Scarborough v. Atlantic Coast Line R. Co.
Decision Date | 03 December 1949 |
Docket Number | No. 5965.,5965. |
Citation | 178 F.2d 253 |
Parties | SCARBOROUGH v. ATLANTIC COAST LINE R. CO. |
Court | U.S. Court of Appeals — Fourth Circuit |
George E. Allen, Richmond, Va. (L. Cutler May, Richmond, Va., on brief), for appellant.
Collins Denny, Jr., Richmond, Va. (J. M. Townsend, Petersburg, Va., and Howard
C. Vick, Richmond, Va., on brief), for appellee.
Before PARKER, SOPER and DOBIE, Circuit Judges.
Alton Scarborough, Jr., plaintiff-appellant, on March 17, 1949, filed a civil action in the District Court of the United States for the Eastern District of Virginia under the Federal Employers' Liability Act, 45 U.S.C.A. § 56, hereinafter called the Act, against the Atlantic Coast Line Railroad Company, defendant-appellee, to recover damages for personal injuries alleged to have been sustained on September 24, 1944, by plaintiff (who was then only seventeen years old) while in the employ of the defendant. Plaintiff, in his complaint, set out facts which he claimed would estop the defendant from pleading the three-year statute of limitations prescribed by the Act as a bar to his action. This provision reads:
"No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued."
The defendant filed a motion to dismiss "on the ground that the complaint shows on its face that this action was not commenced within three years from the day the cause of action accrued." The District Court sustained the motion and dismissed the action upon the theory that, while the principles of estoppel would apply if the ordinary remedial type of statute of limitations was involved, these principals could not be applied where (as here) the statute is of substantive type. Plaintiff has duly appealed to us.
The motion to dismiss admitted pro hac vice the allegations of the complaint. Those relevant allegations were:
We are thus faced with the important question whether the time limitation of the Act is tolled by the deliberate fraud of the defendant, practiced on an infant, which induced the plaintiff to delay the filing of his action beyond the time limitation set out in the Act. We think the District Court erred by answering this question in the negative.
The distinctions between the two classes of statutes of limitations, the remedial and the substantive, have been frequently discussed. Thus, in 34 Am.Jur. 16, it is stated:
(Italics ours.)
See, also, 53 C.J.S., Limitations of Actions, § 1, p. 904; Osbourne v. United States, 2 Cir., 164 F.2d 767, 768; Damiano v. Pennsylvania Railroad Co., 3 Cir., 161 F.2d 534, 535, certiorari denied 332 U.S. 762, 68 S.Ct. 65, 92 L.Ed. 348; United States v. McCord, 233 U.S. 157, 34 S. Ct. 550, 58 L.Ed. 893; Winfree v. Northern Pacific Railway Co., 227 U.S. 296, 33 S.Ct. 273, 57 L.Ed. 518; Pollard v. Bailey, 20 Wall. 520, 22 L.Ed. 376; American Railroad Co. v. Coronas, 1 Cir., 230 F. 545, L.R.A.1916E., 1095; Partee v. St. Louis & San Francisco Railroad Co., 8 Cir., 204 F. 970, 51 L.R.A.,N.S., 721; Burks Pleading and Practice (3d Ed.) 348, 349.
Probably the case most favorable to plaintiff, in spite of a dictum in the opinion that fraud does not toll the running of the limitation period, is Osbourne v. United States, supra. There it was squarely held that the limitation period in a substantive statute of limitations was extended for the period during which plaintiff was interned by Japan during World War II. Therein, Circuit Judge Frank, 164 F.2d at pages 768, 769, said:
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