintiff, upon the ground that the action is barred by the statute of limitations governing such actions.
The right of action is based upon the Act March 4, 1915, § 20, as amended by Jones Act, § 33, 46 U.S.C.A. § 688, which extends to seamen the benefits and provisions of the Federal Employers' Liability Act of April 22, 1908, § 6, as amended 45 U.S.C.A. § 56, relating to interstate railway employees. The Act of 1908 provides: "No action shall be maintained under this chapter unless commenced within two years from the day the cause of action accrued."
The instant action was brought long after the expiration of the two-year limitation period fixed by statute. The plaintiff seeks to overcome this fact by her counsels' interpretation of the words, "from the day the cause of action accrued." It is contended that no cause of action accrued to plaintiff prior to the time of her appointment as administratrix, and that the suit was timely, having been begun in less than two years from that date. It was necessary, counsel assert, that Stephen Philpott be declared presumptively dead by the Kentucky probate court before plaintiff could have been appointed to administer his estate; and before such a declaration could be made, under the statute of Kentucky, an absence of seven years from his home had to be established, and therefore the earliest possible date for suit was November 7, 1934, seven years from the last day upon which he was known to be alive; and, even accepting that date as the proper start of the statute of limitations, the action was begun in time.
We are unable to agree with counsel for plaintiff in their contention. Their position seems to be authoritatively demolished...
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...New York State, on June 7, 1949. This contention is not original, but was raised and disallowed in a similar case, Philpott v. Vesta Coal Co., D.C.W.D.Pa.1937, 21 F.Supp. 37. That decision was based on a holding of the Supreme Court that a cause of action for wrongful death under the Federa......