Prince v. United States

• Decision Date: 13 July 1960
• Docket Number: No. 59-C-107.,59-C-107.
• Citation: Prince v. United States, 185 F.Supp. 269 (E.D. Wis. 1960)
• Parties: Robert PRINCE, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

185 F. Supp. 269

Robert PRINCE, Plaintiff, v. UNITED STATES of America, Defendant.

No. 59-C-107.

United States District Court E. D. Wisconsin.

July 13, 1960.

Nathaniel D. Rothstein and Jack E. Keyes, Milwaukee, Wis., for plaintiff.

Edward G. Minor, U. S. Atty., by Howard C. Equitz, Asst. U. S. Atty., Milwaukee, Wis., for defendant.

GRUBB, District Judge.

The United States of America, defendant in this tort claims action, has alternatively moved for dismissal or for summary judgment.

The motion for dismissal is based on Title 28 U.S.C. § 2401(b), a two year statute of limitations, which reads as follows:

"A tort claim against the United States shall be forever barred unless action is begun within two years after such claim accrues * * *."

The injury in this case occurred on May 28, 1957, and the complaint was filed May 28, 1959. It is the government's contention that the complaint was filed one day late. This claim is based on the argument that in computing time, the day of the act or event is included and the last day is excluded. Plaintiff contends that the rule for computation of time is that the day of the event is excluded and the last day is included. Under the rule contended for by the plaintiff, the last date would be May 28, 1959, and under the contention of the defendant it would be May 27, 1959.

The court has found no case on this question decided under Section 2401(b). The majority common law rule favors the plaintiff, as do many federal cases, considering analogous statutes. In 86 C.J.S. Time § 13(1), page 849, it is stated:

"* * * The general rule is that the time within which an act is to be done is to be computed by excluding the first day and including the last, that is, the day on which the act is to be done; and in many jurisdictions this rule has been adopted by statutes which have been held to be merely declaratory of the existing common-law rule."

To the same effect, see 20 A.L.R.2d 1250.

While very few cases nowadays bother with the exact wording of the statute in question, even if we get very technical, the same rule of excluding the first day would hold true in the case of Section 2401(b). Note that the key words in the statute are "within" and "after."

On page 859 of 86 C.J.S. Time § 13 (7), the following is found:

"* * * Thus, if something is to be done `within' a specified time `from' or `after' a given date or a certain day, the generally recognized rule is that the period of time is computed by excluding the given date or the certain day and including the last day of the period, and, similarly, if something is to be done `within' a specified time `from' or `after' a preceding event, or the day an act was done, the day of the preceding event or on which the act was done must be excluded from the count."

The government in its brief cites the case of Siebert v. Jacob Dudenhoefer Co., 1922, 178 Wis. 191, 188 N.W. 610, to the effect that inclusion of the first day is the common law rule which should apply in the instant case. In the first place, the rule of this case has been changed in Wisconsin by statute so that now Wisconsin excludes the first day. See Hale v. Hale, 275 Wis. 369, 82 N.W. 2d 305. In the second place, the Siebert case expressed the minority view on the subject which was based on an ancient English law distinction between a statute which referred to a "day" or an "event." This minority view never really caught on in the United States, and where it has, it often has been changed by statute.

The federal courts in general have enthusiastically adopted the majority rule where federal statutes are concerned. On page 852 of 86 C.J.S. Time § 13(3), Note 94, that work states that the majority rule prevails in federal practice. To the same effect see the annotation beginning on page 1249 of 20 A.L.R.2d. For cases where it has been applied see:

Wiggins v. United States, 9 Cir., 1933, 64 F.2d 950; United States v. Mathis, D. C.D.N.J.1939, 28 F.Supp. 582—Statute of limitation in tax fraud case.

United States v. Fisher, D.C.W.D.Ky. 1953, 112 F.Supp. 233—Statute of limitation in case involving violation of price stabilization laws.

Fogel v. Commissioner of Internal Revenue, 5 Cir., 1953, 203 F.2d 347— Computation of six month period to determine whether capital gain was long or short term.

Holtz v. Commissioner of Internal Revenue, 9 Cir., 1959, 256 F.2d 865—Computation of time for declaration of forfeiture in federal tax case.

United States v. Hardy, 4 Cir., 1935, 74 F.2d 841—Statute of limitation in civil tax case.

The Leopard, D.C.1932, 1 F.Supp. 219 —Statute of limitation in admiralty case.

In re Schmidt, D.C.D.Neb.1944, 54 F. Supp. 262—Computation of stay in bankruptcy proceeding.

Stringer v. United States, 1950, 90 F. Supp. 375, 117 Ct.Cl. 30—Notice requirement under Veterans' Preference Act.

In re Donaldson, 1943, 138 F.2d 419, 35 C.C.P.A. Patents 701—Effective date of statute.

Dunn v. Wheeler Shipbuilding Corp., D.C.E.D.N.Y.1949, 86 F.Supp. 659—Statute of limitation under Death on the High Seas Act.

Davis v. Commissioner of Internal Revenue, 7 Cir., 1957, 241 F.2d 701—Computation of date of loss in tax case.

In addition to these lower court cases, the Supreme Court in Burnet v. Willingham Loan & Trust Co., 1931, 282 U.S. 437, 51 S.Ct. 185, 75 L.Ed. 448, ruled that in computing a statute of limitation in a civil tax case, the first day is excluded and the last day is included. The Seventh Circuit in the Davis case, supra, followed this Supreme Court decision.

In contrast to the above cases, the government cites two bankruptcy cases in support of its minority rule contention— In re Little, 7 Cir., 1905, 137 F. 521, and In re Smith, D.C.E.D.N.Y.1907, 155 F. 688. Neither of these two cases, however, were directly concerned with the inclusion-exclusion problem and simply in a casual aside, which was not necessary to the decision, mentioned that the statute expired on such and such a date.

In addition to the above, Rule 6(a) of the Federal Rules of Civil Procedure, 28 U.S.C., states that the majority rule applies when computing time under the Federal Rules. The government claims this rule does not apply to a statute of limitation question. The plaintiff claims it does. Neither cites any authority or cogent reasoning for their stand. The fact of the matter is that there is a split in the Circuits as to whether Rule 6(a) does or does not apply.

In Joint Council Dining Car Employees Local 370, et al. v. Delaware, L. & W. R. Co., 2 Cir., 1946, 157 F.2d 417, the court stated that Rule 6(a) is the rule of procedure relating to acts done or proceedings had after commencement of an action and was not intended to modify or change existing statutes of limitation which operate prior to the commencement of the action. Moore's Federal Practice takes this stand also. See Moore's Federal Practice, Vol. 2, page 1431.

On the other hand the weight of authority seems to favor applying Rule 6 (a) to statute of limitation questions. See Wilkes v. United States, 5 Cir., 1951, 192 F.2d 128; Peters v. United States, D.C.W.D.Okl.1954, 16 F.R.D. 581; and Rutledge v. Sinclair Refining Co., D.C.S. D.N.Y.1953, 13 F.R.D. 477. This is a very natural tendency for Rule 6(a) is merely an expression of the general common law rule on the subject.

The motion to dismiss is hereby denied.

A resume of the facts is necessary in order to understand the defendant's motion for summary judgment.

The plaintiff in this case had on the night of May 28, 1957, attended a baseball game at Milwaukee County Stadium. After the game he left the stadium and started walking in a southerly direction looking for the bus line or streetcar on National Avenue. In the course of this stroll, he happened upon the premises of the Veterans Administration Hospital at Wood, Wisconsin. As he walked along a path which bordered a cliff on the Veterans Administration grounds, he claims that he stumbled over a large stone in the middle of the path, was thrown off balance, and fell down a rocky slope against a fence which gave way. When the fence gave way, he claims he was "hurtled" over a cliff and was seriously injured. The allegations of negligence are: (1) Permitting a large rock to be located in the middle of a footpath; (2) constructing a footpath near a cliff; (3) failing to maintain the fence which gave way when the plaintiff fell against it; and (4) failing to light the path.

In the complaint the plaintiff claims he was on the premises as an "invitee" of the defendant. Other material allegations include a statement made, in conjunction with the allegation of negligent failure to light the path, to the effect that the defendant knew or should have known that the path was being used for pedestrian traffic. In addition, there is a statement at the beginning of the complaint to the effect that the defendant maintains public pathways on the Veterans Administration premises.

In a deposition the defendant testified that he happened upon the Veterans Administration grounds after leaving a baseball game and while looking for a bus line or streetcar. He also testified that he had no official business with the Veterans Administration at the time of the alleged accident nor had anyone invited him to come upon the property of the defendant.

In support of its motion, the defendant argues that the admissions of the plaintiff as contained in the deposition conclusively prove that plaintiff could not have been an invitee and must have been either a licensee or a trespasser. If the plaintiff was an invitee, the defendant's standard of care is ordinary care. If the plaintiff was a licensee, the rule of ordinary care does not apply, and the defendant can only be held liable if it was guilty of active negligence or if there was something on the premises in the nature of a trap. Greenfield v. Miller, 1921, 173 Wis. 184, 180 N.W. 834, 12 A.L.R. 982. If he was a trespasser, the defendant is liable only for conduct which is...